State v. Osorio

• Decision Date: 21 April 2009
• Docket Number: No. COA08-1199.,COA08-1199.
• Citation: 675 S.E.2d 144
• Parties: STATE of North Carolina v. Argenis Alvarez OSORIO.
• Court: North Carolina Court of Appeals

675 S.E.2d 144

STATE of North Carolina v. Argenis Alvarez OSORIO.

No. COA08-1199.

Court of Appeals of North Carolina.

April 21, 2009.

Appeal by defendant from judgment entered 1 February 2008 by Judge Thomas D. Haigwood in Forsyth County Superior Court. Heard in the Court of Appeals 25 February 2009.

Attorney General Roy Cooper, by Assistant Attorney General David D. Lennon, for the State.

Geoffrey W. Hosford, Wilmington, for defendant-appellant.

STEELMAN, Judge.

The trial court did not abuse its discretion when instructing a jury to continue deliberations after two days and allowing substitution of counsel during jury deliberations. The trial court did not err in instructing the jury on acting in concert when a defendant's own statements implicated a second party in a drug transaction. Where defendant did not request individual polling of the jury at trial, the question is not preserved on appeal.

I. Factual and Procedural Background

On 6 March 2007, the Winston-Salem Police Department conducted an undercover drug operation at 5555 Indiana Avenue in Winston-Salem, North Carolina. The operation was initiated when a confidential informant told police he could arrange the purchase of a large amount of cocaine.

A search warrant was obtained, which allowed the search of the premises if the informant observed at least three kilograms of cocaine. The informant went to the premises accompanied by Detective T.D. James (Detective James) of the Winston-Salem Police Department. Detective James, acting undercover as the informant's uncle, was to have remained in the car. The informant was to contact Detective James if he saw the required amount of cocaine. However, Detective James was called into the residence by the informant when the occupants became nervous about him remaining in the car.

When Detective James arrived at the sliding glass door of the dwelling, he was admitted by a person later identified as Lucas Reyes Hernandez. According to the testimony of Detective James, defendant was standing beside the kitchen table on which a shoe box was situated and began pulling out brick-shaped packages, which were wrapped in plastic. Detective James asked if it was good, and defendant nodded and replied in English, "[I]t's good."

The informant then called on his cell phone, ostensibly to request the money to consummate the purchase of the cocaine. This was the signal that the search warrant conditions were met. The police entry team announced their presence and entered the premises. Defendant ran into the back bedroom. Detective James pulled out his badge, drew his weapon, announced he was a police officer, and followed defendant into the bedroom.

Following his arrest, defendant gave conflicting accounts of the events of 6 March 2007 to Detective Gomez of the Winston-Salem Police Department. In one account defendant stated that he stayed in the kitchen where he saw Mr. Hernandez let Detective James inside the premises, and he saw Mr. Hernandez hand the detective a "quadro." "Quadro" is Spanish for square and is a common term used by people that are dealing in drugs to refer to a kilogram of powder cocaine. In another version, defendant stated he saw Mr. Hernandez give Detective James a "quadro," and defendant subsequently shook hands with Detective James.

Defendant was charged with maintaining a dwelling for the sale or distribution of controlled substances, possession of cocaine with intent to sell and deliver, trafficking in cocaine by possession of 400 grams of cocaine or more, and conspiracy to traffic in cocaine by possession of 400 grams or more.

At trial, the charge of maintaining a dwelling for the sale or distribution of controlled substances was dismissed by the trial court after the close of the State's evidence. Defendant's motion to dismiss the remaining charges was denied. Defendant did not introduce any evidence at trial.

The remaining charges were submitted to the jury on 30 January 2008. The jury continued its deliberations on 31 January 2008. At 11:00 a.m., the trial court received a note from the jury stating they were unable to reach a unanimous verdict. The trial court advised counsel that he intended to give the jury an Allen charge, and neither counsel objected. The jurors were instructed to continue their deliberations without the surrender of conscientious convictions. Later that day the jury communicated that it had reached a unanimous decision as to one charge but were deadlocked on the remaining two charges.

On 1 February 2008, defendant's counsel, Mr. Ferguson, an Assistant Public Defender, was ill, and Pete Clary, the Public Defender, appeared as counsel for defendant. Defendant initially told the trial court if somebody had sent Mr. Clary that it was "okay" if he represented him. Thereafter, defendant expressed concern that no one had told him Mr. Ferguson would not be there, and he did not understand what was "going on." The trial court, through a translator, advised defendant that Mr. Ferguson was sick, and this had not been known previously. The trial court then granted Mr. Clary's motion to be substituted for Mr. Ferguson.

