State v. Tate

• Decision Date: 03 August 1982
• Docket Number: No. 8121SC1199,8121SC1199
• Citation: 58 N.C.App. 494,294 S.E.2d 16
• Parties: STATE of North Carolina v. Beverly Elaine TATE. STATE of North Carolina v. Ralph Edwin TATE, Jr.
• Court: North Carolina Court of Appeals

Page 16

294 S.E.2d 16

58 N.C.App. 494

STATE of North Carolina v. Beverly Elaine TATE.

STATE of North Carolina v. Ralph Edwin TATE, Jr.

No. 8121SC1199.

Court of Appeals of North Carolina.

Aug. 3, 1982.

Atty. Gen. Rufus L. Edmisten by Sp. Deputy Atty. Gen. Edwin M. Speas, Jr., and Asst. Atty. Gen. Lisa Shepherd, Raleigh, for the State.

Morrow & Reavis by John F. Morrow, Winston-Salem, for defendants-appellants.

ROBERT M. MARTIN, Judge.

PRE-TRIAL MOTIONS

Prior to trial both defendants filed motions to suppress evidence seized pursuant to a search warrant or, in the alternative, to identify the alleged confidential informant referred to in the application for the search warrant. In support of her 12 February 1981 "MOTION TO SUPPRESS AND/OR TO IDENTIFY INFORMANT," the defendant Beverly Tate filed an affidavit. This affidavit was incorporated for support by both defendants in their motions. Beverly swore that on the morning of 5 November 1980 Barry Wayne Morgan called and indicated he would like to talk with her at her apartment. Beverly later met Morgan at 12:15 p. m. He told her that someone was threatening him because of money owed. He asked Beverly if he could leave some cocaine at her apartment and she consented. Beverly made the additional averments in her affidavit:

I came home from work at about 5:00 p. m. to 5:15 p. m. The said Barry Wayne Morgan called shortly thereafter and said he would be by the house in a little while. He arrived at about 6:45 p. m. to 7:00 p. m. and told me that he wanted to get some of the cocaine that he left there to show someone who wanted to purchase a large amount of cocaine from him. He told me that he wanted to weight (sic) out some, and I told him that I did not have anything to weigh the cocaine with. We called a person named Steve who came by later with a set of scales that were normally used to weigh gunpowder. He set the scales up on my coffee table and showed Barry Wayne Morgan how to use them. We then helped Barry Wayne Morgan weigh the cocaine and bag it up. All of this was done at the said Barry Wayne Morgan's request. Barry Wayne Morgan then used some cocaine.

Barry Wayne Morgan then asked me if I knew anybody who might want to buy some cocaine. I told him that I would call a friend, and I did call the friend at his request. I thereafter told him that the friend would probably be at the house between 7:30 p. m. and 8:00 p. m. Barry Wayne Morgan then told me that he was behind schedule and needed to leave and asked me if I would try to sell some of his cocaine to my friend. Barry Wayne Morgan then told me that he would hurry back as soon as possible to pick up the cocaine.

I have received three telephone calls from persons who would not identify themselves who have told me that Barry Wayne Morgan was working with the Police Department and that he had set me up. I have been further informed and so allege that charges against the said Barry Wayne Morgan have either been dropped or pleabargained favorably to Barry Wayne Morgan.

A hearing was held on defendants' motions immediately prior to trial. The District Attorney complied with these motions by informing both defendants that the name of the informant was Barry Morgan. Beverly's attorney then moved for permission to talk with Morgan. Ralph's attorney made a request for a recess or continuance in order to prepare for trial. Both requests were denied.

Defendants now assign error to the denial of this request for a recess or continuance for the purpose of interviewing Morgan. They argue that they were denied due process of law since they filed motions requesting the identification of the informant months prior to trial and were given this information only minutes before trial. In support of their argument defendants rely upon the recent decision in State v. Hodges, 51 N.C.App. 229, 275 S.E.2d 533 (1981). In Hodges we held that the defendant's right to due process was violated when the State refused to reveal the identity of an informant who was present and participated in the alleged sale of marijuana. The indictment disclosed that defendant had allegedly sold marijuana to S.B.I. Agent Bowden. Defendant was not aware of any other person being present and participating in the offense until he overheard the name of the informant the day before trial. He immediately moved for a continuance, but his motion was denied. The trial court did, however, order the arrest of the informant. The informant had not been found at the time of trial. We concluded that "[t]he name of the participating informant should have been disclosed to the defendant in advance of trial and in time for him to interview the informant and determine whether his testimony would have been beneficial to defendant." Id. at 232, 275 S.E.2d at 535.

