Appeal by defendant from a judgment entered 14 June 2005 by
Judge Ronald E. Spivey in Forsyth County Superior Court. Heard in
the Court of Appeals 10 May 2006.
Attorney General Roy Cooper, by Special Deputy Attorney
General Christine M. Ryan, for the State.
White & Crumpler, by David B. Freedman, for defendant.
BRYANT, Judge.
Kim Tyrone Jessup (defendant) appeals from a judgment entered
14 June 2005 upon a jury verdict convicting him of trafficking in
cocaine by possession and possession of up to one-half ounce of
marijuana. Defendant was sentenced to thirty-five to forty-two
months imprisonment.
The State's evidence showed the following: Detective Tollie
of the Winston Salem Police Department began looking for drug
suspect Cosmo Wilkes (Wilkes) on 1 January 2004. As part of an
ongoing drug investigation, Detective Tollie learned Wilkes would
be returning on a flight from Atlanta to his mother's home that
evening. Detective Tollie observed Wilkes at his mother's home at
approximately 7:30 p.m. accompanied by a female. Police then
observed Wilkes's vehicle parked alongside a second vehicle and sawWilkes hand the driver of the second vehicle a small object cupped
in his hand before he quickly drove off. Recognizing this as a
drug transaction, the police surveillance team then followed
Wilkes, who drove to 2274 Olivet Church Road. Wilkes exited the
vehicle without the female and remained inside for approximately
fifteen minutes. Wilkes then traveled to another nearby residence
and parked some distance down a long driveway. The surveillance
team observed that Wilkes remained there for a few minutes and then
left. Wilkes pulled over when he realized the police were
following him. Police searched Wilkes' vehicle, and discovered
68.9 grams of cocaine and $5,121.00 in U.S. currency, including
five $1,000.00 stacks wrapped in a rubber band in the female's
purse. Police then traveled to the home of Wilkes' mother.
Detective Tollie prepared a search warrant for her home, and the
warrant was executed at approximately 4:00 a.m. on 2 January 2004.
At the home of Wilkes' mother, police located an additional 14.5
grams of cocaine in a duffle bag. Wilkes' mother identified the
bag as belonging to Wilkes and said he had left it there after
arriving from Atlanta. Detective Tollie then applied for a search
warrant to search 2274 Olivet Church Road and one of the vehicles
there.
The warrant to search the residence was issued at 6:10 a.m. on
2 January. In his affidavit in support of the search warrant,
Detective Tollie stated a confidential informant identified one of
Wilkes' customers as a large-scale cocaine trafficker who was a
black male known to go by “Jay.” The confidential informant alsoprovided detailed directions to 2274 Olivet Church Road, where
“Jay”, also known as defendant, Tyrone Jessup, resided. Detective
Tollie advised the search warrant team that he had received
reliable information regarding defendant who resided in the home,
and who was known to frequently carry a handgun. Detective Tollie
indicated that defendant was the owner of the 2274 Olivet Church
Road house. While knocking at the front door, the police waited
for someone to acknowledge them and heard nothing. Detective
Tollie struck the door open with an entry tool. Another detective
entered the house first and observed defendant running down the
steps and pointing a gun at the detectives. Before Detective
Tollie entered, he heard gunfire and upon entering, observed
defendant falling down the lower part of the steps with a gunshot
wound. There was a gun lying beside defendant, and then a female
appeared upstairs on the landing and was taken into custody.
Police located another female downstairs.
In the residence, police found documents addressed to
defendant, including utility bills, papers with phone numbers and
a clear plastic bag with cocaine residue. Police seized a black
leather case containing a plate, plastic bags, hand scales, razor
blade, ledger, and a small caliber handgun magazine. Police also
seized a ledger that contained names and dollar amounts owed,
telephone numbers and notations for “hard” (a street term for crack
cocaine), “soft” (a street term for powder cocaine), and “green” (a
street term for marijuana). Police found another ledger written on
a Federal Express ground receipt bearing defendant's name andaddress. Also found was U.S. currency and several plastic bags
containing crack cocaine, powder cocaine and marijuana with rolling
papers. Scales used to weigh various quantities of drugs, criminal
investigation textbooks and study guides were also found.
