State v. Wiggins
| Citation | 648 S.E.2d 865 |
| Decision Date | 21 August 2007 |
| Docket Number | No. COA06-1481.,COA06-1481. |
| Court | Court of Appeal of North Carolina (US) |
| Parties | STATE of North Carolina v. KENNETH JAMES WIGGINS and ROBERT ALPHONSO CARTWRIGHT. |
Thomas R. Sallenger, Wilson, for Defendant-Appellant Kenneth James Wiggins.
William D. Spence, Kinston, for Defendant-Appellant, Robert Alphonso Cartwright.
Kenneth James Wiggins (Wiggins) and Robert Alphonso Cartwright (Cartwright) (collectively Defendants) were arrested on various drug-related charges after police found cocaine, drug paraphernalia, and opium derivatives in the vehicle in which they were riding and in their hotel rooms. Wiggins was convicted of (1) trafficking in cocaine by possession; (2) trafficking in cocaine by transportation; (3) possession of cocaine with intent to sell; (4) conspiracy to traffic cocaine by possession; (5) possession of drug paraphernalia; and (6) trafficking in opium by possession. Cartwright was convicted of (1) trafficking in cocaine by possession; (2) trafficking in cocaine by transportation; (3) possession of cocaine with intent to sell; and (4) conspiracy to traffic in cocaine by possession. Defendants appeal.
Before pretrial motions on 12 April 2006, Cartwright moved for a mistrial based upon comments made by a prospective juror during jury selection. During jury selection, a prospective juror commented that he knew Cartwright because he had "partied" with Cartwright. The prospective juror was also asked if he knew "anyone else within the bar" and the prospective juror indicated he knew his probation officer and pointed to a probation officer. Cartwright argued that these comments implied that the prospective juror was on probation, and that the prospective juror "[hung] out [and] partie[d] with" Cartwright, and that this implication tainted the jury. The trial court denied Cartwright's motion.
At trial, Deputy Kevin Duprey (Deputy Duprey), a narcotics investigator with the Dare County Sheriff's Department, testified that on 18 October 2004, while training outside of Dare County, he was contacted by a confidential informant (the informant). The informant stated that Defendants would be going to a hotel room the following day "to use and sell drugs." Deputy Duprey stated that although he had spoken with the informant prior to that day, the informant had not done any work with the Dare County Sheriff's Department. The informant had, however, worked with the Chowan County Sheriff's Department, and had been "productive" and "reliable[.]"
Deputy Duprey testified that the informant called him again on 19 October 2004 and stated that Defendants were staying at the Quality Inn in Kill Devil Hills in Rooms 208 and 209. The informant described the vehicle Defendants were using as "a red over black pickup truck." The informant described Wiggins as a male "in his forties with short brown hair and skinny with some facial hair." The informant described Cartwright as being "bald with a goatee." Deputy Duprey testified that after receiving this information, he contacted a sergeant to act on the information while Deputy Duprey was out of the county.
Deputy Duprey testified that the informant called him again on 20 October 2004 and stated that Wiggins would be leaving Dare County to travel to Gates County to pick up cocaine, and he would then return to the Quality Inn. The informant was unsure as to whether Cartwright would be accompanying Wiggins. The informant also stated that Wiggins had a handgun, but he was unsure whether Wiggins would take the gun with him. The informant again provided Deputy Duprey with a physical description of both Defendants and a description of Defendants' vehicle.
Deputy Duprey testified that he returned to Dare County at approximately 7:30 p.m. on 20 October 2004 and waited in Currituck to see if a red and black pickup truck would pass him, traveling toward Dare County. At approximately 11:15 p.m., Deputy Duprey observed a vehicle that matched the informant's description. Deputy Duprey testified that he observed two males in the vehicle who matched the informant's description. Deputy Duprey followed the vehicle from Currituck to the Quality Inn in Dare County. Deputy Duprey and other law enforcement officers who were waiting at the Quality Inn surrounded the vehicle. Wiggins was driving and Cartwright was riding in the passenger seat. The officers informed Defendants they were being stopped because of information the officers had received that Defendants were bringing drugs into Dare County. Deputy Duprey testified that Wiggins stated "he didn't have anything" and that the officers "could look." Defendants were separated and Deputy Duprey contacted a canine unit. Deputy Duprey stated that when he spoke with Defendants separately, each gave a different account of where they had been.
