No. COA13-694 TWENTY-EIGHTH DISTRICT

NORTH CAROLINA COURT OF APPEALS

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STATE OF NORTH CAROLINA ))

v. ) From Buncombe County)

ERADIO VELAZQUEZ-PEREZ )and )EDGAR AMPELIO–VILLALVAZO )

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DEFENDANT-APPELLANTERADIO VELAZQUEZ-PEREZ’S BRIEF

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INDEX

TABLE OF AUTHORITIES......................................................vISSUES PRESENTED...............................................................1STATEMENT OF THE CASE..................................................2STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW.....................................................................................4STATEMENT OF THE FACTS................................................4ARGUMENT..............................................................................8

I. MR. VELAZQUEZ-PEREZ’S CONVICTION FOR CONSPIRACY TO TRAFFIC IN COCAINE MUST BE VACATED BECAUSE THE EVIDENCE THERE WAS AN AGREEMENT BETWEEN MR. VELAZQUEZ-PEREZ AND MR. AMPELIO-VILLALVAZO TO TRAFFIC IN COCAINE WAS INSUFFICIENT AND THE TRIAL COURT COMMITTED ERROR IN NOT GRANTING THE MOTION TO DISMISS IN VIOLATION OF MR. VELAZQUEZ-PEREZ’S RIGHTS.....................................................................8

A. Statement of Standard of Review.................................8

B. Analysis........................................................................9

II. MR. VELAZQUEZ-PEREZ’S RIGHTS WERE VIOLATED BY THE IMPROPER EXTENSION OF THE TRAFFIC STOP AND THE TRIAL COURT COMMITTED ERROR OR PLAIN ERROR IN DENYING THE MOTION TO SUPPRESS.........................................................................14

A. Statement of Standards of Review.............................14

B. Unreasonable Searches and Seizure...........................16

C. There was a Lack of Reasonable Cause to Prolong the Stop and Search the Truck.................................................17

D. The Evidence Should Have Been Suppressed............23

III. MR. VELAZQUEZ-PEREZ’S CONVICTIONS MUST BE VACATED BECAUSE HE WAS DENIED EFFECTIVE

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ASSISTANCE OF COUNSEL BY TRIAL COUNSEL’S FAILURE TO RENEW THE OBJECTION TO THE ADMISSION OF EVIDENCE THAT WAS FRUITS OF THE IMPROPER EXTENSION OF THE TRAFFIC STOP............25

A. Statement of Standard of Review...............................26

B. Analysis......................................................................26

IV. THE TRIAL COURT COMMITTED ERROR IN ORDERING COSTS FOR FINGERPRINT EXAMINATION AS LAB FEES AS PART OF MR. VELAZQUEZ-PEREZ’S SENTENCE IN VIOLATION OF A STATUTORY MANDATE..............................................................................29

A. Statement of Standards of Review.............................29

B. Analysis......................................................................30

CONCLUSION........................................................................31CERTIFICATE OF COMPLIANCE WITH N.C.R. APP. P. 28(j)(2)(B)................................................................................33CERTIFICATE OF FILING AND SERVICE.........................34

APPENDIX:David McMurrayVoir Dire Examiantion Testimony................... App. 1David McMurrayDirect Examiantion Testimony........................ App. 35David McMurrayCross Examiantion Testimony......................... App. 54Tanya PallottaDirect Examiantion Testimony........................ App. 66Tanya PallottaCross Examiantion Testimony......................... App. 74Elizabeth ReaganDirect Examiantion Testimony........................ App. 75Sentencing........................................................ App. 79N.C. Gen. Stat. § 7A-304................................. App. 81

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TABLE OF AUTHORITIES

CASES

Arizona v. United States, 132 S.Ct. 2492 (2012).....................19

Armstrong v. N.C. State Bd. of Dental Examiners, 129 N.C. App. 153, 499 S.E.2d 462 (1998)..........................................29

Brown v. Texas, 443 U.S. 47, 61 L. Ed. 2d 357 (1979)...........16

Dowdy v. Southern Ry. Co., 237 N.C. 519, 75 S.E.2d 639 (1953)...............................................................................21-22

Illinois v. Caballes, 543 U.S. 405, 160 L. Ed. 2d 842 (2005). .19

In the Matter of J.L.B.M., 176 N.C. App. 613, 627 S.E.2d 239 (2006)...............................................................................14-15

Jones v. Graham County Bd. of Educ. 197 N.C. App. 279, 677 S.E.2d 171 (2009).................................................................20

Mapp v. Ohio, 367 U.S. 643, 6 L. Ed. 2d 1081 (1961)......16, 23

N.C. Dep't of Env't & Natural Res. v. Carroll, 358 N.C. 649, 599 S.E.2d 888 (2004)......................................................9, 29

State v. Artis, 123 N.C. App. 114, 472 S.E.2d 169 (1996)......23

State v. Ashe, 314 N.C. 28, 331 S.E.2d 652 (1985).................29

State v. Barden, 356 N.C. 316, 572 S.E.2d 108 (2002)............26

State v. Baublitz, 172 N.C. App. 801, 616 S.E.2d 615 (2005).15

State v. Benardello, 164 N.C. App. 708, 596 S.E.2d 358 (2004).....................................................................................12

State v. Bindyke, 288 N.C. 608, 220 S.E.2d 521 (1975)............9

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State v. Braswell, 312 N.C. 553, 324 S.E.2d 241 (1985).........27

State v. Castor, 285 N.C. 286, 204 S.E.2d 848 (1974).............24

State v. Colvin, 90 N.C. App. 50, 367 S.E.2d 340 (1988)........10

State v. De La Sancha Cobos, 211 N.C. App. 536, 711 S.E.2d 464 (2011)..........................................................................9-10

State v. Featherson, 145 N.C. App. 134, 548 S.E.2d 828 (2001).....................................................................................10

State v. Franklin, ___ N.C. App. ___, 736 S.E.2d 218 (2012)...............................................................................18-19

State v. Graham, 200 N.C. App. 204, 683 S.E.2d 437 (2009)..26

State v. Harwood, ___ N.C. App. ___, 727 S.E.2d 891 (2012).........................................................................................15, 25

State v. Hooper, 318 N.C. 680, 351 S.E.2d 286 (1987)...........24

State v. Jenkins, 167 N.C. App. 696, 606 S.E.2d 430 (2005). .12

State v. Johnson, 124 N.C. App. 462, 478 S.E.2d 16 (1996). . .30

State v. Jones, ___ N.C. App. ___, 718 S.E.2d 415 (2011)30, 31

State v. Kemmerlin, 356 N.C. 446, 573 S.E.2d 870 (2002). 8, 13

State v. Kincaid, 147 N.C. App. 94, 555 S.E.2d 294 (2001)...............................................................................14-15

State v. Leach, 166 N.C. App. 711, 603 S.E.2d 831 (2004).....15

State v. Massey, 76 N.C. App. 660, 334 S.E.2d 71 (1985)......12

State v. McClendon, 350 N.C. 630, 517 S.E.2d 128 (1999)....21

State v. Morgan, 329 N.C. 654, 406 S.E.2d 833 (1991)...........10

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State v. Nettles, 170 N.C. App. 100, 612 S.E.2d 172 (2005).....8

State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983).............15

State v. Oglesby, 361 N.C. 550, 648 S.E.2d 819 (2007)..........27

State v. Pearson, 348 N.C. 272, 498 S.E.2d 599 (1998)...........22

State v. Pulliam, 139 N.C. App. 437, 533 S.E.2d 280 (2000). .14

State v. Sams, 148 N.C. App. 141, 557 S.E.2d 638 (2001)......10

State v. Shelton, 167 N.C. App. 225, 605 S.E.2d 228 (2004). .29

State v. Torres-Gonzalez, ___ N.C. App. ___, 741 S.E.2d 831 (2013)....................................................................................13

