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INDEX
TABLE OF AUTHORITIES...... iii
Questions Presented......
Statement of the Case......
STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW......
Statement of the Facts......
Arguments......
I.the trial court erred when it denied the defedant’s motion for a continuance because additional time was needed to locate and supoena a material witness.
Introduction......
Standard of Review......
Discussion......
II.the trial court erred when it denied the defendant’s motion for production of the identity of the confidential informant.
Introduction......
Standard of Review......
Discussion......
III.the trial court erred when it denied the defendant’s motion to dismiss the trafficking in cocaine by possession and the possession with the intent to sell or deliver marijuana charges because the evidence was Insufficient that Mr. Oliver possessed the cocaine and marijuana.
Introduction......
Standard of Review......
Discussion......
IV.the trial court erred when it denied the defendant’s motion to dismiss the maintaining a dwelling charge because the evidence was Insufficient to establish all of the elements of that offense.
Introduction......
Standard of Review......
Discussion......
Conclusion......
CERTIFICATE OF FILING AND SERVICE......
appendix......
State v. Carter, unpublished, COA06-1322, July 17, 2007
TABLE OF AUHORITIES
Cases
Roviaro v. United States, 353 U.S. 53, 1 L. Ed. 2d 639 (1957)....
State v. Barlowe, 157 N.C. App. 249, 578 S.E.2d 660, disc. rev. denied, 357 N.C. 462, 586 S.E.2d 100 (2003)
State v. Bowen, 140 N.C. App. 217, 535 S.E.2d 870 (2000)......
State v. Boyd, __ N.C. App. __, 628 S.E.2d 796 (2006)......
State v. Carter, Unpublished, COA06-1322, July 17, 2007......
State v. Cook, 2007 N.C. App. LEXIS 1480,*9, 647 S.E.2d 433 (2007)
State v. Frazier, 142 N.C. App. 361, 542 S.E.2d 682 (2001)......
State v. Grainger, 60 N.C. App. 188, 298 S.E.2d 203 (1982).....
State v. Hamilton, 145 N.C. App. 152, 549 S.E.2d 233 (2001)......
State v. Harris, 157 N.C. App. 647, 580 S.E.2d 63 (2003)......
State v. Harvey, 281 N.C. 1, 187 S.E.2d 706 (1972)......
State v. Jackson, 103 N.C. App. 239, 405 S.E.2d 345 (1991)......
State v. Kraus, 147 N.C. App. 766, 557 S.E.2d 144 (2001)......
State v. Maher, 305 N.C. 544, 290 S.E.2d 694 (1982)......
State v. Mcneil, 359 N.C. 800, 617 S.E.2d 271 (2005)......
State v. Mitchell, 336 N.C. 22, 442 S.E.2d 24 (1994)......
State v. Newkirk, 73 N.C. App. 83, 325 S.E.2d 518 (1985)......
State v. Watson, 303 N.C. 533, 279 S.E.2d 580 (1981)......
State v. Wilson, 2007 N.C. App. LEXIS 253, 640 S.E.2d 403 (2007).
Washington v. Texas, 388 U.S. 14, 18 L. Ed. 2d 1019 (1967)......
Constitutions
U.S. Const. Amends. V, VI, and XIV......
N.C. Const. Art. I, §§ 19 and 23......
Statutes
N.C. Gen. Stat. § 90-108(a)(7)......
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No. COA07-972TWENTY-SIXTH DISTRICT
NORTH CAROLINA COURT OF APPEALS
****************************************************
STATE OF NORTH CAROLINA)
)From MecklenburgCounty
v. )
)
REGINALD JERMAINE OLIVER)
****************************************************
DEFENDANT-APPELLANT’S BRIEF
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Questions Presented
- whether the trial court erred when it denied the defedant’s motion for a continuance because additional time was needed to locate and supoena a material witness?
- whether the trial court erred when it denied the defendant’s motion for production of the identity of the confidential informant?
- whether the trial court erred when it denied the defendant’s motion to dismiss the trafficking in cocaine by possession and the possession with the intent to sell or deliver marijuana charges because the evidence was Insufficient that Mr. Oliver possessed the cocaine and marijuana?
- whether the trial court erred when it denied the defendant’s motion to dismiss the maintaining a dwelling charge because the evidence was Insufficient to establish all of the elements of that offense?
Statement of the Case
Reginald Jermaine Oliver was indicted on May 30, 2006, by a Mecklenburg County Grand Jury for trafficking in cocaine, possession with the intent to sell or deliver marijuana, and maintaining a dwelling to keep controlled substances. (Rpp. 8-10) Mr. Oliver was tried before a jury at the February 5, 2007 Criminal Session of Mecklenburg County Superior Court before the Honorable David S. Cayer. (Rp. 1) Guilty verdicts were entered against Mr. Oliver on all charges. (Rpp. 35-37) A Judgment and Commitment Order was entered onFebruary 6, 2007, and Mr. Oliver was sentenced to a minimum of 35 months and a maximum of 42 months imprisonment. (Rpp. 40-41) Mr. Oliver appealed. (Rpp. 45-46)
STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW
Defendant appeals pursuant to N.C. Gen. Stat. § 7A-27(b) from a final judgment of the Mecklenburg County Superior Court.
