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No. COA07-1236 TWENTY-SECOND JUDICIAL DISTRICT
NORTH CAROLINA COURT OF APPEALS
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STATE OF NORTH CAROLINA)
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v.)FromDavidsonCounty
SABAS IBARRA)
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DEFENDANT APPELLANT’S BRIEF
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1
INDEX
QUESTIONS PRESENTED...... 1
STATEMENT OF THE CASE...... 2
STATEMENT OF THE FACTS...... 3
STATEMENT OF GROUNDS FOR APPELLATE REVIEW...... 7
ARGUMENT
I. The trial court erred in allowing SBI Agent Gregory to testify and give expert opinion when the State had failed to comply with the discovery requirements regarding expert witnesses. Allowing such testimony deprived Mr. Ibarra of his right to effective assistance of counsel. 7
II. The trial court erred in denying Mr. Ibarra’s motions to suppress because there was not probable cause for the stop, Mr. Ibarra was detained for too long after the traffic stop without grounds, and Mr. Ibarra did not give voluntary consent for the search 13
- Officer Soles did not have probable cause to stop Mr. Ibarra for following too closely. 14
- Officer Soles improperly detained Mr. Ibarra longer than needed for a traffic stop 17
- Mr. Ibarra did not consent to Officer Soles’ searching his vehicle 20
CONCLUSION...... 22
SIGNATURE OF COUNSEL...... 22
CERTIFICATE OF FILING AND SERVICE...... 23
TABLE OF AUTHORITIES
Cases
Bumper v. North Carolina, 391 U.S. 543 (1968) 22
Judd v. United States, 190 F.2d 649, 651 (D.C. Cir. 1951) 21
State v. Barden, 356 N.C. 316, 572 S.E.2d 108 (2002), cert. denied, 528 U.S. 1040 (2003) 14
State v. Barnhill, 166 N.C. App. 228, 601 S.E.2d 215
(2004) 14, 15
State v. Blankenship, 178 N.C. App. 351, 631 S.E.2d 208 (2006)11
State v. Branch, 306 N.C. 101, 291 S.E.2d 653 (1982) 9
State v. Castrejon, 179 N.C. App. 685, 635 S.E.2d 520, disc. rev. denied, 361 N.C. 222, 642 S.E.2d 709 (2007) 10
State v. Hamilton, 125 N.C. App. 396, 481 S.E.2d 100, disc. rev. denied, 345 N.C. 757, 485 S.E.2d 302 (1997) 18
State v. Hernandez, 170 N.C. App. 299, 612 S.E.2d 420 (2005) 17
State v. Ivey, 360 N.C. 562, 633 S.E.2d 459 (2006) 15
State v. Kincaid, 147 N.C. App. 94, 555 S.E>2d 294 (2001) 14
State v. Little, 270 N.C. 234, 154 S.E.2d 61(1967) 21
State v. Mahaley, 332 N.C. 583, 423 S.E.2d 58 (1992), cert. denied, 513 U.S. 1089 (1995) 14
State v. McClary, 157 N.C. App. 70, 577 S.E.2d 70, 577 S.E.2d 690, disc. rev. denied, 357 N.C. 466, 586 S.E.2d 466 (2003) 8
State v. McClendon, 350 N.C. 630, 517 S.E.2d 128 (1999) 15, 17
State v. Morocco, 99 N.C. App. 421, 393 S.E.2d 545 (1990) 20
State v. Payne, 327 N.C. 194, 394 S.E. 2d 158 (1990) 10
State v. Shaw, 293 N.C. 616, 239 S.E.2d 439 (1977) 8
State v. Smith, 346 N.C. 794, 488 S.E.2d 210 (1997) 14
State v. Steen, 352 N.C. 227, 536 S.E.2d 1 (2000), cert. denied, 531 U.S. 1167 (2001) 20
State v. Watkins, 337 N.C. 437, 446 S.E.2d 67 (1994) 18
State v. Wilson, 155 N.C. App. 89, 574 S.E.2d 93 (2002), disc. rev. denied, 356 N.C. 693, 570 S.E.2d 98, cert. denied, 540 U.S. 843 (2003) 15
Whren v. United States, 517 U.S. 806 (1996) 14
Statutory and other Authority
N.C. Gen. Stat. § 7A-27(b) 7
N.C. Gen. Stat. § 15A-902 11
N.C. Gen. Stat. § 15A-903 8
N.C. Gen. Stat. § 15A-1442 7
N.C. Gen. Stat. § 15A-1444(a) 7
N.C. Gen. Stat. § 15A-1446(d) 7
N.C. Gen. Stat. 20-152 15
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No. COA07-1236 TWENTY-SECOND JUDICIAL DISTRICT
NORTH CAROLINA COURT OF APPEALS
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STATE OF NORTH CAROLINA)
)
v.)FromDavidsonCounty
)
SABAS IBARRA)
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DEFENDANT APPELLANT’S BRIEF
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Questions Presented
- Whether the trial court erred in allowing SBI Agent Gregory to testify and give expert opinion when the State had failed to comply with the discovery requirements regarding expert witnesses? Whether allowing such testimony deprived Mr. Ibarra of his right to effective assistance of counsel?
