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    "judges": [
      "Judge Greene concurs.",
      "Judge Becton dissents."
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    "parties": [
      "STATE OF NORTH CAROLINA v. KENNETH RAY HYLEMAN"
    ],
    "opinions": [
      {
        "text": "HEDRICK, Chief Judge.\nDefendant\u2019s first contention is that the trial court committed reversible error in denying his motion to suppress evidence seized by police. Defendant argues the search warrant was not issued with probable cause as required under the \u201ctotality of the circumstances\u201d test of Illinois v. Gates, 462 U.S. 321, 103 S.Ct. 2317, 76 L.Ed. 2d 527 (1983). He bases this on his contention that the affidavit submitted to secure the search warrant does not have sufficient information to establish probable cause. The State all but concedes the affidavit is insufficient, but argues the court did not err in denying the motion to suppress due to the \u201cgood faith exception\u201d to the exclusionary rule.\nThe \u201cgood faith exception\u201d is enunciated and elaborated on in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed. 2d 677 (1982). Our State recognized this \u201cgood faith exception\u201d in State v. Welch, 316 N.C. 578, 342 S.E. 2d 789 (1986). We hold the trial court did not err in denying defendant\u2019s motion to suppress the evidence because of the good faith exception.\nDefendant further contends \u201cthe officers did not have a right to search [defendant\u2019s] garage, a licensed business in a premises separate from the residence home of the Defendant.\u201d Even though the garage was a separate building and a place of business, it could be searched as part of defendant\u2019s residence. State v. Trapper, 48 N.C. App. 481, 269 S.E. 2d 680 (1980).\nDefendant next argues a delay of three and one-half days between execution and return of the inventory of items seized was an undue delay in violation of G.S. 15A-257. The statute does not state a particular time for return of the inventory, and we hold that in this case the delay was not undue or unreasonable, and we can conceive of no prejudice.\nUnder G.S. 15A-242, defendant argues that several items were improperly seized. The statute allows for seizure of contraband or evidence of an offense. Pursuant to a lawful search warrant, officers have a right to seize any articles thought to be connected to the drug business of defendant. All items in this case were properly seized.\nDefendant also argues the search warrant fails to meet the requirements of G.S. 15A-246(1) in that the time of issuance is not found above the signature of the magistrate. Such an omission could be significant, but in this case there is no prejudice since the time of issuance was noted elsewhere on the face of the warrant.\nDefendant next argues the trial court erred by allowing impeachment of Wood, the State\u2019s witness. Wood was asked about his prior inconsistent statement to Detective Durst. Following Wood\u2019s denial of the statement, Durst testified as to what Wood told him. Defendant asserts that although G.S. 8C-1, Rule 607 allows the State to impeach its own witnesses by use of a prior inconsistent statement, the State \u201cmay not use such a statement under the guise of impeachment for the primary purpose of placing before the jury substantive evidence which is not otherwise admissible.\u201d United States v. Miller, 664 F. 2d 94, 97 (1981).\nIn this case, two witnesses had already testified as to Wood\u2019s involvement. Wood\u2019s actions were important to the State\u2019s case, and his testimony was needed. There is no showing that the prior inconsistent statement was used for any purpose other than impeachment. The State acted in good faith, and there was no error in allowing impeachment.\nFinally, defendant argues the trial court erred in its motions to dismiss, to set aside the verdicts and for a new trial. In ruling on a motion to dismiss, the trial court must determine \u201cwhether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant\u2019s being the perpetrator of such offense.\u201d State v. Lowery, 309 N.C. 763, 766, 309 S.E. 2d 232, 235-36 (1983). If there is substantial evidence of these determinations, denial of the motion is proper. Id.\nIn considering whether this evidence is sufficient, the evidence is considered in the light most favorable to the State. State v. Lowery, 309 N.C. 763, 309 S.E. 2d 232 (1983).\nFor a defendant to be convicted of trafficking in cocaine, he must be someone \u201cwho sells, manufactures, delivers, transports, or possesses 28 grams or more of coca leaves or any salts, compound, derivative or preparation thereof. . . .\u201d G.S. 90-95(h)(3). In this case, the jury found defendant guilty of selling more than 28 grams of cocaine. There is ample evidence that defendant sold more than 28 grams of cocaine. For this reason, the motion to dismiss was properly denied.\nLikewise, we find the motions to set aside the verdicts and for a new trial were properly denied since there was sufficient evidence for the verdicts. These arguments have no merit.\nWe hold defendant had a fair trial, free from prejudicial error.\nNo error.\nJudge Greene concurs.\nJudge Becton dissents.",
        "type": "majority",
        "author": "HEDRICK, Chief Judge."
