State v. Sanchez ( 2015 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance with
the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA14-1381
Filed: 6 October 2015
Gaston County, No. 13 CRS 59025
STATE OF NORTH CAROLINA
v.
NISANDRO CONZELEZ SANCHEZ
Appeal by defendant from judgment entered 24 June 2014 by Judge Richard
D. Boner in Gaston County Superior Court. Heard in the Court of Appeals 9
September 2015.
Attorney General Roy Cooper, by Assistant Attorney General Carolyn McLlain,
for the State.
Michael E. Casterline for defendant-appellant.
ZACHARY, Judge.
Nisandro Sanchez (defendant) appeals from judgment entered upon his
conviction of trafficking in methamphetamine by possession. On appeal defendant
argues that he received ineffective assistance of counsel and that the trial court
committed plain error by failing to instruct the jury on lesser included offenses. We
disagree and conclude that defendant had a fair trial, free of reversible error.
I. Factual and Procedural History
STATE V. SANCHEZ
Opinion of the Court
On 5 August 2013 the Gaston County Grand Jury returned a true bill indicting
defendant for one count of trafficking in more than 400 grams of methamphetamine
by possession and one count of trafficking in more than 400 grams of
methamphetamine by manufacturing. The charges against defendant came on for
trial at the 23 June 2014 criminal session of Superior Court of Gaston County.
At trial the State’s evidence tended to show that on 23 July 2013 Special Agent
Jorge Alamillo of the Drug Enforcement Administration, together with Gastonia
Police Officer Morris Elliott and other law enforcement officers, conducted
surveillance on Apartment D, 2714 Crescent Lane, Gastonia. At around 2:30 p.m.,
defendant drove up to the apartment in a Toyota 4Runner and defendant and Fidel
Solis went inside the apartment. Shortly thereafter, defendant and Mr. Solis left the
apartment, with Mr. Solis carrying a large black trash bag.
After defendant and Mr. Solis drove away, Agent Alamillo contacted other law
enforcement officers involved in the operation. A few minutes later, Officers Dustin
Hunter and M.R. Sherill with the Gastonia Police Department stopped the vehicle
because defendant was not wearing a seatbelt. Defendant gave Officer Hunter
permission to search the car. During the search, defendant volunteered to Officer
Sherill that a friend had placed a bag in the car and that defendant did not know
what was inside. Officer Hunter opened a large black trash bag on the back seat,
noted a strong odor of fabric softener, and removed towels that were on top of the
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Opinion of the Court
bag’s contents. Under the towels were several bags of a white crystalline substance
that appeared to be methamphetamine. A small baggie of a similar substance was
found in defendant’s pocket, and defendant volunteered that a friend had given him
the baggie and that defendant did not know what was inside. Defendant and Mr.
Solis were arrested and taken to the law enforcement center.
After hearing that the Toyota 4Runner had been stopped and searched, Agent
Alamillo and Officer Elliott went to the apartment, where they received permission
from a resident to search inside. In the apartment, Agent Alamillo and Officer Elliott
found 35 grams of methamphetamine, drug paraphernalia, and a drivers’ license
belonging to Mr. Solis. After searching the apartment, Agent Alamillo and Officer
Elliott went to the police station, where Agent Alamillo, a native Spanish speaker,
assisted Officer Elliott with an interview of defendant. Defendant was informed of
his Miranda rights and agreed to make a statement to the law enforcement officers.
Defendant stated that Mr. Solis had asked defendant to drive that day because
defendant had a valid drivers’ license. Previously, defendant had driven Mr. Solis to
Houston, where Mr. Solis procured the methamphetamine. Mr. Solis had planned to
sell the drugs to another man for $84,000 and to pay defendant $5,000 for driving.
