State v. Deberry, No. COA09-420 (N.C. App. 2/16/2010)
| Decision Date | 16 February 2010 |
| Docket Number | No. COA09-420.,COA09-420. |
| Court | North Carolina Court of Appeals |
| Parties | STATE OF NORTH CAROLINA v. ANTHONY SHAUN DEBERRY |
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v.
ANTHONY SHAUN DEBERRY
Richmond County No. 08-CRS-50573.
Appeal by defendant from judgment entered 7 November 2008 by Judge Michael E. Beale in Richmond County Superior Court. Heard in the Court of Appeals 26 October 2009.
Attorney General Roy Cooper, by Assistant Attorney General Barry H. Bloch for State.
Betsy J. Wolfenden, for Defendant-Appellant.
ERVIN, Judge.
Defendant Anthony Shaun Deberry appeals from a judgment entered by the trial court sentencing him to a minimum term of 18 months and a maximum term of 22 months imprisonment in the custody of the North Carolina Department of Correction based upon a jury verdict convicting Defendant of possession of an immediate precursor chemical. After careful consideration of Defendant's challenges to his convictions in light of the record and the applicable law, we conclude that Defendant received a fair trial, free from prejudicial error.
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On 25 February 2008, an agent of the Richmond County Department of Social Services telephoned Detective W. N. Smith of the Richmond County Sheriff's Department with information about a potential methamphetamine lab. According to the caller, individuals were "cooking meth in [an] outbuilding at [a] residence" located on Gin Mill Road in Hamlet despite the fact that "there were kids running in and out of the building at the same time." As a result, Detectives Smith and Bowman drove to the residence in question in order to investigate the caller's report.
After arriving at the residence at approximately 1:00 p.m., the detectives observed Crystal Deberry and two small children standing outside a residence. Ms. Deberry told the detectives that her husband had gone to an auto parts store and asked the officers to wait until he returned before engaging in further investigative activities. Ms. Deberry attempted to reach her husband on his cell phone but did not receive an answer.
Approximately five or six minutes later, two men pulled up into the yard in a green Jeep Cherokee. The driver of the Cherokee introduced himself as Defendant Shaun Deberry. After informing Defendant that he was there in order to investigate a report that a methamphetamine lab was operating on the premises, Detective Smith asked for permission to search an outbuilding which was located approximately twenty to thirty feet from the residence located on the property. Defendant consented to the search. At
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the time of his conversation with Detective Smith, Defendant was "very cooperative" and did not appear nervous.
Since the front of the outbuilding appeared to be locked, Detective Smith asked Defendant for a key. Defendant retrieved the key from the Jeep after briefly searching for it inside the residence. After he located the key, the detectives and Defendant began walking toward the outbuilding. As they did so, one of the children ran ahead and entered the structure through an unlocked entrance that Detective Smith had not previously noticed. After the child entered the structure, an adult male, who identified himself as Brian Lewis, emerged from the building and informed the detectives that he had been sleeping there.1 At that point, the detectives and Defendant entered the outbuilding, which Detective Smith described as being about eleven feet by ten feet.
Upon entering the outbuilding, Detective Smith discovered, among other things, a table "[d]irectly in front of the door when you walked in." In addition, Detective Smith observed a toolbox "to the left-hand side;" plastic bottles; mason jars, some of which contained clear liquid and one of which contained orange liquid and a coffee filter; a Sunkist drink bottle; two boxes of salt; an aerosol can; a grinder; a pair of scissors; electrical tape; a pair of pliers; a plastic bottle containing clear liquid; a grill with a television monitor sitting on top of it; and a water cooler. In addition, Detective Smith observed a video monitor through which
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people inside the outbuilding could observe the area outside the structure and a seat that had been removed from a car that "looked like somebody may have been sleeping on it," along with a blanket and heater. Detective Smith also discovered a black "bookbag" which contained "more clear plastic bottles with clear tubing down inside of it, taped around." At that point, the detectives "decided that [they] were inside a meth lab, and that [they] needed to exit at that time." After handcuffing Defendant, Lewis, and the other individual who had arrived in the Jeep, the detectives contacted their supervisor and other emergency personnel for the purposes of procuring a search warrant and other assistance.
