Rashidi Masoud by 4qZ843

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									No. COA04-311                       TWENTY-SIXTH JUDICIAL DISTRICT


                     NORTH CAROLINA COURT OF APPEALS

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STATE OF NORTH CAROLINA             )
                                    )
           v.                       )        From Mecklenburg
                                    )
MASOUD RASHIDI                      )

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                       DEFENDANT-APPELLANT’S BRIEF

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                            QUESTIONS PRESENTED

     1.    Whether    the   trial     court    abused    its    discretion   in

denying Mr. Rashidi’s motion for mistrial and request for a

curative instruction when the prosecutor displayed a chart to

the jury   during      closing      argument       referring      to      highly

prejudicial matters outside the record?

     2.    Whether the trial court erred or abused its discretion

in   permitting     Agent   McDavid     to     testify   that    Mr.    Rashidi

requested an attorney during police interrogation?

     3.    Whether the trial court erred in denying the renewed

motion to suppress as, due to falsehoods in the affidavit, the

affidavit failed to establish probable cause?

     4.    Whether    the   evidence    was     insufficient     to    establish

trafficking in opium?
                                             2

                              STATEMENT OF THE CASE

     On    6    December      1999,    the       Mecklenburg    County   Grand   Jury

returned       bills    of    indictment         charging   Masoud   Rashidi     with

trafficking      in    drugs,    possession         of   drug   paraphernalia,    and

maintaining a dwelling.           (Rp. 5-6)1         The case came on for trial

at the 12 August 2003 Criminal Session of Mecklenburg County

Superior Court, the Honorable Yvonne Mims Evans presiding.                         On

14 August 2003, the jury acquitted Mr. Rashidi of maintaining a

dwelling and returned guilty verdicts on trafficking in drugs

and possession of drug paraphernalia.                    (Rp. 43-44; Tp. 493)      On

the same date, Judge Evans sentenced Mr. Rashidi to concurrent

terms of two hundred twenty-five (225) to two hundred seventy-

nine (279) months on trafficking and forty-five (45) days on

possession      of     drug   paraphernalia.             (Rp.   46-49)    From    the

judgments and sentences imposed on 14 August 2003, Mr. Rashidi

entered Notice of Appeal.             (Tp. 502)

                STATEMENT OF GROUNDS FOR APPELLATE REVIEW

     The grounds for review are a final judgment of the Superior

Court under N.C.G.S. §15A-1444(a).

                                STATEMENT OF FACTS

     According to the affidavit in support of a search warrant

drafted by United States Customs Special Agent Patrick McDavid,

1
 The Record on Appeal will be referred to as “R.”           The trial transcript will
be referred to as “T.”
                                          3

on 8 November 1999, United States Custom Inspector M. Gattulli

opened a package of Iranian origin at the United States Customs

Service     International        Mail     Facility     at    JFK     International

Airport.     The package was addressed to “M. Rashidi” at 2408

Margaret Wallace Road in Matthews, North Carolina.                    The package

contained two large decorative plaques or pictures coated with

fiberglass       that   seemed    unusually      thick.      Inspector      Gattulli

inserted a probe into one of the pictures.                  A substance adhering

to the probe was determined to be opium.                    “The opium was kept

within the picture to maintain the integrity of the parcel.”

McDavid was notified of the package on 9 November 1999.                       A New

York agent shipped it to him for further action.                    Agent McDavid

determined from Department of Motor Vehicles records that Masoud

Rashidi resided at the Matthews address.                  McDavid arranged for a

controlled delivery of the package.               (Rp. 18-20)      In reliance on

the affidavit, the United States District Court for the Western

District of North Carolina issued an anticipatory search warrant

on 16 November 1999 authorizing seizure of the estimated 412

grams of opium upon delivery of the package.                 (Rp. 13-15)

    On      17     November      1999,    McDavid,     United      States     Postal

Inspector    Wesley     King,     and    four    Charlotte-Mecklenburg        police

officers executed the controlled delivery.                   (Tp. 151)       No one

was home on their first attempt.                (Tp. 204-205)      Later that day,
                                     4

the agents saw a red Mustang drive up and park in the driveway.

The driver exited the car and entered the house.                  (Tp. 155)

Inspector King rang the doorbell.           A man answered the door and

accepted the package.        (Tp. 206)       Inspector King radioed the

surveillance team that the man matched Mr. Rashidi’s driver’s

license photo.     (Tp. 243)

       The agents waited five minutes to allow Mr. Rashidi an

opportunity to open the package.          (Tp. 159, 371)      Agent McDavid

then knocked on the door and yelled loudly, “‘Police with a

search warrant.’”       Agents forced the door open with a battering

ram when they received no response.         (Tp. 160-161, 187)

       Mr. Rashidi stood in a hallway holding a cell phone.                 (Tp.

161)    Officers yelled at him to get his hands up.            He stared at

the    officers   in   apparent   shock   and   did   not   respond    to   the

request.    (Tp. 162, 189, 245)          Within seconds, officers pushed

him to the floor, frisked him, seized a film canister from his

person, and handcuffed him.         (Tp. 191, 246-247, 252)           Officers

located the package on the stove.           The package was open, empty,

and surrounded by shattered pieces of pictures.              (Tp. 168, 351)

Agent McDavid and Charlotte-Mecklenburg Police Detective James

Kolbay led Mr. Rashidi into a bedroom.          (Tp. 162-163)     Detective

Kolbay advised Mr. Rashidi of his Miranda rights and obtained a

verbal waiver.     (Tp. 163, 184, 249)
                                                  5

       As   the     package       lay       empty,      Detective         Kolbay     asked    Mr.

Rashidi whether the package had contained opium.                              (Tp. 251)       Mr.

Rashidi     responded       that       he    did       not    use    heroin,       cocaine,    or

alcohol, but that he had used opium before.                               (Tp. 164)     He said

that   he   had     been        expecting     a       package       of    pictures    from    his

brother-in-law Ramin Sarmist in Iran.                         Mr. Rashidi said that Mr.

