Opinion
No. COA10-1305
Filed 21 June 2011 This case not for publication
Appeal by Defendant from judgments entered 2 June 2010 by Judge Yvonne Mims Evans in Mecklenburg County Superior Court. Heard in the Court of Appeals 24 March 2011.
Mary March Exum for Defendant-appellant. Attorney General Roy Cooper, by Assistant Attorney General J. Aldean Webster III, for the State.
Mecklenburg County Nos. 08 CRS 29385; 09 CRS 35629.
Rushard Richardson ("Defendant") appeals his conviction, after a jury trial, for possession of cocaine. He argues the trial court erred by denying his motion for a continuance before his trial began, denying his motion to dismiss, and failing to require the State to reveal the identity of a confidential informant. He also claims he received ineffective assistance of counsel. We find no error.
I. Factual and Procedural Background
Before jury selection on 1 June 2010, Defendant's trial counsel, Gregory O. Tosi, moved to continue Defendant's case, explaining he was unprepared to proceed because his schedule had been rather hectic in the preceding months. Mr. Tosi summarized his interaction with Defendant and the events surrounding the case as follows. He spoke with Defendant on January 7th about the upcoming plea date, and Defendant entered a plea of not guilty on January 8th. The case was originally scheduled for trial on March 8th. Mr. Tosi's wife was "in and out of the hospital once or twice" between January 8th and March 8th, presumably as a consequence of her pregnancy. On February 16th, Mr. Tosi sent Defendant a calendar notice of the March trial date. Mr. Tosi's son was born March 6th, and he was out of the office for approximately one month following the birth. Mr. Tosi returned to the office during the first week of April and worked through the last week of April. He was out of the office "a couple more weeks" in May and returned to work a week before Defendant's trial to address some administrative matters and attend Defendant's trial. Mr. Tosi indicated he and Defendant preferred a July 2nd court date because Mr. Tosi would be out of the office for three more weeks during June.
Mr. Tosi and Defendant had spoken over the phone several times, but Mr. Tosi described his pre-trial conversations with Defendant as "informational." He stated, "We have not had an opportunity to discuss at certainly a great length the defenses, if there are any, in this case." Counsel for the State objected to a continuance, arguing Defendant had ample time to discuss his case with his lawyer. The trial court denied Defendant's motion, and following pre-trial motions and jury selection, the case proceeded to trial.
The State's evidence tended to show the following. Officer Michael J. Ford of the Charlotte-Mecklenburg Police Department was conducting a drug investigation concerning a residence located on West 4th Street in Charlotte. Officer Ford testified at trial that a "confidential reliable informant" told him that the informant had observed drugs being sold at the residence. Officer Ford also testified that the "confidential informant advised that they observed [Defendant] selling and possessing crack cocaine within the last 48 hours of when I applied and executed the search warrant." While Officer Ford was applying for a search warrant, Officer Brett Gant was simultaneously conducting undercover surveillance on the West 4th Street residence. After Officer Ford obtained a search warrant, and while in route to the residence, Officer Gant advised him Defendant had left the residence.
Defense counsel objected to this statement on hearsay grounds, and the trial court sustained the objection. However, defense counsel did not move to strike Officer Ford's statement.
Officer Gant had witnessed Defendant and another individual leave the residence; Defendant was carrying books or magazines and two bags. The two individuals drove away in a sport utility vehicle ("SUV"), with Defendant in the passenger seat. Officer Gant followed the SUV in his vehicle. It was at least 9:00 p.m. and "fairly dark" at this time according to Officer Gant's testimony.
Officer M.D. Pittman, who was on patrol in a police cruiser that evening, pulled the SUV over for changing lanes without signaling. Officer Pittman asked the driver if he had his driver's license with him. The driver replied that he did not and said his name was Reginald Grissom. Officer Pittman searched the driver (with the driver's consent), but did not find any contraband or weapons. The driver also consented to a search of the vehicle. Officers Scott Svancarek and Chad Denton assisted in the search. The officers subsequently discovered the driver had given them a false name, so they arrested him for providing fictitious information to a police officer.
