STATE OF NORTH CAROLINA
v. Alamance County
Nos. 00CRS53025, 53027
ELIODORO HERRERA VELAZQUEZ
Attorney General Roy Cooper, by Special Deputy Attorney
General James A. Wellons, for the State.
J. Darren Byers for defendant-appellant.
EAGLES, Chief Judge.
Defendant Eliodoro Herrera Velazquez was charged with felony
possession of cocaine, possession with intent to sell and deliver
cocaine, and trafficking in cocaine. The State's evidence tended
to show that United States Custom Agents intercepted a United
Parcel Service (UPS) package, containing cocaine hidden in a
saddle, at the UPS hub in Louisville, Kentucky. The package was
from Mexico and was addressed to Julpianio Perez Cortez, 423 Fulton
Street, Burlington, North Carolina. Customs Agents in Louisville
forwarded the package to Customs Agent Ronald R. Taylor, in
Charlotte, North Carolina via registered mail or FedEx. Customs
Agent Taylor attempted to verify the identity of the package'saddressee but was unable to locate that name in the records of the
North Carolina Department of Motor Vehicles, U.S. Customs
Intelligence Division, or Immigration Naturalization Services
(INS). Agent Taylor did not open the package while it was in his
custody. The agent subsequently forwarded the package to the
Burlington Police Department so that the package could be delivered
to the shipping address in a “controlled delivery.”
On 29 March 2000, Officer Jonothan Weaver of the Burlington
Police Department, impersonating a UPS delivery person, delivered
the intercepted package to the 423 Fulton Street shipping address.
When the officer knocked on the partially open front door of the
residence, defendant answered the door. Officer Weaver informed
defendant that he had a package for Mr. Cortez. Defendant did not
respond, but just looked at the officer. Officer Weaver then
pointed to the name on the package's shipping label, whereupon
defendant nodded in the affirmative. Defendant signed for the
package using the name “Eliodoro Herrera” Defendant then picked up
the package from where Officer Weaver had placed it on the ground
and took the package into the house.
Officer Weaver returned to the UPS van and drove to a
prearranged destination, where other members of the controlled
delivery team waited. After being informed that the package had
been delivered, the waiting officers immediately left to execute
their search warrant. Officer Weaver changed out of his UPS
uniform and followed. As the officers approached the residence at 423 Fulton Street,
they saw defendant standing in the driveway. Upon entry, the
officers discovered that with the exception of a single plastic
lawn chair, some bedding material, and a single piece of luggage,
the residence was vacant. A radio and cellular phone were found on
the living room floor. There were no kitchen utensils in the
house. The only sign of food consisted of one or two cans of food
and empty fast food bags. Searching officers found the package
delivered by Officer Weaver and accepted by defendant on the floor
of the back bedroom closet, completely concealed under two pieces
of carpet remnants. Defendant was the only person in the vicinity
of the residence when the officers searched the premises.
Officers seized the package and subsequently opened it at the
Burlington Police Department. Inside the package, officers found
a wooden riding saddle containing six bags of cocaine. Pursuant
to department policy, Sergeant James Brett Taylor, of the
Burlington Police Department, watched as Corporal Todd E. Saunders,
also of the Burlington Police Department, weighed the bags of
cocaine, labeled the bags, and listed each bag on the evidence
sheet. Sergeant Taylor also watched Corporal Saunders place each
bag of cocaine into a zip-lock bag and place the zip-lock bags into
manila envelopes. On 30 March 2000, Corporal Saunders then
delivered the cocaine to the State Bureau of Investigation (SBI)
laboratory for analysis.
Defendant did not present any evidence. A jury found
defendant guilty of felonious possession of cocaine, possessionwith intent to sell and deliver cocaine, and trafficking in
cocaine. The trial court consolidated the convictions for judgment
and sentenced defendant to 175-219 months imprisonment. Defendant
appeals.
On appeal, defendant first argues that the trial court erred
by allowing the State to introduce a controlled substance
(contained in State's Exhibits 12, 12A, 12B, 12C, 12D, 12E, 12F and
12AA) into evidence when a full chain of custody was not
established. We disagree.
Real evidence must pass a two-part test before it may be
introduced at trial. First, the item must be identified as the
same item involved in the incident at issue. State v. Fleming, 350
N.C. 109, 131, 512 S.E.2d 720, 736, cert. denied, 528 U.S. 941, 145
L. Ed. 2d 274 (1999). Second, it must be established that the item
has not undergone a material change. Id. It is solely within the
trial court's discretion to determine whether the evidence has
undergone a material change. State v. Taylor, 332 N.C. 372, 388
420 S.E.2d 414, 424 (1992). A chain of custody is only necessary
when the evidence is not readily identifiable or when the evidence
is susceptible to alteration and there is reason to believe that an
alteration has occurred. Fleming, 350 N.C. at 131, 512 S.E.2d at
735.
