STATE OF NORTH CAROLINA
v. Haywood County
No. 05 CRS 52616-18
JACKIE BOIKE WALLACE
Attorney General Roy Cooper, by Special Deputy Attorney
General J. Allen Jernigan, for the State.
James N. Freeman, Jr. for defendant-appellant.
STEELMAN, Judge.
Since the 2003 amendments to Rule 103 of the N.C. Rules of
Evidence were declared unconstitutional in State v. Tutt, 171 N.C.
App. 518, 524, 615 S.E.2d 688, 692-93 (2005), defendant was
required to renew her objection to evidence at trial following the
denial of her motion to suppress. Since there was no objection at
trial, this issue is not preserved for appellate review
The State presented evidence tending to show that on 23 July
2005, Douglas Carver was employed as an auxiliary officer with the
Maggie Valley Police Department. Officer
Carver received a call to
respond to the Hearth and Home Inn. Upon arriving at the Hearth
and Home Inn, Officer Carver spoke to the manager, who reported
that she suspected drug activity was taking place in Room 209. Officer Carver knocked on the door of Room 209.
A man who
identified himself as “Richard Cagle” cracked open the door.
Officer Carver explained that he was investigating a tip that drug
activity may be occurring in the room. With Cagle's permission,
Officer Carver entered the room and saw defendant seated in a chair
next to the door and two other persons sitting on a bed. Officer
Carver saw copper metal shavings in an ashtray and an open box of
baking soda on a night stand. Officer Carver knew that baking soda
is commonly used as a “cutting agent in cocaine” and that copper
metal shavings are utilized as a filter in a pipe used to smoke
crack cocaine. Officer Carver observed a blue book bag next to
defendant's leg. Officer Carver asked defendant whether the book
bag belonged to her. Defendant responded, “Yes.” Officer Carver
asked for and received permission from defendant to look inside the
bag. Officer Carver found inside the bag bottles of prescription
medications labeled in defendant's name, digital scales, plastic
baggies, two straws, a small plastic bag containing a small piece
of crack cocaine, two clean glass pipes, one glass pipe with smoke
residue, and a drug safe disguised as an RC Cola can. Officer
Carver screwed off the top of the drug safe and found inside two
bags containing methamphetamine. After finding all of these items
in the bag, Officer Carver asked defendant whether the items
belonged to her. Defendant hung her head down. Officer Carver
left the room to speak to another officer. When Officer Carver
returned to the room, defendant stated that “it was hers and nobody
else's.” Subsequent chemical analysis confirmed that the substances
were 1.7 grams of cocaine base and 39.3 grams of methamphetamine
hydrochloride.
Defendant did not present any evidence.
The jury found defendant guilty of the Class F felony of
trafficking in methamphetamine, felony possession of cocaine and
misdemeanor possession of drug paraphernalia. Defendant received
an active sentence of 70-84 months imprisonment on the trafficking
charge and a 6-8 month suspended sentence on the remaining charges.
Defendant appeals.
Defendant contends the trial court erred by denying her motion
to suppress (1) evidence seized as a result of the search of
defendant's bag and (2) defendant's statement in response to the
officer's inquiry as to whether the bag belonged to her. We
disagree.
Defendant's pretrial motion to suppress evidence was heard on
10 April 2006, by Judge Guice and the motion was denied. These
matters went to trial on 11-12 April 2006. Defendant never
objected to the admission of the evidence of the drugs or the
statement when it was offered at trial. A pretrial motion to
suppress is a type of motion in limine. State v. Golphin, 352 N.C.
364, 405, 533 S.E.2d 168, 198 (2000), cert. denied, 532 U.S. 931,
149 L. Ed. 2d 305 (2001), disc. review denied, 358 N.C. 157, 593
S.E.2d 84 (2004). “A motion in limine is insufficient to preserve
for appeal the question of the admissibility of evidence if the
defendant fails to further object to that evidence at the time itis offered at trial.” State v. Conaway, 339 N.C. 487, 521, 453
S.E.2d 824, 845 (1995).
The North Carolina General Assembly amended Rule 103 of the
Rules of Evidence to provide that “[o]nce the [trial] court makes
a definitive ruling on the record admitting or excluding evidence,
either at or before trial, a party need not renew an objection or
offer of proof to preserve a claim of error for appeal,” effective
to rulings made on or after 1 October 2003
. N.C. Gen. Stat. § 8C-
1, Rule 103(a)(2) (2004). However, this Court held that this
amendment to Rule 103 was unconstitutional in that it conflicted
with N.C. R. App. P. 10(b)(1) (2005), which requires a party to
make a timely request, objection, or motion and obtain a ruling in
order to preserve appellate review. Tutt, at 524, 615 S.E.2d at
692-93. In Tutt and a number of subsequent cases this Court
reviewed the trial court rulings upon a motion in limine or to
suppress even though the party failed to object when the evidence
was offered at trial because it would be unfair not to review the
ruling when the defendant relied upon a procedural rule that was
presumed constitutional at the time the case was tried. See,
e.g., State v. Smith, N.C. App. , , 636 S.E.2d 267, 274
(2006).
The case at bar, however, was tried on 10 April 2006, long
after this Court's decision in Tutt was filed on 19 July 2005.
We are thus compelled to conclude that at the time of
defendant's trial, defendant was required to have objected to the
admission of the evidence in order to preserve her right to
appellate review of the court's order ruling upon a motion tosuppress. Defendant did not assign plain error or argue it in her
brief, thus plain error review is waived. See State v. Moore, 132
N.C. App. 197, 201, 511 S.E.2d 22, 25 (1999). Even had defendant
argued plain error, the totality of the circumstances established
that defendant's consent to search and subsequent statement were
freely and voluntarily given to Officer Carver. See State v.
Wilson, 155 N.C. App. 89, 97-98, 574 S.E.2d 93, 99 (2002).
Defendant failed to argue the remaining assignments of error
in her brief and they are deemed abandoned. N.C.R. App. P. 28(a)
(2006).
NO ERROR.
Judges McCULLOUGH and LEVINSON concur.
Report per Rule 30(e).
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