State v. AnthonyÂ

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA19-894
Filed: 2 June 2020
Mecklenburg County, Nos. 17 CRS 241383-85, 18 CRS 8572
STATE OF NORTH CAROLINA
v.
ZACCAEUS LAMONT ANTHONY
Appeal by defendant from judgments entered 11 February 2019 by Judge
Andrew Taube Heath in Mecklenburg County Superior Court. Heard in the Court of
Appeals 14 May 2020.
Attorney General Joshua H. Stein, by Assistant Attorney General Zachary
Padget, for the State.
Mark Hayes for defendant-appellant.
TYSON, Judge.
Zaccaeus Lamont Anthony (“Defendant”) appeals from judgments entered
upon the jury’s verdicts finding him guilty of carrying a concealed weapon, possession
of a firearm by a felon, possession of a weapon on educational property, and attaining
habitual felon status. We find no error.
I. Background
Johnson C. Smith University police officer Todd Sherwood received a call from
a security officer at a campus entrance traffic booth at approximately 12:55 a.m. on 3
STATE V. ANTHONY
Opinion of the Court
November 2017. Some female students reported their concern that a vehicle was
following their vehicle onto campus. Officer Sherwood spoke to the women, who
identified the vehicle they believed was following them. Officer Sherwood told the
women to go to their dorm, make sure they were not followed, and stay there.
The women drove off. Officer Sherwood saw the identified vehicle approach
him as it followed the women onto campus property. Officer Sherwood stopped the
vehicle to address the women’s concerns and to question whether its occupants were
students and their reason for being on campus. Officer Sherwood observed two men
inside the car: Jerome Houston the driver, and Defendant in the passenger seat.
Officer Sherwood detected the odor of alcohol and saw an open beer can inside
the vehicle. The men told Officer Sherwood they were not students at the University
and they “just wanted to talk to the girls that were in the car ahead of them.” Houston
gave Officer Sherwood his consent to search the vehicle. Officer Sherwood asked
Houston to step out of the vehicle for a pat down.
Officer Sherwood then approached Defendant’s side of the vehicle and asked
Defendant to step out of the vehicle. As Defendant stepped out the vehicle, Officer
Sherwood noticed a bulge, which weighed down the front pocket of the hoodie
Defendant was wearing. Officer Sherwood asked Defendant if he had any weapons
on him. Defendant replied he did not.
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Opinion of the Court
Officer Sherwood patted Defendant down and asked him what was inside the
front pocket. Defendant said he had keys in the front pocket, which he removed upon
Officer Sherwood’s request. Officer Sherwood noticed the bulge was still present and
still weighing down the front pocket. Officer Sherwood patted Defendant down a
second time and “noticed a distinct outline of a handgun.”
Officer Sherwood took Defendant into custody and removed the handgun from
Defendant’s pocket. Defendant was indicted for: (1) carrying a concealed weapon; (2)
possession of a firearm by a felon; (3) carrying a weapon on educational property; and,
(4) attaining the status of habitual felon.
Defendant filed his first motion on 18 April 2018 to suppress all evidence
obtained during or subsequent to the stop. He alleged Officer Sherwood had seized
Defendant without reasonable suspicion and in violation of the Fourth and
Fourteenth Amendments to the Constitution of the United States. The trial court
held a hearing and denied Defendant’s first motion on 5 November 2018.
Defendant filed a second motion on 4 February 2019 to suppress all evidence
seized from Defendant resulting from Officer Sherwood’s pat downs. He alleged
Officer Sherwood did not have a reasonable and articulable suspicion that Defendant
was either armed or dangerous when he searched Defendant’s person. The trial court
held another hearing and denied Defendant’s second motion on 6 February 2019.
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The jury found Defendant guilty of all charged offenses. Defendant stipulated
to and the trial court found Defendant was a prior record level III offender, with three
prior weapons offenses. Defendant was sentenced in the presumptive ranges to
concurrent, active sentences of 84 to 113 months for carrying a concealed weapon, 96
to 128 months for possession of a firearm by a felon, and 33 to 52 months for
possession of a weapon on educational property. Defendant entered his notice of
appeal in open court.
