1
No. COA08-533 8A DISTRICT
COURT OF APPEALS OF NORTH CAROLINA
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STATE OF NORTH CAROLINA)
)
-vs-) From LENOIR COUNTY
) 06CRS 50777, 07CRS 899
TRACY GLEN SMITH)
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DEFENDANT-APPELLANT’S BRIEF
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1
INDEX
AUTHORITIES CITED...... iii
QUESTIONS PRESENTED...... 1
PROCEDURAL HISTORY...... 2
JURISDICTION FOR APPELLATE REVIEW...... 3
PETITION FOR A WRIT OF CERTIORARI...... 4
FACTS
Pretrial Motions...... 5
Entry of Guilty Plea and Habitual Felon Admission...... 12
ARGUMENT
I. The record does not establish knowing and voluntary
waiver of jury trials whenthe guilty plea and admission
ofhabitual felon status were entered on misunderstandings
that the denials of Smith’spretrial motions were preserved
for appellate review.
A. Standards for Review...... 13
B. Unknowing/Involuntary Guilty Plea and Admission...... 14
1. Waived Motion to Dismiss Indictment...... 15
2. Waived Motion to Suppress Evidence...... 16
C. Remedy...... 18
II. Trial counsel denied Smith’s rights to counsel by
neglecting to file a timely suppression motion, arguing
unsupported instead of well-supported grounds for
suppression, and presenting a plea arrangement not
permitted by law.
A. Standards of Review...... 19
B. Preservation for Review...... 21
C. Deficient Performance
1. Neglect to File TimelySuppression Motion...... 21
2. Neglect to Argue Well-Supported Grounds for
Suppression...... 23
3. Presenting Plea Disposition Not Permitted By Law.... 29
D. Prejudice...... 30
III. The Superior Court erred in denying Smith’s motion to
suppress evidence...... 31
A. Standards for Review...... 31
B. Violation of Constitutional Rights
1. Unauthorized Frisk...... 31
2. Unauthorized Search of Pocket...... 33
CONCLUSION...... 34
CERTIFICATE OF COMPLIANCE...... 36
CERTIFICATE OF SERVICE...... 37
1
AUTHORITIES CITED
Boykin v. Alabama, 395 U.S. 238, 23 L.Ed.2d 274 (1969).... 13
Hill v. Lockhart, 474 U.S. 52, 88 L.Ed.2d 203 (1985)...... 21, 30
North Carolina v. Alford, 400 U.S. 25, 27 L.Ed.2d 162
(1970)...... 19
Santobello v. New York, 404 U.S. 257, 30 L. Ed. 2d 427
(1971)...... 14
State v. Alexander, 359 N.C. 824, 616 S.E.2d 914 (2005)...... 15
State v. Benson, 323 N.C. 318, 372 S.E.2d 517 (1988)...... 29
State v. Beveridge, 112 N.C.App. 688, 436 S.E.2d 912
(1993)...... 27, 33
State v. Blackwell, 135 N.C.App. 729, 522 S.E.2d 313
(1999)...... 14
State v. Braswell, 312 N.C. 553, 324 S.E.2d 241 (1985)...... 20
State v. Carter, 167 N.C.App. 582, 605 S.E.2d 676 (2004)...... 4
State v. Celaya (COA05-95, unpublished, filed
15 November 2005)...... 28
State v. Collins,38 N.C.App. 617, 248 S.E. 2d 405 (1978)..... 24
State v. Davis, 97 N.C.App. 259, 388 S.E.2d 201
(1990)...... 17, 22
State v. Fair, 354 N.C. 131, 557 S.E.2d 500 (2001)...... 4, 21
State v. Ford, 281 N.C. 62, 187 S.E.2d 741 (1972)...... 13
State v. Jamerson, 161 N.C.App. 527, 588 S.E.2d 545
(2003)...... 16, 29
State v. Jones, 157 N.C.App. 110, 577 S.E.2d 676
(2003)...... 17, 22
State v. Jones, 161 N.C.App. 60, 588 S.E.2d 5 (2003)...... 18
State v.Lacey, 175N.C.App.370,623 S.E.2d 351 (2006)..... 14
State v. Maccia, 311 N.C. 222, 316 S.E.2d 241 (1984)..... 17, 22
State v. Parker, 183 N.C.App. 1, 644 S.E.2d 235 (2007)...... 31