State v. Tutt, 171 N.C. App. 518, 615 S.E.2d 688 (2005)........27

State v. Watkins, 337 N.C. 437, 446 S.E.2d 67 (1994).......16-17

State v. Whiteside, 204 N.C. 710, 169 S.E. 711 (1933).............9

Staton v. Brame, 136 N.C. App. 170, 523 S.E.2d 424 (1999)....8

Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674 (1984)....................................................................................27

Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889 (1968)...........16-19

United States v. Cortez, 449 U.S. 411, 66 L. Ed. 2d 621 (1981)...............................................................................16-17

United States v. Foster, 634 F.3d 243, 248 (4th Cir. 2011).......20

United States v. McCaskill, 676 F.2d 995 (4th Cir. 1982)........15

United States v. Vaughn, 700 F.3d 705 (4th Cir. 2012).......18-19

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Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441 (1963)....................................................................................24

CONSTITUTIONAL PROVISIONS

N.C. Const. Art. I, § 19.............................................................27

N.C. Const. art. I, § 20..................................................16, 24-25

N.C. Const. Art. I, § 23.............................................................27

N.C. Const. Art. I, § 27.............................................................27

U.S. Const. amend. IV.............................................16, 18, 24-25

U.S. Const. Amend. VI.............................................................27

U.S. Const. Amend. VIII..........................................................27

U.S. Const. amend. XIV...........................................................16

U.S. Const. Amend. XIV..........................................................27

STATUTES & ADMINISTRATIVE CODES

N.C. Gen. Stat. § 7A-27(b).........................................................4

N.C. Gen. Stat. § 7A-304(a)(7)................................................31

N.C. Gen. Stat. § 7A-304(a)(8)..........................................30, 31

N.C. Gen. Stat. § 15A-974........................................................23

N.C. Gen. Stat. § 15A-1443(b).................................................24

N.C. Gen. Stat. § 15A-1444(a)...................................................4

N.C. Gen. Stat. § 15A-1446(d)(18)..........................................29

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N.C. Gen. Stat. § 90-95(h)(3)(c)...............................................10N.C.R. App. P. 10(a)(4)............................................................15

N.C.R. App. P. 10(b)........................................................14 fn. 1

N.C.R. App. P. 26(a)(2)............................................................34

N.C.R. App. P. 26(c)................................................................34

N.C.R. App. P. 28(f)...........................................................13, 25

N.C.R. App. P. 28(j)(2)(B).......................................................33

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No. COA13-694 TWENTY-EIGHTH DISTRICT

NORTH CAROLINA COURT OF APPEALS

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STATE OF NORTH CAROLINA ))

v. ) From Buncombe County)

ERADIO VELAZQUEZ-PEREZ )and )EDGAR AMPELIO–VILLALVAZO )

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DEFENDANT-APPELLANTERADIO VELAZQUEZ-PEREZ’S BRIEF

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ISSUES PRESENTED

I. WHETHER MR. VELAZQUEZ-PEREZ’S CONVICTION FOR CONSPIRACY TO TRAFFIC IN COCAINE MUST BE VACATED BECAUSE THE EVIDENCE THERE WAS AN AGREEMENT BETWEEN MR. VELAZQUEZ-PEREZ AND MR. AMPELIO-VILLALVAZO TO TRAFFIC IN COCAINE WAS INSUFFICIENT AND THE TRIAL COURT COMMITTED ERROR IN NOT GRANTING THE MOTION TO DISMISS IN VIOLATION OF MR. VELAZQUEZ-PEREZ’S RIGHTS?

II. WHETHER MR. VELAZQUEZ-PEREZ’S RIGHTS WERE VIOLATED BY THE IMPROPER EXTENSION OF THE TRAFFIC STOP AND THE TRIAL COURT COMMITTED ERROR OR PLAIN ERROR IN DENYING THE MOTION TO SUPPRESS?

III. WHETHER MR. VELAZQUEZ-PEREZ’S CONVICTIONS MUST BE VACATED BECAUSE HE WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL BY TRIAL COUNSEL’S FAILURE TO RENEW THE

OBJECTION TO THE ADMISSION OF EVIDENCE THAT WAS FRUITS OF THE IMPROPER EXTENSION OF THE TRAFFIC STOP?

IV. WHETHER THE TRIAL COURT COMMITTED ERROR IN ORDERING COSTS FOR FINGERPRINT EXAMINATION AS LAB FEES AS PART OF MR. VELAZQUEZ-PEREZ’S SENTENCE IN VIOLATION OF A STATUTORY MANDATE?

STATEMENT OF THE CASE

On 9 January 2012, the Buncombe County Grand Jury issued separate

indictments charging each Defendant-Appellant, Eradio Velazquez-Perez and

Edgar Ampelio-Villalvazo, with trafficking in cocaine in excess of 400 grams by

transportation, possession with intent to sell or deliver cocaine, trafficking in

cocaine in excess of 400 grams by possession, and conspiracy to traffic in cocaine.

(R pp 15-22)

On 11 October 2012, these cases came for a joint motions hearing before the

Honorable Marvin P. Pope, Jr., Superior Court Judge presiding, during the 8

October 2009 Criminal Session of the Superior Court of Buncombe County. (R pp

38-39; MT, Vol. I, p 5) The transcript of the motion hearing is referenced herein as

“MT.” (R p 33) On 16 October 2012, Judge Pope issued a written order denying

the motion to suppress. (R pp 44-50)

On 5 November 2012, these cases came for joint trial before Judge Pope

during the 5 November 2012 Criminal Session of the Superior Court of Buncombe

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County. (R pp 1, 51-52; TT Vol. I, pp 11-16) The trial transcript is referenced

herein as “TT.” (R p 33)

On 9 November 2012, following jury selection and presentation of evidence,

the jury returned verdicts finding Mr. Velazquez-Perez and Mr. Ampelio-

Villalvazo guilty as charged. (R pp 52-53; 101-08; TT Vol. IV, pp 466-68) On 13

November 2012, Judge Pope entered judgment. Mr. Velazquez-Perez’s trafficking

convictions were consolidated, and he was sentenced to a term of 175 to 219

months imprisonment. (R pp 52, 113-14, 121; TT Vol. V, pp 480-81) Mr.

Velazquez-Perez’s possession with intent to sell or deliver cocaine and conspiracy

to traffic in cocaine were consolidated, and he was sentenced to a consecutive term

of 175 to 219 months imprisonment. (R pp 52, 115-16, 122; TT Vol. V, p 481) Mr.

Ampelio-Villalvazo’s trafficking convictions were consolidated, and he was

sentenced to a term of 175 to 219 months imprisonment. (R pp 117-18, 123; TT

Vol. V, p 479) Mr. Ampelio-Villalvazo’s possession with intent to sell or deliver

cocaine and conspiracy to traffic in cocaine were consolidated, and he was

sentenced to a consecutive term of 175 to 219 months imprisonment. (R pp 119-20,

124; TT Vol. V, pp 479-80)

On that same date, Mr. Velazquez-Perez and Mr. Ampelio-Villalvazo

entered notice of appeal in open court. (R pp 52, 125-26; TT Vol. V, pp 482-83)

The record on appeal was filed and docketed in the Court of Appeals on 13 June

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2013, and mailed to the parties on 14 June 2013. The time for filing Defendant-

Appellant Eradio Velazquez-Perez’s Brief was extended until 14 August 2013.

STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW

Defendant appeals pursuant to N.C. Gen. Stat. §§ 7A-27(b) and 15A-1444(a)

from a final judgment of the Buncombe County Superior Court.

