State v. Boyd

• Decision Date: 18 April 2006
• Docket Number: No. COA05-63.,COA05-63.
• Citation: 628 S.E.2d 796
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Danny BOYD, Defendant.

628 S.E.2d 796

STATE of North Carolina v. Danny BOYD, Defendant.

No. COA05-63.

Court of Appeals of North Carolina.

April 18, 2006.

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Appeal by defendant from judgment entered 15 January 2003 by Judge W. Russell Duke, Jr. in Pasquotank County Superior Court. Heard in the Court of Appeals 1 November 2005.

Attorney General Roy Cooper, by Special Deputy Attorney General Thomas J. Ziko, for the State.

McCotter, Ashton & Smith, P.A., by Rudolph A. Ashton, III and Kirby H. Smith, III, New Bern, for defendant-appellant.

GEER, Judge.

Defendant Danny Boyd appeals from his convictions for possession of cocaine with intent to manufacture, sell, or deliver; trafficking in cocaine; and maintaining a dwelling for the purpose of keeping or selling cocaine. We uphold his convictions for possession and trafficking. With respect to his conviction on the maintaining a dwelling charge, however, we hold that the trial court erred when it allowed a police officer to testify that, prior to being Mirandized, defendant had incriminated himself by giving his home address in response to a routine booking question. Defendant is, therefore, entitled to a new trial on that charge. In addition, as the State concedes, defendant is entitled to a new sentencing hearing on the conviction of possession of cocaine because the trial court erroneously found as an aggravating factor that defendant had joined with more than one other person in committing his crimes.

Factual and Procedural History

The State's evidence tended to show the following facts. In late 2001, the Pasquotank County Sheriff's Office launched an investigation into a residence located at 809 Wilson Street in Elizabeth City. During a two-month surveillance of the residence, police officers observed a steady stream of "individuals coming to the residence and staying only a few minutes then leaving. They were on foot and also coming up in vehicles." On 18 January 2002, the police, using a confidential informant, completed a controlled purchase of crack cocaine from defendant at the Wilson Street residence. That same day, based on (1) the evidence from the confidential informant, (2) the officers' surveillance of the residence, and (3) information and complaints from citizens during the course of the investigation, police officers obtained a search warrant authorizing them to search both defendant and the Wilson Street residence.

As soon as they had obtained the warrant, several police officers knocked on the door of 809 Wilson Street and announced loudly that they were with the Sheriff's Department and they had a search warrant. When no one answered, they used a sledgehammer to break down the door. As officers entered the house, they found defendant lying on a sofa, stuffing plastic bags into his mouth. Defendant initially resisted arrest, but after he was subdued, officers observed a white chalky substance around his mouth consistent with wet cocaine.

Shortly thereafter, Lisa Robinson, defendant's girlfriend, appeared at the house. Officers intercepted her outside, detained her handcuffed her, and brought her inside, where she was shown a copy of the search warrant. Witnesses described her as "extremely upset," "shaking," and "extremely excited." As soon as she saw defendant, she said, "[W]e gots to be more careful" and started to cry.

As police searched the residence, they found defendant's 12-year-old son in the kitchen and three young girls in one of the bedrooms. In a second bedroom, containing a single bed and children's and men's clothes, officers located 27 clear plastic bags containing various amounts of cocaine. The bags were concealed behind blinds in the space between an interior window and an exterior storm window. All told, the cocaine in the bags added up to approximately 280-300 grams, with a street value of approximately $28,000.00 to $30,000.00. In a third bedroom, containing a double bed, officers found an unloaded .12 gauge shotgun hidden in a closet behind female clothing. Officers also recovered a phone bill addressed to Lisa Robinson at the Wilson Street residence, as well as a box containing a handheld scanner and a receipt for the scanner from Advance Auto Parts. The receipt bore defendant's name and the Wilson Street address.

The police took defendant and Ms. Robinson to the police station, where they were each charged with (1) trafficking in cocaine; (2) possession of cocaine with intent to manufacture, sell, or deliver; and (3) maintaining a dwelling for the purpose of keeping or selling cocaine. Defendant was booked by Officer McKecuen, the same police officer who had arrested him. Prior to advising defendant of his Miranda rights, Officer McKecuen asked defendant a number of routine booking questions, including his name, age, date of birth, next of kin, and home address. In response to the inquiry about his address, defendant responded that he lived at 809 Wilson Street.

