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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the
print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. SANTIAGO MONTEZ HOUSTON
Filed: 5 April 2005
1. Appeal and Error--preservation of issues--failure to argue or set out in brief
Defendant's assignments of error numbers one, five, six, seven, eight, nine, and ten are
deemed abandoned because they are not set out or argued in defendant's brief as required by
N.C. R. App. P. 28(b)(6).
2. Search and Seizure--motion to suppress evidence--contents of safe in bedroom--
voluntariness of consent
The trial court did not err in a trafficking in cocaine by possession of more than 200 but
less than 400 grams case by denying defendant's motion to suppress evidence found in the safe
in his bedroom, because: (1) there was ample competent evidence in the record to show
defendant, although in custody at the time consent was requested, voluntarily consented to the
search of the bedroom; and (2) physical evidence obtained as a result of statements by a
defendant made prior to receiving the necessary Miranda warnings need not be excluded.
3. Evidence--prior crimes or bad acts--uncharged drug dealings
The trial court did not err in a trafficking in cocaine by possession of more than 200 but
less than 400 grams case by allowing a confidential police informant's testimony as to prior
uncharged drug dealings with defendant, because: (1) the testimony was offered to show intent,
knowledge, plan or scheme as well as to explain the relationship between defendant and the
informant; (2) an appropriate limiting instruction was given to the jury both at the time the
informant testified and in the jury instructions; and (3) the similarities between the charged
offense and the prior transactions testified to by the informant are numerous.
4. Confessions and Incriminating Statements--post-Miranda statements--voluntariness
The trial court did not err in a trafficking in cocaine by possession of more than 200 but
less than 400 grams case by allowing the introduction of defendant's incriminating post-Miranda
statements that were allegedly induced by the hope of some benefit, because: (1) defendant was a
thirty-year-old high school graduate with significant knowledge and experience with the criminal
justice system based upon his numerous prior arrests, defendant was advised of and waived his
Miranda rights both orally and in writing, and defendant did not appear scared or intimidated
during the one hour to one hour and fifteen minutes interview and at no time asked for a break or
to speak to an attorney; (2) the officers did not discuss what the specific rewards or benefits of
cooperation might be, nor did they tell defendant that his sentence would be reduced or the
amount of his release bond was dependent on his cooperation; and (3) a suggestion of hope
created by statements of law enforcement officers that they would talk to the District Attorney
regarding defendant's cooperation where there was no indication that preferential treatment
might be given in exchange for cooperation did not render the inculpatory statements
Appeal by defendant from judgment entered 19 May 2003 by Judge
Robert C. Ervin in Mecklenburg County Superior Court. Heard in the
Court of Appeals 13 January 2005.
Attorney General Roy Cooper, Attorney General by Special
Deputy Attorney General W. Dale Talbert, for the State.
Brian Michael Aus, for the defendant-appellant
Defendant was charged with trafficking in cocaine by
possession of more than 200, but less than 400, grams
entered a plea of not guilty. A jury returned a verdict finding
defendant guilty of the offense charged. Defendant appeals from
the verdict and the judgment entered thereon.
At trial the State's evidence tended to show that defendant
was arrested on 4 March 2002 in the parking lot of his apartment
building after a confidential
police informant, Pernice Davis
, made a controlled purchase of approximately nine ounces
of cocaine from him. Immediately after his arrest, officers and
agents took the handcuffed
defendant to an apartment on the third
floor of the apartment building. Occupant Anthony General allowed
them into the apartment. Defendant consented to a search of a back
bedroom and attached bathroom that were identified as his.
Defendant was not advised of his Miranda rights prior to being
asked for, and consenting to the search of his apartment, nor was
he advised that he could refuse to give consent. A small, locked
safe was located in the bedroom. Defendant gave the officers the
combination to the safe at their request. Upon opening the safe,
the officers discovered a handgun, approximately 130 grams of
cocaine and several thousand dollars in cash. Defendant was
present when the safe was opened by the officers as well as when
its contents were removed. At no time did defendant say or do
anything to indicate a revocation of his consent.
After searching the apartment and securing the evidence, the
officers transported defendant to the police station for aninterview. After being advised of, and waiving, his Miranda
rights, both orally and in writing, defendant admitted to the
officers that he had purchased or sold drugs multiple times in the
past, including prior transactions with Davis.
