Appeal by defendant from judgment entered 28 April 2005 by
Judge W. Robert Bell in Gaston County Superior Court. Heard in the
Court of Appeals 16 August 2006.
Attorney General Roy Cooper, by Assistant Attorney General
William B. Crumpler, for the State.
Mercedes O. Chut for defendant-appellant.
Defendant Roy Edward Davis appeals his convictions for the
sale of cocaine, delivery of cocaine, and two counts of possession
with the intent to sell and deliver cocaine. On appeal, defendant
primarily argues that the trial court erred in denying his motion
to suppress evidence seized during a search of his residence. We
hold that the trial court properly concluded that the affidavit
submitted in support of the application for a search warrant was
sufficient to establish probable cause and that, contrary to
defendant's contention, no hearing was necessary in light of the
arguments asserted in defendant's motion to suppress. We find
defendant's remaining arguments to be without merit with the
exception of defendant's contention that he could not be sentencedfor both the sale of cocaine and the delivery of cocaine arising
out of a single transaction. As the State concedes, defendant's
sentencing for both sale and delivery is precluded by State v.
Moore, 327 N.C. 378, 395 S.E.2d 124 (1990). We, therefore, hold
that defendant received a trial free of prejudicial error, but
remand for resentencing.
The State's evidence tended to show the following facts.
Between March and September 2003, detectives of the Mount Holly
Police Department carried out a series of six controlled drug
purchases from defendant with the help of informants. With respect
to each controlled purchase, Detective Kenny Brooks would search
the informant prior to providing the informant with the money for
the purchase of cocaine. In each instance, the informant returned
with a plastic bag containing a substance that resembled illegal
narcotics. The informants were then searched a second time. The
purpose of the searches was to ensure that the informants did not
have contraband or money in their possession before the drug buy
and that they did not retain any drugs or money after the buy.
Testing by the State Bureau of Investigation ("SBI") determined
that the substances in the bags were cocaine on five occasions and
marijuana on one occasion.
The first controlled purchase was conducted on 27 March 2003.
Detective Brooks and another officer, Fred Tindall, drove the
informant, Samuel Reid, to a location on North Lee Street in Mount
Holly known for drug dealing. The officers dropped off Reid andset up a surveillance position about 75 to 100 yards away. From
that position, Detective Brooks, who was using binoculars, observed
defendant pull a plastic bag from his pocket. Reid then gave
defendant money in exchange for the plastic bag. According to the
SBI report, the bag contained .60 grams of cocaine.
Following five more purchases _ four by Reid and one by a
second informant, Patricia Bishop _ Detective Brooks obtained a
search warrant authorizing a search of defendant's person; his
residence at 421 Dutch Avenue, Mount Holly, North Carolina; and a
white metal building in the back yard of defendant's residence. On
19 September 2003, officers executed the search warrant and found
cocaine, totaling 1.5 grams, inside defendant's backyard shed and
inside his house in a basket of yarn. After waiving his Miranda
rights, defendant told the police that he obtained his drugs from
different people, that he was only the middle man, and that "if
you'll work with me, I can get you who you need, because I know I'm
going to jail, but hopefully I can reduce my time."
On 15 December 2003, defendant was indicted for selling
cocaine on 27 March 2003, delivering cocaine on 27 March 2003,
possession with intent to sell or deliver cocaine on 27 March 2003,
and possession with intent to sell or deliver cocaine on 19
(See footnote 1)
Defendant was also indicted for attaining thestatus of habitual felon. Defendant filed a motion to suppress the
evidence seized from his property. Following denial of his motion
to suppress, he pled not guilty. A jury convicted him of all the
charges stemming from both the 27 March 2003 controlled purchase
and from the 19 September 2003 search and seizure. After pleading
guilty to attaining the status of a habitual felon, defendant was
sentenced on all the charges to a single term of 168 to 211 months
Motion to Suppress Evidence
Defendant argues that the trial court erred in summarily
denying his motion to suppress. N.C. Gen. Stat. § 15A-977(c)
(2005) provides that:
The judge may summarily deny the motion to
suppress evidence if:
(1) The motion does not allege a legal
basis for the motion; or
(2) The affidavit does not as a matter
of law support the ground alleged.