STATEMENT OF THE FACTS

The evidence presented at the motion hearing and trial by the State tended to

show that about 2:30 p.m. on 4 September 2011, Henderson County Sheriff’s

Deputy David McMurray estimated a tractor truck carrying a loaded flatbed utility

semi-trailer was traveling 50 miles per hour on a ramp from I-40 towards the scales

of a weigh station. (MT Vol. I, pp 10, 13, 15-17, 60-62; TT Vol. II, pp 113, 117-

20, 144-45) Deputy McMurray visually estimated the speed, and did not use a

radar device. (MT Vol. I, pp 16-17, 61-62; TT Vol. II, pp 118-19) The posted

recommended speed on the ramp was 30 miles per hour. (MT Vol. I, pp 15-17; TT

Vol. II, p 118) After the truck went through the weigh station process, Deputy

McMurray stopped the truck for speeding. (MT Vol. I, pp 16-18; TT Vol. II, pp

117-22; TT Vol. III, p 299)

Deputy McMurray was driving an unmarked car with his K-9 in the rear.

(MT Vol. I, pp 21-22, 62; TT Vol. II, pp 119, 200) Deputy McMurray pulled up

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beside the truck and motioned the driver to pull over. (MT Vol. I, pp 17-18; TT

Vol. II, p 119) Deputy McMurray walked up to the passenger side of the truck and

spoke to the driver. (MT Vol. I, pp 18-19; TT Vol. II, pp 120-22, 129-30) Deputy

McMurray identified the driver in court as Defendant-Appellant Edgar Ampelio-

Villalvazo. (MT Vol. I, p 19; TT Vol. II, p 122) A second person in the truck was

in the bunk asleep. (TT Vol. II, p 122) Deputy McMurray identified the second

person in court as Defendant-Appellant Eradio Velazquez-Perez. (MT Vol. I, p 44;

TT Vol. II, p 122)

Deputy McMurray requested and Mr. Ampelio-Villalvazo provided his

license, log book, and insurance information, the car’s registration and other

licensing documentation, the bill of lading, and Mr. Velazquez-Perez’s license and

log book. (MT Vol. I, pp 22-23; TT Vol. II, pp 124-25, 127-28, 131-32, 134-35,

137-65, 167-89, 191-202) Mr. Velazquez-Perez was the owner of the trucking

company, the truck, and the trailer. (MT. Vol. I, pp 29-30, 37, 51-52; TT Vol. II, p

134, 138-39, 143-45, 147, 153-65, 167-71, 174-81, 185-86)

Deputy McMurray put Mr. Ampelio-Villalvazo in his car. (MT Vol. I, pp

24-26; TT Vol. II, p 131) Deputy McMurray issued a warning citation to Mr.

Ampelio-Villalvazo for speeding. (MT Vol. I, pp 29-30, 53-54, 68; T Vol. II, pp

187-89) Deputy McMurray told Mr. Ampelio-Villalvazo he was going to run more

checks. (TT Vol. II, p 189) Deputy McMurray asked Mr. Ampelio-Villalvazo

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questions, and ran information through law enforcement intelligence data bases,

looking for connections to illegal activities. (MT Vol. I, pp 30-37, 39-42, 64-65;

TT Vol. II, pp 189-91)

Deputy McMurray’s partner, Deputy Ray Herndon arrived. (MT Vol. I, p

35; T Vol. II, pp 114, 200)

Deputy McMurray went to the truck to question Mr. Velazquez-Perez about

Mr. Ampelio-Villalvazo. (MT Vol. I, pp 42-47; TT Vol. III, pp 210-11) Deputy

McMurray returned to his car, and continued to question Mr. Ampelio-Villalvazo.

(MT Vol. I, pp 46-47; TT Vol. III, pp 212-13) Deputy McMurray got consent from

Mr. Ampelio-Villalvazo to search the truck. (MT Vol. I, pp 49-52; TT Vol. III, pp

214-19) Deputy McMurray got consent from Mr. Velazquez-Perez to search the

truck. (MT Vol. I, pp 50-52; TT Vol. III, pp 214-19)

Mr. Velazquez-Perez left the truck and stood by Deputy McMurray’s car.

(MT Vol. I, p 50; TT Vol. III, pp 219, 266) Deputies McMurray and Herndon

searched the truck. (MT Vol. I, pp 51, 54-55; TT Vol. III, pp 219-24) Troopers

kept watch over Mr. Velazquez-Perez and Mr. Ampelio-Villalvazo. (TT Vol. III,

pp 220, 268-69) Deputy McMurray found hidden compartments within the sleeper

portion of the truck. (MT Vol. I, pp 55-56; TT Vol. III, pp 220-23, 244-55, 257-65)

Mr. Velazquez-Perez and Mr. Ampelio-Villalvazo were handcuffed. (TT Vol. III,

pp 224, 265-66)

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Deputy McMurray found $5,000 in the lining of a black duffel bag, and what

he believed to be a total of 24 kilo-sized bricks of cocaine in some of the

compartments. (MT Vol. I, pp 56-57; MT Vol. II, p 101; TT Vol. III, pp 265-66,

270-72, 274-75; T Vol. IV, pp 345-49) The outside layer of the bricks was a green

cellophane wrapping. (TT Vol. III, pp 276-77, 280; T Vol. IV, p 337)

In the opinion of State Bureau of Investigation (“SBI”) forensic chemist

Elizabeth Reagan, the 24 cellophane-wrapped bundles weighed a total of 53.1

pounds and contained cocaine hydrochloride. (TT Vol. IV, pp 339, 344-45, 407-

26)

Charlotte-Mecklenburg Police Department (“CMPD”) fingerprint examiner

Tanya Pallotta was able to produce one impression from the 24 cellophane

wrappers she was asked to examine that could, in her opinion, have been

identifiable. (TT Vol. IV, pp 339-40, 344-45, 366-67, 373-74, 381-82, 389-95,

397-404, 406, 410) In the opinion of Ms. Pallotta, the identifiable impression did

not match the known prints of either Mr. Velazquez-Perez or Mr. Ampelio-

Villalvazo. (TT Vol. IV, pp 395-97, 401-06)

The Defendants presented no evidence.

Additional facts are presented in the brief for Mr. Ampelio-Villalvazo and as

they are relevant to the arguments below.

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ARGUMENT

I. MR. VELAZQUEZ-PEREZ’S CONVICTION FOR CONSPIRACY TO TRAFFIC IN COCAINE MUST BE VACATED BECAUSE THE EVIDENCE THERE WAS AN AGREEMENT BETWEEN MR. VELAZQUEZ-PEREZ AND MR. AMPELIO-VILLALVAZO TO TRAFFIC IN COCAINE WAS INSUFFICIENT AND THE TRIAL COURT COMMITTED ERROR IN NOT GRANTING THE MOTION TO DISMISS IN VIOLATION OF MR. VELAZQUEZ-PEREZ’S RIGHTS.

PROPOSED ISSUE ON APPEAL No. 61R p 157

A. Statement of Standard of Review.

In ruling upon a motion to dismiss, the trial court must examine the evidence

in the light most favorable to the State, giving the State the benefit of all

reasonable inferences which may be drawn from the evidence. State v. Kemmerlin,

356 N.C. 446, 573 S.E.2d 870 (2002). The trial court determines whether there is

substantial evidence of each essential element of the offense charged and of the

defendant being the perpetrator of the offense. Id. at 473, 573 S.E.2d at 889.