Colin Andrews, a forensic scientist with the North Carolina State Crime Lab,
testified as an expert in the field of forensic chemistry concerning her testing of
material seized at the time of defendant’s arrest. The large trash bag taken from the
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Opinion of the Court
Toyota 4Runner held five smaller plastic bags, each containing a white crystalline
substance. Testing of one of these bags revealed the presence of 966 grams of
methamphetamine. The gross weight of the remaining bags was over 3,500 grams of
material. Agent Andrews also determined that the material in the small baggie taken
from defendant’s pocket was methamphetamine, but did not testify as to the weight
of that material.
Fidel Solis testified through an interpreter that his testimony was given
pursuant to a plea agreement under which Solis would receive a sentence of 90 to 120
months imprisonment in exchange for truthful testimony at defendant’s trial. Mr.
Solis met defendant about a year before their arrest. In June 2013, Mr. Solis agreed
to provide a car and drive with defendant to Houston, Texas, where defendant
planned to buy methamphetamine. Defendant and Mr. Solis agreed that in exchange
Mr. Solis would receive $4,000 and 3 ounces of methamphetamine. In Houston
defendant bought five kilos of methamphetamine and, upon their return to Gastonia,
defendant asked Mr. Solis to keep the drugs at the apartment of Mr. Solis until the
drugs were sold. A few weeks later, defendant told Mr. Solis that a buyer would pick
up the methamphetamine on Tuesday, 23 July 2013. On that day defendant asked
Mr. Solis to give defendant a ride to Mr. Solis’s apartment, where defendant planned
to sell all the methamphetamine to a single person. Mr. Solis picked up defendant
and took him to the Crescent Lane apartment, where defendant and another man
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Opinion of the Court
agreed on a price of $21,000 per kilo. Mr. Solis and defendant then left the apartment
with the methamphetamine, intending to drive to a location where they had agreed
to transfer the methamphetamine to the buyer. A few minutes after driving away
from the apartment, Mr. Solis and defendant were stopped by the police and arrested.
Defendant did not present evidence at trial. On 24 June 2014 the jury returned
verdicts finding defendant not guilty of trafficking in methamphetamine by
manufacture and guilty of trafficking in methamphetamine by possession. The trial
court sentenced defendant to a term of imprisonment of 225 to 282 months.
Defendant gave timely notice of appeal to this Court.
II. Legal Analysis
A. Ineffective Assistance of Counsel
In his first argument, defendant contends that he received “ineffective
assistance of counsel per se when [his counsel] conceded critical facts necessary to the
State’s case in his closing argument without the defendant’s consent.” Defendant
asserts that he is entitled to relief under State v. Harbison, 315 N.C. 175, 180, 337
S.E.2d 504, 507-508 (1986), which held “that ineffective assistance of counsel, per se
in violation of the Sixth Amendment, has been established in every criminal case in
which the defendant's counsel admits the defendant’s guilt to the jury without the
defendant’s consent.” Because we hold that defense counsel’s statements during
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Opinion of the Court
closing argument do not fall within the ambit of Harbison, we do not reach the issue
of the effectiveness of defendant’s counsel.
In Harbison, defense counsel expressly told the jury that he was not asking
them to acquit the defendant and did not think the defendant should be found
innocent, but urged the jury to convict the defendant of manslaughter rather than
first degree murder. Harbison has been applied to other cases in which defense
counsel concedes a defendant’s guilt of a criminal offense for which he is on trial
without first obtaining the defendant’s consent to this strategy. For example, in State
v. Matthews, 358 N.C. 102, 106, 591 S.E.2d 535, 539 (2004), the North Carolina
Supreme Court held that the defendant was entitled to a new trial where defense
counsel told the jury that he was “not saying you should find Mr. Matthews not guilty”
and urged the jury to reject the charge of first degree murder and instead “find that
he’s guilty of second-degree murder.” Similarly, in State v. King, 218 N.C. App. 347,
721 S.E.2d 336 (2012), appeal dismissed, 367 N.C. 217, 747 S.E.2d 584 (2013), which
is cited by defendant on appeal, the defendant was charged with possession with
intent to sell or deliver cocaine, selling cocaine, possession of drug paraphernalia, and
attaining habitual felon status. His counsel argued to the jury that the defendant
was a drug user but not a drug dealer, and told the jurors that the charge of
possession of drug paraphernalia was “about as open and shut as we can get in this
case.” We held that:
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Opinion of the Court
Though clearly a strategic decision, such a statement
concedes defendant’s guilt to the charge of possession of
drug paraphernalia. The incomplete record before us
contains no indication that defendant’s trial counsel
obtained defendant's consent to concede his guilt[.] . . .
