No. COA05-1583 SEVENTH DISTRICT
NORTH CAROLINA COURT OF APPEALS
STATE OF NORTH CAROLINA ) FROM WILSON COUNTY
) 04 CRS 51181
JEFFREY JEROME CARMICHAEL, )
1. DID THE TRIAL COURT ERR WHEN IT DENIED THE MOTION
TO SUPPRESS EVIDENCE BECAUSE SERGEANT BRANCH
EXCEEDED THE SCOPE OF A SEARCH INCIDENT TO ARREST
IN SEARCHING RUBY MELTON’S BEDROOM AFTER JEFFREY
2. DID THE TRIAL COURT ERR IN DENYING THE MOTION TO
DISMISS THE CHARGE OF TRAFFICKING IN COCAINE BY
POSSESSION BECAUSE THE STATE DID NOT PRESENT
SUBSTANTIAL EVIDENCE THAT JEFFREY CARMICHAEL
CONSTRUCTIVELY POSSESSED THE COCAINE?
STATEMENT OF THE CASE
At the 6 December 2004 Criminal Session of Wilson
County Superior Court, the District Attorney called this
criminal case for hearing on the defendant’s motion to
suppress evidence. By order entered in open court on 9
December 2004, the Honorable Frank R. Brown denied the
defendant’s motion to suppress evidence. Then, at the 7
February 2005 Criminal Session of Wilson County Superior
Court, the District Attorney called this matter for trial,
on an indictment charging Jeffrey Jerome Carmichael with
one count each of trafficking in cocaine by possession and
trafficking in cocaine by transportation. The Honorable W.
Russell Duke, Jr. presided.
After the State presented their evidence and the
defendant presented his evidence, the jury convicted
Jeffrey Jerome Carmichael of trafficking in cocaine by
possession but could not reach a verdict on the charge of
trafficking in cocaine by transportation. The court
declared a mistrial on that charge and the State later
dismissed the charge. The court sentenced Mr. Carmichael
to a term of 35 to 42 months in the North Carolina
Department of Corrections. Mr. Carmichael entered notice
of appeal in May 2005.
STATEMENT OF GROUNDS FOR APPELLATE REVIEW
This Court has jurisdiction over this appeal by virtue
of N.C.G.S. §7A-27(b) and N.C.G.S. § §15A-1442. Jeffrey
Carmichael entered notice of appeal sometime in May 2005.
(R. p. 28).
STATEMENT OF FACTS
Reggie Branch worked as a sergeant with the Wilson
Police Department on 28 February 2004. (T. (trial) p. 17).
Branch went to 718 Tarboro Street at about 7:00 p.m.
looking for Jeffrey Carmichael that day. (T. (trial) pp.
18, 37). The front door was glass, allowing Branch to see
the hallway and part of the kitchen. (T. (trial) p. 38).
Branch thought that the apartment had two bedrooms and one
bathroom. (T. (trial) pp. 38-39). Mrs. Ruby Melton, who
lived in the apartment, answered the door. (T. (trial) p.
20). Latasha Farmer, another woman, was inside the
apartment as well. (T. (trial) p. 49). Branch claimed
that Jeffrey began running toward the bedroom when he
informed Mrs. Melton that he wanted to arrest Jeffrey
Carmichael. (T. (trial) p. 20). Ruby Melton and Latasha
Farmer, however, recalled that Jeffrey never went into her
bedroom. (T. (trial) pp. 71, 81, 88).
Branch alleged that two women, including Mrs. Melton,
attempted to block his access to the Melton’s bedroom as he
pursued Jeffrey Carmichael. (T. (trial) p. 20). Branch
pushed Mrs. Melton into a stand in the hallway. (T.
(trial) p. 70). Branch claimed that he caught up with
Jeffrey, arrested him on two outstanding traffic warrants,
and placed him in handcuffs. (T. (trial) p. 21). He did
not see Jeffrey do anything in the bedroom other than
attempt to run away from Branch. (T. (trial) p. 21). In
the meantime, Officer Weatherford waited outside the
apartment. (T. (trial) p. 21).
Branch had Weatherford come inside to watch Jeffrey
while he searched Melton’s bedroom. (T. (trial) p. 22).
In the meantime, Branch went to Mrs. Melton’s bedroom to
conduct what he believed was a search incident to arrest.
