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									NO. COA03-725                                          DISTRICT 3A

                  NORTH CAROLINA COURT OF APPEALS

                ************************************

STATE OF NORTH CAROLINA       )
                              )
     v.                       )          From Pitt County
                              )         File No. 01CRS57479
JOSÉ FELIX SANTIAGO CARRILLO, )
     Defendant-Appellant      )

                ************************************
                    BRIEF OF DEFENDANT/APPELLANT

                ************************************
                        TABLE OF CONTENTS

TABLE OF AUTHORITIES.......................................... ii
QUESTIONS PRESENTED........................................... iv
STATEMENT OF THE CASE.......................................... 1
GROUNDS FOR APPELLATE REVIEW................................... 1
STATEMENT OF THE FACTS......................................... 1
ARGUMENT....................................................... 3

     1.   THE TRIAL COURT ERRED IN DENYING DEFENDANT’S
     MOTION TO SUPPRESS THE FRUITS OF A SEARCH
     CONDUCTED UNDER COLOR OF AN INVALID SEARCH
     WARRANT, IN VIOLATION OF HIS CONSTITUTIONAL
     RIGHTS.................................................... 3
     2.   THE TRIAL COURT COMMITTED PLAIN ERROR IN
     ALLOWING LAW ENFORCMENT OFFICERS TO TESTIFY TO
     THEIR OPINION THAT DEFENDANT WAS GUILTY ON THE
     BASIS, INTER ALIA, OF HIS EXERCISE OF HIS RIGHT TO
     REMAIN SILENT AND TO LEGAL COUNSEL, AND COUNSEL
     WAS INEFFECTIVE IN ELICITING SUCH TESTIMONY
     WITHOUT OBJECTION OR REMEDIAL MOTION...................... 9
          Plain Error......................................... 16
          Ineffective Assistance of Counsel................... 18
CONCLUSION.................................................... 21
CERTIFICATE OF FILING AND SERVICE............................. 22




                              -i-
                      TABLE OF AUTHORITIES

Cases
Brown v. State, 974 S.W.2d 289 (Tex. Ct. App. 1998)........... 20
Commonwealth v. Drass, 718 A.2d 816 (Pa. Super. Ct.
     1998).................................................... 20
Doyle v. Ohio, 426 U.S. 610, 618, 96 S.Ct. 2240, 49
     L.Ed.2d 91 (1976)........................................ 16
In re Freeman, 109 N.C. App. 100, 426 S.E.2d 100 (1993)
     .......................................................... 8
Massaro v. United States, 123 S.Ct. 1690, 155 L.Ed.2d
     714 (2003)............................................... 19
Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91
     L.Ed.2d 434 (1986)....................................... 20
People v. Bunning, 700 N.E.2d 716 (Ill. App. Ct. 1998)........ 20
People v. Moore, 663 N.E.2d 490 (Ill. App. Ct.), app.
     denied, 671 N.E.2d 739 (Ill. 1996)....................... 20
State v. Braswell, 312 N.C. 553, 324 S.E.2d 241 (1985)........ 19
State v. Carter, 322 N.C. 709, 370 S.E.2d 553 (1988)........ 8, 9
State v. Chul Yun Kim, 318 N.C. 614, 350 S.E.2d 347
     (1986)................................................... 16
State v. Davis, 353 N.C. 1, 539 S.E.2d 243 (2000)............. 17
State v. Fair, 354 N.C. 131, 557 S.E.2d 500 (2001)............ 19
State v. Figured, 116 N.C. App. 1, 446 S.E.2d 838, 842
     (1994), rev. denied, 339 N.C. 617, 454 S.E.2d 261
     (1995)................................................... 16
State v. Fleming, 350 N.C. 109, 512 S.E.2d 720, cert.
     denied, 528 U.S. 941, 120 S.Ct. 351, 145 L.Ed.2d
     274 (1999)............................................... 17
State v. Jones, 146 N.C. App. 394, 553 S.E.2d 79
     (2001), cert. denied, 355 N.C. 754, 566 S.E.2d 83
     (2002)................................................... 16
State v. Keen, 309 N.C. 158, 305 S.E.2d 535 (1983)............ 17
State v. Ladd, 308 N.C. 272, 302 S.E.2d 164 (1983)............ 16
State v. Long, 354 N.C. 534, 557 S.E.2d 89 (2001)............. 19
State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983)........ 17, 18
State v. Parks, 148 N.C. App. 600, 560 S.E.2d 179
     (2002)................................................... 16
State v. Rogers, 355 N.C. 420, 562 S.E.2d 859 (2002).......... 17
State v. Smith, 124 N.C. App. 565, 478 S.E.2d 237
     (1996)..................................... 4, 5, 6, 7, 8, 9
State v. Ward, 354 N.C. 231, 555 S.E.2d 251 (2001)............ 18
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,
     80 L.Ed.2d 674 (1984).................................... 19
United States v. Garcia, 882 F.2d 699 (2d Cir.), cert.
     denied, 493 U.S. 943, 107 L. Ed. 2d 336 (1989)......... 6, 7
United States v. Moetamedi, 46 F.3d 225 (2nd Cir. 1995)
     ....................................................... 5, 7
United States v. Ricciardelli, 998 F.2d 8 (1st Cir.
     1993)..................................................... 6

