STATE OF NORTH CAROLINA
v
.
Davidson County
No. 98 CVS 3741-44
JACKY MARCUS WESTMORELAND
Attorney General Roy A. Cooper, by Assistant Attorney General
David L. Elliott, for the State.
Jon W. Myers for defendant-appellant.
EAGLES, Chief Judge.
On 25 May 2000, a jury found defendant Jacky Marcus
Westmoreland guilty of trafficking cocaine by possessing greater
than 28 grams but less than 200 grams, maintaining a vehicle to
keep or sell controlled substances, possession of cocaine with
intent to sell or deliver, and trafficking cocaine by transporting
greater than 28 grams but less than 200 grams. Judge Klass
sentenced defendant to 35 to 42 months incarceration for
trafficking cocaine by possessing greater than 28 grams but less
than 200 grams, 35 to 42 months for possession of cocaine with
intent to sell or deliver and trafficking cocaine by transporting
greater than 28 grams but less than 200 grams. For maintaining a
vehicle to keep or sell controlled substances, Judge Klass imposedand suspended a six to eight month sentence and ordered that
defendant be put on supervised probation for three years after
serving the active sentences. Defendant appeals.
On 18 February 1998, Captain Glisson, Supervisor of the
Narcotics/Vice Division of the Davidson County Sheriff's
Department, received a telephone call from a person known to him as
“Ace Golden Coral” (Ace). Ace informed Captain Glisson that
defendant and Sam Musgrave had left North Carolina to go to Florida
to purchase a kilo of cocaine. The two men were riding in a burnt-
orange Dodge van with a raised camper roof bearing North Carolina
license plate number HNM-3045. Ace said that the van was pulling
an aluminum boat, and that the men had scanners, CB radios, a ham
radio, and a vat of acid in which to drop the drugs if the two men
were caught. Ace further stated that the men would return to North
Carolina on either Saturday, 21 February, or Sunday, 22 February
1998. Ace also gave Captain Glisson directions to Musgrave's North
Carolina residence.
Prior to receiving Ace's tip, officers of the Davidson County
Vice/Narcotics Division were familiar with defendant's reputation
as someone who dealt in illegal drugs. Officers were aware that
defendant had a prior conviction for cocaine trafficking.
Defendant had also been the subject of prior investigation and
surveillance by the Vice/Narcotics Division. Vice officers knew by
sight defendant's residence, the burnt-orange van, and the aluminum
boat. Officers knew that defendant lived with his wife, JaniceBrowning Westmoreland. Officers also determined that both the van
and the boat were registered in Janice Westmoreland's name.
After receiving the tip, vice officers began surveillance of
both defendant's and Musgrave's residences. In the early morning
hours of 23 February 1998, Lieutenant Douglas Westmoreland and
Detective W.M. Rankin observed a burnt-orange van pulling an
aluminum boat pass by and turn toward the second entrance to
defendant's house. The right rear taillight on the boat trailer
was not lit. Lieutenant Westmoreland initiated a traffic stop of
the van. Lieutenant Scott Woodall arrived at the scene of the stop
almost immediately after the stop occurred.
After the officers identified the occupants of the van, they
separately questioned defendant and Musgrave about where the two
had been. Musgrave told Lieutenant Woodall that he had been at
High Rock Lake. When asked if he was sure, Musgrave responded that
he had been in Myrtle Beach. Lieutenant Woodall then questioned
defendant. Defendant responded that he and Musgrave had been
fishing in Florida.
Lieutenant Woodall told defendant that the police had received
a tip indicating that Musgrave and defendant were involved in drug
activity. Lieutenant Woodall then asked for defendant's consent to
search the van. Defendant responded, “I guess I don't mind.”
Lieutenant Woodall told defendant that he needed a “straight
answer.” Defendant responded, “well, help yourself.” Musgrave was
placed in one police vehicle and defendant was placed in another. Lieutenant Woodall presented defendant with a search consent form
which defendant then signed.
Officer Mike Thompson and a drug search police dog, Pepper,
arrived at the scene. During a walk-around of the van, Pepper
alerted on one side of the van. From a search of the inside of the
van, officers discovered a small plastic bag of cocaine, a bag of
marijuana, a CB radio, $6,800.00 in cash, electronic digital
scales, brass weights, a bent silver spoon, and Florida newspapers
dated 20 February 1998. Lieutenant Woodall then placed defendant
and Musgrave under arrest. After arresting defendant and Musgrave,
officers searched the boat and found three bags of cocaine and one
bag of marijuana. The cocaine found totaled 95.3 grams and the
marijuana totaled 10.6 grams.
