No. 04-521 21 st District
North Carolina Court of Appeals
STATE OF NORTH CAROLINA )
v. ) From Forsyth
ELI ALVAREZ )
I. WHETHER THE SHORT-FORM INDICTMENTS FAIL TO MEET
II. WHETHER DEFENDANT MUST BE GRANTED A NEW TRIAL
BECAUSE THE TRIAL COURT ERRED BY DENYING
DEFENDANT’S BATSON CHALLENGE TO THE STATE’S
EXERCISE OF A PEREMPTORY CHALLENGE TO STRIKE AN
III. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE
ERROR BY DENYING DEFENDANT’S MOTION TO SUPPRESS
AN IMPERMISSIBLY SUGGESTIVE PHOTOGRAPHIC
IV. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR
BY DENYING DEFENDANT’S MOTION TO SUPPRESS EVIDENCE
OF PRIOR ROBBERIES.
V. WHTHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR
BY REFUSING TO ALLOW DEFENDANT TO CROSS-EXAMINE
JUAN SUAREZ ABOUT PENDING CHARGES AGAINST HIM,
THEREBY DENYING DEFENDANT HIS CONSTITUTIONAL
RIGHT TO PRESENT A DEFENSE.
VI. WHETHER DEFENDANT’S STATE AND FEDERAL CONSTITUTIONAL
RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL WAS
DENIED WHEN HIS LAWYER CONCEDED TO THE JURY THAT HE
WAS GUILTY OF THE CHARGES AGAINST HIM.
VII. WHETHER THE TRIAL COURT ERRED BY FAILING TO SUBMIT
THE VERDICT OF INVOLUNTARY MANSLAUGHTER TO THE
STATEMENT OF THE CASE
By short-form indictments dated 3 June 2002, defendant
was charged with two counts of first-degree murder and first-
degree kidnapping. Indictments for armed robbery and dis-
charging a weapon into occupied property (DWOP) were obtained
on 6 January 2003. Superseding indictments for the murder
counts additionally alleging capital aggravating factors w ere
obtained on 27 January 2003. (R pp. 10-16)
Defendant was tried before a jury at the 24 February
2003 Criminal Session in Forsyth County Superior Court, the
Honorable Melzer A. Morgan, Jr., judge presiding. The jury
could not reach a verdict on the DWOP charge and the State
took a dismissal. Defendant was found guilty of all remai n-
ing charges on 26 March 2003. (R pp. 143-49) After a capital
sentencing hearing where the jury did not recommend death,
the trial court sentenced defendant to consecutive life terms
for the two Class A felonies. (R pp. 150-53) Defendant ap-
pealed to this Court. (R pp. 154-55)
The record on appeal was timely filed on 13 April 2004
and docketed on 22 April 2004. The printed record was mailed
on 6 May 2004. This Court extended the time for filing the
defendant‟s brief until 22 July 2004.
STATEMENT OF THE FACTS
These charges stem from incidents occurring in Winston-
Salem, North Carolina on 11 February 2001.
The State put on evidence that defendant, age 29, Juan Sua-
rez, age 20, and Bobby Sanchez, age 17, kidnapped Ader Gonzalez,
from an apartment at 35-A Timlic Avenue, (13T pp. 61-70, 14T pp.
245-52) and drove him to the 1108 Marne Street home of Jose Ve-
ra, a drug dealer for whom Gonzalez worked. (11T p. 95) The men
were planning to rob of drugs and/or money. Gonzalez was led up
to and pushed inside the home by two men at gunpoint (13T pp.
73-79, 14T p. 257), where Vera waited with an AK-47 semi-
automatic assault rifle. (11T p. 87) Vera was shot and killed
in the front hallway of his home, while Gonzalez was shot and
killed in the back yard. (10T pp. 6-7, 20; 13T p. 179)
The three men were apprehended the next day. (13T p. 103,
14T p. 53, 15T pp. 44-46) Defendant‟s 9 mm pistol and hollow
point ammunition were seized from his car at that time. (14T pp.
19, 32, 175-84)
Suarez and Sanchez, both testifying as State‟s witnesses,
named defendant as the shooter. (13T pp. 88-89, 15T pp. 27-28)
Suarez and Sanchez drove away from the scene in defendant‟s car,
leaving him to depart on foot. (9T pp. 149, 181, 12T p. 154)
Sanchez took Vera‟s rifle after the shootings but dropped it as
he was fleeing. (13T pp. 81-82) The rifle was recovered the next
day. (13T pp. 116-17, 18T p. 166)
Suarez and Sanchez had bought cocaine from Vera and had
sold drugs for him previously. (12T p. 190, 14T p. 205) Sanchez
met defendant through selling marijuana to him about 2-3 weeks
before 11 February 2001. (12T p. 191) Suarez met defendant
through Sanchez. (14T p. 200)
Felipa Ayona, Gonzalez‟s roommate who had been present at
Timlic and who had then driven to Marne, identified defendant by
sight and by his voice as having been at Timlic and being the
person at Marne who demanded that the door be opened. (17T pp.
110-13, 118) None of the other people present at Marne saw who
fired the shots that killed Gonzalez and Vera. (11T pp. 25, 88,
An autopsy showed that Vera died from a gunshot wound to
the chest and heart from a 9 mm hollow point bullet. (12T pp.
45, 49) Gonzalez died from a gunshot wound to the back and lung
along with other gunshot wounds. (12T pp. 56, 73)
Forensic evidence linked the bullets that killed the two
men to defendant‟s pistol. (19T pp. 13-16) No other weapons
were found at Marne. (10T p. 117) No fingerprints were found on
defendant‟s pistol or holster. No identifiable prints were
found on the hollow point bullets in the clips or in defendant‟s
car. (18T pp. 213-20) The bullets and casings found at Marne
were not consistent with Vera‟s AK-47 rifle. (19T p. 42)
The State was allowed to put on evidence that defendant and
others had participated in a series of robberies in the two
weeks leading up to this incident. In one, defendant and San-
chez robbed Marchello Young of his jewelry at gunpoint. (12T pp.
223-24, 16T pp. 104-11) In another, Sanchez, Suarez and a Jer-
melle Jeter robbed three Hispanic men in front of an apartment,
Jeter firing defendant‟s gun during the course of that robbery.
