Appeal by defendant from judgment entered 6 August 1999 by
Judge Larry G. Ford in Guilford County Superior Court. Heard in
the Court of Appeals 12 January 2001.
Attorney General Michael F. Easley, by Associate Attorney
General Jeffrey C. Sugg, for the State.
W. David Lloyd for defendant-appellant.
WALKER, Judge.
On 6 August 1999, defendant was convicted of one count of
possession with intent to sell or deliver heroin, one count of
trafficking in heroin by possession of 28 grams or more, and one
count of trafficking in heroin by transportation of 28 grams or
more. The State's evidence tended to show the following: On or
about 5 January 1999, Officer Richard Koonce (Koonce) of the
Greensboro Police Department and Officer Herbert Sampson (Sampson)
of the High Point Police Department each received information from
two different informants, Travis London (London) and Antoine Leake
(Leake). The informants reported the following: (1) two men known
as “Black” and “Blue” would be delivering for sale to London and
Leake a large quantity of heroin that evening at 6:00 p.m. at an
International House of Pancakes (IHOP) restaurant in Greensboro,
North Carolina; (2) “Black,” otherwise known as Anthony Barnett
(Barnett), is a black male, 30 years of age, approximately 6 feet
tall and weighing 195 pounds; (3) “Blue,” otherwise known as Bruce
Holmes (defendant), is a black male, thirty years of age,
approximately 6 feet tall and weighing 175 pounds; (4) Barnett
and defendant would be traveling in a tan minivan (van) with
Virginia license plates; (5) in the past several weeks, London and
Leake had purchased heroin from Barnett and defendant several times
at the IHOP. After receiving this information, Koonce and Sampson involved
several other police officers in an arrest plan which included
setting up video surveillance at the IHOP that evening. It was
agreed that London and Leake would assist the officers by
pretending to buy the heroin from Barnett and defendant and then
attempt to flee the scene once the police intervened. Leake was
equipped with a body wire so Koonce could monitor the transaction.
Once London and Leake saw the heroin, they were to give a
prearranged signal to police by stating “[t]he shit looks good.”
London and Leake were to additionally use the word “paper” when the
discussion of payment for the heroin took place, which among drug
dealers is slang for “money.” Once these signals were given,
police planned to move in on the transaction.
Later that day, London and Leake received a telephone call from
defendant and Barnett to confirm the meeting time and location for
the sale of the heroin. Around 6:00 p.m., the police observed as
defendant and Barnett arrived in the previously described van which
was later determined to be registered in defendant's name.
Defendant and Barnett stepped out of the van, entered the IHOP for
a few moments while appearing to search for someone and returned to
the van. London and Leake then arrived, left their parked Isuzu
Trooper (Trooper) and entered the van for a few moments. Next,
Leake and Barnett exited the van and reentered the Trooper. London
then left the van and started to approach the Trooper. About this
time, Koonce thought he had heard the prearranged signal, but was
not certain due to noise interference in the wire transmission
between him and Leake. After hearing some discussion among theparties about money, Koonce believed a transaction was occurring
between them and alerted the other officers to intervene. London,
Leake and Barnett started to flee but were detained by the police.
Defendant remained in the van and was also detained by the police.
Koonce informed defendant and Barnett he was going to search
the minivan. The search revealed a black plastic bag in the console
area between the two front seats. When Koonce opened the bag, he
found 671 smaller bags containing what was later identified as
heroin by Thomas McSwain (McSwain), a forensic drug chemist with the
State Bureau of Investigation (SBI). McSwain testified as an expert
witness in the field of forensic drug chemistry and the
identification of controlled substances. The trial court
consolidated for trial defendant's charges with those of co-
defendant Barnett.
[1]We first address defendant's contention that the trial
court erred in denying his motion to dismiss because there was
insufficient evidence that 28 or more grams of heroin were seized
from him. Defendant contends the State presented only
circumstantial evidence through the testimony of McSwain to
establish the quantity of heroin seized since he did not weigh each
of the 671 bags. McSwain testified he examined each of the 671 bags
which contained an off-white or tan substance. He randomly selected
50 bags which was a larger number than the usual sample size. He
then weighed the 50 bags to assure himself the average weight was
within an acceptable range. He determined the average weight of the
50 bags to be .0462 grams per bag, with only a “slight variance” in
the weight of the individual bags. He then calculated the totalweight of the heroin to be 31 grams by multiplying .0462 by 671.
McSwain admitted he did not conduct a further statistical analysis
as a foundation for his opinion of the total weight of heroin.
To survive a motion to dismiss, there must be “substantial
evidence (1) of each essential element of the offense charged and
(2) that defendant is the perpetrator of the offense. The reviewing
court must consider all the evidence taken in the light most
favorable to the State to determine whether there is substantial
evidence of that crime charged and that defendant committed the
crime. Substantial evidence consists of 'such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion.'