(T. (trial) p. 22).
While Jeffrey watched from the hallway, Branch
searched the bedroom. (T. (trial) p. 22). In the
meantime, Tasha Farmer and Ruby Melton remained in the
living room. (T. (trial) p. 50). Branch found a white
powdery substance between the bed and the wall. (T.
(trial) p. 23). Melton advised that she did not know there
were drugs in her apartment and that she did not keep those
type of substances in her home. (T. (trial) pp. 23, 84).
Branch then found a plastic bag containing an off-white
rock-like substance near the bed. (T. (trial) p. 24).
Mrs. Melton recalled that Branch seemed to find both
plastic bags in the same location near her bed but not at
the same time. (T. (trial) pp. 78-79). He also found a
handgun near the bed. (T. (trial) p. 24).
Melton informed Branch that the handgun belonged to
her husband, not Jeffrey Carmichael, but that the drugs did
not belong to them. (T. (trial) p. 24). Melton became
upset and irate when Branch found the drugs in her home.
(T. (trial) p. 45). Branch admitted that he did not find
any drugs or money on Jeffrey Carmichael or inside of his
car. (T. (trial) p. 46). Police did not perform
fingerprint analysis on the baggies containing the drugs.
(T. (trial) p. 49). He claimed that Jeffrey Carmichael
admitted that the powder cocaine belonged to him but denied
owning the crack. (T. (trial) p. 25). Jeffrey voluntarily
spoke to Branch after being advised of his Miranda rights.
(T. (trial) p. 28).
Branch wrote Jeffrey’s statement on paper. (T.
(trial) p. 32). Jeffrey Carmichael later signed the
statement. (T. (trial) p. 32). He also initialed the
document in several different locations. (T. (trial) p.
33). Branch read the statement to the jury. (T. (trial)
According to Branch, Jeffrey met an individual named
“C.B.” at Parker’s Barbecue where C.B. “fronted” him two
ounces of cocaine. (T. (trial) p. 34). Then, he went to
the apartment on Tarboro Street to get his car washed. (T.
(trial) p. 34). Jeffrey admitted throwing the bag of
powder cocaine in the bedroom after pursuit by Branch, but
denied possessing the crack. (T. (trial) p. 34). Jeffrey
advised that he had been selling powder cocaine for about
three or four months but usually received only half of an
ounce from C.B. (T. (trial) pp. 34-35). Testing of the
substances found by Branch at Melton’s home revealed that
one bag contained 98.7 grams of cocaine base and the other
bag contained 52.2 grams of powder cocaine. (R. p. 3; T.
(trial) p. 58). Jeffrey Carmichael presented evidence as
His daughter, Jameka Carmichael, recalled that she and
her father had gone to Greenville on 28 February 2004. (T.
(trial) p. 61). They did not go anywhere else, however,
prior to arriving at the apartment on Tarboro Street. (T.
pp. 61-62). Jameka was outside in her father’s car when
police arrived that evening. (T. (trial) p. 62).
Jeffrey’s girlfriend, Latisha Barnes, confirmed that they
had gone to Greenville that day. (T. (trial) p. 64).
Jeffrey dropped Latisha off at her home in Pikeville at
about 5 o’clock that afternoon. (T. (trial) p. 65).
Latisha called Jeffrey at about 6:30 or 7:00 p.m. on
his cell phone. (T. (trial) p. 65). Jeffrey had just
gotten to the apartment on Tarboro Street. (T. (trial) p.
67). He told Latisha that he was about to leave to go to a
party in Raleigh. (T. (trial) p. 65). Jeffrey Carmichael
also testified at trial.
He denied possessing either the powder cocaine or the
cocaine base. (T. (trial) p. 93). After Branch threatened
to charge Ruby Melton with possessing the drugs, however,
Jeffrey told Branch “take me” to prevent her arrest. (T.
(trial) p. 93). Jeffrey also explained that he gave the
statement to Branch because he kept threatening to charge
Ruby Melton if he did not admit to having the drugs. (T.
(trial) p. 96). Jeffrey stated that the entire statement
was false, and he never went to Parker’s or obtained drugs
from C.B. (T. (trial) p. 96). He admitted having
convictions for possession of cocaine and possession with
intent to sell or deliver cocaine. (T. (trial) p. 97).
