State v. Ellison, COA10-386
| Decision Date | 19 July 2011 |
| Docket Number | NO. COA10-386,COA10-386 |
| Court | Court of Appeal of North Carolina (US) |
| Parties | STATE OF NORTH CAROLINA v. LEE ROY ELLISON. STATE OF NORTH CAROLINA v. JAMES EDWARD TREADWAY. |
STATE OF NORTH CAROLINA
v.
LEE ROY ELLISON.
STATE OF NORTH CAROLINA
v.
JAMES EDWARD TREADWAY.
NO. COA10-386
NORTH CAROLINA COURT OF APPEALS
Filed: July 19, 2011
Ashe County File Nos. 08 CRS 51121-51123
Ashe County File Nos. 08 CRS 765, 51125
Appeal by defendants from judgments entered 9 October 2009 by Judge Anderson D. Cromer in Ashe County Superior Court. Heard in the Court of Appeals 13 October 2010.
Attorney General Roy Cooper, by Assistant Attorney General Brandon L. Truman and Assistant Attorney General Robert D. Croom, for the State.
Megerian & Wells, by Jonathan L. Megerian and Franklin E. Wells, Jr., for Ellison.
Daniel F. Read, for Treadway.
ERVIN, Judge.
Defendants appeal from judgments entered by the trial court sentencing James Edward Treadway (Treadway) to a minimum term of 225 months and a maximum term of 279 months imprisonment in the custody of the North Carolina Department of Correction based on his convictions for trafficking in 28 grams or more of opium by
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possession, trafficking in 28 grams or more of opium by delivery, and conspiring to traffic in 28 grams or more of opium by possession, and sentencing Lee Roy Ellison (Ellison) to a minimum term of 225 months and a maximum term of 279 months imprisonment in the custody of the North Carolina Department of Correction based on his convictions for trafficking in 28 grams or more of opium by possession, trafficking in 28 grams or more of opium by transportation, conspiring to traffic in 28 grams or more of opium by possession, and possession of a controlled substance.
On appeal, Treadway argues that the trial court erred in joining the Defendants' cases for trial, allowing the admission of evidence concerning Ellison's 2003 drug convictions, and denying his motion to dismiss for insufficiency of the evidence. In addition, Ellison argues that the trial court erred by denying his motion to suppress evidence and require disclosure of an informant's identity and his motion that the charges lodged against him be dismissed on constitutional grounds. Finally, both Defendants argue that the trial court erred by denying their motions to dismiss on the grounds that the conduct underlying their convictions was not covered by the statutory provisions applicable to drug trafficking and by permitting Special Agent Amanda Motsinger of the State Bureau of Investigation to present rebuttal testimony concerning the composition of the drugs in which Defendants allegedly trafficked.
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After careful consideration of Defendants' challenges to the trial court's judgments in light of the record and the applicable law, we conclude that no error of law occurred during the proceedings leading to the entry of the trial court's judgments and that Defendants are not entitled to any relief from those judgments on appeal.
In late July 2008, a confidential informant spoke with Detective Grady Price of the Ashe County Sheriff's Office and informed him of the existence of an ongoing arrangement between John Shaw and Defendants involving trading in prescription medications. According to the informant, Mr. Shaw, who possessed a valid prescription for hydrocodone, routinely sold that drug to Treadway, who, in turn, transferred it to Ellison. The informant described the transactions in question as recurring in nature, and stated that, typically, Mr. Shaw would fill his prescription for hydrocodone, drive to Treadway's residence, deliver the hydrocodone to Treadway, and either remain at the residence or leave for a short period of time while Treadway drove to Ellison's place of business and effectuated the final transfer of the hydrocodone to Ellison. After delivering the hydrocodone to Ellison, Treadway would return to his residence and pay Mr. Shaw for the hydrocodone. The informant told
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Detective Price that this sequence of events represented a change from the parties' prior method of exchange, in which Ellison would join Mr. Shaw and Treadway at Treadway's residence for the purpose of conducting these transactions.
Based upon this information, Detective Price obtained a drug profile concerning Mr. Shaw from the CVS pharmacy at which Mr. Shaw generally had his prescriptions filled and learned that Mr. Shaw had been prescribed a substantial amount of hydrocodone and Xanax each month and that he had last filled his prescriptions on or about 6 July 2008. In response to a law enforcement request, a CVS employee notified Detective Price the next time Mr. Shaw called in to have these prescriptions filled and provided him with an approximate pickup time.
