Opinion
No. 07-1236.
Filed April 15, 2008.
Davidson County No. 05CRS56708-09.
Appeal by defendant from judgments entered 13 April 2007 by Judge John Holshouser, Jr. in Davidson County Superior Court. Heard in the Court of Appeals 2 April 2008.
Attorney General Roy Cooper, by Assistant Attorney General Joseph Finarelli, for the State. Charlotte Gail Blake, for defendant-appellant.
Sabas Ibarra ("defendant") appeals from judgments entered after a jury found him to be guilty of: (1) trafficking cocaine by transportation pursuant to N.C. Gen. Stat. § 90-95(h)(3)c; and (2) trafficking cocaine by possession pursuant to N.C. Gen. Stat. § 90-95(h)(3)c. We affirm the trial court's denial of defendant's motions to suppress and hold there is no error in the jury's verdicts or the judgments entered thereon.
I. Background
On 12 July 2005, Davidson County Sheriff's Detective Jerry Soles ("Detective Soles") was seated in his police cruiser parked in the median of Interstate 85 observing northbound traffic. Detective Soles observed a grey Dodge Durango following approximately one car length behind another vehicle at nearly seventy miles per hour. After waiting several seconds to see if the Durango increased its following distance, Detective Soles made the decision to stop the Durango for following too closely.
Detective Soles asked for and received defendant's license. Detective Soles asked defendant to accompany him to his police cruiser while he conducted a license check and asked defendant to stand by his vehicle's passenger side door.
Detective Soles called in defendant's driver's license and the vehicle's license plate number over his radio. In the ensuing conversation, defendant revealed, among other things, that he had flown from California to Atlanta, rented the Durango, and was traveling to Greensboro to visit his sister. The total duration of the investigative check and conversation with defendant lasted approximately ten minutes.
After releasing defendant with a warning, Detective Soles asked defendant if he had any questions. Defendant then asked Detective Soles for directions. Defendant began to walk away and Detective Soles asked defendant if he could ask him a couple of questions. Defendant turned and answered, "Yes." Detective Soles asked defendant if he had anything illegal in his vehicle. Defendant answered, "No." Detective Soles asked defendant if he could search the vehicle and defendant answered, "Sure, if you would like." Defendant relinquished the keys to his vehicle and permitted Detective Soles and his partner to search the vehicle. The search revealed three packages wrapped in Saran wrap and duct tape and covered with mustard. Detective Soles believed the packages contained cocaine and arrested defendant.
Assistant Special Agent-in-Charge Nancy Gregory ("Agent Gregory"), a forensic drug chemist for the State Bureau of Investigation ("SBI"), analyzed the contents of the packages seized from defendant's vehicle. Upon weighing and testing the contents in accordance with SBI protocols and procedures, Agent Gregory confirmed the packages consisted of 2,989 grams of cocaine, a Schedule II controlled substance.
On 15 November 2005, defendant was indicted for: (1) trafficking in cocaine by manufacture; (2) trafficking in cocaine by transport; and (3) trafficking in cocaine by possession. Prior to trial, defendant filed four motions to suppress any items seized from defendant's vehicle during the traffic stop and the ultimate discovery of cocaine in the vehicle. The trial court denied defendant's motions to suppress.
Defendant's trial began 10 April 2007. At the conclusion of the evidence, the State dismissed the trafficking in cocaine by manufacture charge. The jury found defendant to be guilty of the remaining charges. The trial court sentenced defendant to a minimum of 175 and a maximum of 219 months imprisonment on each remaining charge, with the sentences to run consecutively. The trial court also imposed a fine of $250,000.00. Defendant appeals.
II. Issues
Defendant argues the trial court erred when it: (1) denied his motions to suppress and (2) allowed Agent Gregory to testify.
III. Motions to Suppress
Defendant argues the trial court erred when it denied his motions to suppress because "there was not probable cause for the [traffic] stop, [defendant] was detained for too long after the traffic stop without grounds, and [defendant] did not give voluntary consent for the search." We disagree.
A. Standard of Review
The trial court's findings of fact regarding a motion to suppress are conclusive and binding on appeal if supported by competent evidence. This Court determines if the trial court's findings of fact support its conclusions of law. Our review of a trial court's conclusions of law on a motion to suppress is de novo.
State v. Edwards, ___ N.C. App. ___, ___, 649 S.E.2d 646, 648 (internal quotation and citations omitted), disc. rev. denied, 362 N.C. 89, 656 S.E.2d 281 (2007).