Substantial evidence is relevant evidence that a reasonable mind might accept as

adequate to support a conclusion. Id. Whether the evidence presented was

substantial is a matter of law. State v. Nettles, 170 N.C. App. 100, 103, 612 S.E.2d

172, 174, disc. review denied, 359 N.C. 640, 617 S.E.2d 286 (2005). Questions of

law are reviewed de novo. Staton v. Brame, 136 N.C. App. 170, 174, 523 S.E.2d

424, 427 (1999). This Court considers the matter anew and freely substitutes its

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own judgment for that of the lower court. N.C. Dep’t of Env’t & Natural Res. v.

Carroll, 358 N.C. 649, 660, 599 S.E.2d 888, 895 (2004).

B. Analysis.

At the close of evidence, Mr. Velazquez-Perez’s motion to dismiss the

charges was denied. (T Vol. IV, pp 429-30) There was not substantial evidence in

this case that there was an agreement between Mr. Velazquez-Perez and Mr.

Ampelio-Villalvazo to traffic in cocaine. It was error for the motion to dismiss to

be denied and for the charge of conspiracy to traffic in cocaine to be submitted to

the jury.

“A criminal conspiracy is an agreement between two or more persons to do

an unlawful act or to do a lawful act in an unlawful way or by unlawful means.”

State v. Bindyke, 288 N.C. 608, 615, 220 S.E.2d 521, 526 (1975). The offense of

conspiracy is the union of wills and not the completion of the contemplated

principal unlawful act. Id. at 616, 220 S.E.2d at 526. “Direct proof of the charge is

not essential, for such is rarely obtainable. It may be, and generally is, established

by a number of indefinite acts, each of which, standing alone, might have little

weight, but, taken collectively, they point unerringly to the existence of a

conspiracy.” State v. Whiteside, 204 N.C. 710, 712, 169 S.E. 711, 712 (1933).

This Court has “held that the weight of the cocaine is an essential element of

the offense of conspiracy to traffic in cocaine[.]” State v. De La Sancha Cobos, 211

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N.C. App. 536, 541, 711 S.E.2d 464, 466 (2011). In this case, the contemplated

principal unlawful act to which Mr. Velazquez-Perez was alleged to have

conspired was trafficking in cocaine by transporting and possessing in excess of

400 grams in violation of N.C. Gen. Stat. § 90-95(h)(3)(c). The State had to prove

Mr. Velazquez-Perez entered into an agreement to traffic in more than 400 grams

of cocaine by transporting and possessing. There is no evidence that Mr.

Velazquez-Perez agreed with another person to traffic any amount of cocaine by

any means.

There was no evidence of the type of indefinite acts that North Carolina

Courts have held point unerringly to the existence of a conspiracy. See, e.g., State

v. Morgan, 329 N.C. 654, 406 S.E.2d 833 (1991) (sufficient evidence to survive

motion to dismiss conspiracy charge where evidence of multiple prior transactions

and conversations between defendant and others regarding the sale and delivery of

cocaine); State v. Sams, 148 N.C. App. 141, 557 S.E.2d 638 (2001) (sufficient

evidence to survive motion to dismiss conspiracy charge where evidence defendant

and drug dealer had worked together in the past to facilitate cocaine sales); State v.

Featherson, 145 N.C. App. 134, 139, 548 S.E.2d 828, 831-32 (2001) (statements

by co-defendants implicated defendant); State v. Colvin, 90 N.C. App. 50, 57, 367

S.E.2d 340, 344 (defendant’s participation in elaborate preparations for the

robbery), cert. denied, 322 N.C. 608, 370 S.E.2d 249 (1988).

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The indictment named Mr. Ampelio-Villalvazo as the sole co-conspirator.

(R p 15) There was no evidence in this case of any prior illicit dealings between

Mr. Velazquez-Perez and Mr. Ampelio-Villalvazo or anyone else. There was no

evidence of an agreement between Mr. Velazquez-Perez and Mr. Ampelio-

Villalvazo or anyone else.

There were no statements from Mr. Velazquez-Perez that he entered into an

agreement with Mr. Ampelio-Villalvazo or anyone to traffic in cocaine. There

were no statements from Mr. Ampelio-Villalvazo that he entered into an agreement

with Mr. Velazquez-Perez to traffic in cocaine. There were no statements from Mr.

Velazquez-Perez, Mr. Ampelio-Villalvazo, or anyone that there was an agreement

to traffic in the specific amount of more than 400 grams of cocaine.

Deputy McMurray reviewed documentation that included licensing

information, registration information, insurance information, inspection records,

vehicle examination reports, bills of lading, permits, tax receipts, fuel tax

agreements, and log books. (R pp 54-56, 58-63) Deputy McMurray testified that

there was nothing illegal, improper, or out of order about any of the documentation

introduced by the State related to Mr. Velazquez-Perez’s trucking business or to

either man’s driving record. (MT Vol. I, pp 68-69; TT Vol. III, pp 281-89; see

Appendix) Deputy McMurray testified that there was no evidence of criminal

history. (TT Vol. III, p 290; see Appendix) The prior record level worksheets list

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no prior convictions for either Mr. Velazquez-Perez or Mr. Ampelio-Villalvazo. (R

pp 109-14) Deputy McMurray testified that, prior to the search of the truck, there

was no evidence drug involvement. (TT Vol. III, p 290; see Appendix) The

fingerprints from the cocaine wrappings did not match Mr. Velazquez-Perez or Mr.

Ampelio-Villalvazo. (TT Vol. IV, pp 395-97, 401-06; see Appendix)

The State advanced no specific evidence or argument of a conspiracy or an

agreement between Mr. Velazquez-Perez and Mr. Ampelio-Villalvazo or anyone

else. The evidence for the State was that Mr. Ampelio-Villalvazo worked as a

driver for Mr. Velazquez-Perez. “While conspiracy can be proved by inferences

and circumstantial evidence, it `cannot be established by a mere suspicion, nor

does a mere relationship between the parties or association show a conspiracy.'”

State v. Benardello, 164 N.C. App. 708, 711, 596 S.E.2d 358, 360 (2004) (quoting

State v. Massey, 76 N.C. App. 660, 662, 334 S.E.2d 71, 72 (1985)).

More than riding in a car with another person is needed to be evidence of an

agreement to traffic in cocaine. See, e.g., State v. Jenkins, 167 N.C. App. 696, 701,

606 S.E.2d 430, 433 (evidence of conspiracy sufficient when three men were

riding in pick-up truck together, one man was counting thousands of dollars, a

loaded handgun was plainly visible in the cab, and a bag of drugs was between

defendant and another passenger), aff'd per curiam, 359 N.C. 423, 611 S.E.2d 833

(2005). There was no weapon in this case. (MT Vol. I, pp 26, 66; MT Vol. II, p 86;

- 12 -

TT Vol. II, pp 130-31; TT Vol. III, p 300; see Appendix) Mr. Velazquez-Perez was

not openly counting money in front of Mr. Ampelio-Villalvazo. The money was

found in the lining of a bag which in turn was found inside of a hidden

compartment. (MT Vol. I, pp 56-57; MT Vol. II, p 101; TT Vol. III, pp 265, 270-

71, 274; see Appendix) There were no plainly visible drugs. The cocaine was

wrapped from view in layers of cellophane, tape, carbon paper, dryer sheets, and

rubber, and was found inside of hidden compartments. (MT Vol. I, pp 56-57; TT

Vol. III, pp 265-66, 271-72, 274, 276; TT Vol. IV, pp 411-14; see Appendix)

Conspiracy is a separate offense from the substantive offense. State v.

Kemmerlin, supra, 356 N.C. at 476, 573 S.E.2d at 891. Even if Mr. Velazquez-

Perez knowingly possessed cocaine, possession is not an element of conspiracy to

traffic by possession. State v. Torres-Gonzalez, ___ N.C. App. ___, 741 S.E.2d 831

(2013). The State failed to prove Mr. Velazquez-Perez entered into an agreement

to traffic in more than 400 grams of cocaine by transportation and possession.

