State v. Curtis ( 2015 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance with
the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-74
Filed: 1 September 2015
Guilford County, Nos. 13 CRS 88035, 14 CRS 24219
STATE OF NORTH CAROLINA
v.
BRANDON TYRONE CURTIS
Appeal by Defendant from judgments entered 27 August 2014 by Judge R.
Stuart Albright in Guilford County Superior Court. Heard in the Court of Appeals
11 August 2015.
Attorney General Roy Cooper, by Assistant Attorney General Phillip T.
Reynolds, for the State.
Sharon L. Smith for Defendant.
STEPHENS, Judge.
I. Factual and Procedural History
On 18 November 2013, a Guilford County grand jury indicted Defendant
Brandon Tyrone Curtis for breaking and/or entering, larceny after breaking/entering,
and possession of stolen property. On 7 April 2014, the grand jury indicted Curtis for
attaining the status of an habitual felon. These charges were joined for a jury trial
during the 18 August 2014 criminal session of Guilford County Superior Court.
STATE V. CURTIS
Opinion of the Court
Before the trial began, Curtis filed a motion in limine to suppress evidence and
testimony that he contended were the product of an unreasonable search of his
bedroom. The evidence introduced during the voir dire hearing that followed tended
to show that at around 11:00 a.m. on 15 August 2013, Theresa Donovan was at her
home on Olympia Drive in Greensboro when she heard a crash outside, looked out
her window, and saw a light-skinned black man with dreadlocks wearing white
jogging pants and a black top walking down the driveway of her neighbors, Henry
and Diane Chrisco, while pushing a garbage can containing a flat screen television
toward a vacant house across the street. Donovan called the police and identified the
man she saw as Curtis, who had lived on Olympia Drive as her neighbor for at least
10 years. Later that day, when police informed her that they had apprehended a
suspect and staged a show-up identification, Donovan confirmed that the man in their
custody was the same man she had seen in the Chriscos’ driveway, and identified him
as Curtis.
The trial court also received voir dire testimony from several members of the
Greensboro Police Department who responded to Donovan’s call. Officer Holly Smith
testified that she investigated the Chrisco residence and discovered that the back
door had been broken into; that the Chriscos’ garbage can was missing; that when
she interviewed the Chriscos they reported that two flat screen televisions, fifteen
video games, two digital cameras, and miscellaneous jewelry had been taken; and
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STATE V. CURTIS
Opinion of the Court
that she subsequently located several of these items inside a garbage can she found
beside the vacant house across the street that Donovan had seen Curtis pushing a
garbage can toward.
Officer Travis Cole testified that he and another officer attempted to locate
Curtis by knocking at the front door of his home on Olympia Drive. As they waited
for someone to answer, a car pulled into the driveway and the driver stated that he
had received a call from Curtis, who had asked him for a ride. At that point, the front
door opened and a light-skinned black man with dreadlocks who identified himself as
Curtis came outside wearing a white undershirt and black shorts. Shortly thereafter,
Curtis’s brother, Sheron, and his stepfather, David Morris, also emerged from inside
the house. The officers separated the men and obtained consent to search the
residence from Morris after he confirmed that he owned it. Officer Cole testified that
to determine whether anyone else was inside and assure officer safety, he conducted
a brief protective sweep of the residence. During that protective sweep, Officer Cole
looked into a bedroom and noticed clothing lying on the bed in plain view that
appeared to match Donovan’s description of the clothing worn by the suspect. Instead
of entering the bedroom, which was later identified as Curtis’s bedroom, Officer Cole
alerted his colleagues to what he had seen and then stood by the doorway to guard
this potential evidence until consent or a warrant could be obtained to conduct a
search.
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STATE V. CURTIS
Opinion of the Court
Detective Mark Riddle testified that, when he questioned Curtis at the police
station, Curtis gave written consent for officers to search his bedroom and also waived
his Miranda rights. Detective Riddle testified further that although Curtis initially
denied any involvement in the break-in at the Chriscos’ house, he eventually
confessed his guilt.
At the close of the voir dire hearing, the trial court denied Curtis’s motion to
suppress the clothing that the officers found in his bedroom. In a written order
entered 20 August 2014 nunc pro tunc 18 August 2014, the trial court provided
findings of fact to support its conclusions of law that Morris had apparent authority
to give consent to search the residence and did so freely, voluntarily, and without
limitation; that Officer Cole “was in a place where he had a right to be when he saw
what he reasonably believed to be evidence in this case in plain view” while
conducting the protective sweep of the residence; and that Curtis freely and
voluntarily gave consent to search his bedroom to Detective Riddle. When the State
sought to admit the evidence found in Curtis’s bedroom at trial, Curtis made no
objection.
On 20 August 2014, the jury returned verdicts finding Curtis guilty of breaking
and/or entering, larceny after breaking/entering, and possession of stolen property.
Curtis then pled guilty to attaining the status of an habitual felon. After arresting
judgment on the conviction for possession of stolen property, the trial court sentenced
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STATE V. CURTIS
Opinion of the Court
Curtis to two consecutive terms of 84 to 113 months imprisonment. On 21 August
2014, Curtis’s trial counsel filed a “Motion for Notice Appeal” [sic] with the trial court
in which he “respectfully provide[d] notice of the appeal of the above entitled Motion
to Suppress . . . .” Upon receiving this motion, the trial court stated:
Let the record reflect that I just received a motion for notice
of appeal in the Brandon Curtis case. [His attorney]
indicated to me he was doing it.
