State v. Moody

An unpublished opinion of the North Carolina Court of Appeals does not constitute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.

NO. COA14-10
NORTH CAROLINA COURT OF APPEALS

Filed: 2 September 2014

STATE OF NORTH CAROLINA

v. Cabarrus County
Nos. 09 CRS 53217; 10 CRS 902
ERIC CORENZO MOODY

On writ of certiorari to review judgment entered 6 January

2011 by Judge W. Erwin Spainhour in Cabarrus County Superior

Court. Heard in the Court of Appeals 7 May 2014.

Attorney General Roy Cooper, by Assistant Attorney General
Kimberly N. Callahan, for the State.

Marilyn G. Ozer, for defendant-appellant.

CALABRIA, Judge.

We have granted Eric Corenzo Moody’s (“defendant”) petition

for writ of certiorari to review a judgment entered upon a jury

verdict finding him guilty of possession of cocaine, possession

of drug paraphernalia, and resisting, delaying, or obstructing a
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public officer (“RDO”), that includes his plea of guilty to

attaining the status of an habitual felon. We find no error.

I. Background

On 26 September 2009, Officers Dustin Wilhoite (“Officer

Wilhoite”) and Justin Benson (“Officer Benson”) of the Concord

Police Department (“CPD”) initiated a traffic stop of a vehicle

with a broken taillight. Defendant was a passenger in the back

seat of the vehicle. Officer Wilhoite approached the vehicle,

requested the driver’s license and registration, and asked her

to step out of the vehicle. The driver complied and gave the

officer consent to search the vehicle. Officer Wilhoite

determined that the driver had an outstanding warrant for

failure to appear and placed her under arrest.

While Officer Wilhoite was investigating the driver,

Officer Benson approached the passenger side of the vehicle to

speak with defendant and another passenger. He then requested

and received both passengers’ identifications. Officer Benson

determined that neither passenger had any outstanding warrants.

However, for safety reasons, he asked both passengers to exit

the vehicle and also asked if they had any weapons. Defendant

told Officer Benson that he had a knife and reached into his

pocket to retrieve it. Officer Benson grabbed defendant’s wrist

to prevent him from taking the knife out of his pocket.
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Defendant then attempted to flee the scene. CPD Officer

Paul Kluttz (“Officer Kluttz”), who had recently arrived to

assist the other officers, pursued defendant along with Officer

Benson. Shortly thereafter, defendant tripped and was

apprehended by Officer Kluttz. Officer Benson searched

defendant and found a pocket knife, a baggie containing three

crack rocks, and a crack pipe in his pockets.

Defendant was arrested and indicted for felony possession

of cocaine, possession of drug paraphernalia, and misdemeanor

resisting a public officer. Later, he was indicted for

attaining the status of an habitual felon. Beginning 3 January

2011, defendant was tried by a jury in Cabarrus County Superior

Court. At trial, defendant testified on his own behalf.

Defendant claimed that the pants he was wearing at the time of

his arrest belonged to his brother. Defendant asserted that he

did not know that the pants contained crack cocaine or drug

paraphernalia. He explained that he was a drug addict and that

he would have immediately used the drugs if he knew they

existed.

During cross-examination, the State asked defendant whether

he knew that his brother had been in jail on pending murder

charges since 29 November 2008. The court intervened sua

sponte, sustained an objection to the question and ordered

defendant’s response to the question to be stricken. The State
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continued its line of questioning to emphasize that defendant’s

brother did not have access to the pants after 29 November 2008,

but did not mention the pending murder charges again.

On 6 January 2011, the jury returned a verdict finding

defendant guilty of the offenses of felony possession of

cocaine, possession of drug paraphernalia, and resisting a

public officer. After the verdict, defendant pled guilty to

attaining the status of an habitual felon. The trial court

sentenced defendant to a minimum of 90 and a maximum of 117

months in the North Carolina Department of Correction. On 30

May 2013, defendant filed a petition for writ of certiorari with

this Court to review the trial court’s judgment. The petition

was granted on 13 June 2013.