Defendant was indicted by a grand jury in Forsyth County on
one count of trafficking cocaine, one count of possession of
marijuana, and two counts of assault with a firearm on a law
enforcement officer. Defendant filed a pretrial motion to suppress
evidence seized pursuant to the search warrant, which motion was
denied after a hearing on 25 April 2005. Defendant was tried
before a jury during the 9 June 2005 Criminal Session of Forsyth
County Superior Court, the Honorable Ronald E. Spivey presiding.
The jury found defendant guilty of trafficking cocaine and
possessing marijuana. Defendant appeals.
_________________________
Defendant raises three issues on appeal: whether the trial
court erred in (I) denying defendant's motion to suppress evidence
seized pursuant to the search warrant; (II) denying defendant's
motion for a mistrial based on a juror's statements; and (III)
denying defendant's motion to dismiss the drug charges for
insufficiency of the evidence.
I
Defendant first argues the trial court erred in denying his
motion to suppress evidence seized pursuant to the search warrant.
Defendant specifically contends the affidavit supporting the searchwarrant failed to establish probable cause and therefore violated
his constitutional rights. We disagree.
When determining whether a search warrant is supported by
probable cause, a reviewing court must apply the totality of the
circumstances test which examines “whether the evidence as a whole
provides a substantial basis” for probable cause to exist.
State
v. Sinapi, 359 N.C. 394, 398, 610 S.E.2d 362, 365 (2005) (citing
Illinois v. Gates, 462 U.S. 213, 238-39, 76 L. Ed. 2d 527, 548
(1983)). In adhering to this standard of review, “great deference
should be paid a magistrate's determination of probable cause and
. . . after-the-fact scrutiny should not take the form of a
de novo
review.”
State v. Arrington, 311 N.C. 633, 638, 319 S.E.2d 254,
258 (1984). It is well settled that a probable cause determination
does not require hard and fast certainty by the officer but
involves more of a common-sense determination considering evidence
as understood by those versed in the field of law enforcement.
State v. Briggs, 140 N.C. App. 484, 493, 536 S.E.2d 858, 863 (2000)
(citation and emphasis omitted). In order for a search to be
valid, it is not required that the affiant or the confidential
informant have actually observed drugs on the premises.
State v.
Crawford, 104 N.C. App. 591, 596, 410 S.E.2d 499, 502 (1991). The
indicia of reliability of an informant's information “may include
(1) whether the informant was known or anonymous, (2) the
informant's history of reliability, and (3) whether information
provided by the informant could be and was independently
corroborated by the police.”
State v. Collins, 160 N.C. App. 310,315, 585 S.E.2d 481, 485 (2003),
aff'd,
358 N.C. 135, 591 S.E.2d
519 (1994).
The constitutionality of the search in the instant case hinges
on whether there was probable cause to issue a search warrant to
search defendant's residence and vehicle located at 2274 Olivet
Church Road. A confidential informant provided significant
information to establish probable cause for the search. The
informant provided detailed information regarding the drug dealing
pattern of Cosmo Wilkes. The informant also provided information
that defendant was a drug dealer supplied by Wilkes, and further
provided accurate information regarding defendant's home and
vehicles. Although this was the first time police used this
confidential informant, the indicia of reliability as to the
information provided established probable cause where the police
were able to independently observe Wilkes' conduct.
See State v.
