State v. Locklear

353 S.E.2d 666, 84 N.C. App. 637, 1987 N.C. App. LEXIS 2553
CourtCourt of Appeals of North Carolina
DecidedMarch 17, 1987
DocketNo. 8612SC813
StatusPublished
Cited by2 cases

This text of 353 S.E.2d 666 (State v. Locklear) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Locklear, 353 S.E.2d 666, 84 N.C. App. 637, 1987 N.C. App. LEXIS 2553 (N.C. Ct. App. 1987).

Opinion

PARKER, Judge.

In this appeal, defendant raises six assignments of error: (i) the trial court’s failure to hold an evidentiary hearing as to the truthfulness of the information used to establish probable cause for the search warrant; (ii) the trial court’s failure to hold an in-camera hearing with the State’s confidential informant whose information furnished, in part, probable cause for the search warrant; (iii) the trial court’s denial of a motion for mistrial when the jury discovered there were warrants for defendant’s arrest outstanding at the time of the search; (iv) the trial court’s instruction to the jurors that they could consider for a limited purpose the outstanding warrants for defendant’s arrest; (v) the trial court’s failure to charge the jury on the misdemeanor offenses of knowingly keeping or maintaining a vehicle and a dwelling house for keeping or selling controlled substances; and (vi) the trial court’s instruction to the jury on the felonies of intentionally keeping or maintaining a vehicle and a dwelling house for keeping or selling controlled substances on the grounds that the statute on which the charge was based is unconstitutionally vague. We will address these issues seriatim.

Defendant first argues that G.S. 15A-978 requires an eviden-tiary hearing on his pretrial motion to suppress evidence so that defendant can contest the search warrant used to discover that evidence. Defendant concedes in his brief to this Court that he fails to meet the threshold requirement for a constitutionally mandated evidentiary hearing as set forth in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed. 2d 667 (1978).

General Statute 15A-978(a) permits a defendant to challenge the validity of a search warrant by attacking the good faith of the affiant in providing information used to establish probable cause. State v. Winfrey, 40 N.C. App. 266, 268-269, 252 S.E. 2d 248, 249, disc. rev. denied, 297 N.C. 304, 254 S.E. 2d 922 (1979). The affidavit supporting the warrant in this case stated that a confidential informant told affiant C. E. Harris, a detective with the Hoke County Sheriffs Department, that informant had been in defendant’s residence within the preceding 48 hours, that informant had observed a large quantity of cocaine and marijuana in defendant’s possession, and that informant had seen defendant selling cocaine to at least two persons. In support of his motion to suppress evi[640]*640dence seized pursuant to the warrant, defendant submitted an affidavit in which he stated that he did not sell cocaine to any person within the 48 hours preceding the issuance of the warrant, that no person observed him with cocaine or marijuana during that time, and that, in his belief, no confidential informant existed.

In State v. Walker, 70 N.C. App. 403, 320 S.E. 2d 31 (1984), a defendant similarly challenged the good faith of an affiant to the application for a search warrant. This Court concluded:

A search warrant is presumed to be valid unless irregularity appears on its face .... If defendant had evidence to rebut the presumption of validity of the warrant, it was his obligation to go forward with his evidence .... Defendant’s evidence is simply a denial that any male had been in his home for 48 hours prior to the search .... Such testimony is insufficient to rebut the presumption of validity of the search warrant.

Walker, 70 N.C. App. at 405-406, 320 S.E. 2d at 33 (citations omitted).

A motion to suppress evidence in superior court is governed by G.S. 15A-977, which requires that such a motion be “accompanied by an affidavit containing facts supporting the motion.” G.S. 15A-977(a). The trial judge may summarily deny such a motion if it alleges no legal basis for the motion, or if the affidavit does not, as a matter of law, support the ground alleged. G.S. 15A-977(c). If the motion is not summarily determined, the judge is required to hold a hearing and make findings of fact. G.S. 15A-977(d).

As in Walker, defendant’s mere denial of the existence of the State’s confidential informant fails to rebut the presumed validity of the search warrant. Therefore, the trial judge was correct in summarily denying defendant’s motion to suppress the evidence seized pursuant to the warrant and in denying defendant’s request for an evidentiary hearing as to the good faith of the officer’s affidavit in support of the warrant.

Defendant’s second argument is that the trial court erred in denying defendant’s motion for an in-camera hearing with the [641]*641State’s confidential informant. Defendant acknowledges that this Court has previously held, in State v. Creason, 68 N.C. App. 599, 315 S.E. 2d 540 (1984), aff’d in part, rev’d in part on other grounds, 313 N.C. 122, 326 S.E. 2d 24 (1985), that the trial court is not required to compel the State to disclose the identity of a non-transactional confidential informant. However, defendant argues that without information concerning the State’s informant, he cannot make a showing that the search warrant was without support and therefore void. The defendant urges this Court to adopt a rule requiring a trial judge, upon a defendant’s motion, to conduct an in-camera hearing with the informant when a defendant challenges the good faith of an affiant to a search warrant. We decline to make such a rule. As we stated in State v. Walker, 70 N.C. App. at 407, 320 S.E. 2d at 34, a rule as to whether criminal defendants should be granted in-camera hearings with confidential informants “must be addressed to the sound judgment of the Legislature or the Supreme Court for exercise under their rule making powers.”

Defendant’s third and fourth assignments of error involve testimony elicited on direct examination of Alcohol Law Enforcement Agent Richard Thornell. When asked by the State why he was in Hoke County at the time of the search, Mr. Thornell stated that he was there for the purpose of serving arrest warrants on defendant. At that point, the court sustained defense counsel’s objection and issued a cautionary instruction directing the jurors to disregard this testimony in their deliberations. The court denied defendant’s motion for a mistrial.

The trial court correctly denied defendant’s motion for a mistrial. Any prejudicial effect of the testimony as to outstanding arrest warrants on unrelated matters was cured by the court’s cautionary instruction. See State v. Perry, 276 N.C. 339, 172 S.E. 2d 541 (1970).

At the close of the evidence, the trial judge instructed the jury that any evidence concerning process papers or arrest warrants was received for the limited purpose of explaining the conduct and presence of the law enforcement officers at the scene of the search and arrest and that this evidence should play no part in the jury’s consideration of issues in the case. Defendant contends that this instruction, in light of the earlier cautionary in[642]*642struction on the testimony, was confusing and misleading. We disagree. Although the earlier cautionary instruction and the later limiting jury charge could be construed as contradictory, when viewed in context, the charge is not confusing or misleading, but serves to emphasize that the other arrest warrants should not be considered on the issue of defendant’s guilt in the crimes charged.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Allen
403 S.E.2d 907 (Court of Appeals of North Carolina, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
353 S.E.2d 666, 84 N.C. App. 637, 1987 N.C. App. LEXIS 2553, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-locklear-ncctapp-1987.