Opinion
No. COA09-352
Filed 1 June 2010 This case not for publication
Appeal by defendant from judgments entered 18 August 2008 by Judge R. Stuart Albright in Forsyth County Superior Court. Heard in the Court of Appeals 16 September 2009.
Attorney General Roy Cooper, by Special Deputy Attorney General Daniel D. Addison, for the State. Jon W. Myers for defendant-appellant.
Forsyth County No. 06 CRS 61027.
Defendant Antion La Mar Johnson appeals from his convictions for possession with intent to sell or deliver cocaine ("PWISD") and possession of drug paraphernalia. On appeal, defendant primarily contends the trial court erred in denying his motion to suppress an incriminating statement he made to police while under arrest. Because previous cases establish that a request by police for consent to search one's person or property is not "interrogation" for Miranda purposes and because the police request was not reasonably likely to elicit an incriminating response, we hold that the trial court properly denied the motion to suppress.
Facts
At trial, the State's evidence tended to show the following. On 20 September 2006 between 7:15 and 7:20 a.m., Detective Chris Diamont with the Winston-Salem Police Department was conducting narcotics interdiction at a Motel 6. He observed defendant, whom he immediately recognized from previous encounters, drive a white car into the motel's parking lot and then around behind the motel. Because Detective Diamont knew that defendant had warrants outstanding for his arrest, he and another detective went to the back of the building where they found defendant standing on the second floor of the motel in front of Room 242.
When defendant saw Detective Diamont, he called the officer by his last name. Detective Diamont informed defendant that there were outstanding warrants for his arrest and that defendant was under arrest. After handcuffing defendant, Detective Diamont searched him and, in defendant's pants pocket, found a large plastic baggie containing several other plastic baggies that in turn contained an off-white powder substance that he believed from his training and experience to be cocaine. Detective Diamont also found several off-white rock-like substances that appeared to be crack cocaine.
The substances found in the baggies were later confirmed by testing to be cocaine. In addition, Detective Diamont testified that "when cocaine is packaged in individual packages as this was, that usually means it's packaged for resale as opposed to someone that would be using it, they wouldn't really care how it was packaged."
During the search, Detective Diamont also found $80.00 and an additional $248.00 in defendant's pants pockets. The money was largely in $20.00 bills. Detective Diamont testified that in his training and experience, "$20 amounts of crack cocaine are the most common amounts of crack cocaine sold."
After searching defendant's person, Detective Diamont asked defendant for consent to search Room 242. Defendant gave his consent and told officers that they would find digital scales in the room that he had used for repackaging the cocaine. The officers did in fact find the scales.
Defendant was subsequently indicted for PWISD and possession of drug paraphernalia. A jury found defendant guilty of both charges, and the trial court sentenced defendant to a presumptive-range term of 15 to 18 months imprisonment for the PWISD conviction and a consecutive term of 120 days imprisonment for the possession of drug paraphernalia conviction. Defendant timely appealed to this Court.
I
Defendant first contends the trial court erred in denying his motion to suppress his statement to police that they would find digital scales in the motel room. He argues that the statement was the product of custodial interrogation in violation of his rights under Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). " Miranda held that statements made by an accused in response to custodial interrogation by law enforcement officers are inadmissible against him unless he has been explicitly warned of his fifth amendment rights to remain silent and to counsel and has made a voluntary, knowing, and intelligent waiver of these rights." State v. Young, 317 N.C. 396, 407, 346 S.E.2d 626, 632-33 (1986).
As defendant was under arrest when he made the statement, the parties only dispute whether his statement was in response to police interrogation. "`The standard of review in evaluating a trial court's ruling on a motion to suppress is that the trial court's findings of fact are conclusive on appeal if supported by competent evidence, even if the evidence is conflicting.'" State v. Smith, 160 N.C. App. 107, 114, 584 S.E.2d 830, 835 (2003) (quoting State v. Logner, 148 N.C. App. 135, 137, 557 S.E.2d 191, 193 (2001)). The determination whether an interrogation is conducted while an accused is in custody is, however, a question of law that is "fully reviewable on appeal." Id.
In this case, defendant's statement was made in response to Detective Diamont's request for permission to search the motel room. This Court addressed whether a request for consent to search constitutes custodial interrogation in State v. Cummings, 188 N.C. App. 598, 656 S.E.2d 329, disc. review denied, 362 N.C. 364, 661 S.E.2d 743 (2008). In Cummings, the defendant argued that a search of his car was unconstitutional because the officers requested permission to conduct the search, and the defendant gave his consent only after he had requested counsel. Id. at 602, 656 S.E.2d at 332.