B. Analysis 1. Traffic Stop
"Where an officer makes a traffic stop based on a readily observed traffic violation, . . . such a stop will be valid if it was supported by probable cause." State v. Barnhill, 166 N.C. App. 228, 231, 601 S.E.2d 215, 217, disc. rev. denied, 359 N.C. 191, 607 S.E.2d 646 (2004) (citation omitted). "Probable cause is a suspicion produced by such facts as indicate a fair probability that the person seized has engaged in or is engaged in criminal activity." State v. Wilson, 155 N.C. App. 89, 94, 574 S.E.2d 93, 97-98 (2002), disc. rev. denied, 356 N.C. 693, 579 S.E.2d 97, cert. denied, 540 U.S. 843, 157 L. Ed. 2d 78 (2003). N.C. Gen. Stat. § 20-152 (2005) states:
(a) The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway.
(b) The driver of any motor vehicle traveling upon a highway outside of a business or residential district and following another motor vehicle shall, whenever conditions permit, leave sufficient space so that an overtaking vehicle may enter and occupy such space without danger, except that this shall not prevent a motor vehicle from overtaking and passing another motor vehicle. This provision shall not apply to funeral processions.
Here, Detective Soles testified at the hearing on defendant's motions to suppress that he saw defendant's vehicle following approximately one car length behind another vehicle while traveling at nearly seventy miles per hour. Detective Soles had probable cause to stop defendant for violating N.C. Gen. Stat. § 20-152. Wilson, 155 N.C. App. at 94, 574 S.E.2d at 97-98. Detective Soles's traffic stop was based on a "readily observed traffic violation" and was valid. Barnhill, 166 N.C. App. at 231, 601 S.E.2d at 218. The trial court did not err when it found Detective Soles had probable cause to conduct the traffic stop.
2. Length of Detainment
Detentions protected by the Fourth Amendment include brief investigatory detentions such as those involved in the stopping of a vehicle. Such a stop must be based on a reasonable suspicion, determined by looking at the totality of the circumstances. The scope of the detention must be carefully tailored to its underlying justification.
. . . .
The North Carolina Supreme Court has held that in order to further detain a person after a lawful stop, an officer must have a reasonable suspicion, based on specific and articulable facts, that criminal activity is afoot. These facts, as well as the rational inferences drawn from them, are to be viewed through the eyes of a reasonable, cautious officer, guided by his experience and training. Again, the court must look to the totality of the circumstances to determine if a reasonable suspicion exists to allow further delay.
Wilson, 155 N.C. App. at 96, 574 S.E.2d at 98-99 (citations and quotations omitted).
Here, Detective Soles testified at the hearing: (1) defendant appeared extremely nervous during the traffic stop; (2) he observed multiple cellular phones clipped to the driver's side sun visor, a sign indicative of criminal activity based on his training and experience; (3) he had suspicions about defendant's answers about his travel arrangements; and (4) he learned defendant had previously been involved in a narcotics investigation. These specific and articulable facts that criminal activity was afoot were sufficient to detain defendant after the lawful stop. Id. The trial court did not err when it found defendant's detention to be reasonable.
3. Consent
The consent needed to justify a search may be given by the person in apparent control of a vehicle's operation and contents at the time the consent is given. When seeking to rely on the consent given to support the validity of a search, the State has the burden of proving that the consent was voluntary. In determining whether this burden has been met, the court must look at the totality of the circumstances. Wilson, 155 N.C. App. at 97, 574 S.E.2d at 99 (citation and quotations omitted).
Here, Detective Soles testified at the hearing that defendant initiated the brief exchange after the traffic stop was concluded, answered Detective Soles's subsequent questions, and consented to the search of his vehicle. The trial court did not err when it found defendant "consented to the search of [his vehicle], and thus cannot complain that the search yielded three kilos of cocaine." The trial court's denial of defendant's motions to suppress is affirmed and this assignment of error is overruled.
IV. Agent Gregory's Testimony
Defendant argues the trial court erred when it allowed Agent Gregory to testify "when the State had failed to comply with the discovery requirements regarding expert witnesses." We disagree.
A. Standard of Review
"Whether a party has complied with discovery . . . and what sanctions, if any, to impose are questions addressed to the sound discretion of the trial court." State v. Heatwole, 344 N.C. 1, 15, 473 S.E.2d 310, 317 (1996) (citation omitted), cert. denied, 520 U.S. 1122, 137 L. Ed. 2d 339 (1997). "[D]iscretionary rulings of the trial court will not be disturbed on the issue of failure to make discovery absent a showing of bad faith by the State in its noncompliance with the discovery requirements." State v. McClintick, 315 N.C. 649, 662, 340 S.E.2d 41, 49 (1986) (citation omitted). "The choice of which sanction to apply, if any, rests in the sound discretion of the trial court and is not reviewable absent a showing of an abuse of that discretion." State v. Gladden, 315 N.C. 398, 412, 340 S.E.2d 673, 682, cert. denied, 479 U.S. 871, 93 L. Ed. 2d 166 (1986) (citations omitted). A trial court may be reversed for an abuse of discretion only upon "a showing that its ruling was so arbitrary that it could not have been the result of a reasoned decision." State v. Banks, 322 N.C. 753, 761, 370 S.E.2d 398, 404 (1988) (citation omitted).