State v. Pulliam, 139 N.C.App. 437, 533 S.E.2d 280
(2000)...... 25, 31
State v. Tyson, ___ N.C.App. ___, 658 S.E.2d 285 (2008)..... 14
State v. Wall, 348 N.C. 671, 502 S.E.2d 585 (1998)...... 18
State v. Watson, 119 N.C.App. 395, 458 S.E.2d 519(1995).. 28
Strickland v. Washington, 466 U.S. 668, 80 L.Ed.2d 674
(1984)...... 20
Terry v. Ohio, 392 U.S. 1, 20 L.Ed.2d 889 (1968)...... 23, 32
United States v. Harvey, 791 F.2d 294(4thCir. 1986)...... 14
United States v. Hensley, 469 U.S. 221, 83 L.Ed.2d 604
(1985)...... 28
United States v. Martin, 25 F.3d 211(4thCir. 1994)...... 14
United States v. Swann, 149 F.3d 271 (4th Cir. 1998)...... 25
Constitution of the United States, Fourth Amendment...... 23
Constitution of the United States, Sixth Amendment...... 20
Constitution of North Carolina, Article I, Section 20...... 23
Constitution of North Carolina, Article I, Section 23...... 20
N.C.R.App.P. 10(b)(1)...... 16, 21
N.C.R.App. P. 11(b)...... 3
N.C.R.App.P. 21(a)(1)...... 16
N.C.R.App.P. 28(j)(2)(A2)...... 36
N.C.G.S. §7A-27(e)...... 4
N.C.G.S. §7A-32(c)...... 5
N.C.G.S. §15A-975(b)(2)...... 17, 21
N.C.G.S. § 15A976(b)...... 17, 21
N.C.G.S. §15A-979(b)...... 3
N.C.G.S. §15A-1340.17(c,e)...... 13, 15
N.C.G.S. §15A-1419(a)(3)...... 4
N.C.G.S. §15A-1444(a1, a2, e)...... 16
N.C.G.S. §15A-1444(e)...... 4
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No. COA08-533 8A DISTRICT
COURT OF APPEALS OF NORTH CAROLINA
******************************
STATE OF NORTH CAROLINA)
)
-vs-) From LENOIR COUNTY
) 06CRS 50777, 07CRS 899
TRACY GLEN SMITH)
******************************
DEFENDANT-APPELLANT’S BRIEF
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QUESTIONS PRESENTED
I. DOES THE RECORD ESTABLISH KNOWING AND VOLUNTARY
WAIVER OF JURY TRIALS WHEN THE GUILTY PLEA AND ADMISSION OF HABITUAL FELON STATUS WERE ENTERED ON MISUNDERSTANDINGS THAT THE DENIALS OF SMITH’S PRETRIAL MOTIONS WERE PRESERVED FOR APPELLATE REVIEW?
II. DID TRIAL COUNSEL FUNCTION AS THE “COUNSEL FOR DEFENSE”
GUARANTEED BY ARTICLE I, SECTION 23, OF THE CONSTITUTION OF NORTH CAROLINA AND THE SIXTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES IN FILING A SUPPRESSION MOTION MORE THAN SIX MONTHS AFTER THE STATE GAVE NOTICE OF INTENTION TO USE THE EVIDENCE, IN ARGUING UNSUPPORTED INSTEAD OF WELL-SUPPORTED GROUNDS FOR SUPPRESSION, AND IN PRESENTING A PLEA ARRANGEMENT NOT PERMITTED BY LAW?
III. WAS THE SUPERIOR COURT CORRECT TO DENY SMITH’S MOTION
TO SUPPRESS EVIDENCE OBTAINED BY THE POLICE FRISK AND SEARCH OF SMITH ABSENT ANY REASONABLE SUSPICION THAT SMITH WAS ENGAGED IN CRIMINAL ACTIVITY OR WAS ARMED OR DANGEROUS AND WHICH WENT BEYOND A CAREFULLY LIMITED SEARCH TO DISCOVER WEAPONS?
PROCEDURAL HISTORY
On indictments charging the Defendant-Appellant Tracy Smith with possession of cocaine with intent to sell or deliver (R. p. 7) as a habitual felon (R. p. 8), the case proceeded to trial before the Superior Court in Lenoir County (Hon. Benjamin G. Alford, presiding) on 3 December 2007 (R. p. 18). The Superior Court conducted an evidentiary hearing regarding Smith’s motion to suppress evidence seized from Smith by police (R. pp. 11-12, 18-51). The Superior Court stated findings of fact and conclusions of law on the record (R. pp. 48-51) and denied suppression (R. p. 51).