Officer Svancarek instructed Defendant, who was seated in the passenger seat, to exit and place his hands on the vehicle. Defendant was agitated and "a little belligerent" in his behavior toward the officers. Defendant was holding, as officer Svancarek described it at trial, a "blunt of marijuana." Officer Svancarek then placed Defendant under arrest for possession of marijuana. The officer searched Defendant incident to arrest and discovered two small bags of marijuana, $1209 in cash, and a cell phone. Officer Pittman discovered a knapsack containing a green pill bottle with 3.55 grams of crack cocaine inside on the passenger-side floor board. Another knapsack was also discovered, but the record does not indicate whether any contraband was discovered inside. A crime lab chemist testified at trial that the substances found in the pill bottle were cocaine and weighed 3.55 grams.
Officer Svancarek testified 10 grams of cocaine were found, but it appears the crime lab tech only tested some of substances found in the pill bottle, stating there were 3.55 grams. The amount of cocaine is immaterial for the purpose of this appeal.
Defense counsel moved to dismiss at the close of the State's evidence. The trial court denied the motion. Defendant elected not to testify and defense counsel renewed the motion to dismiss, which was again denied. The jury convicted Defendant of possession of cocaine. Defendant admitted habitual felon status and was sentenced to an active sentence of 132 to 168 months in prison. Defendant gave timely notice of appeal.
II. Analysis
A. Motion to Continue
First, Defendant argues the trial court erred in denying his motion to continue. We disagree.
Unless a motion to continue is premised on a constitutional right, we review the trial court's decision for abuse of discretion. State v. Covington, 317 N.C. 127, 129, 343 S.E.2d 524, 526 (1986). On appeal, Defendant argues he was denied his "Sixth Amendment Right to the effective assistance of counsel and due process," and therefore, we should review the trial court's decision de novo. However, we decline to address these constitutional arguments because, in the trial court, Defendant did not premise his motion on any constitutional right. Id.; see also State v. Creason, 313 N.C. 122, 127, 326 S.E.2d 24, 27 (1985) (stating this Court is not "required to pass upon a constitutional issue unless it affirmatively appears that the issue was raised and determined in the trial court"). Therefore, we review the denial of Defendant's motion under the abuse of discretion standard. "An abuse of discretion results only where a decision is manifestly unsupported by reason or . . . so arbitrary that it could not have been the result of a reasoned decision." Goforth v. K-Mart Corp., 167 N.C. App. 618, 624, 605 S.E.2d 709, 713 (2004) (internal quotation marks omitted).
We note that, properly understood, this is a distinct argument from asserting Defendant's trial counsel deprived him of effective assistance of counsel.
North Carolina courts consider a variety of factors when reviewing the denial of a motion to continue, including the following:
(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, 254, 578 S.E.2d 660, 663 (2003).
We are not persuaded that, based on these factors, the record, and the procedural posture of this case, the trial court's denial of Defendant's motion could not have been the result of a reasoned decision. Defendant and his trial counsel had five months to prepare for trial. Nothing in the record indicates Defendant was deprived of a fair opportunity to communicate with his lawyer prior to trial. When he was heard on the motion, Defendant's trial counsel did not forecast any evidence or trial strategy that could be gleaned from additional consultation. Cf. State v. Branch, 306 N.C. 101, 105, 291 S.E.2d 653, 657 (1982) ("The record is also absolutely devoid of any indication as to what the defendant expected to attempt to prove through these witnesses or the likelihood that they could ever be located or be available for trial if they existed.").
Mr. Tosi's comments suggest he did not know whether Defendant had any potential defense to the charges that further investigation could have disclosed. But this case does not involve highly complex legal or factual issues. And Defendant's trial counsel was sufficiently prepared to, and did, present a variety of pre-trial motions. We hold the trial court did not abuse its discretion in denying Defendant's motion.
B. Motion to Dismiss
Next, Defendant argues the trial court erred in denying his motion to dismiss because there was insufficient evidence of possession. We disagree.
When a trial court is presented with a motion to dismiss, it must determine whether the State has presented substantial evidence of each element of the crime charged and of the defendant being the perpetrator of the offense. State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992).
What constitutes substantial evidence is a question of law for the court. To be "substantial," evidence must be existing and real, not just "seeming or imaginary." Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. In ruling on a motion to dismiss, the trial court must examine the evidence in the light most favorable to the State, and the State is entitled to every reasonable inference and intendment that can be drawn therefrom. Any contradictions or discrepancies in the evidence are for the jury to resolve and do not warrant dismissal.
