Opinion
No. COA09-1001
Filed 1 June 2010 This case not for publication
Appeal by defendant from judgments entered 20 February 2009 by Judge Stuart Albright in Guilford County Superior Court. Heard in the Court of Appeals 24 February 2010.
Attorney General Roy Cooper, by Assistant Attorney General Daniel P. O'Brien, for the State. Geoffrey W. Hosford for defendant-appellant.
Guilford County Nos. 08 CRS 77227, 08 CRS 77769, 08 CRS 77772-73, 08 CRS 77776-77, 08 CRS 77780-81, 08 CRS 77784, 08 CRS 78307-08, 08 CRS 78312-13, 08 CRS 78331, 08 CRS 78335, 08 CRS 78339, 08 CRS 78343, 08 CRS 78347, 08 CRS 78351, 08 CRS 78355, 08 CRS 78358-59.
Defendant Christopher Brian Collins appeals from his convictions for 10 counts of robbery with a dangerous weapon, 10 counts of conspiracy to commit robbery with a dangerous weapon, and one count of attempted discharge of a firearm into occupied property. Defendant primarily argues on appeal that his statements to the police officer that interviewed him after his arrest were not voluntary and thus the trial court should have granted his motion to suppress his statements. We conclude, however, that defendant failed to preserve this issue for appellate review by not objecting to the admission of his statements at trial through the testimony of the interviewing officer. Consequently, we affirm.
Facts
The State's evidence at the suppression hearing tended to establish the following facts: In early 2008, Detective Jack Steinberg, with the Greensboro Police Department's robbery squad, began investigating a series of nine bank robberies in Greensboro occurring within a span of approximately 18 months: (1) Patrick Henry National Bank, on 19 July 2006; (2) Piedmont Aviation Credit Union, on 18 August 2006; (3) Mid-Carolina Bank, on 27 September 2006; (4) First Citizens Bank, on 10 November 2006; (5) Sun Trust Bank, on 5 January 2007; (6) Sun Trust Bank, on 15 March 2007; (7) Piedmont Aviation Credit Union, on 10 August 2007; (8) Sun Trust Bank, on 25 October 2007; and (9) Mid-Carolina Bank, on 16 January 2008.
Police believed that the nine bank robberies were related based on similar suspect descriptions and surveillance photographs, similar weapons used, and a similar "MO" in the commission of each of the armed robberies. In each of the nine bank robberies, one male suspect, armed and with his face covered, would enter the bank and ask for the manager. The suspect would then force the manager to go to the bank vault, where the suspect would make bank personnel load a duffel bag with cash. While this was occurring, one or sometimes two other armed suspects would go to the tellers and collect the money from their drawers. The suspects would then exit the bank, get into a waiting car and drive away. Because the suspects were not using stolen cars and then dumping them after the robbery and they were able to get their getaway car off the road quickly, the police believed that the suspects were based locally.
After the second robbery of the Piedmont Aviation Credit Union (the seventh robbery), a witness told the police that the suspects drove away in a black Infiniti sedan. A detective located a car matching the description parked at Morehead Apartments in Greensboro, which was defendant's listed residence. The police were able to trace the vehicle to Sabrina Phillips, defendant's girlfriend. The police kept surveillance on the car and, after a witness to the second Mid-Carolina Bank robbery (the ninth robbery) reported seeing a black Infiniti, the police checked defendant's apartment. The car was not there. When the police checked defendant's apartment the next morning, however, the car was there, parked next to a silver Volvo. The Volvo was registered to defendant.
Based on information obtained during the investigation, the police obtained warrants to arrest both Phillips and defendant. They also obtained warrants to search their apartments and several vehicles, including the black Infiniti and silver Volvo, that the police believed were involved in the robberies. The warrants were executed simultaneously on 24 January 2008 and both Phillips and defendant were arrested. Inside Phillips' black Infiniti, the police found numerous applications for bank cards and a license plate with tape on the back. The license plate number matched the number given to police after the 5 January 2007 Sun Trust robbery (the fifth robbery). Inside Phillips' apartment, the police discovered a bar coded bag from Sun Trust Bank, containing money bands.
