No. COA04-311TWENTY-SIXTH JUDICIAL DISTRICT

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No. COA04-311TWENTY-SIXTH JUDICIAL DISTRICT

NORTH CAROLINA COURT OF APPEALS

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STATE OF NORTH CAROLINA)

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v.)From Mecklenburg

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MASOUD RASHIDI)

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DEFENDANT-APPELLANT’S BRIEF

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QUESTIONS PRESENTED

1.Whether the trial court abused its discretion in denying Mr. Rashidi’s motion for mistrial and request for a curative instruction when the prosecutor displayed a chart to the jury during closing argument referring to highly prejudicial matters outside the record?

2. Whether the trial court erred or abused its discretion in permitting Agent McDavid to testify that Mr. Rashidi requested an attorney during police interrogation?

3.Whether the trial court erred in denying the renewed motion to suppress as, due to falsehoods in the affidavit, the affidavit failed to establish probable cause?

4.Whether the evidence was insufficient to establish trafficking in opium?

STATEMENT OF THE CASE

On 6 December 1999, the Mecklenburg County Grand Jury returned bills of indictment charging Masoud Rashidi with trafficking in drugs, possession of drug paraphernalia, and maintaining a dwelling. (Rp. 5-6)[1] The case came on for trial at the 12 August 2003 Criminal Session of Mecklenburg County Superior Court, the Honorable Yvonne Mims Evans presiding. On 14 August 2003, the jury acquitted Mr. Rashidi of maintaining a dwelling and returned guilty verdicts on trafficking in drugs and possession of drug paraphernalia. (Rp. 43-44; Tp. 493) On the same date, Judge Evans sentenced Mr. Rashidi to concurrent terms of two hundred twenty-five (225) to two hundred seventy-nine (279) months on trafficking and forty-five (45) days on possession of drug paraphernalia. (Rp. 46-49) From the judgments and sentences imposed on 14 August 2003, Mr. Rashidi entered Notice of Appeal. (Tp. 502)

STATEMENT OF GROUNDS FOR APPELLATE REVIEW

The grounds for review are a final judgment of the Superior Court under N.C.G.S. §15A-1444(a).

STATEMENT OF FACTS

According to the affidavit in support of a search warrant drafted by United States Customs Special Agent Patrick McDavid, on 8 November 1999, United States Custom Inspector M. Gattulli opened a package of Iranian origin at the United States Customs Service International Mail Facility at JFK International Airport. The package was addressed to “M. Rashidi” at 2408 Margaret Wallace Road in Matthews, North Carolina. The package contained two large decorative plaques or pictures coated with fiberglass that seemed unusually thick. Inspector Gattulli inserted a probe into one of the pictures. A substance adhering to the probe was determined to be opium. “The opium was kept within the picture to maintain the integrity of the parcel.” McDavid was notified of the package on 9 November 1999. A New York agent shipped it to him for further action. Agent McDavid determined from Department of Motor Vehicles records that Masoud Rashidi resided at the Matthews address. McDavid arranged for a controlled delivery of the package. (Rp. 18-20) In reliance on the affidavit, the United States District Court for the Western District of North Carolina issued an anticipatory search warrant on 16 November 1999 authorizing seizure of the estimated 412 grams of opium upon delivery of the package. (Rp. 13-15)

On 17 November 1999, McDavid, United States Postal Inspector Wesley King, and four Charlotte-Mecklenburg police officers executed the controlled delivery. (Tp. 151) No one was home on their first attempt. (Tp. 204-205) Later that day, the agents saw a red Mustang drive up and park in the driveway. The driver exited the car and entered the house. (Tp. 155) Inspector King rang the doorbell. A man answered the door and accepted the package. (Tp. 206) Inspector King radioed the surveillance team that the man matched Mr. Rashidi’s driver’s license photo. (Tp. 243)