                              - ii -
Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146
     L.Ed.2d 389 (2000)....................................... 19
Winn v. State, 871 S.W.2d 756 (Tex. Ct. App. 1993)............ 20

Statutes
N.C. Gen.   Stat.   §   15-4........................................ 16
N.C. Gen.   Stat.   §   15A-1443.................................... 16
N.C. Gen.   Stat.   §   15A-1444(a).................................. 1
N.C. Gen.   Stat.   §   7A-27(b)..................................... 1


Rules
N.C. Rule Ev. 403............................................. 16
N.C. Rule Ev. 702............................................. 16


Constitutional Provisions
N.C. Const. Art. I § 19....................................... 16
N.C. Const. Art. I § 20............................... 4, 5, 8, 9
N.C. Const. Art. I § 23....................................... 16
U.S. Const. Am. IV....................................... 4, 5, 7
U.S. Const. Am. V............................................. 16
U.S. Const. Am. VI............................................ 16
U.S. Const. Am. XIV........................................ 4, 16




                                   - iii -
             QUESTIONS PRESENTED

1.   WHETHER THE TRIAL COURT ERRED IN DENYING
DEFENDANT’S MOTION TO SUPPRESS THE FRUITS OF
A SEARCH CONDUCTED UNDER COLOR OF AN INVALID
SEARCH WARRANT, IN VIOLATION OF HIS
CONSTITUTIONAL RIGHTS?

2.   WHETHER THE TRIAL COURT COMMITTED PLAIN
ERROR IN ALLOWING LAW ENFORCMENT OFFICERS TO
TESTIFY TO THEIR OPINION THAT DEFENDANT WAS
GUILTY ON THE BASIS, INTER ALIA, OF HIS
EXERCISE OF HIS RIGHT TO REMAIN SILENT AND TO
LEGAL COUNSEL, AND COUNSEL WAS INEFFECTIVE IN
ELICITING SUCH TESTIMONY WITHOUT OBJECTION OR
REMEDIAL MOTION?




                   - iv -
NO. COA03-725                                           DISTRICT 3A

                  NORTH CAROLINA COURT OF APPEALS

                ************************************

STATE OF NORTH CAROLINA       )
                              )
     v.                       )           From Pitt County
                              )          File No. 01CRS57479
JOSÉ FELIX SANTIAGO CARRILLO, )
     Defendant-Appellant      )

                ************************************
                    BRIEF OF DEFENDANT/APPELLANT

                ************************************

                        STATEMENT OF THE CASE

    Defendant José Felix Santiago Carrillo was tried by a jury

at the November 18, 2002 session of Pitt County Superior Court,

upon an indictment charging him with trafficking, by possession,

in more than 400 grams of cocaine. The Honorable W. Russell Duke,

Jr. presided. The jury returned a guilty verdict, and Judge Duke

imposed a sentence of 175 to 219 months imprisonment. Defendant

gave timely oral notice of appeal to this Court, and timely

perfected the record on appeal. (R pp 1, 4, 26, 27, 37)

                    GROUNDS FOR APPELLATE REVIEW

    Appeal lies of right to this Court. N.C. Gen. Stat. § 7A-

27(b), § 15A-1444(a).

                        STATEMENT OF THE FACTS

    The U.S. Customs Service interdicted a package mailed to Mr.

Santiago Carrillo from an address in Mexico. (T pp 9) It was

found to contain about 1100 grams of cocaine, secreted inside

                                - 1 -
three ceramic turtles. (T pp 100-104, 245) The package was

delivered to the address on the package (an apartment in

Greenville, North Carolina), by a law enforcement officer

disguised as a deliveryman. (T pp 137, 178) Mr. Santiago Carrillo

was found standing outside the apartment with several other

Hispanic men. He accepted the package, signed for it, and went

inside the apartment with it. (T pp 142, 165, 182-85, 231)

Shortly thereafter, the police executed a search warrant and

found the package by the front door, unopened. (T pp 148, 162,

232) They also found, behind a water heater in a closet in the

apartment, broken pieces of similar ceramic turtles bearing trace

amounts of cocaine. (T pp 149, 216-18, 287-88)

    Mr. Santiago Carrillo is a Mexican national. He had been an

illegal resident of the United States for three years, had lived

at the apartment for six months, and was employed as a drywall

installer. (T p 325) The apartment lease was not in Mr. Santiago

Carrillo’s name. Several other Hispanic men also resided there,

and there were personal effects and documents in the apartment

belonging to still others. (T pp 269-70, 324)




