NO. COA06-1342
Appeal by defendant from judgments entered 3 February 2006 by
Judge Henry W. Hight, Jr., in Wake County Superior Court. Heard in
the Court of Appeals 11 June 2007.
Attorney General Roy Cooper, by Assistant Attorney General
John P. Scherer, II, for the State.
Glover & Petersen, P.A., by James R. Glover, for defendant-
appellant.
MARTIN, Chief Judge.
Defendant Fernando Esquivel was charged in a bill of
indictment with trafficking in cocaine by delivery and trafficking
in cocaine by sale. A jury found defendant guilty as charged. The
trial court sentenced defendant to two consecutive sentences of 173
to 219 months imprisonment. Defendant appeals.
The evidence for the State tended to show that on the morning
of 29 January 2005, defendant drove a construction van to a pre-
arranged location and gave a brick-shaped object containing 993.8
grams of cocaine to a confidential informant in exchange for money.
Defendant testified on his own behalf.
________________________
Defendant contends the trial court erred in entering judgments
against him for trafficking in cocaine by sale and by delivery
because the indictments were fatally flawed. The first indictment
alleged: “that on or about the 29
th day of January, 2005, in the
county named above the defendant named above unlawfully, willfully
and feloniously did traffic by delivery 400 grams or more of
cocaine, a controlled substance which is included in Schedule II of
the North Carolina Controlled Substances Act.” The second
indictment alleged: “that on or about the 29
th day of January, 2005,
in the county named above the defendant named above unlawfully,
wilfully and feloniously did traffic by sale 400 grams or more of
cocaine, a controlled substance which is included in Schedule II of
the North Carolina Controlled Substances Act.” Defendant asserts
the indictments do not name the person to whom a sale was allegedly
made and do not allege that the name of the purchaser is unknown
and, therefore, the judgments must be vacated. We agree.
North Carolina Courts have held that an indictment must state
the name of the person to whom the accused allegedly sold narcotics
unlawfully when it is known or must allege in the alternative that
the name of the person is unknown.
See State v. Calvino, ___ N.C.
App. ___,
632 S.E.2d 839, 842 (2006) (vacating defendant's
conviction for sale and delivery of cocaine because indictment was
fatally flawed in that it did not state the name of the person to
whom defendant allegedly sold narcotics when the State knew the
name of the individual);
State v. Wall, 96 N.C. App. 45, 49, 384
S.E.2d 581, 583 (1989) (“[A]n indictment for the sale and/ordelivery of a controlled substance must accurately name the person
to whom the defendant allegedly sold or delivered, if that person
is known.”);
State v. Martindale, 15 N.C. App. 216, 218, 189 S.E.2d
549, 550 (1972) (holding the indictment for the unlawful sale of
narcotics was improper for failing to state the name of the person
to whom defendant allegedly sold narcotics unlawfully or that his
name was unknown);
State v. Long, 14 N.C. App. 508, 510, 188 S.E.2d
690, 691 (1972) (holding the indictment concerning the sale of
narcotics was fatally defective and could not sustain judgment
because indictment failed to state the name of the person to whom
defendant allegedly sold marijuana or that the name of such person
was unknown);
State v. Bennett, 280 N.C. 167, 185 S.E.2d 147 (1971)
(arresting judgment based on the indictment charging unlawful sale
of narcotics when indictment failed to state sufficient facts
because it did not allege the name of the person to whom the sale
was made or that his name was unknown)
.
Here, the indictments
allege neither the name of the individual to whom defendant
allegedly sold or delivered the cocaine in question nor that the
name of the individual was unknown.
Although the State acknowledges the holdings in these cases,
it contends they were wrongly decided, and argues as such to
preserve the issue for further review. We are bound by prior
decisions of a panel of this Court,
In the Matter of Appeal from
Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 36 (1989), and we
vacate defendant's convictions for trafficking in cocaine by sale
and by delivery because the indictments were fatally defective.
Vacated.
Judges CALABRIA and JACKSON concur.
Report per Rule 30(e).
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