On appeal, defendant contends that: (1) the trial court erred
in denying defendant's motion to suppress evidence and (2) the
trial court erred in refusing to include in its charge to the jury
defendant's requested instruction regarding exculpatory statements
offered by the State.
Defendant first argues that Ace's tip failed to provide
sufficient indicia of reliability to create reasonable suspicion
that criminal activity was afoot that would permit officers to stop
the van, thereby rendering all evidence seized from the officer's
consensual search inadmissible. See Alabama v. White, 496 U.S.
325, 110 L. Ed. 2d 301 (1990).
Generally, when reviewing a trial court's decision on a
defendant's motion to suppress evidence, this Court firstdetermines whether the trial judge's findings of fact are supported
by competent evidence. State v. Cooke, 306 N.C. 132, 134, 291
S.E.2d 618, 619 (1982). Findings of fact that are supported by
competent evidence are binding on appeal. Id. The reviewing court
next performs a de novo review to determine whether the findings of
fact support the trial court's conclusions of law. State v.
Brooks, 337 N.C. 132, 141, 446 S.E.2d 579, 585 (1994). Here,
defendant concedes, in his brief, that the trial court's findings
of fact are supported by competent evidence. Consequently, this
Court need only determine whether the trial court's findings of
fact support the trial court's conclusions of law.
An anonymous tip can provide reasonable suspicion as long as
it exhibits sufficient indicia of reliability. State v. Hughes,
353 N.C. 200, 207, 539 S.E.2d 625, 630 (2000). In determining
whether a tip is sufficiently reliable to pass constitutional
muster, the court must consider the totality of the circumstances.
Illinois v. Gates, 462 U.S. 213, 76 L. Ed. 2d 527 (1983). Under
the Gates test, the basis of knowledge and reliability or veracity
are relevant, but instead of being independent of each other, they
are closely intertwined issues, where “a deficiency in one may be
compensated for, in determining the overall reliability of a tip,
by a strong showing as to the other, or by some other indicia of
reliability.” Id. at 233, 76 L. Ed. 2d at 545.
Here, Captain Glisson received an anonymous tip indicating
that defendant had traveled to Florida in order to purchase illegal
drugs. The tip accurately identified the individuals, the vehicle,the boat involved, and Musgrave's home address. Ace informed
Captain Glisson that defendant and Musgrave would return on either
21 or 22 February 1998. Ace also gave specific information about
equipment he believed defendant and Musgrave would have with them.
Before receiving the tip from Ace, officers knew of
defendant's reputation as someone who dealt in illegal drugs.
Before the stop, officers of the Davidson County Vice/Narcotics
Division had verified that defendant and Musgrave both had prior
drug convictions and the location and description of Musgrave's
residence. Though defendant and Musgrave did not return on 21 or
22 February 1998 as predicted by Ace, they did return in the early
morning hours of 23 February 1998.
Ace's tip, the officers' prior knowledge of defendant's
reputation, and the officers' corroboration and investigation of
the information supplied in the tip provided the vice/narcotics
officers of the Davidson County Sheriff's Department with
reasonable suspicion to believe that defendant was engaged in
criminal activity. Accordingly, after considering the totality of
the circumstances, we hold that the officers' investigatory stop of
the burnt-orange van was based on reasonable suspicion and did not
violate defendant's constitutional rights. This assignment of
error fails.
Defendant's remaining contention is that the trial court erred
in refusing to give defendant's requested instruction regarding
exculpatory statements offered by the State. If a request is made
for a jury instruction and that request is supported by evidence,the trial court must give the instruction at least in substance.
Roberts v. Young, 120 N.C. App. 720, 726, 464 S.E.2d 78, 83 (1995).
Here, defendant requested that the trial court instruct the jury
using language from State v. Bruton, 264 N.C. 488, 499, 142 S.E.2d
169, 176 (1965), as follows:
When the State introduces in evidence
exculpatory statements of the defendant which
are not contradicted or shown to be false by
any other facts or circumstances in evidence,
the State is bound by these statements.
In State v. Hankerson, 288 N.C. 632, 637-38, 220 S.E.2d 575, 580-81
(1975), rev'd on other grounds, 432 U.S. 233, 53 L. Ed. 2d 306
(1977), our Supreme Court concluded that the State was not bound by
defendant's exculpatory statement, which the State introduced, when
the State introduced other evidence that impeached the defendant's
statement.
Our review of the portions of the record identified by
defendant as containing exculpatory statements does not reveal any
uncontradicted statement made by defendant and introduced by the
State that could be construed as exculpatory in nature.
Accordingly, we hold that defendant's requested instruction was not
supported by the evidence and that this assignment of error fails.
No error.
Judges McCULLOUGH and CAMPBELL concur.
Report per Rule 30(e).
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