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No: COA05-333 DISTRICT EIGHTEEN
NORTH CAROLINA COURT OF APPEALS
************************************
STATE OF NORTH CAROLINA)
)
v.) From Guilford County
) 03 CRS 47922-23
Johnny Sanchez)
************************************
BRIEF FOR DEFENDANT-APPELLANT
************************************
SUBJECT INDEX
TABLE OF CASES AND AUTHORITIES...... ii
QUESTIONS PRESENTED...... 1
STATEMENT OF THE CASE...... 2
STATEMENT OF THE GROUNDS...... 2
STATEMENT OF THE FACTS...... 2
ARGUMENT:
I.THE COURT ERRED IN DENYING DEFENDANT’S
MOTION TO DISMISS THE HEROIN TRAFFICKING
AND CONSPIRACY CHARGES ON THE GROUND OF
INSUFFICIENCY OF THE EVIDENCE...... 4
ASSIGNMENT OF ERROR NO. 1 AND 2
T. pp. 635 & 829.
R. pp. 53-56
II.THE COURT COMMITTED PLAIN ERROR IN ITS INSTRUCTION ON CONSPIRACY BY LEAVING OUT THE
SECOND ELEMENT AS SET OUT IN THE PATTERNED INSTRUCTION, THAT IS, IN FAILING TO NAME AND DEFINE THE OBJECT...... 6
ASSIGNMENT OF ERROR NO. 3
T pp. 865 & 967
R p. 38
III.THE TRIAL COURT COMMITTED PLAIN ERROR IN FAILING TO INSTRUCT THE JURY THAT THE DEFENDANT HAD TO KNOW THAT WHAT HE POSSESSED WAS HEROIN TO CONVICT...... 7
ASSIGNMENT OF ERROR NO. 4
Tr pp. 836-844
963-966
R p. 964
CONCLUSION...... 8
CERTIFICATE OF SERVICE...... 9
TABLE OF CASES AND AUTHORITIES
State v. Acolatse, 158 N.C. App. 485, 581 S.E. 2d 807 (2003)...... 5
State v Bogle 324 N.C. 190, 376 S.E. 2d 745 (1989)...7
State v Chavis, 270 N.C. 306, 154 S.E. 2d 340(1967)..5
State v. Davis 325 N.C. 693, 386 S.E. 2d 187(1989)...4
State v Jenkins, ___ N.C. App ____, 606 S.E. 2d 430 (2005)...... 6
State v Kelly, 120 N.C. App. 821, 463 S.E. 2d 812
(1995)...... 6
State v King, 99 N.C. App. 283, 393 S.E. 2d 152
(1990)...... 5
State v. Minor, 290 N.C. 68, 224 S.E. 2d 180 (1976)...... 5
State v Moore, 162 N.C. App. 268, 592 S.E. 2d 562 (2004)...... 4
N.C.P.I. 202.80...... 6
N.C.P.I. 260.17...... 7
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No: COA05-333 DISTRICT EIGHTEEN
NORTH CAROLINA COURT OF APPEALS
************************************
STATE OF NORTH CAROLINA)
)
v.) From GUILFORD COUNTY
) No. 03 CRS 47922-23
JOHNNY SANCHEZ)
************************************
QUESTIONS PRESENTED
************************************
I.DID THE TRIAL COURT ERR IN DENYING DEFENDANT’S MOTION TO DISMISS THE HEROIN TRAFFICKING AND CONSPIRACY CHARGES FOR INSUFFICIENCY OF THE EVIDENCE?
ASSIGNMENT OF ERROR NO. 1 and 2
T. pp. 635 & 829
R. pp. 53-56
II.DID THE TRIAL COURT COMMIT PLAIN ERROR IN FAILING TO INSTRUCT THE JURY ON THE OBJECT CRIME OF THE CONSPIRACY?
ASSIGNMENT OF ERROR NO. 3
T pp. 865 & 967
R p. 38
IIIDID THE TRIAL COURT COMMIT PLAIN ERROR IN FAILING TO INSTRUCT ON THE KNOWLEDGE OF THE IDENTITY OF THE SUBSTANCE ELEMENT IN THE POSSESSION OF HEROIN CHARGE?