II. Evidence of Murder Charge

Defendant argues that the trial court erred by failing to

issue a sufficient curative instruction to the jury after the

State improperly questioned defendant regarding his brother’s

incarceration due to pending murder charges. We disagree.

The law presumes that jurors will follow the court’s

instructions. State v. Tirado, 358 N.C. 551, 581, 599 S.E.2d

515, 535 (2004). Thus, “[i]t is well-settled that where the

trial court withdraws incompetent evidence and instructs the

jury not to consider that evidence, any prejudice is ordinarily
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cured.” State v. Davis, 130 N.C. App. 675, 679, 505 S.E.2d 138,

141 (1998).

In the instant case, defendant testified that he shared

clothes with his brother and that on the night of his arrest, he

grabbed a pair of pants from the closet that ultimately belonged

to that brother. Defendant claimed that because he did not own

the pants, he was not aware that there were drugs in the pocket.

In order to rebut defendant’s claims, the State attempted to

introduce evidence that defendant’s brother had no access to the

pants for almost a year prior to defendant’s arrest because he

was incarcerated due to pending murder charges.

[The State]: Now, you know that your
brother, Ernest Lamont Moody, has been
locked up in the back here on murder charges
since November 29th of 2008.

[Defendant]: Correct.

The Court: Objection sustained; objection
sustained. Strike that Ladies and Gentlemen.

Defendant first contends that the State’s question was so

grossly prejudicial that it could not be cured, even by an

appropriate curative instruction. See State v. Sanderson, 336

N.C. 1, 19, 442 S.E.2d 33, 43 (1994). Defendant cites Sanderson

and State v. Aycoth, 270 N.C. 270, 273, 154 S.E.2d 59, 61

(1967), in support of his argument. However, both Sanderson and

Aycoth are distinguishable from the instant case.
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In Sanderson, the prosecutor twice insinuated that the

defendant had been investigated in another murder. 336 N.C. at

17, 442 S.E.2d at 42-43. The trial court sustained objections to

the prosecutor’s statements and gave the jury curative

instructions. Id. Our Supreme Court found the curative

instructions to be insufficient, reasoning that “[t]he jury

being left with a plausible suggestion that defendant had

committed at least one other murder and a mild instruction from

the judge not to consider it as such, it may well have accepted

the prosecutor's suggestion and been influenced by it in its

sentencing determination.” Id. at 18, 442 S.E.2d at 43.

In Aycoth, a witness mentioned during his testimony that

the defendant had previously been indicted for murder. 270 N.C.

at 272, 154 S.E.2d at 60. The trial court sustained defense

counsel’s objection, granted a motion to strike, and instructed

the jury not to consider the evidence. Id. Our Supreme Court

held that “the court's instruction did not remove from the minds

of the jurors the prejudicial effect of the knowledge they had

acquired . . . that Aycoth had been or was under indictment for

murder,” and ordered a new trial. Id. at 273, 154 S.E.2d at 61.

The instant case is materially different from Sanderson and

Aycoth. Those cases concern the prejudicial effect of

inadmissible evidence of other charges against the defendant who

is on trial. In this case, evidence that defendant’s brother was
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charged with murder simply does not create the same type of

prejudice. The fact that defendant’s brother had other pending

charges does not suggest that defendant was more likely to have

committed the current offenses. This argument is overruled.

Defendant next argues that if a curative instruction was

appropriate, the trial court was required to give a more

definitive curative instruction than “strike that.” In support

of this argument, defendant notes that in previous cases, this

Court “has approved language that tells the jury in ‘firm and

unequivocal terms’ to disregard the inadmissible testimony.”

State v. Hamilton, 53 N.C. App. 740, 745, 281 S.E.2d 680, 684

(1981). However, defendant fails to adequately explain why the

trial court’s admonition to the jury to disregard the State’s

question and defendant’s answer immediately after the question

was asked and answered was not sufficiently firm and

unequivocal. The trial court had previously instructed the jury

that “[i]f the Court grants a motion to strike all or part of

the answer of a witness to a question, you must disregard and

not consider that evidence which has been ordered stricken.” [T

p 36] Thus, the jury clearly would have understood that when

the trial court ordered the State’s improper question and

defendant’s answer to be stricken, they were to disregard the

question and answer and “any prejudice [was] . . . cured.”

