On 12 December 1995, Sergeant Effler of the Wayne CountySheriff's Department applied for a search warrant, describing the
premises to be searched as “Room 23 Economy Inn, West Granthan St,
Goldsboro, NC.” The individual to be searched was a “Black Male
Known only as Black, 6'1”, thin built, cast on leg.” In his
application, Sergeant Effler wrote that a “confidential and
reliable source of information” told him that the individual
described was in possession of crack cocaine and was inside the
described premises. The magistrate issued the search warrant.
At approximately ten-thirty on the morning of 12 December
1995, a number of law enforcement officers, including Sergeant
Effler, assembled outside Room 23 of the Economy Inn. The officers
knocked on the door and announced themselves as police officers
there to execute a search warrant. The officers opened the
unlocked door and found four adults, three men and a woman, in the
room. Defendant and the woman were standing near the door while
the other two men were sitting on the bed nearest the door.
Defendant said the room was his and the officer served him with the
search warrant. The room was described as approximately ten by
fourteen feet with furniture including two beds separated by a
night stand, and a dresser, the location of which does not appear
in the record. The searchers found a number of items. Sergeant
Effler found a brown medicine bottle containing off-white residue
on the shelf of the night stand. Lying partially under one of the
beds near the night stand, another officer found a small, clear
plastic bag that contained an off-white material. Analysis
determined that the off-white substances in both the bottle and bagwere cocaine. A soda can made into a smoking device was located
under one of the beds, within two or three feet of the plastic bag.
Four room receipts, three dated 8, 9, and 10 December respectively,
and one undated, were found in a drawer of the dresser. The
receipts identified Defendant as the individual who rented the
room. As a result of the search, Sergeant Effler arrested
Defendant and seized the medicine bottle, plastic bag, soda can,
and receipts.
During Sergeant Effler's testimony at trial, the following
exchange occurred between him and the prosecutor:
Q. When you went to appear in front of the magistrate to
secure the search warrant, did you describe this
particular motel room by number and location?
A. Yes, I did.
Q. And was that listed as the location to be searched?
A. Yes, it was. Room 23, Economy Inn, Grantham Street,
Goldsboro NC.
Q. All right. Does the search warrant also describe a
person that was searched?
A. It did.
Q. And did it describe the person who was searched?
A. Yes, sir. It did. A black male known only as Black,
6'1” build with a cast on the leg.
On 25 February 1995, a jury found Defendant guilty of
possession of cocaine and maintaining a dwelling for keeping, using
and/or selling cocaine. Defendant did not enter a notice of
appeal. However, the United States District Court for the Eastern
District of North Carolina granted a writ of habeas corpus, and
this Court then ordered that Defendant's appeal should be allowed
to proceed.
First, Defendant contends that the trial court committed plainerror by admitting the testimony of Sergeant Effler concerning the
search warrant. We disagree.
Our Supreme Court has held that it is error to allow a search
warrant and supporting affidavit based on information from a
confidential informant to be admitted into evidence over defendant's
objections because they are hearsay statements and deprive the
accused of his rights of confrontation and cross-examination.
State v. Edwards, 315 N.C. 304, 306, 337 S.E.2d 508, 509 (1985).
Here, Defendant did not object to Sergeant Effler's brief testimony
concerning the search warrant. Neither the search warrant nor the
supporting affidavit were entered into evidence or shown to the
jury. Nevertheless, defendant asks this Court to review this
assignment of error under the plain error rule.
[T]he plain error rule . . . is always to be applied
cautiously and only in the exceptional case where, after
reviewing the entire record, it can be said the claimed
error is a “
fundamental error, something so basic, so
prejudicial, so lacking in its elements that justice
cannot have been done,” or “where [the error] is grave
error which amounts to a denial of a fundamental right of
the accused,” or the error has “'resulted in a
miscarriage of justice or in the denial to appellant of
a fair trial'” or where the error is such as to
“seriously affect the fairness, integrity or public
reputation of judicial proceedings” or where it can be
fairly said “the instructional mistake had a probable
impact on the jury's finding that the defendant was
guilty.”
State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)
(quoting
United States v. McCaskill, 676 F.2d 995, 1002 (4
th Cir.
1982),
cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982)).
Although plain error review has usually been applied to
instructions to the jury, our courts have held that it can alsoapply to the admission of evidence.
State v. Black, 308 N.C. 736,
741, 303 S.E.2d 804, 807
(1983). However, after reviewing the
entire record, we are not persuaded that this is the exceptional
case where the claimed error is so fundamental that justice could
not have been done. Accordingly, this assignment of error is
overruled.
Next, Defendant contends that his trial counsel was
ineffective for failing to object to Sergeant Effler's testimony.