In addition to the foregoing argument, Mr. Velazquez-Perez adopts the

reasoning in support of this conclusion set out in the brief of Mr. Ampelio-

Villalvazo pursuant to Rule 28(f) of the North Carolina Rules of Appellate

Procedure. There was insufficient evidence that Mr. Velazquez-Perez entered into

an agreement with another person to traffic in a specific or any amount of cocaine.

In the light most favorable to the State, giving the State the benefit of all

- 13 -

reasonable inferences which may be drawn from the evidence, there was not

substantial evidence that Mr. Velazquez-Perez knowingly conspired to traffic in

cocaine. It was error for the motion to dismiss the charge of conspiracy to traffic in

cocaine to be denied. Mr. Velazquez-Perez’s conviction for this offense should be

vacated.

II. MR. VELAZQUEZ-PEREZ’S RIGHTS WERE VIOLATED BY THE IMPROPER EXTENSION OF THE TRAFFIC STOP AND THE TRIAL COURT COMMITTED ERROR OR PLAIN ERROR IN DENYING THE MOTION TO SUPPRESS.

PROPOSED ISSUES ON APPEAL Nos. 3, 6-9, 17-21, 31, 33-34, 37-52, 54-56, 58-601

R pp 149, 151-57

A. Statement of Standards of Review.

“In reviewing a trial judge’s ruling on a suppression motion, we determine

only whether the trial court’s findings of fact are supported by competent evidence,

and whether these findings of fact support the court’s conclusions of law.” State v.

Pulliam, 139 N.C. App. 437, 439-40, 533 S.E.2d 280, 282 (2000). “A trial court’s

conclusions of law are reviewed de novo on appeal.” In the Matter of J.L.B.M., 176

N.C. App. 613, 617, 627 S.E.2d 239, 242 (2006) (citing State v. Kincaid, 147 N.C.

1 A good faith effort was made to identify the proposed issues on appeal. (R pp 149-58) Due to an inadvertent error or omission, proposed issues 49 through 51 refer to the admission of State’s Exhibit Number 79, the SBI Form to examine evidence, instead of Number 88, the lab report of SBI chemist Elizabeth Reagan. Despite the inadvertent error or omission from that list, this issue may still be presented on appeal. N.C.R. App. P. 10(b).

- 14 -

App. 94, 97, 555 S.E.2d 294, 297 (2001)). Specifically, “a trial court’s conclusion

that a police officer had either probable cause or reasonable suspicion to detain or

search a defendant is reviewable de novo.” State v. Baublitz, 172 N.C. App. 801,

806, 616 S.E.2d 615, 619 (2005).

The denial of a defendant’s suppression motion may be reviewed for plain

error in a case in which the defendant, after failing to object to the admission of the

challenged evidence at trial, specifically argues plain error on appeal. State v.

Harwood, ___ N.C. App. ___, ___, 727 S.E.2d 891, 896 (2012) (citing State v.

Leach, 166 N.C. App. 711, 714, 603 S.E.2d 831, 834 (2004)). Plain error is:

a “fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done,” or “where [the error] is grave error which amounts to a denial of a fundamental right of the accused,” or the error has “`resulted in a miscarriage of justice or in the denial to appellant of a fair trial'” or where the error is such as to “seriously affect the fairness, integrity or public reputation of judicial proceedings” or where it can be fairly said “the instructional mistake had a probable impact on the jury’s finding that the defendant was guilty.”

State v. Odom, 307 N.C. 655, 660-61, 300 S.E.2d 375, 378-79 (1983) (quoting

United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982)). Mr. Velazquez-

Perez specifically and distinctly contended the judicial action questioned in these

proposed issues on appeal amounted to plain error. N.C.R. App. P. 10(a)(4). This

issue is properly before this Court.

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B. Unreasonable Searches and Seizure.

Unreasonable searches and seizures are prohibited by both the federal and

state constitutions. U.S. Const. amend. IV; N.C. Const. art. I, § 20. The Fourth

Amendment protection is applicable to the states through the Due Process Clause

of the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 655, 6 L. Ed. 2d 1081,

1090 (1961). Law enforcement officers “must, whenever practicable, obtain

advance judicial approval of searches and seizures through the warrant

procedure . . . .” Terry v. Ohio, 392 U.S. 1, 20, 20 L. Ed. 2d 889, 905 (1968).

Officers may make a brief, investigative stop of a person without a warrant

or probable cause, but they “must be able to point to specific and articulable facts

which, taken together with rational inferences from those facts, reasonably warrant

that intrusion.” Terry, supra, at 21, 20 L. Ed. 2d at 906. A reasonable suspicion of

criminal activity of an officer is not “his inchoate and unparticularized suspicion or

‘hunch,' but [] the specific reasonable inferences which he is entitled to draw from

the facts in light of his experience.” Id. at 27, 20 L.Ed.2d at 909. “An investigatory

stop must be justified by ‘a reasonable suspicion, based on objective facts, that the

individual is involved in criminal activity.'” State v. Watkins, 337 N.C. 437, 441,

446 S.E.2d 67, 70 (1994) (quoting Brown v. Texas, 443 U.S. 47, 51, 61 L. Ed. 2d

357, 362 (1979)). Whether an officer had a reasonable suspicion to make an

investigative stop is evaluated under the totality of the evidence. United States v.

- 16 -

Cortez, 449 U.S. 411, 417, 66 L. Ed. 2d 621, 629 (1981); State v. Watkins, supra,

337 N.C. at 441, 446 S.E.2d at 70. When an officer is justified in believing that the

individual whose suspicious behavior he is investigating at close range is armed

and presently dangerous to the officer or to others,” the officer may perform a

protective pat-down or frisk for weapons of the individual. Terry, supra, 392 U.S.

at 24, 20 L. Ed. 2d at 908.

C. There was a Lack of Reasonable Cause to Prolong the Stop and Search the Truck.

A pre-trial motion to suppress evidence seized as a result of the search of the

truck was filed and was joined in by Mr. Velazquez-Perez. (R pp 40-43; MT Vol. I,

p 5) The subsequently filed written order denying the motion to suppress included

the following conclusions of law:

8. Once Deputy McMurray issued the warning ticket, Deputy McMurray had reasonable suspicion to further detain the Defendants and verify the information that was furnished to him concerning the operation of the Volvo tractor trailer based on his specific articulable facts that criminal activity was afoot. Furthermore, the Defendant Edgar Ampelio-Villalvazo and Defendant Eradio Velazquez-Perez voluntarily consented and agreed to additional questioning once the purpose of the traffic stop was completed.

9. The Defendant Edgar Ampelio-Villalvazo exhibited nervous and deceptive behaviors where the Defendant Edgar Ampelio-Villalvazo patted his chest repeatedly, his pulse pounding in his neck area, and would not make eye contact when answering questions. The Defendant Eradio Velazquez-Perez exhibited nervous behaviors by trembling hands and rapid pulse as observed by Officer McMurray which was considered deceptive by the officer.

- 17 -

10. The Defendants consented orally and in writing that law enforcement officers could search the Volvo tractor on September 4, 2011.

11.The results of the search of the Defendants' Volvo tractor by law enforcement are admissible.

(R p 50) The findings of fact support do not support these conclusions of law.

Deputy McMurray stopped the truck for speeding. (MT Vol. I, pp 16-18; TT

Vol. II, pp 117-22; see Appendix) This Court has summarized the evaluation

standard and the limits of such a stop as:

The Fourth Amendment guarantees the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a seizure of persons within the meaning of this provision. Because an ordinary traffic stop is a limited seizure more like an investigative detention than a custodial arrest, we employ the Supreme Court's analysis for investigative detention used in Terry v. Ohio, 392 U.S. (1968), to determine the limits of police conduct in routine traffic stops.

