{ "id": 4159978, "name": "STATE OF NORTH CAROLINA v. DWIGHT McDOUGALD", "name_abbreviation": "State v. McDougald", "decision_date": "2008-08-19", "docket_number": "No. COA06-164-2", "first_page": "253", "last_page": "258", "citations": [ { "type": "official", "cite": "192 N.C. App. 253" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "638 S.E.2d 546", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637387 ], "year": 2007, "opinion_index": -1, "case_paths": [ "/se2d/638/0546-01" ] }, { "cite": "547 U.S. 103", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3275967 ], "weight": 2, "year": 2006, "opinion_index": -1, "case_paths": [ "/us/547/0103-01" ] }, { "cite": "181 N.C. App. 41", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8371867 ], "year": 2007, "opinion_index": -1, "case_paths": [ "/nc-app/181/0041-01" ] }, { "cite": "638 S.E.2d 546", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637387 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/se2d/638/0546-01" ] }, { "cite": "364 S.E.2d 341", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "348" } ], "opinion_index": 0 }, { "cite": "321 N.C. 392", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2568444 ], "year": 1988, "pin_cites": [ { "page": "403" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0392-01" ] }, { "cite": "370 S.E.2d 363", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "373", "parenthetical": "citing N.C. Gen. Stat. \u00a7 15A-1443(a) (1983)" } ], "opinion_index": 0 }, { "cite": "322 N.C. 733", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2518633 ], "year": 1988, "pin_cites": [ { "page": "749", "parenthetical": "citing N.C. Gen. Stat. \u00a7 15A-1443(a) (1983)" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0733-01" ] }, { "cite": "547 U.S. 103", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3275967 ], "weight": 4, "year": 2006, "pin_cites": [ { "page": "120" }, { "page": "226" } ], "opinion_index": 0, "case_paths": [ "/us/547/0103-01" ] }, { "cite": "181 N.C. App. 41", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8371867 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/nc-app/181/0041-01" ] } ], "analysis": { "cardinality": 613, "char_count": 12031, "ocr_confidence": 0.763, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.13560713385220527 }, "sha256": "1a235febf664c979eab694b6d5aeaee0521ae6283cb60520cc3f66593b4e5bf0", "simhash": "1:068b20556c3f9c61", "word_count": 2002 }, "last_updated": "2023-07-14T14:54:33.452279+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge ELMORE concur." ], "parties": [ "STATE OF NORTH CAROLINA v. DWIGHT McDOUGALD" ], "opinions": [ { "text": "JACKSON, Judge.\nThis case is heard on remand from the Supreme Court. A detailed recitation of the facts may be found in the original opinion, State v. McDougald, 181 N.C. App. 41, 638 S.E.2d 546 (2007). For the convenience of the reader, a summary of the facts is set forth below.\nDwight McDougald (\u201cdefendant\u201d) and Kathryn Powell (\u201cPowell\u201d) were arrested as the result of an undercover drug sale coordinated by Officer Aaron Griffiths (\u201cOfficer Griffiths\u201d) of the Greensboro Police Department. The jury found defendant guilty of conspiracy to traffick by possessing 100 or more but less than 500 dosage units of methylenedioxyamphetamine (\u201cMDA\u201d) but was unable to reach a unanimous verdict on two remaining charges. Defendant subsequently entered guilty pleas to trafficking by possessing 100 or more but less than 500 dosage units of MDA and to sale of Schedule I substance, MDA. He was sentenced to a term of thirty-five to forty-two months imprisonment for the offenses of trafficking by possessing and conspiracy to traffick. For the offense of sale of a Schedule I substance, MDA, defendant received a suspended sentence of thirty-six months of supervised probation, which was ordered to begin at the expiration of his prison term.\nDefendant appealed the denial of his motion to suppress evidence seized from his apartment. Although he refused to consent to the search, his wife agreed to allow the search to proceed. Defendant argued that proceeding with the search based upon only his wife\u2019s consent was a violation of Georgia v. Randolph, 547 U.S. 103, 164 L. Ed. 2d 208 (2006). In Randolph, the majority held that \u201ca warrant-less search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him on the basis of consent given to the police by another resident.\u201d Id. at 120, 164 L. Ed. 2d at 226. This is the precise issue defendant presents for our review.\nIn our prior opinion, as to the conspiracy charge, we dismissed defendant\u2019s argument based upon violations of our Appellate Rules. Judge Elmore dissented, providing the basis for review by the North Carolina Supreme Court. The charges to which defendant pled guilty are not currently before this Court. The State essentially has conceded error pursuant to Randolph and we now review our decision to determine if any error was harmless beyond a reasonable doubt. We hold that it was not.