An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA03-576


Filed: 4 May 2004


         v.                            Wayne County
                                    Nos.    98CRS009076 -78

    Appeal by defendant from judgment entered 28 February 2002 by Judge Russell J. Lanier in Wayne County Superior Court. Heard in the Court of Appeals 19 April 2004.

    Attorney General Roy A. Cooper, III, by Special Deputy Attorney General E. Burke Haywood, for the State.
    Paul Pooley for defendant-appellant.

    HUNTER, Judge.

    Domingo Betancourt (“defendant”) was found guilty of trafficking in cocaine by possession, trafficking in cocaine by transportation, trafficking in cocaine by sale or delivery, and conspiracy to traffic in cocaine. The trial court consolidated defendant's offenses for judgment and sentenced him under the mandatory provisions of our drug trafficking statute to 175 to 219 months' imprisonment. See N.C. Gen. Stat. § 90-95(h)(3) (2003). For the reasons stated herein, we find no error.
    The State's evidence tended to show that while working as an undercover narcotics agent in April of 1998, Wilson County Sheriff's Detective J. E. Smith (“Detective Smith”) purchasedcocaine on two occasions from Meslin (“Meslin”) and Edith Blount (“Edith”) (collectively “the Blounts”) at their residence at 220 Carmack Road in Seven Springs, North Carolina. Detective Smith met with the Blounts at their home on 23 April 1998 and arranged to purchase two ounces of cocaine for $1,900.00. Detective Smith left the residence while the Blounts went to purchase the cocaine. He returned ten minutes later and saw the Blounts arrive in a white Buick automobile. Edith brought the cocaine to Detective Smith, who paid her the $1,900.00. While the parties were inside the Blounts' residence counting the money, Detective Smith indicated his interest in buying additional quantities of cocaine.
    Detective Smith returned to the Blounts' house on 29 April 1998, and arranged with Meslin to purchase 500 grams of cocaine for $15,500.00 the following day. On 30 April 1998, he drove to the Blounts' house with $15,500.00. Detective Smith again left the area while the Blounts went to pick up the cocaine. When he returned, the white Buick was gone. Minutes later, Edith arrived in the car. Meslin appeared soon thereafter, walking toward the house. Edith entered Detective Smith's car and produced five bags of cocaine, whereupon a “take down” team arrested the Blounts.
    Following their arrest, the Blounts began cooperating with police and identified defendant as the supplier of the cocaine sold to Detective Smith in April of 1998. With their permission, police recorded two telephone calls between the Blounts and defendant on 12 and 17 June 1998. During these conversations, defendant askedthe Blounts about payment for the cocaine he provided them on 30 April 1998.
    On 21 June 1998, Lieutenant Ray Smith, of the Goldsboro/Wayne County Drug Squad (“Lieutenant Smith”), gave Meslin $500.00 to give defendant as partial payment for the drugs. Meslin telephoned defendant, who went to the Blounts' house for the money. Lieutenant Smith stopped defendant's car and arrested him a few miles from the Blounts' residence. A search of defendant's car yielded the $500.00 given by Lieutenant Smith to Meslin, a nine- millimeter handgun, a cellular telephone and two pagers.
    On the day of defendant's arrest, 21 June 1998, Lieutenant Smith obtained a waiver of defendant's Miranda rights in English before taking a brief statement. Defendant admitted selling the 500 grams of cocaine to Meslin on 30 April 1998, and claimed his source for the cocaine was in Florida. Defendant expressed a desire to cooperate with police but refused to provide additional information before speaking with a lawyer. Sergeant Tom Effler, of the Wayne County Sheriff's Office (“Sergeant Effler”), was present at the interview and testified that although defendant's use of English was not “as fluent as my English,” he had no trouble understanding defendant.
    Petitioner's counsel, John Duke (“Duke”), contacted Lieutenant Smith on 29 June 1998, and informed him that defendant wished to speak with police. Duke provided an interpreter, Priscilla Alaniz, who accompanied defendant to the police station on 29 June 1998. At this second interview with Lieutenant Smith, which was alsowitnessed by Sergeant Effler, defendant was advised of his Miranda rights in English and Spanish. After waiving his rights, defendant gave a more detailed history of his drug activity since 1985. Defendant claimed he began selling cocaine in North Carolina in 1996, and identified his source as a man named Micario or Rambo in Asheboro, North Carolina. In the year prior to his arrest, he had been selling one and one-half kilograms of cocaine per week. Defendant had been selling cocaine to Meslin for approximately a year and a half. On 30 April 1998, defendant went to the Blounts' residence to collect money owed to him. Meslin told defendant that he wanted to purchase a half-kilogram of cocaine and would contact defendant “when he was ready.” Defendant quoted Meslin a price of $12,000.00. Later that day, Meslin came to defendant's home in Cabin Creek and asked for the cocaine. Defendant deposited the cocaine under a tree on a dirt road for Meslin to retrieve. Following the Blounts' arrest, defendant went to the Blounts' residence on several occasions to collect the $12,000.00. After his second interview with Lieutenant Smith, defendant jumped bond and was at large for some period of time.
    On appeal, defendant claims the trial court erred in summarily denying his motion to suppress his incriminating statements to police on 21 June 1998 and 29 June 1998. In his motion to suppress, defendant claimed he made statements to police while in custody but “did not knowingly or intelligently consent to an interview or knowingly and intelligently waive his right to remain silent[.]” In an affidavit accompanying the motion, defendant'scounsel asserted the following, based “upon information and belief obtained from his interview with [d]efendant[;]”
            (1) That on or about June 21, 1998 and June 29, 1998, defendant spoke to law enforcement personnel regarding alleged possession of cocaine.

