              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA17-1147

                                  Filed: 3 July 2018

Guilford County, No. 15 CRS 70255

STATE OF NORTH CAROLINA

             v.

JUAN CARLOS GOMEZ PEREZ


      Appeal by defendant from judgments entered 1 December 2016 by Judge R.

Stuart Albright in Guilford County Superior Court. Heard in the Court of Appeals 2

May 2018.


      Attorney General Joshua H. Stein, by Assistant Attorney General Melissa H.
      Taylor, for the State.

      Paul F. Herzog for defendant.


      DIETZ, Judge.


      Defendant Juan Carlos Gomez Perez appeals his convictions on multiple

serious drug offenses. He argues that the trial court violated his Confrontation Clause

rights and other related constitutional rights when the court permitted him to

stipulate to the admission of a forensic laboratory report without first addressing him

personally and ensuring that he understood the stipulation would waive those rights.

      As explained below, the trial court was not required to personally address

Perez about his stipulation and corresponding waiver. Both Perez and his counsel

signed the stipulation. It is for his counsel—not the trial court—to discuss the
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strategic implications of that stipulation and the effect is has on his right to confront

the witnesses against him. If Perez did not understand the implications of the

stipulation, his recourse is to pursue a claim for ineffective assistance of counsel.

Accordingly, we find no error in the trial court’s judgments.

                          Facts and Procedural History

      The State indicted Defendant Juan Carlos Gomez Perez for conspiracy to

traffic by possession of 400 grams or more of cocaine, trafficking by possession of 400

grams or more of cocaine, and trafficking by transportation of 400 grams or more of

cocaine. The charges stemmed from a drug task force investigation that intercepted

a truck containing multiple “bricks” of cocaine.

      At trial, the prosecutor informed the court that Perez intended to stipulate to

admission of forensic laboratory reports confirming that the substance seized from

the truck was cocaine. The following exchange occurred:

          THE COURT: Is there a written stipulation to that effect?

          [DEFENSE COUNSEL]: There is, Your Honor.

          THE COURT: Okay.

          [PROSECUTOR]: In retrospect, I should have included the
          signature line for the defendant.

          THE COURT: Go ahead and just write that in.

          [PROSECUTOR]: Alright.

                           Brief pause


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[PROSECUTOR]: May I approach, Your Honor?

THE COURT: Yes. Just a minute. So I have three exhibits . . . .
They’re not exhibits yet. They’re unmarked stipulations, attached
to each stipulation; there are a total of three. These are unmarked
exhibits that indicates whatever the State is going to identify,
whatever the potential exhibit will be admitted, is going to be
admitted without requiring further authentication, if otherwise
deemed admissible by the Court. So is there going to be an
objection to any of this evidence?

[DEFENSE COUNSEL]: No, sir.

THE COURT: Okay.

[DEFENSE COUNSEL]: My understanding is that we’re talking
about the drugs themselves and the absence of any latent
fingerprint evidence on the packaging.

THE COURT: One of them there is a U.S. Department of Justice
Drug Enforcement Administration, DEA, dated March 10th,
2016, regarding the fact that there were no latent prints
developed; another one is from the same agency, dated January
28, 2016, indicating 2,994 grams of cocaine were identified,
whatever was analyzed, that’s what was identified, and the
weight. So it identified the substance being cocaine, and weight
being what I just said it was. And finally, the last one is dated
January 28, 2016, the same date as the last one. Again, it is the
substance that was analyzed was identified as being cocaine, and
then the weight of this is stated to be 5,995 grams.

[DEFENSE COUNSEL]: That is correct.

THE COURT: Then the State is going to then -- how do you intend
to offer these into evidence, just so there is no confusion?

[PROSECUTOR]: At the appropriate time, Your Honor, with the
Case Agent responsible ultimately for collecting the substances, I
would move to introduce the stipulations at the same time as the


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         physical evidence, and then move to publish the documents
         themselves.

         THE COURT: Mr. Baucino?