Smith, pro se, also moved to dismiss the habitual felon indictment as an abuse of prosecutorial discretion and violation of the constitutional guarantees against cruel or unusual punishment (R. pp. 15-17), which the Superior Court denied by Order dated 3 December 2007 (R. p. 52).
On 4 December 2007, before a verdict at trial, guilty plea to possession of cocaine with intent to sell or deliver and admission of habitual felon status were entered (R. pp. 53-66). The plea arrangement specifiedsentence to the “least amount of time possible” at Class C, Level III, and that Smith’s pretrial motionswere preserved for appeal (R. pp. 55, 61). The Superior Court found as a mitigating factor that Smith had accepted responsibility for his conduct (R. pp. 80,
83) and sentenced Smith in the mitigated range at Class C,Level III, to 70-93 months imprisonment (R. pp. 80-81, 84-85).
On 5 December 2007, Smith gave notice of appeal before the Superior Court (R. p. 88) and in writing (R. pp. 86-87). The Superior Court denied bail pending appeal (R. pp. 88, 93).
The Court Reporter certified delivery of transcripts on 25 February 2008 (R. p. 98). Smith served a proposed record on appeal on 31 March 2008 (R. p. 103), which became the Record on Appeal absent any objection, proposed amendment, or proposed alternative record by the District Attorney (R. p. 104), see N.C.R.App. P. 11(b). Smith filed the Record on Appeal on 12 May 2008 (R. p. 1), and the Clerk of the Court of Appeals mailed the printed Record on Appeal to counsel on 19 May 2008.
JURISDICTION FOR APPELLATE REVIEW
Smith appeals by authority of N.C.G.S. §15A-979(b): “An order finally denying a motion to suppress evidence may be reviewed upon an appeal from a judgment of conviction, including a judgment entered upon a plea of guilty.” The Superior Court finally denied Smith’s motion to suppress evidence by an orderentered on the record on 3 December 2007 (R. pp. 48-51), and entered judgment upon the guilty plea and admission of habitual felon status before the Superior Court on 4 December 2007 (R. pp. 65-66, 80-81, 84-85).
Appeal is to the Court of Appealspursuant to N.C.G.S. §7A-27(e)(“From any...order...of the superior court from which an appeal is authorized by statute, appeal lies of right directly to the Court of Appeals”).
With Smith's appeal properly before the Court of Appeals pursuant to N.C.G.S. §§ 7A-27(e), 15A-979(b), Smith raises an additional claim of ineffective assistance of counsel. See State v. Fair, 354 N.C. 131, 167, 557 S.E.2d 500, 525 (2001)(“to avoid procedural default under N.C.G.S. §15A-1419(a)(3), defendants should necessarily raise those IAC claims on direct appeal that are apparent from the record”). As argued below (pp. 19-30), Smith’s claim of ineffective assistance of counsel is apparent from the record.
PETITION FOR A WRIT OF CERTIORARI
Smith further asks the Court of Appeals to consider this brief as Smith’s petition for a writ of certiorari to review the issue of validity of the guilty plea and admission apparent from the record. N.C.G.S. §15A-1444(e) states: “the defendant...when he has entered a plea of guilty...to a criminal charge in the superior court...may petition the appellate division for review by writ of certiorari.” SeeState v. Carter, 167 N.C.App. 582, 585, 605S.E.2d 676, 678 (2004)(“a defendant may petition for writ of certiorari when he ischallenging the procedures employed in accepting a guilty plea”).
Exercise of the Court of Appeals’ jurisdiction “to issue the prerogative writs,
including...certiorari...to supervise and control the proceedings of any of the trialcourts”, N.C.G.S. §7A-32(c), is appropriate here, where counsel presented, and the Superior Court approved, a plea arrangement purporting to preserve for appellate review issues which, as a matter of law, cannotbe preserved by agreement of counsel and concurrence of the Superior Court. See argument below (pp. 13-19).
FACTS
Pretrial Motions
A magistrate’s order (R. p. 4) charged the Defendant-Appellant Tracy Smith with possession of cocaine with intent to sell or deliver on 13 February 2006. On 13 February 2006, the District Court assigned Attorney Paul Cleavenger to represent Smith (R. p. 6).
On 4 April 2007, a grand jury indicted Smith for possession of cocaine with intent to sell or deliver (R. p. 7) and for being a habitual felon because ofconvictions in the Superior Court in Lenoir County on 13 April 1994 of possession of cocaine, on 7 March 1996 of possession of cocaine with intent to sell or deliver, and on 19 October 1998 of possession of cocaine (R. p. 8).
