Opinion
NO. COA10-1615
08-16-2011
STATE OF NORTH CAROLINA v. LUIS REYES TORRES Defendant
Attorney General Roy Cooper, by Special Deputy Attorney General Thomas M. Woodward, for the State. Thomas R. Sallenger for Defendant-Appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
Wake County No. 09 CRS 203207
Appeal by Defendant from judgment entered 13 July 2010 by Judge Paul G. Gessner in Wake County Superior Court. Heard in the Court of Appeals 25 May 2011.
Attorney General Roy Cooper, by Special Deputy Attorney General Thomas M. Woodward, for the State.
Thomas R. Sallenger for Defendant-Appellant.
HUNTER, JR., Robert N., Judge.
Luis Reyes Torres ("Defendant") appeals from a jury verdict finding him guilty of trafficking cocaine by sale, trafficking cocaine by delivery, and trafficking cocaine by possession. Defendant raises three issues on appeal. First, Defendant contends the trial court erred in not requiring the State to disclose the identity of a confidential informant. Second, Defendant argues the trial court erred in denying Defendant's
Motion to Suppress the out-of-court, pre-trial identification of Defendant by way of a driver's license photograph. Lastly, Defendant contends the trial court erred by denying his Motion to Dismiss all of the charges on the basis of insufficient evidence. We find no error.
I. Factual & Procedural History
On 10 November 2009, Defendant was indicted on one count each of trafficking cocaine by sale, delivery and possession. Defendant pleaded not guilty on all counts. The State's evidence at trial tended to show the following:
Detective Adolphus McGhee ("Det. McGhee"), of the Wake County Sheriff's Department ("the Department"), had been assigned to the drug and vice unit for the past seven years. Det. McGhee testified that the Department received information from a confidential informant that "Manuel," a Hispanic male, was selling cocaine at Thomas Concrete in Wake County.
On 9 January 2009, Det. McGhee, along with other Department officers, went to Thomas Concrete to coordinate a cocaine "buy." Det. McGhee purchased cocaine from Manuel. Detective Mike Norton ("Det. Norton") coordinated the buy. Officers planned for Det. McGhee to buy the cocaine and then wait to make an arrest. This strategy, known as a "buy/walk," is used by the Department as part of a larger investigation.
Det. McGhee testified that when he arrived at Thomas Concrete he saw a Hispanic male who fit the description of Manuel. At trial Det. McGhee identified Defendant as the man known as "Manuel" who sold him cocaine on 9 January 2009.
After Det. McGhee saw Manuel, they looked at each other; the two nodded; Det. McGhee went over to Manuel and followed him into an office inside the building. Manuel pulled a white plastic glove, which Det. McGhee believed to contain an ounce of cocaine, from the right pocket of his pants. Manuel then pulled from his other pocket what Det. McGhee believed to be a second ounce of cocaine.
Manuel and Det. McGhee agreed that one ounce of cocaine would cost $1,300. However, McGhee tried to negotiate with Manuel to get two ounces for the price of one. A two-for-one deal could not be negotiated between Manuel and Det. McGhee, so Det. McGhee only purchased the substance he was first shown.
Det. McGhee told Manuel that he wanted to weigh the substance to ensure he was purchasing 28 grams of cocaine. Manuel followed Det. McGhee to his undercover vehicle where Det. McGhee had a scale. Det. McGhee weighed the substance, which weighed 29.2 grams.
During the transaction, the two discussed Det. McGhee purchasing a kilo of cocaine from Manuel for $34,000. Det. McGhee attempted to negotiate a lower price, and Manuel called someone on the phone to find out if he could work out a better deal. After the phone call, Manuel then told Det. McGhee that he could reduce the price to $33,000. Det. McGhee and Manuel then agreed for Det. McGhee to return to Thomas Concrete the next day to purchase the kilo. Det. McGhee testified the entire transaction took between five and ten minutes and Manuel's face was never obstructed from his view during that time.
Det. McGhee met Manuel at Thomas Concrete the following day, 10 January 2009, but for reasons decided by Det. McGhee's supervisor, Det. McGhee was instructed not to complete the purchase of the kilo.
On 28 August 2009, Defendant was arrested. Det. McGhee testified that Defendant was not arrested immediately because the case was left open in order to pursue other leads that may have developed into the seizure of larger quantities of drugs.