Sarmist had previously sent pictures and rugs to sell in the

Charlotte area.           (Tp. 164-165)

       When Mr. Rashidi opened this package, he realized from its

odor that it contained opium.                      He had not expected Mr. Sarmist

to send opium.            He then heard a knock on the door and thought

that his wife and child were coming home.                                As he did not want

his child to see the opium, he removed it from the package and

hid it in a bedroom.               (Tp. 166, 251)                Mr. Rashidi got up and

pointed to a desk in another bedroom.                         Police recovered a United

States Customs Evidence Bag, containing 381.93 grams of opium,

from a trash bag of clothes under the desk.                              (Tp. 252, 389)

       Mr. Rashidi said that he could prove he did not ask Mr.

Sarmist to send opium by calling Mr. Sarmist.                                 (Tp. 167, 254)

Detective        Kolbay    thought       that         Mr.    Rashidi       would   incriminate

himself during a conversation and allowed the call to be placed.

(Tp.   304,      365)       Mr.     Rashidi           complied      with     Agent    McDavid’s

request     to    talk     to    Mr.    Sarmist        in    Farsi,       rather     than   their
                                               6

native    Kurdish,      as    McDavid     had       a    confidential         informant        who

could translate Farsi.                 (Tp. 167)           Police tape recorded the

conversation.       (Tp. 171)

    Mr. Rashidi reported to McDavid and Kolbay after the call

that Mr. Sarmist did not admit sending opium.                                  Since neither

McDavid nor Kolbay spoke Farsi, they had no idea what the two

had discussed.          (Tp. 107-108)              They continued to question Mr.

Rashidi.        When    Mr.    Rashidi    asked          for    a    lawyer,    McDavid        and

Kolbay ended the interrogation.                    (Tp. 172-173)

    Police        recovered       an    item        from    a       bedroom    which      Kolbay

thought was an opium pipe.                They recovered a large safety pin

wrapped    in    opium,       small    hand-held           scales,      and    approximately

$1,600 in cash from the Mustang (Tp. 254-255, 308-309, 393, 417-

418, 426)       The film canister seized from Mr. Rashidi’s person

contained a trace amount of opium.                          (Tp. 393)           Police found

empty mailing boxes in the carport that appeared to have been

addressed    by    the    same      person         who   wrote       the    address       on   the

instant package.         (Tp. 208-209)

    As     to     the    381.93       grams        of    opium,      McDavid        and   Kolbay

theorized that customs agents in New York opened the package,

broke the picture frames, removed opium from inside the frames,

placed    the    opium    in    a     Customs       Evidence         Bag,     and    stuck     the

evidence bag and broken picture frames back into the package.
                                        7

(Tp. 168, 346, 374)        Neither Kolbay nor McDavid had first hand

knowledge of what had been in the box before it was opened in

New York or before Mr. Rashidi opened it. (Tp. 148-149, 345-346)

       Police waited until 4 August 2003 to translate the tape

recorded call.         (Tp. 218)     In the call, Mr. Sarmist told Mr.

Rashidi    that   he    gave   two   gleams     (rugs)    and   one   moharragh

(portrait) to the Teheran post office to be boxed and mailed.

Mr. Rashidi told him that the package contained two pictures and

“something unreal” instead.           Mr. Sarmist suggested that someone

was trying to frame him.           Mr. Rashidi told Mr. Sarmist that he

had to find out who prepared and sent the package.                    (Tp. 227-

230)

       Detective Kolbay testified that he was subpoenaed to appear

on this case on 11 June 2001.               (Tp. 316)     Over objection (Tp.

316-317), Kolbay testified that Mr. Rashidi did not appear in

court that day and a warrant issued for his arrest.               He next saw

Mr. Rashidi on 9 December 2002 when the arrest warrant was still

outstanding.      (Tp. 317)

       The jury instruction conference was held after the State

rested    its   case.    Defense     counsel    tendered    a   proposed   jury

instruction that addressed the reasons why Mr. Rashidi went to

Canada after his arrest.           (Tp. 436-438)        Counsel noted that no

evidence had yet been introduced that Mr. Rashidi went to Canada
                                    8

and that the instruction would not be needed if Mr. Rashidi

elected not to testify.     (Tp. 438-439)      The defense tendered the

instruction as it anticipated that the State would argue in

closing that Mr. Rashidi fled to Canada because he was guilty.

The   instruction   set   forth   the    defense     contention   that   Mr.

Rashidi went to Canada due to the State’s failure to produce

exculpatory evidence.       (Tp. 439-440)           The court refused    the

instruction, but stated that defense counsel could argue the

matter in closing. (Tp. 442)       The defense asked the prosecutor

to stick to the evidence in closing argument and reminded him

that there was no testimony yet that Mr. Rashidi went to Canada.

The prosecutor said that he would be “mindful” of the evidence

admitted and not “introduce [any], unless [defense counsel] puts

up evidence of the defendant leaving, and his reasons why.”

(Tp. 459)

      Mr. Rashidi elected not to testify.           (Tp. 461)   The defense

rested without presenting any evidence (Tp. 464) and the case

proceeded to closing arguments.         (Tp. 465)

      The prosecutor displayed sixteen typed 8.5”x11” sheets to

the jury during his closing argument.               (Tp. 465)     Panel #15

read:

            D went to Canada when he knew he had a trial
            court date back on June 11, 2001.    He knew
            that he needed to get out of the U.S.
                                      9

            because he knew that he was guilty.             (Tp.
            465)

Panel #16 read:

            D didn’t return to the U.S. and turn himself
            in, he hid.      (sound familiar)    Officer
            Kolbay had to find him and arrest him, to
            make sure he would make his next court date.
            (Tp. 466)

       Defense counsel objected to Panel #15 and #16 during the

closing     argument   and   moved   for   a     mistrial   following    the

argument.     (Tp. 465, 466)     The court denied the motion.           (Tp.

