No. COA04-518TWENTY-SIXTH JUDICIAL DISTRICT

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No. COA04-518TWENTY-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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JOSE SANCHEZ)

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DEFENDANT-APPELLANT’S BRIEF

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QUESTIONS PRESENTED

1.Whether the trial court erred, abused its

discretion, or committed plain error in

permitting Evelyn Sanchez and Father Joseph

Elzi to testify to matters relating to Ms.

Sanchez’s alleged confession as, due to

canonical limitations on Father Elzi’s

testimony given effect by the trial court,

Mr. Sanchez was deprived of a fair trial

and unable to adequately confront and

cross-examine the witnesses against him?

2.Whether the trial court erred in imposing

an aggravated range sentence in the absence

of a jury finding, consent by Mr. Sanchez

to judicial fact-finding, or a stipulation

by Mr. Sanchez that a factor supporting

aggravated range sentencing had been proven

beyond a reasonable doubt?

STATEMENT OF THE CASE

On 21 April 2003, the Mecklenburg County Grand Jury returned bills of indictment charging Jose Sanchez with felonious incest, statutory rape of person fifteen years old, and taking indecent liberties with children. (Rp. 8-10)[1] The case came on for trial at the 19 August 2003 Criminal Session of the Mecklenburg County Superior Court, the Honorable Richard D. Boner presiding. On 26 August 2003, the jury acquitted Mr. Sanchez of felonious incest and statutory rape and convicted him of taking indecent liberties with children. (Rp. 55-58) On the same date, Judge Boner sentenced Mr. Sanchez to an aggravated term of twenty to twenty-four months imprisonment. (Rp. 60-63) From the judgment and sentence imposed on 26 August 2003, Mr. Sanchez entered Notice of Appeal. (Rp. 64-65)

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 THE FACTS

Jose Sanchez, his wife Ana Sanchez Granatos, and their two daughters lived in El Salvador. In 1989, Mrs. Sanchez moved to Houston, Texas to escape warfare in El Salvador. (Vol. IIp. 696; Vol. IIIp. 49-50) In 1992, she moved to Charlotte, North Carolina, where she was joined by her husband. (Vol. IIp. 696; Vol. IIIp. 50) In September, 1999, their thirteen year old daughter Evelyn came to live with them. (Vol. IIp. 625, 695)

The family lived in a one story three bedroom house. (Vol. IIp. 696-697) The bedrooms were adjacent to each other on one side of the house. (Vol. IIIp. 111) Extended family members, friends, and renters shared the house at various times. (Vol. IIp. 698-700; Vol. IIIp. 52) From September, 1999 to March, 2000, Ms. Sanchez slept in her parents’ bedroom. She then got a bedroom to herself. (Vol. IIp. 628) From March to July, 2001, she shared a bedroom with Virginia Chavez. (Vol. IIp. 699)

Mr. and Mrs. Sanchez set rules for Evelyn’s behavior. She was forbidden to date or go out by herself. She was expected to come home as soon as school was over. (Vol. IIp. 645, 703-704; IIIp. 78-79) Unbeknownst to her parents, Evelyn began dating and having sexual relations with a seventeen year old. (Vol. II p. 644-645) She then began dating Salvadore Ruiz, a bricklayer who worked for the same construction company as her father. (Vol. IIp. 629, 748, 753) Evelyn signed herself out of school to spend time with Mr. Ruiz and lied to her parents about having been in school. (Vol. IIp. 705) By September, 2001, fifteen year old Evelyn Sanchez was pregnant by Mr. Ruiz. (Vol. IIp. 692, 743)

On September 24, 2001, Ms. Sanchez signed herself out of school and called Mr. Ruiz to pick her up. (Vol. II p. 630) She said that she was sick and needed a ride home. The two went to a park, a restaurant, and a store, where Ms. Sanchez wrote a letter to her mother stating that she had run away with her boyfriend and not to call the police. (Vol. IIp. 630, 749, 787-789; IIIp. 58) She did not want the police involved as she was afraid that Mr. Ruiz would be jailed due to their age difference. (Vol. IIp. 631) She left the note at her house and spent the rest of the day with Mr. Ruiz. (Vol. IIp. 715)