Construing N.C. Gen. Stat. § 15A-977, our Supreme Court had held
that "a motion to suppress . . . should state the legal ground upon
which it is made and should be accompanied by an affidavit
containing facts supporting the motion. If the motion fails to
allege a legal or factual basis for suppressing the evidence, it
may be summarily dismissed by the trial judge." State v.
, 300 N.C. 621, 625, 268 S.E.2d 510, 514 (1980)
(internal citations omitted).
Defendant's motion to suppress asserted two grounds: (1) "That
Detective M.K. Brooks and other officers searched locations notspecified in the application for a search warrant"; and (2) "That
the affidavit in support of the search warrant application was
insufficient to establish probable cause in issuance of said search
warrant." In support of this motion, defendant's counsel submitted
an affidavit that stated in its entirety:
1. That I am an attorney at law,
licensed to practice law in the State of North
Carolina and am the Court appointed counsel
for the above-named Defendant in the above-
2. Counsel for the Defendant is
informed, believes and therefore alleges that
the State intends to introduce evidence
allegedly obtained as a result of a search
warrant issued on September 19, 2003.
3. That the undersigned is informed,
believes and therefore alleges that officers
executing the search warrant searched
locations on the premises not named in the
4. That the undersigned is informed and
believes and therefore alleges that the
supporting affidavit for the search warrant
application did not contain credible, reliable
and sufficient information to establish
5. That the evidence allegedly obtained
as a result of the execution of the search
warrant issued on September 19, 2003, was
obtained in substantial violation of Chapter
15A of the North Carolina General Statutes.
The trial court summarily denied the motion on the grounds that the
supporting affidavit was inadequate.
N.C. Gen. Stat. § 15A-977(a) provides that a motion to
suppress "must be accompanied by an affidavit containing facts
supporting the motion." It further provides that the affidavit
"may be based upon personal knowledge, or upon information andbelief, if the source of the information and the basis for the
belief are stated." Id. Thus, the affidavit (1) must contain
facts to support the motion and (2) if based upon information and
belief, must include the source of the information and the basis
for the belief.
Here, counsel's affidavit stated no facts supporting
defendant's contention that the search warrant application did not
contain credible or reliable information. Moreover, any facts set
forth in the affidavit _ such as the general statement that the
officers searched locations not named in the search warrant _ were
asserted only upon information and belief. Yet, the affidavit does
not contain either the source of the information or the basis for
the belief. Accordingly, the affidavit submitted in support of the
motion to suppress did not comply with N.C. Gen. Stat. § 15A-
977(a). The trial court, therefore, was not required to hold a
hearing with respect to defendant's claims that the information in
the search warrant application was not credible or reliable and
that locations outside the scope of the warrant were searched. See
State v. Langdon, 94 N.C. App. 354, 357, 380 S.E.2d 388, 390 (1989)
(where defendant's affidavit contained no facts to support her
allegation of bad faith, the motion to suppress was subject to
summary denial); State v. Blackwood, 60 N.C. App. 150, 151-52, 298
S.E.2d 196, 198 (1982) (recognizing summary denial of suppression
motion as proper when defendant's affidavit alleged no facts
relevant to disputed seizure). The only ground left for the motion to suppress is whether the
information contained in the affidavit was sufficient to establish
probable cause for the search. This Court has stated that when
"the defendant's only challenge is to the sufficiency of the
affidavit supporting the search warrant, the trial judge [may]
summarily den[y] the motion without a hearing." State v. Rutledge,
62 N.C. App. 124, 125, 302 S.E.2d 12, 13 (1983). Since, in this
case, the only issue properly before the trial court was the
sufficiency of the search warrant affidavit, the court did not err
in summarily denying defendant's motion to suppress.
With respect to defendant's argument that the search warrant
application did not contain information sufficient to establish
probable cause, the existence of probable cause is determined using
a "totality of the circumstances" test. State v. Arrington, 311
N.C. 633, 643, 319 S.E.2d 254, 260-61 (1984). As this Court set
forth in State v. Reid, 151 N.C. App. 420, 566 S.E.2d 186 (2002):
"The standard for a court reviewing the
issuance of a search warrant is whether there
is substantial evidence in the record
supporting the magistrate's decision to issue
. . .