470)    The defense requested that a curative instruction be given

advising the jury that it had been shown information during

closing argument that did not pertain to the case.                 (Tp. 469)

The court denied the request.        (Tp. 470)

                                ARGUMENT

       I.   THE TRIAL COURT ABUSED ITS DISCRETION IN
            DENYING MR. RASHIDI’S MOTION FOR MISTRIAL
            AND REQUEST FOR A CURATIVE INSTRUCTION WHEN
            THE PROSECUTOR DISPLAYED A CHART TO THE JURY
            DURING CLOSING ARGUMENT REFERRING TO HIGHLY
            PREJUDICIAL MATTERS OUTSIDE THE RECORD.

            Assignments of Error Nos. 1-2, Rp. 54

       A trial court is required to

            declare a mistrial upon the defendant’s
            motion if there occurs during the trial an
            error or legal defect in the proceedings, or
            conduct inside or outside the courtroom,
            resulting in substantial and irreparable
            prejudice to the defendant’s case.
                                              10


N.C.G.S. §15A-1061 (2003).              A mistrial was required herein when

the   prosecutor        placed    before       the       jury    in   closing       argument

matters not in evidence couched in such a way as to vitiate Mr.

Rashidi’s       not     guilty        plea.             The    comments      were     hardly

inadvertent,       as    they    appeared          on    typed    sheets     prepared     in

advance of the argument.               The prosecutor posted Panels #15 and

#16 with defense counsel’s warnings about the improprieties of

such an argument still ringing in his ears and his own promise

not to mention the matter barely out of his mouth.                                The trial

court’s     failure     to   recognize        the       substantial    and    irreparable

prejudice to Mr. Rashidi from the unethical and improper closing

argument constituted an abuse of discretion requiring reversal

of his convictions.             State v. Jordan, 149 N.C. App. 838, 844,

562 S.E.2d 465, 468 (2002).

      Due    to    jurors’      beliefs       that       prosecutors       refrain     “from

improper methods calculated to produce a wrongful conviction”

and     their     tendency       to    accord       “much        weight”     to     improper

prosecutorial closing arguments “when they properly should carry

none,” Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629,

79 L.Ed. 1314, 1321 (1935), bodies ranging from the Legislature,

State    Bar,     and    appellate       courts         have     repeatedly       formulated

specific     guidelines         for    closing           arguments    to     ensure     that

defendants receive fair trials.                    See N.C.G.S. §15A-1230(a); The
                                          11

Revised    Rules     of   Professional     Conduct      of   the    North   Carolina

State     Bar,    Rule    3.4(e)(2003).          Too    often,      however,     those

pronouncements       fall     on    the   deaf    ears       of    prosecutors     who

“intentionally ‘push the envelope’ in their jury arguments in

the belief that there will be no consequences for doing so.”

State v. Jones, 355 N.C. 117, 127, 558 S.E.2d 97, 104 (2002).

    It is well established that prosecutors are allowed only

               to argue the law and the facts in evidence
               and present all reasonable inferences to be
               drawn therefrom.    State v. Craig, 308 N.C.
               446, 454, 302 S.E.2d 740, 745, cert. denied,
               464 U.S. 908, 78 L.Ed.2d 247, 104 S.Ct. 263
               (1983) (emphasis added) (citations omitted).
               But the law is clear that during a closing
               argument to the jury an ‘attorney may
               not...make arguments on the basis of matters
               outside the record....”      N.C. Gen. Stat.
               §15A-1230(a)(1999).     Likewise, our courts
               have   consistently    refused   to   tolerate
               ‘remarks   not   warranted   by   either   the
               evidence or the law, or remarks calculated
               to mislead or prejudice the jury.’ State v.
               Smith, 352 N.C. 531, 560, 532 S.E.2d 773,
               791-92 (2000), cert. denied, 532 U.S. 949,
               149 L.Ed.2d 360 (2001); State v. Sanderson,
               336 N.C. 1, 15-16, 442 S.E.2d 33, 42 (1994);
               State v. Wilson, 335 N.C. 220, 224-225, 436
               S.E.2d 831, 834 (1993); State v. Anderson,
               322 N.C. 22, 37, 366 S.E.2d 459, 468 (1988).

State v. Jordan, supra, 149 N.C. App. at 842, 562 S.E.2d at 465.

    If     a     prosecutor   decides     that    certain     facts    should     come

before    the     fact-finder      to   insure   that    a    proper    verdict     is

reached, he must elicit evidence to that regard.                    If he fails to
                                          12

do so, he cannot seize upon closing argument to bring the matter

to the jury’s attention.           State v. Eagle, 233 N.C. 218, 220, 63

S.E.2d     170,    172-173      (1951).        Our   courts    have       “repeatedly

stressed that counsel may not ‘travel outside the record’ by

arguing    facts        or   matters   not     included   in   the        evidence   of

record.”     State v. Allen, 353 N.C. 504, 509, 546 S.E.2d 372, 376

(2001).     Such arguments run afoul of multiple prohibitions, for

they cast the prosecutor in the role of an unsworn witness,

deprive    the     defendant      of   the     opportunity     to    challenge       the

unsworn assertions through evidence, and deprive the verdict of

reliability.

    During        the    jury   instruction      conference,        the   prosecutor,

defense counsel, and trial judge discussed the status of the

evidence regarding Mr. Rashidi’s post-arrest activities.                        While

Detective Kolbay testified that Mr. Rashidi failed to appear in

court on 11 June 2001, that a warrant issued for his arrest, and

that Kolbay saw Mr. Rashidi on 9 December 2002 when the warrant

was still outstanding (Tp. 317), neither Kolbay nor any other

witness testified that Mr. Rashidi went to Canada after his

arrest, that he hid in Canada to avoid prosecution, that Kolbay

arrested him in Canada, or that Kolbay even arrested him.                        (Tp.

438, 458-459)           The only witness expected to testify about the
                                         13

Canadian episode was Mr. Rashidi, who awaited settlement of the

jury instructions before deciding whether to testify.                    (Tp. 439)

       During the conference, defense counsel expressed his fear

that    the   prosecutor      intended     to    argue   in    closing      that    Mr.

Rashidi went to Canada because he knew he was guilty.                       (Tp. 440)

He   asked    that   the     prosecution      “be   mindful”    of    the    lack    of

evidence “when it makes its closing arguments and stick to the

facts of the record.”          (Tp. 459)        The prosecutor promised to be

“mindful” of what evidence had been admitted and not introduce

anything in closing argument not supported by evidence.                            (Tp.