Defendant was in his car at the time. (13T p. 44-47, 15T p. 164)
In another incident, they searched an apartment on Timlic
Avenue where Vera had formerly lived, (12T p. 246) stealing the
resident‟s car, jewelry, and electronics equipment after failing
to find drugs or money there. (12T pp. 247-58, 14T pp. 222-28,
15T pp. 219-22) Sanchez and Suarez described plans to make
their way with defendant to Connecticut after robbing Vera, dis-
posing of the proceeds there, where defendant was from and was
associated with the Latin Kings, a Puerto Rican gang. 12T pp.
205, 213, 232-36, 13T 24-28, 14T pp. 201, 206-12)
Douglas Rucker, a jailhouse snitch, testified that defen-
dant told him in jail that he shot and killed the guy at Marne
in the course of a robbery. (18T pp. 147-48)
Defendant presented no evidence.
Additional facts necessary to an understanding of the is-
sues raised are set forth below.
STATEMENT OF GROUNDS FOR APPELLATE REVIEW
PURSUANT TO APPELLATE RULE 28(b)(4).
This Court has jurisdiction over this appeal by virtue
of G.S. § 7A-27(b) and G.S. § 15A-1442. A timely notice of
appeal was filed on 1 April 2003. (R pp. 154-55) This appeal
is from a final order.
Summary of Argument
Two persons, both drug dealers, died in a home in Winston-
Salem on the night of 11 February 2001. The transaction might
have begun as a routine drug deal or may have been a kidnapping
and armed robbery of illegal drugs and drug proceeds. Three men
might have been involved to varying extents, in addition to the
two dead men. The State relied principally on the testimony of
two of them to convict the other, the defendant Eli Alvarez.
The conviction was obtained through use of impermissible eyewit-
ness identifications and evidence of other bad acts whose effect
was to convict defendant because of what may be regarded as a
bad general record, denying him a fair opportunity to defend
against the particular charges he faced. The indictments the
State obtained fail to pass constitutional muster. The State
excluded potential jurors on the basis of race. Defendant was
not allowed to cross-examine one of the State‟s witnesses about
his bias and motive to collude or lie, given that he was facing
charges for the same offenses. Defendant‟s counsel conceded his
guilt in closing argument without his client‟s consent, denying
him his right to the effective assistance of counsel. For these
and other errors described below, defendant is entitled to a new
and fair trial.
I. THE SHORT-FORM INDICTMENTS FAIL TO MEET
Assignments of Error # 1-3, 5, 35. R pp. 10-13,
150-53; Vol D, T pp. T-989-992.
Defendant was tried for first-degree murder on short-form
indictments. (R pp. 11, 13) Such indictments allege only the
elements of second-degree murder. However, the trial court
tried and entered judgments against defendant for first-degree
murder. Defendant contends that since the indictments alleged
only the elements of second-degree murder, the trial court erred
by trying and entering judgment against defendant for first-
The murder indictments and sentencing procedure utilized
here violate the Fifth, Sixth, and Fourteenth Amendments to the
United States Constitution, Article I, §§ 19, 22, and 23 of the
North Carolina Constitution. The short-form indictments do not
adequately confer jurisdiction and the indictments and sentenc-
ing procedure are constitutionally insufficient under Jones v.
United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311
(1999), Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348,
147 L.Ed.2d 435 (2000), Ring v. Arizona, --- U.S. ---, 122
S.Ct 2848, 2442-43 (2002), and Blakely v. Washington, No. 02-
1632, -- U.S. --, 124 S.Ct. 2531 (2004).
Where an indictment is alleged to be invalid on its face,
depriving the trial court of its jurisdiction, a challenge may
be made at any time. G.S. § 15A-1446(d); State v. Wallace, 351
N.C. 481, 503-04, 528 S.E.2d 326, 340-41, cert. denied, 531 U.S.
1018, 121 S.Ct. 581, 148 L.Ed.2d 498 (2000).
Defendant contends that the trial court erred for the fol-
lowing reasons: The indictment did not give the trial court sub-
ject matter jurisdiction concerning first-degree murder; as a
matter of North Carolina and federal due process, the indictment
did not give the trial court authority to punish defendant for
first-degree murder; the trial court violated the North Carolina
and federal Due Process Clauses because the indictment did not
show whether the grand jury voted to indict defendant for first-
degree murder; that the trial court violated the North Carolina
and federal Due Process Clauses because it is impossible to de-
termine whether the grand jury decided to indict defendant for
first-degree murder or second-degree murder; that the trial
court violated the North Carolina and federal Due Process Claus-
es because due process requires the state to allege in a pretri-
al charging document all elements of every charge for which the
state will try a defendant; that the trial court violated defen-
dant‟s right to equal protection under Article I, Section 19 of
the North Carolina Constitution and the Fourteenth Amendment to
the United States Constitution because murder is one of only
three categories of offenses for which short-form indictments
may be used under North Carolina law; and that under Article I,
§ 22 and Article IV, § 13(2) of the North Carolina Constitution,
the General Assembly lacks the power to authorize the use of
short-form indictments. See generally Apprendi v. New Jersey,
530 U.S. 466, 147 L.Ed.2d 435 (2000); Jones v. United States,
526 U.S. 227, 143 L.Ed.2d 311 (1999).
Defendant recognizes that our Supreme Court has upheld the
constitutionality of the use of the short-form indictment in
murder cases as prescribed by G.S. § 15-144. See State v. Hunt,
357 N.C. 257, 582 S.E.2d 593, cert. denied, --- U.S. ----, 124
S.Ct. 44, 156 L.Ed.2d 702 (2003); see also State v. Mitchell,
353 N.C. 309, 328-29, 543 S.E.2d 830, 842, cert. denied, 534
U.S. 1000, 122 S.Ct. 475, 151 L.Ed.2d 389 (2001); State v. Da-
vis, 353 N.C. 1, 44-45, 539 S.E.2d 243, 271 (2000), cert. de-
nied, 534 U.S. 839, 122 S.Ct. 95, 151 L.Ed.2d 55 (2001); State
v. Braxton, 352 N.C. 158, 173-75, 531 S.E.2d 428, 436-38 (2000),
cert. denied, 531 U.S. 1130, 121 S.Ct. 890, 148 L.Ed.2d 797
(2001); State v. Wallace, 351 N.C. 481, 504-08, 528 S.E.2d 326,
341-43, cert. denied, 531 U.S. 1018, 121 S.Ct. 581, 148 L.Ed.2d
498 (2000). More specifically, our Supreme Court has held that
murder indictments that comply with G.S. § 15-144 are sufficient
to charge first-degree murder on the basis of any theory set
forth in N.C.G.S. § 14-17. Braxton, 352 N.C. at 174, 531 S.E.2d
at 437; State v. May, 292 N.C. 644, 661, 235 S.E.2d 178, 189,
cert. denied, 434 U.S. 928, 98 S.Ct. 414, 54 L.Ed.2d 288 (1977).
