No. Coa11-707 Twenty-Secondbjudicial District

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NO. COA11-707 TWENTY-SECONDBJUDICIAL DISTRICT

NORTH CAROLINA COURT OF APPEALS

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STATE OF NORTH CAROLINA)

)

Vs.)From Davidson County

)10 CRS 54301

DANA MICHAEL BERRIER)

)

Defendant-Appellant.)

ISSUES ON APPEAL

I.DID THE COURT COMMIT CONSTITUTIONAL ERROR IN DENYING DEFENDANT’S MOTION TO SUPPRESS?

II.DID THE TRIAL COURT ERR IN FAILING TO ENTER AN ORDER ON DENIAL OF THE MOTIOIN TO SUPPRESS THAT MADE THE REQUIRED FINDINGS OF FACT AND CONCLUSIONS OF LAW?

III.DID THE TRIAL COURT ERR IN ALLOWING HEARSAY TESTIMONY ABOUT CONFIDENTIAL INFORMANT’S COMMUNICATIONS TO POLICE WHERE, NOT ONLY WAS THIS TESTIMONY INADMISSIBLE HEARSAY, BUT IT VIOLATED THE APPELLANT’S SIXTH AMENDMENT RIGHT TO CONFRONT AND CROSS EXAMINE WITNESSES AGAINST HIM?

IV.DID THE TRIAL COURT ERR IN DENYING THE APPELLANT’S MOTION TO DISMISS ALL CHARGES MADE AFTER THE CLOSE OF THE STATE’S EVIDENCE AND AT THE CLOSE OF ALL EVIDENCE?

STATEMENT OF THE CASE

Defendant-Appellant, Dana Michelle Berrier, was tried before a jury at the January 11, 2011 session of the Davidson County Superior Court on the following charges: Trafficking in Opium or Heroin by Possession; Possession of Controlled Substance with the Intent to Sell and Deliver; Maintaining a Dwelling Place to Keep Controlled Substance. The Honorable Mark E. Klass was the presiding Superior Court Judge. The jury returned a verdict of guilty on the charges on February 1, 2011. (R pp 60-61)The trial court entered Judgment on February 1, 2011. (R pp 62-63) Ms. Berrier made notice of appeal in open court. The Record on Appeal was filed in the Court of Appeals on June 13, 2011 and docketed on June 15, 2011.

STATEMENT OF THE BASIS OF APPELLATE REVIEW

Pursuant to N.C. Gen. Stat. § 7A-27(b), Ms. Berrier appeals by right a final judgment of conviction entered by the Davidson County Superior Court following a jury verdict.

STATEMENT OF FACTS

A. Motion To Suppress

Language of the Affidavit

The affidavit in support of the search warrant, filed on May 24, 2010, contains the following factual information to

support a search of Ms. Berrier’s residence on Beulah Hairston Road:

Over the last several months, the Davidson County Sheriff’s Office Vice/Narcotics Unit has been receiving information from various sources that Dana Michael Berrier is in the business of selling illegal prescription pills in the Davidson County Area.

On January 11, 2010 this affiant and Detective Eads arrested a subject during a traffic stop for trafficking Oxycodone. The Subject provided information to this affiant and Detective Eads that Dana Michael was in the business of selling a large amount of prescription pills in the Davidson County area. This subject told the affiant that Dana was living on Beulah Hairston Rd. in Tyro with her husband. The subject admitted to buying pills in the past from Dana. The subject stated that Dana had prescriptions for some but not all of the pills that she sells.

On May 11, 2010, this affiant arrested a second subject for possession with intent to sell Oxycontin and Xanax. This subject wished to give information to the affiant. This subject admitted to buying Oxycontin and other prescription pills from Dana Michael in the past. The subject knew that Dana Michael lived in Tyro but did not know where.

On May 12, 2010, this affiant, Detective Eads and Detective Goforth met with a confidential source who wished to give information concerning the sale of pills in Davidson County area. The source stated that Dana Michael Berrier was in the business of selling pills. This source admitted to buying pills from Dana Michael several times in the past. This source stated that Dana lived on Beulah Hairston Road off Frank Hulin Road with her husband. The source

agreed to make a controlled purchase. The source and their vehicle were searched for contraband. No contraband was found. The source was provided with Davidson County Sheriff’s Office special funds. The source was then followed to Beulah Hairston Rd. A short time later the source was observed leaving Beulah Hairston Rd. The source then met back with this affiant at a prearranged location. The source turned over several oxycontin pills to this affiant. The source and their vehicle were again searched for contraband. No contraband was found. The source admitted to buying the pills from Dana Michael Berrier at 190 Beulah Hairston Rd. (R pp 5-6)

Evidence at Voir Dire

As shown from the excerpt above, the search warrant obtained by the Davidson County Sheriff’s Department propounded several “confidential” and “reliable sources” as a basis for probable cause to believe that the Berrier residence contained illegal drugs. (R pp 5-6) At voir dire, the defense explored those attestations in detail.