459)    When Mr. Rashidi elected not to testify (Tp. 461), it was

clear    to   the    trial    court,   prosecutor,       and    defense      that    no

evidence about Canada or Mr. Rashidi’s reasons for going to

Canada had been placed before the jury.

       During his closing argument, the prosecutor tacked sixteen

typed bullet-points onto a blackboard six feet in front of the

jury box in full view of all of the jurors.                    (Tp. 466)      Despite

the wholesale lack of evidence regarding Mr. Rashidi post-arrest

activities     and    the    reasons   therefor,      Panel     #15   stated       that

Defendant went to Canada “because he knew that he was guilty.”

(Tp. 465)       Panel #16 recited that Defendant hid rather than

turning himself in and that Kolbay had to find and arrest him.

(Tp. 466)      The defense timely objected and Panels #15 and #16
                                             14

were removed from the blackboard.                    (Tp. 465)         Nothing in the

record         suggests      that        a         curative      instruction        was

contemporaneously given.

       Immediately        following      the       argument,     the     trial   court

permitted counsel to place his objection on the record.                           (Tp.

465)     Counsel     recited     what    had       transpired     and    moved   for   a

mistrial.        (Tp. 465-466)         In response, the prosecutor stated

that the jury had not had as much time to read Panels #15 and

#16 as it had to read other panels and speculated that no juror

read them.       (Tp. 467)      He argued that the court’s instruction on

closing arguments sufficiently cured his misconduct (Tp. 468),

although the court had failed to instruct the jury to rely on

its own recollection of the evidence if the closing arguments

strayed from the facts.              (Tp. 464)       Defense counsel pointed out

that he had been able to read those panels during the argument

and argued that the jury was tainted if even one juror read

them. Counsel asked, in the event a mistrial was denied, that

the court not instruct the jury on flight and instead give a

curative instruction that it had been presented with information

during closing argument that did not pertain to this case.                        (Tp.

466-467, 469)       The court denied the motion for mistrial on the

ground that it did not “know how long the jury looked at it.”

The    court    agreed    not   to    give     a   flight     instruction.   With      no
                                        15

explanation,      the    court   denied      the   request    for     a    curative

instruction.      (Tp. 470)

       “It is well settled that a motion for mistrial and the

determination      of     whether    the     defendant’s      case        has   been

irreparably      and    substantially   prejudiced     is    within       the   trial

court’s sound discretion.”          State v. McNeill, 349 N.C. 634, 646,

509 S.E.2d 415, 422-423 (1998), cert. denied, 528 U.S. 838, 120

S.Ct. 102, 145 L.Ed.2d 87 (1999).              “Abuse of discretion occurs

when the trial court’s decision is ‘“so arbitrary that it could

not have been the result of a reasoned decision.’”                         State v.

Hyde, 352 N.C. 37, 46, 530 S.E.2d 281, 288 (2000)(quoting State

v. Barts, 316 N.C. 666, 682, 343 S.E.2d 828, 839 (1986), cert.

denied, 531 U.S. 114, 121 S.Ct. 862, 138 L.Ed.2d 775 (2001).”

State v. Diehl, 353 N.C. 433, 437, 545 S.E.2d 185, 188 (2001).

       As defense counsel was able to read the two panels during

the time they were posted, the court’s ruling, which suggested

that the jury had not had sufficient time to read them, was

arbitrary and unreasonable.          Common sense dictates that one or

more    jurors     joined     defense      counsel    in     reading       material

positioned six feet directly in front of them.                 (Tp. 466)         The

court engaged in no analysis whatsoever as to how Mr. Rashidi

could receive a fair trial after such inflammatory material was

placed before the jury, since the unproved assertions that Mr.
                                        16

Rashidi fled to Canada because he knew he was guilty stood in

stark contrast to Mr. Rashidi’s defense that he never asked to

be sent opium.        The court wholly ignored how calculated the

prosecutor had acted in exposing the jury to such prejudicial

matters.      The court gave no reason to justify its refusal to

instruct or admonish the jury.

      Upon    objection,   a   “trial      court   has    the   duty   to    censor

remarks not warranted by the law or evidence.”                  State v. Wilson,

supra, 335 N.C. at 225, 436 S.E.2d at 834, quoting State v.

Anderson, supra, 322 N.C. at 37, 366 S.E.2d at 468.                    This court

did nothing.      The giving of an immediate curative instruction

can ameliorate prejudice and justify the denial of a mistrial,

Donnelly v. DeChristoforo, 416 U.S. 637, 644, 94 S.Ct. 1868,

1872, 40 L.Ed.2d 431, 437 (1974); State v. Rowsey, 343 N.C. 603,

627, 472 S.E.2d 903, 916 (1996), cert. denied, 519 U.S. 1151,

117   S.Ct.   1087,   13   L.Ed.2d      221    (1997),    unless    the     closing

argument was “[s]o manifestly improper” that “it is doubtful

whether    the   harmful   effect    was      removed    by   direction     not   to

consider it.”     State v. Roach, 248 N.C. 63, 65, 102 S.E.2d 413,

414 (1958).      Whether an effective instruction could have been

fashioned in this case can never be known, since the court made

no effort to fashion one.
                                       17

       The court’s inaction in the face of such a grossly improper

argument     calculated     to     prejudice      and         mislead    the     jury

constituted    an   abuse   of    discretion.       Closing       arguments      “are

seldom     carefully    constructed         in   toto     before        the    event;

improvisation frequently results in syntax left imperfect and

meaning less than crystal clear.”                Donnelly v. DeChristoforo,

supra, 416 U.S. at 647-648, 94 S.Ct. at 1873, 40 L.Ed.2d at 438-

439.     These typed sheets were carefully constructed before the

argument to insure that the jury was aware of certain events and

assertions that were wholly unsupported by the record.                          This

