State v. Frederick

• Citation: 730 S.E.2d 275
• Decision Date: 21 August 2012
• Docket Number: No. COA12–76.,COA12–76.
• Parties: STATE of North Carolina v. Torrey Jermaine FREDERICK.
• Court: Court of Appeal of North Carolina (US)

730 S.E.2d 275

STATE of North Carolina
v.
Torrey Jermaine FREDERICK.

No. COA12–76.

Court of Appeals of North Carolina.

Aug. 21, 2012.

[730 S.E.2d 276]

Appeal by defendant from judgments entered 7 September 2011 by Judge Paul L. Jones in Sampson County Superior Court. Heard in the Court of Appeals 23 May 2012.

Roy Cooper, Attorney General, by Joseph E. Elder, Assistant Attorney General, for the State.

Marilyn G. Ozer, Chapel Hill, for the defendant.

THIGPEN, Judge.

Defendant appeals from judgments entered convicting him of trafficking in cocaine, intentionally keeping or maintaining a vehicle for the purpose of keeping a controlled substance, and possession of a firearm by a felon. Defendant presents five issues on appeal: (I) whether the trial court erred by denying Defendant's motion to dismiss the charge of trafficking in cocaine; (II) whether the trial court erred by denying Defendant's motion to dismiss the charge of maintaining a vehicle; (III) whether the trial court erred by denying Defendant's request for discovery of SBI drug testing protocol and procedures; (IV) whether the trial court erred by summarily dismissing Defendant's pro se motion to suppress after Defendant had been improperly allowed to waive counsel; and (V) whether appointed counsel provided ineffective assistance of counsel due to a conflict of interest in her representation of Defendant, for which she withdrew as counsel of record.

The evidence of record tends to show the following: Around midnight on 29 August 2010, Michael Wallace (“Wallace”), the driver of a GMC Sierra Z–71 pickup truck, and passengers Torrey Jermaine Frederick (“Defendant”) and Natasha Smith (“Smith”), were stopped by police officers at a driver's license checkpoint in Clinton, North Carolina. The vehicle was registered to Alicia Washington, Defendant's fiancée. Defendant was in the front passenger seat, and Smith was in the middle of the back seat.

[730 S.E.2d 277]

Sergeant Robbie King (“Sergeant King”) discovered that Wallace had an expired license and instructed him to pull over to the shoulder of the road in front of the patrol cars. Wallace complied, got out of the vehicle, and proceeded to walk towards the officers, who then instructed him to return to the vehicle. Wallace again complied, returning to the vehicle, after which he backed the vehicle closer to the patrol cars. However, the officers observed that Wallace drove the truck in reverse in a manner that may have been calculated to obscure the officers' view of the passenger side of the vehicle. Sergeant King then walked to the passenger side of the vehicle and had a conversation with Defendant, who explained that he and Wallace were on their way to drop Smith off at home. Wallace, however, told Corporal Edgar Carter (“Corporal Carter”) a different story.

The officers conferred with one another about Wallace and Defendant's conflicting stories and became suspicious. The officers then asked Wallace for consent to search the vehicle. Wallace refused, insisting that the vehicle belonged to his boss. Corporal Carter went to his patrol car to get his K–9 dog. As soon as the K–9 dog got out of the patrol car, it signaled that drugs were near. Corporal Carter walked the K–9 dog from the front of the truck to the back, first on the driver side and then on the passenger side. As Corporal Carter came to the passenger door, the K–9 dog alerted and began to bark and scratch at the ground under the passenger side door. The officers ordered Wallace, Smith and Defendant out of the vehicle, searched the vehicle, and discovered drugs and paraphernalia near the driver's seat and in the back seat. A cigarette package containing a white rock substance was found under the driver's seat in the vehicle. The officers also found bullets in the glove box, and a measuring cup with powder residue, baking soda, butter knives with powder residue, a digital scale, a marijuana cigarette and Ziploc bags in the vehicle.

