State v. Leonard
| Decision Date | 03 November 1987 |
| Docket Number | No. 8722SC304,8722SC304 |
| Citation | 87 N.C.App. 448,361 S.E.2d 397 |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina v. Charles LEONARD. |
Atty. Gen. Lacy H. Thornburg, by Asst. Atty. Gen. John H. Watters, Raleigh, for the State.
Barnes, Grimes, and Bunce by Jerry B. Grimes, Lexington, for defendant-appellant.
Defendant, Charles Leonard, was indicted and tried for maintaining a dwelling for the use, storage, or sale of marijuana; manufacturing marijuana; possession of marijuana with intent to sell or deliver; trafficking in marijuana by possession, and felonious possession of marijuana. At the conclusion of the State's evidence, Defendant's motion to dismiss the charges was granted as to the first three offenses. The jury returned a verdict of guilty of trafficking in marijuana by possession, and judgment was entered on the verdict imposing the minimum mandatory sentence of five years imprisonment and a $5,000 fine. Defendant appeals, bringing forward sixteen assignments of error relating to evidentiary matters, jury instructions, and the denial of various motions. We find no error.
The evidence for the State, in pertinent part, tended to show the following.
On 10 July 1985, Sergeant Ralph Willard and two other officers of the N.C. Department of Corrections went to Davidson County, where they were assisted by Sergeant R.L. Gilley of the Davidson County Sheriff's Department in a search for Defendant's son, Kenneth Leonard, who had escaped from prison. The officer began checking the addresses on Kenneth's visitor and correspondence list, and, after an unsuccessful visit to the home of a girlfriend, arrived at the home of Defendant and his wife at approximately 11:30 p.m.
Sergeants Gilley and Willard went to the door, and Defendant answered. Gilley explained that Kenneth had escaped and requested permission to search the residence for him. With Defendant's consent, the four officers proceeded to search the house room by room. The only other person present, Defendant's wife, was in one of the bedrooms.
During the search, Sgt. Gilley entered a back room, along with Sgt. Willard and Officer Otis Foster. There Gilley observed a shopping bag on the floor containing stems and leaves of marijuana in plain view. A strong odor of marijuana filled the air. A bedspread or cover was draped over the bed, concealing three large lumps. Bits of green vegetable matter clung to the cover. Sgt. Gilley pulled down the cover, revealing two large suitcases and a washtub which contained a quantity of marijuana and seeds.
Defendant entered the room and remarked that Kenneth could not fit into the tub. He looked into the tub calling, "Ken, Ken, are you in there," then placed the cover back over the tub and ordered the officers from the room. About that time, Defendant's wife began crying from the other room that she was having a heart attack, and Defendant said he wanted to take her to the hospital, refusing Sgt. Gilley's offer to arrange transportation for her. Sgt. Gilley requested permission to search the house for more marijuana, but Defendant refused and ordered the officers out of the house and off the property. When they were all outside, Defendant locked the door and left with his wife.
Sgt. Gilley then called Lieutenant Henry Oliver of the Sheriff's Department, who came to the residence and watched by the driveway with Sgt. Willard for approximately 30 minutes to an hour while Sgt. Gilley procured a search warrant and returned with Officer G.E. Lewallen. During that time, no one left or entered by the driveway. During the subsequent search, Officers Gilley, Oliver, and Lewallen discovered and seized packaging materials and over 80 pounds of marijuana in various paper bags and containers, including the suitcases, a garbage can, and a plastic trash bag which were all located in the same position in which they were observed during the earlier search.
Defendant presented no evidence.
By his first assignment of error, Defendant contends that the trial court erred by entering a judgment which states that the Court made no written findings of fact because the prison term was imposed pursuant to a plea arrangement. That notation is plainly a mere clerical error which has not prejudiced Defendant. Written findings were unnecessary since Defendant received the minimum sentence possible under N.C.Gen.Stat. Sec. 90-95(h)(1)(a) (1985), which overrides the presumptive term established for a Class H felony by N.C.Gen.Stat. Sec. 15A-1340.4(f)(6) (1983). This assignment of error is overruled.
Defendant next assigns error to the admission of testimony by Sgt. Willard identifying the residence in question as "Mr. Leonard's house," a fact that was not within the witness's personal knowledge. He argues that because control of the premises had to be proven in order to establish possession of the marijuana by Defendant, the denial of his motion to strike this statement was prejudicial error. We disagree.
First, the challenged statement was not made in an attempt to establish ownership of the residence but rather to clarify Sgt. Willard's testimony describing the geographic setting. Further, the witness's lack of personal knowledge was plain from Sgt. Willard's testimony as a whole, so that reliance on the statement by the jury was unlikely. Finally, Officers Oliver and Lewallen both properly testified from personal knowledge that Defendant resided at the house in question. Under these circumstances, the failure to strike the statement, if error, was not prejudicial to Defendant. This assignment of error is overruled.
Defendant next contends that the Court erred by admitting testimony regarding the contents of the washtub because, by lifting the cover which concealed the tub, Sgt. Gilley exceeded the scope of the consent given to search for Defendant's son.
Before this testimony was admitted, a voir dire was conducted to determine the legality of the search. Sgt. Willard gave his opinion that the container, or whatever was under the cover, probably could not have held the escapee. On the other hand, Sgt. Gilley testified that the cover was approximately seven feet by two and a half feet, 14 to 18 inches high, and covered three large lumps; that he believed it covered an area large enough for a person to hide under; and that he raised the cover to look for the escapee. The trial judge found facts consistent with Sgt. Gilley's testimony and concluded that the scope of Defendant's consent was not exceeded.