II. Jurisdiction
An appeal as of right lies with this Court pursuant to N.C. Gen. Stat. §§ 7A-
27(b)(1) and 15A-1444(a) (2019).
III. Issues
Defendant argues the trial court erred by denying his first motion because
Officer Sherwood had no reasonable suspicion to stop the car. Defendant also argues
the trial court erred by denying his second motion because Officer Sherwood had no
reasonable and articulable suspicion to believe Defendant was armed or dangerous
to search his person. In considering the reasonable suspicion, Defendant argues the
evidence of the “bulge” should not be considered. Lastly, Defendant argues he
received ineffective assistance of counsel.
IV. Preservation
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The State argues Defendant waived his asserted issues concerning the trial
court’s denial of his motions to suppress by failing to timely object at trial before the
jury. We agree.
In order to preserve an issue for appellate review, a party
must have presented to the trial court a timely request,
objection, or motion, stating the specific grounds for the
ruling the party desired the court to make if the specific
grounds were not apparent from the context. It is also
necessary for the complaining party to obtain a ruling upon
the party’s request, objection, or motion.
N.C. R. App. P. 10(a)(1).
A motion in limine is “not sufficient to preserve for appeal the question of
admissibility of evidence if the defendant does not object to that evidence at the time
it is offered at trial.” State v. Golphin, 352 N.C. 364, 405, 533 S.E.2d 168, 198 (2000)
(citation omitted), cert. denied, 532 U.S. 931, 149 L. Ed. 2d 305 (2001). Failure to
object at trial waives appellate review, when evidence is tendered after counsel
sought to exclude the evidence in a pre-trial motion to suppress or a motion in limine.
State v. McClary, 157 N.C. App. 70, 74, 577 S.E.2d 690, 692-93 (2003) (citations
omitted). “A motion in limine will not preserve for appeal the issue of the
admissibility of evidence if the defendant fails to further object to that evidence at the
time it is offered at trial.” Id. (emphasis original) (citations and internal quotation
marks omitted).
Where the inadmissibility of testimony “is not indicated by the question, but
becomes apparent by some feature of the answer . . . . the objection should be made
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Opinion of the Court
as soon as the inadmissibility becomes known, and should be in the form of a motion
to strike out the answer or the objectionable part of it.” State v. Battle, 267 N.C. 513,
520, 148 S.E.2d 599, 604 (1966) (citation omitted). Where a defendant does not move
to strike an inadmissible answer, his objection is waived. Id. (citations omitted); see
also State v. Adcock, 310 N.C. 1, 19, 310 S.E.2d 587, 598 (1984) (“When the question
does not indicate the inadmissibility of the answer, defendant should move to strike
as soon as the inadmissibility becomes known. Failure to so move constitutes a
waiver.” (citation omitted)).
In this case, after Officer Sherwood testified that during the pat down, he felt
the “distinct outline of a handgun,” the prosecutor asked, “What did you do at that
point?” Officer Sherwood testified he took Defendant into custody and removed the
handgun from the front pocket of the hoodie. After Officer Sherwood’s answer,
Defendant’s counsel said: “And, Your Honor, if I may just for the record make our
objection based on our pretrial rulings and motions.” The trial court noted
Defendant’s objection for the record and overruled it.
The evidence Defendant now challenges, to suppress the handgun Officer
Sherwood recovered, was elicited by Officer Sherwood’s answer, not the prosecutor’s
question. Defendant was obligated to move to strike Officer Sherwood’s answer after
objecting for the record and before the jury to preserve his objection.
[A] witness may insert in his answer something which was
beyond the question, but when that occurs the attorney for
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the complaining party should move to strike or to limit the
reply, as the interest of his client may require. Even valid
objections may be, and are usually waived in the ordinary
case by failure to follow the recognized practice by motion to
strike or by motion to limit if the evidence is not
competent[.] This appears to be such a case.
Battle, 267 N.C. at 520-21, 148 S.E.2d at 604 (emphasis supplied); see also State v.
Carter, 210 N.C. App. 156, 165, 707 S.E.2d 700, 707, disc. review denied, 365 N.C.
202, 710 S.E.2d 9 (2011).