Detective Mike Burns, the affiant who applied for the warrant, testified that he received information “from various sources” about Ms. Berrier selling illegal prescription pills in the Davidson County area. (T pp 123, 188) These “various” sources provided information over a period of “several months,” though the precise time frame was left largely unspecified. (T p 196) He did recall that he had contact with “confidential informant number one, on January 11, 2010,” but that she never

told him that she bought the narcotics at Ms. Berrier’s residence on Beulah Hairston Road. (T p 200)) The State adduced the following testimony to illustrate that informant’s reliability:

Q. During the time that you had a conversation with this individual, we will call that confidential informant number one, on January 11, 2010, was there any circumstance or information or anything that you perceived to indicate that informant number one was not telling you the truth?

A. No sir. (T p 189)

After this line of questioning was challenged by the defense, as going beyond the scope of the affidavit attached to the warrant in a manner not permitted by N.C. Gen. Stat. § 15A-245, the State explained, “He’s the person who typed the affidavit;” “I’m asking him if he believes it’s true.” (T p 191).

Detective Burns continued to explain that he also found a “confidential source” who “agreed to conduct a “controlled purchase” for them. (T p 192) They gave this person “a certain amount of Davidson County Sheriff’s Department funds,” and “conducted surveillance” on him at a “prearranged location.” (T p 192) Here, the “target” location was Ms. Berrier’s residence on Beulah Hairston Road. (T p 193) However, Detective Burns did not place a monitoring device on this person, and did not see

him go to Beulah Hairston Road, so he had no way of knowing if the informant actually went there. (T pp 203-4)

Detective Burns admitted that some of the “confidential reliable informants” did not provide a time frame for their purchases from Ms. Berrier, and he agreed that the purchases could have been as long as ten years ago. (T p 200).

Detective Burns contended emphatically that he believed all of the confidential informants were reliable, but agreed that he did not explain the basis for that conclusion in his affidavit. He acknowledges that was not the better practice:

Q. There’s nothing in this particular paragraph about this particular source that he gave information that’s proved reliable in the past?

A. Not in this affidavit other than he’s deemed a confidential reliable source rather than a confidential source.

Q. Just the fact that you deemed him reliable, you didn’t think it was necessary to put any information in the affidavit to prove or verify his reliability?

A. It probably would have been a good idea. (T p 205)

The trial court summarily denied the motion to suppress the search warrant and concomitant evidence upon entry into the Beulah Hairston Road residence. The court made no findings of fact.

B. Trafficking in Narcotics; Maintaining A Dwelling for Keeping and Selling Controlled Substances; Possession with Intent to Sell and Deliver Controlled Substances

When Detective Burns and five other armed officers entered the house on Beulah Hairston Road, they found several labeled prescription bottles in a locked makeup case. (T pp 266-277) The pill bottles, obviously issued from a pharmacy, had the following names on them: Gerald Michael, Brian Young; Dana Berrier (the Defendant); Brandon Gaither (T pp 267, 273, 275) The officers also found medication in a kitchen cabinet in bottles issued to Carla Fuller and Tracy Michael. (T p 280) The latter medication was oxycondone. (T p 280) After analysis at the SBI lab, all of the pills were determined to be opiates, either oxycodone or oxymorphone. (T pp 267-279; 355-362)

Brian Young is Ms. Berrier’s husband. (T p 320) Tracey Michael is Ms. Berrier’s sister. (T p 322)

Detective Burns testified that Beulah Hairston residence contained documents in other people’s names, but an electric bill in Ms. Berrier’s name. At the time of entry, the officers found inside the house Ms. Berrier, her husband and Brandon Gaither. (T p 329) They found male clothing, which could have belonged either to Mr. Young or to Mr. Gaither. (T p 329)