- Whether the trial court erred in denying Mr. Ibarra’s motions to suppress because there was not probable cause for the stop, Mr. Ibarra was detained for too long after the traffic stop without grounds, and Mr. Ibarra did not give voluntary consent for the search?
Statement of the Case
Sabas Ibarra was tried before a jury on indictments for Trafficking in Cocaine by Manufacturing of 400 grams or more, Trafficking in Cocaine by Possession of 400 grams or more, and Trafficking in Cocaine by Transportation of 400 grams or more before the Honorable John L. Holshouser at the April 9, 2007 Session of Criminal Superior Court in Davidson County, North Carolina. R pp. 3-7
At the end of all evidence, the State asked the Court to dismiss the Trafficking in Cocaine by Manufacturing charge. R p. 56, T p. 410 The jury returned its verdicts of guilty of both remaining charges on April 12, 2007. R pp. 57, 58 Judge Holshouser sentenced Mr. Ibarra on April 13, 2007. He ordered that Mr. Ibarra serve a minimum of 175 months and a maximum of 219 months in the Department of Corrections on each charge. He further ordered that the sentences run consecutively to each other. R pp. 59-62, T pp. 490-491 In addition, the trial court ordered that Mr. Ibarra pay a fine of $250,000.00 in each case. R pp. 59-62, T pp. 490-491
Mr. Ibarra gave oral notice of appeal on April 13, 2007. T pp. 494-495 The Appellate Defender appointed appellate counsel on April 24, 2007. R p. 67 The trial court extended time both for the production of the transcript and the serving of the proposed record on appeal. R pp. 69, 72 The parties settled the record on appeal by stipulation on September 25, 2007. R p. 85
The record on appeal was mailed on October 10, 2007 and filed and docketed on October 11, 2007. R pp. 86, 1
Statement of the Facts
On July 12, 2005, Officer Soles was in his patrol car in the median of I-85 facing the northbound lane near mile marker 93 in DavidsonCounty. He noticed a Dodge Durango that he believed was traveling too closely to the car in front of it. He stopped the Durango for following too closely. T pp. 8-11
Sabas Ibarra was driving the Durango, and he stopped when the officer put on his blue lights. Mr. Ibarra lived in California and had flown into Atlanta. He was traveling to Greensboro to visit his sister Morena. He was driving a rental car, and produced a valid rental contract and driver’s license. Mr. Ibarra told the officer his sister’s name and told him where she used to live in Georgia. She had recently moved to Greensboro, and he did not know her new address. He planned to return to Atlanta the next day. T pp. 27, 52-54
Officer Soles asked Mr. Ibarra back to his patrol car. Mr. Ibarra could not sit in the car because there was a bag of dog food in the front seat and a police dog in the back. T p. 7 Mr. Ibarra stood by the car and leaned in the window to answer questions. Mr. Ibarra chewed on the long grass on the shoulder. He sometimes looked the officer directly in the eye when answering questions and sometimes looked at the traffic. T pp. 17-22
After Officer Soles determined that Mr. Ibarra’s license and registration were valid, and while Mr. Ibarra was talking to the officer, the officer contacted the El PasoIntelligenceCenter {EPIC), a drug enforcement agency funded organization that gives information regarding possible investigations. The officer learned that Mr. Ibarra had been the subject of a narcotics investigation in 1996. It was not clear whether Mr. Ibarra was a witness, a target of the investigation, or involved in some other manner. T pp. 23, 33, 60-61 Officer Soles attempted to obtain further information about the 1996 investigation, but the phone number provided was not working. T pp. 23-24
When Officer Soleslearned of the 1996 investigation, he contacted his partner, who had also been in the median at the same place as Officer Soles. Officer Soles had decided he wanted to search Mr. Ibarra’s vehicle.T pp. 33, 63-64 Officer Soles handed Mr. Ibarra his paperwork and told him to be careful. He did not issue any written citation for traveling too closely, but only a warning. As Mr. Ibarra started to walk away, he asked the officer for directions. T pp. 27, 58, 65-68