Trapp, 110 N.C. App. 584, 589-90, 430 S.E.2d 484, 488 (1993)
(anonymous informant's information may provide probable cause if
the informant's information can be independently verified);
see
also Collins, 160 N.C. App. at 315, 585 S.E.2d at 485 (informant's
tip is more reliable if it contains “'a range of details relating
not just to easily obtained facts and conditions existing at the
time of the tip, but to future actions of third parties ordinarily
not easily predicted'”) (citation omitted). Police saw
Wilkes
traveling in the vehicle described by the informant, participate in
a drug transaction with someone in a vehicle, and then travel to
defendant's home. Wilkes then made a third stop at a house for afew minutes, and when searched after this stop, he possessed a
large amount of cocaine and U.S. currency. After searching the
home of Wilkes' mother, police seized more cocaine and electronic
scales. The combination of the officers' years of training,
knowledge and experience along with the events of 1 January
established probable cause to believe that there would be drugs and
related paraphernalia at 2274 Olivet Church Road.
See State v.
Bone, 354 N.C. 1, 10, 550 S.E.2d 482, 488 (2001) (holding that an
officer may rely upon information received through an informant
“'so long as the informant's statement is reasonably corroborated
by other matters within the officer's knowledge'”) (citation
omitted),
cert. denied, 535 U.S. 940, 152 L. Ed. 2d 231 (2002).
Based on the totality of the circumstances, the evidence as a
whole provided a substantial basis to support the magistrate's
determination of probable cause to search defendant's residence and
vehicle.
See State v. Fowler, 89 N.C. App. 10, 15, 365 S.E.2d 301,
304 (1988) (“Applying the practical common sense approach mandated
by the 'totality of the circumstances' analysis, this Court finds
there was a substantial basis for the [magistrates conclusions
based on the affidavits]. Accordingly, we conclude adequate
probable cause, based upon the [confidential] informant's tip and
the police investigation, existed for issuance of the search
warrant.”). This assignment of error is overruled.
II
Defendant next argues the trial court erred in denying
defendant's motion for a mistrial based on a juror's response towhether she could be fair and impartial in her deliberations. Our
review of the dialogue between the trial court and the juror
indicates the trial court did not abuse its discretion in denying
defendant's motion for a mistrial.
“The judge must declare a mistrial upon the defendant's motion
if there occurs during the trial an error or legal defect in the
proceedings, or conduct inside or outside the courtroom, resulting
in substantial and irreparable prejudice to the defendant's case.”
N.C. Gen. Stat. § 15A-1061 (2005). A trial court's ruling on a
motion for mistrial is not reviewable on appeal absent the
appearance of a manifest abuse of discretion.
State v. Green, 95
N.C. App. 558, 564, 383 S.E.2d 419, 422 (1989).
After deliberating, the jury announced that it had reached
unanimous guilty verdicts on all counts. Upon polling the jury,
the juror was asked:
CLERK: Are these your verdicts?
JUROR: Yes.
CLERK: Do you still assent thereto?
JUROR: No.
THE COURT: Your answer is no?
JUROR: Answer is no.
At that point, the trial court requested that verdict sheets
be returned to the jury for further deliberations. A few minutes
later, the jury requested a break and the trial court granted a
twenty minute recess. The trial court then received notice that a
member of defendant's family had caused a scene in the lobby,possibly in the presence of some of the jurors. Once the jury
returned, the trial court individually questioned those jurors who
indicated they had seen the disturbance in the lobby. The juror in
question was called on by the trial court to clarify her commitment
to deliberate.
During the second round of questioning by the trial court, the
juror indicated that she did not think she would ever agree with
the other jurors. The trial court continued:
THE COURT: [D]o you feel that you could
continue to deliberate on these matters and be
fair and impartial to both sides?
JUROR: Keeping the same feeling that I have?
THE COURT: If that's your feeling, yes, ma'am.
JUROR: Yes, sir.
The trial court clarified:
THE COURT: Okay but you feel that you could
still sit and deliberate with your fellow
jurors and be fair and impartial to both sides
no matter what your ultimate resolution of the
case is?
JUROR: Yes, sir.
THE COURT: Okay, So you feel that you could
then continue to be fair and impartial if
called upon to deliberate further?
JUROR: Yes, sir.