On 4 April 2007, the State served Attorney Cleavenger with notice of intention to use evidence obtained as a result of a search without a search warrant (R. p. 9). On 10 October 2007, Cleavenger filed Smith’s motion “to suppressevidence seized from the Defendant pursuant to an invalid search and seizure of the
Defendant” (R. pp. 11-12), with Cleavenger’s affidavit “solely on the basis of information derived from the named defendant” averring that “Defendantwas handcuffed before the Defendant was ‘frisked’ by Officer Kivett” and that “thehandcuffing of the Defendant constituted an arrest” although “nothing in the Defendant’s behavior or actions prior to handcuffing would give rise to reasonable suspicion of illegal activity” (R. p. 13).
At sentencing on 4 December 2007, Cleavenger noted that Smith “was indicted ...in April as a habitual felon and arrested at that point...he was not able to make bond and has been in jail since” (R. p. 77). With his fee application (R. pp. 89-90), Cleavenger reported first conferring with Smith on 1 May 2007 (R. p. 91).
When the case was called before the Superior Court (Hon. Benjamin G. Alford, presiding) on 3 December 2007 (R. p. 18), nothing was said regarding timeliness of the suppression motion after the State’s notice of intention to use evidence. The prosecutor informed the Superior Court: “This is a case that’s going to be called for trial in the morning...There is a Motion to Suppress...filed by counsel for the defendant...also...a hand-written motion by his client...with regards to the habitual felony matter” (R. pp. 18-19).
Called by the State, Captain Kivett of the Kinston Department of Public Safety(R. p. 22), testified that he “went...to back two officers up on a traffic stop” (R. p. 22). When he arrived, he “noticed Officer Goyette and Officer Wilson and the
subject at the rear passenger area of the vehicle” (R. p. 23). The officers had thatsubject out while the driver and front seat passenger were seated in the vehicle (R.
pp. 35-36). Asked whether he knew at that point why the individual had been removed from the vehicle, Kivett answered, “Not to the extent, but I knew that if they were removing them, something was wrong” (R. p. 23). Later, Kivett learned that “(t)hey had located narcotics in the possession of the backseat passenger” (R. p. 23).
Kivett testified, “Officer Goyette advised me that we were going to search the vehicle” (R. p. 24). Kivett then:
“removed [Smith] from the passenger area of the vehicle...front passenger seat...got him next to the vehicle, I placed handcuffs on him...Because I really wasn’t sure what was going on...I knew something was wrong and I felt it was in our best interest to possibly place restraints on the subject”
(R. pp. 24-25). Smith’s hands were handcuffed behind his back (R. p. 37). Asked whether Smith was free to leave, Kivett testified, “Well I wouldn’t let him leave with my handcuffs, no, sir” (R. pp. 38-39). However, Kivett “told him he was not under arrest” and:
“performed a Terry frisk on him for weapons...a quick pat down for anything that was subject to hurt myself or the other officers...For officer safety because I still wasn’t totally sure what was going on in thebackseat passenger area, so I didn’t know if there were possible weapons in the car or weapons on his person”
(R. pp. 25-26).
Kivett “started patting him down...bygrasping and grabbing to see if I could find anything bulky like a weapon and I feltan object in his left pants pocket that I felt to be a pocketknife or some type of knife” (R. p. 27). Kivett testified that he “felt...the round oblique shape of a pocketknife” (R. p. 38), although “the item that I had felt that I believed to be a pocketknife...was a key chain, a plastic key chain” (R. p. 29). Kivett testified, “I did not feel any keys” (R. p. 38).
When he felt the object, Kivett “asked [Smith] did he have a knife in his pocket...He said that he did not” (R. p. 27). Nevertheless, Kivett, “advised [Smith] that I was going to go in his pocket and retrieve what I felt to be a knife” (R. p. 27).
However, Kivett did not then remove the object from Smith’s pocket. Instead, he “utilized...a small flashlight. I stick it in his pocket to see what I’m sticking my hands into first prior to putting my hands in there” (R. p. 28). Illuminating the inside of Smith’s pants pocket, Kivett saw “two round glass type items with a burn on the end...two cylindrical items...frequently used to smoke crack” (R. p. 28). “(W)hile retrieving the two crack pipes [Kivett] found the item that [he] had felt...a plastic key chain” (R. p. 29).
Kivett then “advised [Smith] he was under arrest for drug paraphernalia ...searched incident to arrest and located several other items” (R. p. 29), “(d)igital scales with white powder residue...clear plastic sandwich bags...containing several...off-white ivory hard rock material...the sum of $353.00...(h)is cell phone” (R. pp.
29-31).