Defendant raises these issues for purposes of urging
this Court to reexamine these holdings and declare the in-
dictments and sentencing procedure utilized here to be un-
constitutional and in violation of G.S. § 15A-924(a)(5), es-
pecially in light of Ring v. Arizona, --- U.S. ---, 122 S.Ct
2848, 2442-43 (2002), where the U.S. Supreme Court held that
capital aggravating circumstances are elements of the offense
which must be proved to a jury beyond a reasonable doubt under
the 6th and 14th Fourteenth Amendments, and Blakely v. Washington,
No. 02-1632, -- U.S. -- (2004), (holding state structured sen-
tencing scheme unconstitutional). See also State v. Lucas, 353
N.C. 568, 548 S.E.2d 712 (2001) (vacating sentence for indict-
ment's failure to allege facts enhancing sentence). The neces-
sary implication is that all elements of an offense must be
alleged in an indictment and found by a jury.
The murder indictments against defendant failed to allege
all material elements of the offenses by omitting any elements
raising the offense from second-degree to first-degree, namely
premeditation and deliberation or felony murder. The sentencing
procedure allowed a judge to impose judgment for first-degree
murder based on an indictment sufficient only to charge and al-
low punishment for second-degree murder. Thus, defendant‟s mur-
der convictions and sentences are not supported by the indict-
ments and violate the Fifth, Sixth, Eighth, and Fourteenth
Amendments to the U.S. Constitution, Article I, §§ 19, 22, 23,
and 27 of the N.C. Constitution, and G.S. § 15A-924(a)(5). De-
fendant‟s convictions and sentences for these offenses are void.
See State v. Sturdivant, 304 N.C. 293, 308, 283 S.E.2d 719, 729
(1981). The error is structural, and defendant must receive a
new trial. Arizona v. Fulminante, 499 U.S. 279, 309, 113 L.Ed.2d
302, 331 (1991)("structural defects in the constitution of the
trial mechanism ... defy analysis by 'harmless error' stan-
dards"); id., 499 U.S. at 294-295, 113 L.Ed.2d at 321-22 (col-
lecting cases). Defendant respectfully urges this Court to hold
that the indictments and sentencing violate the federal and
state constitutions and G.S. § 15A-924(a)(5) in light of the
intervening rulings cited above and in light of the prejudice
from the inadequate indictments and sentencing procedure uti-
lized in this case. This issue is hereby preserved in the event
of further review. See Engle v. Isaac, 456 U.S. 107, 71 L.Ed.2d
783 (1982). These convictions and sentences must be vacated.
II. DEFENDANT MUST BE GRANTED A NEW TRIAL BECAUSE THE
TRIAL COURT ERRED BY DENYING DEFENDANT’S BATSON
CHALLENGE TO THE STATE’S EXERCISE OF A PEREMPTORY
CHALLENGE TO STRIKE AN AFRICAN-AMERICAN JUROR.
Assignment of Error # 7. R p. 287, 6T pp. 38-56.
The Fourteenth Amendment to the U.S. Constitution and Ar-
ticle I, § 26 of the North Carolina Constitution prohibit liti-
gants from exercising peremptory challenges on the basis of
race. Batson v. Kentucky, 476 U.S. 79, 90 L.Ed.2d 69 (1986);
State v. Crandell, 322 N.C. 487, 369 S.E.2d 579 (1988). In the
instant case, the State discriminated against prospective Afri-
can-American jurors by exercising a disproportionate number of
peremptory challenges against this group and by articulating
pretextual reasons for excusing African-American jurors when
challenged. (6T p. 38) Because racial discrimination in jury
selection in the instant case violated defendant constitutional
rights, defendant must be granted a new trial. See U.S. Const.
amends. VIII & XIV; N.C. Const. art. I, §§ 19, 26, & 27.
A. Applicable Principles.
In Batson, the United States Supreme Court set forth a
three-step inquiry to be followed by a trial court in determin-
ing the constitutionality of a State's use of a peremptory chal-
lenge. Accord State v. Barden, 356 N.C. 316, 342, 572 S.E.2d
108, 126 (2002), cert. denied, --- U.S. ----, 123 S.Ct. 2087,
155 L.Ed.2d 1074 (2003). Under Batson, the defendant must first
make a prima facie showing that the State exercised a peremptory
challenge on the basis of race. Id. If defendant meets this bur-
den, then the burden shifts to the State "to offer a facially
valid and race-neutral rationale for the peremptory challenge or
challenges." Id. Finally, the trial court determines whether
the defendant has carried his ultimate burden of proving pur-
poseful discrimination. Id. When the State articulates facially
race-neutral rationales for striking African-American jurors,
defendant may rebut this showing by offering evidence of pre-
text: that the reasons presented "pertained just as well to some
white jurors who were not challenged and who did serve on the
jury." Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029,
1043, 154 L.Ed.2d 931, 954 (2003). The trial court must weigh
defendant's evidence against the State's articulated reasons to
determine whether defendant has proven that the State engaged in
The issue of discrimination is a question of fact and the
trial court's ruling will be upheld unless the appellate court
is convinced that the trial court's decision is "clearly errone-
ous. Nevertheless, as the United States Supreme Court has
stressed, "deference does not imply abandonment or abdication of
judicial review." Miller-El, 537 U.S. at ----, 123 S.Ct. at
1041, 154 L.Ed.2d at 952.
B. The State Exercised Peremptory Strike
Against African-American Jurors and Prof-
fered Pretextual Reasons for the Strikes.
In the instant case, defendant, who is Hispanic, objected
under Batson to the State‟s use of a peremptory challenge
against African-American juror Dana Slade. The Trial Court di-
rected the State to advance reasons for the strike. (6T p. 38)
The State advanced three reasons for its exercise of a perempto-
ry strike against Slade: her responses on the death penalty
questions; the fact that she thinks she might sympathy for the
defendant, and her misrepresentation on the jury questionnaire.