Defendant failed to object to the State’s question before Officer Sherwood
testified about the handgun, which he now challenges. Neither did Defendant move
to strike Officer Sherwood’s testimony after it was given. Defendant failed to
adequately preserve this issue for appellate review.
In criminal cases, an issue that was not preserved by
objection noted at trial and that is not deemed preserved
by rule or law without any such action nevertheless 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.
N.C. R. App. P. 10(a)(4) (emphasis supplied).
Defendant failed to assert or argue plain error in his brief. Since Defendant’s
brief did not specifically and distinctly allege the admission of the now-challenged
evidence amounted to plain error, he is not entitled to appellate review under Rule
10(a)(4). See State v. Smith, __ N.C. App. __, __, 837 S.E.2d 166, 169 (2019) (citation
omitted). Defendant’s arguments concerning the admission of evidence about the
handgun are unpreserved and waived. See id.-7-
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V. Ineffective Assistance of Counsel
Defendant next asserts ineffective assistance of counsel during the hearing on
his second motion to suppress. To show ineffective assistance of counsel, Defendant
“must show that his counsel’s conduct fell below an objective standard of
reasonableness.” State v. Braswell, 312 N.C. 553, 561-62, 324 S.E.2d 241, 248 (1985)
(citing Strickland v. Washington, 466 U.S. 668, 688, 80 L. Ed. 2d 674, 693 (1984)).
First, the defendant must show that counsel’s performance
was deficient. This requires showing that counsel made
errors so serious that counsel was not functioning as the
“counsel” guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the
deficient performance prejudiced the defense. This
requires showing that counsel’s errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is
reliable.
Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693; see also Braswell, 312 N.C. at 562,
324 S.E.2d at 248.
Defendant’s counsel consistently argued at the hearing on the second motion
to suppress that Officer Sherwood’s pat down of Defendant was unconstitutional. He
argued: “At the time that Officer Sherwood frisked Mr. Anthony, he had no
reasonable and articulable suspicion that Mr. Anthony was either armed or
dangerous.” After the trial court concluded Officer Sherwood did have the requisite,
reasonable suspicion to pat Defendant down, Defendant’s counsel said:
Right. And to be perfectly candid with the Court, I do think
that there is case law, both federal and state case law that
says that when an officer observes a bulge that that creates
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the necessary reasonable and articulable suspicion . . . . I
think that the moment that Officer Sherwood sees a bulge
. . . that he can do a pat down.
Defendant’s counsel went on to assert Officer Sherwood had decided to pat
down Defendant before he saw the bulge. On appeal, Defendant argues he may have
received ineffective assistance of counsel, if the trial court considered his counsel’s
candid statement to be a concession, rather than an argument in the alternative.
Defendant cannot show he received ineffective assistance of counsel under the
standard of Braswell and Strickland. His counsel’s candid statement was an accurate
statement of law. His subsequent argument about the timing of Officer Sherwood’s
decision to pat Defendant down was not deficient performance. Further, Defendant
cannot show he was prejudiced. The trial court did not consider or rely upon his
counsel’s candid statement as a concession when it ruled upon Defendant’s second
motion to suppress. Defendant’s argument is overruled.
VI. Conclusion
A motion in limine is “not sufficient to preserve for appeal the question of
admissibility of evidence if the defendant does not object to that evidence at the time
it is offered at trial.” Golphin, 352 N.C. at 405, 533 S.E.2d at 198. Defendant objected
after the evidence he now challenges on appeal was introduced at trial, and he did
not move to strike the evidence. His objection to the admission of this evidence is
waived. See Battle, 267 N.C. at 520, 148 S.E.2d at 604.
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Opinion of the Court
Defendant did not specifically and distinctly allege and argue in his brief that
the trial court plainly erred in denying his motions to suppress. Defendant is not
entitled to plain error review under N.C. R. App. 10(a)(4). See Smith, __ N.C. App. at
__, 837 S.E.2d at 169.
Defendant failed to show he received ineffective assistance of counsel where
his counsel’s performance was not deficient, nor was he prejudiced by his counsel’s
performance. Defendant received a fair trial, free from prejudicial errors he
preserved and argued.
We find no reversible errors to warrant a new trial. It is so ordered.
NO ERROR.
Judges BERGER and COLLINS concur.
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