State v. Best

• Court: Court of Appeals of North Carolina
• Decided: September 5, 2014
• Docket: 14-198
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 -2- 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 -3- 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 -4- 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 -5- 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. -6- 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 -7- 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 -8- 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 -9- 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 -10- 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. -11- 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 -12- 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. -13- 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 -14- ‘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 -15- 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).