Sergeant Branch had arrested and charged him with the
possession with intent to sell or deliver cocaine in 2001.
(T. (trial) p. 97). Jeffrey Carmichael moved to suppress
the evidence seized on 28 February 2004.
The court conducted a pretrial hearing on the motion
to suppress. The State alleged that the search of the
Melton’s bedroom occurred incident to arrest. (T. (12/04)
pp. 6-16). Jeffrey Carmichael, on the other hand,
contended that the search exceeded the scope of a lawful
search incident to arrest. (T. (12/04) p. 18). Ruby
Melton and Latasha Farmer testified that he never went into
her bedroom but only the living room and the kitchen of her
apartment. (T. (12/04) pp. 26, 30). Branch claimed that
the powder and the crack cocaine were in plain view in the
bedroom. (T. (12/04) pp. 7-8). He further denied entering
the home without Mrs. Melton’s permission. (T. (12/04) p.
10). The court denied the motion to suppress. (T. (12/04)
Also pretrial, the City of Wilson moved to quash the
subpoena from Jeffrey Carmichael to the Wilson Police
Department for any and all complaints, disciplinary
actions, warnings, or admonitions made against R.L. Branch
and R.L. Braswell of the Wilson Police Department. (T.
(trial) p. 10). Jeffrey Carmichael proffered the citizen
complaints against Branch and Braswell for the record. (T.
(trial) p. 120).
The city asked the court to review the documents in
camera to determine if they had relevance to the case
involving Jeffrey Carmichael or if it was necessary to
protect the privacy of those individuals. (T. (trial) p.
10). The court, over defense objection, granted the motion
to quash the subpoena. (T. (trial) p. 14).
At the close of the State’s case Jeffrey Carmichael
moved to dismiss the charges. (T. (trial) p. 105). The
court denied this motion. (T. (trial) p. 105). The court
again denied the motion at the close of all of the
evidence. (T. (trial) p. 106). During jury deliberations,
the court claimed to have seen an unusual demeanor and eye
movements between Carolyn Myers, juror number ten, and
Jeffrey Carmichael. (T. (trial) p. 123).
The court ordered Jeffrey Carmichael sworn as a
witness. (T. (trial) p. 123). Upon examination by the
court, Jeffrey denied knowing the juror. (T. (trial) p.
123). The jury submitted a note to the court indicating
that they were hopelessly deadlocked 11-1. (T. (trial) p.
The court instructed the jury that they had a “duty to
do whatever you can to reach a verdict.” (T. (trial) p.
125). The jury later asked if they could toss the cocaine
admitted into evidence across the room for “observation.”
(T. (trial) p. 126). The court denied this unusual
request. (T. (trial) p. 128). Upon jury inquiry of the
definition of transporting cocaine, the court re-instructed
the jury on the substantive charge of trafficking in
cocaine by transportation. (T. (trial) p. 131).
The jury found Jeffrey Carmichael guilty of possession
of 28 grams or more of cocaine but did not reach a verdict
on the charge of transporting 28 grams or more of cocaine.
(R. p. 24). The court imposed a judgment of 35 to 42
months in the North Carolina Department of Corrections.
(T. (trial) p. 136).
1. THE TRIAL COURT ERRED WHEN IT DENIED THE MOTION
TO SUPPRESS EVIDENCE. SERGEANT BRANCH EXCEEDED
THE LAWFUL SCOPE OF A SEARCH INCIDENT TO ARREST
IN SEARCHING RUBY MELTON’S BEDROOM AFTER
ARRESTING JEFFREY CARMICHAEL. THIS COURT SHOULD
REVERSE THE ORDER DENYING JEFFREY CARMICHAEL’S
MOTION TO SUPPRESS AND VACATE HIS JUDGMENT OF
(Assignment of Error No. 1: T. (12/04) p. 41, line 25; R.
STANDARD OF REVIEW
This Court reviews a trial court’s order denying a
motion to suppress to determine whether competent evidence
supports the trial court’s findings of fact and whether
those factual findings support the ultimate conclusions of
law. State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618,
619 (1982). The trial court’s conclusions of law are fully
reviewable on appeal, however. State v. Hughes, 353 N.C.
200, 208, 539 S.E.2d 625, 631 (2000).