argument “so infected the trial with unfairness as to make the

resulting conviction a denial of due process.”                    Id. at 644, 94

S.Ct. at 1872, 40 L.Ed.2d at 437, quoted in State v. Morston,

336 N.C. 381, 405, 445 S.E.2d 1, 14 (1994).

       The State may argue on appeal that the jury was not swayed

by the grossly improper argument as it acquitted Mr. Rashidi of

maintaining a dwelling for the purpose of unlawfully keeping

controlled substances.       See State v. Glasco, __ N.C. App. __,

585 S.E.2d 257, 263 (2003) (no abuse of discretion in denying

mistrial as defendant was acquitted of one charge).                      The jury’s

acquittal     on    maintaining    a   dwelling         is,     however,      clearly

attributable to insufficiency of the evidence.                      The dwelling

involved was Mr. Rashidi’s home. The opium was in the home for
                                18

only five minutes before the police broke down the door.        The

State did not establish that Mr. Rashidi had ever sold opium

from his home or otherwise used his home as a base for drug

operations.   Mr. Rashidi had no prior arrest record.   Police did

not wiretap his phone to discover whether he was engaged in the

business of selling drugs.    Prior to this controlled delivery,

police had never conducted surveillance of Mr. Rashidi or his

home.   (Tp. 348-349, 369)   Given the state of the evidence, it

would have violated due process had the jury decided that Mr.

Rashidi intentionally kept that residence for the purpose of

unlawfully keeping opium, rather than for the purpose of housing

himself and his family.   See State v. Lane, __ N.C. App. __, __

S.E.2d __ (No. COA03-510, April 6, 2004); State v. Dickerson,

152 N.C. App. 714, 568 S.E.2d 281 (2002).

    The trafficking count, on the other hand, required the jury

to find that Mr. Rashidi knowingly possessed opium with both the

power and intent to control its disposition or use. (Rp. 35)

Mr. Rashidi told police that he knew the package contained opium

as soon as he opened it and smelled its contents.   (Tp. 251)   He

denied knowledge that he would be sent opium.   (Tp. 166)    Since

police seized the opium before Mr. Rashidi had any opportunity

to dispose or use it, and the police had failed to conduct any

investigation of Mr. Rashidi before delivering the package (Tp.
                                         19

348-349, 369), the prosecutor was sufficiently concerned about

the strength of his case to request instructions on constructive

possession and circumstantial evidence.               (Rp. 443-444, 455-457)

Any suggestion that Mr. Rashidi was not surprised to find opium

in   the      package    strengthened    the    prosecutor’s   circumstantial

case.        The prosecutor’s unethical assertion that Mr. Rashidi

fled    the    country    because   he   knew    he   was   guilty   went   most

directly to the trafficking count.              It cannot credibly be argued

that the prosecutor’s misconduct did not rob Mr. Rashidi “of

substantive evidence of his innocence.”               State v. Roach, supra,

248 N.C. at 65, 102 S.E.2d at 414.

       The trial court had          a duty “to take appropriate action

against opportunists who purposely venture to violate courtroom

protocol.”       State v. Jones, supra, 355 N.C. at 128, 558 S.E.2d

at 104.       The court’s failure to act in the face of this argument

mandates that Mr. Rashidi receive a new trial.

       II.     THE TRIAL COURT ERRED IN PERMITTING AGENT
               McDAVID TO TESTIFY THAT MR. RASHIDI REQUESTED
               AN ATTORNEY DURING POLICE INTERROGATION.

               Assignment of Error No. 7, Rp. 55

       Elicitation       of   evidence   that   the   defendant   invoked   his

right to counsel and refused to answer questions during police

interrogation violates the Fifth and Fourteenth Amendments to

the United States Constitution and Article I, §§19 and 23 of the
                                          20

North Carolina Constitution.          Doyle v. Ohio, 426 U.S. 610, 619,

96 S.Ct. 2240, 2245, 49 L.Ed.2d 91, 98 (1976); State v. Ladd,

308 N.C. 272, 283-284, 302 S.E.2d 164, 171-172 (1983); State v.

Lane,   301    N.C.   382,   384,   271        S.E.2d   273,   275   (1980).    The

prosecutor’s elicitation of such testimony herein, coupled with

the court’s overruling of Mr. Rashidi’s objection and refusal to

give a curative instruction, requires reversal of Mr. Rashidi’s

convictions, as Mr. Rashidi was prejudiced by the prosecutor’s

use of his exercise of constitutional rights against him.

     Under      N.C.G.S.     §15A-1443(b),           constitutional     error    is

prejudicial,      and   thus   requires          a   new   trial,     “unless   the

appellate court finds that it was harmless beyond a reasonable

doubt.”

              In cases where the mention of defendant’s
              post-Miranda silence is being reviewed, our
              courts have determined that this error can
              be harmless beyond a reasonable doubt by
              looking at factors such as whether:      (1)
              reference to defendant’s silence was made by
              a witness or the prosecutor; (2) the State
              made additional references or comments to
              defendant’s exercise of his right to remain
              silent during the remainder of the trial;
              (3) the State intended to capitalize on
              defendant’s   silence;   (4)   the  evidence
              against defendant was overwhelming; and (5)
              defendant timely objected and made a motion
              to strike. See State v. Alexander, 387 N.C.
              182, 196, 446 S.E.2d 83, 91 (1994); State v.
              Elmore, 337 N.C. 789, 448 S.E.2d 501 (1994);
              State v. Freeland, 316 N.C. 13, 19, 340
                                     21

              S.E.2d 35, 38 (1986); State v. Walker, 316
              N.C. 33, 340 S.E.2d 80 (1986).

State v. Gilley, 2002 N.C. App. Lexis 1978 at p. 11 (No. COA01-

235 May 7, 2002) (unpublished decision).              Under this analysis,

the   State    cannot   establish   harmlessness      beyond    a   reasonable

doubt herein.

      First, the comment on Mr. Rashidi’s exercise of his rights

to remain silent and to counsel was initiated by the prosecutor

in his direct examination of Agent McDavid:

              Q:   At any time, talking about all those
              statements the defendant made, and your
              conversations with the defendant, at anytime
              during any of those conversations, did he
              ever ask for a lawyer to be present?

              D:    Objection.