                              - 2 -
                            ARGUMENT

    1.   THE TRIAL COURT ERRED IN DENYING DEFENDANT’S
    MOTION TO SUPPRESS THE FRUITS OF A SEARCH CONDUCTED
    UNDER COLOR OF AN INVALID SEARCH WARRANT, IN VIOLATION
    OF HIS CONSTITUTIONAL RIGHTS
         Assignments of Error No. 2 & 3 (R p 39)

    Facts:

    Prior to the controlled delivery of the narcotics-containing

package seized by U.S. Customs, Sergeant Clifton Weatherington of

the Greenville Police Department applied to a Pitt County

Magistrate for a search warrant. The application is dated June

20, 2001. It consists of two pages, and is notarized by the

issuing magistrate on the second page. (R p 12) In substance, the

application attested to the seizure of the package by the U.S.

Customs Service following the discovery of cocaine therein. It

identified the location to be searched as the apartment to which

the package was addressed, and it specified certain items to be

seized, including “cocaine.” (R p 11) It also stated:

    On June 20, 2001 your applicant and other officers will
    attempt to deliver the United Parcel Service package to
    Jose Felix Santiago at 2203 Wandsworth Apt. 5,
    Greenville, N.C. If deliver of the package is accepted
    a search will be conducted of 2003 Apt. 5 Wandsworth
    Dr., Greenville, N.C., after giving the occupants time
    to open the package. If delivery of the package is not
    accepted the search warrant will be returned unserved.

(R p 11)

    Upon this application, the magistrate issued a search

warrant consisted of generic language printed on a form as

follows:



                              - 3 -
    To any officer with authority and jurisdiction to
    conduct the search authorized by this Search Warrant:

    I, the undersigned, find that there is probable cause
    to believe that the property and person described in
    the application on the reverse side and related to the
    commission of a crime is located as described in the
    application.

    You are commanded to search the premises, vehicle,
    person and other place or item described in the
    application for the property and person in question. If
    the property and/or person are found, make the seizure
    and keep the property subject to Court Order and
    process the person according to law.

    You are directed to execute this Search Warrant within
    forty-eight (48) hours from the time indicated in this
    warrant and make due return to the Clerk of the issuing
    Court.

    This Search Warrant is issued upon information
    furnished under oath by the person or persons shown.

(R p 13)

    In the Court below, defendant moved to suppress the fruits

of the search on grounds that it was conducted pursuant to an

“anticipatory search warrant” that was invalid under N.C. Const.

Art. I § 20 and U.S. Const. Am. IV & XIV in that it failed to set

out on its face the narrowly drawn triggering event that must

occur before the warrant could be executed, as required by this

Court’s decision in State v. Smith, 124 N.C. App. 565, 575, 478

S.E.2d 237, 245 (1996). (R p 9) The court below heard argument,

declined to receive evidence, and denied the motion to suppress,

indicating that findings would be entered later. (T pp 3-11)

After the close of the evidence, which included testimony as to

the execution of the search warrant, the trial judge indicated



                              - 4 -
that his written order would find that the warrant was executed

in accordance with the limitations described in the application.

(T p 345)

     The day after the trial ended, the trial court entered a

written order denying suppression. The court applied the

reasoning of United States v. Moetamedi, 46 F.3d 225 (2nd Cir.

1995) in concluding that the search was valid despite the

omission of the triggering event from the search warrant, since

valid conditions for an anticipatory search warrant were included

in the application that was attached to the warrant. The written

order cited only the Moetamedi case and the Fourth Amendment.

There was no mention of this Court’s decision in State v. Smith,

supra, or to N.C. Const. Art. I § 20. (R pp 17-18)

     Argument:

     The search warrant is invalid under N.C. Const. Art. I § 20

due to its failure to indicate, on its face, that it was an

anticipatory warrant conditioned by the issuing magistrate upon a

specific, narrowly drawn triggering event.

     In State v. Smith, 124 N.C. App. 565, 478 S.E.2d 237 (1996),

this Court held that anticipatory search warrants are not

necessarily in violation of N.C. Const. Art. I § 20. However, the

Court noted that “this type of warrant presents an acute

possibility of abuse because it is conditioned on the occurrence

of a future event.” 124 N.C. App. at 577. The Court therefore

formulated several unique requirements for anticipatory search


                              - 5 -
warrants that do not exist for ordinary search warrants.

    The most important of the requirements is that the warrant

must show on its face that the authority it confers is

conditioned upon a specific anticipated future event. “An

anticipatory warrant must set out, on its face, conditions that

are ‘explicit, clear, and narrowly drawn so as to avoid

misunderstanding or manipulation by government agents.’” 124 N.C.