Under Terry's dual inquiry, after asking whether the officer's action was justified at its inception, we ask whether the continued stop was sufficiently limited in scope and duration to satisfy the conditions of an investigative seizure. With regard to scope, the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time. With regard to duration, although the reasonable duration of a traffic stop cannot be stated with mathematical precision, a stop may become unlawful if it is prolonged beyond the time reasonably required to complete its mission. Thus, we evaluate whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant. To prolong a traffic stop beyond the scope of a routine traffic stop, an officer must possess a justification for doing so other than the initial traffic violation that prompted the stop in the

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first place. This requires either the driver's consent or a reasonable suspicion that illegal activity is afoot.

Although the scope and duration components of Terry's second prong require highly fact-specific inquiries, the cases make possible some generalizations. When a police officer lawfully detains a vehicle, police diligence involves requesting a driver's license and vehicle registration, running a computer check, and issuing a ticket. The officer may also, in the interest of personal safety, request that the passengers in the vehicle provide identification, at least so long as the request does not prolong the seizure. Similarly, the officer may inquire into matters unrelated to the justification for the traffic stop, and may take other actions that do not constitute searches within the meaning of the Fourth Amendment, such as conducting a dog-sniff of the vehicle, but again only so long as those inquiries or other actions do not measurably extend the duration of the stop.

State v. Franklin, ___ N.C. App. ___, ___, 736 S.E.2d 218, 224-25 (2012)

(emphasis in original) (quoting United States v. Vaughn, 700 F.3d 705, 709-10 (4th

Cir. 2012) (internal citations, quotation marks, and brackets omitted).

The Supreme Court of the United States has “held that a detention based on

reasonable suspicion that the detainee committed a particular crime 'can become

unlawful if it is prolonged beyond the time reasonably required to complete that

mission.'” Arizona v. United States, 132 S.Ct. 2492, 2509 (2012) (quoting Illinois

v. Caballes, 543 U.S. 405, 407, 160 L. Ed. 2d 842, 846 (2005). Once Deputy

McMurray issued the warning citation to Mr. Ampelio-Villalvazo for speeding, the

justification for the initial traffic stop was completed. Deputy McMurray then told

Mr. Ampelio-Villalvazo he was going to run more checks. (TT Vol. II, p 189; see

Appendix) Deputy McMurray had not obtained any evidence up to that point that

- 19 -

would justify prolonging the detention beyond the time it took to investigate the

initial traffic stop.

There is an “inclination of the Government toward using whatever facts are

present, no matter how innocent, as indicia of suspicious activity.” United States v.

Foster, 634 F.3d 243, 248 (4th Cir. 2011). “Constitutional rights are not lightly cast

aside.” Jones v. Graham County Bd. of Educ. 197 N.C. App. 279, 295, 677 S.E.2d

171, 182 (2009). Therefore, the State “must do more than simply label a behavior

as ‘suspicious’ to make it so. The Government must also be able to either articulate

why a particular behavior is suspicious or logically demonstrate, given the

surrounding circumstances, that the behavior is likely to be indicative of some

more sinister activity than may appear at first glance.” Foster, supra, 634 F.3d at

248 (4th Cir. 2011).

At the point he issued the citation, Deputy McMurray did not have sufficient

indications that more sinister activity was afoot. What Deputy McMurray had at

the point he issued the warning citation was facts that would support conclusions

that Mr. Ampelio-Villalvazo was a cooperative but nervous person, possibly with

digestive problems, who worked for a legitimate but potentially inefficient trucking

company.

According to Deputy McMurray, Mr. Ampelio-Villalvazo’s behaviors of

clearing his throat, coughing, and heart beating in his neck were signs of stress.

- 20 -

(MT Vol. I, pp 31; see Appendix) Deputy McMurray acknowledged Mr. Ampelio-

Villalvazo told him he was exhibiting those behaviors due to heartburn from a

recent meal. (MT Vol. I, p 72; see Appendix) Deputy McMurray deemed Mr.

Ampelio-Villalvazo’s behavior and answers after the citation was issued as

deceptive. (MT Vol. I, pp 40, 42-43, 47-48; see Appendix) Before the citation was

issued, Mr. Ampelio-Villalvazo told Deputy McMurray he had known or worked

for Mr. Velazquez-Perez for four months. (MT Vol. I, pp 27, 39-40, 79; see

Appendix) After the citation was issued, Mr. Velazquez-Perez told Deputy

McMurray that this was Mr. Ampelio-Villalvazo’s first trip for the trucking

company, and that he had known Mr. Ampelio-Villalvazo for a few weeks. (MT

Vol. I, p 46; see Appendix) Mr. Ampelio-Villalvazo explained this was his first

out-of-state load for the company, which Deputy McMurray conceded matched the

log books. (MT Vol. I, pp 47, 78, 80; see Appendix)

The law requires more than symptoms of heartburn or nervousness and lack

of eye contact to raise a reasonable suspicion of criminal activity. “Nervousness,

like all other facts, must be taken in light of the totality of the circumstances.” State

v. McClendon, 350 N.C. 630, 638, 517 S.E.2d 128, 134 (1999). “The law does not

require us to be blind and deaf, and ignorant of facts of common and general

knowledge to all men.” Dowdy v. Southern Ry. Co., 237 N.C. 519, 526, 75 S.E.2d

- 21 -

639, 644 (1953). “Many people become nervous when stopped by a state trooper.”

State v. Pearson, 348 N.C. 272, 276, 498 S.E.2d 599, 601 (1998).

At the point Deputy McMurray issued the warning citation, he had found

nothing illegal, improper, or out of order in any of the documentation. (MT Vol. I,

pp68-69; TT Vol. III, pp 281-89; see Appendix) At the point Deputy McMurray

issued the warning citation, he had found no evidence of criminal history or drug

involvement. (TT Vol. III, p 290; see Appendix) There were no mysterious odors

coming from or residues on the truck. (MT Vol. II, p 85; see Appendix) There was

no drug residue or paraphernalia found on Mr. Ampelio-Villalvazo. (MT Vol. II, p

67; see Appendix)

Deputy McMurray was suspicious about the trucking company employing a

broker, because: “It did not make economical sense” to him. (MT Vol. I, p 31; MT

Vol. II, p 103; see Appendix) Employing a broker is not illegal. Deputy McMurray

testified at trial why employing a broker would be a good trucking business

practice. (TT Vol. II, p 187; see Appendix) Deputy McMurray was suspicious that

two co-drivers would both sleep at the same time during a trip, because that would

not maximize the company’s profit. (MT Vol. I pp 23, 40-42; see Appendix)

Deputy McMurray was suspicious about the sleep time records, even though there

was no violation of a law or a universal business operation. (MT Vol. I, p 77; see

Appendix) Deputy McMurray was suspicious that Mr. Velazquez-Perez’s records

- 22 -

included more than one address, again because this information did not jibe with

Deputy McMurray’s thoughts on how the trucking company could maximize

profit. (MT Vol. I, pp 30-31, 70-71; MT Vol. II, pp 102-03; see Appendix) Deputy

McMurray had this suspicion that the multiple addresses were holding down the

trucking company’s profit margin, despite his investigation revealing that one

address was the business address, and the was Mr. Velazquez-Perez home address.

The stop in this case was prolonged beyond the time its mission was

completed. There was no justification for prolonging the traffic stop after the

citation was issued. Under the totality of the circumstances, there was no

reasonable suspicion that illegal activity was afoot. The trial court erred in

concluding that the constitutional rights of Mr. Velazquez-Perez were not violated.