Therefore, we dismiss this issue without prejudice to
defendant’s right to file a motion for appropriate relief
requesting an evidentiary hearing on whether trial counsel
admitted defendant’s guilt to the charge of possession of
drug paraphernalia without defendant’s consent.
King, 218 N.C. App. at 360, 721 S.E.2d at 345-346.
In sum, “a defendant receives ineffective assistance of counsel per se when the
defendant’s counsel concedes the defendant’s guilt to either the offense charged or a
lesser-included offense without the defendant’s consent.” State v. Holder, 218 N.C.
App. 422, 424, 721 S.E.2d 365, 367 (2012) (emphasis added) (citing Harbison, 315
N.C. at 180, 337 S.E.2d at 507-508).
Our appellate courts have, however, consistently limited the application of
Harbison to situations in which defense counsel explicitly admits a defendant’s guilt
of the offense for which defendant is on trial or of a lesser included offense. Thus,
Harbison does not apply to defense counsel’s admission of a defendant’s guilt of an
offense for which defendant is not on trial. See, e.g., State v. Roache, 358 N.C. 243,
283-84, 595 S.E.2d 381, 408 (2004) (holding where defense counsel admitted
defendant’s guilt of a murder for which he was not being tried that “defendant’s
counsel’s admission . . . does not rise to the level of the act condemned by this Court
in Harbison.”); State v. Wilson, __ N.C. App. __, __, 762 S.E.2d 894, 897 (2014) (where
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defendant was charged with attempted first degree murder, defense counsel’s
statement conceding guilt of assault by pointing a gun did not fall within the
parameters of Harbison). Nor does Harbison apply to a defense counsel’s admission
that an evidentiary fact has been proven. “Admitting a fact is not equivalent to an
admission of guilt.” State v. Wiley, 355 N.C. 592, 620, 565 S.E.2d 22, 42 (2002)
(citation omitted).
In this case, defendant asserts that his counsel violated the principles
articulated in Harbison during closing argument, when he stated that:
DEFENSE COUNSEL: That’s a lot of meth (indicating).
We don’t dispute that there’s a lot of meth there. What
we’re telling you is, when you look at the law to be applied
in this case that Nisandro Sanchez is not guilty. He may
be guilty of some things. He’s guilty of not wearing his
seatbelt. That’s an infraction. He was a drug user. We
admitted that. But he’s not a drug trafficker.
Specifically, defendant objects to defense counsel’s statements that the case involved
“a lot of meth,” that defendant “may be guilty of some things” and that he had
admitted to being “a drug user.” None of these statements is an admission of
defendant’s guilt of the charged offenses - trafficking in methamphetamine by
possession and by manufacture - or of a lesser included offense. It was uncontroverted
that the police had recovered “a lot of meth” from the car that defendant was driving,
and defense counsel’s concession of this undisputed fact was not an admission that
defendant had possessed or manufactured the drugs, or even that “a lot of meth”
referred to an amount greater than 400 grams, the amount specified in the
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Opinion of the Court
indictment. Similarly, neither defense counsel’s statement that defendant was “a
drug user” nor his generalized admission that defendant “might be guilty of some
things” was an admission of defendant’s guilt of trafficking in methamphetamine.
We hold that defendant has failed to establish that he received per se ineffective
assistance of counsel and that this argument lacks merit.