App. at 572 (emphasis added), quoting, United States v. Garcia,

882 F.2d 699, 703-04 (2d Cir.), cert. denied, 493 U.S. 943, 107

L. Ed. 2d 336 (1989), as cited in, United States v. Ricciardelli,

998 F.2d 8, 12 (1st Cir. 1993).

    [The magistrate must adhere to] three requirements: (1)
    The anticipatory warrant must set out, on its face,
    explicit, clear, and narrowly drawn triggering events
    which must occur before execution may take place. . . .

124 N.C. App. at 577. This Court clearly indicated that the

requirement that the triggering conditions be listed on the face

of the warrant is separate from and in addition to the

requirement that the application show probable cause to believe

that the conditions will in fact occur.

    “[A]ffidavits supporting the application for an
    anticipatory warrant must show [on their face], not
    only that the agent believes a delivery of contraband
    is going to occur, but also how he has obtained this
    belief, how reliable his sources are, and what part
    government agents will play in the delivery.” Then, the
    magistrate must list, on the face of the warrant, the
    explicit conditions which must occur before execution
    of the warrant may take place.

124 N.C. App. at 573 (emphasis added), citing and quoting,



                              - 6 -
Garcia, 882 F.2d at 703-04. In Smith, this Court found that the

officers’ application affidavits were grossly insufficient.

Nevertheless, in holding the search warrant invalid, this Court

held that “[t]he most glaring deficiency of this warrant is the

absolute lack of language denoting it as ‘anticipatory.’” 124

N.C. App. at 573 (emphasis added).

     The requirement that the triggering condition be stated on

the face of the search warrant implements a meaningful protection

for the privacy interests of which this Court wrote in State v.

Smith.   A triggering condition is a limitation of authority

granted by the issuing magistrate to the investigating officers.

On the face of the warrant, it announces to all concerned that

the warrant is a nullity and confers no authority whatsoever

unless and until the triggering event occurs.

     The court below denied suppression in reliance upon United

States v. Moetamedi, 46 F.3d 225 (2nd Cir. 1995). It incorporated

the following direct quotation into its order:

     Certainly, the most efficient way to ensure that an
     anticipatory warrant is properly executed is to include
     the conditions for its execution in the warrant. We
     will not posit a Fourth Amendment violation requiring
     suppression, however, when constitutionally
     satisfactory conditions for execution of the warrant
     are stated in the affidavit that solicits the warrant,
     accepted by the issuing magistrate, and actually
     satisfied in the execution of the warrant.

46 F.3d at 229. (R p 18) However, the federal appeals court in

Moetamedi, and the court below, referred only to the Fourth

Amendment to the United States Constitution. Neither court


                               - 7 -
applied Article 1 section 20 of the North Carolina Constitution,

or attempted to distinguish this Court’s post-Moetamedi holding,

in State v. Smith, 124 N.C. App. 565, that our state constitution

imposes a requirement that the triggering condition be stated on

the face of an anticipatory search warrant.

    This Court expressly held that N.C. Const. Art. I § 20

provides greater protection than the Fourth Amendment with

respect to anticipatory search warrants.

    Because we decide this case on adequate and independent
    state grounds, and because in this instance our state
    constitution affords a greater protection to defendant,
    we decline to apply our analysis to the rights
    prescribed by the federal constitution. See State v.
    Carter, 322 N.C. 709, 712, 370 S.E.2d 553, 555 (1988).
    . . . Thus, federal cases cited or discussed in this
    opinion only serve as points of reference, and in no
    way compel or control the result we reach.

State v. Smith, 124 N.C. App. at 570 (emphasis added). Under the

North Carolina Constitution, the exclusionary rule is absolute,

once it is determined that a search warrant is invalid. Id., 124

N.C. App. at 576 (“The holding of the Carter Court mandates

exclusion of evidence obtained via an invalid warrant”); In re

Freeman, 109 N.C. App. 100, 103-04 n.2, 426 S.E.2d 100 (1993),

explaining, State v. Carter, 322 N.C. 709.

    The search warrant at bar did not state on its face the

specific future condition upon which its validity depended. The

order of the Court below implicitly recognized this fact,

although there is no explicit finding to that effect. (R pp 17-

18) Because of this omission, the warrant was invalid and


                              - 8 -
suppression was mandatory under N.C. Const. Art. I § 20, State v.

Smith and Sate v. Carter. Therefore, the order denying

suppression cannot stand, the conviction must be reversed, or in

the alternative, defendant must be granted a new trial.

    2.   THE TRIAL COURT COMMITTED PLAIN ERROR IN ALLOWING
    LAW ENFORCMENT OFFICERS TO TESTIFY TO THEIR OPINION
    THAT DEFENDANT WAS GUILTY ON THE BASIS, INTER ALIA, OF
    HIS EXERCISE OF HIS RIGHT TO REMAIN SILENT AND TO LEGAL
    COUNSEL, AND COUNSEL WAS INEFFECTIVE IN ELICITING SUCH
    TESTIMONY WITHOUT OBJECTION OR REMEDIAL MOTION
         Assignments of Error No. 5 & 6 (R p 40)

    Facts:

    On direct examination by the State, Sergeant A. P White made

several minor points about the habits of drug traffickers. On

cross-examination, defense counsel elicited Sergeant White’s

opinion that defendant was guilty because the package was

addressed to him:

    Q.   I recall that there was some mention earlier
    before the lunch break about discussing behavior of
    individuals that get involved in this type of thing . .
    . . Is it safe to say that somewhere along the lines,
    somebody in that situation could be an unwilling
    participant in the transfer of drugs?