The test for sufficiency of the evidence is the same regardless of
whether the evidence is circumstantial or direct.” State v.
Harding, 110 N.C. App. 155, 162, 429 S.E.2d 416, 421 (1993)
(citations omitted).
Here, we need only address whether there is substantial
evidence defendant committed each element of the charge of
trafficking in heroin, which occurs when one “sells, manufactures,
delivers, transports, or possesses” a quantity of “28 grams or
more.” N.C. Gen. Stat. § 90-95(h)(4)(1999).
This case is similar to State v. Myers, 61 N.C. App. 554, 301
S.E.2d 401 (1983), cert. denied, 311 N.C. 767, 321 S.E.2d 153 (1984)
and State v. Hayes, 291 N.C. 293, 230 S.E.2d 146 (1976), where in
each case a defendant challenged the content and weight of a
controlled substance on the basis that only random samples of the
controlled substances were tested and weighed. In Hayes, an expertin the field of chemical and microscopic analysis and controlled
substances testified he visually examined the remaining two of three
envelopes which defendant gave to the police. Hayes, 291 N.C. at
301, 230 S.E.2d at 151. The expert tested the contents of only one
of the three envelopes which proved to contain marijuana. Id. He
then determined the contents of the three envelopes contained
marijuana by visual inspection. Id. The expert likewise randomly
selected for testing only four of sixteen envelopes seized from
defendant's home which also proved to contain marijuana. Id. He
visually inspected the remaining twelve of the sixteen envelopes and
determined each contained marijuana. Id. He then weighed all
nineteen envelopes containing marijuana and determined the total
weight to be 56.4 grams. Id. In holding there was sufficient
evidence to go to the jury on the question of whether all of the
envelopes contained marijuana, our Supreme Court noted the expert
witness had examined and identified marijuana in numerous prior
cases. Id. at 302, 230 S.E.2d at 151-152. He had visually examined
the contents of all the envelopes, which contents appeared to all
contain marijuana. Id.
Likewise in Myers, defendant was convicted of felonious
trafficking by selling or delivering 10,000 or more units (tablets)
of a controlled substance, methaqualone. Myers, 61 N.C. App. at
555, 301 S.E.2d at 402. The State computed the total number of
methaqualone tablets based upon the weight of the two bags, rather
than actually counting all of the tablets. Id. On the basis ofthis calculation, a determination was made that 30,241 tablets of
methaqualone had been seized as evidence. Id. Of this total, only
20 tablets were randomly tested and after chemical analysis, were
found to contain methaqualone. Id. The expert testified he
examined all of the tablets to make sure they had the same physical
characteristics. Id. at 556, 301 S.E.2d at 402. Defendant
contended because this evidence presented a question as to the
actual quantity of tablets containing methaqualone, his request for
a jury instruction on a lesser-included offense of trafficking less
than 10,000 tablets of the controlled substance should have been
granted. Id. at 555, 301 S.E.2d at 402. This Court disagreed,
holding “[a]ll of the evidence tended to show that defendant
committed the offense of trafficking in 10,000 or more dosage units
of methaqualone and there was no evidence of a lesser-included
offense.” Id. at 556, 301 S.E.2d at 403.
In the instant case, all of the evidence presented by the State
tended to show the 671 bags seized from defendant contained heroin.
Upon visual examination, McSwain observed the 671 bags, which were
taken from the same black plastic bag, were packaged alike and, in
his opinion, the 50 bags he sampled had only a “slight variance” in
weight. Further, McSwain had 29 years of training and experience
in forensic drug chemistry and in the identification of controlled
substances with the SBI. He had testified as an expert in this
field over five hundred times. See Harding, 110 N.C. App. at 163,
429 S.E.2d at 422 (holding “an expert chemist may give his opinion
as to the whole when only part of the whole has been tested” wherethe State's expert's testimony was admissible as to the composition
of 165 packets allegedly containing heroin, even though a
comprehensive chemical analysis was randomly performed on only a
small portion of the packets which the expert determined to contain
the same material as all of the packets). Because the State
presented sufficient evidence that 28 or more grams of heroin was
seized from defendant, this assignment of error is overruled.
[2]Next, defendant argues the trial court erred in denying his
request for a jury instruction on the lesser-included offense of
trafficking in heroin by transporting or possessing 14 grams or
more, but less than 28 grams of heroin. Defendant contends that
based on McSwain's testimony, the jury could find he possessed less
than 28 grams of heroin.