         [DEFENSE COUNSEL]: No objection.

         THE COURT: If you’ll approach, at the appropriate time, please
         do so. I note that all the parties, both attorneys and the defendant
         have all signed each stipulation; again, there being a total of three
         stipulations, with the exhibits identified in cursory fashion
         attached to each stipulation.

      The trial court admitted the stipulated evidence later in the trial. The jury

found Perez guilty on all charges. The court sentenced him to three consecutive

sentences of 175 to 222 months in prison. Perez timely appealed.

                                      Analysis

      On appeal, Perez argues that the trial court erred by permitting him to

stipulate to the admission of the forensic laboratory reports without engaging in a

colloquy to ensure he understood the consequences of that decision. He contends that

“a trial judge is required to personally address a defendant whose attorney seeks to

waive any of his constitutional rights via stipulation with the State.” As explained

below, we reject this argument.

      We begin by acknowledging that Perez’s stipulation acted as a waiver of his

Confrontation Clause rights and other corresponding constitutional rights. Without

the stipulation, the State would have been required to call a witness to discuss the

lab reports. That witness could be cross-examined by Perez. Thus, by stipulating to


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the admission of the lab reports, Perez waived his right to cross-examine the State’s

witness. See State v. Moore, 275 N.C. 198, 210, 166 S.E.2d 652, 660 (1969).

      But the waiver of Confrontation Clause rights does not require the sort of

extensive colloquy needed to waive the right to counsel or enter a guilty plea. Cf.

Boykin v. Alabama, 395 U.S. 238 (1969). Perez argues that our decision in State v.

English, 171 N.C. App. 277, 283–84, 614 S.E.2d 405, 409–10 (2005), imposed a

requirement for trial courts to engage in a personal colloquy directly with the

defendant before stipulating to the admission of evidence, but that is not what

English holds. Instead, English simply reaffirmed that defendants can waive their

Confrontation Clause rights by stipulating to the admission of evidence that

otherwise would be admissible only when accompanied by live testimony. Id.

      To be sure, the trial court in English engaged in the sort of colloquy that Perez

believes should be a constitutional requirement in every case. But English did not

hold that this colloquy was necessary. Id. Indeed, in his concurrence in English, Judge

Steelman suggested that the Court should have sanctioned the defendant’s appellate

counsel for asserting the Confrontation Clause argument because the trial court’s

colloquy “went above and beyond” what is required and rendered defendant’s

argument frivolous. Id. at 286, 614 S.E.2d at 411.

      Here, both Perez and his counsel signed written stipulations to admit the lab

reports without the requirement that they be accompanied by witness testimony. On



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appeal, this Court is not permitted to determine whether there were strategic reasons

for Perez and his counsel to stipulate to the admission of this evidence, but there

certainly are conceivable strategic reasons for doing so. See State v. Todd, 369 N.C.

707, 711–12, 799 S.E.2d 834, 838 (2017). For example, the stipulation also ensured

that the portion of the lab report showing there were no fingerprints on the bricks of

cocaine was admissible. Likewise, Perez and his counsel may have been concerned

that detailed testimony about the testing of this large amount of seized cocaine may

have simply reinforced for the jury that this was a serious drug trafficking case.

      Notably, Perez does not argue that his counsel failed to discuss these strategic

issues with him, or that his counsel failed to explain that stipulating to admission of

the lab reports would waive his Confrontation Clause rights. Instead, he argues that

the trial court should have discussed these issues with him in open court.

      We decline Perez’s request to impose on the trial courts an obligation “to

personally address a defendant whose attorney seeks to waive any of his

constitutional rights via stipulation with the State.” If Perez did not understand the

implications of stipulating to the admission of the lab reports at trial, his recourse is

to pursue a motion for appropriate relief asserting ineffective assistance of counsel.

Accordingly, we reject Perez’s argument and find no error in the trial court’s

judgments.

      NO ERROR.



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Judges DILLON and ARROWOOD concur.




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