    A.   Are you asking my opinion?

    Q.   Yes, sir. Based on your experience.

    A.   No, because you’re talking about $28,000.00 street
    value worth of cocaine. People that ship cocaine from
    one destination to another destination know who they’re
    shipping it to, and those people on the other unit or
    on the receiving end are expecting that package within
    a certain time period, and that was the main reason for
    our urgency trying to get that package delivered
    because we knew that they were expecting it.

    Q.   Yes, sir. So the people at both ends and the


                              - 9 -
people in the middle would know?

A.   They would be in contact with each other.

Q.   And so there’s no way anyone could involved in
this and not know what was going on?

A.   We’re talking about a lot   of money here. They
don’t take those type of risks   that someone, that
package would accidentally get   shipped to a wrong
residence or a residence where   no one lived. They don’t
operate that way.

Q.   So UPS knew that they were shipping drugs when
they moved this from one place to another?

A.   UPS?

Q.   Yes, sir.

A.   I’m referring to the people that ship to the
people from Mexico who shipped the package to Mr.
Carrillo.

Q.   Yes, sir. And I asked could anyone be an
unwilling, unwitting participant in the shipment of
drugs?

A.   Are you saying was UPS an unwilling participant?
Is that the question you’re asking me?

Q.   I’m asking of anyone. Anyone person?

A.   I don’t know about a person. I know the company
could be an unwilling participant.

Q.   Could a delivery person be an unwilling
participant that works for UPS?

A.   The deliver person wasn’t an unwilling. The
delivery person was Investigator Yard.

Q.   Do you, to your knowledge, know whether or not
drugs have been transported by either the U.S. Mail or
Federal Express or UPS, DHS, or any other of the five
delivery services, and the individuals who are employed
by those companies, and take those packages, not
knowing what’s inside, and deliver those packages from
one point to another point?



                        - 10 -
A.   Yes.

Q.   So that can happen?

A.   Yes, it can. I was referring to the people who
ship the drugs to the address that the drugs were
earmarked for. Those people who ship the drugs and the
people that are receiving the drugs know that those
drugs are being shipped.

Q.   Yes, sir.

A.   That’s the point I was trying to clarify.

Q.    And I perfectly understand that. I agree with
that. But all I’m saying is that there can be people
along the line that may be involved and never know that
they’re involved for one reason or another. Is that not
true?

A.   If you’re referring to the people in the shipping
business, I would say yes.

Q.   Well, why not anyone else?

A.    What do you mean by anyone else? Who else? The
smuggler’s going to know that he shipped a package to
the person that’s going to be receiving that package
and when he should be receiving that package. So they
know.

Q.   It’s not conceivable in your mind that somebody
could have a package shipped to them and they don’t
know what’s in it?

A.   From Mexico?

Q.   From anywhere?

A.   So you’re asking me could it be the possibility
that your client didn’t know that there was cocaine in
those turtles?

Q.   I’m asking you is there a possibility that any one
person could receive a package and sign for that
package not knowing what was inside of that package?

A.   And my answer to that is yes, but I think your
client knew what was in that package.


                           - 11 -
    Q.   I understand what your opinion is here. That’s why
    you’re here as a State’s witness. I just want to make
    sure that we’re clear on this point. I understand from
    what you’re saying that the only way that drug
    traffickers are going to traffic is to make sure that
    they have a line of communication that is clear?

    A.   Yes.

    Q.   You agree with that.

    A.   Yes, I do.

    Q.   I’m just asking you isn’t it true to the best of
    your understanding and knowledge that it’s conceivable
    that drug traffickers could use as a point of transit
    people who don’t really know what’s in the box.

    A.   That are going to be taking custody of that
    package?

    Q.    That may take custody of that package
    temporarily.

    A.   No. I don’t believe so.

    THE COURT: What do you base that opinion on?

    A.   The fact that we’re talking $28,000.00 worth of
    cocaine and these people that invest a lot of time and
    effort into smuggling this drug across the boarder and
    they want to keep track of that package every moment
    that they possibly can and for someone to say that they
    are going to ship it to someone unknowingly, I just
    don’t see that happening. Not knowing that that
    package, Judge, would fall into the hands of someone
    else that that package wasn’t earmarked for. Someone
    would end up dead eventually if that package was lost.

    Q.   Have you ever received a package that you didn’t
    know what it was?

    A.   No. I have not. sir.


(T pp 258-62) (emphasis added). There was no objection or motion

to strike any of Sergeant White’s foregoing cross-examination

testimony.

