State v. Holloway

319 S.E.2d 261, 311 N.C. 573, 1984 N.C. LEXIS 1749
Supreme Court of North Carolina·Decided August 28, 1984·No. 138A84·Published·Cited by 23 cases

Opinions

MITCHELL, Justice.

The State appeals from a Court of Appeals decision reversing the trial court’s denial of the defendant’s motions to suppress evidence and remanding to the trial court for a hearing on the defendant’s contention that a Deputy Clerk of Superior Court, Wilkes County did not perform her function of issuing warrants in a neutral and detached way. Because we find that the defendant waived his right to raise on appeal the question of the deputy clerk’s neutrality, we hold that the trial court committed no error and reverse the decision of the Court of Appeals.

The defendant, Grady Melvin Holloway, was charged with trafficking in methaqualone and marijuana. He entered pleas of not guilty and filed a motion to suppress evidence seized pursuant to a search warrant which had been issued on March 18, 1982 by Janet Handy, a Deputy Clerk of Superior Court, Wilkes County.. The motion to suppress alleged inter alia that the warrant was issued without probable cause and that it was improperly executed. The motion also included the following allegation:

4. The defendant is informed and believes and alleges on information and belief that the aforesaid Deputy Clerk of Superior Court of Wilkes County was not a “neutral and detached magistrate” as required to justify the issuance of the search warrant, State v. Miller, 16 N.C. App. 1; State v. Campbell, 282 N.C. 125 and/or that the application for a search warrant was inadequate.

Hearings on the motion to suppress were held in August and September of 1982. During the hearings the defendant presented evidence tending to show that Deputy Sheriff Sam Winters, S.B.I. Agent John Stubbs and S.B.I. Agent Jonathan Jones visited Magistrate Barry Woods on March 17, 1982. At that time the law enforcement officers related to Woods information they had obtained concerning the defendant’s involvement in drug trafficking. [575]*575Woods told the officers he did not believe they had produced sufficient evidence of probable cause to justify the issuance of a search warrant. Woods testified that at that time he called District Attorney Michael Ashburn who agreed that there was insufficient probable cause. The following day, after acquiring more information, Deputy Sheriff Winters and S.B.I. Agent Jones went to Janet Handy, Deputy Clerk of Superior Court, to apply for a search warrant. After reading the officers’ application and affidavit, Handy issued a search warrant pursuant to her authority under N.C.G.S. 15A-243(b)(2) and N.C.G.S. 7A-18H2).

After the hearing the trial court denied the defendant’s motion to suppress. The defendant changed his plea from not guilty to guilty and reserved his right to appeal under N.C.G.S. 15A-979(b) from the denial of his motion. He also reserved the right to present additional evidence on the issue of the suppression motion.

In a subsequent hearing on the motion to suppress, Janet Handy was called as a witness by the defendant. The defendant’s counsel questioned Handy about her relationship with officers who applied for the search warrant on March 18, 1982. The following transpired:

Q. Now, did you have any type of social relationship with any of the officers?
MR. ASHBURN: Objection.
COURT: Sustained.
Exception 42
Mr. WlLLARDSON: I think at this point this could be important to our motion. We think this goes to the heart of the matter.
COURT: It is going to be a sad thing if a person’s personal life is going to be called into Court. If that happened to me, I would quit, if I worked in the Clerk’s office—if I were called into Court and had to be questioned about my personal life. That objection is sustained.
Exception 43
[576]*576Mr. WlLLARDSON: I ask that it be answered for the record.
COURT: I sustained the objection.
Exception 44
Mr. WlLLARDSON: Can she whisper the answer for the record?
COURT: I sustained the objection.
Exception 45

The defendant appealed the denial of his motion to suppress to the Court of Appeals, contending that the Clerk did not perform her function in a neutral and detached way in violation of the protections of the Fourth Amendment of the Constitution of the United States. A majority of the three-judge panel disagreed with the trial court on the issue of the Clerk’s neutrality and held that the trial court erred in denying “defendant an opportunity to develop, even for the purpose of the record on appeal, matters that could show that the person who issued the search warrant did not perform her function in a neutral and detached way.” 66 N.C. App. at 499-500, 311 S.E. 2d at 712. The Court of Appeals reversed and remanded the case to the trial court, stating that the defendant “is entitled to a plenary hearing in an effort to support his contention.” Id. at 500, 311 S.E. 2d at 712. Judge Hedrick dissented from the majority decision on that issue. He reasoned that since the defendant did not include an affidavit or state specific facts supporting his contention that Handy was not a neutral and detached magistrate, the trial court could have summarily denied the motion to suppress. Judge Hedrick also rejected the defendant’s argument on substantive grounds. The State appealed to this Court.

Because we find that the defendant waived his right to raise on appeal the issue of the neutrality of the deputy clerk, we reverse the decision of the Court of Appeals. We remand the case to that Court with instructions to reinstate the judgment entered by the trial court.

A defendant who seeks to suppress evidence upon a ground specified in N.C.G.S. 15A-974 must comply with the procedural requirements of Article 53, Chapter 15A of the General Statutes. [577]*577See State v. Satterfield, 300 N.C. 621, 268 S.E. 2d 510 (1980). Specifically, N.C.G.S. 15A-977(a) states that a motion to suppress evidence made before trial “must be accompanied by an affidavit containing facts supporting the motion. The affidavit may be based upon personal knowledge, or upon information and belief, if the source of the information and the basis for the belief are stated.” (Emphasis added.) A judge

may summarily deny the motion to suppress evidence if:
(1) The motion does not allege a legal basis for the motion; or
(2) The affidavit does not as a matter of law support the ground alleged.

N.C.G.S. 15A-977(c). As noted by Judge Hedrick in his dissent, the Official Commentary which follows the statute states that it is structured “to produce in as many cases as possible a summary granting or denial of the motion to suppress. The defendant must file an affidavit as to the facts with his motion.” N.C.G.S. 15A-977, Official Commentary.

The unverified motion in this case merely states that the defendant is informed and alleges that the deputy clerk was not a “neutral and detached magistrate.” In violation of the requirements of N.C.G.S. 15A-977(a), the defendant filed no affidavit with his motion to suppress.

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State v. Holloway, 319 S.E.2d 261, 311 N.C. 573, 1984 N.C. LEXIS 1749 (N.C. 1984).

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