On September 25, 2001, Mr. Sanchez reported to police that his daughter was missing. He told Officer Gilberto Narvaez that he thought he knew who Evelyn was staying with and asked the police to bring her home. He appeared very concerned about her safety and well-being. (Vol. IIIp. 8)

Officer Narvaez located Mr. Ruiz at a job site in Huntersville. (Vol. IIIp. 9) Ruiz told him that he was twenty-one years old and had the documents to prove that. When told that a twenty-one year old sexually involved with a fifteen year old would be guilty of a Class C felony and subject to a lengthy prison term, Mr. Ruiz claimed that he was nineteen. Mr. Ruiz had multiple birth certificates and other documents showing various birth dates. (Vol. IIp. 757, 759) Although Officer Narvaez thought that Mr. Ruiz would be written up for statutory rape, he did not advise the Felony Investigations Bureau about the matter. (Vol. IIIp. 11, 21)

Mr. Ruiz told Officer Narvaez that he understood that Ms. Sanchez would be returned home and asked him to talk to Ms. Sanchez about problems she was having. Ruiz said nothing more and appeared to not want to get involved in the matter. (Vol. IIIp. 10) He took Officer Narvaez to the apartment where he and Ms. Sanchez had spent the night. (Vol. IIp. 753)

Officer Narvaez asked Ms. Sanchez if there was anything she wanted to talk to him about. Ms. Sanchez became upset. (Vol. IIIp. 10) After considerable prodding, Ms. Sanchez said that her father had been “having relations” with her for one and one-half years. (Vol. IIIp. 13-14) Officer Narvaez asked Officer Carmen Mendoza to come to the apartment, as he thought Ms. Sanchez might be more comfortable talking to a female officer. (Vol. IIIp. 13, 37)

Ms. Sanchez told Officer Mendoza that her father began having sexual intercourse with her in January, 2000, three months before her fourteenth birthday. She had already had sexual intercourse with a boyfriend. She claimed that her father came into her room at 3:00 or 4:00 a.m. three times a week, ripped off her clothes, and had sex with her. She hit and bit him. He told her that if she did not stop hitting him, he would tell her mother that she was having sex with her boyfriend. (Vol. IIIp. 44) They stopped having intercourse in March, 2001. She claimed that he never came into her room again, but did continue to touch her breasts and buttocks. (Vol. IIIp. 44-45)

At trial, Ms. Sanchez claimed that her father fondled her in November, 1999 in the bedroom she shared with her parents. They began having sexual intercourse in March, 2000. (Vol. IIp. 634, 639) She testified that he raped her two to three times a week until March, 2001. (Vol. IIp. 636) She claimed that she screamed during the intercourse, but that apparently no one in the house heard her. (Vol. IIp. 639) Once, when her father was leaning over her bed rubbing her leg, she heard her mother’s voice from the hallway. Her father threw the bed covers over her and left. (Vol. IIp. 648) On another occasion, she was changing clothes after school and her father came into her bedroom and touched her breasts. She screamed and her mother came in the room. On a third occasion, her mother saw her father on top of her on the living room couch. (Vol. IIp. 673-674)

Ms. Sanchez testified that the first person she told about the abuse was Father Joseph Elzi. She claimed that she was required to go to confession in order to participate in the Mass of the Quincaceanera celebrating her fifteenth birthday. (Vol. IIp. 650) Father Elzi gave her advice, but she did not follow it. (Vol. IIp. 661)

Ms. Sanchez claimed that on August 14, 2001, Mr. Ruiz asked about her sexual history. She told him that she had had sex with another boyfriend and that her father had raped her. (Vol. IIp. 671-672, 717) She also testified, however, that she did not tell Mr. Ruiz until they ran away together on September 24, 2001. She told the police on September 25 that she had told Mr. Ruiz the day before. (Vol. IIp. 631, 690; IIIp. 46)

Mr. Ruiz, who was indemnified against prosecution for sex offenses and possession of false identifications (Vol. IIp. 743-744), testified that he told police that he first heard of the alleged abuse on September 24, 2001 and that was the only reason he allowed Ms. Sanchez to spend the night with him. (Vol. IIp. 778, 781) Months later, Ms. Sanchez told him that she needed proof of everything and wrote out a letter for him to sign that stated she first told him on August 14. (Vol. IIp. 770, 785)