                             - 12 -
    The State’s case in chief included testimony that during

execution of the search warrant, defendant had been read his

Miranda rights and indicated that he understood them. However,

there was no testimony that he had ever waived his constitutional

rights. (T pp 170, 201-02) There was no pretrial motion to

suppress any of defendant’s responses to questioning by the

investigators.

    On direct examination of Customs Agent Michael Doherty, the

State elicited testimony that during questioning, both before and

after he was told that he was under arrest, defendant attempted

to exercise his right to remain silent and his right to consult

with an attorney:

    A.   Yes, I asked him if he was an American citizen.
    Reluctantly, after several hesitations, be told me that
    he was not, that he was an illegal. He told me that he
    had crossed approximately three years ago from Mexico
    into Arizona. He told me that be crossed on foot. He
    told me that he had lived in the Salt Lake City area
    for a time and that he had lived in North Carolina for
    a time. I then asked him if he had any identification
    and he produced a wallet, which had numerous
    identification cards, including a North Carolina
    driver’s license and a Mexican, some type of -- Mexican
    identification card. Both depicted his picture, his
    photograph. He also produced a Social Security number,
    Social Security card. I asked him if that was real or
    authentic, legitimate. He, once again with a little
    reservation, he said it was not. He said it was fake.
    He said he used it for work purposes. He told me that
    he was a drywall worker or installer for Sherry
    Drywall, S-H-E-R-R-Y, and I believe he said they were
    based out of Farmville or that area. He said that -- I
    asked him who the other people in the apartment were or
    that were with him. He said that they were -- he
    identified one individual, Mesa, Louis Mesa, as his
    cousin, another cousin and he said that the other two
    individuals were basically acquaintances or friends or
    coworkers. I then, around that time I was notified by

                             - 13 -
    Sergeant Wright that they had found a bag containing I
    believe it was four ceramic turtles that had the shells
    broken out that was located in the closet back near the
    back bedroom, the only bedroom, behind the water heater
    under a pile of clothes. I told the defendant that,
    that they had located this. I asked him if those were
    his turtles and he dropped his eyes to the ground,
    which he had not previously done under any of my
    questions and wouldn’t answer.

    Q.   He dropped his eyes his whole head or what?

    A.   He dropped his whole head, his whole head and
    started looking at the ground.

    Q.    Did you ask him anything else?

    A.   Yeah. Sergeant Wright told me that they were under
    a pile of clothes. I said are those your clothes in
    that closet and he would not answer. Again, be kept
    looking at the ground and I then asked him about who
    gave him the fake Social Security card. He would not
    answer that.

    Q.   Did he have the same reaction, body reaction to
    that question?

    A.   The whole time. Just kept staring at the ground,
    didn’t say a word.

    Q.   What happened then?

    A.   I told him that he was in serious trouble and he
    was under arrest and he just said, I asked him, I said,
    “do you want to say anything to me or anybody?” He
    said, “no, I do not.” He said he wanted to talk to an
    attorney.

    Q.   Did you stop asking him questions?

    A.   Yes, I did immediately.

(T pp 325-26) (emphasis added). There as no objection or motion

to strike any of this testimony elicited by the State.

    On cross-examination, defense counsel elicited Agent

Doherty’s opinion that defendant was guilty because he had


                               - 14 -
dropped his eyes, stopped answering questions, and asked to speak

to an attorney:

    Q.   Now, when you talked to Jose, you said when you
    talked with him and he kind of reluctantly was letting
    you know that well, yes, I’m here in this country
    illegally and he’s got these false papers so he can try
    to stay in this country and work and make a living and
    then you asked him about these broken turtles.

    A.   Yes, sir.

    Q.   And he puts his head down and you bring that up
    now, for what reason do you bring that up?

    A.   His reaction. Just that he was answering questions
    up until that time, being somewhat cooperative, and
    then it went from that to absolutely no further
    answers, no cooperation whatsoever. I think if I can
    give my opinion, I think he realized he had been
    caught.

    Q.   Is it conceivable that alternatively, it could be
    that he reluctantly answered the questions that he had
    answers to but that when you asked him questions that
    he had no answer to, he didn’t give you one? Is that a
    possibility?

    A.   My opinion is that he realized he was caught and
    that he couldn’t bluff or lie his way out of it. To
    answer your question, a very remote possibility. That’s
    not a normal reaction from what I’ve seen from other
    individuals that I’ve arrested that were in his
    situation. When someone is cooperating with you and
    talking to you and all of a sudden, they quit talking
    and drop their eyes to the ground and they say they
    want to speak to an attorney, 99.9 percent of the
    people that have done that to me, a hundred percent of
    the people that have done that to me, have been guilty.