On 5 August 2008, Detective Price, along with two other law enforcement officers, placed the CVS store under surveillance and observed Mr. Shaw pull into the CVS parking lot, obtain his prescription medications at the pharmacy's drive-through window, and drive directly to Treadway's residence. The investigating officers watched Mr. Shaw enter and then depart from Treadway's residence. Shortly thereafter, Ellison arrived at and then departed from the same location. After Ellison left Treadway's residence, Detective Price stopped his truck and obtained Ellison's consent to a search of his vehicle. In the course of searching Defendant's vehicle,
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officers found two prescription pill bottles from which the labels had been removed. The pills contained in the bottles seized from Ellison's vehicle were sent to the State Bureau of Investigation for analysis.
Special Agent Motsinger, a forensic chemist, testified that the two bottles confiscated from Ellison's vehicle contained 90 hydrocodone1 pills, which weighed a total of 75.3 grams, and 8 0 alprazolam2 tablets, which weighed a total of 10 grams. In her rebuttal testimony, Special Agent Motsinger testified that both hydrocodone and dihydrocodeinone, which is a chemical compound in which hydrocodone is mixed with acetaminophen, were opium derivatives.
Ellison testified that he had obtained the Lorcet and Xanax seized at the time investigating officers stopped his truck on 5 August 2008 as a result of the fact that these medications had been prescribed for him by his physician. Ellison visited Treadway on 5 August 2008 in response to Treadway's request that Ellison make
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him a loan so that he could pay his electric bill. As a result, Ellison went to Treadway's residence and gave him $100.00. Ellison denied any knowledge that Lorcet pills contained opium.
On 5 August 2008, warrants for arrest were issued charging Ellison with trafficking in 28 grams or more of opium by possession, trafficking in 28 grams or more of opium by transportation, conspiring with Treadway and Mr. Shaw to traffic in 28 grams or more of opium by possession, and possession of Xanax with the intent to sell or deliver. On 6 October 2008, the Ashe County grand jury returned bills of indictment charging Ellison with trafficking in 28 grams or more of opium by possession, trafficking in 28 grams or more of opium by transportation, conspiring with Treadway and Mr. Shaw to traffic in 28 grams or more of opium by possession, and possession of alprazolam with the intent to sell and deliver. On the same date, the Ashe County grand jury returned bills of indictment charging Treadway with trafficking in 28 grams or more of opium by possession, trafficking in 28 grams or more of opium by delivery, conspiring with Ellison and Mr. Shaw to traffic in 28 grams or more of opium by possession, and conspiring with Defendant Ellision and Mr. Shaw to deliver alprazolam. Prior to trial, Ellison filed motions seeking to have certain evidence seized as a result of the stopping of his vehicle suppressed and the identity of the informant
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disclosed and to have the trafficking charges dismissed on the grounds that convicting him for violating the trafficking statutes on the basis of the facts at issue here would violate his constitutionally protected rights to due process and to be free from cruel and unusual punishment. After hearing the evidence and arguments of counsel on 16 March 2009, Judge Edwin Wilson, Jr., denied Ellison's motions.
The charges against Defendants came on for trial before the trial court and a jury at the 5 October 2009 criminal session of the Ashe County Superior Court. On 9 October 2009, the jury returned verdicts convicting Treadway of trafficking in 28 grams or more of opium by possession, trafficking in 28 grams or more of opium by delivery, and conspiracy to traffic in 28 grams or more of opium by possession and convicting Ellison of trafficking in 28 grams or more of opium by possession, trafficking in 28 grams or more of opium by transportation, conspiracy to traffic in 28 grams or more of opium by possession, and possession of alprazolam. The trial court consolidated Ellison's convictions for judgment, sentenced him to a minimum term of 225 months and a maximum term of 279 months imprisonment in the custody of the North Carolina Department of Correction, and ordered him to pay a $500,000.00 fine. Similarly, the trial court consolidated Treadway's convictions for judgment, sentenced him to a minimum term of 225 months and a maximum term of
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279 months imprisonment in the custody of the North Carolina Department of Correction, and ordered him to pay a $500,000.00 fine. Both Defendants noted an appeal to this Court from the trial court's judgments.
On appeal, Ellison initially argues that the trial court erred by denying his motion to suppress evidence seized from his vehicle on 5 August 2 0 08 and to have the identity of the informant who provided investigating officers with information concerning his alleged involvement in drug-related activities disclosed. More specifically, Ellison contends that the investigating officers stopped his truck based exclusively on...
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