State v. Allen
| Decision Date | 13 October 1971 |
| Docket Number | No. 58,58 |
| Citation | 183 S.E.2d 680,279 N.C. 406 |
| Parties | STATE of North Carolina v. Frank ALLEN. |
| Court | North Carolina Supreme Court |
Atty. Gen. Robert Morgan and Asst. Atty. Gen. Claude W. Harris, for the State.
Mitchel E. Gadsden, Fayetteville, for defendant.
Defendant assigns as error only the failure of the court to allow his motions not nonsuit at the close of the State's evidence and at the close of all the evidence. Defendant's motions for nonsuit must be considered in light of all the evidence since he introduced evidence and thereby waived the motions made at the close of the State's evidence. G.S. § 15--173; State v. Prince, 270 N.C. 769, 154 S.E.2d 897. Thus, the sole question for decision is whether upon a consideration of all the evidence admitted--whether competent or incompetent--in the light most favorable to the State, there is substantial evidence to support the finding that the offenses charged in the bills of indictment were committed by defendant. State v. Accor and State v. Moore, 277 N.C. 65, 175 S.E.2d 583; State v. Cutler, 271 N.C. 379, 156 S.E.2d 679. Determination of this question requires a review of the evidence presented.
The State offered evidence which may be substantially summarized as follows:
Detective L. L. Sonberg of the Fayetteville Police Department testified that he had in formation from a reliable informer that the informer had on 4 May 1970 purchased a transparent capsule containing a white powder from a person at 900 Gillis Street in Fayetteville. The capsule was delivered to the police, and tests showed that the capsule contained heroin. He had information that the person who occupied the dwelling at 900 Gillis Street was known as 'Snake' and that he was a dealer in narcotics. Based upon this information, Detective Sonberg on the same day obtained a search warrant from Magistrate Julian Mills and proceeded to 900 Gillis Street with the unnamed informer, Berry Hall of the C.I.D., and other military and civilian officers. Upon arrival, Agent Hall and the informer entered the house at 900 Gillis Street, where the informer again purchased one of the capsules. The informer and Agent Hall left, and upon receiving a pre-arranged signal from Hall indicating the presence of narcotics in the dwelling, Sonberg and the other officers went to the door armed with the search warrant. Detective Sonberg knocked on the door, informed the occupants that they were police officers and that they had a search warrant to search the premises. Someone inside the house tried to prevent their entry, and the door was then forced open. Betty Brinkley, one of the occupants, stated that she was in charge of the house, and Officer Sonberg read the warrant to her and conducted a search of the premises. The search produced 9 capsules from the kitchen and 6 capsules under the mattress of the bed in the master bedroom. (It was later stipulated that the capsules contained heroin.) During the search a wallet containing a United States Army identification card in the name of defendant and several other items bearing defendant's name were found in the master bedroom. At the time of the search the occupants of the house were Betty Brinkley, Leslie Carl Scott, and Lonnie J. Collins. Defendant was not present at the time of the search. On the next day a check at the Public Works Commission showed that the public utility services at 900 Gillis Street were listed in the defendant's name.
Leslie Carl Scott testified that on 4 May 1970 he was 16 years of age and that previous to that date he had on five or six occasions sold 'stuff' for defendant. He stated that on 3 May 1970 he received a message that defendant wanted him to come over to the house at 900 Gillis Street. He went there and was told by defendant that he (defendant) was going away for a few days and the 'stuff' was under the mattress. Defendant had told him earlier that he wanted him to sell some 'scagg'. In testifying, Scott used the term 'scagg' and heroin interchangeably. He stated that on 4 May 1970 he sold heroin to a man who was accompanied by Agent Hall, and that he had earlier on the same day sold heroin to the same man. The heroin that he sold was supplied by defendant, who had told him to sell it.
Berry Lee Hall, a U.S. Army criminal investigator, testified that the unnamed informer had previously purchased heroin at 900 Gillis Street and that he was with the informer when the made another purchase of heroin from Leslie Carl Scott just before the search took place. He further testified that as he left the dwelling he, by a prearranged signal, notified the police officers that a purchase of heroin had been made. On cross-examination he stated that he did not see defendant on any of his visits to the dwelling on Gillis Street.
The State offered further evidence tending to corroborate the witness Leslie Carl Scott in the nature of a written statement given to Narcotics Officer Cuyler L. Windham by Scott on 6 May 1970.
Defendant testified in his own behalf and stated that he did not reside at 900 Gillis Street and that when those premises were searched he was at the race tracks in Maryland. He denied having any dealings with Leslie Carl Scott, and averred that he had never dealt in 'scagg' or 'smack', and that he only had a hearsay knowledge of that commodity. On cross-examination he admitted that he had been convicted of several crimes, beginning with a conviction of larceny in 1952.
Betty Brinkley, testifying for defendant, stated that she did not know that Leslie Carl Scott was selling heroin for defendant. She was present when defendant left on Sunday, 3 May 1970, and that defendant said nothing to Scott about selling anything.
We quote from statutes pertinent to this decision.
G.S. § 90--88: 'It shall be unlawful for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense, or compound any narcotic drug, except as authorized in this article.'
G.S. § 90--111(c): 'If the offense shall consist of the sale, barter, peddling, exchange, dispensing or supplying of marijuana or a narcotic drug to a minor by an adult in violation of any provision of this article, such person shall upon conviction be punished by a term of not less than ten years nor more than life imprisonment and shall be fined not more than three thousand dollars ($3,000.00) for the first and all subsequent violations of this article, and the imposition or execution of sentence shall not be suspended, and probation shall not be granted.'
G.S. § 90--87(4): 'The following words and phrases as used in this article shall have the following meanings unless the context otherwise requires: * * * (4) 'Dispense' includes distribute, leave with, give away, dispose of or deliver.'
Defendant contends that the evidence offered by the State tending to show that he possessed the drugs is insufficient to repel his motion for nonsuit on the charge of unlawful possession of narcotics.
When does a person possess a narcotic drug? North Carolina authorities are sparse on this point, and the answer to the question is not susceptible to a short and general answer.
We first look to other jurisdictions for authority. In People v. Galloway, 28 Ill.2d 355, 192 N.E.2d 370, the defendant and his wife were separated and the defendant had departed from their original residence;...
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