B. Analysis
N.C. Gen. Stat. § 15A-903(a) (2005) states:
Upon motion of the defendant, the court must order the State to:
. . . .
(2) Give notice to the defendant of any expert witnesses that the State reasonably expects to call as a witness at trial. Each such witness shall prepare, and the State shall furnish to the defendant, a report of the results of any examinations or tests conducted by the expert. The State shall also furnish to the defendant the expert's curriculum vitae, the expert's opinion, and the underlying basis for that opinion. The State shall give the notice and furnish the materials required by this subsection within a reasonable time prior to trial, as specified by the court.
On 18 August 2005, the State notified defense counsel that it intended to use the SBI Lab Report in its prosecution. On 11 January 2007, the State disclosed to defendant a copy of a report prepared by Agent Gregory, which documented her analysis and determination that the substance seized from defendant's vehicle was 2,989 grams of cocaine, a schedule II controlled substance. Agent Gregory was listed as a witness on the State's witness list, which was furnished to defense counsel prior to trial. On 10 April 2007, the day defendant's trial began, the State disclosed Agent Gregory's training and credentials and the procedures utilized in testing the cocaine seized from defendant's vehicle. The State asserted it disclosed this information immediately after it was received from the SBI.
Prior to the State's examination of Agent Gregory, the trial court permitted defense counsel the opportunity to conduct a voir dire examination during which Agent Gregory testified about the documents available at the SBI Lab. On the second day of trial and before the cross-examination of Agent Gregory, the State furnished portions of the SBI Drug Quality Assurance Manual, the proficiency test of Agent Gregory, and portions of the SBI Drug Chemical Procedural Manual to defense counsel. Defense counsel declined the trial court's offer of additional time to review the materials. Defense counsel conceded that he had reviewed the materials sufficiently over the lunch break.
The United States Supreme Court has expressly stated, the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. Last minute or day of trial production to the defendant of discoverable materials the State intends to use at trial is an unfair surprise and may raise constitutional and statutory violations. We do not condone either non-production or a sandbag delivery of relevant discoverable materials and documents by the State.
State v. Castrejon, 179 N.C. App. 685, 695, 635 S.E.2d 520, 526 (2006) (internal quotations and citations omitted), disc. rev. denied, 361 N.C. 222, 642 S.E.2d 709 (2007). Here, the State turned over Agent Gregory's report three months prior to trial and turned over other discovery materials related to the report as soon as they were received. Defense counsel was afforded a voir dire of Agent Gregory and did not seek any continuance before or during the trial to obtain any information he may have deemed critical. Defendant has failed to show the trial court abused its discretion when it allowed Agent Gregory to testify. This assignment of error is overruled.
V. Ineffective Assistance of Counsel
Defendant argues Agent Gregory's testimony deprived him of his right to effective assistance of counsel. We disagree.
Our Supreme Court, in State v. Braswell, provided a two-part test to determine ineffective assistance of counsel claims. 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985).
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Id. (quoting Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984)). "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698. Here, defendant has failed to "show that counsel's performance was deficient." Braswell, 312 N.C. at 562, 324 S.E.2d at 248. Defendant alleges that "[b]ecause the State failed to comply with its discovery obligations, [defendant's] attorney did not have the information needed to prepare his defense in a timely manner as required." Defendant has failed to meet either part of the two-part Braswell test established by our Supreme Court. 312 N.C. at 562, 324 S.E.2d at 248. This assignment of error is overruled.
VI. Conclusion
Competent evidence supports the trial court's findings of fact, which support its conclusions of law. Edwards, ___ N.C. App. at ___, 649 S.E.2d at 648. The trial court did not err when it denied defendant's motions to suppress.
Defendant failed to show the trial court abused its discretion when it allowed Agent Gregory to testify. Defendant failed to support his ineffective assistance of counsel claim. Braswell, 312 N.C. at 562, 324 S.E.2d at 248.
Defendant received a fair trial, free from the prejudicial errors he preserved, assigned, and argued. We hold there is no error in the jury's verdicts or the judgments entered thereon.
No error.
Judges MCGEE and STEPHENS concur.
Report per Rule 30(e).