The agents waited five minutes to allow Mr. Rashidi an opportunity to open the package. (Tp. 159, 371) Agent McDavid then knocked on the door and yelled loudly, “‘Police with a search warrant.’” Agents forced the door open with a battering ram when they received no response. (Tp. 160-161, 187)

Mr. Rashidi stood in a hallway holding a cell phone. (Tp. 161) Officers yelled at him to get his hands up. He stared at the officers in apparent shock and did not respond to the request. (Tp. 162, 189, 245) Within seconds, officers pushed him to the floor, frisked him, seized a film canister from his person, and handcuffed him. (Tp. 191, 246-247, 252) Officers located the package on the stove. The package was open, empty, and surrounded by shattered pieces of pictures. (Tp. 168, 351) Agent McDavid and Charlotte-Mecklenburg Police Detective James Kolbay led Mr. Rashidi into a bedroom. (Tp. 162-163) Detective Kolbay advised Mr. Rashidi of his Miranda rights and obtained a verbal waiver. (Tp. 163, 184, 249)

As the package lay empty, Detective Kolbay asked Mr. Rashidi whether the package had contained opium. (Tp. 251) Mr. Rashidi responded that he did not use heroin, cocaine, or alcohol, but that he had used opium before. (Tp. 164) He said that he had been expecting a package of pictures from his brother-in-law Ramin Sarmist in Iran. Mr. Rashidi said that Mr. Sarmist had previously sent pictures and rugs to sell in the Charlotte area. (Tp. 164-165)

When Mr. Rashidi opened this package, he realized from its odor that it contained opium. He had not expected Mr. Sarmist to send opium. He then heard a knock on the door and thought that his wife and child were coming home. As he did not want his child to see the opium, he removed it from the package and hid it in a bedroom. (Tp. 166, 251) Mr. Rashidi got up and pointed to a desk in another bedroom. Police recovered a United States Customs Evidence Bag, containing 381.93 grams of opium, from a trash bag of clothes under the desk. (Tp. 252, 389)

Mr. Rashidi said that he could prove he did not ask Mr. Sarmist to send opium by calling Mr. Sarmist. (Tp. 167, 254) Detective Kolbay thought that Mr. Rashidi would incriminate himself during a conversation and allowed the call to be placed. (Tp. 304, 365) Mr. Rashidi complied with Agent McDavid’s request to talk to Mr. Sarmist in Farsi, rather than their native Kurdish, as McDavid had a confidential informant who could translate Farsi. (Tp. 167) Police tape recorded the conversation. (Tp. 171)

Mr. Rashidi reported to McDavid and Kolbay after the call that Mr. Sarmist did not admit sending opium. Since neither McDavid nor Kolbay spoke Farsi, they had no idea what the two had discussed. (Tp. 107-108) They continued to question Mr. Rashidi. When Mr. Rashidi asked for a lawyer, McDavid and Kolbay ended the interrogation. (Tp. 172-173)

Police recovered an item from a bedroom which Kolbay thought was an opium pipe. They recovered a large safety pin wrapped in opium, small hand-held scales, and approximately $1,600 in cash from the Mustang (Tp. 254-255, 308-309, 393, 417-418, 426) The film canister seized from Mr. Rashidi’s person contained a trace amount of opium. (Tp. 393) Police found empty mailing boxes in the carport that appeared to have been addressed by the same person who wrote the address on the instant package. (Tp. 208-209)

As to the 381.93 grams of opium, McDavid and Kolbay theorized that customs agents in New York opened the package, broke the picture frames, removed opium from inside the frames, placed the opium in a Customs Evidence Bag, and stuck the evidence bag and broken picture frames back into the package. (Tp. 168, 346, 374) Neither Kolbay nor McDavid had first hand knowledge of what had been in the box before it was opened in New York or before Mr. Rashidi opened it. (Tp. 148-149, 345-346)