      },
      {
        "text": "Judge Becton\ndissenting.\nI dissent. The \u201cbare-bones\u201d conclusory affidavit for the search warrant does not aver that any controlled substances are, or ever were, at defendant\u2019s residence or even mention that the confidential informants were reliable. Further, the allegations in the affidavit, in my view, are so lacking in indicia of probable cause as to render official belief in its existence unreasonable, thus making the Leon \u201cgood faith exception\u201d inappropriate. Moreover, the record suggests that the State\u2019s use of Wood\u2019s prior inconsistent statement was a subterfuge to get before the jury evidence not otherwise admissible.\nI\nThe State did not concede that the affidavit was insufficient to establish probable cause. Indeed, arguing that Detective Durst had \u201cwithin his personal knowledge sufficient facts to constitute probable cause but [was] unable to place all of the information in an application for a search warrant out of fear for the safety of an informant,\u201d State\u2019s brief, page 8, the State, nevertheless, asks this Court to uphold the search warrant as issued. I, for one, am unwilling to do so.\nIf it were permissible, an affiant could always embellish his story with \u201ctwenty-twenty\u201d hindsight by saying, \u201cI knew more than I told the magistrate.\u201d Consequently, our Courts and Legislature opted for a rule of law requiring the \u201cinformation\u201d to be contained in the affidavit or be \u201ceither recorded or contemporaneously summarized in the record or on the face of the warrant by the issuing official.\u201d N.C. Gen. Stat. Sec. 15A-245 (1983); State v. Heath, 73 N.C. App. 391, 326 S.E. 2d 640 (1985).\nThis rule of law was not followed in this case, but it is particularly applicable since the State\u2019s argument \u2014 that details \u201cwould have disclosed that Kenny Wood was a source of information\u201d \u2014 is refuted by the record. Once defendant Hyleman was arrested as the source of the two ounces of cocaine that were delivered to Detective Durst, Kenny Wood was necessarily exposed as the informant since defendant, according to the State, would not deal with anyone other than Kenny Wood. Moreover, Detective Durst\u2019s affidavit specifically names Kenny Wood as the person to whom Durst gave marked money for the two ounces of cocaine.\nII\nDetective Durst testified at the suppression hearing that he was the only witness to appear before the magistrate and that his entire testimony was contained in the written affidavit. That affidavit is so lacking in information that no detached and neutral magistrate could reasonably conclude that contraband was in the place or on the person to be searched. As defendant points out in his brief, the defendant and his residence are not even mentioned in the affidavit, and a magistrate could have just as easily issued a search warrant for any residence in Gaston County. Even Leon, which established the \u201cgood faith exception\u201d to the exclusionary rule, precludes use of the \u201cgood faith exception\u201d when \u201cthe magistrate abandon[s] his detached and neutral role, [or] the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause.\u201d 468 U.S. at 926, 82 L.Ed. 2d at 701. Accord State v. Roark, 83 N.C. App. 425, 350 S.E. 2d 153 (1986); State v. Newcomb, 84 N.C. App. 92, 351 S.E. 2d 565 (1987). In short, the majority has erroneously failed to apply the following language from Leon to the facts of this case:\nNor would an officer manifest objective good faith in relying on a warrant based on an affidavit \u201cso lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.\u201d . . . Finally, depending on the circumstances of the particular case, a warrant may be so facially deficient \u2014 i.e., in failing to particularize the place to be searched or the things to be seized \u2014 that the executing officers cannot reasonably presume it to be valid. (Citations omitted.)\n468 U.S. at 923, 82 L.Ed. 2d at 699.\nIII\nThe transcript suggests that the District Attorney called the witness Wood solely for the purpose of impeaching him with an alleged prior inconsistent oral statement made to Detective Durst. Even the State concedes, on page 16 of its brief, that \u201c[t]here is some indication in the record that the State knew before he was called that Wood was going to recant his previous assertions.\u201d\nI do not quarrel with Rule 607 of the North Carolina Rules of Evidence which generally permits any party to attack the credibility of any witness. I am concerned with what may be a growing trend of using prior inconsistent statements as a subterfuge to get before the jury hearsay evidence not otherwise admissible. See State v. Bell, 87 N.C. App. 626, 362 S.E. 2d 288 (1 December 1987) in which this Court expressly disapproved the ruse whereby a party calls an unfriendly witness solely to justify the subsequent call of a second witness to testify about a prior inconsistent statement. See also United States v. Webster, 734 F. 2d 1191 (7th Cir. 1984) (court denied use of prior inconsistent statement to impeach witness when the sole purpose for calling a witness was to impeach his testimony by applying Rule 607 of the Federal Rules of Evidence). It is not enough to say, as the majority says, that \u201cWood\u2019s actions were important to the State\u2019s case, and his testimony was needed.\u201d Ante, page 427. Sometimes needed witnesses are not available. Sometimes the State cannot prove its case without inadmissible evidence. Courts should not change the rules because the testimony is needed.