At 10:20 a.m., after the trial court requested the jury take a formal vote, the jury reported to the trial court that they were deadlocked 11-1 on the remaining two charges and had been deadlocked since around noon on the day before. The trial court noted the progress that was made the morning before and again instructed the jury that it was their duty to try to reach a verdict. The trial court admonished the jury not to surrender their "conscientious convictions" or their "convictions as to the weight or effect of the evidence" because of the opinions of other jurors for the mere purpose of returning a verdict. Neither counsel objected to this instruction, and the jury returned to their deliberations.

At 12:40 p.m. on 1 February, the jury reported it had reached a unanimous verdict on a second charge, and it was still deadlocked 11-1 on the third charge. Following a lunch break, the trial court proposed returning the jury to the courtroom and taking the two verdicts that had been reached. Both counsel stated they had no objection.

The jury returned verdicts of guilty on the charge of trafficking in cocaine by possessing 400 or more grams and not guilty of conspiracy to commit trafficking in cocaine. After the reading of each verdict, the trial court asked the jurors to raise their hands if they agreed with the verdict, and each time, all of the jurors raised their hands. The trial court asked the respective counsel if they had anything further, and both replied in the negative. The State dismissed the charge of possession with intent to sell and deliver cocaine with respect to which the jury was unable to reach a verdict.

Defendant was sentenced to the mandatory active term of 175 months to 219 months imprisonment, a fine of $250,000.00, and costs of court. The trial court further recommended that upon completion of his sentence that defendant be released to immigration authorities for deportation due to his status as an illegal alien.

Defendant appeals.

II. Failure to Declare a Mistrial

In his first argument, defendant contends that the trial court abused its discretion or committed plain error in failing to ex mero motu declare a mistrial and requiring the jurors to continue their deliberations after the jury announced they were deadlocked. We disagree.

We first note that plain error analysis only applies to instructions to the jury and evidentiary matters. State v. Greene, 351 N.C. 562, 566, 528 S.E.2d 575, 578 (2000) (citing State v. Atkins, 349 N.C. 62, 81, 505 S.E.2d 97, 109 (1998), cert. denied, 526 U.S. 1147, 119 S.Ct. 2025, 143 L.E.2d 1036 (1999)), cert. denied, 531 U.S. 1041, 121 S.Ct. 635, 148 L.Ed.2d 543 (2000). Defendant did not move for a mistrial at any point during trial or during deliberations and did not preserve the mistrial issue for appellate review. See N.C.R.App. P. 10(b) (2008). Therefore, the mistrial issue was not preserved at trial, not subject to plain error review, and is not properly before this Court.

N.C. Gen.Stat. § 15A-1235 addresses jury deliberations and deadlocked juries, and provides trial judges with clear standards for instructions urging jury verdicts. State v. Baldwin, 141 N.C.App. 596, 607, 540 S.E.2d 815, 823 (2000). Subsections (c) and (d) provide:

(c) If it appears to the judge that the jury has been unable to agree, the judge may require the jury to continue its deliberations and may give or repeat the instructions provided in subsections (a) and (b). The judge may not require or threaten to require the jury to deliberate for an unreasonable length of time or for unreasonable intervals.

(d) If it appears that there is no reasonable possibility of agreement, the judge may declare a mistrial and discharge the jury.

N.C. Gen.Stat. § 15A-1235 (c) and (d) (2007).

The appellate court must decide whether a trial court's instructions forced a verdict or merely served as a catalyst for further deliberations. See State v. Fernandez, 346 N.C. 1, 21, 484 S.E.2d 350, 362-363 (1997) (citing State v. Peek, 313 N.C. 266, 271, 328 S.E.2d 249, 253 (1985)). The appellate court must look to the "totality of the circumstances" in determining whether the trial court coerced a verdict from the jury. State v. Porter, 340 N.C. 320, 335, 457 S.E.2d 716, 723 (1995) (citing State v. Patterson, 332 N.C. 409, 416, 420 S.E.2d 98, 101 (1992)). Some factors to be considered are "whether the trial court conveyed an impression to the jurors that it was irritated with them for not reaching a verdict and whether the trial court intimated to the jurors that it would hold them until they reached a verdict." Id.

Defendant contends that at the time the jury announced they were deadlocked after deliberating nine hours over three days that the trial court should have declared a mistrial because the instruction given at that time...