When the police searched defendant's apartment, they seized two computers, a Blackberry, a shirt that police believed was worn by defendant during the robberies, a bill of sale of a Ford SUV, and miscellaneous papers indicating defendant's debts and purchases. The search warrant for defendant's apartment also listed two handguns that police believed were used during the bank robberies. The Police, however, did not find the guns during their search because they were hidden inside a speaker cabinet.
Defendant was taken to the police station where he was interviewed by Detective Steinberg. Detective Steinberg informed defendant of his rights and defendant signed a form waiving his rights and agreed to talk to Detective Steinberg. During the interview, which lasted roughly 14 hours, defendant told Detective Steinberg that he had been involved in the planning and commission of each of the nine bank robberies. Defendant provided details regarding the robberies, including, among other things, what he was wearing during each robbery, what gun he used during each robbery, how much money was taken from each bank, what getaway vehicle was used in each robbery, and who else was involved in each robbery. In addition to Phillips, defendant implicated his sister's ex-boyfriend, Emmanuel Danzy, his half-brothers, Eric and Anthony Payne, and an acquaintance, Daniella Smith. At the end of the interview, defendant called his ex-girlfriend, Vernell Busanet, and told her to bring the two handguns used in the robberies to Detective Steinberg. Detective Steinberg retrieved the guns the next day.
After investigating the people involved in the bank robberies, Detective Steinberg believed that defendant had been involved in the separate armed robbery of a Celebration Station restaurant. Detective Steinberg interviewed defendant, who was already in jail on the bank robbery charges, about the Celebration Station robbery. After defendant was informed of his rights and signed a waiver form, defendant told Detective Steinberg that he had been involved in the planning and commission of that robbery as well. Defendant also told Detective Steinberg that during the robbery his gun accidentally discharged, hitting a nearby occupied car.
Based on the nine bank robberies and the robbery of the Celebration Station, defendant was charged with 10 counts of conspiracy to commit armed robbery, 10 counts of armed robbery, possession of a firearm by a felon, and discharging a weapon into occupied property. Prior to trial, defendant filed motions to suppress his statements to Detective Steinberg as well as the evidence seized pursuant to the search warrant for his apartment. The trial court denied both motions and later entered an order on 20 February 2009 containing its findings of fact and conclusions of law in support of its denial of the motions. The jury convicted defendant of all 10 counts of conspiracy to commit armed robbery, all 10 counts of armed robbery, one count of possession of a firearm by a felon, and one count of attempted discharge of a firearm into occupied property. The trial court determined that defendant had a prior record level of III and sentenced defendant to 10 consecutive presumptive-range terms of 103 to 133 months imprisonment for the armed robbery convictions, followed by four consecutive presumptive-range terms of 34 to 50 months imprisonment for four of the conspiracy convictions. The court then consolidated into one judgment the remaining six conspiracy charges with the firearm possession and discharging a firearm convictions and sentenced defendant to a consecutive presumptive-range term of 34 to 50 months imprisonment. Defendant gave notice of appeal in open court.
Confession
Defendant's first argument on appeal is that the trial court erred in denying his motion to suppress his statements to Detective Steinberg detailing his involvement in the nine bank robberies and the Celebration Station robbery. Defendant, however, failed to preserve the admission of this evidence for appellate review.
A pretrial motion to suppress is a type of motion in limine. State v. Golphin, 352 N.C. 364, 405, 533 S.E.2d 168, 198 (2000), cert. denied, 532 U.S. 931, 149 L. Ed. 2d 305 (2001). A pre-trial motion to suppress is insufficient to preserve for appellate review the issue of the admissibility of evidence if the defendant subsequently fails to object to that evidence at the time it is offered at trial. State v. Hayes, 350 N.C. 79, 80, 511 S.E.2d 302, 303 (1999) (per curiam). In order to preserve the issue for review, the defendant must "object when the evidence that was the subject of the motion in limine [i]s offered at trial. . . ." Id.
