State v. Frazier

• Decision Date: 06 March 2001
• Docket Number: No. COA00-232.,COA00-232.
• Citation: 142 NC App. 361,542 S.E.2d 682
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Ellis William FRAZIER.

542 S.E.2d 682

142 NC App. 361

STATE of North Carolina v. Ellis William FRAZIER.

No. COA00-232.

Court of Appeals of North Carolina.

March 6, 2001.

Attorney General Michael F. Easley, by Special Deputy Attorney General W. Dale Talbert, for the State.

Ligon & Hinton, by Lemuel W. Hinton, Raleigh, for defendant-appellant.

GREENE, Judge.

Ellis William Frazier (Defendant) appeals from judgments entered after a jury rendered verdicts finding him guilty of intentionally keeping or maintaining a dwelling used for the keeping and/or selling of a controlled substance and possession with intent to sell or deliver cocaine.

Defendant's case was called for trial on 3 November 1999. At that time, Defendant's counsel, John Oates (Oates), informed the trial court Defendant wished to be formally arraigned. Prior to arraignment, Defendant stated he was "physically unable to stand trial" because he had not spoken with his attorney concerning his case. Defendant was formally arraigned and given an opportunity to speak with Oates. After Defendant spoke with Oates, Oates stated he was ready to proceed and jury selection began on 3 November 1999. The State began presenting its evidence on 4 November 1999.

The State's evidence shows Selene Sloan (Sloan) entered the Roger's Motel (the Motel) in Cary on 26 January 1999 and requested to rent a room. Sloan told Barbara Rogers (Rogers), the owner of the Motel, she and her boyfriend, Defendant, were in the process of relocating to Cary and would stay at the Motel until they found an apartment. Sloan and Defendant were the only people staying in room 9 of the Motel (room 9) and neither appeared to work regular business hours. Both Defendant and Sloan were seen in room 9 and around the Motel frequently at noontime. Sloan and Defendant stayed at the Motel approximately six or seven weeks and "[s]ometimes [Sloan] paid [the rent]. Sometimes a money order was dropped in. And on an occasion or two, [Defendant] paid [the rent]."

At some point during the stay of Defendant and Sloan at the Motel, Rogers and her husband received an anonymous letter indicating drugs were being sold in room 9. Rogers immediately called the Cary Police Department and an investigator came to the Motel and spoke with Rogers and her husband. Rogers and her husband later spoke with Defendant and informed him of the letter. Defendant neither denied nor confirmed he was selling drugs.

At trial, Detective Tracy Barker (Barker), of the Cary Police Department, testified he spoke with Rogers and her husband on 17 March 1999. Barker decided he would do a "knock and talk investigation," where he would "go up to [the] door, knock on [the] door, and ask the people in the ... [motel] room ... if [he could] come in and talk with them." Sloan allowed Barker to enter her motel room. As Barker entered room 9, he noticed Defendant lying on the bed. Defendant proceeded to get off of the bed and walk toward the bathroom. Barker asked Defendant if he had a problem with Barker "coming in and talking with them." Defendant did not respond, but continued walking toward the bathroom. Barker repeated himself and Defendant told Barker he could come into the room. As Defendant continued walking away from Barker, Defendant looked back at Barker in what Barker felt was "a suspicious sort of look." Barker asked Defendant to stop, however, Defendant continued walking and made a "lunge" behind a wall and shut the bathroom door. Barker "had an immediate feeling of fear ... for [his] safety and the officers that were with [him]." Barker forced the bathroom door open and found Defendant "between the door and the tub.... He had his hands up in the ceiling tiles." Barker grabbed Defendant's arms, laid "him on the bed and secured him" and then secured Sloan.

After Defendant and Sloan were secured by Barker, Barker retrieved a step ladder and went into the bathroom to search it. Barker found a sandwich-sized plastic bag containing five individually wrapped rocks of crack cocaine located in the bathroom ceiling tiles. Barker conducted a "cursory search" of room 9 for weapons or contraband. Barker and other officers confiscated: "a homemade crack pipe"; a "crisp $20 bill that was folded lengthwise in half"; "a number of pagers"; two cellular phones; and a leather wallet containing $1,493.00 in cash found on the side of the bed Defendant had lay on.