ASSIGNMENT OF ERROR NO. 4
Tr pp. 836-844
963-966
R p. 964
STATEMENT OF THE CASE
On 9-17-04 defendant was found guilty after a jury trial of Trafficking in Heroin and conspiracy to traffick. Judgment was entered and defendant gave notice of appeal on that same date.
STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW
Defendant-Appellant is entitled to an appeal to this Court as a matter of right pursuant to N.C.G.S. 15A-1444(a). This appeal has been properly filed and perfected with this Court pursuant to the North Carolina Rules of Appellate Procedure, Rule 4, etseq.
STATEMENT OF THE FACTS
On 9-15-03, Overnite trucking called the police and reported a crate of suspicious freight. (Tr p. 343). Detective Ferrell searched it pursuant to a search warrant. (Tr p 353). It contained a refrigerator, and 2 bundles of heroin hidden inside the refrigerator. (Tr p. 354). Upon inspection of the bundles, Detective Ferrell did not recognize them to contain heroin until he cut them open to get to the actual substance inside. (Tr p. 354). The heroin was packaged inside a wrapper and tape and grease and pepper. (Tr p. 355).
Detective Ferrell repackaged the heroin and refrigerator. (Tr p 356). He pretended to be an Overnite driver and delivered the refrigerator to its original destination, a house, where Co-Defendant Lopez accepted delivery and paid. (Tr p. 364). Fourteen minutes later the police executed a warrant to search the home. (Tr p. 396). They found the defendant and 3 others at the back door. (Tr p. 372). The refrigerator was found in the den sitting upright, with the crate pulled open, and the bundles of heroin sitting on top of the refrigerator. (Tr p. 374). Defendant’s right palm print was found on the right side of the refrigerator near the door. (Tr p. 500).
A green Dodge with a secret compartment was in the yard. (Tr p. 535).
Defendant, 43, and Co-Defendant Ulerio (acquitted) were stopping off with plans to continue their trip to Miami to visit Defendant’s daughter for her birthday. (Tr p. 652). They drove the Toyota. (Tr p. 654).
At the charge conference, the Court rejected a request for N.C.P.I. Crim. 260.17 footnote 2, regarding Defendant’s knowledge of the “true identity of what he possessed”. (Tr p. 836-838). The Court gave the jury N.C.P.I. Crim. 202.80, conspiracy, but in the second element did not name or define a particular crime. (Tr p. 967) (R 38).
ARGUMENT
I.THE COURT ERRED IN DENYING DEFENDANT’S
MOTION TO DISMISS THE HEROIN TRAFFICKING
AND CONSPIRACY CHARGES ON THE GROUND OF
INSUFFICIENCY OF THE EVIDENCE......
ASSIGNMENT OF ERROR NO. 1 AND 2
T. pp. 635 & 829.
R. pp. 53-56
The State must prove that Defendant possessed Heroin and conspired. There was no evidence of actual possession, and the State proceeded on the theory of constructive possession.
Defendant did not have possession of the premises, so the State must show evidence of other incriminating circumstances. State v. Davis 325 N.C. 693, 697, 386 S.E. 2d 187, 190 (1989).
In State v Moore, 162 N.C. App. 268, 592 S.E. 2d 562 (2004) this Court held that there was insufficient evidence of possession where cocaine was on the wall in the residence in which Moore was found, but the incriminating facts argued by the State weren’t substantial enough.
There are 3 typical situation where constructive possession has been found: exclusive possessory interest and Defendant’s presence; Defendant’s sole or joint physical custody though non-owned; and an area frequented by Defendant, usually near his property. State v King, 99 N.C. App. 283, 288, 393 S.E. 2d 152, 155 (1990).
Here Defendant was only a visitor, and the Heroin arrived 14 minutes before his arrest.
The most the State has shown is that defendant had been in an area where he could have committed the crimes charged. Beyond that we must sail in a “sea of conjecture and surmise.” State v. Minor, 290 N.C. 68, 75, 224 S.E. 2d 180, ____ (1976) (insufficient – visitor).