Id. (citations omitted). We review the trial court's decision de novo. State v. Hart, 179 N.C. App. 30, 39, 633 S.E.2d 102, 108 (2006), rev'd in part on other grounds, 361 N.C. 309, 644 S.E.2d 201 (2007).
[I]n a prosecution for possession of contraband materials, the prosecution is not required to prove actual physical possession of the materials. Proof of nonexclusive, constructive possession is sufficient. Constructive possession exists when the defendant, while not having actual possession, [] has the intent and capability to maintain control and dominion over the narcotics. Where such materials are found on the premises under the control of an accused, this fact, in and of itself, gives rise to an inference of knowledge and possession which may be sufficient to carry the case to the jury on a charge of unlawful possession. However, unless the person has exclusive possession of the place where the narcotics are found, the State must show other incriminating circumstances before constructive possession may be inferred.
State v. Matias, 354 N.C. 549, 552, 556 S.E.2d 269, 270-71 (2001) (first alteration in original) (internal quotation marks omitted) (quoting several decisions). A defendant's mere presence in a car in which narcotics are found, without more, is not sufficient to establish possession. State v. Weems, 31 N.C. App. 569, 571, 230 S.E.2d 193, 194 (1976). "[E]vidence which places an accused within close juxtaposition to a narcotic drug under circumstances giving rise to a reasonable inference that he knew of its presence may be sufficient to justify the jury in concluding that it was in his possession." Id.
A variety of factors are relevant to the issue of constructive possession. This Court has previously concluded conduct indicating awareness of contraband, such as a fear of discovery, coupled with close proximity to the contraband has been sufficient to permit a jury to find constructive possession. See State v. Turner, 168 N.C. App. 152, 156-57, 607 S.E.2d 19, 22-23 (2005) (summarizing cases to this effect). Possession of a large amount of cash can also lead to a reasonable inference of constructive possession of narcotics if they are in a close proximity. State v. Neal, 109 N.C. App. 684, 687, 428 S.E.2d 287, 290 (1993).
In this case, the crack cocaine was discovered at Defendant's feet. He acted somewhat belligerent towards the police officers according to Officer Svancarek. Defendant was in possession of a large amount of cash, and marijuana was discovered on his person. Officer Gant observed Defendant and another man enter the vehicle carrying two bags. When this evidence is considered in the light most favorable to the State, it leads to an inference that Defendant was in constructive possession of the crack cocaine discovered on the floorboard.
C. The Confidential Informant
Defendant contends the trial court erred in not revealing to Defendant the identity of the confidential informant. In support of this argument, he forwards three contentions: (1) a reference by Officer Ford to a statement made by the confidential informant violated Defendant's Sixth Amendment right to confront adverse witnesses; (2) the disclosure of the confidential informant's identity was essential to the fair determination of the case; and (3) "the State's entire case for probable cause rested entirely with the supposed observations of the unnamed informant." Conceding that none of these three confidential-informant arguments were presented to the trial court, Defendant maintains this Court should review for plain error. In order to establish plain error, a defendant must show that the error was so grave that it "denied the defendant a fair trial and quite probably tilted the scales against him." State v. Collins, 334 N.C. 54, 62, 431 S.E.2d 188, 193 (1993). Generally, appellate courts will not decide constitutional questions that are not raised and decided at trial; however, we can nevertheless review a constitutional argument under the plain error standard pursuant to North Carolina Rule of Appellate Procedure 2. State v. Youngs, 141 N.C. App. 220, 232, 540 S.E.2d 794, 802 (2000).
Plain error review is hindered in this case because Defendant's brief fails to offer any reason why the inability to cross-examine the confidential informant tilted the scales against him. Simply alleging error "does not obviate the requirement that a party provide argument supporting the contention that the trial court's [alleged error] amounted to plain error[.]" State v. Duff, 171 N.C. App. 662, 669, 615 S.E.2d 373, 379 (2005) (alterations in original) (quoting State v. Cummings, 352 N.C. 600, 636, 536 S.E.2d 36, 61 (2000)). And "[i]t is not the duty of this Court to supplement an appellant's brief with legal authority or arguments not contained therein." Goodson v. P.H. Glatfelter Co., 171 N.C. App. 596, 606, 615 S.E.2d 350, 358 (2005). We will address Defendant's argument despite his failure to explain how the trial court's alleged error was so fundamental that it tilted the scales against him.