Whether an applicant has submitted
sufficient evidence to establish probable
cause to issue a search warrant is a
nontechnical, common-sense judgment of laymen
applying a standard less demanding than those
used in more formal legal proceedings. The
affidavit [in support of an application for a
search warrant] is sufficient if it supplies
reasonable cause to believe that the proposed
search for evidence probably will reveal the
presence upon the described premises of the
items sought and that those items will aid inthe apprehension or conviction of the
Id. at 423-24, 566 S.E.2d at 189 (first alteration and internal
quotation marks omitted) (quoting State v. Ledbetter, 120 N.C. App.
117, 121-22, 461 S.E.2d 341, 343-44 (1995)).
In this case, Detective Brooks set out in his affidavit that
he had initiated or participated in more than 100 drug cases and
was familiar with the typical activities and practices of drug
dealers in the area. He reported that he had received information
that defendant was selling drugs from his residence at 421 Dutch
Avenue and that there was "a large amount of vehicle and foot
traffic that goes to the house, stays approximately five minutes
and leaves," a pattern that Detective Brooks described as "typical
of people selling drugs." The affidavit then asserted that
Detective Brooks arranged for controlled purchases of drugs by
confidential informants on 27 August 2003 and 18 September 2003
(the day before the application for a search warrant). According
to the affidavit, on 27 August 2003, the informant purchased $80.00
of cocaine from defendant at 421 Dutch Avenue, while on 18
September 2003, the informant purchased marijuana from defendant
who was, on that occasion, in a homemade shed in the yard of 421
Dutch Avenue. The affidavit also noted that Detective Brooks had
"other controlled substance buys from [defendant]" on four other
This information is more than adequate to support the
existence of probable cause in this case. See State v. Boyd, ___
N.C. App. ___, ___, 628 S.E.2d 796, 801 (2006) (probable cause tosearch existed when there was an unusual amount of traffic to and
from house, confidential informant succeeded in making a controlled
buy, and informant identified defendant as the seller of the
drugs); State v. Collins, 56 N.C. App. 352, 355, 289 S.E.2d 37, 39
(1982) (probable cause to search existed when officer watched
informant enter house and return several minutes later with LSD
that he gave to officer); State v. McLeod, 36 N.C. App. 469, 472,
244 S.E.2d 716, 719 (probable cause to search existed when officer
watched informant enter building and return with marijuana that he
gave to officer), disc. review denied, 295 N.C. 555, 248 S.E.2d 733
(1978). While defendant contends that the affidavit was required
to establish the credibility and reliability of the informant, this
Court has rejected that argument in the context of controlled
purchases. See Boyd, __ N.C. App. at __, 628 S.E.2d at 801 (no
showing of credibility or reliability required where informant
succeeded in making controlled buy, promptly returned to officers
with drugs, and identified defendant as seller). Accordingly, the
trial court properly denied defendant's motion to suppress.
Defendant contends that the trial court erred in allowing
testimony by the officers regarding the confidential informants'
communications with the police. Defendant argues that the
testimony was not only inadmissible hearsay, but also violated
defendant's Sixth Amendment right to confront and cross-examine
witnesses for the State. Defendant, however, failed to object to this testimony on any
basis at trial. As to the Sixth Amendment argument, it is well
settled that this Court will not review constitutional questions
that "are not raised or passed upon in the trial court . . . ."
State v. Elam,
302 N.C. 157, 160-61, 273 S.E.2d 661, 664 (1981).
We also note that defendant's assignment of error relating to the
Sixth Amendment Confrontation Clause violates N.C.R. App. P.
10(c)(1) by citing to a block of more than 70 pages of the trial
transcript. N.C.R. App. P. 10(c)(1) explains that "[a]n assignment
of error is sufficient if it directs the attention of the appellate
court to the particular error about which the question is made,
with clear and specific record or transcript references." A
citation to a 70-page section of the transcript is hardly "clear
and specific." See State v. Roache
, 358 N.C. 243, 288, 595 S.E.2d
381, 411 (2004) ("meaningful review" frustrated where defendant's
assignment of error referenced entirety of witness' testimony
rather than specific portions).