Here, the UPS package, intercepted by U.S. Customs and
subsequently delivered to and accepted by defendant, was first
opened after its seizure by Corporal Saunders under the supervision
of Sergeant Taylor. Sergeant Taylor testified extensively aboutthe procedure that he and Corporal Saunders went through in
weighing, bagging, and marking the evidence contained in the
package seized at 423 Fulton Street. He further testified that the
items contained in State's Exhibits 12A, 12B, 12C, 12D and 12E were
those items retrieved from the package seized, weighed, bagged, and
marked by him and Corporal Saunders. Sergeant Taylor testified on
voir dire that the seals placed on the items by Corporal Saunders
were in the same condition at trial as when they were originally
placed on the items by the corporal on 29 March 2000. Corporal
Saunders delivered State's Exhibits 12A, 12B, 12C, 12D, and 12E to
the SBI lab on 30 March 2000.
Notably, the SBI lab report contained a complete record of the
chain of custody of the evidence from the time it arrived at the
SBI lab until the time it was given back to the Burlington Police
Department. Additionally, Special Agent Gregory, a forensic drug
chemist with the SBI, testified that she analyzed the contents of
State's Exhibit 12, which contained five sealed manila envelopes
identified as State's Exhibits 12A, 12B, 12C, 12D, and 12E, under
the laboratory control number R-2725-0. She opened State's
Exhibits 12A, 12B, 12C, 12D and 12E at the end opposite to Corporal
Saunders' seals and performed preliminary tests on the contents of
each. These tests confirmed that each of the innermost plastic
bags contained cocaine. Special Agent Gregory then combined the
contents of the plastic bags in State's Exhibits 12A, 12B, 12C, 12D
and 12E, weighed the combined contents, and performed an
instrumental test on the combined contents. Finally, the specialagent placed the cocaine from State's Exhibits 12A, 12B, 12C, 12D,
and 12E into a single zip-lock bag, identified at trial as State's
Exhibit 12F. The evidence was returned to the Burlington Police
Department on 13 September 2000.
We conclude that the chain of custody, established by the
State through the testimony of Sergeant Taylor and Special Agent
Gregory, was sufficiently detailed to show that the substance
analyzed by Special Agent Gregory was the same substance seized by
Burlington police officers from 423 Fulton Street on 29 March 2000.
A more detailed chain of custody was not necessary. Accordingly,
this assignment of error fails.
Defendant next argues that the trial court erred by not
instructing the jury to find defendant not guilty if the jury found
that defendant did not know that the UPS package contained cocaine.
Again, we disagree.
It is well settled that the trial court is only required to
give a requested instruction if it is a correct statement of the
law and is supported by the evidence. See State v. Clegg, 142 N.C.
App. 35, 46, 542 S.E.2d 269, 277, appeal dismissed and disc. review
denied, 353 N.C. 453, 548 S.E.2d 529 (2001) (noting that the
evidence must be viewed in the light most favorable to the
defendant when determining whether a defendant is entitled to a
requested instruction). Here, the requested instruction may have
been a correct statement of the law but there was no evidence on
the record showing that defendant did not know that the package he
took possession of on 29 March 2000 contained cocaine. In State v.Bogle, 324 N.C. 190, 195, 376 S.E.2d 745, 748 (1989) (citation
omitted) (internal quotations omitted), our Supreme Court stated:
Knowledge is a mental state that may be proved
by offering circumstantial evidence to prove a
contemporaneous state of mind. Jurors may
infer knowledge from all the circumstances
presented by the evidence. It may be proved
by the conduct and statements of the defendant
. . . and by [other] circumstantial evidence
from which an inference of knowledge might
reasonably be drawn.
Here, the State's evidence showed that after defendant took
possession of the UPS package, defendant placed the package in a
back bedroom closet under carpet remnants. This evidence supports
an inference that defendant knew the package contained cocaine.
Defendant did not present any evidence at trial. Accordingly,
there was no evidence before the jury rebutting the State's
evidence as to defendant's knowledge about the contents of the UPS
package. Accordingly, we hold that the trial court properly
declined to give defendant's requested instruction.
No error.
Judges TIMMONS-GOODSON and McCULLOUGH concur.
Report per Rule 30(e).
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