LAW AND ANALYSIS
Sergeant Branch exceeded the scope of a lawful search
incident to arrest when he searched Ruby Melton’s bedroom
in February 2004. Two witnesses recalled that Jeffrey
Carmichael never even went into that bedroom. Sergeant
Branch was the only witness who claimed Jeffrey ran into
the bedroom when Branch came into the apartment. Even
accepting Branch’s testimony as true, he exceeded the scope
of a search incident to arrest in searching Mrs. Melton’s
The State presented no evidence that such a search was
necessary to protect officer safety or to preserve
evidence. Therefore, the trial court erred in denying the
motion to suppress evidence seized pursuant to this illegal
search that violated the Fourth Amendment.
The Fourth Amendment to the United States Constitution
requires that any search of private property occur pursuant
to a search warrant whenever reasonably possible. Chimel
v. California, 395 U.S. 752, 758, 89 S.Ct. 2034, 2037, 23
L.Ed.2d 685, 691 (1969). In fact, “searches made without a
valid search warrant are presumptively unreasonable unless
the search falls within one of the well-recognized
exceptions to the [warrant requirement].” State v. Cooke,
54 N.C. App. 33, 38, 282 S.E.2d 800, 804 (1981); see also
Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11
L.Ed.2d 856 (1964).
Exceptions to the warrant requirement are “jealously
and carefully drawn.” Jones v. United States, 357 U.S.
493, 499, 78 S.Ct. 1253, 1257, 2 L.Ed.2d 1514, 1519 (1958).
Those seeking an exemption from the warrant requirement
have the burden of showing the need for that exemption.
Chimel at 762, 89 S.Ct. at 2039, 23 L.Ed.2d at 693. The
search incident to arrest constitutes an exception to the
The search incident to arrest is justified by the need
to ensure officer safety and preservation of evidence. Id.
at 762-63, 89 S.Ct. at 2040, 23 L.Ed.2d at 694. This type
of search is limited to a warrantless search of the
arrestee and the area within his control or “the area from
within which [an arrestee] might gain possession of a
weapon or destructible evidence.” Id. For example, a
jacket found within three or four feet of the defendant
upon his arrest was within the permissible scope of a
search incident to arrest because the jacket matched a
description given to police prior to his arrest and, when
confronted by police, the defendant made a movement toward
the jacket. State v. Parker, 315 N.C. 222, 337 S.E.2d 487
(1985). In this case, however, the search of Ruby Melton’s
bedroom was not connected to the arrest of Jeffrey
Two witnesses recalled that Jeffrey Carmichael had
never been inside the bedroom prior to his arrest. He came
into the apartment and never made it past the living room
or kitchen when Branch arrived. Branch, however, offered
uncorroborated testimony that Jeffrey Carmichael ran into
Mrs. Melton’s bedroom when Branch arrived. Officer
Weatherford, however, never witnessed this because he
remained outside at the time. Then, Branch handcuffed
Jeffrey. Jeffrey Carmichael remained in the living room
with Weatherford while Branch searched Melton’s bedroom.
Branch searched near the front of the bed between the
bed and the wall in Ruby Melton’s bedroom. After the first
search, Branch claimed that he found powder cocaine and a
handgun which belonged to Mr. Melton “in plain view”.
Then, Branch returned to conduct a second search of the
same area. This time, Branch searched the area near the
top of the bed next to the wall. Branch found, purportedly
in plain view again, a bag containing what appeared to be
crack cocaine. Even accepting Branch’s uncorroborated
testimony that Jeffrey Carmichael ran into Melton’s bedroom
when he arrived, Branch still exceeded the scope of a
lawful search incident to arrest.
The State had the burden to prove that the search
incident to arrest was a necessary exception to the general
rule requiring police to secure a search warrant. The
search incident to arrest is justified by the need to
ensure officer safety and preservation of evidence. It is
limited to a warrantless search of the arrestee and the
area within his control or “the area from within which [he]
might gain possession of a weapon or destructible
evidence.” The State failed to prove that the search in
the case at bar was necessary to ensure police safety or to
Branch was at Melton’s apartment that evening to serve
warrants on Jeffrey Carmichael for traffic offenses.
Branch did not see Jeffrey possessing a weapon or have any
cause to believe that he was armed. At the time of the
search, Jeffrey Carmichael was in handcuffs in another
room, being guarded by Officer Weatherford. As such, there
was no reason to fear for officer safety. Similarly,
Branch had no reason to believe that such a search was
necessary to preserve evidence.