Mr. Ibarra again began to walk away. Officer Soles asked if he could ask Mr. Ibarra a question. Mr. Ibarra stated that he would answer questions. Officer Soles asked whether he had anything illegal in the car, such as drugs, cocaine or large amounts of cash. Mr. Ibarra stated that he did not. Officer Soles then asked if he could search. Mr. Ibarra said: “Sure, if you like.” T pp. 26-29,65-70,299-300
The officer found a book bag in the rear of the car and asked specifically if he could search it. Mr. Ibarra said yes. Officer Soles did not ask specifically if could search the vehicle. T pp. 71-72 He continued searching and noticed some loose carpet. He lifted it and found several packages. Later testing showed that the packages contained 6.5 lbs. of cocaine. T pp. 26-29
Mr. Ibarra filed several motions to suppress any evidence found as a result of the traffic stop and subsequent search. R pp. 18-30 The Honorable W. Erwin Spainhour conducted an evidentiary hearing on February 27, 2007. The trial court orally denied the Motions to Suppress in open court that day. T pp. 1-103 He entered his written order with findings of fact and conclusions of law on March 7, 2007. R pp. 32-36
Mr. Ibarra’s trial began on April 10, 2007 before the Honorable John L. Holshouser, Jr. Mr. Ibarra renewed his objections from the motions to suppress and made a continuing objection to every reference to the stop, search and detention. T p. 221
In addition to the motions to suppress, Mr. Ibarra made requests for voluntary discovery and motions for discovery, requesting detailed information regarding any testing and protocols used on the substances found in the Durango. R pp. 13-17
Prior to trial, the State did not identify any expert witnesses or supporting documentation that it intended to use at trial. The State did not file a notice of intent to use an expert witness although it did file notice that it would use Mr. Ibarra’s prior statements, the officer’s notes and Mr. Ibarra’s prior criminal record, among other items. At 5:11 pm on Monday evening before the start of the trial on Tuesday morning, the State faxed a two page document regarding the training and some of SBI Agent Gregory’s credentials to Mr. Ibarra’s attorney. Mr. Ibarra objected when the State called Special Agent Nancy Gregory to testify regarding the testing done on the substances found in the Durango. T pp. 319-334
The State did provide the SBI lab report prepared by Agent Gregory to Mr. Ibarra in January 2007. T p. 342 The State listed Agent Gregory on its witness list. T p. 348 The trial court allowed Agent Gregory to testify, finding that Mr. Ibarra’s attorney, as a former prosecutor, was familiar with the protocols used in testing narcotics. The trial court found that had Mr. Ibarra needed this information, he could have requested it again before trial started and requested a continuance. The trial court found that Mr. Ibarra was not prejudiced by allowing Agent Gregory to testify. T p. 348, R pp. 40-41
Agent Gregory testified that the substance found in the Durango was 2989 grams, or 6.5 lbs., of cocaine. T pp. 385, 390 During Agent Gregory’s testimony, the State informed the trial court that it had just received a fax from the SBI with information from the Drug Quality Assurance Manual, Agent Gregory’s curriculum vitae and other information. Mr. Ibarra informed the trial court that this did not contain all of the information requested in discovery. T p. 395
Mr. Ibarra moved to dismiss the charges against Mr. Ibarra based on the discovery violations and the insufficiency of the evidence. The trial court dismissed the trafficking by manufacture charge and denied the motion with respect to the other two charges. Mr. Ibarra did not present any evidence. T pp. 410-412
STATEMENT OF GROUNDS FOR APPELLATE REVIEW
Mr. Ibarra appeals his trafficking convictions as a matter of right from his conviction after a jury trial in Superior Court. N.C. Gen. Stat. §§ 7A-27(b); N.C. Gen. Stat. § 15A-1442; N.C. Gen. Stat. § 15A-1444(a); and N.C. Gen. Stat. § 15A-1446(d).