The State had previously used peremptory challenges against
two other African-American jurors, Wanda Green and Tyesha Dennis
removing three of the four Black jurors that had survived cause
challenges. (6T pp. 40-41) The State was directed to give its
reasons for striking those jurors as well. (6T p. 41) As to Ms.
Dennis, the State cited her work history, lack of civic con-
tacts, and her quietness in answering death penalty questions.
Ms. Green was said to be hesitant with regard to the death pe-
nalty questions and her medical treatment history. (6T pp. 42-
Defendant‟s response showed that the State‟s reasons were
pretextual, as many jurors had been hesitant or reticent about
the death penalty. Ms. Dennis‟s work history was not notewor-
thy, and her being quiet was more a measure of her decibel level
when speaking than her fairness as a juror. Ms. Slade stated
that she could vote for the death penalty in the right circums-
tance, which is what the law requires of death-qualified jurors.
She forthrightly acknowledged her potential sympathy and stated
that she could give be objective and fair to both parties. Par-
ticularly when compared to similarly situated white potential
jurors such as Christopher Pope, the State‟s reasons for strik-
ing the African-American jurors were pretextual. (6T pp. 49-51)
The State offered additional justification for Ms. Green‟s
strike tied to a potential witness, which upon inquiry was shown
to be of no weight. (6T pp. 51-52)
Without any findings being made, the trial court then ruled
as to the three African-American potential jurors that the rea-
sons given were not pretextual and that purposeful discrimina-
tion had not been proven. (6T p. 55) Ms. Slade was then ex-
cused. (6T p. 56)
The fact that Ms. Slade and Mr. Pope were similarly si-
tuated yet were treated differently by the State shows that the
reasons advanced by the State were pretextual. See State v.
Forney, 468 S.E.2d 641 (S.C. 1996) (Defendant may show pretext
by demonstrating allegedly neutral standard applied in discrimi-
natory manner.) Nor does the eventual racial makeup of the jury
cure the State‟s discriminatory strike against Ms. Slade, Ms.
Dennis, and Ms. Green. United States v. David, 803 F.2d 1567
(11th Cir. 1986) (Batson prohibits improper peremptory excusal
of one potential black juror, even if other black jurors
seated). Thus, the question at a Batson hearing is not whether
the prosecutor was determined to keep all African-Americans off
the jury. “Rather, under Batson, the striking of one black ju-
ror for a racial reason violates the Equal Protection Clause,
even when other black jurors are seated, and even when valid
reasons for the striking of some black jurors are shown.” Id.
at 1571. Therefore, the issue is whether the State was racially
motivated in its exercise of peremptory challenges against even
one venire member. Lindscomb v. State, 829 S.W.2d 164 (Tex. Cr.
The trial court failed to consider all of the relevant
facts and circumstances surrounding the strike, including all of
the State‟s proffered reasons, and assess whether the prosecutor
acted with racial bias. A single “racially motivated explana-
tion vitiates the legitimacy of the entire jury selection
process.” Moore v. State, 811 S.W.2d 197 (Tex. Cr. App. 1991).
Thus, defendant must be granted a new trial where a peremptory
strike was exercised even in part for a discriminatory purpose.
United States v. Chinchilla, 874 F.2d 695 (9th Cir. 1989); Covin
v. State, 449 S.E.2d 550 (Ga. App. 1994).
Contrary to the Court‟s conclusion, the prosecution‟s dis-
criminatory intent in exercising a peremptory against jurors
Slade, Dennis, and Green is demonstrated by the pretextual na-
ture of some or all of the reasons proffered by the State for
the strike and the fact that the State used a disproportionately
high number of peremptory strikes against African Americans.
Where a defendant demonstrates racial discrimination in
jury selection, the defendant‟s convictions must be reversed.
Batson, 476 U.S. at 100, 90 L.Ed.2d at 90; Gray v. Mississippi,
481 U.S. 648, 668, 95 L.Ed.2d 622, 639 (1987) (right to fair ad-
judicator is so basic that its infraction cannot be harmless er-
ror); State v. Montgomery, 331 N.C. 559, 577, 417 S.E.2d 742,
752 (1992) (Frye, J., concurring) (discrimination in jury selec-
tion is reversible error per se). Even a single improper strike
of a qualified minority juror is grounds for a new trial. State
v. Smith, 328 N.C. 99, 121, 400 S.E.2d 712, 724 (1991); United
States v. Lane, 866 F.2d 103, 105 (4th Cir. 1989). In the in-
stant case, defendant has shown that the prosecutor discrimi-
nated against prospective African-American jurors by exercising
a disproportionate number of peremptory challenges against this
group and by articulating pretextual reasons for excusing Jurors
Slade, Davis, and Green. Accordingly, defendant must be granted
a new trial.
III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
DENYING DEFENDANT’S MOTION TO SUPPRESS AN
IMPERMISSIBLY SUGGESTIVE PHOTOGRAPHIC
Assignment of Error # 19. R p. 289.
Before trial, defendant moved to suppress Felipa Ayona‟s
identification of him on the basis that the photographic lineups
prepared by the Winston-Salem police department violated his
right under the 5th, 6th, 8th, and 14th Amendments and correspond-
ing sections of the North Carolina Constitution. Rpp. 64-66.
The trial court denied the motions after a hearing at trial. (T
p. 122; R pp. 73-76) This ruling was reversible error.
Defendant‟s claim presents two issues for resolution. The
first issue is whether the circumstances of the identifications
of defendant by Ms. Ayona were unnecessarily suggestive. The
second issue is whether that unconstitutional suggestiveness
created a substantial risk of mistaken identity. State v. Yan-
cey, 291 N.C. 656, 661, 231 S.E.2d 637, 641 (1977) (“even if a
pretrial confrontation is suggestive” reviewing court must ex-
amine whether evidence shows “the identification to be relia-
ble.”). Whether there is a substantial likelihood of misidenti-
fication depends upon whether “under the totality of circums-
tances surrounding the crime itself „the identification pos-
sesses sufficient aspects of reliability.‟” State v. Richard-
son, 328 N.C. 505, 510, 402 S.E.2d 401, 404 (1991) (quoting
Manson v. Braithwaite, 432 U.S. 98, 106, 53 L.Ed.2d 140, 149
(1977)). This Court must order a new trial when the record does
not support or contradicts the trial court‟s findings of fact
and conclusions of law. State v. Pinchback, 140 N.C. App. 512,
518-21, 537 S.E.2d 222, 226-27 (2000).
