State v. Williams

321 S.E.2d 561 (1984)

STATE of North Carolina
v.
Jerry WILLIAMS.

No. 838SC1307.

Court of Appeals of North Carolina.

November 6, 1984.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Dennis P. Myers, Raleigh, for the State.

John E. Duke, Goldsboro, for defendant-appellant.

EAGLES, Judge.

I

Defendant first assigns as error the trial court's denial of his motion to suppress the marijuana seized from his jacket. We find no error.

Defendant asserts that the trial court failed to find that there was probable cause to search defendant's vehicle or that defendant had drugs in his possession or was committing a crime. We note, however, that the trial court concluded, based on the evidence, that defendant voluntarily discarded and abandoned his jacket along with any expectation of privacy with respect to the jacket. The jacket was dropped in a public place and defendant continued to flee the area. Therefore, it was not necessary for the trial court to find that there was probable cause to search defendant's vehicle, that defendant had drugs in his possession, or that defendant was committing a crime. Further, in light of the evidence presented by the State, it was not error for the trial court to conclude as a matter of law that defendant had abandoned any expectation of privacy in his jacket. State v. Teltser, 61 N.C.App. 290, 300 S.E.2d 554 (1983).

II

Defendant next argues that the trial court erred in denying his motion to dismiss based upon "a flagrant violation of defendant's constitutional rights." We disagree.

Defendant cites no authority for this proposition but argues that since the detective "jumped out of his vehicle with his weapon in his hand, and discharged the weapon by pulling the trigger" that defendant's rights under the Fourth Amendment were violated. Defendant characterizes these actions as "gestopo like."

The State's evidence tends to show that the detectives went to the car wash based on reliable information, that the defendant had marijuana in his possession, that the defendant began to flee when approached by the detectives, that the detective gave chase after identifying himself as a law enforcement officer and ordering defendant to halt, and that the detective then stumbled while in pursuit, causing his service revolver to accidentally discharge. We have examined the record carefully and find no violation of any rights conferred upon defendant by the Fourth Amendment to the Constitution of the United States. While the detective may have been clumsy in the handling of his weapon, there was no evidence to indicate that the detective intentionally fired his weapon at the fleeing defendant.

III

Defendant next argues that the trial court erred in denying his motion for the disclosure of the name of the alleged confidential informant. We disagree.

Again, defendant cites no authority in support of his argument. However, we note that unless the disclosure of an informer's identity is relevant and helpful to the defense of the accused or is essential to a fair determination of the case, the defendant is not ordinarily entitled to disclosure of an informer's identity. State v. Cherry, 55 N.C.App. 603, 286 S.E.2d 368, rev. denied, 305 N.C. 589, 292 S.E.2d 572 (1982). Here, defendant has made no showing that the identity of the informant would be essential, relevant, or even helpful to defendant. Defendant shows no prejudice by the trial court's refusal to order disclosure of the identity of the informant.

IV

Defendant next argues that the trial court erred in denying his motion for an in-camera inspection of a police report discovered during examination of a law enforcement witness. We disagree.

While examining a law enforcement witness, defendant discovered that the witness had prepared a report of the incident in question for the sheriff. Defendant alleges that this violated the continuing duty to disclose pursuant to G.S. 15A-907. However, G.S. 15A-904 provides that internal reports of law enforcement officers are not subject to disclosure. See also, State v. Gillespie, 33 N.C.App. 684, 236 S.E.2d 190 (1977).

V

Defendant next argues that the trial court committed error in refusing to dismiss the first count of the indictment. We disagree.

Count one of the indictment charges that defendant unlawfully and willfully possessed marijuana with the intent to sell and deliver. The basis of defendant's argument is that the amount of marijuana, 27.6 grams (there are 28.35 grams in one ounce), recovered from defendant's jacket is insufficient to raise a presumption that the marijuana was possessed for sale and delivery, a felony. Defendant cites G.S. 90-95(d) in support of his argument which provides a maximum punishment of a fine not to exceed more than $100.00 for the possession of less than one ounce of marijuana. Defendant's argument would be persuasive except for the evidence of how the 27.6 grams of marijuana was packaged. The evidence at trial showed that the marijuana in question was packaged in seventeen separate, small brown envelopes known in street terminology as "nickle or dime bags." "Nickle or dime bags" are the units in which small amounts of marijuana are generally sold for five or ten dollars. The method of packaging a controlled substance, as well as the amount of the substance, may constitute evidence from which a jury can infer an intent to distribute. State v. Baxter, 285 N.C. 735, 208 S.E.2d 696 (1974); see also State v. Casey, 59 N.C.App. 99, 296 S.E.2d 473 (1982). While it is true that there was no direct evidence that defendant possessed the 27.6 grams of marijuana for sale and delivery, the circumstances of the packaging could be considered by the jury in finding defendant guilty of the felony offense. See, State v. Childers, 41 N.C.App. 729, 255 S.E.2d 654, cert. denied, 298 N.C. 302, 259 S.E.2d 916 (1979).

VI

Defendant next argues that the trial court erred in refusing to submit a requested instruction as to the mere fact of fleeing from the detective.

Defendant cites no authority for the proposition advanced herein and fails to show how he was prejudiced by the refusal of the trial court to instruct the jury as defendant requested. We find nothing in the record that would lead us to conclude that defendant was entitled to the requested instruction. Any error that might have been committed in refusing defendant's proffered instruction is harmless. The result here might be different if the trial court had instructed the jury that an accused's flight from the scene of a crime is competent evidence on a question of guilt. State v. Jones, 292 N.C. 513, 234 S.E.2d 555 (1977). However, such an instruction was not requested by the State nor was it given by the trial court.

For the reasons herein mentioned, we find no error in the trial of this case. Defendant's further assignments of error are without merit.

No error.

WEBB and BRASWELL, JJ., concur.