Appeal by defendant from judgments entered 11 January 2006 by
Judge W. Russell Duke, Jr., in Pasquotank County Superior Court.
Heard in the Court of Appeals 12 April 2007.
Attorney General Roy Cooper, by Robert T. Hargett, Special
Deputy Attorney General, for the State.
McCotter, Ashton & Smith, P.A., by Rudolph A. Ashton, III, and
Charles K. McCotter, Jr., for defendant-appellant.
LEVINSON, Judge.
Joseph Lamar Stokley (defendant) was tried by a jury
beginning 6 January 2006, on charges of trafficking in cocaine by
possession, possession with intent to sell and deliver cocaine, andintentionally maintaining a dwelling for keeping and selling
controlled substances. He was found guilty as charged, and now
appeals from judgments entered upon his convictions. We find no
error.
The State's trial evidence tended to show, in pertinent part,
the following: Sergeant Gary Bray of the Elizabeth City Police
Department testified that in 2005 he was in charge of the city's
drug investigation unit. In May 2005 he received complaints about
an excessive amount of foot traffic on Glade Street in Elizabeth
City. When Sgt. Bray noticed a lot of traffic around the house at
112 Glade Street, he investigated and learned that defendant lived
there and that the utility bills were in his name. On 10 May 2005
Sgt. Bray opened an investigation into possible drug sales at 112
Glade Street. He used a confidential informant (CI) to make a
controlled purchase of a small amount of cocaine from defendant.
After the controlled buy, Sgt. Bray began surveillance of 112 Glade
Street. He testified that on at least ten different occasions he
watched the residence from a hidden location, and that on “all
occasions I would see Mr. Stokley” at home, usually on the front
porch of the house. Sgt. Bray observed “a ton of foot traffic,”
including ten to twelve “individuals that [he] previously knew from
arrests for narcotics violations.” He also saw defendant engaging
in at least five “hand-to-hand transactions” wherein a person would
approach defendant's house but stay just long enough for a brief
conversation and the exchange of items between the two. On 20 May 2005 Sgt. Bray applied for and was issued a search
warrant for defendant's house. He executed the search warrant that
evening, with the assistance of Elizabeth City Police Department's
SWAT team. Members of the SWAT team entered the house first “to
secure the residence.” Thereafter, Sgt. Bray went inside to search
for drugs. When Sgt. Bray entered defendant's house, he saw three
other people inside in addition to defendant: a man named Gerald
Patterson, known to Sgt. Bray as a drug user; and a teenage girl
and a younger boy. The younger people and Patterson were escorted
outside. The defendant was “in the kitchen area” when Sgt. Bray
went inside. After identifying himself and explaining to defendant
why he was there, Sgt. Bray and the other officers conducted a
“detailed search of the residence.” In the living room they found
marijuana and a crack pipe under the sofa. Patterson admitted that
the pipe was his. There was a bag of marijuana on the kitchen
counter and a set of scales in the pantry. On top of the
refrigerator they found what was later determined to be 5.6 grams
of cocaine in a child's plastic Easter egg, and another 28.2 grams
of cocaine in a bag under a cheerleading pompom.
Currituck County Deputy Randy Jones testified that in May 2005
he was commander of the Elizabeth City Police Department's SWAT
team, and had taken part in the search of defendant's house. His
testimony generally corroborated that of Sgt. Bray regarding the
individuals in the house when the search warrant was executed,
their locations in the house, Patterson's reputation as a drug
user, and the drugs found in the house. When Jones entered thehouse the defendant was in the kitchen doorway, and the
refrigerator was within arm's reach.
Defendant's evidence, as pertinent to the issues on appeal, is
summarized as follows: The defendant testified that he lived at
112 Glade Street, that he was the only adult living there, and that
he was at home on the afternoon of 20 May 2005. After socializing
with friends in the back yard, defendant came inside and went
upstairs to take a shower and change clothes. While he was
upstairs, Gerald Patterson began shouting to him that an individual
named Luke Stallings had come into the house. Defendant knew
Gerald Patterson, his first cousin, as both a drug user and drug
dealer. When defendant came downstairs, he saw law enforcement
officers entering the house. He denied selling drugs or knowing
that drugs were in the house.
On cross-examination, defendant testified that he had seen
Gerald Patterson in possession of drugs, and that he had given
Patterson money to buy him a bag of marijuana. He admitted to
previous convictions for possession with intent to sell cocaine and
taking indecent liberties with a minor. He had ten to fifteen
adult visitors a day, but denied selling drugs to anyone.
The jury found defendant guilty of the charged offenses, and
the trial court sentenced defendant to consecutive prison terms of
thirty-five to forty-two months for trafficking in cocaine by
possession; ten to twelve months for possession with intent to sell
and deliver cocaine, and 120 days for the misdemeanor ofmaintaining a dwelling for keeping and selling controlled
substances. From these judgments defendant appeals.