Argument
I.THE TRIAL COURT ERRED IN ALLOWING SBI AGENT GREGORY TO TESTIFY AND GIVE EXPERT OPINION WHEN THE STATE HAD FAILED TO COMPLY WITH THE DISCOVERY REQUIREMENTS REGARDING EXPERT WITNESSES. ALLOWING SUCH TESTIMONY DEPRIVED MR. IBARRA OF HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.
Assignments of Error 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 49, 50, 51, 53
R pp. 40-41, 79-83
T pp. 319-373
Standard of Review:This Court’s reviews a trial court’s order regarding sanctions for failing to comply with discovery under an abuse of discretion standard. State v. Shaw, 293 N C. 616, 239 S.E.2d 439 (1977); State v. McClary, 157 N.C. App. 70, 577 S.E.2d 690, disc. rev. denied, 357 N.C. 466, 586 S.E.2d 466 (2003).
North Carolina General Statute 15A-903(a)(2) requires the State to:
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.
Our Supreme Court has recognized the important interests protected by requiring that information be provided in a timely manner. In State v. Branch, the Court held:
The constitutional guarantees of due process, assistance of counsel and confrontation of witnesses unquestionably include the right of a defendant to have a reasonable time to investigate and prepare his case. No precise time limits are fixed, however, and what constitutes a reasonable length of time for the preparation of a defense must be determined upon the facts of each case.
State v. Branch, 306 N.C. 101, 104-05, 291 S.E.2d 653, 656 (1982).
Here, the State at no time gave Mr. Ibarra notice of its intent to call an expert witness. At the administrative hearing on August 18, 2006, the State did notify Mr. Ibarra that it intended to use his prior statements, the officer’s notes, and Mr. Ibarra’s prior criminal record. The State also gave notice of its intent to introduce other evidence, including the SBI lab report. Mr. Ibarra promptly objected to the SBI report and the chain of custody regarding the substances found in the Durango. Still, the State did not give any notice that it intended to call an expert witness. T pp. 320-321
In addition, the original lab report in this case was not prepared by Agent Gregory, but by another agent. T p. 323 On April 10, 2007, just prior to the start of trial, the State faxed to Mr. Ibarra’s attorney a letter dated November 29, 2006 stating that the original agent had been placed on administrative leave. The letter also indicated that Agent Gregory prepared an additional lab report. Although this information was known for some time, it was not provided to Mr. Ibarra until just prior to the time scheduled to pick a jury. T p. 324
The State did not provide the expert witness information as required in a timely manner prior to trial. Regardless of whether the District Attorney trying this case just received the information it forwarded to Mr. Ibarra’s attorney, it is clear that the State, as a whole, failed to provide required discovery material within a reasonable amount of time prior to trial.