After agents of the State Bureau of Investigation arrived, they searched Defendant's residence and the outbuilding pursuant to a search warrant obtained by Lieutenant Jebo Starling of the Richmond County Sheriff's Department. A piece of foil with burn marks found on the top of a cabinet was the only item of interest seized inside the residence. According to Detective Smith, this item was believed to have evidentiary value because tinfoil can be used to cook methamphetamine.
Former Special Agent Todd Hummel of the State Bureau of Investigation, a forensic chemist, examined the outbuilding after arriving at the scene on 25 February 2008. During the course of his search of the outbuilding, former Special Agent Hummel observed a cooking stove, mason jars, two containers of salt, camp fuel, a digital scale, an orange funnel, drain opener containing sodium hydroxide, rubbing alcohol, coffee filters, a blender bottom,
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plastic tubing, and toluene. According to former Special Agent Hummel, these items can be used in making methamphetamine. Remnants of battery packaging, a lithium battery, plastic bottles containing a white crystalline material, and a bottle of sulfuric acid were found in a "burn pile" outside the building. Former Special Agent Hummel testified that the plastic bottles could have been "HCL generators," which are used in the salting step at the conclusion of the methamphetamine production process.
According to former Special Agent Hummel, a coffee filter found in a tool box drawer in the outbuilding tested positive for residual methamphetamine and pseudoephedrine; a blender bottom with half of a soda bottle on top of it taken from the outbuilding tested positive for "precursor methamphetamine"; and one of five coffee filters found in a glass jar in the outbuilding contained methamphetamine. Former Special Agent Hummel believed that the lab in question was a smaller scale operation and that Defendant appeared to be using the ammonia method of manufacturing methamphetamine. Former Special Agent Hummel based this conclusion on the presence of evidence of the "three main components" used in manufacturing methamphetamine using this process, including "a receipt for pseudoephedrine," "lithium batteries" and "one of the two components to make the condensed ammonia[,] . . . drain opener" and that, "out of the three things that you need to make methamphetamine with this ammonia method, I found two and a half of them."
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According to former Special Agent Hummel, the precursor chemicals that were found on the premises included toluene, sulfuric acid, lithium batteries, and pseudoephedrine. In addition, former Special Agent Hummel testified that there were two cans of brake parts cleaner that might have contained another precursor chemical, trichloroethylene. Former Special Agent Hummel did not find any finished methamphetamine on the premises.
Former Special Agent Hummel discovered a CVS pharmacy receipt for Sudafed in a trash can located outside the outbuilding. Sam Lewis, a CVS pharmacist, testified that the CVS receipt reflected Defendant's purchase of 1.44 grams of pseudoephedrine, which the pharmacist believed to have taken the form of 48 30-milligram tablets. At the time that he made this purchase, Defendant was required to show his driver's license, which listed his address as that of the Gin Mill Road residence. According to former Special Agent Hummel, the 1.44 grams of pseudoephedrine that Defendant purchased could be used to produce 1.32 grams of methamphetamine, which would be sufficient to produce 26 doses.
On 25 February 2008, a Warrant for Arrest was issued charging Defendant with intentionally keeping and maintaining a building used for keeping and selling methamphetamine and possession of drug paraphernalia. On 26 February 2008, a Warrant for Arrest was issued charging Defendant with possessing immediate precursor chemicals with the intent to manufacture methamphetamine. On 21 April 2008, the Richmond County grand jury returned bills of
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indictment charging Defendant with intentionally keeping and maintaining a building used for keeping and selling methamphetamine, possession of drug paraphernalia, and possession of immediate precursor chemicals knowing or having reasonable cause to know that those chemicals would be used to manufacture methamphetamine.
The cases against Defendant came on for trial before the trial court and a jury at the 3 November 2008 criminal session of the Richmond County Superior Court. At the close of the State's evidence, the trial court granted Defendant's motion to dismiss the possession of drug paraphernalia charge and denied his motion to dismiss the remaining charges. After deciding not to present evidence on his own behalf, Defendant unsuccessfully renewed his dismissal motions. Following the arguments of counsel and the trial court's instructions...
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