Here, the trial court denied defendant's pre-trial motion to suppress his statements to Detective Steinberg. At trial, on 17 February 2009, Detective Steinberg testified that he interviewed defendant at the police station; that prior to questioning defendant, he informed defendant of his rights and defendant signed a waiver form and agreed to talk to Detective Steinberg. During the questioning, Detective Steinberg showed defendant a surveillance photograph from the 5 January 2007 Sun Trust Bank robbery and defendant responded: "That's me, man[.]" Detective Steinberg then asked defendant about the other people involved in that robbery and defendant told him he did not want to talk about anyone else because, he said to Detective Steinberg, "if I give you one thing, I'm going to give you everything." Detective Steinberg then told defendant that he had "just g[iven] [him] that one thing" and that it was "time to go ahead and . . . explain everything."
Detective Steinberg then testified that, at that point in the questioning, defendant told him that he was involved in the planning and commission of "all nine of the bank robberies" and named the other individuals that participated in the robberies. In addition, when Detective Steinberg told defendant that he would like to have the weapons used during the robberies, defendant told him that he could arrange for him to pick them up and did, in fact, call his ex-girlfriend to have her deliver the guns to Detective Steinberg. Detective Steinberg also testified that after defendant was in jail on the robbery charges, he questioned defendant about a Celebration Station robbery and that defendant, after waiving his rights, admitted that he had been involved in planning and committing that robbery as well.
Defendant did not object to any of this testimony concerning defendant's statements at the time it was offered at trial. Only after Detective Steinberg finished testifying on 17 February 2009 and just before the court adjourned court for the day did defendant object to the admission of "any statement made by Mr. Collins." By failing to object to Detective Steinberg's extensive testimony — spanning over 50 pages in the transcript — detailing defendant's confession at the time the evidence was offered, defendant waived appellate review of his challenge to its admissibility. See State v. Grooms, 353 N.C. 50, 66, 540 S.E.2d 713, 723 (2000) ("[D]efendant's pretrial motion to suppress and motion in limine are not sufficient to preserve for appeal the question of the admissibility of the State's DNA evidence; and defendant waived appellate review of this issue by failing to object during trial to the admission of the DNA evidence."), cert. denied, 534 U.S. 838, 151 L. Ed. 2d 54 (2001); Golphin, 352 N.C. at 405, 533 S.E.2d at 198 ("As a pretrial motion to suppress is a type of motion in limine, [defendant]'s pretrial motion to suppress is not sufficient to preserve for appeal the question of the admissibility of his statement because he did not object at the time the statement was offered into evidence."); Hayes, 350 N.C. at 80, 511 S.E.2d at 303 ("[D]efendant failed to object when the evidence that was the subject of the motion in limine was offered at trial, and therefore, he failed to preserve for appeal the question of the admissibility of [the] evidence.").
Detective Steinberg testified at trial the next day (18 February 2009) regarding other details of defendant's confession to the robberies. Defendant's objection the previous day, however, did not salvage his contention that evidence of his statements was inadmissible. See State v. Williams, 355 N.C. 501, 547, 565 S.E.2d 609, 637 (2002) ("Defendant objected to testimony by [detective] that was previously admitted by [eye witness] without objection. Therefore, defendant has lost the benefit of that objection."), cert. denied, 537 U.S. 1125, 154 L. Ed. 2d 808 (2003); State v. Alford, 339 N.C. 562, 570, 453 S.E.2d 512, 516 (1995) ("Where evidence is admitted over objection and the same evidence has been previously admitted or is later admitted without objection, the benefit of the objection is lost."). Because Detective Steinberg had already testified without objection on 17 February 2009 that defendant confessed to the robberies, defendant lost the benefit of his objection to similar testimony by Detective Steinberg on 18 February 2009. As the trial court noted in ruling on defendant's objection: "Overruled at this point."
Defendant, moreover, did not assign plain error to the admission of this evidence under N.C. R. App. P. 10(a)(4). Defendant's argument is, therefore, overruled. See State v. Bell, 359 N.C. 1, 27, 603 S.E.2d 93, 111 (2004) (declining to consider argument regarding admissibility of evidence where defendant failed to object to evidence at trial and failed to assign plain error on appeal), cert. denied, 544 U.S. 1052, 161 L. Ed. 2d 1094 (2005).