Statement of the Facts
A confidential informant told Officer J. Ross with the Charlotte Mecklenburg Police Department that a brown Fleetwood passenger car would be delivering narcotics to Room 107 of the Howard Johnson. (Tpp. 27,34, 37, 88) Officer Robert B. Hartley responded to the information and called for backup. (Tp. 27)
Officer Hartley knocked on the door of Room 107, Mr. Oliver looked through the window, and immediately opened the door. (Tp. 28) Officer Hartley told Mr. Oliver that he could smell marijuana coming from the room and, according to Officer Hartley, Mr. Oliver acknowledged that he had been smoking marijuana. Tp. 28 Officer Hartley testified that Mr. Oliver told him he could enter and look around. (Tp. 28) Officer Hartley testified that he found marijuana in the center of a duffel bag that contained dirty clothes. (Tp. 28) Officer Hartley testified that he also found a white powdery substance and a white rock-like substance in clear, plastic bags which were later confirmed to be cocaine and crack cocaine, respectively. (Tp. 29) Jennifer Mills with the Charlotte Mecklenburg Police Department crime laboratory testified that she analyzed the evidence sent to her and concluded that it was 26.06 grams of cocaine, 22.18 grams of cocaine in separate bag, and 192.6 grams of marijuana. (Tpp. 92, 95-98)
Also present in the room were Veronica Louise Brown, Mr. Oliver’s sister-in-law, Gary Boyce, Ms. Brown’s husband, and Mr. Oliver’s son. (Tpp. 29-30)
Mr. Oliver was arrested and advised of his Miranda rights. (Tp. 30) According to Officer Hartley, Mr. Oliver agreed to talk. Officer Hartley testified that Mr. Oliver stated that he knew the drugs were in the duffel bag and that his brother-in-law,Gary Boyce, had brought them to the room and hidden them in Mr. Oliver’s laundry bag. (Tp. 33) According to Officer Hartley, Mr. Oliver further stated that he was going to buy 2 grams of crack cocaine from Gary Boyce but that the police had arrived before they could complete the deal. (Tp. 33) $40 was found on the defendant. (Tp. 49)
On cross examination, Officer Hartley was asked about the brown Fleetwood passenger car that the confidential informant had identified as delivering narcotics to Mr. Oliver’s hotel room. (Tp. 37) Officer Hartley testified that he did not handle the car and that although he was the lead investigator in the case he did not know whether the other officer had identified the owner of the car. (Tp. 38) Also responding to the scene was a canine officer who did not complete a report. (Tp. 45) Officer Hartley was unable to testify as to whether the canine officer had performed a “sweep” or a search of the brown Fleetwood that was parked outside of Mr. Oliver’s motel room. (Tpp. 46-47) Officer Hartley further testified that he did not know whether the confidential informant received anything in exchange for the information he provided. (Tp. 36)
Gary Boyce was also arrested that day for the same drugs found in Mr. Oliver’s motel room. (Tp. 53) Mr. Boyce was charged with trafficking in cocaine and possession with intent to sell and deliver marijuana. Tp. 53
Officer Edwards testified that he provided coverage for Officer Hartley while Officer Hartley searched the motel room. Tp. 69 Officer Edwards collected the evidence that was gathered, secured the items in his car, and took them to Property Control at the police station. Tp. 72 Officer Edwards acknowledged that only the name of Gary Boyce, the other defendant present in the motel room, appeared on the evidence bags and not the name of Mr. Oliver. Tpp. 83-84 Officer Edwards confirmed that there was a Cadillac parked outside the defendant’s motel room but that he did not investigate its ownership. Tp. 89
Arguments
I.the trial court erred when it denied the defedant’s motion for a continuance because additional time was needed to locate and supoena a material witness.
Assignment of Error No. 2
Introduction
Unable to locate an exculpatory witness, Mr. Oliver made a motion for a continuance. Mr. Oliver explained to the trial court that the witness, Gary Boyce, who had pled guilty to possession of the same drugs for which Mr. Oliver was charged, had been released from jail and Mr. Oliver had been unable to serve a subpoenaon Mr. Boyce. Given the materiality of the expected testimony from Mr. Boyce and the seriousness of the charges Mr. Oliver faced, the trial court erred when it denied Mr. Oliver a continuance and Mr. Oliver was consequently prejudiced.
