State v Johnson, (02-1084) 05/06/2003

Appeal by defendant from judgment entered 9 October 2001 by Judge Henry E. Frye, Jr., in Forsyth County Superior Court. Heard in the Court of Appeals 14 April 2003.

Attorney General Roy Cooper, by Special Deputy Attorney General Christine M. Ryan, for the State.

Rudolf Maher Widenhouse & Fialko, by M. Gordon Widenhouse, Jr., for defendant-appellant.

MARTIN, Judge.

    Defendant appeals pursuant to G.S. § 15A-979 from an order denying his motion to suppress evidence. Reserving his right to appeal, defendant pled guilty to felonious possession of heroin, felonious possession of cocaine, and status as an habitual felon. The superior court consolidated the convictions for judgment and sentenced defendant as an habitual felon to a minimum term of 96 months and a maximum term of 125 months.
    The evidence of the State tends to show that on 21 June 2001, police officers of the Winston-Salem Police Department executed a warrant to search the premises at 3824 Sterling Park Court. The officers entered the residence and saw defendant sitting on a couchin the living room with his mother. In a room identified as defendant's bedroom, the officers found syringes and plastic baggies containing heroin residue. In the kitchen the officers found a set of scales with cocaine residue on them. On defendant's person the officers found 0.5 grams of crack cocaine wrapped in plastic in defendant's pants pocket.
    By his first argument defendant contends the court erred by accepting his plea without conducting an inquiry as to his competency in view of evidence that he was under the influence of medication for high blood pressure at the time he entered the plea. Defendant failed to make an assignment of error in the record on appeal raising this issue and this Court denied defendant's motion to amend the record on appeal to add this assignment of error. Only questions that correspond to an assignment of error listed in the record on appeal will be considered by this Court. N.C.R. App. P. 10(a) (2001); See State v. Thomas, 332 N.C. 544, 423 S.E.2d 75 (1992), overruled on other grounds by State v. Richmond, 347 N.C. 412, 495 S.E.2d 677 (1998). We, therefore, dismiss this argument.
     By his second argument defendant contends the court erred in denying his motion to suppress on the ground probable cause did not exist to support issuance of the search warrant. He argues probable cause for issuance of the warrant was lacking because the magistrate had to rely in large part upon information provided by an unidentified third person whose reliability was not established.
    In State v. Arrington, 311 N.C. 633, 319 S.E.2d 254 (1984), North Carolina adopted the “totality of circumstances” standard indetermining the existence of probable cause when the application for the search warrant contains information provided by an informant:
        “The task of the issuing magistrate is simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.”

Id. at 638, 319 S.E.2d at 257-58 (citation omitted). Determining whether there is probable cause requires “nontechnical, common- sense judgments of laymen applying a standard less demanding than those used in more formal legal proceedings.” Illinois v. Gates, 462 U.S. 213, 235-36, 76 L. Ed. 2d 527, 546 (1983). In reviewing the issuance of a search warrant, the court determines “whether there is substantial evidence in the record supporting the magistrate's decision to issue the warrant.” Massachusetts v. Upton, 466 U.S. 727, 728, 80 L. Ed. 2d 721, 724 (1984). The court is to give great deference to the magistrate's determination. State v. Greene, 324 N.C. 1, 9, 376 S.E.2d 430, 436 (1989), overruled on other grounds, 494 U.S. 1022, 108 L. Ed. 2d 603 (1990).
    The application for the search warrant in the case at bar shows the following. The principal applicant, an officer who had been assigned to the special investigations unit during the previous two years and had made more than 150 arrests for narcotics violations, stated he had made numerous arrests of dealers and addicts who had identified defendant and his brother, Robert “Blob”Johnson, as dealers of cocaine and heroin. The records of the Winston-Salem Police Department showed that defendant and his brother resided at 3824 Sterling Park Court. On 24 February 1999 another officer of the Winston-Salem Police Department searched the premises in question and arrested both defendant and his brother for narcotics violations. On 8 April 1999 the applicant conducted an in-custody interview of defendant's brother, who admitted to buying and selling cocaine and heroin on a regular basis. Police department records also indicated that defendant previously had been arrested and charged with six counts of narcotics violations and Robert Johnson previously had been arrested and charged with eleven counts of narcotics violations. In June 2001, a confidential and reliable informant told the applicant that he/she had recently been supplied with heroin by defendant and defendant's brother through an intermediary. The informant indicated that he/she formerly purchased heroin directly from defendant and his brother at 3824 Sterling Park Court until the informant's relationship with them deteriorated. Within 72 hours prior to applying for the warrant, arrangements were made for the informant to make a controlled buy of heroin from Robert Johnson at 3824 Sterling Park Court. The informant was searched and no contraband was found. Police officers maintained surveillance of the informant as he/she made contact with an unidentified female and drove her to 3824 Sterling Park Court. They observed the unidentified female exit the vehicle, make contact with a black male, enter the premises, and return to the informant's vehicleabout five to eight minutes later. The informant then met police officers at a predetermined location and gave the officers a substance identified by field testing as heroin. The informant advised the officers that the unidentified female told him she had purchased the substance from Robert Johnson.
    We conclude the foregoing totality of circumstances supports the magistrate's finding of probable cause and the decision to issue the warrant. We overrule this assignment of error.
    By his third argument defendant contends the court improperly used convictions entered during the same session of court to establish his prior record level and to establish habitual felon status. We disagree. Nothing prohibits a court from using one conviction obtained during one calendar week to establish habitual felon status and a second separate conviction to determine the prior record level. State v. Truesdale, 123 N.C. App. 639, 473 S.E.2d 670 (1996). The consolidation of the convictions into a single judgment does not make any difference because each conviction stands on each own. See State v. McCrae, 124 N.C. App. 664, 478 S.E.2d 210 (1996), disc. review denied, 345 N.C. 645, 483 S.E.2d 715 (1997). This assignment of error is also overruled.
    No error.
    Judges McCULLOUGH and CALABRIA concur.
    Report per Rule 30(e).

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