A. The trial court erred in finding that
identification procedures in this case
were not impermissibly suggestive.
The first issue is whether the circumstances of the identi-
fication of Defendant by Ms. Ayona were “unnecessarily sugges-
tive.” On the night of these incidents, Ms. Ayona stated that
she could not identify the person with the gun. R p. 232) She
described the suspect at issue as 5‟6” and clean-shaven without
mentioning that he wore glasses. (R p. 230; 17T pp. 1332) On
that night defendant had a full beard, was 5‟10”, and wore
glasses, as he always did. The police subsequently provided
photos of defendant, Suarez and Sanchez to the local Hispanic
newspaper, which ran their photographs along with a lengthy sto-
ry on the incident based on information provided them by the po-
lice. Ms. Ayona was shown a photographic lineup of defendant
without glasses on 21 February 2001 and failed to identify him.
(R pp. 234-35, 17T p. 52) Ms. Ayona testified that she saw de-
fendant‟s photograph in the 22 February 2001 of the newspaper.
(17T p. 154) Two years later, on 19 January 2003, Ms. Ayona was
shown a lineup containing defendant‟s photo with glasses, and
stated thst she could not be certain but [defendant] ”looks the
most like the guy I remember.” (R p. 237, 17T p. 159) No find-
ings of fact were made as to whether defendant was the only per-
son shown in the 2001 and 2003 photo arrays.
The totality of these circumstances contradict the trial
court‟s findings that the circumstances of Ms. Ayona‟s identifi-
cation of defendant were not unconstitutionally suggestive. The
record does not support those findings.
B. The impermissibly suggestive identifica-
tion of defendant by Ms. Ayona created a
substantial risk of mistaken identifica-
Empirical research has firmly established that “eyewitness
identifications are notoriously unreliable.” Benjamin E. Rosen-
berg, “Rethinking the Right to Due Process in Connection with
Pretrial Identification Procedures: An Analysis and a Propos-
al,” 79 Ky. L.J. 259, 260 (1991). Years before researchers es-
tablished the empirical risks of erroneous identifications, the
U.S. Supreme Court cautioned that “improper employment of photo-
graphs by police may sometimes cause witnesses to err in identi-
fying criminals.” Simmons v. United States, 390 U.S. at 377,
19 L.Ed.2d at 1253. The Simmons Court also cautioned that, “Re-
gardless of how the initial misidentification comes about, the
witness thereafter is apt to retain in his memory the image of
the photograph rather than of the person actually seen, reducing
the trustworthiness of subsequent . . . courtroom identifica-
tion.” 390 U.S. at 383, 19 L.Ed.2d at 1253. In defendant‟s
case, that inevitable psychological stake-out and the ensuing
likelihood of erroneous identification was enhanced by the lapse
of two years between the incident and the pretrial and in-court
When Ms. Ayona saw defendant in person, he was with his at-
torneys in the courtroom and was the only Hispanic male at the
defense table. This factor increases the risk of erroneous
identification. As described above, Ms. Ayona‟s descriptions of
the suspect were uncertain and conflicting, further increasing
the risk that she erred in identifying defendant as the perpe-
trator of the offenses at Timlic and Marne.
The record also shows that Ms. Ayona had a vested interest
in identifying defendant. She came to the 21 February 2001 photo
lineup with Vera‟a family and was associated with them prior to
and after these incidents. (17T p. 148). This interest in
identifying defendant, along with the additional cumulative cir-
cumstances in this case, heightened the already substantial risk
of mistaken identification and rendered the witness‟ in-court
and out-of-court identifications of defendant in violation of
his right to due process of law. The trial court erred in rul-
ing to the contrary.
C. The trial court erred in finding that Ms.
Ayona’s identification of defendant was
independent of the impermissibly sugges-
tive photo lineup.
It is well established that an in-court identification of a
witness must be excluded unless it is first determined by the
trial judge on clear and convincing evidence that the in-court
identification is of independent origin and thus not tainted by
the impermissible pretrial identification procedure. Yancey,
291 N.C. at 660, 231 S.E.2d at 640. Thus, this Court has a duty
to examine the record for clear and convincing, competent evi-
dence to support the factual finding that the in-court identifi-
cation was independent of the prior, tainted identification.
Knight, 282 N.C. at 226-27, 192 S.E.2d at 287-88 (examining
record); Yancey, 291 N.C. at 660, 231 S.E.2d at 640 (same).
The record does not contain clear and convincing evidence
to support the trial court‟s factual findings of independent
identification in this case. Ms. Ayona‟s in-court identifica-
tion cannot be divorced from the impermissible suggestiveness
and risk of misidentification created from the night of the of-
fenses through the beginning of trial.
The trial court‟s findings of independent identification
constitute reversible error. Pinchback, 140 N.C. App. at 519-
521, 537 S.E.2d at 226-227. Because Ms. Ayona‟s identifications
were central to the State‟s case, the State cannot prove the er-
ror harmless and defendant must receive a new trial. G.S. 15A-
1443(b); Chapman v. California, 386 U.S. 18, 17 L.Ed.2d 705
IV. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
DENYING DEFENDANT’S MOTION TO SUPPRESS EVIDENCE
OF PRIOR ROBBERIES.
Assignment of Error No. 12-13. R pp. 287-88.
Prior to trial, defendant filed a Motion in Limine to ex-
clude evidence of other robberies allegedly committed by defen-
dant. (R pp. 192-95). At trial, the State introduced evidence
concerning three robberies occurring prior to the incidents on
11 February 2001. (12T pp. 215-270, 13T pp. 224-52, 14T pp. 203-
220, 15T pp. 7, 217, 16T p. 35, 102-134; see Statement of Facts,
p. 4, supra.)
In response to defendant's motion to suppress this testimo-
ny, the State countered that the descriptions of the two prior
armed robberies were admissible under Rule 404(b) of the North
Carolina Rules of Evidence as an alleged common plan or scheme.
The trial court denied defendant's motion to suppress. (3 Feb-
ruary 2003 (Vol. G) T p. 120) The trial court committed revers-
ible error because testimony concerning the other robberies was
irrelevant and was used solely for the unfairly prejudicial pur-
pose of proving bad character.
Rule 404(b) provides that “[e]vidence of other crimes,
wrongs, or acts is not admissible to prove the character of a
person in order to show that he acted in conformity therewith.