This Court has continually held that
claims of ineffective assistance of counsel should be
considered through motions for appropriate relief and not
on direct appeal. A motion for appropriate relief is
preferable to direct appeal because in order to defend
against ineffective assistance of counsel allegations,
the State must rely on information provided by defendant
to trial counsel, as well as defendant's thoughts,
concerns, and demeanor. [O]nly when all aspects of the
relationship are explored can it be determined whether
counsel was reasonably likely to render effective
assistance. Thus, superior courts should assess the
allegations in light of all the circumstances known to
counsel at the time of representation.
State v. Stroud, 147 N.C. App. 549, 553-54, 557 S.E.2d 544, 547
(2001),
cert. denied, 356 N.C. 623, 575 S.E.2d 758 (2002) (internal
citations and quotation marks omitted).
Although defendant has already filed a motion for appropriate
relief in superior court, his motion alleged ineffective assistance
of counsel on other grounds. Because we are unable to resolve upon
the record before us whether defendant was denied effective
assistance of counsel due to his counsel's failure to object to
Sergeant Effler's testimony, we overrule this assignment of error
without prejudice to defendant's right to file a motion forappropriate relief on this basis in the superior court.
Finally, Defendant contends that the State's evidence was
insufficient to show beyond a reasonable doubt that Defendant
possessed cocaine. We disagree.
When ruling on a motion to dismiss, the court must consider
all the evidence in the light most favorable to the State, giving
the State the benefit of all reasonable inferences which can be
drawn therefrom.
State v. Rasor, 319 N.C. 577, 585, 356 S.E.2d
328, 333 (1987). The central question is whether there is
substantial evidence of each element of the charged offense, and
that the defendant was the perpetrator.
State v. Lynch, 327 N.C.
210, 215, 393 S.E.2d 811, 814 (1990). Whether the evidence
presented constitutes substantial evidence is a question of law for
the court. Substantial evidence is “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.”
State v. Earnhardt, 307 N.C. 62, 66, 296 S.E.2d 649, 652 (1982)
.
“If all the evidence, taken together and viewed in the light most
favorable to the State, amounts to substantial evidence of each and
every element of the offense and of defendant's being the
perpetrator of such offense, a motion to dismiss is properly
denied.”
State v. Mercer, 317 N.C. 87, 98, 343 S.E.2d 885, 892
(1986) (citations omitted).
Possession of a controlled substance may be either actual or
constructive.
State v. Carr, 122 N.C. App. 369, 372, 470 S.E.2d
70, 73 (1996). Also, such possession may be either by a single
individual or in combination with another person.
State v.Anderson, 76 N.C. App. 434, 438, 333 S.E.2d 762, 765 (1985).
“Constructive possession exists when a person, while not having
actual possession of the controlled substance, has the intent and
capability to maintain control and dominion over a controlled
substance.
State v. Neal, 109 N.C. App. 684, 686, 428 S.E.2d 287,
289 (1993). When controlled substances are found on the premises
under the control of the accused, this fact, by itself, may be
sufficient to carry the case to a jury and survive a motion to
dismiss.
State v. Davis, 325 N.C. 693, 697, 386 S.E.2d 187, 190
(1989). “However, unless the [accused] has exclusive possession of
the place where the [controlled substances] are found, the State
must show other incriminating circumstances before constructive
possession may be inferred.”
Id.
Here, it is undisputed that the searched hotel room was in
Defendant's name. However, due to the presence of three other
adults, Defendant did not exclusively possess the hotel room.
Therefore, the State must show other incriminating circumstances.
Taking the evidence in the light most favorable to the State, as we
must on a motion to dismiss, we see other evidence and testimony
indicating (1) that Defendant was present when the cocaine was
found; (2) that the hotel room was small, approximately ten by
fourteen feet; (3) that the medicine bottle and plastic bag
containing the cocaine were at least in partial view; and (4) that
Defendant was within approximately eight feet of both the medicine
bottle and plastic bag. We conclude that Defendant's presence in
the hotel room, along with his proximity to the cocaine and thecocaine's location in plain view are additional incriminating
circumstances sufficient to withstand a motion to dismiss.
See
State v. Alston, 91 N.C. App. 707, 710, 373 S.E.2d 306, 309-10
(1988) (finding that a defendant's presence on the premises and in
close proximity to a drug may be a sufficient incriminating
circumstance although it is somewhat mitigated when others are
present). We conclude, therefore, that there was sufficient
evidence to show beyond a reasonable doubt that Defendant possessed
cocaine. This assignment of error is overruled.
No error.
Judges WYNN and CALABRIA concur.
Report per Rule 30(e).
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