During this portion of Deputy Duprey's testimony, Defendants objected to testimony regarding the statements made to Deputy Duprey by the informant. Outside the presence of the jury, Cartwright's attorney argued that the statements were hearsay and requested a limiting instruction to avoid jury confusion. The State argued that the statements were not hearsay because they were not offered to prove the truth of the matter asserted, but rather, were offered to explain the actions of Deputy Duprey. The trial court agreed the testimony was not hearsay, but agreed to give a limiting instruction. The trial court asked Cartwright's attorney to draft the instruction he would like the trial court to give the jury. The trial court ultimately included that instruction in its charge to the jury.
Deputy Duprey testified that a canine unit was deployed on the vehicle. The dog was trained to alert officers by scratching and/or biting at a specific area if the dog smelled a controlled substance. Deputy Duprey testified that the dog scratched at the passenger side of the vehicle and at the console area inside the vehicle. The officers searched the inside of the vehicle. In the console, the officers found digital scales and a .25 caliber handgun magazine containing one bullet.
Deputy Duprey testified that he opened the hood of the vehicle because the hood was a common place for drugs to be hidden. He saw a plastic bag inside the right side of the fender well. He described the bag as "very clean[.]" The officers brought the dog back to the vehicle, and the dog "scratch[ed]" and "pull[ed]" at the area where the bag was located. Deputy Duprey removed the bag from the vehicle. He saw a "very clean" shirt inside the bag. He unrolled the shirt, smelled the odor of cocaine, and saw a bag containing white powder. Deputy Duprey testified that he then placed Defendants under arrest.
Deputy Duprey asked Wiggins whether there was any contraband in his hotel room, and Wiggins stated that there was "some marijuana and paraphernalia." Cartwright told Deputy Duprey that his room contained paraphernalia, but no drugs. Both Defendants consented to a search of their rooms.
According to Deputy Duprey's testimony, Wiggins was staying in Room 208 of the Quality Inn. When Deputy Duprey entered Room 208, he found various items that had been converted into devices used for smoking drugs, including a pill bottle that had been converted for use in smoking marijuana, and "a brass-type abrillo pad" used for smoking crack cocaine. He also found several marijuana smoking pipes, a bottle of Clear Eyes, a second pill bottle, push rods used to clean out or pack a pipe, and a spoon containing white powder and burn marks suggesting that it had been used to liquify cocaine for injection. Deputy Duprey also recovered some white pills and some red and white pills in a brown bag in Room 208. In the same brown bag, Deputy Duprey recovered what he believed to be marijuana. In a black bag, he found a .25 caliber handgun containing six bullets. On a table, he found an open box of baking soda, which he stated could be used to create a base to turn cocaine into a solid, and a lighter. The State asked Deputy Duprey whether he was able to determine if another individual was staying with Wiggins. Deputy Duprey testified that some items in Room 208 could have belonged to another person, but the officers "never physically saw [another] person inside that room."
Deputy Duprey testified that he next searched Room 209, Cartwright's room. Deputy Duprey observed a crack pipe and a needle. Deputy Duprey testified that he did not seize the items he saw in Cartwright's room.
Deputy Duprey also testified that the reports received from the State Bureau of Investigation revealed (1) that the bag found in the vehicle contained 54.3 grams of cocaine hydrochloride; (2) that the white pills found in Room 208 were oxycodone and weighed 5.2 grams; and (3) that the white and red pills were a "pharmaceutical preparation containing oxycodone[,]" an opium derivative, and weighed 3.2 grams. He testified that the amount of cocaine found in the vehicle was an amount of cocaine that a person "would possess to sell."
On cross-examination by the attorney for Wiggins, Deputy Duprey was asked whether an individual named Nicole Ballard was staying in the hotel room with Wiggins. Deputy Duprey answered:
I have no clue [whether] she was staying in the room. She was not seen in the room. There [were] pictures found of her inside the room but we [didn't] see[] that she was actually inside the room.
Deputy Duprey was also asked:
[Attorney for Wiggins]: Investigator Duprey, do you have any further knowledge of Nicole Ballard staying in the hotel room with Mr. Wiggins?
[Deputy Duprey]: Except for his statement that she stayed there. Other than that, I do not.
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