Police waited until 4 August 2003 to translate the tape recorded call. (Tp. 218) In the call, Mr. Sarmist told Mr. Rashidi that he gave two gleams (rugs) and one moharragh (portrait) to the Teheran post office to be boxed and mailed. Mr. Rashidi told him that the package contained two pictures and “something unreal” instead. Mr. Sarmist suggested that someone was trying to frame him. Mr. Rashidi told Mr. Sarmist that he had to find out who prepared and sent the package. (Tp. 227-230)

Detective Kolbay testified that he was subpoenaed to appear on this case on 11 June 2001. (Tp. 316) Over objection (Tp. 316-317), Kolbay testified that Mr. Rashidi did not appear in court that day and a warrant issued for his arrest. He next saw Mr. Rashidi on 9 December 2002 when the arrest warrant was still outstanding. (Tp. 317)

The jury instruction conference was held after the State rested its case. Defense counsel tendered a proposed jury instruction that addressed the reasons why Mr. Rashidi went to Canada after his arrest. (Tp. 436-438) Counsel noted that no evidence had yet been introduced that Mr. Rashidi went to Canada and that the instruction would not be needed if Mr. Rashidi elected not to testify. (Tp. 438-439) The defense tendered the instruction as it anticipated that the State would argue in closing that Mr. Rashidi fled to Canada because he was guilty. The instruction set forth the defense contention that Mr. Rashidi went to Canada due to the State’s failure to produce exculpatory evidence. (Tp. 439-440) The court refused the instruction, but stated that defense counsel could argue the matter in closing. (Tp. 442) The defense asked the prosecutor to stick to the evidence in closing argument and reminded him that there was no testimony yet that Mr. Rashidi went to Canada. The prosecutor said that he would be “mindful” of the evidence admitted and not “introduce [any], unless [defense counsel] puts up evidence of the defendant leaving, and his reasons why.” (Tp. 459)

Mr. Rashidi elected not to testify. (Tp. 461) The defense rested without presenting any evidence (Tp. 464) and the case proceeded to closing arguments. (Tp. 465)

The prosecutor displayed sixteen typed 8.5”x11” sheets to the jury during his closing argument. (Tp. 465) Panel #15 read:

D went to Canada when he knew he had a trial court date back on June 11, 2001. He knew that he needed to get out of the U.S. because he knew that he was guilty. (Tp. 465)

Panel #16 read:

D didn’t return to the U.S. and turn himself in, he hid. (sound familiar) Officer Kolbay had to find him and arrest him, to make sure he would make his next court date. (Tp. 466)

Defense counsel objected to Panel #15 and #16 during the closing argument and moved for a mistrial following the argument. (Tp. 465, 466) The court denied the motion. (Tp. 470) The defense requested that a curative instruction be given advising the jury that it had been shown information during closing argument that did not pertain to the case. (Tp. 469) The court denied the request. (Tp. 470)

ARGUMENT

I.THE TRIAL COURT ABUSED ITS DISCRETION IN

DENYING MR. RASHIDI’S MOTION FOR MISTRIAL

AND REQUEST FOR A CURATIVE INSTRUCTION WHEN

THE PROSECUTOR DISPLAYED A CHART TO THE JURY

DURING CLOSING ARGUMENT REFERRING TO HIGHLY

PREJUDICIAL MATTERS OUTSIDE THE RECORD.

Assignments of Error Nos. 1-2, Rp. 54

A trial court is required to

declare a mistrial upon the defendant’s motion if there occurs during the trial an error or legal defect in the proceedings, or conduct inside or outside the courtroom, resulting in substantial and irreparable prejudice to the defendant’s case.

N.C.G.S. §15A-1061 (2003). A mistrial was required herein when the prosecutor placed before the jury in closing argument matters not in evidence couched in such a way as to vitiate Mr. Rashidi’s not guilty plea. The comments were hardly inadvertent, as they appeared on typed sheets prepared in advance of the argument. The prosecutor posted Panels #15 and #16 with defense counsel’s warnings about the improprieties of such an argument still ringing in his ears and his own promise not to mention the matter barely out of his mouth. The trial court’s failure to recognize the substantial and irreparable prejudice to Mr. Rashidi from the unethical and improper closing argument constituted an abuse of discretion requiring reversal of his convictions. State v. Jordan, 149 N.C. App. 838, 844, 562 S.E.2d 465, 468 (2002).