It may, however, be admissible for other purposes, such as proof
of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake, entrapment or accident.” G.S. §
8C-1, Rule 404(b) (2001). In State v. Coffey, 326 N.C. 268, 389
S.E.2d 48 (1990), this Court held that Rule 404(b) “state[s] a
clear general rule of inclusion of relevant evidence of other
crimes, wrongs or acts by a defendant, subject to but one excep-
tion requiring its exclusion if its only probative value is to
show that the defendant has the propensity or disposition to
commit an offense of the nature of the crime charged.” Id. at
278-79, 389 S.E.2d at 54. Rule 404(b) evidence, however, should
be carefully scrutinized in order to adequately safeguard
against the improper introduction of character evidence against
the accused. See G.S. § 8C-1, Rule 404(a) (“Evidence of a per-
son's character . . . is not admissible for the purpose of prov-
ing that he acted in conformity therewith on a particular occa-
sion.”); see also Michelson v. United States, 335 U.S. 469, 475-
76, 93 L. Ed. 168, 174 (1948) (“The inquiry [into character] is
not rejected because character is irrelevant; on the contrary,
it is said to weigh too much with the [jurors] and to so over-
persuade them as to prejudge one with a bad general record and
deny him a fair opportunity to defend against a particular
charge. The overriding policy of excluding such evidence, de-
spite its admitted probative value, is the practical experience
that its disallowance tends to prevent confusion of issues, un-
fair surprise and undue prejudice.”) (footnote omitted); State
v. Jones, 322 N.C. 585, 588, 369 S.E.2d 822, 824 (1988) (“[T]he
admissibility of evidence of a prior crime must be closely scru-
tinized since this type of evidence may put before the jury
crimes or bad acts allegedly committed by the defendant for
which he has neither been indicted nor convicted.”). As stated
in State v. Johnson, 317 N.C. 417, 347 S.E.2d 7 (1986), “[t]he
dangerous tendency of [Rule 404(b)] evidence to mislead and
raise a legally spurious presumption of guilt requires that its
admissibility should be subjected to strict scrutiny by the
courts.” Id. at 430, 347 S.E.2d at 15; see also 1A Wigmore, Evi-
dence § 58.2 (Peter Tillers ed. 1983) (“[Character evidence] is
objectionable not because it has no appreciable probative value
but because it has too much. The natural and inevitable tendency
of the tribunal--whether judge or jury--is to give excessive
weight to the vicious record of crime thus exhibited and either
to allow it to bear too strongly on the present charge or to
take the proof of it as justifying a condemnation, irrespective
of the accused's guilt of the present charge.”).
To effectuate these important evidentiary safeguards, the
rule of inclusion described in Coffey is constrained by the re-
quirements of similarity and temporal proximity. State v. Lloyd,
354 N.C. 76, 88, 552 S.E.2d 596, 608 (2001); State v. Lynch, 334
N.C. 402, 412, 432 S.E.2d 349, 354 (1993); State v. Price, 326
N.C. 56, 69, 388 S.E.2d 84, 91, sentence vacated on other
grounds, 498 U.S. 802, 112 L. Ed. 2d 7 (1990). Evidence of a
prior bad act generally is admissible under Rule 404(b) if it
constitutes “substantial evidence tending to support a reasona-
ble finding by the jury that the defendant committed the similar
act.” State v. Stager, 329 N.C. 278, 303, 406 S.E.2d 876, 890
(1991) (citing Huddleston v. United States, 485 U.S. 681, 99 L.
Ed. 2d 771 (1988)) (emphasis added).
Substantial evidence of similarity among the prior bad acts
and the crimes charged is lacking. The details of the earlier
robberies were generic to the act of robbery: The robbers wore
dark clothing; carried a weapon; asked for drugs or jewelry; and
fled upon receiving it. One occurred in an apartment and one oc-
curred in a car. In neither the Peralta nor the Young robbery
were the perpetrators looking for dealer quantities of drugs. In
the cases for which defendant was on trial, an armed robbery
combined with a kidnapping in support of a desire to rob a drug
dealer of a large amount of money and/or cocaine was alleged.
In essence, the testimony at trial described robberies that
were factually dissimilar to the robbery and murder charged in
the instant case. The State offered evidence showing that defen-
dant may have committed the offenses. It failed to show, howev-
er, that sufficient similarities existed between the other rob-
beries and the present robbery beyond those characteristics
inherent to most armed robberies, i.e., use of a weapon, a de-
mand for money, immediate flight. State v. Al-Bayyinah, 336 N.C.
150, 155, 567 S.E.2d 120, 123 (2002). See also Lynch, 334 N.C.
at 412, 432 S.E.2d at 354 (holding that, because the details of
the prior bad acts and the crimes charged were dissimilar, they
did not bear “any logical relationship” to each other, and
should not have been admitted under Rule 404(b)).
The trial court therefore erred, under the facts and cir-
cumstances of the instant case, in admitting testimony about the
earlier robberies under Rule 404(b) of the North Carolina Rules
of Evidence. Accordingly, since it cannot be concluded that the
admission of such evidence was harmless, see G.S. § 15A-1443(a)
(2001), defendant is entitled to a new trial.
V. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
REFUSING TO ALLOW DEFENDANT TO CROSS-EXAMINE JUAN
SUAREZ ABOUT PENDING CHARGES AGAINST HIM, THEREBY
DENYING DEFENDANT HIS CONSTITUTIONAL RIGHT TO
PRESENT A DEFENSE.
Assignment of Error No. 16, R p. 288.
During cross-examination of Juan Suarez, defense counsel
sought to elicit testimony that Suarez was facing pending
charges from this incident at the time of trial, including two
murder charges. Defendant argued that the proposed cross-
examination was relevant to show bias, possible collusion with
the other perpetrator and fellow State‟s witness, Roberto San-
chez, and to probe the extent to which Suarez might be attempt-
ing to curry favor with the State by his testimony in this case.