The motion to suppress should have been granted.

D. The Evidence Should Have Been Suppressed.

The State may not use evidence obtained during an unreasonable search and

seizure to convict a person of a crime. Mapp v. Ohio, supra, 367 U.S. at 655, 6 L.

Ed. 2d at 1090; State v. Artis, 123 N.C. App. 114, 472 S.E.2d 169, disc. review

denied, 344 N.C. 633, 477 S.E.2d 45 (1996); N.C. Gen. Stat. § 15A-974. When the

totality of the circumstances is taken into account, prolonging the stop after the

speeding citation was issued to search the truck was not reasonable. The search of

Mr. Velazquez-Perez’s truck was without reasonable cause. Everything found in

- 23 -

the search must be suppressed as fruits of the poisonous tree after the illegal

prolonging of the stop. Wong Sun v. United States, 371 U.S. 472, 487-88, 9 L. Ed.

2d 441, 455 (1963). The State’s witnesses should not have been allowed to testify

about and introduce evidence of what was found in the search of Mr. Velazquez-

Perez’s truck.

The error in denying the motion to suppress was of a constitutional

magnitude. It is the State’s burden to show that the trial court’s failure to reach

conclusions of law central to this matter was harmless beyond a reasonable doubt.

N.C. Gen. Stat. § 15A-1443(b). “`Harmless beyond a reasonable doubt' has been

interpreted to mean that `there is no reasonable possibility' that the erroneous

admission of evidence ‘might have contributed to the conviction.'” State v. Hooper,

318 N.C. 680, 682, 351 S.E.2d 286, 288 (1987) (quoting State v. Castor, 285 N.C.

286, 292, 204 S.E.2d 848, 853 (1974)). The denial of the motion to suppress the

fruits of the search of Mr. Velazquez-Perez’s truck lead to all the evidence that was

used to support Mr. Velazquez-Perez’s convictions. This Court should therefore

exercise extreme caution before finding harmlessness. If not for the evidence

obtained in violation of Mr. Velazquez-Perez’s Fourth Amendment and Article I,

Section 20 rights, there would have been no evidence of money or cocaine.

Mr. Velazquez-Perez failed to object to the admission of the challenged

evidence at trial. The denial of a defendant’s suppression motion may be reviewed

- 24 -

for plain error. State v. Harwood, supra, ___ N.C. App. at ___, 727 S.E.2d at 896.

This error was plain error. The error in admitting illegally obtained evidence is a

grave error which amounts to a denial of Mr. Velazquez-Perez’s Fourth

Amendment and Article I, Section 20 rights.

When the totality of the circumstances is taken into account, the prolonging

of the stop and the search of the truck violated Mr. Velazquez-Perez’s

constitutional rights. It was prejudicial error for the trial court to deny the motion

to suppress and allow the fruits of that stop and search when the findings of fact

did not support the trial court’s conclusions of law. In addition to the foregoing

argument, Mr. Velazquez-Perez adopts the reasoning in support of this conclusion

set out in the brief of Mr. Ampelio-Villalvazo pursuant to Rule 28(f) of the North

Carolina Rules of Appellate Procedure. This Court should reverse the trial court’s

denial of the motion to suppress, vacate the judgment, and order a remand.

III. MR. VELAZQUEZ-PEREZ’S CONVICTIONS MUST BE VACATED BECAUSE HE WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL BY TRIAL COUNSEL’S FAILURE TO RENEW THE OBJECTION TO THE ADMISSION OF EVIDENCE THAT WAS FRUITS OF THE IMPROPER EXTENSION OF THE TRAFFIC STOP.

PROPOSED ISSUES ON APPEAL Nos. 22, 302

R pp 152-53

2 Due to a typographical error, Mr. Velazquez-Perez’s proposed issues set out as 22 and 30 in the numbered list in the Record on Appeal are duplicates of each other.

- 25 -

A. Statement of Standard of Review.

Ineffective assistance of counsel is a violation of a defendant’s constitutional

rights, and is reviewed de novo on appeal. State v. Graham, 200 N.C. App. 204,

214, 683 S.E.2d 437, 444 (2009).

B. Analysis.

As set out in the second Issue Presented, after denial of the motion to

suppress, Mr. Velazquez-Perez failed to object to the admission of the challenged

evidence at trial. Should this Court decline to review the error of admitting

evidence obtained in violation of Mr. Velazquez-Perez’s rights to be free of the

unreasonable stop and search for error or plain error, this Court should instead

review Mr. Velazquez-Perez’s claim of ineffective assistance of counsel.

“[A] pretrial motion to suppress evidence is not sufficient to preserve for

appellate review the issue of whether the evidence was properly admitted if the

defendant fails to object at the time the evidence is introduced at trial.” State v.

Barden, 356 N.C. 316, 332, 572 S.E.2d 108, 120 (2002), cert. denied,538 U.S.

1040, 155 L. Ed. 2d 1074 (2003). An order on a pretrial motion to suppress is

insufficient to preserve for appeal the question of the admissibility of the evidence

at trial. The North Carolina Appellate Courts have been clear that a defendant must

renew the objection to the admissibility of the evidence at trial, otherwise appellate

- 26 -

review will be waived. State v. Oglesby, 361 N.C. 550, 554, 648 S.E.2d 819, 821

(2007); State v. Tutt, 171 N.C. App. 518, 520, 615 S.E.2d 688, 690 (2005).

A criminal defendant has a constitutional right to the effective assistance of

counsel. U.S. Const. Amends. VI, VIII, and XIV; N.C. Const. Art. I, §§ 19, 23 and

27; Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674 (1984); State v.

Braswell, 312 N.C. 553, 324 S.E.2d 241 (1985). The right to counsel exists and is

needed, in order to protect the fundamental right to a fair trial in the adversarial

criminal process. 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, supra, 466

U.S. at 687, 80 L. Ed. 2d at 693. “A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Strickland, supra, 466 U.S. at

694, 80 L. Ed. 2d at 698. 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.” Id. 466

U.S. at 693, 80 L. Ed. 2d at 697.

Mr. Velazquez-Perez was prejudiced by his trial counsel’s failure to renew

objections to the challenged evidence at trial. By failing to renew the objections,

Mr. Velazquez-Perez’s trial counsel failed to allow the trial court to again review

- 27 -

the constitutionality of the prolonged stop and search. More importantly, a

defendant may not challenge the admission of the evidence on appeal unless the

objections are renewed. By failing to renew the objections, Mr. Velazquez-Perez’s

trial counsel failed to preserve for Mr. Velazquez-Perez the review of the violation

of his constitutional rights to be free of unreasonable searches and seizures.

Given that a pre-trial order on a motion to suppress is not sufficient to

preserve appellate review of the admissibility of the evidence, there could be no

strategic reason for failing to object to the challenged evidence at trial. Mr.

Velazquez-Perez’s trial counsel’s performance fell below an objective standard of

professional reasonableness by failing to renew the objections at trial. Mr.

Velazquez-Perez was entitled to an attorney who gave the trial court every

opportunity to review the admissibility of the evidence presented. Mr. Velazquez-

Perez was entitled to an attorney who preserved his right to challenge the

constitutionality of the stop and search on appeal.

The Court may feel that the record is not fully developed on the issue of

ineffective assistance of counsel and that it should not have been raised at this

stage. If so, Mr. Velazquez-Perez requests that consideration of its merits be

deferred without prejudice pending development of a proper record in future post-

conviction proceedings or that the case be remanded for further development of the

- 28 -

record. There can be, however, no sound strategic reason for failing to renew the

objection. Mr. Velazquez-Perez’s convictions must be vacated.

