Opinion
No. COA08-1058.
Filed May 5, 2009.
Wayne County Nos. 06 CRS 57282, 07 CRS 5344
Appeal by defendant from judgments entered 20 March 2008 by Judge Jerry Braswell in Wayne County Superior Court. Heard in the Court of Appeals 20 April 2009.
Attorney General Roy Cooper, by Assistant Attorney General John P. Scherer II, for the State. Geoffrey W. Hosford, for defendant-appellant.
Travaras Vashaun Jackson ("defendant") appeals judgments entered upon jury verdicts finding him guilty of possession with intent to sell and deliver cocaine, and possession with intent to sell and deliver methylenedioxymethamphetamine ("MDMA"). We find no error.
Between 21 October 2006 and 23 October 2006, the Goldsboro Police Department arranged for a confidential informant to make a controlled buy in a residence at 108 South Berkeley Boulevard in Goldsboro. After the controlled buy had been completed, the informant indicated that an unidentified black male sold him an off-white powdered substance that the unidentified black male represented to be cocaine. Sergeant Harris prepared an affidavit for a search warrant for the residence. The facts to establish probable cause were:
The applicant states that he has a confidential source which, is also known to Sgt. D. Peters of the Goldsboro Police Department, that has proven reliable in the past to the applicant by providing information in the past that has led to the seizure of a controlled substance in Wayne County. On October 23, 2006 the source told the applicant that the source was inside the above mentioned residence with in the past 48 hours and had seen a quantity of off white powder substance that was represented to be cocaine by a black male and in the possession of the black male while inside the residence listed above. The source has in the past provided information to the applicant that has led to the seizure of controlled substances, therefore the applicant knows that the source knows cocaine when the source sees it. The warrant was issued and executed on 23 October 2006. Officers with the Goldsboro Police Department forced entry into the residence and saw defendant retreating down a hallway into a bathroom. Two officers forced the bathroom door open and stopped the defendant from flushing a plastic sandwich bag ("the bag") down the toilet. The contents of the bag were believed to be narcotics and were confiscated. Later laboratory testing by the State Bureau of Investigation determined that the bag contained 3.3 grams of MDMA, 3.6 grams of powder cocaine, and 6.3 grams of cocaine base.
After his arrest, defendant waived his Miranda rights and provided a voluntary statement. Defendant admitted the bag of drugs belonged to him, and admitted that he sold drugs from the residence since June 2006. The defendant was charged with possession with intent to sell and deliver cocaine, possession with intent to sell and deliver MDMA, possession with intent to sell and deliver marijuana, and maintaining a dwelling for the use of controlled substances. On 14 March 2008, defendant filed a motion to suppress the evidence obtained pursuant to the search warrant because it was issued without probable cause, and a motion for disclosure of the identity of the confidential informant on which the affidavit in support of the warrant relied. The trial court denied both motions.
On 19 March 2008, in Wayne County Superior Court, the trial court dismissed the charge of possession with intent to sell and deliver marijuana. The jury returned guilty verdicts for possession with intent to sell and deliver cocaine, and possession with intent to sell and deliver MDMA. The jury was unable to reach a verdict on the charge of maintaining a dwelling for the use of controlled substances, and the trial court declared a mistrial on that charge. On 20 March 2008, the jury returned a verdict finding the defendant guilty of attaining the status of an habitual felon and sentenced the defendant to two consecutive sentences of a minimum of 85 to a maximum of 111 months in the North Carolina Department of Correction. Defendant appeals.
I. Motion to Suppress Evidence
Defendant first argues that the trial court erred in denying the motion to suppress evidence seized pursuant to the search warrant because the police officer allegedly provided false information on the affidavit in support of the application for the search warrant.
"[T]he standard of review in evaluating a trial court's ruling on a motion to suppress is that the trial court's findings of fact are conclusive on appeal if supported by competent evidence, even if the evidence is conflicting." State v. Buchanan, 353 N.C. 332, 336, 543 S.E.2d 823, 826 (2001) (internal quotations omitted). The trial court's conclusions of law are subject to de novo review. State v. Pickard, 178 N.C. App. 330, 334, 631 S.E.2d 203, 206 (2006).
The trial court summarily denied defendant's motion to suppress evidence because the motion to suppress was not accompanied by a supporting affidavit. N.C. Gen. Stat. § 15A-977(a) (2007) requires that a motion to suppress evidence made before trial "must be accompanied by an affidavit containing facts supporting the motion."
In State v. Creason, 123 N.C. App. 495, 473 S.E.2d 771 (1996), this Court was presented facts nearly identical to the present case. In Creason, the defendant was convicted of possession with intent to sell and deliver marijuana, possession with intent to sell and deliver cocaine, and knowingly maintaining a dwelling to keep or sell marijuana. Id. at 497, 473 S.E.2d at 771. In a motion to suppress evidence obtained pursuant to a search warrant, the defendant in Creason argued that the affidavit submitted in support of issuing the search warrant was insufficient to establish probable cause. This Court held that the burden was on the defendant to show that he complied with the procedural requirements of the statute. Id. at 499, 473 S.E.2d at 773.
In the instant case, just as in Creason, the defendant failed to file an affidavit to support his motion to suppress, therefore defendant waived his right to seek suppression of the evidence seized pursuant to the search warrant on constitutional grounds. Id. Although defendant concedes that a supporting affidavit should accompany a motion to suppress, he argues that the motion to suppress alleged sufficient facts of the basis for the motion for the State and the trial court to be on notice. Defendant claims since the motion is signed by counsel of record, this confirms that the motion had a proper basis in law and fact. Defendant cites no authority to support his argument that the Court should reverse the trial court's order denying the motion to suppress for failing to conduct an evidentiary hearing "as a matter of fundamental fairness." Furthermore, defendant fails to distinguish the facts in the present case from the facts in Creason. Accordingly this assignment of error is overruled.
II. Identity of Informant
The defendant next argues that the trial court erred by not requiring the State to disclose the identity of the confidential informant relied upon in obtaining the search warrant. We disagree.
The prosecution must reveal the identity of an informant when it is alleged that the informant took part in the drug transaction for which the defendant is being tried. Rovario v. United States, 353 U.S. 53, 1 L.Ed.2d 639 (1957). "The privilege of nondisclosure, however, ordinarily applies where the informant is neither a participant in the offense, nor helps arrange its commission, but is a mere tipster who only supplies a lead to law enforcement officers." State v. Stokely, 184 N.C. App. 336, 342, 646 S.E.2d 640, 644 (2007), rev. denied, 362 N.C. 243, 660 S.E.2d 542 (2008).
The defendant relies on State v. Canady, 355 N.C. 242, 559 S.E.2d 762 (2002). In Canady, the defendant requested the name of informants who implicated five people involved in the murder who were unconnected to the defendant, indicated where the murder weapon could be found, and named the person who allegedly arranged for the commission of the murder. Id. at 252, 559 S.E.2d at 767. The Supreme Court determined the identity of the informant was material to the defense and coupled with other errors by the trial court "created sufficient prejudice to deny defendant a fair trial." Id. at 246, 559 S.E.2d at 763.
Unlike Canady, the confidential informant in the present case was used solely for information to support the search warrant. The cocaine obtained pursuant to the controlled buy, in which the confidential informant was a party, was not introduced at trial, no evidence was offered regarding that controlled buy, nor was the defendant charged with any crime in connection with that controlled buy. The defendant was only charged with possession of narcotics in connection with evidence found in the residence pursuant to the search. Contrary to the assertion by defendant, the confidential informant was not a participant in any crime charged against defendant. The defendant has not established that the confidential informant had information that was material to the defense of the defendant for the crimes charged against him. Therefore, the privilege of nondisclosure applies. Stokely, 184 N.C. App. at 342, 646 S.E.2d at 644.
III. Conclusion
The trial court did not err by summarily denying the defendant's motion to suppress evidence because the defendant failed to file an affidavit in support of that motion as required by N.C. Gen. Stat. § 15A-977(a)(2007). The trial court also did not err in denying the defendant's motion to force the State to identify the informant connected with the controlled buy.
Defendant's remaining assignment of error was not argued and is deemed abandoned pursuant to N.C.R. App. P. 28(b)(6) (2007).
No error.
Chief Judge MARTIN and Judge STEELMAN concur.
Report per Rule 30(e).