            (2) That at the aforesaid date and time, defendant was in custody.

            (3) That defendant was unable to give knowing, voluntary and intelligent waiver of his right against self incrimination.

The affidavit contained no additional facts. At a pre-trial hearing on the motion, the State sought a summary denial pursuant to N.C. Gen. Stat. § 15A-977(c)(2), arguing that counsel's affidavit contained no facts supporting any ground for suppression and failed to provide sufficient notice of the grounds for suppression. The trial judge agreed with the State and summarily denied defendant's motion, stating as follows:
        It's my understanding that [§] 15A-977(c) says that the judge may summarily . . . deny the motion to suppress evidence if (1) the motion does not allege a legal basis, or if the affidavit does not, as a matter of law, support the ground alleged, and I don't see that the affidavit supports anything[.]
    In assigning error to the court's summary denial of his motion to suppress, defendant notes that counsel's supporting affidavit alleged that his statements were the product of custodial interviews without a knowing, voluntary and intelligent waiver of his Miranda rights. Defendant insists that the State cannot expect him to put literally every subsidiary fact in his affidavit before an experienced prosecutor would know how to prepare for and conducta suppression hearing where defendant has asserted that his rights waiver was invalid.
    Under N.C. Gen. Stat. § 15A-977(a) (2003), a pre-trial motion to suppress evidence allegedly obtained in violation of the state or federal constitution must “be in writing and accompanied by an affidavit containing facts supporting it. The court may summarily deny the motion if the 'affidavit does not as a matter of law support the ground alleged.'” State v. Blackwood, 60 N.C. App. 150, 151, 298 S.E.2d 196, 198 (1982) (quoting N.C. Gen. Stat. § 15A-977(c)(2)). “The defendant has the burden of establishing that the motion to suppress is . . . in proper form.” State v. Roper, 328 N.C. 337, 360, 402 S.E.2d 600, 613 (1991) (citations omitted).
    The affidavit at issue here contains counsel's unexplained assertion that defendant was “unable to give knowing, voluntary and intelligent waiver of his right against self incrimination.” The affiant offers no facts illuminating the reason or reasons for defendant's supposed inability to give a valid waiver. At the suppression hearing, defense counsel cited defendant's poor command of English as his basis for the motion. This assertion, however, provides no basis for suppressing defendant's second statement to police on 29 June 1998, which was arranged by defendant's counsel and which was given following defendant's waiver in Spanish of his Miranda rights through an interpreter provided by his counsel. Assuming, arguendo, that defendant's waiver after being advised of his Miranda rights in English on 21 June 1998 was invalid, counsel's affidavit provides no facts that would tend to underminehis subsequent waiver on 29 June 1998. Absent any basis to suppress this second, more detailed statement to police, any error in admitting defendant's initial 21 June 1998 statement was harmless beyond a reasonable doubt. See State v. Siler, 292 N.C. 543, 552, 234 S.E.2d 733, 739 (1977); State v. Gish, 111 N.C. App. 165, 171, 431 S.E.2d 856, 859 (1993). Because the affidavit filed in support of the motion to suppress contained no facts supporting the exclusion of defendant's 29 June 1998 statement, we conclude the trial court did not err in summarily denying the motion to suppress pursuant to N.C. Gen. Stat. § 15A-977(c)(2). Cf. State v. Phillips, 132 N.C. App. 765, 513 S.E.2d 568 (1999).
    Defendant next faults the trial court for failing to find that he rendered substantial assistance to law enforcement under N.C. Gen. Stat. § 90-95(h)(5). The transcript reveals, however, that defendant offered no proffer of substantial assistance, made no request for a finding of substantial assistance, and raised no objection to the sentencing court's failure to make this finding. Defense counsel argued at sentencing only for a consolidation of defendant's offenses, and defendant declined the opportunity to address the sentencing court. By failing to place the issue of substantial assistance before the trial court at any time, defendant has waived appellate review of this issue. See State v. Robbins, 319 N.C. 465, 525, 356 S.E.2d 279, 314 (1987). We note the record is devoid of any evidence that would support such a finding.    The record on appeal contains additional assignments of error not addressed by defendant in his brief to this Court. Pursuant to N.C.R. App. P. 28(b)(6), they are deemed abandoned.
    No error.
    Judges WYNN and McCULLOUGH concur.
    Report per Rule 30(e).

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