[1] Defendant argues first that the trial court erred by
denying his motion to suppress evidence seized pursuant to the
search warrant obtained by Agent Bray. Defendant contends that the
search warrant was not supported by probable cause, in violation of
his rights under the U.S. and N.C. Constitutions. We disagree.
Agent Bray applied for a search warrant on 20 May 2005. In
support of his application, Gray gave a sworn statement as follows:
On 5/10/2005, Agent Gary Bray, hereafter
referred to as Affiant, met with a reliable
and confidential informant, hereafter referred
to as CI, regardless of race or sex. CI
stated that CI had bought crack cocaine from
Joseph Stokley at 112 Glade Street. CI stated
that CI had bought crack cocaine from Joseph
Stokley on several occasions in the last few
months. CI stated that CI would go to the
residence at 112 Glade Street and ask for a
“Twenty” and that Joseph Stokley would give CI
a piece of crack cocaine for $20.00 in US
Currency. CI stated that sometimes Joseph
Stokley would have the crack cocaine on him
and that sometimes Joseph Stokley would have
to go back into the residence and bring it
out.
Within the last 3 days, Affiant supplied CI
with funds to purchase crack cocaine from
Joseph Stokley at 112 Glade Street. CI was
searched and found to have no contraband.
Affiant observed CI go to 112 Glade Street and
enter the residence. A few minutes later,
Affiant observed CI leave the residence and
then met with CI. CI turned over to Affiant a
piece of off white rock like substance, which
tested positive for cocaine. CI was searched
and found to have no contraband. CI stated
that CI went to 112 Glade Street and knocked
on the door and Joseph Stokley came to the
door. CI stated that CI went into the livingroom area and asked for a “Twenty”. CI stated
that Joseph Stokley pulled a piece of off
white rock like substance from his pants
pocket and handed the object to the CI. CI
stated that CI then gave Joseph Stokley $20.00
US Currency and then left the residence.
Affiant maintained visual contact with CI
until CI met with Affiant.
Affiant checked the Tax records and found the
residence to be owned by Joseph Stokley. A
check of the Elizabeth Public Utilities found
the electricity to be in the name of Joseph
Stokley.
Affiant conducted surveillance on the
residence at least 5 times in the last 10
days. Affiant witnessed a large amount of
foot traffic entering the residence and
leaving after a short period of time. Affiant
also observed a black male that Affiant
identified as Joseph Stokley sitting on the
porch of 112 Glade Street make several hand to
hand transactions that Affiant believes to be
illegal narcotic sales.
Affiant has known CI for 6 months and has
always known CI to be truthful and reliable.
CI has given Affiant [information] that has
led to the arrests of at least 30 persons for
controlled substance violations. CI is
familiar with crack cocaine and how it is used
and purchased.
Affiant has been employed with the Elizabeth
City Police Department for 5 years and has
been involved with over 15 drug operations
that have led to the arrest of at least 100
persons for controlled substance violations.
Affiant has at least 250 hours of training in
drug identificatio[n]/investigation from the
North Carolina Justice Academy and Wilson
Technical Institute.
Defendant does not challenge the factual accuracy of the
statements in the affidavit, and supports his contention that the
search warrant was not based on probable cause with the conclusory
statement that the “failure of the affidavit to establishreasonable grounds to believe that the crime was occurring on the
premises to be searched invalidates the warrant issued thereon.”
We disagree.
“Probable cause to search exists if a person of ordinary
caution would be justified in believing that what is sought will be
found in the place to be searched. . . . [A]ppellate court review
of a magistrate's probable cause decision . . . is limited to
whether 'the evidence as a whole provided a substantial basis for
a finding of probable cause[.]'” State v. Barnhardt, 92 N.C. App.
94, 96, 97, 373 S.E.2d 461, 462 (1988) (quoting State v. Arrington,
311 N.C. 633, 640, 319 S.E.2d 254, 258 (1984)).
In the instant case, the affidavit states that: (1) a CI had
bought cocaine from defendant, at defendant's house, several times;
(2) Gray knew and trusted the CI, who had provided reliable
information in the past; (3) after meeting with Gray, the CI made
a controlled buy of cocaine from defendant, at defendant's house;
and (4) during Gray's surveillance of defendant's house, he saw
many people visiting the house for a short time and witnessed
several hand-to-hand transactions between defendant and visitors to
his house. We easily conclude that this affidavit is sufficient to
establish probable cause for the issuance of a search warrant.
This assignment of error is overruled.
[2] Defendant argues next that the trial court erred by
denying his motion seeking the identity of the CI. We disagree. A criminal defendant's right to disclosure of the identity of
a confidential informant is addressed in N.C. Gen. Stat. § 15A-978
(2005), which states in pertinent part that:
(b) In any proceeding on a motion to suppress
evidence pursuant to this section in which the
truthfulness of the testimony presented to
establish probable cause is contested and the
testimony includes a report of information
furnished by an informant whose identity is
not disclosed in the testimony, the defendant
is entitled to be informed of the informant's
identity unless:
(1) The evidence sought to be suppressed was
seized by authority of a search warrant[.] . .