    Q.   Everybody who wants to talk to an attorney is not
    guilty, are they?

    A.   No, sir. I didn’t say that. When they drop someone
    cooperating, giving you answers or are having eye
    contact with you and all of a sudden, you produce a
    piece of evidence or some item and they realize, you
    can see it, they realize that right then and there they
    are caught. Their reaction at that time, as his was, to

                             - 15 -
    just immediately quit talking, drop his head, drop his
    eyes, and he said he wanted to talk to an attorney. He
    wanted an attorney.

(T pp 330-31) There was no objection or motion to strike any of

Agent Doherty’s foregoing cross-examination testimony.

    In closing, the prosecutor argued that the fact that

defendant stopped answering questions and dropped his eyes was an

indication of his guilt. (T p 359)

    Plain Error:

    It is reversible error to admit expert opinion testimony to

the effect that the defendant is guilty. State v. Figured, 116

N.C. App. 1, 446 S.E.2d 838, 842 (1994), rev. denied, 339 N.C.

617, 454 S.E.2d 261 (1995); State v. Chul Yun Kim, 318 N.C. 614,

350 S.E.2d 347 (1986); N.C. Rule Ev. 702. It is constitutional

error to admit testimony that a defendant exercised his right to

remain silent or his right to counsel, and reversal is required

unless the State shows the error to have been harmless beyond a

reasonable doubt. State v. Ladd, 308 N.C. 272, 302 S.E.2d 164

(1983); State v. Parks, 148 N.C. App. 600, 560 S.E.2d 179 (2002);

State v. Jones, 146 N.C. App. 394, 553 S.E.2d 79 (2001), cert.

denied, 355 N.C. 754, 566 S.E.2d 83 (2002); Doyle v. Ohio, 426

U.S. 610, 618, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); N.C. Gen.

Stat. § 15-4; N.C. Const. Art. I §§ 19 & 23; U.S. Const. Am. V,

VI & XIV; N.C. Gen. Stat. § 15A-1443(b).. All such testimony is

also inadmissible because it has little or no probative value and

substantial potential for prejudice. N.C. Rule Ev. 403.


                             - 16 -
    Although some of the foregoing testimony was elicited in

direct response to questions posed by defense counsel, the most

prejudicial testimony (Sergeant White: “I think your client knew

what was in that package,” Agent Doherty: “. . . they quit

talking and drop their eyes to the ground and they say they want

to speak to an attorney . . . a hundred percent of the people

that have done that to me, have been guilty”), was not responsive

to the question asked, and could have been stricken on that

basis. See, State v. Keen, 309 N.C. 158, 305 S.E.2d 535 (1983).

    Although there was no objection or motion to strike at

trial, admission of the testimony in question may still be

reviewed under the plain error standard for unpreserved error.

State v. Davis, 353 N.C. 1, 19, 539 S.E.2d 243, 256 (2000)

citing, State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378

(1983).

    The trial judge . . . has the duty to supervise and
    control a defendant's trial, including the direct and
    cross-examination of witnesses, to ensure fair and
    impartial justice for both parties.

State v. Fleming, 350 N.C. 109, 126, 512 S.E.2d 720, 733, cert.

denied, 528 U.S. 941, 120 S.Ct. 351, 145 L.Ed.2d 274 (1999)

(citations omitted). The elicitation of inadmissible testimony

can cause the same kind of harm as improper prosecutorial

argument, and is subject to a similar analysis. See, State v.

Rogers, 355 N.C. 420, 464-65, 562 S.E.2d 859, 886 (2002).

Therefore, it is noteworthy that a trial court’s failure to

intervene ex mero motu in response to a prosecutor’s clear

                             - 17 -
comment upon the defendant's exercise of his right to remain

silent is an abuse of discretion. State v. Ward, 354 N.C. 231,

266, 555 S.E.2d 251, 273 (2001).

    The trial court failed to intervene as one State’s witness

gave inadmissible, unresponsive opinion testimony that defendant

was guilty, including, “I think your client knew what was in that

package.” The court failed to intervene as another State’s

witness not only testified that defendant tried to remain silent

and asked for a lawyer when confronted with incriminating

evidence and placed under arrest – which was itself highly

improper and inadmissible testimony – but gratuitously added that

100% of criminal suspects who do so are guilty(!) Whether such

testimony by a State’s witness emerges on direct examination or

on cross-examination, the error is manifest, it is highly

prejudicial, and it is “plain” within the meaning of State v.

Odom, supra.

    Ineffective Assistance of Counsel:

    In the event that this Court declines to find plain error,

then it should find that defense counsel’s examination of these

witnesses and elicitation of such testimony without objection or

remedial motion (e.g., to strike, for instructions, or for

mistrial), constituted ineffective assistance of counsel.

    A claim of ineffective assistance of counsel (“IAC”), must

be raised on direct appeal, if ever, “when the cold record

reveals that no further investigation is required.” State v.