Corporal Carter, while walking the K–9 dog around the front of the vehicle, noticed a white brick lying on the side of the road which appeared to be cocaine. In the grass next to the white brick, Corporal Carter also found a handgun, a bag with residue, and a bag containing crack cocaine and marijuana. The bullets in the glove box of the truck matched the bullets in the handgun found in the grass. The officers also searched Defendant's person and found $1335.00 in cash in his pocket. Defendant was questioned by Detective Alpha Clowney. Defendant admitted to possession of the blunt and marijuana found in the grass near the brick of cocaine, but Defendant recanted these admissions during the same interview.

Prior to trial, the substance contained in the white brick found at the scene was tested by Nicole Manley, a forensic scientist specializing in drug chemistry with the North Carolina State Crime Lab. Ms. Manley conducted preliminary and confirmatory tests on the substance and determined that it was cocaine hydrochloride. The brick was also marked with a “Z.” Corporal Carter testified that in his experience, the marking indicated that the brick came from the Mexican drug cartel, Zeta. Corporal Carter also testified that a brick of cocaine that size had an estimated street value of “a minimum of $40,000.”

On 12 January 2011, Defendant was indicted on the following seven charges in three indictments: the first indictment, 10 CRS 52051, included one count of trafficking in cocaine, one count of possession with the intent to manufacture, sell and deliver a schedule II controlled substance, and one count of maintaining a vehicle to keep controlled substances; the second indictment, 10 CRS 52053, included one count of possession with the intent to sell and deliver a schedule VI controlled substance, one count of possession of a stolen firearm, and one count of possession of drug paraphernalia; and the third indictment, 10 CRS 52054, was for one count of possession of a firearm by a convicted felon. Defendant was also indicted on the charge of having attained the status of an habitual felon.

Defendant signed two waivers of appointed counsel. On 21 June 2011, Defendant filed a pro se motion to suppress the evidence arising out of the driver's license checkpoint stop. This motion was heard, along with a number of additional pro se motions, at a 25

[730 S.E.2d 278]

July 2011 hearing, where Defendant argued his motions without the representation of counsel. Defendant's motion to suppress was denied.

The trial was held during the 6 September 2011 session of the Sampson County Superior Court, the Honorable Paul L. Jones presiding. Defendant proceeded at trial pro se. Wallace was a witness for the State, after having entered into a plea agreement pursuant to which the charges against him—possession of cocaine and no operator's license—were reduced; Wallace pled to misdemeanor possession of drug paraphernalia and no operator's license. At trial, Wallace testified that he did carpentry work for Defendant, that he frequently drove Defendant in the GMC pickup truck because Defendant did not have a driver's license, and finally, that earlier that evening, he dropped Defendant and Smith off at a local motel, went to Wal–Mart and smoked drugs in the vehicle while he waited for them. Defendant re-called Wallace after the State rested. During the defense's case, Wallace testified that he had not seen Defendant use drugs and had never known Defendant to sell drugs.

On 7 September 2011, after the presentation of the State's evidence, the court dismissed one count from the indictment, 10 CRS 52053—possession of a schedule VI controlled substance. After closing arguments, the court dismissed the remaining two counts of 10 CRS 52053, possession of a stolen firearm and possession of drug paraphernalia. Later that same day, the jury found Defendant guilty on all remaining counts.

The trial court entered judgments convicting Defendant of trafficking cocaine, keeping or maintaining a vehicle for the purpose of keeping a controlled substance, and possession of a firearm by a felon. After concluding Defendant was a record level IV offender, the trial court sentenced Defendant to 175 to 219 months incarceration and a fine of $250,000.00 on the trafficking conviction; on the maintaining a vehicle for controlled substances conviction, the trial court sentenced Defendant to a term of 8 to 10 months incarceration to be served concurrently with the trafficking sentence; the court sentenced Defendant to a consecutive term of 15 to 18 months incarceration on...