In the event this Court finds the issue was not properly preserved for appellate review, defendant respectfully requests this Court to invoke Rule 2 of the Rules of Appellate Procedure and address the issue presented below. N.C. R. App. P. 2.
Standard of Review
A motion for a continuance is usually addressed to the discretion of the trial court and is reviewed only upon a showing of an abuse of discretion. SeeState v. Cook, 2007 N.C. App. LEXIS 1480,*9, 647 S.E.2d 433 (2007).
When the motion for a continuance is based on a constitutional right, however, the ruling of the trial court is reviewedde novo on appeal as a question of law. See id.
“‘The denial of a motion to continue, even when the motion raises a constitutional issue, is grounds for a new trial only upon a showing by the defendant that the denial was erroneous and also that his case was prejudiced as a result of the error.’” See id. (quoting State v. Branch, 306 N.C. 101, 104, 291 S.E.2d 653, 656 (1982)). If the error constitutes a violation of the defendant’s constitutional rights, “‘it is prejudicial unless the State shows the error was harmless beyond a reasonable doubt.’” See id. (quoting State v. Barlowe, 157 N.C. App. 249, 253, 578 S.E.2d 660, 662-63, disc. rev. denied, 357 N.C. 462, 586 S.E.2d 100 (2003)).
Discussion
The right to present evidence in one’s own defense is protected under both the federal and State constitutions. See U.S. Const. Amends. V, VI, and XIV; N.C. Const. Art. I, §§ 19 and 23. In Washington v. Texas, 388 U.S. 14, 19, 18 L. Ed. 2d 1019, 1023 (1967), the United States Supreme Court noted that "[t]he right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense."
Recently, this Court noted some factors considered by North Carolina courts in determining whether a trial court erred when it denied a motion to continue:
(1) the diligence of the defendant in preparing for trial and requesting the continuance, (2) the detail and effort with which the defendant communicates to the court the expected evidence or testimony, (3) the materiality of the expected evidence to the defendant’s case, and (4) the gravity of the harm defendant might suffer as a result of a denial of the continuance.
State v. Barlowe, 157 N.C. App. 249, 253, 578 S.E.2d 660, 662-63, disc. rev. denied, 357 N.C. 462, 586 S.E.2d 100 (2003)
Based on the factors noted in Barlowe, the trial court erred when it denied the defendant’s motion to continue. First, Mr. Oliver and his trial counsel were diligent in preparing for trial and were ready the week of December 6, 2006 when it was originally scheduled. (Tpp. 3-5) Mr. Oliver’s case, however, was never called and the circumstances surrounding Mr. Oliver’s witness, Gary Boyce, significantly changed. Mr. Boyce pled guilty, was released from jail, and Mr. Oliver was unable to serve Mr. Boyce with a subpoena. (Tp. 4) Prior to the start of trial, Mr. Oliver asked for a continuance so that he could locate Mr. Boyce and serve Mr. Boyce with a subpoena. (Tpp. 3-5) Second, Mr. Oliver’s trial counsel clearly explained to the trial court the importance of calling Gary Boyce as a defense witness and the measures that had been taken to have Mr. Boyce testify. Mr. Oliver’s trial counsel stated that Mr. Boyce was on probation and did not anticipate it being too difficult to locate Mr. Boyce and that he may file a motion for funds to assist locating Mr. Boyce, if needed. Third, the importance of Gary Boyce as a defense witness was significant. Mr. Boyce was identically charged as Mr. Oliver for the same narcotics. Mr. Oliver stated to the police that the narcotics belonged to Mr. Boyce and Mr. Boyce did, in fact, plead guilty to possession. Fourth, the gravity of the harm to Mr. Oliver’s defense as a result of the denial of the continuance was significant. Mr. Oliver was essentially deprived of his right to present a defense which resulted in a guilty verdict. Thus, it was error for the trial court to deny the defendant’s motion to continue and Mr. Oliver was prejudiced as a result of the trial court’s error.
Once it is established that it was error to deny the continuance, prejudice from the denial of the defendant’s constitutional right is presumed under N.C. Gen. Stat. §15A-1443(b), and the burden falls on the State to show beyond a reasonable doubt that the error was harmless. SeeState v. Maher, 305 N.C. 544, 550, 290 S.E.2d 694, 697 (1982). Accordingly, Mr. Oliver should receive a new trial.
II.the trial court erred when it denied the defendant’s motion for production of the identity of the confidential informant.