Immediately after booking, defendant was read his Miranda rights, and he agreed to talk to the police without exercising his right to have an attorney present. When defendant was asked whether the cocaine found in the 809 Wilson Street residence belonged to him or Ms. Robinson, defendant responded: "It's mine." When he was asked to memorialize this admission in writing, defendant wrote "it's mine" on a piece of paper, but refused to sign the paper.

Defendant was later indicted for one count of trafficking in cocaine; one count of possession of cocaine with intent to manufacture, sell, or deliver; and one count of maintaining a dwelling for the purpose of keeping or selling cocaine. A jury convicted him of all three charges on 15 January 2003. At sentencing, the trial court imposed a presumptive range sentence of 70 to 84 months on the trafficking charge. With respect to the charges of possession of cocaine with intent to manufacture, sell, or deliver and maintaining a dwelling for the purpose of keeping or selling cocaine, the trial judge sentenced defendant in the aggravated range to consecutive terms of 10 to 12 months and 8 to 10 months respectively. As an aggravating factor for each offense, the judge found that defendant had "joined with more than one other person in committing the offense and was not charged with committing a conspiracy." Although defendant did not give timely notice of appeal, this case comes before us pursuant to our grant of certiorari on 5 November 2003.

Defendant's Motion to Suppress

Defendant first assigns error to the trial court's denial of his motion to suppress the evidence seized from the Wilson Street residence, arguing that the search warrant was invalid because of false statements contained in the affidavit submitted in support of the request for a warrant. With respect to an affidavit supporting a search warrant, if a defendant shows that "(1) the affiant knowingly or with reckless disregard for the truth made false statements; and (2) the false statements are necessary to the finding of probable cause, then `the warrant is rendered void, and evidence obtained thereby is inadmissible....'" State v. Rashidi, ___ N.C.App. ___, ___, 617 S.E.2d 68, 72 (quoting State v. Fernandez, 346 N.C. 1, 13, 484 S.E.2d 350, 358 (1997)), aff'd per curiam, 360 N.C. 166, 622 S.E.2d 493 (2005).

Here, defendant argues that the affidavit falsely stated that (1) the police received complaints about criminal activity by defendant, when in fact the complaints pertained more generally to the Wilson Street residence; (2) defendant had been served with criminal papers at the Wilson Street address, when actually he had been served with civil papers; and (3) by means of a hidden transmitter, the affiants were able to overhear a conversation between defendant and the confidential informant at the time of the controlled buy, when in fact the transmitter did not pick up any voices except for the informant's. We need not decide whether defendant sufficiently established that these were knowing or reckless falsehoods because even if those assertions are omitted, the affidavit is still sufficient to support a finding of probable cause. See Rashidi, ___ N.C.App. at ___, 617 S.E.2d at 73 (holding that when the affidavit was considered without the allegedly false statements, it still indicated the presence of probable cause; therefore, it was unnecessary to reach the issue whether the false statements were made knowingly or recklessly).

North Carolina uses a "totality of the circumstances" test to assess whether probable cause exists for the issuance of a search warrant. State v. Arrington, 311 N.C. 633, 643, 319 S.E.2d 254, 260-61 (1984). Generally, an affidavit supporting a search warrant

is sufficient [to establish probable cause] 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 in the apprehension or conviction of the offender.... The facts set forth in an affidavit for a search warrant must be such that a reasonably discreet and prudent person would rely upon them before they will be held to provide probable cause justifying the issuance of a search warrant.

Id. at 636, 319 S.E.2d at 256 (internal citations omitted).

In the present case, the unchallenged statements in the affidavit show that 20 different sources contacted police over a six-month period to complain about criminal activity occurring in the Wilson Street residence; two months' surveillance of the residence revealed substantial coming and going by individuals who stayed at the house only for very short periods of time; a confidential informant submitted to a full search by officers, made a controlled buy of cocaine at 809 Wilson Street, and returned with cocaine that he promptly gave to the police; and the confidential informant identified defendant as the individual who had sold him the cocaine. Taken...