In rejecting this argument, this Court found it "persuasive that numerous federal courts have concluded that asking for consent to search is not an interrogation within the meaning of Miranda." Id. (citing United States v. Shlater, 85 F.3d 1251, 1256 (7th Cir. 1996); United States v. McCurdy, 40 F.3d 1111, 1118 (10th Cir. 1994)). The Court then held:
After Defendant invoked his right to counsel, interrogation ceased. Agents did not ask any further questions about the robbery or Mr. Graham's homicide. The agents asked only whether Defendant would give his consent for his vehicle to be searched, a question to which Miranda warnings do not apply. Because there is competent evidence to support the trial court's finding of fact, we cannot conclude that the trial court erred in finding that Defendant's "consent to search his vehicle was consensual."
Id. at 603, 656 S.E.2d at 333 (internal citation omitted). Thus, under Cummings, Detective Diamont's request for permission to search the motel room was not an interrogation for purposes of Miranda.
Nevertheless, under Miranda, "interrogation means not only express questioning by the police, but also includes any words or actions on the part of law enforcement officials which they `should know are reasonably likely to elicit an incriminating response from the suspect.'" Young, 317 N.C. at 407, 346 S.E.2d at 633 (quoting Rhode Island v. Innis, 446 U.S. 291, 301, 64 L. Ed. 2d 297, 308, 100 S. Ct. 1682, 1689-90 (1980)). We must determine whether the officer's words and actions requesting consent to search could be considered the "`functional equivalent of questioning,'" focusing "on the perceptions of the suspect rather than the intent of the law enforcement officials." Id. at 408, 346 S.E.2d at 633 (quoting Innis, 446 U.S. at 301, 64 L. Ed. 2d at 308, 100 S. Ct. at 1690).
We believe this issue is controlled by State v. Dent, 174 N.C. App. 459, 621 S.E.2d 274 (2005). In Dent, after the defendant was arrested for driving with a revoked license, the arresting officer smelled the odor of burnt marijuana on his person. Id. at 461, 621 S.E.2d at 276. The defendant twice told the officer, in response to questioning, that he did not have any marijuana. When the officer then informed the defendant that he was going to perform a strip search of the defendant, the defendant admitted he had some "residue" in his sock. Id.
On appeal, this Court rejected the defendant's argument that his statement regarding the "residue" should have been suppressed because "[a]t the time defendant made his statement, the officers were merely informing him of the extent of their then-impending search." Id. at 464, 621 S.E.2d at 278. The Court reasoned that "[t]here [was] no indication that the officers' comments at that time `were . . . intended nor reasonably expected to elicit an incriminating response from defendant.'" Id. (quoting State v. Vick, 341 N.C. 569, 581, 461 S.E.2d 655, 662 (1995)). Rather, the comments were "those `normally attendant to arrest and custody'" and were not considered interrogation. Id. at 465, 621 S.E.2d at 278 (quoting Innis, 446 U.S. at 300-02, 64 L. Ed. 2d at 307-08, 100 S. Ct. at 1689-90).
We see no material distinction between Dent and this case. Accordingly, the request for consent to search the motel room did not amount to custodial interrogation. The trial court, therefore, did not err in denying the motion to suppress defendant's statement regarding the digital scales.
II
Defendant also challenges the trial court's denial of his motion to dismiss for insufficient evidence. "This Court reviews the trial court's denial of a motion to dismiss de novo." State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007). "The standard of review on a motion to dismiss for insufficient evidence is whether the State has offered substantial evidence of each required element of the offense charged." State v. Goblet, 173 N.C. App. 112, 118, 618 S.E.2d 257, 262 (2005). Substantial evidence is that amount of evidence "sufficient to persuade a rational juror to accept a particular conclusion." Id. "In ruling on a motion to dismiss for insufficient evidence, the court must view the evidence in the light most favorable to the State and every reasonable inference drawn from the evidence must be afforded to the State." Id.