Permitting Agent Gregory to testify under these circumstances allows the State to avoid its statutory discovery obligations. The District Attorney had an obligation to obtain the information regarding an expert witness, particularly the information regarding the second SBI agent involved, and provide that information to Mr. Ibarra at a reasonable time prior to trial. The District Attorney cannot wait until the very last minute to obtain the requested information from known sources, such as the SBI or an officer, and then provide it to a defendant on the eve of or during trial.
This Court has held that it does “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, ___, 635 S.E.2d 520, 526, disc. rev. denied, 361 N.C. 222, 642 S.E.2d 709 (2007), citingwithapproval, State v. Payne, 327 N.C. 194, 202, 394 S.E.2d 158, 162 (1990). Unlike the situation where a witness cannot be located with due diligence until just before trial so that the defendant is notified at the last minute, the District Attorney in this case could have obtained the name of the relevant SBI agents and provided all of the requested protocols and other information to Mr. Ibarra well before the start of trial to give his attorney adequate time to prepare his defense. Because Mr. Ibarra requested discovery and the State provided discovery, “the discovery is deemed to have been made under an order of the court”. N.C. Gen. Stat. § 15A-902(b).
In State v. Blankenship, 178 N.C. App. 351, 631 S.E.2d 208 (2006), this Court held that the trial court abused its discretion in allowing an SBI agent to testify regarding manufacturing methamphetamine when the State failed to provide prior notice to the defendant that it intended to call an expert witness. The fact that the State did not know the name of specific agent that would be called until just before trial did not justify the State’s failure to provide prior notice. “Although the State may not have known the specific witness it would be calling, it did know, prior to the morning of defendant’s trial, that it would be calling someone from the State Bureau of Investigation to testify concerning the process of manufacturing methamphetamine.” Id. at ___, 631 S.E.2d at ___. Because the State failed to comply with the discovery statutes, this Court ordered a new trial.
Just as in Blankenship, the State in this case knew that it would need an SBI agent to testify regarding the testing, protocols and substances found in the Durango. On December 7, 2005, Mr. Ibarra filed a written objection to the introduction of the SBI lab report. R p. 12 At this point, sixteen months before the start of the trial, the State knew it would have to call an expert witness from the SBI at trial. Also in December, 2005, the Mr. Ibarra fileda request for voluntary discovery and a detailed Motion for Discovery requesting, among other items, detailed information regarding the laboratory protocols and quality assurance materials. R pp. 13-17
Despite the fact that the State knew it would need to expert testimony at Mr. Ibarra’s trial, it failed to ever provide notice prior to trial of the expert. The State provided a lab report signed by Agent Gregory in January, 2007, but did not designate her as an expert or provide any of the other supporting documentation. At 5:11 pm, on the eve of trial, the State faxed a two page document to Mr. Ibarra’s attorney with some information regarding Agent Gregory. It was only during the trial itself that the State provided any of the laboratory protocols or quality assurance materials to Mr. Ibarra.
Mr. Ibarra was prejudiced by the State’s failure to follow the discovery statute. He was entitled to the information requested to allow him to assess the strengths and weaknesses in the case. He was not able to obtain possibly relevant information regarding the first agent and the reasons for her administrative leave. That agent had control over the substances found in the Durango, and Mr. Ibarra did not have time to learn whether there might have been information useful to his defense. For example, on April 10th, Mr. Ibarra learned that the first SBI analyst performed a “Marquis test and it came out to a salmon color three times”. T p. 333 Yet, when the test was performed later, there was no significant reaction. Id.
Because the State failed to comply with its discovery obligations, Mr. Ibarra’s attorney did not have the information needed to prepare his defense in a timely manner as required. The only appropriate sanctions at that point were to not allow the testimony of Agent Gregory or to dismiss the charges. Ordering that the discovery be produced was not sufficient as the case was already in trial. A continuance would not be appropriate as Mr. Ibarra had remained in custody after the State requested, and obtained, a significant increase in his bond after his suppression motions were denied. The trial court abused its discretion and prejudiced Mr. Ibarra by allowing Agent Gregory to testify despite the State’s failure to comply with the discovery statute.