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State v. Tilley

Supreme Court of West Virginia

June 15, 2018

State of West Virginia, Plaintiff Below, Respondent
v.
Carlos A. Tilley, Defendant Below, Petitioner

          Marion County CC-24-2015-F-143

          MEMORANDUM DECISION

         Petitioner Carlos A. Tilley, by counsel Jason E. Wingfield, appeals the order of the Circuit Court of Marion County, entered on January 23, 2017, sentencing him to a term of life imprisonment in the state penitentiary, with the possibility of parole, upon his conviction of delivery of a controlled substance within one-thousand feet of a school, and to a concurrent term of one to five years of imprisonment in the state penitentiary upon his conviction of conspiracy to commit a felony. Petitioner's life sentence resulted from application of the recidivist enhancement statute, West Virginia Code § 61-11-18. Respondent State of West Virginia appears by counsel Sarah B. Massey.

         This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the order of the circuit court is appropriate under Rule 21 of the Rules of Appellate Procedure.

         I.

         In July of 2015, a confidential informant for the Fairmont Police Department told a drug task force officer that she could purchase crack cocaine from Nathaniel Williams at his residence, which was within one-thousand feet of West Fairmont Middle School. Police obtained an order for electronic interception from a magistrate judge pursuant to West Virginia Code § 62-1F-4 to allow recording equipment to be placed on the informant, and arranged a controlled buy on the same date. The confidential informant telephoned Mr. Williams, but Mr. Williams did not answer that call. Police then searched the informant, equipped her with video recording equipment, and sent her into Mr. Williams's apartment with fifty dollars. Mr. Williams was not there, but six other individuals, including Kishon Yeagins and petitioner, were present. The informant asked if anyone in the apartment could provide her fifty dollars' worth of crack cocaine. One individual, later identified by the informant as petitioner, took the informant's cash, left the room, and returned with two small, blue bags of crack cocaine, which he handed to her. Based on those events ("the controlled buy" or "the controlled purchase"), officers obtained a search warrant for the apartment and performed a search, but petitioner was not at the residence. Later, officers stopped Mr. Yeagins and petitioner in a car, wherein they found 27 small, blue bags of crack cocaine on Mr. Yeagins.[1] Both men were arrested. Officers later located a hotel where Mr. Yeagins and petitioner rented a room, and determined that cash from the controlled buy was used to pay for the room.

         Petitioner was indicted on one count of delivery of a controlled substance within one-thousand feet of a school and one count of conspiracy to commit a felony. Petitioner filed a motion to suppress the recording obtained from the informant on the ground that the video was not time-stamped, and it was thus not clear that the electronic interception warrant was obtained prior to the informant's entry into the home. Petitioner also argued that Mr. Williams, the tenant of the target residence, was not home when the informant entered, and therefore did not give his consent for entry. Petitioner later filed a second motion to suppress, seeking the exclusion of the evidence obtained in the execution of the search warrant. The circuit court conducted a hearing at which Det. Lt. Douglas Yost of the Fairmont Police Department testified that it is standard practice to obtain an electronic interception warrant prior to engaging a controlled buy, and he believed standard protocol was followed in this situation. The circuit court denied the motions to suppress.

         The circuit court conducted a jury trial in March of 2016. In addition to the testimony establishing the circumstances surrounding the controlled buy as described above, the State offered the testimony of Mr. Williams, at whose residence the buy occurred. Mr. Williams testified that he is a drug addict who allowed his friend Terris Lee to bring individuals to his home to sell crack cocaine, and that petitioner and Mr. Yeagins "appeared" at his home at Mr. Lee's behest up to a week before the controlled purchase.

         Petitioner was convicted of both counts in the indictment. He filed a motion for judgment of acquittal or, alternatively, for a new trial, on the grounds that the State never established that petitioner was in possession of the crack cocaine and that the State failed to establish a conspiracy. The motion was denied.

         Following the trial, the State filed a recidivist information, alleging the defendant was the same person who had been twice before convicted in the United States of crimes punishable by confinement in a penitentiary, and the court conducted a trial on that issue. A probation officer testified, relating petitioner's lengthy criminal history. The State also introduced, over the objection of petitioner, judgment orders from the United States District Court for the Eastern District of Pennsylvania and from the First Judicial District Court of Pennsylvania certifying petitioner's prior criminal convictions. The jury found petitioner guilty of recidivism, and petitioner was sentenced as described above.

         II.