Assignment of Error No. 4
Introduction
A confidential informant told an officer with the Charlotte Mecklenburg Police Department that “the driver of a brown Fleetwood passenger car was at [defendant’s motel] room delivering illegal narcotics.” Based on the information received, the police went to Mr. Oliver’s motel room and found marijuana and cocaine inside Mr. Oliver’s laundry bag. Mr. Oliver stated to the police that the drugs found belonged to Gary Boyce who was in the motel room at the time that the police arrived. During the pre-trial motion, Mr. Oliver also stated that the brown Fleetwood passenger car that was parked outside Mr. Oliver’s motel room belonged to Mr. Boyce. The informant’s testimony, therefore, was critical to Mr. Oliver’s defense. Given Mr. Oliver’s assertion that he was innocent of the possession charges against him and the materiality of the informant’s testimony for his defense, the trial court erred when it denied Mr. Oliver’s motion for disclosure of the confidential informant.
Standard of Review
The standard of review for whether a trial court erroneously denied the defendant’s request for the identity of a confidential informant is de novo. See State v. Jackson, 103 N.C. App. 239, 242, 405 S.E.2d 345, 356 (1991)(reviewed trial court’s decision for error and not abuse of discretion).
Discussion
The United States Supreme Court recognized in Roviaro v. United States, 353 U.S. 53, 1 L. Ed. 2d 639 (1957), that the State’s right to withhold the identity of persons who furnish information to law enforcement officers is limited by the fundamental requirements of fairness. Roviaro held that “no fixed rule with respect to disclosure is justifiable… Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.” See id. at 62, 1 L. Ed. 2d at 646.
Our Supreme Court has noted that “before the court should even begin the balancing of competing interests which Roviaro envisions, a defendant who requests that the identity of a confidential informant be revealed must make a sufficient showing that the particular circumstances of his case mandate such disclosure.” State v. Watson, 303 N.C. 533, 537, 279 S.E.2d 580, 582 (1981).
In State v. Newkirk, 73 N.C. App. 83, 325 S.E.2d 518, (1985), this Court outlined the format of the discussion on the issue of the disclosure of confidential informants and mentioned relevant factors to consider:
Once defendant has made a “plausible” showing of the materiality of the informer’s testimony, the trial court must balance the public’s interest with defendant’s right to present his case taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors. Two factors weighing in favor of disclosure are (1) the informer was an actual participant in the crime compared to a mere informant, and (2) the state’s evidence and defendant’s evidence contradict on material facts that the informant could clarify. Several factors vitiating against disclosure are whether the defendant admits culpability, offers no defense on the merits, or the evidence independent of the informer’s testimony establishes the accused’s guilt.
See id. at 86; 325 S.E.2d at 521.
In the present case, the defendant explained to the trial court that the informant’s testimony was material to its defense. According to a statement from Officer Jason Ross, the informant stated that “the driver of a brown Fleetwood passenger car was at this [motel] room delivering illegal narcotics.” Tp. 11 The defendant stated to law enforcement that the drugs found in the motel room belonged to Gary Boyce and, according to the defendant, the brown Fleetwood passenger car belonged to Mr. Boyce. The informant’s testimony, therefore, would have provided exculpatory evidence that supported the defendant’s assertion that the drugs found were not his and were brought to the motel room by Gary Boyce.
Having made a “plausible” showing of the materiality of the informant’s testimony, the trial court was left to consider factors significantly weighing in favor of disclosure. First, the fact that the defendant was charged with possession and trafficking of narcotics and denied that they belonged to him. The informant’s testimony would have gone to the heart of the defense which was that Gary Boyce, and not Mr. Oliver, owned and, therefore, possessed the drugs found. Second, although the informant appears to have only been an informant and not a participant in the crimes charged, his role is not clear since the defendant never had an opportunity to question him. It is possible that the informant sold or was present when Gary Boyce bought the drugs. Third, the State’s evidence and the defendant’s assertion of not being guilty of the charges are in complete contradiction which the testimony of the informant could clarify. Fourth, the defendant has maintained throughout the investigation and trial that he was innocent of the charges brought against him. Fifth, although the defendant did not offer evidence, it was a choice imposed upon him. He asked for a continuance to locate a witness but the motion was denied. Finally, the evidence independent of the informant’s testimony did not establish the defendant’s guilt. The brown Fleetwood, which the informant stated would be the vehicle used to bring the drugs to the defendant’s room, was parked outside the motel room. The police, however, denied investigating the ownership and contents of the car, which may also have produced exculpatory evidence for Mr. Oliver. The factors for disclosure, therefore, outweighed the factors for nondisclosure and the trial court erred in its denial of the motion for disclosure.
Although the privilege of nondisclosure ordinarily applies where the informant is a mere “tipster,” Roviaro held that no fixed rule with respect to disclosure is justifiable. See State v. Roviaro, supra; State v. Grainger, 60 N.C. App. 188, 190, 298 S.E.2d 203, 204 (1982). In the case at hand, the informant’s role is not fully known as to whether he was, in fact, just a “tipster” and the informant’s testimony was material to Mr. Oliver’s defense that the drugs did not belong to him. Accordingly, the trial court erroneously denied Mr. Oliver’s request for disclosure of the confidential informant, thereby entitling him to a new trial.