STATE OF NORTH CAROLINA
v. Durham County
Nos. 00 CRS 56046, 56048
RICHARD ANTHONY ARMSTRONG,
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General
Dahr Joseph Tanoury, for the State.
Terry W. Alford, for defendant-appellant.
HUDSON, Judge.
On 18 September 2000, defendant Richard Anthony Armstrong was
indicted on charges of trafficking in heroin by possession,
possession with intent to sell or deliver heroin, felony possession
of cocaine, and possession of drug paraphernalia. The case was
tried at the 14 February 2001 Criminal Session of the Superior
Court in Durham County. After a mistrial on several of the
charges, a second trial was held at the 25 February 2002 Criminal
Session of the Superior Court in Durham County.
Defendant was convicted at the first trial of possession of
drug paraphernalia. Defendant was found not guilty of possession
of cocaine, and a mistrial was declared as to the remaining chargesbecause the jury was deadlocked. Prayer for judgment was continued
on the verdict of possession of drug paraphernalia. After a second
trial, defendant was convicted of trafficking in heroin and
possession with intent to sell or deliver heroin. The convictions
were consolidated for judgment with the possession of drug
paraphernalia conviction and defendant was sentenced to a term of
225 to 279 months imprisonment. Defendant appeals. After careful
review of the record, briefs and contentions of the parties, we
find no error.
The evidence presented at the two trials tended to show the
following: In July 1999, police began an investigation into an
individual named Little who was allegedly selling heroin in Durham.
Investigation through interviews revealed that Little was the
defendant, Richard Anthony Armstrong. Police learned that
defendant drove a burgundy BMW and had a girlfriend who lived off
of University Drive in Durham.
On 5 May 2000, Durham police set up surveillance at the
apartment off of University Drive. At approximately 10:48 a.m.,
defendant got into a BMW and drove off. Durham police followed
defendant in an unmarked vehicle, and clocked him speeding at 85
m.p.h. in a 55 m.p.h. speed zone. Defendant pulled into Ample
Storage on Hillsborough Road in Durham. Police had information
that defendant stored drugs at storage units. Defendant left his
car and entered one of the storage units.
Police then planned on stopping defendant after he left the
unit. They went to the manager's office of the storage facilityand asked her to lock the gate behind defendant. Before defendant
could leave the facility, he was stopped at the gate by police.
Sergeant John Peter of the Durham Police Department approached
defendant's car, drew his gun and told defendant to put his hands
up. Sergeant Peter looked into the passenger window of defendant's
car and observed electronic scales, an open bag with what appeared
to be “cutting agent,” and a bar of soap. Sergeant Peter stated
that “I see cutting agent.” Defendant corrected him and told him
that the bars of soap were the cutting agent. The officers
arrested and handcuffed defendant.
Investigator Charles Davidson of the Durham Police Department
told defendant that he was the subject of an investigation, and
also told defendant “that if he wanted to cooperate, this was the
time to do it.” Defendant stated he wanted to cooperate. He told
Davidson that he did not have any drugs in the car or storage unit,
and gave consent to search the unit and his car. Davidson asked
defendant for consent to search the apartment off of University
Drive, and defendant admitted that he had “about 55 grams in the
apartment.” Defendant further stated that his girlfriend had
nothing to do with the heroin, and he offered to take Davidson to
the heroin. Police and defendant went to the apartment, and asked
defendant's girlfriend for consent to search the apartment. She
agreed, and defendant told Davidson that the drugs were in the
kitchen in a cabinet above the refrigerator. Investigator William
Evans located the cabinet, opened it and found “tennis ball-sized
bags of heroin.” A further search of the apartment revealed acoffee grinder which field tested positive for heroin residue.
Inside a safe in the apartment were boxes of glassine baggies and
rubber bands.
Defendant first argues that the trial court erred by refusing
to exclude evidence seized in violation of defendant's
constitutional rights. Defendant contends that the stop for
speeding was merely a pretext so that the police could search him
for drugs. Defendant argues that because the stop was “pretextual”
it was illegal and any evidence seized as a result is inadmissible
under the exclusionary rule. Additionally, defendant argues that
statements made by him after his arrest should likewise be
excluded. Because these issues are not properly before us, we
decline to review these arguments.
During trial defendant did not move to suppress the evidence
or the statements to which he now objects. G.S. § 15A-974 provides
for the suppression of evidence if the exclusion of the evidence
“is required by the Constitution of the United States or the
Constitution of the State of North Carolina.” Id. “The exclusive
method of challenging the admissibility of evidence upon the
grounds specified in G.S. § 15A-974 is a motion to suppress
evidence which complies with the procedural requirements of G.S. §
15A-971 et seq.” State v. Conard, 54 N.C. App. 243, 244-45, 282
S.E.2d 501, 503 (1981); G.S. § 15A-979(d))(emphasis added). “The
burden is on the defendant to demonstrate that he has made his
motion to suppress in compliance with the procedural requirements
of G.S. § 15A-971 et seq.; failure to carry that burden waives theright to challenge evidence on constitutional grounds.” Id. at
245, 282 S.E.2d at 503. Thus, because defendant failed to make a
motion to suppress, his arguments that the trial court should have
excluded the evidence and statements are waived.
We next consider whether there was sufficient evidence to
sustain the convictions. Defendant notes that the heroin was found
in someone else's apartment, and the only evidence connecting him
to the drugs were rumors and his admission that the drugs were his.
Defendant denies making the admission to the police that the drugs
were his, and contends that no evidence was ever produced that
anyone had seen defendant in possession of the heroin.
To survive a motion to dismiss, the State must present
substantial evidence of each essential element of the charged
offense. State v. Cross, 345 N.C. 713, 716-17, 483 S.E.2d 432, 434
(1997). “'Substantial evidence is relevant evidence that a
reasonable mind might accept as adequate to support a conclusion.'”
Id. at 717, 483 S.E.2d at 434 (quoting State v. Olson, 330 N.C.
557, 564, 411 S.E.2d 592, 595 (1992)).
Here, defendant argues that there was insufficient evidence
that he possessed the drugs. However, Investigator Davidson
testified that defendant told him he had 55 grams of heroin in the
apartment and offered to take police to the heroin. Upon arrival
at the apartment, police asked defendant where the drugs were and
he directed them to a kitchen cabinet. Officers recovered heroin
from the cabinet in the kitchen. In addition, defendant was found
in possession of numerous glassine baggies at the apartment, and ascale and cutting agent on the front seat of his car. In the light
most favorable to the State, a reasonable juror could conclude from
this evidence that defendant possessed the heroin found in the
apartment. Cross, 345 N.C. at 717, 483 S.E.2d at 434.
Accordingly, we find no error.
No error.
Judges STEELMAN and THORNBURG concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***