\n\u201cEven if [a] party can show that the trial court erred in [an evidentiary] ruling, relief ordinarily will not be granted absent a showing of prejudice.\u201d State v. Herring, 322 N.C. 733, 749, 370 S.E.2d 363, 373 (1988) (citing N.C. Gen. Stat. \u00a7 15A-1443(a) (1983)). However, pursuant to North Carolina General Statutes, section 15A-1443(b), \u201c[a] violation of the defendant\u2019s rights under the Constitution of the United States is prejudicial unless the appellate court finds that it was harmless beyond a reasonable doubt. The burden is upon the State to demonstrate, beyond a reasonable doubt, that the error was harmless.\u201d N.C. Gen. Stat. \u00a7 15A-1443(b) (2005). A constitutional error may be rendered harmless by presenting overwhelming evidence of defendant\u2019s guilt notwithstanding the challenged evidence. State v. Autry, 321 N.C. 392, 403, 364 S.E.2d 341, 348 (1988).\nAfter carefully reviewing the trial testimony in this case, we agree with Judge Elmore\u2019s dissent to the Court\u2019s prior opinion. Although there was overwhelming evidence of Powell\u2019s criminal activity, aside from the MDA and ecstasy found in defendant\u2019s apartment as a result of the illegal search, the evidence connecting defendant to the crime for which he was convicted was far from overwhelming, and as such failed to provide the threshold of evidence necessary to render the error harmless beyond a reasonable doubt.\nAt trial, Detective Duane James (\u201cDetective James\u201d) testified that his role in the investigation was to act as the \u201cflash person\u201d \u2014 the undercover officer in charge of securing large sums of money and showing it to the supplier if required. \u2022 Detective James observed Powell go to the car of Earl Jones (\u201cJones\u201d), a confidential informant. Powell and Jones then stood outside of the car talking. Detective James observed defendant crossing the apartment complex towards Powell and continue around the building. He observed Powell leave and return a few minutes later, getting into Jones\u2019 car. Jones then got out of his car and pointed towards Detective James. Both Powell and Jones crossed to Detective James\u2019 car, and he rolled down his window to talk to them. Powell got into Detective James\u2019 car and informed him that the deal had changed from 1000 pills to 385. Detective James told Powell that she could count the money and go talk to whomever she needed; he and Powell counted out $3,500.00.\nAfter counting the money, Powell left Detective James\u2019 car and she and Jones walked away. Powell went towards the apartments; Jones came back to Detective James. A few minutes later, Detective James observed Powell returning to his car. She got into his car, pulled out a bag and said there were 385 pills. After Detective James gave Powell the money, she got out of the car, and walked back towards the apartment. She then was arrested. Powell acted as an intermediary for the transaction.\nDetective Clarence Wally Schoolfield (\u201cDetective Schoolfield\u201d) testified that he observed Powell \u2014 whom he described as the contact- \u2014 come down to the parking lot and otherwise corroborated Detective James\u2019 testimony. Upon searching defendant \u2014 who was detained in Powell\u2019s apartment \u2014 Detective Schoolfield found $398 in his front right pocket and defendant\u2019s wallet in the left rear pocket. Detective Schoolfield searched Powell\u2019s apartment and seized marijuana and drug paraphernalia. He also seized two guns, one of which was stolen.\nPowell testified as part of a plea deal. She stated that she used to sell marijuana before she moved to the apartment complex where she was arrested and that Jones was her supplier. Jones called her and asked her if she could get pills. She answered that she could. Because she had talked to defendant a few times about his selling pills, she contacted him. Defendant told her to let him know when she needed them. Powell testified that defendant changed the number of pills from the 500 that Jones had requested to 385. Defendant told her that he would sell the pills to her for $8.50 each and that she could sell them for $9.00 each; she would make $180, which defendant paid before the sale.\nPowell testified that defendant informed her that he would walk over to her apartment when the buyer arrived. She testified that after Jones and defendant had arrived at her apartment, she saw defendant laying pills out on her counter. Powell testified that she was fairly certain that she had told Jones where she was getting the pills. She also informed the police that she obtained the pills from defendant.\nOfficer Griffiths was the lead investigator in the case and testified that he had been investigating defendant since 2002, and had conducted surveillance of defendant\u2019s apartment for several months prior to the 7 July 2004 arrest. Officer Griffiths observed Powell come down and meet with Jones. He also observed defendant come down and apparently say something to Powell or Jones as he passed by them. He did not observe anything \u201con\u201d defendant as he passed. Griffiths observed Powell bring down a bag under her clothes, go to James\u2019 car, put something down the front of her shorts, and try to run back to her apartment.