"The Confrontation Clause of the Sixth Amendment, extended against the States by the Fourteenth Amendment, guarantees the right of a criminal defendant `to be confronted with the witnesses against him.'" State v. Brewington, 352 N.C. 489, 507, 532 S.E.2d 496, 507 (2000) (quoting Richardson v. Marsh, 481 U.S. 200, 206, 95 L. Ed. 2d 176, 185 (1987)). Assuming Defendant's confrontation rights were violated, this alleged error did not rise to the level of fundamental unfairness required to reverse under plain error review. At trial, Officer Ford testified, "A confidential reliable informant had observed drugs being sold at that residence within the 48 hours of executing the search warrant." Officer Ford also stated that the "confidential informant advised that they observed [Defendant] selling and possessing crack cocaine within the last 48 hours of when I applied and executed the search warrant." Defense counsel objected to the latter statement, and the objection was sustained on hearsay grounds. Defense counsel did not, however, move to strike the officer's answer.
The critical issue in Defendant's trial was whether he had possession of the crack cocaine found on the floorboard next to him. We conclude there was sufficient indicia of possession of cocaine — independent of any evidence related to the confidential informant — such that the trial court did not commit plain error by not intervening sua sponte to strike Officer Ford's testimony concerning the confidential informant.
Defendant's next argument implicates what has been described as the State's "privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law." Roviaro v. United States, 353 U.S. 53, 59, 1 L. Ed. 2d 639, 644 (1957). "[W]here the informant's identity and potential testimony are essential to a fair determination of the case or material to the defense, the privilege must give way and the informant's name be disclosed if the defendant is to be prosecuted." State v. Grainger, 60 N.C. App. 188, 190, 298 S.E.2d 203, 204 (1982). To defeat the privilege, the defendant must make a "sufficient showing" that the circumstances of the case mandate disclosure. Id. If the defendant makes such a showing, the trial court must balance the interests involved: the need for effective law enforcement and the fair determination of the case.
For a more thorough discussion of this calculus, see Roviaro, 353 U.S. at 60-62, 1 L. Ed. 2d at 644-46.
The State never asserted this privilege at trial because Defendant never attempted to force the State to disclose the informant's identity. Thus, the trial court had no opportunity to hear the circumstances surrounding the informant's statements (perhaps through in camera review) and to make findings of fact for the benefit of appellate review. Defendant makes no effort to point to any potential exculpatory evidence that could have been derived from the informant's testimony. He was convicted of possession of cocaine when drugs were found near his person, and it is not evident how the confidential informant's testimony might help him. Under the facts and procedural posture of this case, we cannot conclude the non-disclosure of the informant's identity was so fundamentally unfair that it deprived Defendant of a fair trial.
Next, Defendant contends "the State's entire case for probable cause rested entirely with the supposed observations of the unnamed informant." It is difficult to ascertain exactly where Defendant's assertion of error lies. Defendant does not challenge the validity of a search or a search warrant, and the record indicates there was no motion to suppress. Thus, this reference to deficiencies of probable cause is irrelevant, and this argument is without merit.
D. Ineffective Assistance of Counsel
At various points in Defendant's brief, there are vague allusions to the notion that Defendant is entitled to a new trial because his trial counsel rendered ineffective assistance of counsel. But Defendant's brief directly raises this issue in only one place. In a two-sentence paragraph without citation to any legal authority or an argument related to the pertinent ineffective assistance of counsel standard contained in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674 (1984), Defendant's brief makes the bare assertion that his trial counsel rendered ineffective assistance of counsel by failing to object to a hearsay statement contained in Officer Ford's testimony. Again, it is not this Court's role to construct an argument for the appellant and supplement his brief with authority, Goodson, 171 N.C. App. at 606, 615 S.E.2d at 358, and we decline to do so here. Due to the lack of argument and citation to legal authority, this issue is not properly before this Court. We express no opinion on the merits of an ineffective assistance of counsel argument that Defendant might make in the future through a motion for appropriate relief.
As mentioned previously, this claim would seem to be separate and distinct from Defendant's assertion that the trial court's refusal to grant a continuance would have denied him effective assistance from any counsel.
No error.
Judges STROUD and THIGPEN concur.
Report per Rule 30(e).