State v. Wright, No. COA06-1181 (N.C. App. 7/3/2007)
| Decision Date | 03 July 2007 |
| Docket Number | No. COA06-1181,COA06-1181 |
| Parties | STATE OF NORTH CAROLINA v. GREGORY LEON WRIGHT. |
| Court | North Carolina Court of Appeals |
Jeffrey Evan Noecker, for defendant-appellant.
Gregory Leon Wright (defendant) appeals judgments entered on his convictions for one count of trafficking in heroin by possession of more than 4 but less than 14 grams; one count of trafficking in heroin by possession of 28 grams or more; and two counts of possession with intent to sell or deliver heroin.1 We find no error in part and reverse in part.
The pertinent facts may be summarized as follows: In 2005, arrest warrants were issued for Robert Wilson for numerous offenses. Wilson offered to assist the Durham County Police Department by purchasing five grams of heroin from defendant at 1301 Bacon Street in Durham, North Carolina. Wilson reported buying five grams of heroin from defendant approximately every three or four days.
On 28 July 2005, Wilson was utilized in a controlled purchase operation. Wilson arrived at the police station around 7:30 a.m. and met Investigator Kenneth Gooch to prepare for a controlled drug purchase with defendant at 1301 Bacon Street. A search of Wilson and his vehicle revealed he had no drugs on either his person or in his automobile. Wilson was provided with $ 700.00 cash to purchase heroin.
Gooch followed Wilson in another vehicle as Wilson drove to 1301 Bacon Street. Wilson pulled his vehicle into the driveway and Gooch parked his vehicle across the street to observe the transaction. Additionally, Corporal Michael Berendsen, also of the Durham County Police Department, set up a video camera across the street to film the narcotics purchase; this film was later played for the jury.
The videotape depicted Wilson's vehicle pulling into the driveway and defendant cautiously approaching the vehicle. Defendant walked into view and down the short driveway to the street, looking up and down the street. Defendant then reached inside the driver's side window of Wilson's car. Additional details concerning what is depicted on the videotape are included below. Berendsen instructed members of his team to take defendant into custody. Officer T.D. Douglass and other law enforcement officers arrested defendant. At this juncture, Sergeant N.S. Parker asked defendant, without providing Miranda warnings, whether "there [was] anything else in the residence that we needed to know about." Defendant stated that "there was some stuff still in the house." Parker then asked defendant if he would "mind if we [law enforcement] checked[,]" and defendant replied, "[N]o, I'll show you."
From the ground beside the side of Wilson's car where defendant was arrested, Gooch retrieved cash originally given to Wilson for the heroin purchase as well as a plastic bag containing powder and part of a "pellet."2 An additional sum of $110.00 was discovered in one of defendant's pockets. No heroin was found either on Wilson's person or in his vehicle.
Patricia Russell met Gooch at the door to the residence. Russell agreed to a search of the home. Russell acknowledged that defendant resided in the home, and showed the officers defendant's bedroom. Defendant was taken to a bedroom in the house. According to Parker, Gooch asked defendant, "where's it at?" In response, defendant "nodded with his forehead — to the closet door where some clothes were hanging." Defendant then stated, "the last coat." The officers found eight bindles of heroin in this pocket. Gooch asked defendant, "was that it?" Defendant stated that "there were some scales in a gym bag." Officers discovered a digital scale inside the gym bag. In a separate gym bag, the officers found 2 bags containing heroin. The weight of the heroin found on the driveway was 9.9 grams, and the weight of the heroin (the bindles and the pellets) discovered in the bedroom was 215.2 grams.
Defendant was convicted of one count of trafficking in heroin by possession of more than 4 but less than 14 grams; one count of trafficking in heroin by possession of 28 grams or more; and two counts of possession with intent to sell or deliver heroin. Defendant now appeals.
Defendant first contends that the trial court erred by denying his motion to dismiss the trafficking and possession with intent to sell and deliver charges associated with the contraband located on the ground beside the vehicle because the evidence was insufficient to show defendant actually or constructively possessed the narcotics. We disagree.
When ruling on a motion to dismiss, "the trial court must determine only whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense." State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996).
State v. Robinson, 355 N.C. 320, 336, 561 S.E.2d 245, 255-56 (2002) (quoting State v. Parker, 354 N.C. 268, 278, 553 S.E.2d 885, 894 (2001)). "'[T]he rule for determining the sufficiency of evidence is the same whether the evidence is completely circumstantial, completely direct, or both.'" State v. Crouse, 169 N.C. App. 382, 389, 610 S.E.2d 454, 459 (quoting State v. Wright, 302 N.C. 122, 126, 273 S.E.2d 699, 703 (1981)), disc. review denied, 359 N.C. 637, 616 S.E.2d 923 (2005).
"An accused's possession of narcotics may be actual or constructive." State v. Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714 (1972). "A person has actual possession of a substance if it is on his person, he is aware of its presence, and either by himself or together with others he has the power and intent to control its disposition or use." State v. Reid, 151 N.C. App. 420, 428-29, 566 S.E.2d 186, 192 (2002). However, the State is not required to prove actual physical possession of the controlled substance; proof of constructive possession by defendant is sufficient to carry the issue to the jury. State v. Perry, 316 N.C. 87, 96, 340 S.E.2d 450, 456 (1986). "Constructive possession exists when a person, while not having actual possession, has the intent and capability to maintain control and dominion over a controlled substance." State v. Williams, 307 N.C. 452, 455, 298 S.E.2d 372, 374 (1983). Where a controlled substance is found on premises under the defendant's control, this fact alone may be sufficient to overcome a motion to dismiss and take the case to the jury. Harvey, 281 N.C. at 12, 187 S.E.2d at 714. Nevertheless, if a defendant does not maintain exclusive control of the premises, "other incriminating circumstances" must be established for constructive possession to be inferred. State v. Alston, 91 N.C. App. 707, 710, 373 S.E.2d 306, 309 (1988). Our determination then " " State v. Butler, 147 N.C. App. 1, 11, 556 S.E.2d 304, 311 (2001)(quoting State v. Jackson, 103 N.C. App. 239, 243, 405 S.E.2d 354, 357 (1991)).
In the instant case, because the heroin was not found in defendant's actual possession, we evaluate defendant's argument in the context of constructive possession. Here, evidence of other incriminating circumstances include the following: defendant approached Wilson's vehicle with a white object in his left hand; law enforcement officers located heroin and cash on the ground in close proximity to defendant; and after being taken into custody, defendant informed the officer that there was "some stuff still in the house[,]" a statement that shows he was aware of heroin on the ground. Moreover, Wilson was searched prior to the drug buy, and had no drugs on his person or in his vehicle. This gives rise to a reasonable inference that the heroin found on the ground at the time of the arrest came from defendant and not from Wilson. Taken in the light most favorable to the State, we conclude that there was sufficient record evidence to show that defendant had the intent and capability to maintain control and dominion over the heroin on the ground beside Wilson's vehicle. This assignment of error is overruled.
Defendant next contends that the trial court erred by denying his motion to suppress the statements he made to law enforcement in the bedroom of the residence because he had not first been informed of his constitutional rights pursuant to Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694 (1966). Defendant does not challenge the admission of his statements made immediately after being placed under arrest, that "there was some stuff still in the house" or that he would "show [them] where it's at."
It is well settled that Miranda warnings are only required when a person is subject to custodial interrogation. State v. Patterson, 146 N.C. App. 113, 121, 552 S.E.2d 246, 253 (2001) (citations omitted). "[I]nterrogation under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Rhode Island...
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