Even evidence that invokes a strong suspicion that a person had constructive possession is not enough. State vChavis, 270 N.C. 306, 311, 154 S.E. 2d 340, 344 (1967). State v. Acolatse, 158 N.C. App. 485, 581 S.E. 2d 807 (2003).
Here the Defendant visits for a short time, in the Toyota, (not the green Dodge with the compartment), there’s no evidence of him ever seeing the drugs, and he’s outside when the police come. His print is on the side of the refrigerator, not on the door. A palm print is more logical if he helped the owner push the refrigerator. There is simply no evidence that Defendant was ever in sight of drugs, let alone controlled their disposition or use.
II.THE COURT COMMITTED PLAIN ERROR IN ITS INSTRUCTION ON CONSPIRACY BY LEAVING OUT THE
SECOND ELEMENT AS SET OUT IN THE PATTERNED INSTRUCTION, THAT IS, IN FAILING TO NAME AND DEFINE THE OBJECT.
ASSIGNMENT OF ERROR NO. 3
T pp. 865 & 967
R p. 38
In order to find Defendant guilty of conspiracy to traffick in Heroin over 28 grams, the jury must find there was an agreement to traffic by possessing over 28 grams. State v Jenkins, ___ N.C. App ____, 606 S.E. 2d 430 (2005) (Cocaine).
Here the jury instruction leaves out the name of the crime alleged to be the object of the conspiracy. N.C.P.I. Crim. 202.80 element 2 calls for the court to “name crime” and then “define crime”. But the Court said the jury must find an agreement to “commit the offense of trafficking in a controlled substance” without stating that the crime would be by possession or sale or transportation,or other, and no crime is defined.
In State v. Kelly, 120 N.C. App. 821, 463 S.E. 2d 812 (1995), the trial court intended to charge the jury that they find conspiracy to traffick by possession if the Defendants agreed to commit that offense. But since it was possible for the jury to act on an incorrect interpretation, and convict on proof of something other than that, a new trial was allowed.
III.THE TRIAL COURT COMMITTED PLAIN ERROR IN FAILING TO INSTRUCT THE JURY THAT THE DEFENDANT HAD TO KNOW THAT WHAT HE POSSESSED WAS HEROIN.
ASSIGNMENT OF ERROR NO. 4
Tr pp. 836-844
963-966
R p. 964
At least one Defendant requested N.C.P.I. Crim. 260.17 footnote 2. “and the Defendant knew that what he possessed was” heroin.
It was an appropriate instruction in this case. The evidence is that even the trained police Detective did not know what was in the bundles when he opened the refrigerator. They were wrapped, taped, greased and peppered. He had to cut them open to see.
In State v Bogle 324 N.C. 190, 376 S.E. 2d 745 (1989), the charge was trafficking in marijuana. Bogle was paid $1,000 to drive to N.Y. a truckload that turned out to be drugs. The trial court instructed on willful blindness rather than knowledge. The Court reversed. The jury must be instructed on the elements of the crime and knowledge is “substantive feature” of trafficking. Bogle, 324 N.C. at 195, 276 S.E. 2d at ______.
CONCLUSION
For the foregoing reasons, Defendant respectfully requests that this Court set aside the judgment and acquit him, or in the alternative that the case be remanded for a new trial.
Respectfully submitted this the 11th day of May, 2005.
By:______
George E. Kelly, III
Attorney for Defendant-
Appellant
284-B West Millbrook Road
Raleigh, NC 27609
(919) 846-6919
CERTIFICATE OF SERVICE
This is to certify that the undersigned has served the foregoing BRIEF FOR DEFENDANT-APPELLANT on the State by placing a copy of the same in a U.S. Mail depository, postage pre-paid, addressed to the attorney of record for the State-Appellee as follows:
Donald W. Laton
Assistant Attorney General
State of North Carolina
9001 Mail Service Center
Raleigh, NC 27699-9001
This the 11th day of May, 2005.
By:______
George E. Kelly, III
Attorney for Defendant-
Appellant
284-B West Millbrook Road
Raleigh, NC 27609
(919) 846-6919