With respect to defendant's hearsay argument, he listed only
three pages of transcript in support of his assignment of error
that "[t]he Trial Court erred in allowing hearsay testimony about
confidential informants' communications to police where the
informants never testified." In his brief, however, defendant
fails to distinguish between his hearsay argument and his Sixth
Amendment argument and does not cite to or quote from the
transcript in arguing that inadmissible hearsay was allowed to beheard by the jury. The brief contains no indication as to which
specific testimony defendant considers to be inadmissible hearsay.
Similarly, in State v. Cheek
, 351 N.C. 48, 71, 520 S.E.2d 545,
558 (1999), cert. denied
, 530 U.S. 1245, 147 L. Ed. 2d 965, 120 S.
Ct. 2694 (2000), "defendant fail[ed] to refer to any specific
ruling made by the trial court. Additionally, defendant [did] not
provide any citations to the record or transcript." The Court
held: "Because defendant does not present this portion of this
assignment of error in a way for this Court to give it meaningful
review, we conclude defendant has abandoned his argument under this
assignment of error." Id.
Even if we did not deem this argument abandoned, a review of
the three pages cited under the pertinent assignment of error
indicates that, on one occasion, defense counsel did not clearly
object on hearsay grounds and, in any event, did not again object
when the same information was subsequently admitted. On a second
occasion, the objection was sustained, but, even so, a page later,
the same information was admitted without objection. Under those
circumstances, review would only be available under the doctrine of
plain error, yet defendant's assignment of error relating to
hearsay does not refer to plain error. See State v. Robinson
N.C. 320, 339, 561 S.E.2d 245, 257-58 (refusing to review for plain
error under N.C.R. App. P. 10(c)(4) when plain error was not
alleged in the assignments of error), cert. denied
, 537 U.S. 1006,
154 L. Ed. 2d 404, 123 S. Ct. 488 (2002). Only on one occasion was
the hearsay objection properly made and overruled. In any event, the testimony on these three pages related to
transactions occurring on 16 May 2003 and 8 September 2003. Since
defendant acknowledges in his brief that he was acquitted of the
charges relating to those transactions, defendant has failed to
demonstrate that he was prejudiced by the admission of that
N.C. Gen. Stat. § 15A-1443(a) (2005) (placing the
burden on the defendant to establish that "had the error in
question not been committed, a different result would have been
reached at the trial out of which the appeal arises"). We,
therefore, overrule this assignment of error.
Defendant also argues on appeal that the trial court erred in
denying his motion to dismiss made after the close of the State's
evidence. Defendant's position is based on the State's use of
hearsay evidence. He does not challenge the evidence concerning
possession of the cocaine or the transfer of money for cocaine
during the 27 March transaction when Officer Brooks visually
observed the transaction taking place. Nor does defendant argue
that the State failed to offer substantial evidence on any of the
elements of the crimes of which defendant was convicted. Instead,
his argument for dismissal raises the same hearsay objections just
addressed. We therefore hold that the trial court did not err in
denying the motion to dismiss.
Finally, defendant asserts that the trial court erred in
sentencing him for both the sale and delivery of a controlled
substance in a single transaction as two separate offenses. TheState agrees that this was error under Moore
, 327 N.C. at 382, 395
S.E.2d at 127. According to our Supreme Court, "[t]he transfer by
sale or delivery of a controlled substance is one statutory
offense, the gravamen of the offense being the transfer of the
at 383, 395 S.E.2d at 127.
The State argues that we should not remand for new sentencing.
The Supreme Court in Moore
, however, stated: "Because the three
convictions on each indictment were consolidated into one judgment
per indictment, and because of the lengths of the prison terms
imposed, we are unable to determine what weight, if any, the trial
court gave each of the separate convictions for sale and for
delivery in calculating the sentences imposed upon the defendant.
This case must thus be remanded for resentencing
, 395 S.E.2d
at 127-28 (emphasis added). We see no meaningful distinction
between this case and Moore
. Although the State suggests that we
should disregard this aspect of Moore
because it was decided before
the Structured Sentencing Act became effective, it is for the
Supreme Court _ and not this Court _ to decide whether to overrule
No error; remanded for resentencing.
Judge JACKSON concurs.
Judge CALABRIA concurs in the result only.
Report per Rule 30(e).