Father Elzi testified that girls celebrating the Mass of the Quincaceanera are not required to take confession. (Vol. IIp. 816) Both the State and the defense were prohibited from asking Father Elzi whether Ms. Sanchez participated in confession and, if so, what she said to him, as Father Elzi risked ex-communication and defrockment if he revealed the identity of a confessant and any information revealed during a confession. (Vol. Ip. 5) Father Elzi testified that when a confessant tells him about sexual abuse, he advises them to speak to another priest, lay counselor, or other person so that it can be reported to the proper authorities. (Vol. IIp. 820)

Mrs. Sanchez testified that social worker Denise Haan talked to her on September 25, 2001, after Evelyn was located. Mrs. Sanchez told her she did not know why Evelyn ran away. (Vol. IIIp. 70) Ms. Haan advised Mrs. Sanchez of the sexual abuse claim. (Vol. IIIp. 71) She asked if Mr. Sanchez left their bedroom during the night. Mrs. Sanchez denied that he did. (Vol. IIIp. 73) Ms. Haan asked if Mr. Sanchez was ever alone with Evelyn. Mrs. Sanchez responded that she was with Evelyn during the day. (Vol. IIIp. 72) Ms. Haan asked if she had ever found her husband in Evelyn’s room. Mrs. Sanchez responded that she had not. (Vol. IIIp. 103) Ms. Haan told Mrs. Sanchez that if she did not keep her husband out of their house, she would lose custody of her daughter. (Vol. IIIp. 104)

After Evelyn was returned home, she told her mother that her father abused her once a week when he returned home from having driven Mrs. Sanchez to work at 5:00 or 5:30 a.m. (Vol. IIIp. 74-75) She also claimed to have been abused during the night. (Vol. IIIp. 76) Mrs. Sanchez eventually recalled a few incidents that she thought were suspicious. (Vol. IIIp. 77) She testified that she once woke up to find that her husband was not in bed. She saw him on top of Evelyn in his underwear. (Vol. IIIp. 81) On another occasion she saw her husband lying on top of Evelyn on the living room couch. (Vol. IIIp. 92) On a third occasion, her daughter started screaming in her room. Mrs. Sanchez got off the phone and went in the room. Evelyn told her that her father was touching her breasts. (Vol. IIIp. 93) Although Mrs. Sanchez met with Ms. Haan on several occasions after September 25, 2001, she never told her about any of these incidents. (Vol. IIIp. 105) Mrs. Sanchez was living with a new boyfriend by the time of trial. (Vol. IIp. 693)

Dr. Poreeti Matkins of the Pediatric Resource Center examined Ms. Sanchez on November 6, 2001. (Vol. IIp. 827, 830) As Dr. Matkins expected, she was unable to find any physical evidence corroborating Ms. Sanchez’s claims. (Vol. IIp. 835) Ms. Sanchez told her she was a virgin when her father raped her. (Vol. IIp. 838) She also stated that the only time she hit her father was the last time they had sex. (Vol. IIp. 839)

ARGUMENT

I.THE TRIAL COURT ERRED, ABUSED ITS DISCRETION,

OR COMMITTED PLAIN ERROR IN PERMITTING EVELYN

SANCHEZ AND FATHER JOSEPH ELZI TO TESTIFY TO

MATTERS RELATING TO MS. SANCHEZ’S ALLEGED

CONFESSION, AS, DUE TO CANONICAL LIMITATIONS

ON FATHER ELZI’S TESTIMONY GIVEN EFFECT BY

THE TRIAL COURT, MR. SANCHEZ WAS DEPRIVED OF

A FAIR TRIAL AND UNABLE TO ADEQUATELY CONFRONT

AND CROSS-EXAMINE THE WITNESSES AGAINST HIM.