Due to jurors’ beliefs that prosecutors refrain “from improper methods calculated to produce a wrongful conviction” and their tendency to accord “much weight” to improper prosecutorial closing arguments “when they properly should carry none,” Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314, 1321 (1935), bodies ranging from the Legislature, State Bar, and appellate courts have repeatedly formulated specific guidelines for closing arguments to ensure that defendants receive fair trials. See N.C.G.S. §15A-1230(a); The Revised Rules of Professional Conduct of the North Carolina State Bar, Rule 3.4(e)(2003). Too often, however, those pronouncements fall on the deaf ears of prosecutors who “intentionally ‘push the envelope’ in their jury arguments in the belief that there will be no consequences for doing so.” State v. Jones, 355 N.C. 117, 127, 558 S.E.2d 97, 104 (2002).

It is well established that prosecutors are allowed only

to argue the law and the facts in evidence and present all reasonable inferences to be drawn therefrom. State v. Craig, 308 N.C. 446, 454, 302 S.E.2d 740, 745, cert. denied, 464 U.S. 908, 78 L.Ed.2d 247, 104 S.Ct. 263 (1983) (emphasis added) (citations omitted). But the law is clear that during a closing argument to the jury an ‘attorney may not...make arguments on the basis of matters outside the record....” N.C. Gen. Stat. §15A-1230(a)(1999). Likewise, our courts have consistently refused to tolerate ‘remarks not warranted by either the evidence or the law, or remarks calculated to mislead or prejudice the jury.’ State v. Smith, 352 N.C. 531, 560, 532 S.E.2d 773, 791-92 (2000), cert. denied, 532 U.S. 949, 149 L.Ed.2d 360 (2001); State v. Sanderson, 336 N.C. 1, 15-16, 442 S.E.2d 33, 42 (1994); State v. Wilson, 335 N.C. 220, 224-225, 436 S.E.2d 831, 834 (1993); State v. Anderson, 322 N.C. 22, 37, 366 S.E.2d 459, 468 (1988).

State v. Jordan, supra, 149 N.C. App. at 842, 562 S.E.2d at 465.

If a prosecutor decides that certain facts should come before the fact-finder to insure that a proper verdict is reached, he must elicit evidence to that regard. If he fails to do so, he cannot seize upon closing argument to bring the matter to the jury’s attention. State v. Eagle, 233 N.C. 218, 220, 63 S.E.2d 170, 172-173 (1951). Our courts have “repeatedly stressed that counsel may not ‘travel outside the record’ by arguing facts or matters not included in the evidence of record.” State v. Allen, 353 N.C. 504, 509, 546 S.E.2d 372, 376 (2001). Such arguments run afoul of multiple prohibitions, for they cast the prosecutor in the role of an unsworn witness, deprive the defendant of the opportunity to challenge the unsworn assertions through evidence, and deprive the verdict of reliability.

During the jury instruction conference, the prosecutor, defense counsel, and trial judge discussed the status of the evidence regarding Mr. Rashidi’s post-arrest activities. While Detective Kolbay testified that Mr. Rashidi failed to appear in court on 11 June 2001, that a warrant issued for his arrest, and that Kolbay saw Mr. Rashidi on 9 December 2002 when the warrant was still outstanding (Tp. 317), neither Kolbay nor any other witness testified that Mr. Rashidi went to Canada after his arrest, that he hid in Canada to avoid prosecution, that Kolbay arrested him in Canada, or that Kolbay even arrested him. (Tp. 438, 458-459) The only witness expected to testify about the Canadian episode was Mr. Rashidi, who awaited settlement of the jury instructions before deciding whether to testify. (Tp. 439)