B. Jury Instructions
In his second argument, defendant contends that the trial court committed
plain error by “failing to instruct the jury on lesser-included offenses when the
evidence supported that instruction.” We conclude that this argument lacks merit.
1. Standard of Review
A “[d]efendant is ‘entitled to an instruction on a lesser included offense if the
evidence would permit a jury rationally to find him guilty of the lesser offense and
acquit him of the greater.’ ” State v. Leazer, 353 N.C. 234, 237, 539 S.E.2d 922, 924
(2000) (quoting Keeble v. United States, 412 U.S. 205, 208, 36 L.Ed. 2d 844, 847
(1973)).
Defendant acknowledges that he did not object to the trial court’s jury
instructions on this issue and that, as a result, we review only for plain error. “In
criminal cases, an issue that was not preserved by objection noted at trial and that is
not deemed preserved by rule or law without any such action nevertheless may be
made the basis of an issue presented on appeal when the judicial action questioned
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Opinion of the Court
is specifically and distinctly contended to amount to plain error.” N.C. R. App. P.
10(a)(4). Nevertheless, it is clear that:
[f]or error to constitute plain error, a defendant must
demonstrate that a fundamental error occurred at trial. To
show that an error was fundamental, a defendant must
establish prejudice - that, after examination of the entire
record, the error had a probable impact on the jury’s
finding that the defendant was guilty.
State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (internal citations
and quotation marks omitted).
2. Discussion
Defendant was charged with trafficking in methamphetamine by manufacture
and possession of more than 400 grams of methamphetamine. On appeal, defendant
argues that the trial court committed plain error by failing to instruct the jury on the
“lesser included offenses” of possession or manufacture of a lesser amount of
methamphetamine. In response, the State contends that “the differentiations in
weight in N.C. Gen. Stat. § 90-95(h)(3b)(a) - (c) are not lesser included offenses of
trafficking in methamphetamine but merely different levels of the same offense.” We
agree with defendant that if there is evidence from which a reasonable juror could
find that defendant trafficked in a smaller amount of methamphetamine than that
stated in the indictment, defendant would be entitled to submit the issue of the
weight of methamphetamine to the jury. We conclude, however, that on the facts of
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Opinion of the Court
this case defendant was not entitled to an instruction on his possession of less than
400 grams of methamphetamine.
“ ‘[A] lesser offense should not be submitted to the jury if the evidence is
sufficient to support a finding of all the elements of the greater offense, and there is
no evidence to support a finding of the lesser offense.’ ” State v. Uvalle, 151 N.C. App.
446, 453, 565 S.E.2d 727, 731 (2002) (quoting State v. Nelson, 341 N.C. 695, 697, 462
S.E.2d 225, 226 (1995)). In this case, defendant does not dispute that the State
presented sufficient evidence of his possession of 400 grams of methamphetamine.
Instead, defendant argues that the jury, if given the option of convicting him of
trafficking in a lesser amount, might have found that defendant only possessed the
smaller amount of methamphetamine in his pocket, while disbelieving the State’s
evidence that defendant constructively possessed the large bag of methamphetamine
in the car defendant was driving when arrested. “However, a ‘defendant is not
entitled to an instruction on a lesser-included offense merely because the jury could
possibly believe some of the State’s evidence but not all of it.’ ” State v. Gainey, 355
N.C. 73, 92, 558 S.E.2d 463, 476 (2002) (quoting State v. Annadale, 329 N.C. 557, 568,
406 S.E.2d 837, 844 (1991)). Defendant has failed to identify any evidence that he
possessed a lesser amount of methamphetamine, and we hold that the trial court did
not err by failing to submit this issue to the jury. “Because the trial court did not err,
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Opinion of the Court
we do not reach the issue of plain error.” State v. Godbey, __ N.C. App. __, __, 772
S.E.2d 123, 126 (2015).
For the reasons discussed above, we conclude that defendant had a fair trial,
free of reversible error.
NO ERROR.
Judges STEPHENS and McCULLOUGH concur.
Report per Rule 30(e).
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