The court sustained the State's objections. (15T pp. 128-32)
Defendant put two documents concerning these matters in the
record as an offer of proof. (15T pp. 128, 132)1 Because the evi-
dence sought to be introduced was relevant to impeach Suarez by
showing possible bias and motive to lie, its exclusion was re-
A defendant's constitutional right to confront the wit-
nesses against him includes the right to conduct reasonable
cross-examination. E.g., Olden v. Kentucky, 488 U.S. 227, 102
L.Ed.2d 513 (1988); State v. Hightower, 187 N.C. 300, 121 S.E.2d
616 (1924). Our Rules of Evidence provide that a "witness may
be cross-examined on any matter relevant to any issue in the
case, including credibility." G.S. § 8C-1, Rule 611(b). Cross-
examination of an opposing witness for the purpose of showing
bias or interest is a substantial legal right, which the trial
judge can neither abrogate nor abridge to the prejudice of the
cross-examining party. State v. Hart, 239 N.C. 709, 80 S.E.2d
901, 903 (1954). An unreasonable limit on the right to cross-
examine a prosecution witness about possible bias or motive to
lie violates the Sixth Amendment. Olden, 488 U.S. 227, 102
L.Ed.2d 513 (error to preclude cross-examination about facts re-
levant to show prosecution witness's motive to lie); Delaware v.
Van Arsdall, 475 U.S. 673, 89 L.Ed.2d 674 (1986); (violation of
Confrontation Clause to prohibit inquiry about state's dismissal
of pending charges against prosecution witness); Davis v.
These documents, Defendant‟s Voir Dire #6 and #10, were settled
as part of the Record on Appeal. (R p. 36) Counsel for defen-
dant will request that the exhibits be transmitted to the Clerk.
Alaska, 415 U.S. 308, 318, 39 L.Ed.2d 347, 355 (1974); (Sixth
Amendment violation to prohibit cross-examination about wit-
ness's probationary status which was relevant to credibility).
Defense counsel's purpose in questioning Suarez about the
existence of pending charges against him was to probe whether
Sanchez might be seeking favorable treatment from the State with
respect to those charges in exchange for his testimony in this
case and whether he might be trying to square his version of the
events with the version Sanchez was going to give in his state-
ments and testimony. If that were the case, a bias or interest
in the outcome of the case would be revealed. "[T]he exposure
of a witness's motivation in testifying is a proper and impor-
tant function of the constitutionally protected right of cross-
examination." Davis, 415 U.S. at 316-17, 39 S.E.2d L.Ed.2d at
353-54. While ordinarily specific instances of bad conduct for
which there has been no conviction are not considered probative
of veracity under G.S. § 8C-1, Rules 608 and 609, a prosecution
witness may be examined about pending charges and whether the
witness has or will obtain favorable treatment as a result of
his testimony. See, e.g., Delaware v. Van Arsdall. Thus, the
relevance of the profferred evidence for the purpose of showing
bias and motive to lie is patently obvious. See also State v.
Roberson, 215 N.C. 784, 787, 3 S.E.2d 277, 280 (1939); State v.
Carey, 285 N.C. 497, 206 S.E.2d 213 (1974).
The court's error in excluding the evidence was prejudi-
cial. In Carey, the Court found the error prejudicial
"[b]ecause the question of [the witness's] credibility and bias
is of such vast importance in this case." 285 N.C. at 497, 206
S.E.2d at 221. Similarly, in Olden, the Supreme Court found
prejudicial error in limiting the cross-examiner's ability to
explore the prosecuting witness's motive to lie, because the
testimony of the witness was, inter alia, important to the pros-
ecution's case and was poorly corroborated. Here, the State's
case against defendant suffered from similar limitations, as it
rested largely upon the testimony of two admitted accomplices
who were blaming defendant as the principal actor rather than
themselves. Thus, Sanchez‟s testimony was a critical component
of the State's case. Under these circumstances, the State can-
not show that the restriction on impeachment of Sanchez by
cross-examination to show bias, collusion, and motive to shape
testimony to serve the State‟s purposes was harmless beyond a
reasonable doubt. Accordingly, a new trial is required.
VI. DEFENDANT’S STATE AND FEDERAL CONSTITUTIONAL RIGHT TO
THE EFFECTIVE ASSISTANCE OF COUNSEL WAS DENIED WHEN
HIS LAWYER CONCEDED TO THE JURY THAT HE WAS GUILTY OF
THE CHARGES AGAINST HIM.
Assignment of Error # 32, R p. 291.
Defendant must be retried because his lawyer violated his
constitutional rights by arguing to the jury that defendant was
guilty of kidnapping and first-degree murder. The State's
theory in this case was that defendant with Suarez and Sanchez
kidnapped Ader Gonzalez as part of a robbery of a weapon, drugs
and money from Vera, used Gonzalez as a hostage or a shield, and
in the course of the robbery, both Gonzales and Vera were
killed. Defendant's statement to police and his theory of the
case was that he was involved in a drug deal and not an armed
robbery or kidnapping. Nonetheless, during closing argument,
defendant's trial counsel conceded that defendant was the geta-
way driver after Gonzalez was removed from Timlic and taken over
to and inside the Marne Street residence when the shooting
started. (20T pp. 49-52) Further, in his closing argument, de-
fendant‟s counsel made the following comment to the jury:
I think the whole case really stems from the allega-
tion that [defendant] and these other people went over
there to commit a robbery with a dangerous weapon;
that is, to steal a rifle from Jose Vera. I contend
to you there‟s no evidence that [defendant] ever did
that, and everything else flows from that. If you
find him not guilty of that, I would contend, as a
practical matter, although the judge will give you the
law, that you will find him guilty of everything else
or not guilty of everything else.
(20T p. 139) (Emphasis added) There is nothing in the
record to show that these comments were made by defense
counsel with the knowledge, understanding, or approval of
his client. (19T p. 105)
A defendant has an absolute right to contest each and every
factual issue in the state's case against him. This includes
the right to be represented by counsel who does not concede
guilt. State v. Harbison, 315 N.C. 175, 337 S.E. 504 (1985),
cert. denied, 476 U.S. 1123, 90 L.Ed.2d 672 (1986).
In some circumstances, it is good trial strategy for coun-
sel to admit to the jury that the defendant is guilty of a less-
er crime in hopes that the jury will not convict on a greater
offense. In other circumstances, counsel might make a conces-
sion that is inadvertent or that has not been planned in ad-
vance. However, even if the evidence of guilt of the greater
offense is overwhelming, the defendant must expressly, knowing-
ly, and voluntarily waive the right to have his lawyer argue his
innocence. Harbison, 315 N.C. at 180, 337 S.E.2d at 507. Any
unauthorized concession of guilt of anything is ineffective as-
sistance of counsel, requiring reversal. Id.