Davis, 130 N.C. App. at 679, 505 S.E.2d at 141. Since the trial
 -8-

court’s instruction to the jury cured any prejudice from the

State’s question, there was no error, plain or otherwise, in the

court’s handling of the improper question. This argument is

overruled.

III. Motion to Suppress

Defendant argues that the trial court erred by denying his

motion to suppress evidence seized as a result of an unlawful

extension of the traffic stop. We disagree.

A motion to suppress evidence is the “exclusive method of

challenging the admissibility of evidence upon grounds specified

in N.C. Gen. Stat. § 15A-974.” N.C. Gen. Stat. § 15A-979 (2013).

A motion to suppress must be made prior to trial unless the

defendant did not have a reasonable opportunity to make the

motion pretrial or a specific exception applies that allows the

defendant to make the motion during the trial. N.C. Gen. Stat.

§ 15A-975 (2013). “A defendant’s failure to comply with the

requirements of the statute acts as a waiver of his right to

suppress evidence in violation of statutory or constitutional

law.” State v. Byers, 105 N.C. App. 377, 381, 413 S.E.2d 586,

588 (1992) (citing State v. Holloway, 311 N.C. 573, 319 S.E.2d

261 (1984)).

In the instant case, defendant failed to file a written

pretrial motion to suppress the evidence. Instead, midway

through the trial, defense counsel made an oral motion to
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suppress. The trial court overruled the motion and said that

defendant waived his objection by failing to follow proper

procedure. Defendant failed to argue that any of the exceptions

in § 15A-975 applied in this case excusing a pretrial motion.

Defendant’s only argument was that the evidence should be

suppressed “in the interests of justice.” Since defendant

failed to comply with the procedural requirements of a motion to

suppress, the trial court did not err in denying his motion.

Nonetheless, defendant asserts that the admission of the

evidence constituted plain error. Plain error is an error “‘so

basic, so prejudicial, so lacking in its elements that justice

cannot have been done[.]’” State v. Odom, 307 N.C. 655, 660, 300

S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676

F.2d 995, 1002 (4th Cir. 1982), cert. denied, 459 U.S. 1018, 74

L. Ed. 2d 513 (1982)). “Under the plain error rule, defendant

must convince this Court not only that there was error, but that

absent the error, the jury probably would have reached a

different result.” State v. Jordan, 333 N.C. 431, 440, 426

S.E.2d 692, 697 (1993).

This Court has held that “[w]hen there are reasonable

grounds to order an occupant out of the car, then he may be

subjected to a limited search for weapons when the facts

available to the officer justify the belief that such an action

is appropriate.” State v. Adkerson, 90 N.C. App. 333, 338, 368
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S.E.2d 434, 437 (1988). In Adkerson, this Court held that a

limited search of a passenger was justified due to the fact that

it was late, in a rural area, and the officer’s position was

vulnerable. Id. at 339, 368 S.E.2d at 437.

In the instant case, Officers Wilhoite and Benson testified

that the traffic stop took place at approximately 1:00 a.m. in a

high-crime area where it was “relatively dark.” At that time,

there were three individuals in the vehicle but only two

officers were present at the beginning of the stop. Under these

circumstances, Officer Benson was justified ordering defendant

to exit the vehicle and conducting a limited search for weapons.

See id. Defendant then admitted to Officer Benson that he had a

knife, further justifying a search of his person. Defendant has

failed to meet his burden of demonstrating plain error. This

argument is overruled.

IV. Conclusion

The trial court’s instruction to the jury to disregard the

State’s question regarding defendant’s brother’s pending murder

charge was sufficient to cure any prejudice that resulted from

that question. Defendant failed to comply with the statutory

requirements for filing a pretrial motion to suppress or for

making a motion to suppress during the trial. In addition,

defendant did not meet his burden of showing that the admission
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of evidence obtained from the extended traffic stop was plain

error. Defendant received a fair trial, free from error.

No error.

Judges BRYANT and GEER concur.

Report per Rule 30(e).