\nFurther, it is not germane to say, as does the majority, ante, page 427, that two witnesses had already testified as to Wood\u2019s involvement. First, these two witnesses were not with Wood at the relevant time and did not know where Wood got the cocaine. Equally important, although Detective Durst\u2019s affidavit avers that Wood and the two witnesses were kept under surveillance by law enforcement officials from 7:15 p.m. until 10:50 p.m. during which time the drugs were purchased on the night in question, Detective Durst admitted at the motion to suppress hearing that, from 8:15 p.m. until 10:25 p.m. during the time that the drugs were purchased, neither he nor other law enforcement officials had any idea of the whereabouts of Wood and the other two witnesses or their car. More importantly, Wood himself acknowledged his involvement. He denied, however, having told anyone that he had purchased cocaine from defendant Hyleman, and he testified that he bought the cocaine from Billy Faulkner. Wood further testified that he purchased an automobile from defendant Hyleman on the night in question using $250 of the $1600 marked money, and that transaction was witnessed by a notary public who testified for defendant Hyleman.\nIV\nBased on the above, I believe the trial court erred in denying defendant Hyleman\u2019s motion to suppress evidence and by allowing the State to use \u201ca statement under the guise of impeachment for the primary purpose of placing before the jury substantive evidence which is not otherwise admissible.\u201d United States v. Miller, 664 F. 2d 94, 97 (5th Cir. 1981), cert denied, 459 U.S. 854, 74 L.Ed. 2d 106 (1982).",
        "type": "dissent",
        "author": "Judge Becton"
      }
    ],
    "attorneys": [
      "Attorney General Lacy H. Thornburg, by Assistant Attorney General G. Patrick Murphy, for the State.",
      "Gray and Hodnett, P.A., by James C. Gray, for defendant, appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. KENNETH RAY HYLEMAN\nNo. 8727SC543\n(Filed 5 April 1988)\n1. Criminal Law \u00a7 84\u2014 invalid warrant \u2014 admission of seized evidence \u2014 good faith exception to exclusionary rule\nAlthough an affidavit submitted to obtain a search warrant did not contain sufficient information to establish probable cause for issuance of the warrant, the trial court properly denied defendant\u2019s motion to suppress evidence seized in a search under the warrant because of the good faith exception to the exclusionary rule.\n2. Searches and Seizures \u00a7 39\u2014 warrant for residence \u2014search of garage\nEven though a garage was a separate building and a place of business, the garage could be searched as part of defendant\u2019s residence.\n3. Searches and Seizures \u00a7 39\u2014 execution of warrant \u2014 delay of inventory\nA delay of three and one-half days between execution of a warrant and return of the inventory of the items seized was not unreasonable or prejudicial. N.C.G.S. \u00a7 15A-257.\n4. Searches and Seizures \u00a7 29\u2014 search warrant \u2014 showing time of issuance\nOmission of the time of issuance of a search warrant above the signature of the magistrate was not prejudicial where the time of issuance was noted elsewhere on the face of the warrant. N.C.G.S. \u00a7 15A-24K1).\n5. Criminal Law \u00a7 90.1\u2014 State\u2019s impeachment of own witness \u2014 prior inconsistent statement\nThe trial court did not err in permitting the State to use a prior inconsistent statement to impeach its own witness where there was no showing that the prior statement was used under the guise of impeachment for the primary purpose of placing before the jury substantive evidence which was not otherwise admissible. N.C.G.S. \u00a7 8C-1, Rule 607.\n6. Narcotics \u00a7 4\u2014 trafficking in cocaine \u2014sufficient evidence\nThe evidence was sufficient to support defendant\u2019s conviction of trafficking in cocaine by selling more than 28 grams thereof. N.C.G.S. \u00a7 90-95(h)(3).\nJudge Becton dissenting.\nAppeal by defendant from Ferrell, Judge. Judgments entered 27 February 1987 in Superior Court, GASTON County. Heard in the Court of Appeals 7 December 1987.\nThis is a criminal action wherein defendant was charged in proper bills of indictment with trafficking in cocaine under G.S. 90-95(h)(3) and with possession of drug paraphernalia under G.S. 90-113.22.\nThe State\u2019s evidence tends to show the following: Detective William Durst of the Gaston County Police Department set up a meeting to buy cocaine from Gene Orendorff. At the meeting Durst purchased cocaine using cash. The serial numbers of the cash had previously been recorded by making photocopies of the bills.\nOrendorff and another man, Jeff Manning, were to later deliver the cocaine. They were observed driving to a trailer park where they picked up a third man, Kenny Wood. Later, Detective Durst met with the three men to receive the cocaine. The men were then arrested. Both Orendorff and Wood made statements to the police. Wood told police that defendant had sold the cocaine to him and that he had given defendant the money earlier received from Durst.\nUpon a search of defendant\u2019s residence, police found a set of triple-beam scales, a notebook, a 12-gauge shotgun, rolling papers, marijuana and cocaine cutting agents. Also found were bills with serial numbers matching those photocopied earlier by Detective Durst.\nBefore defendant\u2019s trial began, he moved to suppress the evidence. The motion was denied. The jury returned two verdicts of guilty and from sentences of 10 years for trafficking of cocaine and 12 months for possession of drug paraphernalia, defendant appealed.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General G. Patrick Murphy, for the State.\nGray and Hodnett, P.A., by James C. Gray, for defendant, appellant."
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