Here, as in Harbison, a new trial is required. The conces-
sion of defendant‟s guilt was made without the express on-the-
record permission of the defendant. The argument compromised
defendant's state and federal constitutional right to the effec-
tive assistance of counsel. U.S. Const. Amend. VI, XIV; .N.C.
Const. Art. I, §§19, 23, and 24. Moreover, the Harbison Court
held that the error is reversible per se. 315 N.C. at 180, 337
S.E.2d at 507.
Even if the Court were to apply a harmless error standard
to this case, defendant would nevertheless prevail. By arguing
that his client was guilty of every charge but armed robbery,
counsel conceded his client‟s guilt to first-degree murder under
both premeditation and deliberation and felony-murder predicated
on the kidnapping, the theories of conviction put to the jury.
Counsel eliminated whatever chance he had of creating doubt in
the minds of the jurors that defendant was not criminally re-
sponsible for the victims‟ deaths. Once the lawyer admitted
that defendant was guilty of everything except armed robbery,
the jury was given direction to convict of the greater offenses.
It cannot be said beyond a reasonable doubt that the jury would
not have retained a reasonable doubt about the defendant's guilt
of first-degree murder in the absence of this improper argument
admitting that defendant was guilty of murder under both a
theory of premeditation and deliberation and under felony-
In conclusion, because his lawyer conceded his guilt to the
jury without an express waiver of his right to plead not guilty
to the offenses charged, defendant is entitled to a new trial.
VII. THE TRIAL COURT ERRED BY FAILING TO SUBMIT
THE VERDICT OF INVOLUNTARY MANSLAUGHTER TO
Assignment of Error # 30. R p. 290, 19Tp. 145.
The trial court erred by failing to submit the verdict of
involuntary manslaughter to the jury, violating defendant‟s
rights under the Fourteenth Amendment to the U.S. Constitution,
Article I, §§ 19 and 23 of the North Carolina Constitution, and
North Carolina common law. During the charge conference, the
trial court stated it would submit to the jury verdicts of
first-degree murder, second degree murder, and not guilty. De-
fendant requested an involuntary manslaughter verdict, which the
trial court declined to submit. Defendant‟s exception was
noted. (19T p. 145, Vol A., T p. T-116) The trial court the-
reafter instructed the jury on and submitted the verdicts of
first-degree murder (under the theory of premeditation and deli-
beration and felony murder), second degree murder, and not
guilty. (T pp. 106-77) The jury found defendant guilty of two
counts of first-degree murder. (Rp. 42)
It is reversible error for a trial court to fail to submit
lesser-included offenses to the crime charged that are supported
by the evidence. State v. Lytton, 319 N.C. 422, 426-27, 355
S.E.2d 485, 487 (1987). See State v. Camacho, 337 N.C. 224,
234, 446 S.E.2d 8, 13 (1994). When determining if the evidence
is sufficient for submission of a lesser-included offense, the
evidence must be viewed in the light most favorable to the de-
fendant. State v. Barlowe, 337 N.C. 371, 378, 446 S.E.2d 352,
357 (1994). See State v. Whitaker, 316 N.C. 515, 522, 342
S.E.2d 514, 519 (1986) (trial court must submit lesser included
offense unless evidence “point[s] inexorably and unerringly” to
greater offense). Involuntary manslaughter is “the unlawful and
unintentional killing of another human being, without malice,
which proximately results from an unlawful act not amounting to
a felony . . . or from an act or omission constituting culpable
negligence.” State v. Wallace, 309 N.C. 141, 145, 305 S.E.2d
548, 551 (1983). “[E]very unintentional killing of a human be-
ing proximately caused by a wanton or reckless use of firearms,
in the absence of intent to discharge the weapon, . . . and un-
der circumstances not evidencing a heart devoid of a sense of
social duty, is involuntary manslaughter.” State v. Wrenn, 279
N.C. 676, 683, 185 S.E.2d 129, 133 (1971).
In the instant case, there was substantial evidence that
defendant did not intentionally shoot either victim, but that he
was present when they were shot in the course of an armed rob-
bery by Suarez and Sanchez, the death‟s resulting from their
“wanton or reckless use” of a firearm. In such a situation, our
appellate court‟s cases are clear that the trial must submit an
involuntary manslaughter verdict. State v. Lytton, supra; State
v. Wrenn, supra; State v. Tidwell, 112 N.C. App. 770, 776, 436
S.E.2d 922, 927 (1983). Thus, the evidence does not “point in-
exorably and unerringly” to the conclusion that defendant shot
the gun intentionally. The trial court erred by failing to sub-
mit an involuntary manslaughter verdict to the jury.
The trial court‟s error was prejudicial. On these facts,
“[t]he credibility of the evidence and whether in fact defendant
did or did not possess the requisite intent is for the jury to
decide.” Barlowe, 337 N.C. at 378, 446 S.E.2d at 357. Further,
an error in failing to instruct on involuntary manslaughter ...
is not cured by a verdict of guilty of the offense charged be-
cause, in such case, it cannot be known whether the jury would
have convicted of a lesser degree if the different permissible
degrees arising on the evidence had been correctly presented in
the court's charge. State v. Wallace, 309 N.C. 141, 305 S.E.2d
548 (1983). Accordingly, defendant is entitled to a new trial.
For the reasons stated, defendant‟s convictions and sen-
tences must be vacated and he is entitled to a new and fair tri-
Respectfully submitted, this 21st day of July 2004.
Attorney for Defendant-Appellant
P.O. Box 52716
Durham, North Carolina 27717
CERTIFICATE OF FILING AND SERVICE
Pursuant to Rule 26(a)(1) of the North Carolina Rules of
Appellate Procedure, the signature below is a certification that
the foregoing Defendant-Appellant‟s Brief has been filed with
the Clerk by depositing said document in an official depository
of the United States Postal Service, first class postage prepaid
and properly addressed as follows:
Office of the Clerk
Court of Appeals of North Carolina
Post Office Box 2779
Raleigh, North Carolina 27602
The signature below is a certification that a true and cor-
rect copy of the foregoing Defendant-Appellant‟s Brief has been
this date served on the Attorney for the State by depositing
said document in an official depository of the United States
Postal Service, first class postage prepaid and properly ad-
dressed as follows:
David Roy Blackwell
Special Deputy Attorney General
N.C. Dept. of Justice
Post Office Box 629
Raleigh, North Carolina 27602
This the 21st day of July 2004.
Attorney For Defendant-Appellant