The facts in the case sub judice do not compel the same conclusion. The defendant Beverly Tate's affidavit clearly indicates that she knew of Morgan's involvement in the crimes from the date of their occurrence. The record on appeal reveals that both defendants subpoenaed Morgan a month before trial; that they asked Morgan's attorney for an interview with his client and that their request was denied. Unlike the informant in Hodges, Morgan After the trial court denied either a recess or continuance, the court considered defendant Beverly Tate's written motion to suppress all evidence obtained as a result of the search warrant. She alleged in her motion and supporting affidavit that the warrant failed to designate the items to be seized; that items not designated in the warrant were seized improperly; that the officers failed to give appropriate notice before entering the apartment; that the officers failed to read the warrant to her before searching the apartment and that the officers improperly detained or searched persons in her apartment. At the voir dire hearing on this motion, Detective Spillman of the Winston-Salem Police Department testified for the State. The defense presented no witnesses. At the conclusion of Detective Spillman's voir dire testimony, the court entered the following order:

was present at the trial and was cross-examined by the defendants. We fail to see how any of defendants' due process rights were violated. Defendant Ralph Tate's Assignment of Error No. 1 and defendant Beverly Tate's Assignment of Error No. 2 are overruled.

From the evidence offered, the Court finds that a search warrant was issued by Deputy Clerk of the Superior Court R. R. Vannoy pursuant to the application of Police Officer R. A. Spillman; that the return of said warrant was made on November 5, 1980, by Officer R. A. Spillman of the Winston-Salem Police Department; and the Court finds, determines, and concludes from the evidence offered that the search warrant is a valid search warrant, amply supported by the application, and that the search warrant, together with attachment No. 1 (containing a physical description of both the apartment and the defendants) and the inventories of the property seized, are valid and not in violation of any of the constitutional rights of Beverly or Ralph Tate.

The objections of the defendants, Beverly and Ralph Tate, to the search warrant and their Motions To Suppress the same are denied and dismissed.

Assignments of Error Nos. 5, 6 and 9 involve the trial court's order denying the motion to suppress. Defendants argue in Assignment of Error No. 5 that the trial court did not make sufficient findings of fact to support the conclusions of law in this order. They emphasize that this was a violation of G.S. 15A-977. We recognize that both G.S. 15A-977(d) and (f) require the trial judge to make findings of fact after conducting a hearing on a motion to suppress evidence. Case law subsequent to this statute has recognized an exception to the general rule.

If there is no material conflict in the evidence on voir dire, it is not error to admit the challenged evidence without making specific findings of fact, although it is always the better practice to find all facts upon which the admissibility of the evidence depends. (Citations omitted.) In that event, the necessary findings are implied from the admission of the challenged evidence. (Citation omitted.)

State v. Phillips, 300 N.C. 678, 685, 268 S.E.2d 452, 457 (1980). Both defendants failed to present any testimony to refute Detective Spillman. Since Spillman's testimony supported the trial court's conclusion of law that the search warrant was valid, no error was committed.

We do note that Detective Spillman admitted seizing items in the apartment other than the bags containing cocaine. Cocaine was the only item designated in the search warrant. Defendants, however, are wrong in their belief that the seizure of other items constituted a violation of G.S. 15A-242. These other items consisted of large sums of cash, apparatus commonly used in manufacturing cocaine, mail belonging to the defendants and the defendants' photographs. G.S. 15A-242(4) allows the seizure of items pursuant to a search warrant when there is probable cause to believe that the items constitute "evidence of an offense or the identity of a person participating in an offense." The items seized clearly fall into this category. See State v. Williams, 299 N.C. 529, 263 S.E.2d 571 (1980).

By Assignment of Error No. 6 defendants contend that the trial court's conclusions of law were insufficient to support the order denying the motion to suppress evidence. They specifically argue that the court concluded only that there was no constitutional violation and failed to determine whether defendants' rights under Chapter 15A of the North Carolina General Statutes were violated. We find no merit to this argument, since no evidence of a substantial violation of Chapter 15A was presented at the voir dire hearing.

We further find no merit to defendants' argument in Assignment of Error No. 9. Here defendants assert that the officer executing the search warrant did not...