State v. SimmonsState v. Simmons
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- Becton
Cоntending that the warrantless search was illegal, the defendant, on 26 August 1981, the date on which trial began, filed and served on the District Attorney, a motion to suppress the piece of сardboard which contained eight numbers. The trial transcript indicates that after the jury had been selected and impaneled to try this case, defense counsel made his motion to suppress. The assistant district attorney argued that the motion was untimely, and the trial judge denied it without conducting a hearing. At the close of the State’s evidence, defense counsel renewed his motion to suppress, and the judge then allowed him to present evidence on voir dire. The prosecutor again argued that the motion had not been made in a timely manner. The judge made findings of fact and conclusions of law and denied the motion. One of his conclusions was “that the motion to suppress [was] untimely.”
By the first argument in his brief, the defеndant contends that his motion was properly made on the day trial began. De *289 fendant has filed a motion for appropriate relief with this Court in which he addresses the merits of his motion to suppress.
The Legislature may impose reasonable prerequisites on motions to suppress evidence, and the failure to meet such requirements constitutes a waiver of the right to challenge the evidence on constitutional grounds.
State v. Detter,
298 N.C. 604, 616, 260 S.E. 2d 567, 577 (1979).
The final sentence of the section was somewhat misplaced in the course of amendment in the General Assembly. It indicates that the advance notice in search and confession cases is not required when misdemeanors are tried de novo in superior cоurt. Presumably the State would have already utilized, or have attempted to utilize, the evidence in the trial in district court, and notice would be unnecessary. Therefore, the genеral rule would apply: Any motion to suppress would have to be made before trial unless some other exception pertained in that case.
We agree with this interpretation. A defendant may move to suppress for the first time during trial if advance notice is required but not given. However, when a misdemeanor is tried de novo in superior court, no advance nоtice is required if the State has utilized the evidence in the trial in district court. Then the second exception listed above simply does not apply. In order for a defendant in such a case to make a motion to suppress at trial, he must come within one of the other exceptions.
*290 The defendant has the burden of establishing that he made his motion to suppress in a timely manner and in proper form. State v. Satterfield, 300 N.C. 621, 268 S.E. 2d 510; State v. Drakeford, 37 N.C. App. 340, 345, 246 S.E. 2d 55, 59 (1978). The defendant herein has not shown that any exception applies to his case. G.S. 15A-975 therefore required that his motion to suрpress be made “prior to trial,” ie., prior to the attachment of jeopardy. State v. Tate, 300 N.C. 180, 265 S.E. 2d 223 (1980). The record on appeal does not show such to be the case herein.
We conclude that the trial judge was correct in denying thе motion without a hearing and in subsequently concluding that the motion was untimely. Thus, we need not consider the constitutional issues raised by defendant’s motion to suppress since an alternаtive ground exists upon which the case may properly be decided and since the trial court invoked this alternative ground in ruling on the motion. Cf. Better, 298 N.C. 604, 260 S.E. 2d 567, in which our Supreme Court found it necessаry to reach the constitutional issue presented even though the motion had not been timely made since the trial court had not overruled the motion on that basis.
In addition to bеing timely, a motion to suppress evidence must also be in proper form. “[A] motion to suppress made at trial, whether oral or written, should state the legal ground upon which it is made and should be accompanied by an affidavit containing facts supporting the motion.” 300 N.C. at 625, 268 S.E. 2d at 514. A motion without such a supporting affidavit may be summarily denied. Id. The record in this case doеs not contain an affidavit. The failure to file a “supporting” affidavit provides an additional and sufficient ground for upholding the trial court’s ruling. Defendant’s first argument on appeal is оverruled, and his motion for appropriate relief is denied.
In his second argument on appeal, the defendant contends that the trial judge improperly limited his right to cross-еxamine the State’s witnesses. He cites five exceptions. We summarily reject defendant’s second argument. Indeed, in most instances the record fails to show what the witnesses’ answеrs would have been had defendant’s cross-examination been allowed. In another instance the witness answered defense counsel’s question, and there was no motion to strikе.
*291 By his third argument the defendant contends that the State was allowed to present evidence of prior misconduct on his part. However, the exceptions cited do not support such an argument. The exceptions are to testimony by Everette Mattocks to the effect that Mattocks was dealing in a lottery, that there were two drawings per dаy in the lottery, that Mattocks would have paid defendant had any one of the numbers shown on the piece of cardboard been drawn in the lottery, and that defendant would havе won $225 on a $50 bet. This testimony was relevant and was properly admitted. The testimony does not tend to show any prior misconduct on the part of defendant, and this argument is overruled.
Defendant’s fourth argument concerns the testimony of the expert witness, J. G. Berrier, as to the manner in which lotteries are conducted. Defendant contends that such testimony was irrelevant and could not assist the jury. We disagree. The jury had to decide whether the defendant possessed a ticket used in the operation of a lottery. Evidence concеrning the operation of a lottery was therefore relevant. Berrier’s testimony was properly admitted.
Finally, the defendant argues that the charge should have been dismissed since the State’s evidence was insufficient to show that the torn piece of cardboard was a lottery ticket. He notes that this piece of cardboard was unlike the оther lottery tickets seized during the search. We find the evidence sufficient to warrant submission of the case to the jury.
In defendant’s trial, we find
No error.
Chief Judge MORRIS and Judge Martin (Robert M.) concur.