The consent given entitled Sgt. Gilley to search anywhere that he reasonably believed Kenneth Leonard might be concealed. Because conflicting evidence was offered regarding whether the escapee could have hidden under the cover where the washtub was found, it was the duty of the trial court to resolve the conflict by findings of fact, see, e.g., State v. Chamberlain, 307 N.C. 130, 297 S.E.2d 540 (1982), and these findings are conclusive on appeal if supported by competent evidence. Id.
In our opinion, the trial court's findings and conclusions are adequately supported by competent evidence in the record, and thus, the challenged testimony was properly admitted. Furthermore, there is ample other evidence in the record of the presence of marijuana to support the conviction, apart from the washtub evidence.
This assignment of error is overruled.
In his next two assignments of error, Defendant challenges the validity of the search warrant and the admission of the evidence seized, on the grounds that the affidavit of Sgt. Gilley, offered in support of the warrant application, failed to establish probable cause. The affidavit described the place to be searched as "a wood frame house and outbuildings" and included directions to the location. The facts stated to establish probable cause were that Officer Gilley had gone to the location a half hour earlier to search for Kenneth Leonard and, during the search, saw in plain view "a green vegetable matter" that appeared to be marijuana. Defendant contends that the affidavit described the circumstances establishing probable cause with insufficient particularity, inadequately defined the area to be searched, and failed to disclose that the affiant was capable of identifying marijuana. These arguments are without merit.
An affidavit upon which a search warrant is issued is deemed sufficient if it supplies reasonable cause to believe that the proposed search for evidence probably will reveal the presence upon the described premises of the objects sought and that they will aid in the apprehension or conviction of the offender. E.g. State v. Arrington, 311 N.C. 633, 319 S.E.2d 254 (1984). The direct personal observation by the officer/affiant or his fellow officers is plainly a reliable basis for issuance of a warrant. See State v. Horner, 310 N.C. 274, 311 S.E.2d 281 (1984), State v. Moore, 79 N.C.App. 666, 340 S.E.2d 771 (1986), disc. rev. denied, 319 N.C. 393, 354 S.E.2d 228 (1987). Moreover, in our opinion, a trained law enforcement officer need not swear to his ability to recognize an illegal substance in order for his observation to be deemed reliable by the issuing magistrate.
Defendant suggests that because Sgt. Gilley did not specify precisely where on the premises the marijuana was seen and limit the area to be searched accordingly, the warrant was invalid. Although Defendant correctly maintains that a warrant must designate the place to be searched with reasonable certainty, see N.C.Gen.Stat.Sec. 15A-246(4), we conclude that the designation of location in this case is adequate. Based on Sgt. Gilley's personal observation of marijuana in plain view on the premises, any areas of the house or outbuildings might be reasonably viewed as possible repositories for additional marijuana. See, e.g., Moore; State v. Mavrogianis, 57 N.C.App. 178, 291 S.E.2d 163, disc. rev. denied, 306 N.C. 562, 294 S.E.2d 227 (1982); State v. Trapper, 48 N.C.App....
To continue reading
Request your trial
-
Steinkrause v. Tatum
......728, 732-33, 515 S.E.2d 452, 455 (1999). We review whether the trial court's Findings of Fact support its conclusions of law de novo. State v. Campbell, 188 N.C.App. 701, 704, 656 S.E.2d 721, 724 (2008). . Petitioner argues on appeal that the trial court erred by (I) ... Id.; see also State v. Leonard, 87 N.C.App. 448, 454, 361 S.E.2d 397, 400 (1987) ("The direct personal observation by the officer/affiant or his fellow officers is plainly a ......
-
State v. Jarman
......McCoy, 105 N.C.App. 686, 414 S.E.2d 392 (1992); judgment mistakenly stating that prison term was imposed pursuant to plea agreement, see State v. 535 S.E.2d 879 Leonard, 87 N.C.App. 448, 361 S.E.2d 397 (1987); judgment erroneously stating conviction of wrong crime, see State v. Jamerson, 64 N.C.App. 301, 307 S.E.2d 436 (1983) (ordering new trial on other grounds, but indicating judgment needed to be corrected to show proper convictions). Where ......
-
State v. Stover
......However, this Court has noted that "in our opinion, a trained law enforcement officer need not swear to his ability to recognize an illegal substance in order for his observation to be deemed reliable[.]" State v. Leonard, 87 N.C.App. 448, 454, 361 S.E.2d 397, 400 (1987). Although Leonard dealt with an officer's visual recognition of marijuana, we believe that an officer's olfactory identification of the drug is equally reliable. Therefore, we hold that the officers' testimony that they smelled marijuana outside ......
-
State v. Tejeda-Rivera, No. COA08-283 (N.C. App. 10/21/2008)
......693, 697, 386 S.E.2d 187, 190 (1989). "A defendant's presence on the premises and in close proximity to a controlled substance is a circumstance which may support an inference of constructive possession." State v. Alston, 91 N.C. App. 707, 710, 373 S.E.2d 306, 309 (1988) (citing State v. Leonard, 87 N.C. App. 448, 456, 361 S.E.2d 397, 402 (1987),disc. rev. denied and appeal dismissed, 321 N.C. 746, 366 S.E.2d 867(1988). See also State v. Rich, 87 N.C. App. 380, 383, 361 S.E.2d 321, 323 (1987)). In the case sub judice, the State presented evidence that defendant was found ......