         On appeal, petitioner asserts five assignments of error. He argues that the circuit court erred in: 1) denying his motion to suppress the recorded evidence of the controlled purchase because the electronic interception warrant was insufficient; 2) allowing uncorroborated testimony from his co-conspirator without giving a curative instruction; 3) allowing a probation officer to testify about statements made by petitioner, thereby violating petitioner's Fifth Amendment rights; 4) admitting the judgment orders in support of petitioner's recidivist conviction; and 5) sentencing petitioner using the recidivist enhancement without requiring the State to prove that the predicate offenses were punishable by confinement in a penitentiary. Petitioner's assignments of error concern the circuit court's evidentiary rulings. Thus, unless stated otherwise below, we review pursuant to the following standard: "The action of a trial court in admitting or excluding evidence in the exercise of its discretion will not be disturbed by the appellate court unless it appears that such action amounts to an abuse of discretion." Syllabus point 10, State v. Huffman, 141 W.Va. 55, 87 S.E.2d 541 (1955), overruled on other grounds by State ex rel. R.L. v. Bedell, 192 W.Va. 435, 452 S.E.2d 893 (1994).

         III.

         A.

         We first are called upon to determine the validity of the warrant that led to the recorded evidence used at trial and the court's subsequent denial of petitioner's motions to suppress the evidence derived therefrom. "'[A] circuit court's denial of a motion to suppress evidence will be affirmed unless it is unsupported by substantial evidence, based on an erroneous interpretation of the law, or, based on the entire record, it is clear that a mistake has been made.' Syl. Pt. 2, State v. Lacy, 196 W.Va. 104, 468 S.E.2d 719 (1996)." Syl. Pt. 2, in part, State v. Kimble, 233 W.Va. 428, 759 S.E.2d 171 (2014). In Lacy, we elucidated:

When reviewing a ruling on a motion to suppress, an appellate court should construe all facts in the light most favorable to the State, as it was the prevailing party below. Because of the highly fact-specific nature of a motion to suppress, particular deference is given to the findings of the circuit court because it had the opportunity to observe the witnesses and to hear testimony on the issues. Therefore, the circuit court's factual findings are reviewed for clear error. State v. Lilly, 194 W.Va. 595, 461 S.E.2d 101 (1995). In contrast to a review of the circuit court's factual findings, the ultimate determination as to whether a search or seizure was reasonable under the Fourth Amendment to the United States Constitution and Section 6 of Article III of the West Virginia Constitution is a question of law that is reviewed de novo. State v. Stuart, 192 W.Va. 428, 452 S.E.2d 886 (1994).

Lacy, 196 W.Va. at 109, 468 S.E.2d at 724.

         Before proceeding to the substantive issue, we must address a jurisdictional concern. The State argues that petitioner, a non-resident of the dwelling that was the subject of the search warrant, had no expectation of privacy in Mr. Williams's home, and thus has no standing to challenge to the warrant.[2] The State disputes that petitioner produced evidence that he lived or slept at Mr. Williams's home, and particularly notes that petitioner and Mr. Yeagins had already rented a hotel room when arrested. Petitioner, on the other hand, argues that he was more than a "casual visitor" in Mr. Williams's apartment and hence is entitled to challenge the evidence pursuant to syllabus point 1 of State v. Adkins, 176 W.Va. 613, 346 S.E.2d 762 (1986)("A defendant who is more than a casual visitor to an apartment or dwelling in which illegal drugs have been seized has the right under the Fourth Amendment to the United States Constitution and Article III, Section 6 of the West Virginia Constitution to challenge the search and seizure of illegal drugs which he is accused of possessing.") We clarified this principle in State v. Dorsey, 234 W.Va. 15, 24, 762 S.E.2d 584, 593 (2014), wherein we explained that continued presence alone is insufficient to establish standing because, "a guest in a home must be welcomed by his host at the time of the government intrusion in order to have a reasonable expectation of privacy." The State argues that Dorsey is particularly germane because Mr. Williams's cocaine dependence was tantamount to coercion by Mr. Lee, who supplied him with drugs, and Mr. Lee's associates, including petitioner, were therefore not "welcomed" in the Williams home.

         The burden of establishing standing to raise a Fourth Amendment challenge rests with the defendant. See United States v. Salvucci, 448 U.S. 83, 86-95, 100 S.Ct. 2547 (1980); Rakas v. Illinois, 439 U.S. 128, 130 n. 1, 99 S.Ct. 421 (1978). Petitioner offered no evidence concerning his stay at Mr. Williams's residence, and the only evidence about that arrangement was offered through the testimony of Mr. Williams. Importantly, Mr. Williams testified that he did not know petitioner's name at the time of the controlled buy, though either petitioner or Mr. Yeagins had been "there" about a week prior to the arrest, and the other joined the former two or three days later. Their appearance in his home was occasioned by Mr. Williams's arrangement with Mr. Lee, who periodically left people at Mr. Williams's home for the sole purpose of selling narcotics. Mr. Williams testified that Mr. Lee would "[j]ust give [him] a little coke for letting them work out of [his] house." There is no evidence in the appendix record on appeal that petitioner ...


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