              CT:   Overruled.

              A:    Yes, he did.

              Q:   And when did he tell          you, or tell
              someone that he wanted a           lawyer to be
              present?

              A:    I was conducting a search of the house-

              D:   Objection.    Request   to   be   heard,    Your
              Honor.

              [unreported bench conference]

              CT:   That objection is overruled.

              Q:   Inspector McDavid, when the defendant
              invoked his rights to an attorney, was he
              asked anymore [sic] questions about this
              incident?
                                           22



            A:      No, he wasn’t.        (Tp. 172-173)

       The challenged testimony was not a non-responsive answer to

an innocuous request for a chronology of events surrounding Mr.

Rashidi’s arrest.         Cf. State v. Elmore, supra, 337 N.C. at 792,

448 S.E.2d at 503; State v. Bailey, 157 N.C. App. 80, 85, 577

S.E.2d 683, 687 (2003).           The testimony directly responded to the

questions    asked.         As    the     prosecutor        scripted     his    direct

examinations in advance and knew what the witnesses would say in

response to his questions (Tp. 269), it could have come as no

surprise that Agent McDavid answered those questions as he did.

       Secondly,    the    prosecutor          made    three   references       to   the

exercise    of   rights     during       the     direct     examination    of     Agent

McDavid    quoted    above       and    obliquely       referred   to    it    on    the

challenged Panel #16 displayed to the jury in closing argument.

As defense counsel noted when allowed to place his objection to

McDavid’s   testimony       on    the     record,       advising   a    jury    that   a

defendant    “lawyered-up”             conveys        the   impression     that      the

defendant had something to hide.                 (Tp. 222)      Panel #16 stated,

inter alia, “D didn’t return to the U.S. and turn himself in, he

hid.    (sound familiar)”         (Tp. 466)       One plausible interpretation

of “sound familiar” is that prosecutor was reminding the jury

that Mr. Rashidi “hid” behind his constitutional rights when

questioned by police.
                                              23

       Third, the fact that the prosecutor deliberately elicited

the testimony indicates an intention to capitalize on it.                                  The

prohibition        against      eliciting          evidence       that     a     defendant

exercised     his     rights       is   hardly     a     recent    rule    of       law.     A

prosecutor         would     deliberately          elicit        such     unquestionably

forbidden and prejudicial evidence only if he perceives a need

to do so.

       Fourth,      the      evidence         against      Mr.     Rashidi          was    not

overwhelming.          While       it   was    uncontested        that    a     sufficient

quantity      of    opium     to    satisfy        the    trafficking      statute         was

delivered to Mr. Rashidi, his intent as to that opium was the

sole contested issue at trial.

       Lastly, Mr. Rashidi timely objected.                       (Tp. 172-173, 221-

223)    The trial court overruled all of the timely objections.

Defense counsel asked the court to instruct the jury that a

criminal defendant has the right to counsel and right not to

speak to the police.               (Tp. 222-223)           The court rejected the

request on the ground that such an instruction would only remind

the    jury   of    the     testimony     given.          (Tp.    223)        The    court’s

reluctance     to     address       evidence       it    considered       admissible        is

somewhat puzzling, but its refusal to instruct as requested was

erroneous or an abuse of discretion.                     The defense was well aware

that such an instruction had the potential to further prejudice
                                            24

Mr.   Rashidi,      but    deemed    such        an   instruction      to    be   in    Mr.

Rashidi’s best interest.            (Tp. 223)           Mr. Rashidi could not have

later complained about the giving of an instruction at his own

request, and thus should be been given the protection he deemed

necessary to insure his rights to a fair trial.

      The reference to Mr. Rashidi’s invocation of his rights was

deliberate and not de minimis.               “In overruling the objection and

declining    to     offer   a     curative       instruction,     the       trial   court

allowed the jury to determine what weight should be given to

defendant’s silence.”             State v. Reid, 334 N.C. 551, 559, 434

S.E.2d 193, 199 (1993).             Mr. Rashidi is therefore entitled to a

new trial.

      III. THE TRIAL COURT ERRED IN DENYING THE RENEWED
           MOTION TO SUPPRESS AS, DUE TO FALSEHOODS IN
           THE AFFIDAVIT, THE AFFIDAVIT FAILED TO
           ESTABLISH PROBABLE CAUSE.

            Assignment of Error No. 3, Rp. 54

      Opium, drug paraphernalia, and other items were seized from

Mr. Rashidi’s home pursuant to a search warrant issued by the

United     States    District       Court        in   reliance    on    an    affidavit

prepared by United States Customs Special Agent Patrick McDavid.

(Rp. 13-22)       Prior to trial, Mr. Rashidi moved to suppress the

evidence    seized    on    the     ground       that    the   affidavit      failed     to

establish probable cause.            (Rp. 12-23)          The trial court reviewed

the four corners of the affidavit and denied the motion.                               (Tp.
                                         25

32-33)      At trial, when it became obvious that the affidavit

contained     material       falsehoods,      Mr.        Rashidi    reraised   the

suppression motion.          (Tp. 430)    The trial court’s denial of the

renewed motion was erroneous (Tp. 434), as the affidavit wholly

failed to establish probable cause.

    Under      the     Fourth       Amendment       to     the     United   States

Constitution, Article I, §20 of the North Carolina Constitution,

and N.C.G.S. §15A-244, a search warrant may issue only upon a

showing of probable cause.               “Probable cause for a search is

present     where    facts    are    stated     which      establish   reasonable

grounds to believe a search of the premises will reveal the

items sought and that the items will aid in the apprehension or

conviction of the offender.”             State v. Fernandez, 346 N.C. 1,

13, 484 S.E.2d 350, 358 (1997).               The constitutions and statute

assume

            ‘there will be a truthful showing’ (emphasis
            in original). This does not mean ‘truthful’
            in the sense that every fact recited in the
            warrant affidavit is necessarily correct,
            for probable cause may be founded upon
            hearsay and other information received from
            informants, as well as upon information
            within the affiant’s own knowledge that
            sometimes must be garnered hastily.      But
            surely it is to be ‘truthful’ in the sense
            that the information put forth is believed
            or appropriately accepted by the affiant as
            true.
                                         26

Franks v. Delaware, 438 U.S. 154, 164-165, 98 S.Ct. 2674, 2681,

57 L.Ed.2d 667, 677-678 (1978).                     Accord State v. Fernandez,

supra, 346 N.C. at 13, 484 S.E.2d at 358.