In order to survive defendant's motion to dismiss the charge of possession of drug paraphernalia, the State had to present substantial evidence that defendant possessed the digital scales with the intent to use them in connection with controlled substances. State v. Hedgecoe, 106 N.C. App. 157, 164, 415 S.E.2d 777, 781 (1992). We have already upheld the admissibility of defendant's statement to police officers that they would find inside the motel room the digital scales he used to repackage the cocaine. That statement was sufficient to support the charge of possession of drug paraphernalia. See State v. Davis, 186 N.C. App. 242, 248, 650 S.E.2d 612, 617 (holding evidence sufficient to withstand motion to dismiss possession of drug paraphernalia charge where defendant gave statement that he used methamphetamine found in his kitchen drawer and police found aluminum foil and pen barrel with residue in drawer), disc. review dismissed, 362 N.C. 89, 656 S.E.2d 280 (2007).
With respect to the PWISD charge, the State was required to present substantial evidence of three elements: "(A) possession of a substance; (B) the substance must be a controlled substance; and (C) there must be intent to sell the controlled substance." State v. Fletcher, 92 N.C. App. 50, 55, 373 S.E.2d 681, 685 (1988). Defendant contends the State failed to present sufficient circumstantial evidence of his intent to sell cocaine.
"[T]he intent to sell or distribute may be inferred from (1) the packaging, labeling, and storage of the controlled substance, (2) the defendant's activities, (3) the quantity found, and (4) the presence of cash or drug paraphernalia." State v. Nettles, 170 N.C. App. 100, 106, 612 S.E.2d 172, 176, disc. review denied, 359 N.C. 640, 617 S.E.2d 286 (2005). When defendant was arrested, he was in possession of powder and crack cocaine packaged in individual baggies that were in turn contained in a larger baggie, a form of packaging that Detective Diamont testified, based on his experience, was indicative of an intent to sell the cocaine. In addition, defendant had $328.00 in cash, most of which was in $20.00 bills. Detective Diamont testified that crack cocaine is most commonly sold in $20.00 increments. See State v. Alston, 91 N.C. App. 707, 711, 373 S.E.2d 306, 310 (1988) (holding substantial evidence of intent to sell where 4.27 grams cocaine packaged in 20 separate envelopes was found in close proximity to defendant, and large amount of cash was found on his person). Finally, defendant admitted to the officers that the motel room would have the digital scales that he used to repackage the drugs — evidence further indicating that the cocaine was for sale and not for personal use.
Taking the evidence in the light most favorable to the State, we hold that there was ample circumstantial evidence of defendant's intent to sell cocaine. The trial court, therefore, properly denied defendant's motion to dismiss.
III
Finally, defendant argues that the trial court erred in failing to instruct the jury, as defendant requested, on the "duty to individually deliberate." Defendant points to N.C. Gen. Stat. § 15A-1235(b)(1) (2009), which provides that "[b]efore the jury retires for deliberation, the judge may give an instruction which informs the jury that: (1) Jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without violence to individual judgment[.]" The trial judge refused to give the requested instruction, although he indicated he would revisit the issue "[i]f and when the jury foreman informs the Court that they are unable to reach a verdict."
On appeal, defendant argues that the trial court was required to give the instruction pursuant to State v. Green, 305 N.C. 463, 477, 290 S.E.2d 625, 633 (1982), in which the Supreme Court held that "when the request is correct in law and supported by the evidence in the case, the court must give the instruction in substance." This principle does not, however, apply to the instruction requested by defendant in this case, since it was a general instruction regarding the duties of jurors and not an instruction related to the law or evidence specifically arising out of the charges and evidence in this case.
In State v. Beasley, 118 N.C. App. 508, 455 S.E.2d 880 (1995), this Court specifically addressed the issue raised by defendant here: whether a trial court, if requested by the defendant, is required to give the instruction set out in N.C. Gen. Stat. § 15A-1235(b). This Court held that "[t]he trial court is not required to give these instructions upon request, but may give them in its discretion." 118 N.C. App. at 512, 455 S.E.2d at 883.
Here, the record contains no indication that the trial court's ruling was an abuse of discretion. The trial judge specifically told defendant that although he was denying the request to include the instruction prior to sending the jury to deliberate, he would consider the request again if the jury notified him that it was having trouble reaching a verdict. Defendant does not suggest that the jury ever notified the trial judge that it was having trouble reaching a verdict.
Moreover, defendant has made no attempt to demonstrate how he was prejudiced by the omission of this instruction. Given defendant's statement to the officers, the digital scales in the motel room, the cocaine and cash in his pockets, and the lack of any indication that the jury experienced difficulties when deciding the case, we do not believe that a jury would likely have reached a different result had the instruction been given. See N.C. Gen. Stat. § 15A-1443 (2009).
No error.
Judges STROUD and ERVIN concur.
Report per Rule 30(e).