State v. Best ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-198
NORTH CAROLINA COURT OF APPEALS
Filed: 5 September 2014
STATE OF NORTH CAROLINA
v. Wayne County
Nos. 11 CRS 55932; 11 CRS
55933; 11 CRS 54080; 12 CRS
4460
COLECO TAYLOE BEST
Appeal by defendant from orders entered 24 July 2013 by
Judge William R. Pittman in Wayne County Superior Court. Heard
in the Court of Appeals 14 August 2014.
Attorney General Roy Cooper, by Special Deputy Attorney
General Adren L. Harris, for the State.
Kirby H. Smith, III, for defendant-appellant.
HUNTER, JR., Robert N., Judge.
Coleco Tayloe Best (“Defendant”) appeals from four separate
orders entered by the trial court on 24 July 2013: (1) an order
denying Defendant’s request that the State disclose the identity
of its confidential informant; (2) an order denying Defendant’s
request to call Irvin Smith to testify; (3) an order denying
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reconsideration of Defendant’s renewed motion to quash the
search warrant and exclude evidence arising therefrom; and (4)
an order denying Defendant’s motion to dismiss the charge of
possession of a stolen firearm for insufficiency of the
evidence. For the following reasons, we find no error.
I. Facts & Procedural History
Defendant was indicted on 5 November 2012 on three counts
of possession with intent to sell and deliver a controlled
substance, one count of trafficking in heroin by possession, one
count of keeping and maintaining a dwelling for the use of
controlled substances, one count of possession of a stolen
firearm, one count of misdemeanor possession of drug
paraphernalia, and one count of possession of a firearm by a
convicted felon. Prior to trial, both pro se and through
counsel, Defendant filed numerous motions including a motion to
compel the State to disclose the identity of a confidential
informant, a motion to suppress the evidence obtained from
allegedly unlawful search, and a motion to suppress statements
made by Defendant. All of Defendant’s motions were denied by
written order entered on 24 July 2013. From 23 July to 24 July
2013, Defendant was tried in Wayne County Superior Court. The
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record and evidence presented at trial tends to show the
following facts.
On 11 August 2011, Wayne County Sheriff’s Deputy Travis
Sparks (“Deputy Sparks”) received a call from his supervisor,
Sergeant Miller, advising Deputy Sparks that Sergeant Miller had
been contacted by a confidential informant. The confidential
informant relayed information that Defendant was in possession
of heroin, cocaine, marijuana, and a firearm. The confidential
informant further described that the drugs were stored in a
black box in Defendant’s residence. Sergeant Miller relayed to
Deputy Sparks that the confidential informant was reliable. In
fact, Sergeant Miller had received information from this
particular confidential informant for approximately two years
prior to Defendant’s arrest, which had led to other arrests and
the seizure of “large amounts” of drugs.
Together, Deputy Sparks and Sergeant Miller contacted the
confidential informant, and Deputy Sparks subsequently applied
for and received a search warrant to search Defendant’s
residence located at 854 Highway 111 in Goldsboro. The search
warrant was based not only on the information received by the
confidential informant in this case, but also on prior
surveillance of Defendant’s residence unrelated to the
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confidential informant’s tip. Defendant’s residence had
previously been under surveillance by the Wayne County Sheriff’s
Office because of numerous citizen complaints of “unusual
amounts of traffic” at Defendant’s residence.
On 12 August 2011, Deputy Sparks and several other deputies
executed the search warrant of Defendant’s residence. The
confidential informant was not present during the search of the
residence. During the search, the deputies found a box in the
bedroom of the residence, which was filled with several bags of
heroin, a gun, cocaine, and marijuana. Defendant was arrested
and brought to the Wayne County Sheriff’s Office Annex, where he
was read his Miranda rights and declined to speak with the
deputies.
Shortly after invoking his rights under Miranda, Defendant
indicated that he wanted to speak to Corporal Dawson—one of the
deputies who transported Defendant to the Annex. Upon Corporal
Dawson’s request, Defendant wrote a letter indicating that he
wanted to speak with the deputies and was again read his Miranda
rights. Defendant made the following incriminating statements
to Corporal Dawson.