Kivett testified that the time was “24 after midnight...February 13” (R. p. 31), and that the location was “not...the worst area, but there is frequently drug users...either the one selling the crack or smoking crack” (R. p. 32).
The State called only Captain Kivett to testify, and Smith offered no evidence (R. pp. 39-40). Attorney Cleavenger argued to the Superior Court:
“Captain Kivett...extracted Mr. Smith from the vehicle apparently without any suspicion that he himself was involved in anything other than being present in the vehicle. At that point, he extracts him from the vehicle and handcuffs him. Regardless of what Officer Kivett says, the fact is that constitutes arrest. He was not free to leave based upon the officer’s own statement and no longer appeared to be a threat to the officers in the way of weapon or anything else. That basically sidesteps the whole Terry frisk issue at that point because the whole purpose of a Terry frisk is to be the non-invasive check for weapons and officer safety. Well he’s in handcuffs at this point...So consequently, the whole basis for Terry frisk is now kind of gone and you’re into something else entirely...Our contention is that when Officer Kivett took him out of the car and handcuffed him, that constituted an arrest. And at that point there was not even reasonable suspicion that he was committing some unlawful act...So now you’re at the point that it constitutes an arrest and the search then is unlawful...at the point that my client is immobilized, the point of the Terry frisk is sidestepped”
(R. pp. 43-44).
Cleavenger cited no case or other authority. His time record submitted with his fee application claimed no time for legal research (R. pp. 91-92). The State cited “United States versus Swan...149 F3d 271” (R. p. 45).
Cleavenger reiterated:
“(O)ur contention is...when you handcuff somebody you have changed the entire scope of the situation. We’re not arguing that the officer has the right to detain someone...That’s not the issue. The issue really is that at the moment that you have handcuffed somebody, you have more than detained them. You have done something else that they are not free to leave and, by the way, their ability to cause you harm is so drastically diminished that basis for a Terry frisk melts away. It isn’t that an officer can’t do a Terry frisk. It is – what is the purpose of the Terry frisk? The purpose of a Terry frisk is for an officer to check a person for a weapon”
(R. pp. 46-47).
The Superior Court denied Smith’s suppression motion (R. p. 51), stating findings of fact:
“Captain Kivett received some transmission or information that other Kinston Public Safety officers had stopped a vehicle... Captain Kivett went to the area where the vehicle was stopped to assist...when Captain Kivett arrived...the passenger from the rear of the vehicle had been removed ostensibly because of the location of what appeared to be narcotics located in the vehicle backseat...defendant...was a passenger in the front seat...Captain Kivett ordered the defendant out of the car after learning of the location of alleged narcotics in the rear of the vehicle and handcuffed the defendant for officer safety...Captain Kivett did a Terry frisk...a quick pat down of the person of the defendant to locate weapons ostensibly for the safety of himself and the other officers...during the quick pat down...Captain Kivett felt an object in the left pocket like a pocketknife or a weapon ofsome sort...defendant indicated to Captain Kivett that he did not have a knife on him...Captain Kivett informed the defendant that he was going to go into the pocket to find out and retrieve the item that he had manipulated...Captain Kivett illuminated the pocket and saw what he believed to be a crack pipe or some other instrument commonly used for the smoking of illegal
controlled substances...retrieved a key chain which apparently was the object that he had manipulated in the pants pocket...
placed the defendant under arrest for possession of drug paraphernalia and then conducted a full search of his person... finding...scales, plastic bags, and off-white rocks... approximately $353.00...this interaction...occurred at approximately 12:22 a.m...at the area...Captain Kivett knows from his training and experience as an area where drugs are used and/or sold”
and conclusions of law:
“none of the defendant’s rights, constitutional rights, either federal or state, were violated by the quick pat down or Terry frisk conducted of the defendant by Captain Kivett on February 13, 2006, at approximately 12:22 a.m.”
in open court (R. pp. 48-51).
By written pro se motion, Smith moved to dismiss the habitual felon indictment:
“on the grounds that the North Carolina Habitual Felon Act is unconstitutional...Defendant...is being unfairly punished and prosecuted for a drug addiction problem...use of the Habitual Felon Statue in his case is an abuse of discretion by prosecution ...the Habitual Felon Act unconstitutionally abridges the separation of powers...by giving unfettered discretion to either punish the Defendant under Structured Sentencing or the Habitual Felon Act in the hands of the District Attorney...[and] as applied to his particular facts and circumstances amounts to being cruel and unusual punishment”
(R. pp. 15-17). The Superior Court denied the motion, in a written order signed 3 December 2007 because: