Summary
In State v. Washington, 102 N.C.App. 535, 538, 402 S.E.2d 851, 853–54 (Greene, J., dissenting), rev'd for reasons in dissenting opinion, 330 N.C. 188, 410 S.E.2d 55 (1991) (per curiam), Judge Greene applied a similar reasoning.
Summary of this case from State Carolina v. WilliamsOpinion
No. 9026SC862
Filed 16 April 1991
1. Criminal Law 75.7 (NCI3d) — defendant in police car — movement restricted — defendant not in custody — Miranda warnings not required Defendant was not entitled to Miranda warnings since he was not "in custody" at the time he made statements to police officers, even though he was in the back seat of a police car while the officer was checking a possible traffic violation with the Department of Motor Vehicles and defendant's movement was thus involuntarily restricted.
Am Jur 2d, Criminal Law 794.
2. Narcotics 4 (NCI3d) — felonious possession of cocaine with intent to sell — sufficiency of evidence In a prosecution of defendant for felonious possession of cocaine with intent to sell in violation of N.C.G.S. 90-95, the evidence was sufficient to be submitted to the jury where it tended to show that an officer stopped defendant's car for a suspected traffic violation; when the officer obtained defendant's consent and searched the car, he found a portion of a brown paper bag in the ashtray containing a plastic bag with ten smaller plastic bags of a white powdery substance which later proved to be cocaine; and defendant claimed that the powder was not his and was only baking soda which he and a friend bagged to make it look like cocaine and to sell it.
Am Jur 2d, Drugs, Narcotics, and Poisons 21, 27, 44, 46, 47.
APPEAL by defendant from judgment entered 2 May 1990 by Judge Robert E. Gaines in MECKLENBURG County Superior Court. Heard in the Court of Appeals 21 March 1991.
Attorney General Lacy H. Thornburg, by Assistant Attorney General Teresa L. White, for the State.
Public Defender Isabel Scott Day, by Assistant Public Defender Allen W. Boyer, for defendant appellant.
Judge GREENE dissenting.
Defendant was convicted of felonious possession of cocaine with intent to sell in violation of G.S. 90-95 and sentenced to a prison term of three years. On appeal he argues that the trial court erred in admitting statements he made prior to being advised of his Miranda rights and by not granting his motion to dismiss based on the insufficiency of the evidence. Neither argument has merit and we overrule them.
The State's evidence tended to show that: Charlotte Police Officer Casey Carver observed defendant driving a vehicle with a broken headlight and other damage indicating it had recently been involved in an accident, suspected a possible hit and run accident, and stopped the vehicle. Defendant got out of the car and met the officer in front of the patrol car. Defendant did not have a driver's license and the officer placed him in the back seat of the patrol car while checking defendant's identity with the Department of Motor Vehicles. Upon returning to defendant's car Officer Carver looked in the window and saw a "thirty-eight round" (handgun bullet) on the floorboard. The officer then asked defendant, still sitting in the patrol car, where the gun was located; and defendant answered, "Man, there ain't no gun in the car. It's not my car. You can search it, you're not going to find anything." After Officer R. L. Ferguson arrived at the scene, the two officers searched the vehicle and found a portion of a brown paper bag in the ashtray containing a plastic bag with ten smaller plastic bags of a white powdery substance which was later proved to be cocaine. Officer Carver showed the bag to defendant and said, "Look what I found"; defendant responded that "it was not his [the defendant's] and that it was only baking soda because he and a friend had been flaking." The officer asked defendant what flaking meant and defendant replied that "he [the defendant] had bagged up baking soda to look like cocaine so that he could sell it as cocaine and make a good profit." At that point Officer Carver placed defendant under arrest for possession of cocaine. Officer Ferguson had seen defendant driving the car on several different occasions.
From this evidence the trial court found that although defendant's movement was involuntarily restricted, as he was in the back seat of the police car while the officer was checking a possible traffic violation with the Department of Motor Vehicles, under the decision in Miranda v. State of Arizona, 384 U.S. 436, 16 L.Ed.2d 694, reh'g denied, California v. Stewart, 385 U.S. 890, 17 L.Ed.2d 121 (1966), and its progeny, defendant was not "in custody" at the time he made the statements to the police officer and the warning established by those decisions was not required. The court's interpretation of the above decisions is correct, and since the findings made are supported by competent evidence they are conclusive. Lemmerman v. A. T. Williams Oil Co., 318 N.C. 577, 350 S.E.2d 83, reh'g denied, 318 N.C. 704, 351 S.E.2d 736 (1986).
As to the sufficiency of the evidence argument, when viewed in the light most favorable to the State, the evidence above stated is clearly sufficient to prove all the elements of the crime that defendant was convicted of. State v. Brown, 310 N.C. 563, 313 S.E.2d 585 (1984). Inter alia, it tends to show that defendant owned, controlled and possessed the cocaine, and that he and his friend intended to sell it.
No error.
Judge PARKER concurs.
Judge GREENE dissents with separate opinion.