Defendant admitted to Corporal Dawson that the heroin was
his, and that it was supplied by a man named “Jeff,” and that
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Defendant would routinely meet Jeff at various locations to make
drug transactions. Defendant admitted that he had been
purchasing heroin for several months and that he made $100 for
every ten small bags he sold. Defendant additionally identified
his cocaine and marijuana source, and admitted to purchasing
approximately ten pounds of marijuana and an unknown amount of
cocaine in the preceding two years. At no time during the
interview with Corporal Dawson did Defendant indicate that the
drugs found during the search of the residence did not belong to
Defendant.
At the close of the State’s evidence, Defendant requested
to call as a witness Irvin Smith (“Mr. Smith”), an employee of
Defendant, whom Defendant believed to be the State’s
confidential informant. The State objected to Mr. Smith
testifying, arguing that Mr. Smith’s testimony would be an
attempt to “circumvent the Court’s ruling” on the motion to
disclose the identity of the confidential informant. The trial
court agreed with the State, and allowed Mr. Smith’s testimony
only to make an offer of proof. The trial court refused to
allow Defendant to question Mr. Smith as to whether he was the
State’s confidential informant in this case.
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On 24 July 2013, the jury found Defendant guilty of
trafficking in heroin by possession; possession of cocaine;
intentionally maintaining a dwelling for the keeping or selling
of heroin, cocaine, and marijuana; possession of a stolen
firearm; possession of drug paraphernalia; and possession of a
firearm by a felon. Defendant was sentenced to serve 70 to 84
months in the North Carolina Division of Adult Correction for
the conviction of trafficking heroin. For the conviction of
possession of a firearm by a felon, Defendant was ordered to
serve 12 to 15 months, to run consecutively with the trafficking
sentence. The trial court arrested judgment on the conviction
of possession of a stolen firearm. Defendant timely appealed by
giving oral notice of appeal in open court.
II. Jurisdiction & Standard of Review
Defendant’s appeal from the superior court’s final judgment
lies of right to this Court pursuant to N.C. Gen. Stat. §§ 7A-
27(b), 15A-1444(a) (2013).
III. Analysis
Defendant’s appeal presents four questions for this Court’s
review: (1) whether the trial court erred in denying Defendant’s
motion to compel disclosure of the identity of the State’s
confidential informant; (2) whether the trial court violated
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Defendant’s constitutional right to present a defense to the
charges by prohibiting Mr. Smith from testifying before the
jury; (3) whether the trial court properly denied Defendant’s
motion to quash the search warrant and suppress the evidence
found therefrom; and (4) whether the trial court properly denied
Defendant’s motion to dismiss the possession of a stolen firearm
charge at the close of the State’s evidence. We address each in
turn.
A. Identity of the Confidential Informant
Defendant first argues that the trial court erred in
denying Defendant’s motion to compel disclosure of the identity
of the State’s confidential informant. We disagree.
“[T]he state is privileged to withhold from a defendant the
identity of a confidential informant, with certain exceptions.”
State v. Newkirk, 73 N.C. App. 83, 85, 325 S.E.2d 518, 520
(1985). “The trial court must balance the government’s need to
protect an informant’s identity (to promote disclosure of
crimes) with the defendant’s right to present his case.” State
v. Jackson, 103 N.C. App. 239, 241, 405 S.E.2d 354, 356 (1991),
aff’d per curiam, 331 N.C. 113, 413 S.E.2d 798 (1992). However,
“before the court should even begin the balancing of competing
interests . . . a defendant who requests that the identity of a
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confidential informant be revealed must make a sufficient
showing that the particular circumstances of his case mandate
such disclosure.” State v. Watson, 303 N.C. 533, 537, 279
S.E.2d 580, 582 (1981).