As Detective Burn’s investigation was drawing to a close, Brandon Gaither drove up to the Beulah Hairston Road house. (T pp 410, 411) Detective Burns told Mr. Gaither that he was

seizing a pill bottle with his name on it and Mr. Gaither verified that the medicine was his. (T pp 411-412) The medication in Mr. Gaither’s pill bottle was later determined by the SBI to contain 6.3 grams of oxycodone. (T p 412) Detective Burns admits that the fourteen-plus grams of opiates that Ms. Berrier is charged with on the trafficking offense contain the 6.3 grams that belong to Mr. Gaither. (T p 413)

All of the medication (prescription opiates) of Ms. Berrier and her husband, Mr. Young, were obtained by prescription from a pharmacy. (T p 426) Defendant’s Exhibit 3 is a print-out of their prescription opiates. (T p 426) Mr. Young testified that he takes oxycodone regularly by prescription. (T p 427)

Mr. Jarrett Russell, who testified that he has been Dana Berrier’s best friend for the past eleven years, actually lives with Ms. Berrier and her husband at the Beulah Hairston Road residence. (T pp 429-430) He testified that he brought approximately six oxycodone pills into the house and that he obtained them at a night club. They were his pills, not Dana Berrier’s. (T pp 433-434)

Tracey Michael, Ms. Berrier’s sister, also lives at the Beulah Hairston Road residence. (T p 453) She is currently taking Percocet, and various other opiate-based medications for “degenerative arthritis;” further her “spine is collapsing,” and she has a “bulging disk.” (T pp 455-456) She recalls that she

had at least ten Percocet tablets at the Beulah Hairston Road residence the day the officers arrived. (T p 456) She also keeps all of her empty medication bottles, though she was quick to add, “It is not that I am a hoarder.” (T p 457) She testified that she had her sister, the Defendant, lock up her painkillers because she found that she had difficulty keeping track of how many she was taking. (T p 458)

Russell Patterson, a Doctor of Pharmacy, owns the Tyro Family Pharmacy in Tyro, North Carolina, where Ms. Berrier and her husband have their prescriptions filled. (T p 435) He testified that it is possible that he put two different types of medication into one pill bottle for Mr. Young, even though he indicated that may be in violation of North Carolina law. His explanations as to why he would do this were lengthy and discursive, loosely interjecting the problem of supply shortages and his interpretation of a pharmacist’s discretion.[1] (T pp 435-443) However, relevant to the issues at trial, he admitted he may have placed two types of medication in one container when filling a prescription for Mr. Young. (T p 443)

Appellant, Ms. Berrier, testified that she does live in the Beulah Hairston Road residence with her sister, husband, Jarrett Russell and, on occasion, Brandon Gaither. (T pp 465-466) She,

her husband and her sister all “go to a pain clinic,” and, “It is stated in paperwork that you received that it is requested or a good idea to keep all narcotic medication locked up.” (T pp 465-466) Ms. Berrier frequently transports her father, Gerald Michael, who is over seventy and cannot drive. (T p 467) He, too, takes pain medication which is often in Ms. Berrier’s possession due to her care of her father. (T p 467)

Ms. Berrier acknowledges that she did sign the statement:

I have sold prescription meds to help with getting money for my attorney fees to get my kids back, i.e., Percocet, hydrocodone, Oxycodone, roxies and Percocet. There’s dollar amounts, Percocets indicated at $6.00 each. Hydrocodone $6.00 each, Oxycontin $30.00 and $15.00.” (T p 143)

However, she testified that she told Detective Burns that her statement applied to conditions three years ago, when she was in a custody battle. (T p 475) As she explained, “I used to have a problem or an addiction to drugs, three years ago.” (T p 475) Back then, she “was not in her right mind because of [her] addiction” and “may have sold some pills then to support her addiction.” (T p 474) Since that time, she has, in her words: “cleaned myself up, got married, had a child.” (T p 474) “There is nothing going on down here” at this time, she told Detective Burns. (T p 474)

ARGUMENT

I.STANDARD OF REVIEW

A. Section II of the Argument: Appellate review of a denial of a motion to suppress is limited to a determination of whether the trial judge’s findings of fact are supported by competent evidence. State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982). The Court must determine whether competent evidence supports the findings of fact. Id. “While the trial court’s factual findings are binding if sustained by the evidence, the court’s conclusions based thereon are reviewable de novo on appeal.” State v. Parker, 137 N.C.App. 590, 594, 530 S.E.2d 297, 300 (2000).

B.Section III of the Argument: Appellant argues that the trial court failed to follow the statutory mandate of making findings of fact in a denial of a motion to suppress. Failure to follow a statutory mandate is reversible error, per se. In re Eades, 143 N.C.App. 712, 713, 547 S.E.2d 146, 147 (2001).