It is well settled “a jury instruction of a lesser included
offense is required 'if the evidence would permit the jury
rationally to find defendant guilty of the lesser offense and acquit
him of the greater.'” State v. Brooks, 136 N.C. App. 124, 131, 523
S.E.2d 704, 709 (1999), ce denied, 351 N.C. 475, 543 S.E.2d 496
(Supreme Court No. 48P00 filed April 6, 2000), quoting State v.
Gary, 348 N.C. 510, 524, 501 S.E.2d 57, 67 (1998). “Conversely,
when all the evidence tends to show that defendant committed the
crime charged in the bill of indictment and there is no evidence of
the lesser-included offense, the court should refuse to charge on
the lesser-included offense.” State v. Summitt, 301 N.C. 591, 596,
273 S.E.2d 425, 247, cert. denied, 451 U.S. 970, 68 L. Ed. 2d 349
(1981). Based on our upholding the trial court's denial of defendant's
motion to dismiss, we likewise conclude there was sufficient
evidence to support the charge of trafficking in heroin by
transporting or possessing 28 grams or more and there was
insufficient evidence to support an instruction on the lesser-
included offense.
[3]In his third assignment of error, defendant contends the
trial court erred in denying his motion to suppress all evidence
seized and statements made by him since there was no probable cause
to support the search, as it was based upon information from
unreliable informants.
When reviewing a denial of a motion to suppress, this Court's
review is “limited to determining whether the trial court's findings
of fact are supported by competent evidence, whether the findings
of fact support the conclusions of law, and whether the conclusions
of law are legally correct.” State v. Trapp, 110 N.C. App. 584,
587, 430 S.E.2d 484, 486 (1993).
Defendant cites Alabama v. White, 496 U.S. 325, 110 L. Ed. 2d
301 (1990), in support of his contention that informants London and
Leake are unreliable. Id., 496 U.S. 325, 110 L. Ed. 2d 301 (holding
that an anonymous tip on its own seldom demonstrates the informant's
basis of knowledge or veracity, so as to justify an investigatory
stop). However, that case dealt with an anonymous informant and is
not dispositive. Here, the trial court found the informants London
and Leake were known by name to Koonce and Sampson and had
previously provided reliable information which had been used in thepast to make arrests for drug violations. There is no evidence in
the transcript to indicate that these informants had ever provided
unreliable information to either of the detectives handling the
case.
In State v. Isleib, 319 N.C. 634, 356 S.E.2d 573 (1987), a
deputy sheriff had received information from an informant on three
prior occasions and on each of these occasions such information had
yielded arrests and convictions in drug cases. Id. at 635, 356
S.E.2d 574-575. Our Supreme Court held the deputy sheriff had
sufficient information in that case to constitute probable cause to
conduct a warrantless search of a vehicle after receiving the
informant's tip. Id. at 638, 356 S.E.2d at 576.
Based upon an informant's information, this Court recently
articulated in State v. Earhart, 134 N.C. App. 130, 516 S.E.2d 883
(1999), the standard for searching a vehicle without a warrant,
otherwise known as the automobile exception:
A search of a vehicle on a public roadway or
public vehicular area is properly conducted
without a warrant as long as probable cause
exists for the search. Probable cause exists
where 'the facts and circumstances within their
[the officers'] knowledge and of which they had
reasonable trustworthy information [are]
sufficient in themselves to warrant a man of
reasonable caution in the belief that 'an
offense has been or is being committed. In
utilizing an informant's tip, probable cause is
determined using a 'totality-of-the
circumstances' analysis which 'permits a
balanced assessment of the relative weights of
all the various indicia of reliability (and
unreliability) attending an informant's tip.'
Earhart, 134 N.C. App. at 133, 516 S.E.2d at 886 (citations
omitted). This analysis includes but is not limited to “theinformant's 'basis of knowledge' for his tip and the 'veracity' or
'reliability' of the tip[,]” which may be established by independent
police corroboration. Id. at 134, 516 S.E.2d at 886.
In ruling on defendant's motion to suppress, the trial court
found that London and Leake's tips included a physical description
of the perpetrators and their vehicle, as well as the time and place
the sale of heroin was to occur. The trial court further found they
had been previously reliable sources of information to Koonce and
Sampson, leading to multiple arrests and convictions. In addition,
London and Leake had first-hand knowledge of the illegal drug
activities of defendant and Barnett, as they had purchased heroin
from them at the IHOP location several times in the weeks leading
up to this incident. Moreover, the reliability of the tip was
established by independent police corroboration, as revealed by what
the police heard and observed leading up to the arrest of defendant
and Barnett. These facts and circumstances sufficiently established
an indicia of reliability of these informants to provide the police
officers with probable cause to support the search and seizure of
the bag containing heroin in defendant's van. The trial court thus
properly denied defendant's motion to suppress.
In summary, defendant received a fair trial, free of
prejudicial error.
No error.
Judges HUNTER and CAMPBELL concur.
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