Assignments of Error Nos. 4, 5, 6, 7, Rp. 69-71

On 24 March 2003, Father Joseph Elzi filed a motion to quash a subpoena issued by the State commanding his appearance at Mr. Sanchez’s trial. Father Elzi asserted therein that canonical law prohibited him from identifying confessants and revealing any matter spoken in a confession. (Rp. 14-20) At a pre-trial hearing, canonical law expert Father Peter Jugis testified that a priest cannot reveal the identity of confessants or what is said during confessions. (Vol. Mp. 10, 14) While Father Jugis acknowledged that North Carolina law permits a penitent to waive the priest-penitent privilege, canonical law would nonetheless require automatic excommunication of a testifying priest. Even if the priest successfully petitioned to have the excommunication lifted, he could end up being defrocked. (Vol. Mp. 16, 29) Judge Yvonne Mims-Evans ruled that neither party could question Father Elzi about what was told to him in a confession, but that he could testify to other matters. (Vol. Ip. 5)

Shortly before trial, the State advised Judge Boner that it had decided not to institute contempt proceedings against Father Elzi for his refusal to testify. The prosecutor stated that he planned to call Father Elzi to testify that a priest is forbidden from admitting or denying that a confession took place and to confirm details about the Mass of the Quincaceanera. (Vol. Ip. 7-8) The defense countered that it would be unable to cross-examine Father Elzi. The court expressed concern that if Father Elzi testified that he could not confirm or deny that a confession had taken place, such testimony would be irrelevant and would leave the question hanging of whether Evelyn Sanchez confessed. The court asked the prosecutor what such questioning would prove. The prosecutor responded that it would not prove anything, but that it would explain Father Elzi’s position. The court deferred ruling on the proposed testimony until conducting a voir dire of Father Elzi. (Vol. Ip. 9)

The prosecutor questioned Evelyn Sanchez on direct examination regarding the purported confession. Ms. Sanchez testified, without objection, that she revealed the alleged abuse to Father Elzi as a requirement for participating in the Quincaceanera ceremony. The prosecutor asked whether Father Elzi offered any advice. The defense objected to characterizing any statement by Father Elzi as “advice.” The court ruled that Ms. Sanchez could testify that Father Elzi gave her advice, but could not describe the advice given, since Father Elzi could not confirm or deny having said anything to her. The court further ruled that the prosecutor would be permitted to ask Father Elzi about his customs and habits in giving advice, but not whether he had advised Ms. Sanchez in conformance therewith. The prosecutor stated that he also planned to ask Ms. Sanchez whether she followed his advice. The defense again objected, arguing that the word “advice” characterized the content of the speech and that the prosecutor should be limited to establishing through Ms. Sanchez that she confessed to Father Elzi. The court disagreed and ruled that Ms. Sanchez could testify that Father Elzi gave her advice and that she did not take it. (Vol. IIp. 652-659) Ms. Sanchez thereupon testified that Father Elzi gave her advice or recommendations and she did not follow them. The court sustained a defense objection to why she did not follow the advice. (Vol. IIp. 661)

In a voir dire examination, Father Elzi testified that occasionally physical or sexual abuse comes to his attention in confessions. He testified that although he is forbidden to reveal anything about confessions and the identity of confessants, he does urge confessants to talk to a counselor and report the matter to the proper authorities. (Vol. IIp. 802-803) The defense objected to Father Elzi being permitted to testify on the ground that the jury would believe that Ms. Sanchez did confess to Father Elzi if Father Elzi testified that he could not reveal whether the confession occurred. The court ruled that Father Elzi could testify to his custom and habit regarding confessions, but that he could not testify to the number of times fourteen year olds confess to being sexually abused by their fathers. (Vol. IIp. 805-806) The defense countered that if Father Elzi could not lay the foundation for habit testimony, the prosecutor could not establish that he had a customary and habitual response. The court ruled that a witness need not testify how many times he did something for that to be his habitual response. The defense then objected on the grounds that Elzi’s proposed testimony was not specific enough to be relevant. (Vol. IIp. 808-809) The court responded that if the defense thought the testimony irrelevant, he would permit the prosecutor to recall Evelyn Sanchez to testify to the advice she received from Father Elzi. (Vol. IIp. 809) Since Father Elzi still would have been unable to confirm or deny that Ms. Sanchez was relating advice actually given, the defense declined the suggestion. (Vol. IIp. 810)