During the conference, defense counsel expressed his fear that the prosecutor intended to argue in closing that Mr. Rashidi went to Canada because he knew he was guilty. (Tp. 440) He asked that the prosecution “be mindful” of the lack of evidence “when it makes its closing arguments and stick to the facts of the record.” (Tp. 459) The prosecutor promised to be “mindful” of what evidence had been admitted and not introduce anything in closing argument not supported by evidence. (Tp. 459) When Mr. Rashidi elected not to testify (Tp. 461), it was clear to the trial court, prosecutor, and defense that no evidence about Canada or Mr. Rashidi’s reasons for going to Canada had been placed before the jury.

During his closing argument, the prosecutor tacked sixteen typed bullet-points onto a blackboard six feet in front of the jury box in full view of all of the jurors. (Tp. 466) Despite the wholesale lack of evidence regarding Mr. Rashidi post-arrest activities and the reasons therefor, Panel #15 stated that Defendant went to Canada “because he knew that he was guilty.” (Tp. 465) Panel #16 recited that Defendant hid rather than turning himself in and that Kolbay had to find and arrest him. (Tp. 466) The defense timely objected and Panels #15 and #16 were removed from the blackboard. (Tp. 465) Nothing in the record suggests that a curative instruction was contemporaneously given.

Immediately following the argument, the trial court permitted counsel to place his objection on the record. (Tp. 465) Counsel recited what had transpired and moved for a mistrial. (Tp. 465-466) In response, the prosecutor stated that the jury had not had as much time to read Panels #15 and #16 as it had to read other panels and speculated that no juror read them. (Tp. 467) He argued that the court’s instruction on closing arguments sufficiently cured his misconduct (Tp. 468), although the court had failed to instruct the jury to rely on its own recollection of the evidence if the closing arguments strayed from the facts. (Tp. 464) Defense counsel pointed out that he had been able to read those panels during the argument and argued that the jury was tainted if even one juror read them. Counsel asked, in the event a mistrial was denied, that the court not instruct the jury on flight and instead give a curative instruction that it had been presented with information during closing argument that did not pertain to this case. (Tp. 466-467, 469) The court denied the motion for mistrial on the ground that it did not “know how long the jury looked at it.” The court agreed not to give a flight instruction. With no explanation, the court denied the request for a curative instruction. (Tp. 470)

“It is well settled that a motion for mistrial and the determination of whether the defendant’s case has been irreparably and substantially prejudiced is within the trial court’s sound discretion.” State v. McNeill, 349 N.C. 634, 646, 509 S.E.2d 415, 422-423 (1998), cert. denied, 528 U.S. 838, 120 S.Ct. 102, 145 L.Ed.2d 87 (1999). “Abuse of discretion occurs when the trial court’s decision is ‘“so arbitrary that it could not have been the result of a reasoned decision.’” State v. Hyde, 352 N.C. 37, 46, 530 S.E.2d 281, 288 (2000)(quoting State v. Barts, 316 N.C. 666, 682, 343 S.E.2d 828, 839 (1986), cert. denied, 531 U.S. 114, 121 S.Ct. 862, 138 L.Ed.2d 775 (2001).” State v. Diehl, 353 N.C. 433,437, 545 S.E.2d 185, 188 (2001).

As defense counsel was able to read the two panels during the time they were posted, the court’s ruling, which suggested that the jury had not had sufficient time to read them, was arbitrary and unreasonable. Common sense dictates that one or more jurors joined defense counsel in reading material positioned six feet directly in front of them. (Tp. 466) The court engaged in no analysis whatsoever as to how Mr. Rashidi could receive a fair trial after such inflammatory material was placed before the jury, since the unproved assertions that Mr. Rashidi fled to Canada because he knew he was guilty stood in stark contrast to Mr. Rashidi’s defense that he never asked to be sent opium. The court wholly ignored how calculated the prosecutor had acted in exposing the jury to such prejudicial matters. The court gave no reason to justify its refusal to instruct or admonish the jury.