\nOfficer Griffiths was monitoring Jones\u2019 body wire transmission and overheard Powell repeatedly request that the deal \u201cgo down\u201d upstairs and state that \u201che\u201d would give Jones the drugs. Over the wire, Officer Griffiths heard Powell refer to some other male as being part of the deal \u2014 for example: \u201che send me,\u201d \u201che\u2019s in my house,\u201d \u201che can count \u2019em,\u201d and \u201cI don\u2019t think he wants to do it out here. He lives here.\u201d When defendant walked by, Powell said, \u201c[T]here he is right there. He\u2019s got his son.\u201d\nUpon her arrest, Powell said to Officer Griffiths that she was \u201cjust making money delivering something.\u201d When asked what, she replied, \u201cYou know. Pills. \u2018X.\u2019 \u201d She informed the officer that defendant was in her apartment. After her arrest, Officer Griffiths took a statement from Powell, which read: \u201cSomebody wanted \u2018X.\u2019 I knew where to get it from. Quick flip. Man gives me one price. I make two hundred to walk from one destination to another.\u201d Officer Griffiths then asked her direct questions \u2014 what she was doing; how much she was selling; and for whom she was selling it. He was more interested in defendant as the main target; he considered Powell as just a middle person, a runner.\nPowell informed Officer Griffiths that she was selling 300 to 400 pills for $3,000.00 for which she was to make $200.00. She was delivering them for \u2018D\u2019 who lived in her building. By \u2018D,\u2019 she meant defendant. Powell also informed Officer Griffiths that she thought it was 380 pills of Ecstasy. She counted the money and went back upstairs. She got the pills from \u2018D\u2019 and took them to a black male (Detective James). She said she was just trying to make $200 and that \u2018D\u2019 brought the pills over. As Officer Griffiths was filling out police paperwork at the Guilford County Jail, defendant approached him and said, \u201cShe was just going to make a little money for this. She don\u2019t know what she\u2019s doing or what\u2019s going on.\u201d\nAs we have determined that the above-referenced evidence against defendant was not overwhelming absent the MDA and ecstasy found in defendant\u2019s apartment as a result of the illegal search, this constitutional error was not harmless beyond a reasonable doubt. Therefore, defendant is entitled to a new trial.\nNew trial.\nChief Judge MARTIN and Judge ELMORE concur.\n. It is unclear why police officers were expecting a sale of 1000 pills while Powell was expecting a sale of only 500 pills.", "type": "majority", "author": "JACKSON, Judge." } ], "attorneys": [ "Attorney General Roy A. Cooper, III, by Assistant Attorney General John R Scherer, II, for the State.", "Irving Joyner, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DWIGHT McDOUGALD\nNo. COA06-164-2\n(Filed 19 August 2008)\nSearch and Seizure\u2014 warrantless search of shared dwelling\u2014 express refusal of consent by physically present resident\u2014 motion to suppress evidence \u2014 error not harmless beyond reasonable doubt\nThe trial court erred in a trafficking by possessing 100 or more but less than 500 dosage units of methylenedioxyamphetamine (MDA) and sale of Schedule I substance (MDA) case by denying defendant\u2019s motion to suppress evidence seized from his apartment when defendant refused consent but his wife agreed to allow the search to proceed, and defendant is entitled to a new trial, because: (1) a warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him on the basis of consent given to the police by another resident; and (2) although there was overwhelming evidence of a coparticipant\u2019s criminal activity, aside from the MDA and ecstasy found in defendant\u2019s apartment as a result of the illegal search, the evidence connecting defendant to the crimes for which he was convicted was far from overwhelming and thus failed to provide the threshold of evidence necessary to render the error harmless beyond a reasonable doubt.\nUpon remand to the Court of Appeals by order of the North Carolina Supreme Court, filed 7 March 2008, remanding the decision of this Court in State v. McDougald, 181 N.C. App. 41, 638 S.E.2d 546 (2007). We are to determine if any error pursuant to Georgia v. Randolph, 547 U.S. 103,164 L. Ed. 2d 208 (2006) was harmless beyond a reasonable doubt. See State v. McDougald, No. 64A07, 2008 N.C. LEXIS 136 (N.C. Mar. 7, 2008). Appeal by defendant from judgments entered 12 April 2005 by Judge Jerry Cash Martin in Guilford County Superior Court. Originally heard in the Court of Appeals on 19 October 2006.\nAttorney General Roy A. Cooper, III, by Assistant Attorney General John R Scherer, II, for the State.\nIrving Joyner, for defendant-appellant." }, "file_name": "0253-01", "first_page_order": 281, "last_page_order": 286 }