Prior to trial, the trial court granted Defendant's motion to
suppress all incriminating statements made prior to being read his
Miranda rights. None of the suppressed statements were submitted
to the jury at trial. The trial court denied defendant's motion to
suppress the physical evidence obtained at the apartment prior to
his being advised of his Miranda rights. The handgun, cocaine and
money found in the safe in defendant's bedroom were submitted to
the jury by the State in its case in chief. The trial court also
denied defendant's motion to suppress post-Miranda statements made
by defendant. Defendant did not testify on his own behalf at
At trial, the court allowed Davis to testify regarding his
prior, uncharged drug transactions with defendant over defendant's
objection that such testimony constituted impermissible character
evidence that was unduly prejudicial to defendant. The trial court
allowed Davis' testimony finding that it was being introduced for
the purpose of showing intent, knowledge, common plan or scheme;
and also, to explain the nature of the relationship between Pernice
Davis and the defendant. A limiting instruction to that effect
was given to the jury by the trial judge at the time the testimony
was presented as well as in the charge to the jury prior to
Following the presentation of all evidence, the jury found
defendant guilty of trafficking by possessing more than two
hundred, but less than four hundred, grams of cocaine. Defendantwas sentenced to an active term of imprisonment of a minimum of
seventy months and a maximum of eighty-four months in the custody
of the North Carolina Department of Correction.
 Defendant appeals
from the conviction and judgment and
assigns as error the trial court's: (1) denying defendant's motion
to suppress testimony of Davis regarding statements ostensibly made
by defendant and contained in an audio tape made by law
enforcement; (2) allowing Davis' testimony as to prior uncharged
drug dealings with defendant; (3) allowing into evidence statements
ostensibly made by defendant to law enforcement while in custody;
(4) allowing into evidence cocaine seized from a safe in
defendant's bedroom; (5) allowing the State to exercise peremptory
challenges in a racially discriminatory manner; (6) denying
defendant's motion for mistrial; (7) allowing Davis' testimony
regarding statements ostensibly made by defendant on the date of
the instant offense; (8) denying defendant's motion to dismiss for
insufficient evidence; (9) jury instruction defining knowledge
for the purpose of trafficking in cocaine; and (10) refusing to
instruct the jury as to entrapment. N.C.R. App. P. 28(b)(6)
provides that [a]ny assignments of error not set out in the
appellant's brief, or in support of which no reason or judgment is
stated or authority cited, will be taken as abandoned. Therefore,
we find that defendant's assignments of error numbers one, five,
six, seven, eight, nine and ten are deemed abandoned as they are
not set out or argued in defendant's brief.
Defendant successfully presented the following issues for
review on appeal:
(2) whether the trial court erred
Davis' testimony regarding prior uncharged drug transactions with
defendant; (3) whether the trial court erred
by allowing theintroduction of defendant's post-Miranda statements; and (4)
whether the trial court erred by denying his motion to suppress
evidence found in the safe in his bedroom
 In an appeal of a denial of a motion to suppress, our
review is limited to whether the trial court's findings of fact are
supported by competent evidence. If competent evidence is found to
exist, the findings of fact are binding on appeal. We must then
limit our review to whether the findings of fact support the trial
court's conclusions of law. State v. Cabe, 136 N.C. App. 510, 512,
524 S.E.2d 828, 830, appeal dismissed, 351 N.C. 475, 543 S.E.2d 496
(2000)(quoting State v. Corpening, 109 N.C. App. 586, 587-88, 427
S.E.2d 892, 893 (1993)(internal citations omitted)).
Here, the trial court allowed the evidence obtained from the
safe on the basis that its discovery was the result of a valid
consent search of defendant's bedroom. The only requirement for a
valid consent search is the voluntary consent given by a party who
had reasonably apparent authority to grant or withhold such
consent. N.C. Gen. Stat. .. 15A-221-222 (2003). Neither our state
law nor federal law requires that any specific warning be provided
to the party whose property is to be searched prior to obtaining
consent for the consent to be valid. Schneckloth v. Bustamonte, 412
U.S. 218, 234, 36 L. Ed. 2d 854, 867 (1973); State v. Vestal, 278
N.C. 561, 579, 180 S.E.2d 755, 767 (1971), cert. denied, 414 U.S.
874, 38 L. Ed. 2d 114 (1973).
In determining whether consent was given voluntarily this
Court must look at the totality of the circumstances. Schneckloth
412 U.S. at 226, 36 L. Ed. 2d at 862; State v. Hardy, 339 N.C. 207,
222, 451 S.E.2d 600, 608 (1994).