       Agent McDavid recited in the affidavit that the information

set    forth    therein    was    developed     by        himself    and    other      law

enforcement personnel.           (Rp. 18)      He averred that United States

Customs Inspector M. Gattulli opened a package addressed to “M.

Rashidi    2408    Margaret      Wallace      RD,    Matthews,       North      Carolina

28105” and found therein two large plaques or pictures which

were

               unusually thick and coated with fiberglass.
               The Inspector probed through tape on the
               picture,   the  probe   revealed   a  black
               substance contained within.   The substance
               was field tested with a Marquis Reagent
               Narco Pouch #902 test kit to be opium. The
               opium was estimated to be 412 grams.    The
               opium was kept within the picture to
               maintain the integrity of the parcel.  (Rp.
               19)

McDavid    averred    that     the   package        was    forwarded       to    him   for

further    action.        He   ascertained     through       Department         of   Motor

Vehicle    records    that      Masoud   Rashidi          resided    at    the       stated

address.       He averred that opium would be found in Mr. Rashidi’s

home after a controlled delivery of the package.                     (Rp. 19)

       Agent    McDavid    testified     at    trial       that     the    package     was

examined by customs agents, that it contained pictures, that the

package was probed, that it was field tested for opium, and that
                                           27

it contained approximately 412 grams of opium.                         (Tp. 146, 149)

Such testimony parroted his warrant affidavit.                           In an about

face, however, he also testified that he was not told what was

done to the pictures and opium before the package was sent to

him.    (Tp. 149)       McDavid further testified that when the team

entered the home, they found a box on the kitchen stove, broken

pieces of picture frames on the kitchen stove, and opium in a

Customs bag in a rear bedroom.             (Tp. 168)

       Detective Kolbay testified that when he entered the home,

the box was wide open on the stove and pieces of picture frames

were on the stove.             (Tp. 248-249)           The opium was found in a

Customs evidence bag.             (Tp. 252) Kolbay then testified that

State’s     Exhibit    10      depicted    the     box    at     the     scene.       The

photograph showed a box containing broken picture frames.                           (Tp.

264)

       At that point, it began to dawn on defense counsel that

something     was     amiss.       Since        both   McDavid     and     Kolbay     had

testified that pieces of broken picture frames were on the stove

when they entered the house, photographs depicting broken frames

inside a box had to have been staged.                          (Tp. 271)          Defense

counsel had taken McDavid’s affidavit at face value (Tp. 279-

280) and thought that the State’s theory of the case was that

Mr. Rashidi, in the five minute interval from delivery of the
                                           28

package to entry by the police, broke the picture frames and

scraped out the opium.              Counsel had assumed that McDavid or

another member of the team had then placed the opium in the

Customs bag. (Rp. 286)           Upon seeing Exhibit 10, he realized that

the State had no accurate information as to what had been in the

box.

       Counsel argued that the State had failed to present any

evidence as to the original contents of the box.                        Since neither

McDavid nor Kolbay ever saw the contents of the box before it

was    opened     by   Mr.     Rashidi,     neither       knew    whether       the    box

contained     opium,      picture   frames,        or   anything        else    when    it

arrived in New York.           (Tp. 272)        The trial court agreed that the

defense was entitled to know what was in the box in New York,

but doubted that the State could prove that.                        (Tp. 277)          The

prosecutor asserted that he lacked the funds to bring in anyone

from New York (Tp. 285) and he failed to present any witness who

could explain on the basis of personal knowledge the discrepancy

between the search warrant affidavit and the items found in the

house.      The    prosecutor     instead        complained      that    such    matters

should    have     been      resolved     pre-trial       (Tp.    293),        apparently

suggesting that counsel should have read the warrant affidavit,

looked   at     the    scene    photographs,        and    somehow      divined       that

virtually nothing about them was true.                    Counsel noted that the
                                          29

matter    raised    a    Franks    claim.       (Tp.    298)         After    the    State

rested,   the    defense      formally    reraised      the    suppression          motion

(Tp. 430), which was denied.             (Tp. 434)

      When   a   defendant        establishes     by    a    preponderance          of   the

evidence that a “false statement knowingly and intentionally, or

with reckless disregard for the truth” was made by an affiant in

an affidavit in order to secure a search warrant, the false

information must be excised from the warrant and set aside.

Franks v. Delaware, supra, 438 U.S. at 155-156, 98 S.Ct. at

2676, 57 L.Ed.2d at 672.            If the “affidavit’s remaining content

is insufficient to establish probable cause, the search warrant

must be voided and the fruits of the search excluded to the same

extent as if probable cause was lacking on the face of the

affidavit.”      Id.

      A Franks claim is not established merely by a showing that

the affidavit contains false statements.                      State v. Fernandez,

supra, 346 N.C. at 14, 484 S.E.2d at 358.                     Rather, the evidence

“must    establish       facts    from   which    the       finder    of     fact    might

conclude that the affiant alleged the facts in bad faith.”                               Id.

“An   affiant      may   be   unaware     that    a    statement       is     false      and

therefore include the statement in the affidavit based on a good

faith belief of its veracity.”                 State v. Severn, 130 N.C. App.

319, 323, 502 S.E.2d 882, 885 (1998).
                                      30

    When   Agent    McDavid   disowned       the   affidavit   and   testified

that he was not told by anyone in New York what happened between

the opening of the package and the package being forwarded to

him, all basis for a good faith claim evaporated.               No statement

in the affidavit purporting to set forth what occurred could

have been made in good faith.              Shorn of its false statements,

the affidavit only baldly asserts that the package contained

opium.     With    no   information        establishing   therein    how    law

enforcement knew that the package contained opium, the affidavit

failed to establish probable cause.