In determining whether to disclose the identity of an
informant, the court should consider: (1) whether “the informer
was an actual participant in the crime compared to a mere
informant,” and (2) whether “the state’s evidence and
defendant’s evidence contradict on material facts that the
informant could clarify.” Newkirk, 73 N.C. App. at 86, 325
S.E.2d at 520. The factors that weigh against disclosure are
“whether the Defendant admits culpability, offers no defense on
the merits, or the evidence independent of the informer’s
testimony establishes the accused’s guilt.” Id. at 86, 325
S.E.2d at 520-21.
In this case, Defendant did not present sufficient evidence
to show that the circumstances of his case warrant disclosure of
the identity of the confidential informant. During the pretrial
hearing on this issue, Defendant stated that one of his
employees—whom Defendant believed to be the State’s confidential
informant—was actually the owner of the drugs found in
Defendant’s residence. Therefore, Defendant reasoned, the
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State’s confidential informant was an actual participant in the
crime and should be disclosed. Such testimony, without further
evidence, is insufficient to warrant disclosure in this case.
Defendant’s testimony at the pretrial hearing was
insufficient to support his contention that the drugs found in
his residence belonged to someone else. In fact, all of the
evidence presented at the hearing aside from Defendant’s
testimony tended to show that Defendant repeatedly and
specifically admitted that the drugs were his. Defendant
particularly described to the deputies how and from whom he
acquired the drugs, the quantities of the drugs he purchased,
and how much money he made when he sold the drugs.
Furthermore, evidence independent of the informer’s
testimony establishes Defendant’s guilt. Specifically, Deputy
Sparks testified that Defendant’s residence had previously been
under surveillance because of suspicious traffic patterns.
Deputy Sparks observed on “several occasions vehicles come to
[Defendant’s] residence and stay for a brief amount of time, a
minute to two minutes and leave.”
Here, Defendant readily admitted culpability for the crimes
charged, and substantial evidence independent of the informer’s
testimony established Defendant’s guilt. As such, the trial
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court did not err in finding that Defendant failed to make a
sufficient showing of the need to justify disclosure of the
informant’s identity.
B. Proffered Testimony of Mr. Smith
Defendant next argues that his constitutional right to
confront his accusers and present a defense to the charges was
violated when the trial court suppressed the proffered testimony
of Mr. Smith. We disagree.
During the trial, Defendant attempted to elicit testimony
from Mr. Smith that: (1) he was the State’s confidential
informant, and (2) he did not see any drugs in Defendant’s
residence. Based on the trial court’s previous order that the
confidential informant’s identity not be disclosed, the trial
court disallowed all lines of questioning dealing with the
identity of the informant.
Defendant argues that his constitutional right to confront
the witnesses against him was violated because the confidential
informant is a relevant witness. However, Defendant had the
opportunity to cross-examine each of the State’s witnesses.
Furthermore, Defendant was allowed to present testimony of Mr.
Smith to the trial court through an offer of proof, though the
scope of testimony was limited.
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Once the trial court properly determined that the identity
of the State’s confidential informant should not be disclosed,
Defendant had no right to elicit further testimony on that
issue. To allow Defendant to confront a witness with the sole
purpose of inquiring if he is a confidential informant would
circumvent not only the order of the trial court in this case,
but also the holdings of this Court, which provide for the
nondisclosure of confidential informants. See, e.g., State v.
Dark, 204 N.C. App. 591, 694 S.E.2d 502 (2010); State v.
Newkirk, 73 N.C. App. 83, 325 S.E.2d 518.
Therefore, the trial court did not err in disallowing
questioning of Mr. Smith as to his involvement in this case as a
confidential informant.
C. Motion to Quash and Motion to Suppress
Defendant next argues that the trial court erred in denying
Defendant’s motion to quash the search warrant and suppress the
evidence found therefrom. We hold that both the motion to quash
the search warrant and the motion to suppress the evidence found
in Defendant’s residence were properly denied.
“The standard for a court reviewing the issuance of a
search warrant is whether there is substantial evidence in the
record supporting the magistrate’s decision to issue the
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warrant.” State v. Ledbetter, 120 N.C. App. 117, 121, 461
S.E.2d 341, 343 (1995) (citations and quotation marks omitted).
Furthermore, “great deference should be paid a magistrate’s
determination of probable cause[.]” State v. Arrington, 311
N.C. 633, 638, 319 S.E.2d 254, 258 (1984).