Here, there is ample competent
evidence in the record to show defendant, although obviously incustody at the time consent was requested, voluntarily consented to
the search of the bedroom. In fact, defendant does not contest the
fact he gave verbal consent to search the bedroom and the safe
contained therein. There is no evidence in the record, and
defendant makes no argument, that the consent was not made
voluntarily. The evidence presented tended to show defendant did
not appear nervous or scared, was cooperative,
led the officers
to the bedroom, provided the combination to the safe at their
request, was not threatened by the officers and was present
throughout the search and gave no indication he wished to revoke
Defendant argues the evidence found in the safe should have
been suppressed because it was discovered as the result of his pre-
Miranda statement providing the officers with the combination to
the safe. The statements themselves made by defendant prior to
being advised of his Miranda rights, including his statement
regarding the combination to the safe, were properly suppressed at
trial. However, our Supreme Court has held that physical evidence
obtained as a result of statements by a defendant made prior to
receiving the necessary Miranda warnings need not be excluded.
State v. May, 334 N.C. 609, 612, 434 S.E.2d 180, 182 (1993), cert.
denied, 510 U.S. 1198, 127 L. Ed. 2d 661 (1994), see, State v.
Goodman, __ N.C. App. __, 600 S.E.2d 28, 30-31, disc. review
denied, 359 N.C. 193, N.C. LEXIS 1262 (N.C. Ct. App. 2004)(holding
that May is still controlling in North Carolina in light of United
States v. Patane, __ U.S. __, 159 L. Ed. 2d 667, 124 S. Ct. 2620
(2004) in which the U.S. Supreme Court held that the fruit of the
poisonous tree doctrine did not apply to physical evidence
discovered as a result of statements made by the defendant when noMiranda warning was given). We find the trial court's holding that
the contents of the safe were discovered as the result of a valid
consent search to be supported by competent evidence, and therefore
conclude that there was no error in the admission of the physical
evidence found in the safe.
 Defendant next contends the trial court erred in allowing
the testimony of Davis regarding prior, uncharged drug transactions
between himself and defendant. Defendant argues the only purpose
for introducing this testimony was to impugn the character of
defendant which is a purpose specifically prohibited by N.C. Gen.
Stat. . 8C-1, Rule 404(b)(2003).
Rule 404(b) is a rule of 'inclusion of relevant evidence of
other crimes, wrongs or acts by a defendant, subject to but one
exception requiring its exclusion if its only probative value is to
show that the defendant has the propensity or disposition to commit
an offense of the nature of the crime charged.' State v. Scott,
343 N.C. 313, 330, 471 S.E.2d 605, 615 (1996) (quoting State v.
Weathers, 339 N.C. 441, 448, 451 S.E.2d 266, 270 (1994))(emphasis
in original)(internal citations omitted).
Examples of purposes for
which evidence of other crimes, wrongs, or acts are admissible
include: proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake, entrapment or
accident. N.C. Gen. Stat. § 8C- 1, Rule 404(b) (2003).
Here, the trial court found Davis' testimony regarding the
prior, uncharged drug dealings was offered to show intent,
knowledge, common plan or scheme as well as to explain the
relationship between Davis and the defendant
. An appropriate
limiting instruction to that effect was given to the jury both at
the time Davis testified and in the jury instructions. Once the purpose for introducing the evidence has been found
to be proper under Rule 404(b), the court must then determine
whether the probative value of the evidence is substantially
outweighed by the danger of unfair prejudice. N.C. Gen. Stat. §
8C-1, Rule 403; State v. Everhardt, 96 N.C. App. 1, 18, 384 S.E.2d
562, 572 (1989), aff'd, 326 N.C. 777, 392 S.E.2d 391 (1990).
probative value of evidence of prior acts or crimes is determined
by the similarity and temporal proximity. State v. Artis, 325 N.C.
278, 299, 384 S.E.2d 470, 489 (1989), vacated on other grounds, 494
U.S. 1023, 108 L. Ed. 2d 604 (1990)
. The determination of whether
the probative value of the evidence is substantially outweighed by
unfair prejudice is within the sound discretion of the court and
will only be reversed on appeal if the ruling is found to be so
arbitrary that it could not have resulted from a reasoned decision.
State v. Bidgood, 144 N.C. App. 267, 272, 550 S.E.2d 198, 202,
cert. denied, 354 N.C. 222, 549 S.E.2d 647 (2001).