C. Section IV of the Argument: The Standard of Review for erroneously admitted evidence is whether a reasonable possibility exists that a different result would have occurred had the evidence not been admitted. See generally,State v. Galloway, 304 N.C. 485, 496, 285 S.E.2d 509, 516 (1981).

The standard of review for admission of evidence in violation of the United States Constitution is whether the error

was harmless beyond a reasonable doubt. See generally, State v. Hooper, 318 N.C. 680, 351 S.E.2d 286 (1987).

D. Section V of the Argument. In deciding whether to dismiss a charge due to the insufficiency of the evidence to support a conviction, the trial court determines if the State has presented “substantial evidence of each element of the crime and that the defendant is the perpetrator.” State v. Call, 349 N.C. 382, 417, 508 S.E.2d 496, 518 (1996), appeal after remand 353 N.C. 400, 545 S.E.2d 190, cert. denied, 534 U.S. 1046, 122 S.Ct. 628, 151 L.Ed.2d 548 (2001). Substantial evidence “is such relevant evidence as a reasonable mind might except as adequate to support a conclusion.” State v. McLaurin, 320 N.C. 143, 146, 356 S.E.2d 636, 638 (1987). The trial court must consider all evidence in the light most favorable to the State. State v. Hinton, 155 N.C.App. 561, 573 S.E.2d 609 (2002).

II.THE COURT COMMITTED CONSTITUTIONAL ERRORIN DENYING DEFENDANT’S MOTION TO SUPPRESS

The entire State’s case consisted of prescription narcotics seized at Ms. Berrier’s home, on Beulah Hairston Road. The Defense filed a motion challenging these searches. (R pp 24-27)Following a hearing, which involved extensive voir dire, the trial court denied the motion. (T p 238)[2] In reaching the

conclusion that probable cause supported the search warrant, and that the warrant was not fatally overbroad, the court ignored fundamental principles of constitutional law. (T p 238) As shown above, the affidavit in support of the warrant contains general information from people labeled “confidential, reliable informants,” with no specific information explaining why they deserve that sobriquet. At voir dire, Detective Burns had ample opportunity to elucidate the factual basis for his “confidential” and “reliable” informants, but simply never did. Moreover, many of these “confidential reliable informants” provided their information months before the affidavit, perhaps even years before the affidavit. Most people purported to know that Ms. Berrier sold prescription narcotics somewhere in Davidson County. Only one tied Ms. Berrier to the residence on the search warrant. (R pp 5-6)

The warrant fails basic constitutional requirements under the Fourth Amendment to the United States Constitution and the Constitution of North Carolina for searches of private residences. The State may issue a search warrant only upon a showing of facts that establish a fair probability that the locality in question will contain contraband or evidence of a crime. See, Illinois v. Gates, 462 U.S. 213, 238 (1983); see also,State v. Fernandez, 346 N.C. 1, 13, 484 S.E. 2d 350 (1997); N.C.Gen.Stat. § 15A-244. The affidavit must provide

the magistrate with a substantial basis for determining the existence of probable cause. Gates at 239. Thus, it must contain facts which, to the reasonably discreet and prudent person, would constitute probable cause. State v. King, 92 N.C. App. 75, 373 S.E.2d 566 (1988). For that reason, conclusory affidavits cannot establish probable cause. As the Supreme Court noted in Gates:

Our earlier cases illustrate the limits beyond which a magistrate may not venture in issuing a warrant. A sworn statement of an affiant that he has cause to suspect and does believe that liquor illegally brought into the United States is located on certain premises will not do. Nathanson v. United States, 290 U.S. 41 (1933). An affidavit must provide the magistrate with substantial basis for determining the existence of probable cause, and the wholly conclusory statement at issue in Nathanson failed to meet this requirement. An officer’s statement that [a]ffiants have received reliable information from a credible person and do believe that heroin is stored in a home, is likewise inadequate. Aguilar v. Texas, 378 U.S. 108. As in Nathanson, this is a mere conclusory statement that gives the magistrate virtually no basis at all for making a judgment regarding probable cause. Sufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others.

462 U.S. at 269; see also State v. Hyleman, 324 N.C. 506, 509, 379 S.E.2d 830 (1989) Likewise, the North Carolina Supreme Court has held that conclusory affidavits, stating only the belief of the affiant or an informer that probable cause exists, do not actually show probable cause or justify the issuance of a warrant.State v. Sheetz, 46 N.C.App. 641, 265 S.E.2d 914