Here, the search warrant stated ample evidence upon which
the magistrate could find probable cause to issue the search
warrant. First, the search warrant described the circumstances
of the surveillance of Defendant’s residence and Deputy Sparks’
observations of the suspicious traffic patterns coming into and
out of Defendant’s home. Second, the search warrant stated the
information relayed to Deputy Sparks by the confidential
informant, and detailed the confidential informant’s extensive
history of providing reliable information to the Wayne County
Sheriff’s Office. Specifically, the search warrant states
“within the last forty-eight hours . . . the CI advised
[Defendant] had cocaine/heroin in a dark colored box inside the
residence at 854 Old Hwy 111. The CI also stated that he/she
observed a small handgun inside the residence as well.” Thus,
Deputy Sparks provided substantial evidence that supports the
magistrate’s decision to issue the search warrant in this case.
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Because it was discovered by lawful means, evidence of the
box containing marijuana, heroin, cocaine, and the firearm
retrieved from Defendant’s residence was properly admitted at
trial. The trial court did not err in denying Defendant’s
motion to suppress the evidence discovered from the search.
D. Motion to Dismiss
Finally, Defendant argues that the trial court erred in
denying Defendant’s motion to dismiss the possession of a stolen
firearm charge at the close of the State’s evidence. Defendant
argues that Deputy Sparks’ testimony at trial was not competent
evidence to establish that the hand gun was stolen. Defendant
takes issue with the fact that Deputy Sparks did not personally
“run a trace” on the firearm, and that no National Crime
Information Center (“N.C.I.C.”) report was put into evidence
indicating that the gun was stolen. Defendant asserts that
Deputy Sparks’ testimony that the firearm was reported stolen
constitutes hearsay. We disagree, and find that Defendant’s
motion to dismiss was properly denied by the trial court.
“In reviewing the denial of a motion to dismiss, this Court
must examine the evidence adduced at trial in the light most
favorable to the State to determine if there is substantial
evidence of every essential element of the crime. Evidence is
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‘substantial’ if a reasonable person would consider it
sufficient to support the conclusion that the essential element
exists.” State v. Williams, 151 N.C. App. 535, 539, 566 S.E.2d
155, 159 (2002). “If a reasonable inference of defendant’s
guilt can be drawn from a combination of the circumstances,
defendant’s motion is properly denied.” State v. Thomas, 296
N.C. 236, 244, 250 S.E.2d 204, 208 (1978).
In this case, Deputy Sparks testified at trial that he
contacted the dispatch center to conduct a search on the firearm
seized from Defendant’s residence, and relayed the firearm’s
serial number to determine if it had been reported stolen.
Dispatch ran the serial number through N.C.I.C. and confirmed
that the firearm had been reported stolen by an individual
living in La Grange, North Carolina. Deputy Sparks described
the procedure by which law enforcement officers regularly use
the N.C.I.C. database to determine whether property was reported
stolen.
We find the facts of this case to be indistinguishable from
those in State v. Sneed, 210 N.C. App. 622, 709 S.E.2d 455(2011). In Sneed, the officer was notified shortly after he
arrived on the scene that the serial number of the gun recovered
from the defendant’s person had been run through N.C.I.C. and
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was reported stolen. Id. at 628, 709 S.E.2d at 460. The
officer verified that the gun was stolen by later running the
serial number himself. Id. The printout of the N.C.I.C. report
was not introduced into evidence at trial. This Court held in
Sneed that “the NCIC database is a ‘database compilation, in any
form’ falling within Rule 803(6),” the hearsay exception for
records of regularly conducted business activity. Id. at 629,
709 S.E.2d at 460.
We therefore find that a reasonable inference can be drawn
that the firearm recovered from Defendant’s residence was
stolen, and the trial court did not err in denying Defendant’s
motion to dismiss the charge of possession of a stolen firearm.
IV. Conclusion
For the reasons stated above, we find no error.
NO ERROR.
Judges STEELMAN and GEER concur.
Report per Rule 30(e).