The similarities between the charged offense and the prior
transactions testified to by Davis are numerous. Defendant and
Davis were parties to both the charged transaction and the prior
ones; the prior transactions primarily involved sales of cocaine;
on at least eight occasions the same amount of cocaine was
purchased from defendant as was purchased on 4 March 2002 for the
same price and the majority of the previous transactions occurred
in the same location (the parking lot of defendant's apartment) as
the charged offense. Additionally, the last transaction prior to
the charged offense was conducted only approximately four months
prior to the date of this offense. Based upon the foregoing, we
find that the evidence was admitted for a proper purpose and thatthe trial court did not act arbitrarily in allowing Davis'
testimony regarding the prior drug transactions.
 Finally, defendant argues the trial court erred in
allowing evidence of incriminating post-Miranda statements that
were allegedly induced by the hope of some benefit and therefore
not made voluntarily. The trial court found the statements were
made voluntarily after defendant had been advised of his Miranda
rights and were admissible. The determination of whether
defendant's statements are voluntary "is a question of law and is
fully reviewable on appeal." State v. Greene, 332 N.C. 565, 580,
422 S.E.2d 730, 738(citing State v. Barlow, 330 N.C. 133, 409
An in-custody statement that is made voluntarily and
understandingly is admissible. State v. Schneider, 306 N.C. 351,
355, 293 S.E.2d 157, 160 (1982)
(citing State v. Pruitt, 286 N.C.
442, 212 S.E.2d 92 (1975)). Like the test for whether a consent to
search was given voluntarily, discussed supra
, the test for
determining if a statement was made voluntarily requires the court
to look at the totality of the circumstances. State v. Jackson,
308 N.C. 549, 581, 304 S.E.2d 134, 152 (1983)
. Our Supreme Court
has identified several factors to be considered in evaluating
whether a statement was made voluntarily. These factors include:
whether the defendant was in custody; whether he was deceived;
whether his Miranda rights were honored; whether he was held
incommunicado; the length of his interrogation; if there were
physical threats or shows of force; the familiarity defendant had
with the criminal justice system; whether promises were made to
obtain the statement; and the defendant's mental condition. State
v. Hardy, 339 N.C. 207, 222, 451 S.E.2d 600, 608 (citing Jackson,308 N.C. at 582, 304 S.E.2d at 153)(1994). Statements that were
induced by hope or fear have consistently
been held by our Supreme
Court to have been coerced
psychologically. Greene, 332 N.C. at
581, 422 S.E.2d at 739.
Of the factors identified by the North Carolina Supreme Court,
defendant bases the argument that his statement was coerced solely
on the consideration that promises were made to obtain the
statement. As the appropriate review of the voluntariness of a
statement is the totality of the circumstances, we will address the
evidence in the record pertaining to the other factors briefly
the time of questioning, defendant was a thirty year-old high
school graduate with significant knowledge and experience with the
criminal justice system based upon his numerous prior arrests. The
interview took between one hour and one hour and fifteen minutes
during which time defendant was not threatened nor were any shows
of force made. Defendant was advised, orally and in writing, of
his Miranda rights and he waived those rights, both orally and in
writing. Defendant did not appear scared or intimidated during the
interview and at no time asked for a break or to speak to an
Turning to the question of whether the statement was induced
by promises or hope of benefit, the evidence shows that the
officers, in discussing defendant's situation in general: advised
defendant of the charge, the possible sentence he could receive,
the need for him to be truthful and help himself out by
cooperating; and told defendant that if he cooperated his
cooperation would be related to the District Attorney's Office and
the judge. The officers did not discuss what the specific rewards
or benefits of cooperation might be, nor did they tell defendantthat his sentence would be reduced or the amount of his release
bond was dependent on his cooperation.
A suggestion of hope created by statements of law enforcement
officers that they will talk to the District Attorney regarding a
suspect's cooperation where there is no indication that
preferential treatment might be given in exchange for cooperation
does not render inculpatory statements involuntary. State v.
Branch, 306 N.C. 101, 109-10, 291 S.E.2d 653, 659 (1982). Here,
the officers made general statements that they would advise the
District Attorney and judge of the defendant's cooperation and did
not make any representations regarding what, if any, benefit
defendant's cooperation would bring.
Based upon the foregoing evidence we agree with the trial
court's finding the defendant's post-Miranda statements were made
voluntarily. We hold that the trial court did not err in admitting
defendant's post-Miranda statements.
Judges HUNTER and BRYANT concur.
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