Court: Court of Appeals of North Carolina; March 7, 2017; North Carolina; State Appellate Court
Robert N. Hunter, Jr., presiding over the case involving Defendant Kevin Antwan Shepherd, addresses the appeal concerning convictions for cocaine trafficking (over 28 grams but less than 200 grams) and for maintaining a dwelling for controlled substance activities. The Defendant contends that the trial court erred by denying his motion to reveal the identity of a confidential witness and by not dismissing the charge related to maintaining a dwelling for controlled substances.
On April 16, 2012, a grand jury indicted the Defendant on multiple charges, including maintaining a dwelling for drug activities and trafficking in cocaine. On January 16, 2013, the Defendant moved to compel the disclosure of a confidential and reliable informant (CRI) who assisted in the investigation, to suppress search results from his apartment, and to suppress his post-arrest statements. The CRI’s tip initiated the investigation, leading to controlled drug buys from the Defendant.
During a hearing on March 12, 2013, the Defendant argued the CRI's identity was crucial for his defense, particularly to demonstrate third-party guilt and the non-exclusivity of the premises. The trial court denied his motion, stating the Defendant did not adequately demonstrate the need for disclosure. The court's decision was formalized in an order on April 11, 2013.
At trial, the Defendant's motion to dismiss the charge of felonious possession of marijuana was granted, and the jury found him guilty of misdemeanor possession of marijuana while deadlocking on the other charges. A mistrial was declared for the deadlocked charges, and he received a suspended sentence with eighteen months of supervised probation.
Subsequently, on August 6, 2014, the Defendant sought to exclude text messages from cell phones seized during his arrest, but the trial court denied this motion. After changing legal representation, the Defendant filed a new motion to suppress on January 21, 2016. On February 9, 2016, before his second trial, the court granted this motion, ruling that the cell phones were not included within the scope of the search warrant.
The second trial commenced, with Detective Brandon Mounce testifying for the State about the investigation of the Defendant, which included a search warrant executed at his apartment.
Detective Mounce forcibly entered Apartment G after receiving no response to his knock and announcement, finding the Defendant exiting a hallway. Upon securing the apartment, officers discovered Kim Brown, who was in poor health, prompting a call for EMS. Detective Mounce identified Brown as the leaseholder of the apartment. During a search of the kitchen, Detective Mounce uncovered digital scales, small bags, a small amount of crack cocaine in a napkin, inositol, and marijuana in various forms. He also found a glass jar containing a plastic fork with cocaine residue behind the microwave. In the living room, marijuana and cash were located in a recliner.
Detective Snaden searched a hall closet and found baggies containing white powder in a blue jacket. Corporal Stevens discovered two plastic bags with a white powdered substance in another hall closet. Forensic chemist Brian King later tested the evidence, confirming the white powder as 56.2 grams of cocaine hydrochloride mixed with inositol and 2.96 grams of crack cocaine, alongside 81 grams of marijuana.
Detective Murphy, the lead investigator, entered after the warrant was served and noted additional drug-related items, including a bottle of sodium bicarbonate and a razor blade, which are commonly used for cocaine conversion and preparation for sale. He found more marijuana in the refrigerator and observed a partially smoked marijuana cigarette and a grinder on the coffee table. Additionally, $282 in cash, Defendant's ID, and a cell phone were found nearby, with Defendant claiming ownership of the phone and directing the detective to more marijuana hidden beside the couch.
A bag with multiple ziplock bags was found next to a canister during a search, leading to the discovery of $1,780 and a small amount of marijuana in a recliner. Detective Murphy found documents belonging to Defendant in an end table, confirming that the items in the living room belonged solely to him. A search of the bedroom yielded no drug paraphernalia, and a search of Mr. Brown revealed only $50. After the search, Defendant was taken into custody and interviewed, where he acknowledged selling cocaine and marijuana to supplement his income after losing his job and becoming homeless. He admitted to using the apartment for drug sales. Testimony from Detective Weavil supported the account of the interview. The State rested its case, and Defendant's motions to dismiss the charges were denied. He did not present evidence and was found guilty of maintaining a dwelling for drug use and trafficking in cocaine, receiving a sentence of 35 to 43 months in prison and a $50,000 fine. Defendant appealed the judgment after pleading not guilty, and the court has jurisdiction under N.C. Gen. Stat. 7A-27(b)(1) and 15A-1444(a) (2015). Regarding the denial of his motion to disclose the identity of a confidential informant, the court found that Defendant failed to preserve the issue for appeal due to not renewing his motion after a mistrial or raising an objection during the second trial, thus not meeting the North Carolina Rules of Appellate Procedure requirements.
Failure to preserve an issue for review results in an appellate court's refusal to consider it on appeal. In cases of mistrials, it is legally considered that no trial occurred, leading to new trials being treated as trials de novo, where prior rulings do not influence the outcome. In the case discussed, the Defendant's motion to compel was filed before a mistrial, and while he made several pre-trial motions in the second trial, he did not renew the motion to compel or object to evidence related to the confidential informant (CRI). Consequently, the appellate court determined that the Defendant failed to preserve the issue for appeal.
Regarding the charge of maintaining a dwelling for drug-related activities, the Defendant argued insufficient evidence was presented to establish his maintenance of the apartment in question. The court clarified that substantial evidence must support each element of the offense and the defendant's involvement. The court views evidence favorably toward the State and only assesses sufficiency, not weight. Seven factors, including ownership and occupancy, are considered to determine if a dwelling is maintained, but no single factor is conclusive. Notably, an admission of residence constitutes substantial evidence.
At trial, testimonies from Detectives indicated that the Defendant admitted to residing in the apartment and using it for drug sales, providing adequate evidence to support the charge. Thus, the trial court correctly denied the motion to dismiss the charge of maintaining a dwelling for drug activity. The ruling concluded with "NO ERROR."