Search Warrant
Defendant's only other argument on appeal is that, in his application for a warrant to search defendant's apartment, Detective Steinberg asserted as "an established fact" that defendant is "depict[ed]" in surveillance photographs from five of the bank robberies. Defendant maintains that Detective Steinberg merely had a personal "opinion" as to whether defendant was depicted in the surveillance photos, based on Detective Steinberg's comparison of the surveillance photos with photos taken of defendant at the DMV and the Guilford County Detention Center. Because Detective Steinberg did not disclose in the application for the warrant that his assertion was based on his personal opinion, defendant claims that Detective Steinberg knowingly made a false statement in support of the warrant. Thus, defendant argues, Detective Steinberg's "misrepresentation constituted a material false statement and the search warrant application did not support a finding of probable cause." See State v. Fernandez, 346 N.C. 1, 13, 484 S.E.2d 350, 358 (1997) (holding that under Franks v. Delaware, 438 U.S. 154, 155-56, 57 L. Ed. 2d 667, 672 (1978), "where a search warrant is issued on the basis of an affidavit containing false facts which are necessary to a finding of probable cause, the warrant is rendered void, and evidence obtained thereby is inadmissible if the defendant proves, by a preponderance of the evidence, that the facts were asserted either with knowledge of their falsity or with a reckless disregard for their truth").
We need not address defendant's Franks argument, however, because none of the items listed in the challenged search warrant and seized pursuant to that search were ever introduced at trial. Detective Steinberg obtained a warrant on 24 January 2008 to search for:
a silver or gray handgun, a dark colored semi-automatic handgun, firearm ammunition, U.S. Currency, various clothing items worn in the robberies, [including,] jackets, sweatshirts, shirts, pants, shoes, hats, visors, toboggans, masks, bandanas, clear or prescription glasses, sunglasses, cellular phones, Bluetooth cellular phone accessories, any items or articles tending to the financial transaction of any banks or financial institutions, and items or articles of personal property tending to show ownership, dominion or control of the premises[.]
The warrant permitted the police to search both defendant's apartment and four automobiles that the police believed were used in the robberies or owned by the perpetrators. The inventory list of items seized pursuant to the 24 January 2008 search warrant shows that the police confiscated two computers; "[o]ne yellow button down shirt"; "misc[ellaneous] papers indicating debt"; a "Bill of Sale for Ford SUV"; a "Blackberry"; and "misc[ellaneous] papers indicating purchases." The exhibit list from trial indicates that none of these items were introduced at trial. Thus, despite the trial court's denying defendant's motion to suppress, defendant cannot point to the admission of any evidence that should have been excluded pursuant to the exclusionary rule for constitutional violations. See State v. McWhorter, 34 N.C. App. 462, 465, 238 S.E.2d 639, 640-41 ("By his fourth assignment of error defendant contends that the court erred `by failing to suppress State's Exhibit #1 (a .38 caliber pistol). . . .' This assignment of error has no merit simply because State's Exhibit #1 was not admitted into evidence."), disc. review denied, 294 N.C. 443, 241 S.E.2d 844 (1978); State v. Brown, 13 N.C. App. 315, 318, 185 S.E.2d 483, 485 (1971) (declining to address whether shotgun found during warrantless and non-consensual search should have been excluded as "[a] careful look at the record reveals that the shotgun was never admitted into evidence"), cert. denied, 280 N.C. 723, 186 S.E.2d 925 (1972). Nor does defendant argue that the seizure of any of the evidence found pursuant to the allegedly invalid 24 January 2008 search warrant led to the discovery of other evidence that was ultimately admitted at trial. Defendant's argument is thus overruled.
The record indicates that two of the handguns used in the robberies, which were sought pursuant to the 24 January 2008 search warrant, were admitted at trial. Although the guns were in defendant's apartment at the time the search warrant was executed, hidden in a stereo cabinet, the police did not find them. The guns were eventually delivered to Detective Steinberg by defendant's ex-girlfriend.
Affirmed.
Judges CALABRIA and HUNTER, Robert N., Jr. concur.
Report per Rule 30(e).