He did not see Jeffrey Carmichael in possession of
drugs. Even though Branch alleged that Jeffrey ran into
Melton’s bedroom, he denied seeing him do anything in the
room. Branch never saw Jeffrey throw anything or crouch
behind the bed in an attempt to conceal contraband. Branch
was not there to arrest Jeffrey Carmichael on drug charges
but for driving offenses. As such, Branch had no reason to
believe that there would be drugs hidden near the bed.
For all of these reasons, Branch was not entitled to
conduct a search incident to arrest. This search was not
conducted in a car but inside of a private residence.
Branch was not free to search any room of the apartment at
whim to “fish” for evidence. Both Jeffrey Carmichael and
the occupants of the apartment were entitled to greater
Fourth Amendment protection.
This Court should reverse the order denying Jeffrey
Carmichael’s motion to suppress evidence.
2. THE STATE FAILED TO PROVE JEFFREY CARMICHAEL
CONSTRUCTIVELY POSSESSED THE COCAINE FOUND BY
SERGEANT BRANCH. HE HAD NEITHER A PROPRIETARY
INTEREST IN THE APARTMENT ON TARBORO STREET NOR
EXCLUSIVE CONTROL OF THE AREA WHERE THE DRUGS
WERE FOUND. THE TRIAL COURT ERRED IN DENYING THE
MOTION TO DISMISS THE CHARGE OF TRAFFICKING IN
COCAINE BY POSSESSION.
(Assignment of Error No. 3: T. (trial) p. 105, lines 20-21;
p. 106, lines 16-18; R. p. 32)
STANDARD OF REVIEW
This Court reviews a trial court’s denial of a motion
to dismiss at the close of the State’s case by viewing the
evidence in the light most favorable to the State. State
v. Sams, 148 N.C. App. 141, 143-44, 557 S.E.2d 638, 640
(2001). The State has the burden of presenting substantial
evidence of each and every element of the crime. State v.
Brinkley, 10 N.C. App. 160, 161, 177 S.E.2d 727, 728
(1970). “Substantial evidence is evidence from which any
trier of fact could find the fact to be proved beyond a
reasonable doubt.” State v. Sumpter, 318 N.C. 102, 108,
347 S.E.2d 396, 399 (1986).
LAW AND ANALYSIS
The State failed to prove that Jeffrey Carmichael
constructively possessed the drugs found by Sergeant Branch
at the apartment on Tarboro Street. Jeffrey Carmichael did
not have a proprietary interest in or exclusive possession
of the area where the drugs were found. Moreover, the
State presented insufficient incriminating circumstances
demonstrating that he constructively possessed the cocaine.
The only incriminating evidence offered by the State was
the officer’s testimony that Jeffrey admitted the cocaine
was his, which Jeffrey denied at trial. Therefore, the
trial court should have allowed Jeffrey Carmichael’s motion
to dismiss the charge of trafficking in cocaine by
To survive a motion to dismiss, the State must present
substantial evidence of a defendant’s possession of a
controlled substance and of his intent to sell or deliver
that substance. See N.C.G.S. §90-95(a)(1); State v. Carr,
122 N.C. App. 369, 470 S.E.2d 70 (1996). If the defendant
was not present when law enforcement discovered the
controlled substance at issue, the State must use the
doctrine of constructive possession to prove that the
controlled substance belonged to the defendant. State v.
Morgan, 111 N.C. App. 662, 665, 432 S.E.2d 877, 879 (1993).
A person has constructive possession of a controlled
substance when “he has both the power and intent to control
its disposition or use.” Id. However, if the defendant
does not have exclusive control of the premises in which
the controlled substance was found, “there must be evidence
of other incriminating circumstances to support
constructive possession.” Id. “When the evidence
presented lacks incriminating circumstances showing
defendant’s exclusive use of the premises, maintenance of
the premises as a residence, or some apparent proprietary
interest in the premises or the controlled substance,” the
trial court should dismiss a charge of possession of the
controlled substance. State v. Hamilton, 145 N.C. App.
152, 157, 549 S.E.2d 233, 236 (2001); see also State v.