The State asked Barker if Defendant made any other statements while in room 9. Oates objected and the trial court excused the jury. Oates stated his objection was based on Barker's report that Defendant made "a statement saying ... there were no other drugs in the room." Oates contended Defendant was in custody and, thus, Barker's questioning of Defendant was a violation of Defendant's Miranda rights. Oates attempted to conduct a voir dire examination of Barker, but the trial court interrupted Oates. The trial court inquired if Oates was attempting to make a motion to suppress and Oates answered in the affirmative. The trial court informed Oates "[N.C. Gen.Stat. § ] 15A requires a written motion unless [Oates was] not aware that this evidence was in existence. And ... assuming from [Oates'] comments... [he] had the report prior to trial." Oates indicated he did have the report prior to trial and he had the opportunity to file a written motion to suppress. The State moved to deny the motion to suppress and the trial court denied Defendant's motion to suppress.

Barker was permitted to testify Defendant advised Barker there were no other drugs in room 9. On cross-examination, Barker testified Sloan "appeared to be living or at least staying in the room at the time [Barker] came into [room 9]."

Officer Kenneth S. Quinlan (Quinlan) testified he went with Barker on 17 March 1999 because Barker "had a safety concern [and]... wanted an additional officer to back him up." As Defendant walked toward the bathroom, Defendant was looking at Barker and Quinlan in an "awkward" manner and Quinlan became concerned for their safety. At the close of the State's evidence, Defendant made motions to dismiss both charges for insufficiency of the evidence, however, the motions were denied. Defendant presented no evidence at trial.

The issues are whether: (I) the State presented substantial evidence Defendant kept or maintained a place used for the keeping and/or selling of a controlled substance; (II) the State presented substantial evidence Defendant possessed cocaine; and (III) Oates provided Defendant with ineffective assistance of counsel.

I

Defendant contends the trial court erred in failing to dismiss the charge of intentionally keeping or maintaining a dwelling used for the keeping and/or selling of a controlled substance because there was insufficient evidence Defendant kept or maintained room 9 for the purpose of keeping or selling a controlled substance. We disagree.

A motion to dismiss must be denied if "there is substantial evidence (1) of each essential element of the offense charged and (2) that [the] defendant is the perpetrator of the offense." State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Franklin, 327 N.C. 162, 171, 393 S.E.2d 781, 787 (1990). "When ruling on a motion to dismiss, all of the evidence should be considered in the light most favorable to the State, and the State is entitled to all reasonable inferences which may be drawn from the evidence." State v. Davis, 130 N.C.App. 675, 679, 505 S.E.2d 138, 141 (1998).

To obtain a conviction for knowingly and intentionally maintaining a place used for keeping and/or selling controlled substances under N.C. Gen.Stat. § 90-108(a)(7), the State has the burden of proving the defendant: (1) knowingly or intentionally kept or maintained; (2) a building or other place; (3) being used for the keeping or selling of a controlled substance. N.C.G.S. § 90-108(a)(7) (1999); State v. Allen, 102 N.C.App. 598, 608, 403 S.E.2d 907, 913-14 (1991), rev'd on other grounds, 332 N.C. 123, 418 S.E.2d 225 (1992).

A

Keep or maintain a place

Whether a person "keep[s] or maintain[s]" a place, within the meaning of N.C. Gen.Stat. § 90-108(a)(7), requires consideration of several factors, none of which are dispositive. See Allen, 102 N.C.App. at 608-09,

403 S.E.2d at 913-14. Those factors include: occupancy of the property; payment of rent; possession over a duration of time; possession of a key used to enter or exit the property; and payment of utility or repair expenses. See id.; see also State v. Rich, 87 N.C.App. 380, 384, 361 S.E.2d 321, 324 (1987); State v. Kelly, 120 N.C.App. 821, 826, 463 S.E.2d 812, 815 (1995).

In this case, Sloan told Rogers that both she and Defendant would stay in room 9. During the six or seven weeks Defendant stayed at the Motel, he sometimes paid the rent. Defendant did not work regular business hours and was seen in room 9 and around the Motel in the middle of the day. This evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion" Defendant kept or maintained room 9.

B

Used for keeping and/or selling a controlled substance

The determination of whether a building or other place is used for keeping or selling a controlled substance "will depend on the totality of the circumstances." State v. Mitchell, 336 N.C. 22, 34, 442 S.E.2d 24, 30 (1994). Factors to be considered in determining whether a particular place is used to "keep or sell" controlled substances include: a large amount of cash being found in the place; a defendant admitting to selling controlled substances; and the place containing numerous amounts of drug paraphernalia. See id.; see also State v. Bright, 78 N.C.App. 239, 240, 337 S.E.2d 87, 87-88 (1985),

disc. review denied, 315 N.C. 591, 341 S.E.2d 31 (1986); Rich, 87 N.C.App. at 384,

361 S.E.2d at 322.

In this case, Rogers and her...