When asked directly during the second round of questioning from the
trial court, the juror asserted three separate times that she
could, in fact, continue to deliberate and be fair and impartial to
the defendant. Based on the entire colloquy between the juror and
the trial court, the trial court did not abuse its discretion bydenying defendant's motion for a mistrial.
See State v.
Rutherford, 70 N.C. App. 674, 320 S.E.2d 916 (1984) (denial of the
defendants' motion for a mistrial pursuant to N.C. Gen. Stat. §
15A-1061 was not error where the victim had a conversation with a
juror because the trial court held a
voir dire hearing to ensure
that no prejudice resulted and that the due process requirement of
impartiality was maintained). This assignment of error is
overruled.
III
Defendant argues the trial court erred in denying his motion
to dismiss for insufficiency of the evidence of the drug charges.
We disagree.
“The substantial evidence test requires a determination that
there is substantial evidence (1) of each essential element of the
offense charged, and (2) that the defendant is the perpetrator of
the offense.”
State v. Jones, 110 N.C. App. 169, 177, 429 S.E.2d
597, 602 (1993) (citation omitted),
cert. denied, 336 N.C. 612, 447
S.E.2d 407 (1994). “Substantial evidence is that amount of
relevant evidence that a reasonable mind might accept as adequate
to support a conclusion.”
State v. Cox, 303 N.C. 75, 87, 277
S.E.2d 376, 384 (1981) (citation omitted). In ruling on a motion
to dismiss, all evidence admitted must be considered 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). To convict defendant of trafficking in cocaine in violation of
N.C. Gen. Stat. § 90-95(h)(3), the state must show that defendant
sold, manufactured, delivered, transported or possessed more than
28 and less than 200 grams of cocaine or its derivatives. N.C.
Gen. Stat. § 90-95(h)(3)(a);
see State v. Rogers, 32 N.C. App. 274,
278, 231 S.E.2d 919, 922 (1977). To convict defendant of
possession of marijuana in violation of N.C. Gen. Stat. §
90-95(d)(4), the state must show defendant possessed one half ounce
or less of marijuana. N.C. Gen. Stat. § 90-95(d)(4);
see State v.
Partridge, 157 N.C. App. 568, 571, 579 S.E.2d 398, 399-400,
disc.
rev. improvidently allowed, 357 N.C. 572, 597 S.E.2d 673 (2003).
In the case at bar, defendant argues the State failed to prove
defendant possessed the drugs found in his residence. It is well
established that a trafficking charge can be proved by actual or
constructive possession of an adequate quantity of drugs.
Constructive possession of a substance exists when the defendant
“has both the power and intent to control its disposition or use.”
State v. Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714 (1972). If
defendant does not have exclusive control over the premises, there
must be present other incriminating circumstances before the court
can find constructive possession.
State v. Autry, 101 N.C. App.
245, 253, 399 S.E.2d 357, 362 (1991). Also, the State may overcome
a motion to dismiss by presenting evidence which places the accused
“within such close juxtaposition to the narcotic drugs as to
justify the jury in concluding that the same was in hispossession.”
State v. King, 99 N.C. App. 283, 288, 393 S.E.2d 152,
155 (1990) (internal citations omitted).
The police determined defendant owned the residence at 2274
Olivet Church Road. There were utility bills and a shipping label
addressed to defendant found at that address. Defendant came
running downstairs with a handgun when the police entered to
execute the search warrant. The gun defendant pointed at police
matched the handgun magazine found inside a leather case with the
drug paraphernalia in the residence. Although two women were
apprehended at 2274 Olivet Church Road, direct information gathered
during the drug investigation and circumstantial evidence located
during the search indicated defendant was the owner of the
property. Taken in the light most favorable to the State, there
was substantial evidence before the jury to show defendant's
possession of the drugs. Therefore the trial court properly denied
defendant's motion to dismiss. This assignment of error is
overruled.
No error.
Judges HUNTER and CALABRIA concur.
Report per Rule 30(e).
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