Prior to trial, Defendant moved to require the State to disclose the identity of the confidential informant who arranged the sale of the cocaine in question. At a hearing held on 16 March 2010, the trial court denied the motion without prejudice. On 16 March 2010 and on 16 April 2010, Defendant moved to suppress Det. McGhee's pre-trial identification of Defendant, which was based in part on Defendant's driver's license photograph. As Defendant's motions contain the same argument, we conclude from the record that the trial court considered them together, and we also consider them together.
At a hearing on the motion to suppress, Sergeant Garrett Chapman ("Sgt. Chapman") with the Department testified that he worked as a "cover officer" on the 9 January 2009 "buy/walk." He explained that he received a registration plate number from a police officer who was conducting surveillance. Sgt. Chapman obtained a driver's license number connected with the registration plate and ultimately the photo of the individual assigned to the driver's license, Defendant. On 14 January 2009, Sgt. Chapman e-mailed the photo to Det. McGhee who then identified the person in the photo as Manuel, the same person from whom he had purchased the cocaine on 9 January 2009. The trial court denied Defendant's motion to suppress. At trial, Defendant objected to both Det. McGhee's pre-trial identification of Defendant by way of driver's license photo and to the in-court identification of Defendant.
At trial, Det. Norton testified he was not able to witness the buy, however, he did place a listening device in Det. McGhee's car and on Det. McGhee's person to monitor the transaction and for safety reasons. Det. Norton was able to hear Det. McGhee throughout the transaction, but the audio was somewhat broken. Det. Norton further testified that after the buy he and Det. McGhee discussed the transaction and Det. McGhee gave him the substance he had purchased. Once Det. Norton returned to the Department he tested the substance with a field test kit and the substance tested positive for cocaine.
Agent Amy Bommer ("Agt. Bommer"), a forensic drug chemist with the City-County Bureau of Identification, testified that she conducted tests on the substance contained in the envelope and determined the substance was 28.3 grams of cocaine.
On 13 July 2010 a jury found Defendant guilty of trafficking cocaine by sale, delivery, and possession.
II. Jurisdiction and Standard of Review
As Defendant appeals from the final judgment of a superior court, this Court has jurisdiction to hear the appeal pursuant to N.C. Gen. Stat. § 7A-27(b) (2009).
We review the trial court's denial of Defendant's motion to suppress evidence gathered after the pre-trial identification of Defendant for whether its findings are supported by competent evidence and whether the findings support the trial court's conclusion. State v. White, 184 N.C. App. 519, 523, 646 S.E.2d 609, 611 (2007). "Findings of fact 'are conclusive on appeal if supported by competent evidence, even if the evidence is conflicting.'" State v. Robinson, 189 N.C. App. 454, 458, 658 S.E.2d 501, 504 (2008) (quoting State v. Eason, 336 N.C. 730, 745, 445 S.E.2d 917, 926 (1994)).
We review the trial court's denial of Defendant's motion to dismiss for insufficient evidence de novo. State v. Robledo, 193 N.C. App. 521, 525, 668 S.E.2d 91, 94 (2008). Our Court must determine
whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense. The evidence is to be considered in the light most favorable to the State; the State is entitled to every reasonable intendment and every reasonable inference to be drawn therefrom; contradictions and discrepancies are for the jury to resolve and do not warrant dismissal; and all of the evidence actually admitted, whether competent or incompetent, which is favorable to the State is to be considered by the court in ruling on the motion.State v. Davis, 197 N.C. App. 738, 742, 678 S.E.2d 385, 388 (2009) appeal dismissed, review allowed, 363 N.C. 658, 685 S.E.2d 512 (2009) and aff'd in part, rev'd on other grounds, 364 N.C. 297, 698 S.E.2d 65 (2010) (internal citations and quotation marks omitted).
III. Analysis
A. Motion to Compel Disclosure of a Confidential Informant
Defendant argues the trial court erred in denying Defendant's Motion to Compel Disclosure of a Confidential Informant. The United States Supreme Court has said that 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. Roviaro v. United States, 353 U.S. 53, 60, 1 L. Ed. 2d 639, 644-45 (1957). However, prior to balancing the government's interests versus the defendant's interests, a defendant must make a sufficient showing that the specific circumstances of his case require disclosure of the informant's identity. State v. Watson, 303 N.C. 533, 537, 279 S.E.2d 580, 582 (1981) (citations omitted).