. The provisions of subdivisions (b)(1) and
(b)(2) do not apply to situations in which
disclosure of an informant's identity is
required by controlling constitutional
decisions.
G.S. § 15A-978(b).
“In
Roviaro v. United States, 353 U.S. 53, 1 L. Ed. 2d 639,
(1957), the United States Supreme Court held it was error not to
order the Government to reveal the name of an informant when it was
alleged that the informant actually took part in the drug
transaction for which the defendant was being tried. The Supreme
Court recognized the State has the right to withhold the identity
of persons who furnish information to law enforcement officers, but
said this privilege is limited by the fundamental requirements of
fairness.”
State v. Leazer, 337 N.C. 454, 459, 446 S.E.2d 54, 57
(1994).
Roviaro held that “no fixed rule with respect to
disclosure is justifiable. . . . Whether a proper balance renders
nondisclosure erroneous must depend on the particular circumstances
of each case, taking into consideration the crime charged, the
possible defenses, the possible significance of the informer'stestimony, and other relevant factors.”
Roviaro, 353 U.S. at 62,
1 L. Ed. 2d at 646.
“The privilege of nondisclosure, however, ordinarily applies
where the informant is neither a participant in the offense, nor
helps arrange its commission, but is a mere tipster who only
supplies a lead to law enforcement officers.”
State v. Grainger,
60 N.C. App. 188, 190, 298 S.E.2d 203, 204 (1982) (citations
omitted). Moreover, “[b]efore the courts should even begin the
balancing of competing interests which
Roviaro envisions, a
defendant who requests that the identity of a confidential
informant be revealed must make a sufficient showing that the
particular circumstances of his case mandate such disclosure.”
State v. Watson, 303 N.C. 533, 537, 279 S.E.2d 580, 582 (1981).
This Court has held:
Upon a motion by defendant that the identity
of a confidential informant be revealed, the
trial court should first hold a hearing
outside the presence of the jury to consider
the question. Defendant must present evidence
supporting the necessity of having the
identity of the confidential informant
revealed, following which the State may
present evidence in opposition to defendant's
motion. Upon reviewing the evidence and
arguments by defendant and the State, the
trial court may then either grant or deny
defendant's motion, making the necessary
findings of fact and conclusions of law in
support of its decision.
State v. Moctezuma, 141 N.C. App. 90, 97, 539 S.E.2d 52, 57 (2000).
In the instant case, defendant was charged with possession
offenses, and not with selling drugs to the CI, as was the case in
Roviaro. The evidence was uncontradicted that the CI's only rolewas to make a controlled buy of cocaine as part of the initial
police investigation into drug sales at defendant's address. The
controlled buy took place several days before the issuance of the
search warrant, and no evidence was presented suggesting that the
CI was present when the police searched defendant's house. At the
pretrial hearing on defendant's motion for disclosure of the CI's
identity, defendant asserted that there were reasonable grounds to
believe that the CI was an “accomplice” to the charged offenses.
However, defendant presented no evidence in support of this
allegation. On this record, we conclude that defendant failed to
meet his burden of showing a need for the CI's identity and that
the trial court did not err by denying defendant's pretrial motion.
[3] On appeal, defendant argues that the CI could have offered
testimony helpful to his defense, citing his own testimony that he
didn't know drugs were in his house and that several people had
access to his house. Defendant contends that the CI might have
testified that it was not defendant who sold him drugs during the
controlled buy.
Such testimony would have contradicted Sgt. Bray's testimony
that the CI said he bought drugs from defendant. Defendant neither
objected to the introduction of the officer's testimony about the
controlled buy or any of the statements made to him by the CI, nor
asked for an instruction limiting the jury's consideration of the
statements by the CI. All of the evidence related to the
controlled buy, then, could have helped the State establish that
defendant had knowledge of contraband inside the residence.
SeeState v. Dyson, 165 N.C. App. 648, 652, 599 S.E.2d 73, 76
(2004)(“[W]hen admitted without objection, otherwise inadmissible
hearsay may be considered with all the other evidence and given
such evidentiary value as it may possess.”);
see also State v.
Featherson, 145 N.C. App. 134, 137, 548 S.E.2d 828, 831
(2001)(prior inconsistent statements admitted without objection
properly considered substantive evidence).
Here, defendant failed to renew his pretrial motion for
disclosure of the CI's identity, and never asked the trial court to
reconsider its pretrial ruling in light of the trial evidence. At
the time of the pretrial motion to compel disclosure of the CI, the
trial court was presented with a forecast of evidence that did not
include the possibility that hearsay statements made by the CI
might be probative of any material fact associated with the
offenses for which he stood accused. This assignment of error is
overruled.
We have considered defendant's remaining arguments on appeal
and conclude that they are without merit. We further conclude that
defendant had a fair trial, free of prejudicial error.
No error.
Judges BRYANT and STEELMAN concur.
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