Notwithstanding all that, it’s been filed. I’m going to treat
it as a notice of appeal. I’m going to enter appellate entries.
I’m taking the position that they have in fact appealed his
conviction. I will appoint the appellate defender. Appeal
bond is denied. . . .
II. Analysis
As an initial matter, we must address the contents of Curtis’s notice of appeal.
Our General Statutes provide that “[a]n order finally denying a motion to suppress
evidence may be reviewed upon an appeal from a judgment of conviction[,]” N.C. Gen.
Stat. § 15A-979(b) (2013), and our Rules of Appellate Procedure require that a written
notice of appeal “shall designate the judgment or order from which appeal is taken .
. . .” N.C.R. App. P. 4(b). In the present case, however, Curtis’s notice of appeal only
references “the above entitled Motion to Suppress.” Thus, in addition to an appellate
brief, Curtis’s appellate counsel has filed a petition for writ of certiorari seeking to
appeal from the trial court’s final judgment pursuant to Rule 21, which permits
review “when the right to prosecute an appeal has been lost by failure to take timely
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STATE V. CURTIS
Opinion of the Court
action[.]” N.C.R. App. P. 21(a)(1). The State opposes this petition, contending that
although Curtis’s notice of appeal did not fully comply with Rule 4’s technical
requirements, the deficiencies have nothing whatsoever to do with any failure by
Curtis to take timely action in prosecuting his appeal. The State argues further that
because the trial court treated the notice Curtis did provide as one applicable to its
final judgment, in light of sections 7A-27(b) and 15A-1444 of our General Statutes,
this Court should conclude that Curtis has not lost his right to prosecute this appeal,
and therefore we should deny his petition for certiorari review as unnecessary.
Our prior decisions demonstrate that where a defendant expresses his intent
to appeal from the denial of a motion to suppress during trial but then fails to timely
file notice of appeal from the court’s final judgment, absent a petition for a writ of
certiorari, we are without jurisdiction to hear the appeal and must dismiss it. See,
e.g., State v. Miller, 205 N.C. App. 724, 726, 696 S.E.2d 542, 543 (2010) (dismissing
appeal where defendant noted his intent to appeal the denial of his motion to suppress
prior to pleading guilty but failed to appeal from the trial court’s final judgment); see
also State v. Franklin, 224 N.C. App. 337, 339, 736 S.E.2d 218, 220 (2012) (granting
petition for certiorari review where defendant failed to provide timely notice of appeal
from final judgment), affirmed per curiam, 367 N.C. 183, 752 S.E.2d 143 (2013). Here,
however, we agree with the State that certiorari review pursuant to Rule 21 is
unnecessary, given that Curtis’s “Motion for Notice Appeal” was timely filed and the
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STATE V. CURTIS
Opinion of the Court
trial court explicitly stated that it would treat it as a notice of appeal from final
judgment. Accordingly, although Curtis’s petition for a writ of certiorari is denied, we
now address the issues raised in his brief.
Counsel appointed to represent Curtis is unable to identify any issue with
sufficient merit to support a meaningful argument for relief on appeal and asks that
this Court conduct its own review of the record for possible prejudicial error. Curtis’s
counsel has shown to the satisfaction of this Court that she has complied with the
requirements of Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493 (1967), and State
v. Kinch, 314 N.C. 99, 331 S.E.2d 665 (1985), by advising Curtis of his right to file
written arguments with this Court and providing him with the documents necessary
for him to do so.
In addition, Curtis’s counsel directs our attention to a potential issue on
appeal, namely, whether the trial court erred in denying the motion to suppress
evidence and testimony related to the search of Curtis’s bedroom. However, our
review of the record establishes that, after his motion in limine was denied, Curtis
failed to object when this evidence was admitted at trial. As precedent makes clear,
[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
it is offered at trial. A criminal defendant is required to
interpose at least a general objection to the evidence at the
time it is offered.
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STATE V. CURTIS
Opinion of the Court
State v. Conaway, 339 N.C. 487, 521, 453 S.E.2d 824, 845-46 (citations omitted), cert.
denied, 516 U.S. 884, 133 L. Ed. 2d 153 (1995). Where a defendant fails to object
when such evidence is offered at trial, appellate review is limited to plain error. Id.
at 521, 453 S.E.2d at 846 (citation omitted); see also N.C.R. App. P. 10(a)(4) (providing
that an issue that was not properly preserved for appellate review “may be made the
basis of an issue presented on appeal when the judicial action questioned is
specifically and distinctly contended to amount to plain error”). Here, however, after
failing to properly preserve this issue for our review through a timely objection at
trial, Curtis has also failed to argue plain error, and has thus waived any right to
appeal the trial court’s denial of his motion to suppress. See, e.g., State v. Wright, 210
N.C. App. 697, 703, 709 S.E.2d 471, 475, disc. review denied, 365 N.C. 332, 717 S.E.2d
394 (2011).
Curtis has not filed any written arguments on his own behalf with this Court,
and a reasonable time for him to do so has expired. In accordance with Anders, we
have fully examined the record to determine whether any issues of arguable merit
appear therefrom. We have been unable to find any possible prejudicial error and
conclude that the appeal is wholly frivolous.
NO ERROR.
Judges BRYANT and DIETZ concur.
Report per Rule 30(e).
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