In making this determination, the trial court needs to take into account a number of factors. Two factors weighting in favor of disclosure are (1) the informer was an actual participant in the crime compared to a mere informant, . . . and (2) the state's evidence and defendant's evidence contradict on material facts that the informant could clarify . . . . Several factors vitiating 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.State v. Jackson, 103 N.C. App. 239, 241-42, 405 S.E.2d 354, 356 (1991) aff'd, 331 N.C. 113, 413 S.E.2d 798 (1992) (quotation marks omitted) (citations omitted).
Here, the informant was not an actual participant in the crime and was not present at the scene. Defendant presented no evidence to contradict the State's evidence, so there were no issues to be clarified by the informant. See State v. Gaither, 148 N.C. App. 534, 541, 559 S.E.2d 212, 217 (2002) (denying defendant's motion to compel disclosure when defendant did not present any defense on the merits as to the charges against him). In addition, there was evidence independent of the informer of Defendant's guilt, including Det. McGhee's testimony and lab tests demonstrating the substance purchased was cocaine. The trial court did not commit reversible error when it failed to require the State to disclose the identity of the confidential informant who had little, if any, active participation in actual crime, in view of fact that Defendant failed to make a sufficient showing before the trial court that the informer's identity and possible testimony were essential to a fair determination of the case or material to his defense.
B. Motion to Suppress
Defendant argues the trial court erred in denying Defendant's Motion to Suppress the out-of-court, pre-trial identification of Defendant by way of a driver's license photograph. Defendant argues that the initial identification of Defendant through a driver's license photograph was inherently suggestive. We disagree.
Our courts apply a two-step process for determining whether an identification procedure was so suggestive as to create a substantial likelihood of irreparable misidentification. First, the Court must determine whether the identification procedures were impermissibly suggestive. Second, if the procedures were impermissibly suggestive, the Court must thenState v. Rawls, ___ N.C. App. ____ , ___, 700 S.E.2d 112, 118 (2010) (internal citations and quotation marks omitted). The likelihood of irreparable misidentification depends on the totality of the circumstances. State v. Fisher, 321 N.C. 19, 23, 361 S.E.2d 551, 553 (1987).
determine whether the procedures created a substantial likelihood of irreparable misidentification.
Factors to be considered in this determination include: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of the witness's prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation.State v. Capps, 114 N.C. App. 156, 162, 441 S.E.2d 621, 624-25 (1994) (quoting State v. Harris, 308 N.C. 159, 164, 301 S.E.2d 91, 95 (1983)).
After the trial court denied Defendant's Motion to Suppress, Defendant objected to the admission of Det. McGhee's identification of Manuel as Defendant. The trial court overruled Defendant's objection and explained why it allowed the
identification as evidence:
I am going to note and find that [Det. McGhee] is testifying he was in [Defendant's] presence, in close physical proximity for five to ten minutes and that he had the opportunity to observe him. [Defendant's] face was not obscured. They had discussions. This took place inside a building, as well as inside of his undercover police vehicle. It's also relevant toAdditionally, Det. McGhee returned to Thomas Concrete the following day and saw Manuel for a second time. It is clear that Det. McGhee had substantial opportunity to view Defendant on 9 January 2009 and then had a second opportunity to observe Defendant the following day. Therefore, there is not a substantial likelihood of misidentification when Det. McGhee was shown a photograph of Defendant five days after the buy took place. We find the trial court did not err when it denied Defendant's Motion to Suppress.
consider his experience and the fact that he is a law enforcement officer with years of experience, seven years with the drug and vice unit, and that he's— although he's not testified to it[,] he's arguably trained and experienced with noting people's physical characteristics for identification.
C. Motion to Dismiss
Defendant argues the trial court erred in denying Defendant's Motion to Dismiss his three charges of trafficking cocaine by sale, trafficking cocaine by delivery, and trafficking cocaine by possession. N.C. Gen. Stat. § 90-95(h)(3) (2009) provides that "[a]ny person who sells, manufactures, delivers, transports, or possesses 28 grams or more of cocaine . . . shall be guilty of a felony, which felony shall be known as trafficking in cocaine[.]" Further, "[s]ale, manufacture, delivery, transportation, and possession of 28 grams or more of cocaine as defined under N.C.G.S. § 90-95(h)(3) are separate trafficking offenses for which a defendant may be separately convicted and punished." State v. Garcia, 111 N.C. App. 636, 641, 433 S.E.2d 187, 190 (1993).