                             - 18 -
Fair, 354 N.C. 131, 557 S.E.2d 500 (2001). If it appears that

“evidentiary issues may need to be developed,” the appellate

court should not rule on the merits, but simply indicate that

defendant is not precluded from raising the claim in a later

motion for appropriate relief. State v. Long, 354 N.C. 534, 539-

540, 557 S.E.2d 89, 93 (2001). Cf., Massaro v. United States, 123

S.Ct. 1690, 155 L.Ed.2d 714 (2003) (in federal prosecutions, IAC

claims may be brought for the first time on collateral review in

any event).

    The constitutional right to effective counsel is violated

when (1) counsel’s performance falls below an objective standard

of professional reasonableness, and (2) but for counsel’s errors,

there is a reasonable probability that the result of the

proceeding would have been different. Strickland v. Washington,

466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v.

Braswell, 312 N.C. 553, 324 S.E.2d 241 (1985). “A reasonable

probability is a probability sufficient to undermine confidence

in the outcome.” 466 U.S. at 694. The quantum of proof required

is less than a preponderance of the evidence. “[A] defendant need

not show that counsel’s deficient conduct more likely than not

altered the outcome of the case.” 466 U.S. at 693.

    Where counsel made several errors in violation of

Strickland’s first prong, their prejudicial effect should be

assessed cumulatively. Williams v. Taylor, 529 U.S. 362, 120

S.Ct. 1495, 146 L.Ed.2d 389 (2000). However, even a single,


                             - 19 -
isolated error during otherwise effective representation can

constitute IAC “if that error is sufficiently egregious and

prejudicial.” Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct.

2639, 91 L.Ed.2d 434 (1986).

    In People v. Bunning, 700 N.E.2d 716, 731-32 (Ill. App. Ct.

1998), under circumstances analogous to the case at bar, defense

counsel asked a police officer during cross-examination how long

his interview of the defendant had lasted. In response, the

officer testified that the defendant had terminated the interview

by requesting a lawyer. The court held that defense counsel had

been ineffective, inter alia, for failing to object, move for a

mistrial, or take any other remedial action upon the officer’s

unresponsive and inadmissible answer. See also, Winn v. State,

871 S.W.2d 756, 764 (Tex. Ct. App. 1993) (IAC found where defense

counsel, inter alia, introduced videotape of defendant refusing

to answer questions and invoking his right to counsel); People v.

Moore, 663 N.E.2d 490, 493-95 (Ill. App. Ct.), app. denied, 671

N.E.2d 739 (Ill. 1996) (IAC found where defense counsel, inter

alia, failed to object to repeated comments by police officers

concerning defendant's silence after Miranda rights were

administered); Commonwealth v. Drass, 718 A.2d 816, 823 (Pa.

Super. Ct. 1998) (IAC found where counsel, inter alia, failed to

move for mistrial following police testimony regarding

defendant’s post-arrest silence); Brown v. State, 974 S.W.2d 289,

294 (Tex. Ct. App. 1998) (to similar effect).


                               - 20 -
    Here, the line of questioning pursued by trial counsel, and

the failure to object and move to strike the witnesses’

inadmissible, non-responsive and highly prejudicial answers, was

professionally unreasonable. There is a reasonable probability,

sufficient to undermine confidence in the outcome of the trial,

that this testimony affected the verdict by assuring the jury

that two respected law enforcement officers had already

determined that defendant was guilty.

    Conclusion

    Therefore, defendant is entitled to a new trial on grounds

of plain error in allowing the foregoing testimony from Sergeant

White and Agent Doherty, or in the alternative, on grounds of

ineffective assistance of counsel in eliciting such testimony

without objection, motion to strike, motion for mistrial or other

remedial action.

                           CONCLUSION

    For the foregoing reasons, defendant respectfully asks this

honorable Court to reverse his conviction or grant him a new

trial.

    Respectfully submitted, this the 13th day of August, 2003.

                              <electronic submission>
                              __________________________
                              Paul M. Green
                              N.C. State. Bar No. 13190
                              1304 Carolina Ave.
                              Durham, N.C. 27705-3206
                              (919) 286-2212
                              <greenpm@nc.rr.com>



                             - 21 -
               CERTIFICATE OF FILING AND SERVICE
    I hereby certify that the foregoing DEFENDANT/APPELLANT’S

BRIEF has been duly filed by electronic submission to:

         John H. Connell, Clerk
         North Carolina Court of Appeals
         P.O. Box 2779
         Raleigh, N.C. 27602-2779
and has been duly served upon the following:

         Roy Cooper
         Attorney General
         P.O. Box 629
         Raleigh, NC 27602-0629

or upon the Assistant or Deputy Attorney General assigned to this
case, by placing a copy in a properly addressed postage-paid
wrapper in a mail receptacle in the exclusive custody and control
of the United States Postal Service, or by sending him or her the
electronic submission file as an e-mail attachment.

    This the 13th day of August, 2003.

                              <electronic submission>
                              __________________________
                              Paul M. Green




                             - 22 -

								
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