Minor, 290 N.C. 68, 224 S.E.2d 180 (1976). Similarly, in
this case, the trial court should have dismissed the charge
of trafficking in cocaine due to insufficient evidence
presented by the State.
Jeffrey Carmichael had no proprietary interest in the
apartment on Tarboro Street. He did not live there and had
no family living at that address. Sergeant Branch,
moreover, never testified he saw Jeffrey Carmichael attempt
to conceal the bags of crack and powder cocaine found in
Ruby Melton’s bedroom. Branch only claimed he saw Jeffrey
go into the bedroom where the drugs were later found.
Branch promptly placed Jeffrey Carmichael in handcuffs.
Only after placing Jeffrey in handcuffs did Branch go back
to Mrs. Melton’s bedroom. At best, this constituted
evidence that Jeffrey had been in the area where he could
have committed the crime with which he was charged.
Our courts have held such evidence insufficient on
similar facts. See State v. Hamilton, 145 N.C. App. 152,
549 S.E.2d 233 (2001)(holding that trial court should have
dismissed charge of possession with intent to sell and
deliver cocaine when cocaine found in apartment belonging
to defendant’s girlfriend while he was not present in
apartment); State v. Minor, 290 N.C. 68, 224 S.E.2d 180
(1976)(finding insufficient evidence of possession where
State’s evidence showed, at best, that defendant had been
in area where he could have committed the crime charged);
and State v. McLaurin, 320 N.C. 143, 357 S.E.2d 636
(1987)(insufficient evidence of possession where defendant
resided where drug paraphernalia found but her possession
was nonexclusive). Although the evidence might raise a
strong suspicion that the defendant constructively
possessed cocaine, that does not constitute substantial
evidence to survive a motion to dismiss absent evidence of
other incriminating circumstances. Hamilton at 158, 549
S.E.2d at 236-37. Similarly, in this case, the evidence
presented by the State merely raises a suspicion that
Jeffrey Carmichael might have possessed the cocaine in
As in Minor, the evidence showed, at best, that he had
been in the area where he might have committed the crime
charged. According to Branch, Jeffrey went into the
bedroom where drugs were later found. Branch never saw
Jeffrey put his hands in his pockets or throw drugs behind
the bed. Branch promptly placed Jeffrey Carmichael in
handcuffs. The only other evidence offered by the State as
incriminating circumstances was Jeffrey’s purported
admission to Branch that the powder cocaine belonged to
At trial, Branch claimed that Jeffrey Carmichael had
admitted possessing the cocaine found behind the bed.
However, Jeffrey testified at trial, under oath, that this
statement was not true. Sergeant Branch threatened to
charge Ruby Melton with possessing the drugs. In order to
prevent this from occurring, Jeffrey Carmichael claimed
that they belonged to him. At trial, Jeffrey stated his
entire statement to Branch had been false.
Appellant concedes that credibility issues are
generally left for the jury to resolve. State v. Brown,
310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984). In this
case, however, the State presented no evidence above and
beyond this purported statement. Given this contradiction
in the evidence, and the lack of other evidence that
Jeffrey Carmichael possessed the drugs, the trial court did
not have substantial evidence of constructive possession.
The State presented insufficient evidence to survive
the motion to dismiss according to our courts rulings in
Hamilton, Minor, and McLaurin. As such, this Court should
vacate the judgments of conviction against Jeffrey
For all of the foregoing reasons set out above, the
defendant-appellant respectfully requests that this Court
reverse the order denying Jeffrey Carmichael’s motion to
suppress, vacate his judgment of conviction for trafficking
in cocaine, or order a new trial in this matter.
Respectfully submitted, this the 13th day of January,
Geoffrey W. Hosford
Attorney for Defendant-Appellant
State Bar No. 21239
P.O. Box 1653
Wilmington, NC 28402
CERTIFICATE OF SERVICE
The undersigned counsel for defendant-appellant,
Jeffrey Jerome Carmichael, hereby certifies that a copy of
the foregoing Defendant-Appellant’s Brief was served upon
the State of North Carolina by placing said copy in the
United States Mail, First Class Postage affixed, on the 13th
day of January, 2006, and bearing the following address:
Scott A. Conklin
Asst. Attorney General
Dept. of Justice
1505 Mail Service Center
Raleigh, NC 27699-1505
Geoffrey W. Hosford
Attorney for Defendant-Appellant