IV. THE TRIAL COURT COMMITTED ERROR IN ORDERING COSTS FOR FINGERPRINT EXAMINATION AS LAB FEES AS PART OF MR. VELAZQUEZ-PEREZ’S SENTENCE IN VIOLATION OF A STATUTORY MANDATE.

PROPOSED ISSUES ON APPEAL Nos. 62-65R p 157

A. Statement of Standards of Review.

The failure to comply with a statutory mandate is a question of law that is

reviewed de novo. Armstrong v. N.C. State Bd. of Dental Examiners, 129 N.C.

App. 153, 156, 499 S.E.2d 462, 466 (1998). This Court considers the matter anew

and freely substitutes its own judgment for that of the lower court. N.C. Dep’t of

Env’t & Natural Res. v. Carroll, supra, 358 N.C. at 660, 599 S.E.2d at 895 (2004).

The trial court’s failure to comply with a statutory mandate automatically

preserved the error for review. State v. Ashe, 314 N.C. 28, 39, 331 S.E.2d 652, 659

(1985). A restitution order may be reviewed on appeal even when there was no

objection in the lower court. State v. Shelton, 167 N.C. App. 225, 233, 605 S.E.2d

228, 233 (2004); N.C. Gen. Stat. § 15A-1446(d)(18).

B. Analysis.

The CMPD performed fingerprint analysis. The State requested $1,200 in

costs for “two lab fees, the testing for drugs and the fingerprint examination.” (TT

- 29 -

Vol. V, p 480; see Appendix) Mr. Velazquez-Perez neither stipulated nor objected

to this request for costs. The trial court included this amount in the costs order that

was part of Mr. Velazquez-Perez’s sentence for the trafficking offenses. (R pp 52,

113-14; 121-22; TT Vol. V, pp 480-81; see Appendix) The trial court’s order that

Mr. Velazquez-Perez pay costs in the amount of $600 as a lab fee for the

fingerprint analysis was reversible error and must be vacated.

“`At common law, costs in criminal cases were unknown; liability for costs

in criminal cases is therefore dictated purely by statute.'” State v. Jones, ___ N.C.

App. ___, ___, 718 S.E.2d 415, 422 (2011) (quoting State v. Johnson, 124 N.C.

App. 462, 470, 478 S.E.2d 16, 21 (1996), cert. denied, 345 N.C. 758, 485 S.E.2d

304 (1997). A trial court shall assess costs: “For the services of any crime

laboratory facility operated by a local government or group of local governments.”

N.C. Gen. Stat. § 7A-304(a)(8) (see Appendix). Such an order, however, has two

limitations. First: “The cost shall be assessed only in cases in which, as part of the

investigation leading to the defendant's conviction, the laboratory has performed

DNA analysis of the crime, test of bodily fluids of the defendant for the presence

of alcohol or controlled substances, or analysis of any controlled substance

possessed by the defendant or the defendant's agent.” Id. Second: “The costs shall

be assessed only if the court finds that the work performed at the local

- 30 -

government's laboratory is the equivalent of the same kind of work performed by

the State Bureau of Investigation under subdivision (7) of this subsection.” Id.

The order for $600 in costs for fingerprint analysis by the CMPD does not

comply with the requirements of N.C. Gen. Stat. § 7A-304(a)(8). Fingerprint

examination is not one of the types of analysis covered by this provision.

Furthermore, the trial court did not make a finding that work performed at the

CMPD is the equivalent of the same kind of work performed by the SBI under

N.C. Gen. Stat. § 7A-304(a)(7).

The trial court’s order for costs violated a statutory mandate. The remedy for

this violation is to vacate this amount from the judgment. State v. Jones, supra, ___

N.C. App. at ___, 718 S.E.2d at 422.

CONCLUSION

For all the foregoing reasons as well as those set out in the brief of Mr.

Ampelio-Villalvazo, Defendant-Appellant Eradio Velazquez-Perez respectfully

contends his convictions for trafficking in cocaine in excess of 400 grams by

transportation, possession with intent to sell or deliver cocaine, trafficking in

cocaine in excess of 400 grams by possession, and conspiracy to traffic in cocaine,

as well as his sentence including the order for costs must be vacated.

Respectfully submitted this the 14th day of August 2013.

By electronic submission

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Anne BleymanAttorney for Defendant-Appellant Eradio Velazquez-Perez1818 Martin Luther King, Jr. Blvd.,Suite 146Chapel Hill, North Carolina 27514-7415(919) 593-0782ABTigerLaw@earthlink.netN.C. State Bar No. 20860

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CERTIFICATE OF COMPLIANCE WITH N.C.R. APP. P. 28(j)(2)(B)

The undersigned hereby certifies that this Defendant-Appellant’s Brief is in compliance with Rule 28(j)(2)(B) of the North Carolina Rules of Appellate Procedure in that it is printed in 14 point Times New Roman font and contains no more than 8,750 words in the body of the Brief, footnotes and citations included, as indicated by the word-processing program used to prepare the Brief.

This the 14th day of August 2013.

By electronic submissionAnne BleymanAttorney for Defendant-Appellant

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CERTIFICATE OF FILING AND SERVICE

The undersigned hereby certifies that the original Defendant-Appellant’s Brief has been filed pursuant to Rule 26(a)(2) of the North Carolina Rules of Appellate Procedure by electronic means with the Clerk of the North Carolina Court of Appeals.

The undersigned further certifies that the foregoing Defendant-Appellant’s Brief has been served pursuant to Rule 26(c) of the North Carolina Rules of Appellate Procedure by electronic means upon the following parties:

Mr. Phillip K. Woods Special Deputy Attorney GeneralNorth Carolina Dept. of JusticeConsumer Protection DivisionPost Office Box 629 Raleigh, North Carolina 27602-0629(919) 716-6052pwoods@ncdoj.govN.C. State Bar No. 18439

Mr. Stuart M. (Jeb) SaundersAssistant Attorney GeneralNorth Carolina Dept. of JusticeConsumer Protection DivisionPost Office Box 629 Raleigh, North Carolina 27602-0629(919) 716-6031ssaunders@ncdoj.govN.C. State Bar No. 19614

Mr. W. Rob Heroy Goodman, Carr, Laughrun, Levine & Greene301 S. McDowell Street, Suite 602Charlotte, North Carolina 28204(704) 372-2770RHeroy@g oodmancarr.net N.C. State Bar No. 35339

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This the 14th day of August 2013.

By electronic submissionAnne BleymanAttorney for Defendant-Appellant

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Table of Contents for Appendix

Appendix Pages Appearing in brief at

1-34 David McMurrayVoir Dire Examination Testimony(MT Vol. I, pp 16-18, 23, 26-27,30-31, 39-43, 46-48, 56-57, 66-72,77-80; MT Vol. II, pp 85-86, 101-03) 11-13, 18,

21-23

35-53 David McMurrayDirect Examination Testimony(TT Vol. II, pp 117-22, 130-31,197-90; TT Vol. III, pp 265-66,270-72, 274, 276) 12-13,

18-20, 22

54-65 David McMurrayCross Examination Testimony(TT Vol. III, pp 281-20, 300-01) 11-13, 22

66-71 Tanya PallottaDirect Examination Testimony(TT Vol. IV, pp 395-97, 401-03) 12

72-74 Tanya PallottaCross Examination Testimony(TT Vol. IV, pp 404-06) 12

75-78 Elizabeth ReaganDirect Examination Testimony(TT Vol. IV, pp 411-14) 13

79-80 Sentencing(T Vol. V, pp 119-21) 30

81-87 N.C. Gen. Stat. § 7A-304 30-31

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1