    IV.    THE EVIDENCE WAS INSUFFICIENT TO ESTABLISH
           TRAFFICKING IN OPIUM.

           Assignment of Error No. 8, Rp. 56

    Mr. Rashidi moved to dismiss the trafficking charge at the

conclusion of the State’s case. (Tp. 434-435, 461-462)                     Under

the Fourteenth Amendment to the United States Constitution and

Article I, §§18, 19, and 23 of the North Carolina Constitution,

the trial court erred in denying the motion, as the State failed

to present sufficient evidence to sustain a conviction.                Jackson

v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979);

State v. Frazier, 142 N.C. App. 207, 541 S.E.2d 800 (2001).

    In assessing the sufficiency of the evidence, a trial court

must find that the State presented
                                  31

            substantial evidence of the facts sought to
            be proved.   State v. Powell, 299 N.C. 95,
            261 S.E.2d 114 (1980). Substantial evidence
            is evidence from which any rational trier of
            fact could find the fact to be proved beyond
            a reasonable doubt.   State v. Pridgen, 313
            N.C. 80, 326 S.E.2d 618 (1985); State v.
            Jones, 303 N.C. 500, 279 S.E.2d 835 (1981).
            Evidence is not substantial if it arouses
            only a suspicion about the fact to be
            proved, even if the suspicion is strong.
            State v. Malloy, 309 N.C. 176, 305 S.E.2d
            718 (1983).

State v. Stokes, 319 N.C. 1, 18, 352 S.E.2d 653, 662 (1987).

     Mr. Rashidi was charged with trafficking in opium pursuant

to   N.C.G.S.   §90-95(h)(4),   which   requires    proof     beyond   a

reasonable doubt that the defendant possessed twenty-eight or

more grams of opium.   A defendant

            has possession of the contraband material
            within the meaning of the law when he has
            both the power and intent to control its
            disposition or use.    Where such materials
            are found on the premises under the control
            of an accused, this fact, in and of itself,
            gives rise to an inference of knowledge and
            possession which may be sufficient to carry
            the case to the jury on a charge of unlawful
            possession.

State v. Harvey, 281 N.C. 1, 12-13, 187 S.E.2d 706, 714 (1972).

     The State presented sufficient evidence that Mr. Rashidi

knowingly possessed opium in the ordinary usage of the term, in

that he became aware upon opening the package that the package

contained    opium.    As   Detective   Kolbay   testified,    however,
                                          32

everyone    who     receives    a   package    of     drugs    is   not    guilty     of

possessing drugs.         (Tp. 239)       The State must present direct or

circumstantial evidence from which the jury can find, beyond a

reasonable doubt, that the defendant intended to control the

disposition or use of the drug.                The State’s failure in proof

was as to that element.

    The State failed to prove who put opium in the package,

when it was put in, or at whose request.                 No witness with first

hand knowledge of the contents of the box in Teheran, any point

in transit, or New York testified in the case.                       Agent McDavid

prepared    a    search   warrant      affidavit      reciting      that    an     Agent

Gattulli    opened     the     package,    observed      plaques     or     pictures,

inserted a probe into a picture, tested opium adhering to the

probe, and did not disturb the opium within the picture frame

“to maintain the integrity of the parcel.”                    (Rp. 19)      At trial,

however, Agent McDavid testified that no one told him what was

done with the contents of the box before it was sent to him.

(Tp. 149)       When agents entered Mr. Rashidi’s home, they did not

find intact pictures with opium hidden inside.                       They found a

United     States     Customs       Evidence    Bag     containing         opium     and

shattered pieces of pictures.             (Tp. 168, 346, 351)         No pieces of

the broken picture frames were tested for the presence of opium
                                           33

(Tp. 356), which could have proven that the opium had originally

been placed inside the picture frames.

      Kolbay testified that he “hypothesized,” i.e. guessed, that

that the New York agents opened the package, found suspicious

looking pictures, broke the picture frames, discovered opium,

removed the opium, placed it in an evidence bag, and stuck the

broken frames and bag back into the package.                     (Tp. 372-374)       He

assumed that the agents did not reassemble the broken picture

frames   as    they    did    not   want    to    delay    the    delivery     of   the

package.      (Tp. 376-377)         Kolbay’s speculation, however, is only

one of several possible scenarios of what occurred.                           For all

anyone knows, someone replaced the original contents before it

was   mailed    or    opened    the     package    while    it    was    in   transit,

removed the contents, and replaced it with broken picture frames

and opium.

      “Evidence       which    merely    raises    surmise       or    conjecture    of

guilt is insufficient to withstand nonsuit.”                      State v. Conrad,

293 N.C. 735, 737, 239 S.E.2d 260, 261 (1977).                        The trial court

erred in denying the motion to dismiss.

                                      CONCLUSION

      For the foregoing reasons and authorities, Masoud Rashidi,

the Defendant-Appellant herein, requests this Court to reverse

his convictions and remand the cause for a new trial.
                                34

    Respectfully submitted, this the 16th day of April, 2004.



                        _____________________________________
                        Barbara S. Blackman
                        Assistant Appellate Defender

                        Staples S. Hughes
                        Appellate Defender
                        Office of the Appellate Defender
                        123 W. Main Street, Suite 500
                        Durham, North Carolina 27703
                        (919) 560-3334

                        ATTORNEYS FOR DEFENDANT-APPELLANT


               CERTIFICATE OF FILING AND SERVICE

     I hereby certify that the original Defendant-Appellant’s
Brief was filed by mail, pursuant to Rule 26, by sending it
first-class mail postage prepaid to the Clerk of the North
Carolina Court of Appeals, Post Office Box 2779, Raleigh, North
Carolina 27602, by placing it in a depository for that purpose.

     I further certify that   a copy of the Defendant-Appellant’s
Brief was duly served upon    William Farrell, Jr., Senior Deputy
Assistant Attorney General,   Post Office Box 629, Raleigh, North
Carolina 27602, by deposit     in the United States mail, first-
class and postage prepaid.

    This the 16th day of April, 2004.



                        ______________________________________
                        Barbara S. Blackman
                        Assistant Appellate Defender

								
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