STATE OF NORTH CAROLINA
v. Wayne County
Nos. 98CRS009076
-78
DOMINGO BETANCOURT
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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