i. Trafficking Cocaine by Sale
Defendant was found guilty of one count of trafficking cocaine by sale. To prove Defendant is guilty of trafficking cocaine by sale, the State must prove that the Defendant (1) sold, (2) cocaine, (3) to another person, and the quantity of cocaine was 28 grams or more. N.C. Gen. Stat. § 90-95(h)(3)(2009). Our Court has held "that the term 'sale,' in the context of the North Carolina Controlled Substances Act, means the exchange of a controlled substance for money or any other form of consideration." State v. Carr, 145 N.C. App. 335, 343, 549 S.E.2d 897, 902 (2001).
Det. McGhee testified that Defendant exchanged a substance with him for $1,300. Additionally, Det. McGhee identified Defendant as the person from whom he purchased the cocaine. Agt. Bommer testified that the substance was cocaine and it weighed 28.3 grams. Our Supreme Court found, in State v. Cameron, an officer's testimony alone that the defendant had heroin in his possession and sold the officer heroin was sufficient evidence to properly deny a motion for judgment as of nonsuit. 283 N.C. 191, 197, 195 S.E.2d 481, 485 (1973). Cameron is similar to the present case, as we have an officer and an agent's testimony being used to withstand a motion to dismiss.
Considering the evidence in the light most favorable to the State, the State provided substantial evidence on each element of trafficking cocaine by sale. Therefore, the State satisfied its burden and we find the trial court did not err when it denied Defendant's Motion to Dismiss this charge.
ii. Trafficking Cocaine by Delivery
Defendant was found guilty of one count of trafficking cocaine by delivery. With the exception of the first element, each element for trafficking cocaine by delivery is the same as the elements for trafficking cocaine by sale. N.C. Gen. Stat. § 90-95(h)(3)(2009). The only differing element is that the state must prove that Defendant delivered the cocaine rather than knowingly sold the cocaine. N.C. Gen. Stat. § 90-95(h)(3)(2009). Delivery as defined by N.C. Gen. Stat. § 90-87(7) (2009) is "the actual[,] constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship."
Det. McGhee testified that Defendant removed the cocaine from his pocket and then handed it to Defendant. Again, our Supreme Court's holding in Cameron suggests Det. McGhee's testimony alone would be sufficient for the State to withstand a motion to dismiss. 283 N.C. at 197, 195 S.E.2d at 485. Considering the evidence in the light most favorable to the State, the State provided substantial evidence on each element and provided substantial evidence to show Defendant was the perpetrator of the offense. Therefore, the trial court did not err in denying Defendant's Motion to Dismiss.
iii. Trafficking Cocaine by Possession
Defendant was found guilty of one count of trafficking cocaine by possession. "To establish trafficking by possession, the State must show that a defendant (1) knowingly possessed a given controlled substance; and (2) that the amount possessed was greater than 28 grams." State v. Wiggins, 185 N.C. App. 376, 386, 648 S.E.2d 865, 872 (2007). Our Supreme Court has made clear that possession of a controlled substance may be either actual or constructive. Id. Constructive possession may occur when a person does not have physical possession of a controlled substance, but "has both the intent and the capability to maintain dominion and control over it." Id. (quoting State v. Jackson, 103 N.C. App. 239, 243, 405 S.E.2d 354, 357 (1991)).
As Det. McGhee approached Thomas Concrete, Defendant had physical control of the cocaine when the cocaine was in Defendant's pocket. Defendant also had physical control of the cocaine when he held the cocaine in his hand while he was speaking with Det. McGhee. Considering the evidence in the light most favorable to the State, the State provided substantial evidence on each element and provided substantial evidence to show Defendant was the perpetrator of the offense. Therefore, the trial court did not err when it denied Defendant's Motion to Dismiss this charge.
IV. Conclusion
We conclude the trial court did not err when it denied Defendant's Motion to Compel Disclosure of a Confidential Informant. We further conclude the trial court did not err when it denied the suppression of evidence that resulted from an out-of-court, pre-trial identification of Defendant. Lastly, the trial court did not err when it denied Defendant's Motion to Dismiss charges for insufficient evidence.
No error.
Judges HUNTER, Robert C., and STROUD concur
Report per Rule 30(e).