State v. Rodriguez, COA07-1525.

• Citation: 664 S.E.2d 654
• Decision Date: 19 August 2008
• Docket Number: No. COA07-1525.,COA07-1525.
• Parties: STATE of North Carolina v. Angel E. RODRIGUEZ.
• Court: Court of Appeal of North Carolina (US)

664 S.E.2d 654

STATE of North Carolina v. Angel E. RODRIGUEZ.

No. COA07-1525.

Court of Appeals of North Carolina.

August 19, 2008.

Appeal by defendant from judgments entered 31 July 2007 by Judge W. Osmond Smith, III, in Wake County Superior Court. Heard in the Court of Appeals 20 May 2008.

Attorney General Roy Cooper, by Assistant Attorney General Leonard G. Green, for the State.

Crumpler Freedman Parker & Witt, by Vincent F. Rabil, Winston-Salem, for defendant.

ELMORE, Judge.

Angel Rodriguez (defendant) was charged with five counts of first-degree kidnapping and four counts of attempted first degree murder. At the close of the State's case in chief, the trial court granted defendant's motion to dismiss all counts of attempted murder and three counts of first degree kidnapping, which were allowed to proceed as second degree kidnapping.

The evidence presented by the State tended to show: Defendant, known as "The Don," rented a house at 5329 Wenesly Court in Raleigh. Defendant was informed by a friend that "El Flaco," later identified as Miguel Alvarado (Alvarado), had drugs. Pena (Pena), one of defendant's accomplices, was instructed by defendant to drive a van to Windsor Falls Apartments off of Wake Forest Road, where Alvarado lived. Defendant and several accomplices drove in a separate car, which was equipped with flashing lights and a siren. When Pena arrived, defendant instructed him to park the van at a car wash to give the appearance that Pena was washing the van. Defendant instructed Pena to keep watch for the police and to wait for a phone call. Two of the men in the car with defendant had police shirts, badges, and guns underneath their outer clothing. When these men arrived at Alvarado's apartment, they removed their outer clothing and revealed their police badges.

Approximately ten to fifteen minutes after defendant and his accomplices arrived at Alvarado's apartment, defendant called Pena and told him to come to the apartment with the van because Alvarado had been captured. Pena drove the van to the front of Alvarado's apartment. Defendant and his accomplices placed Alvarado in the van. Pena drove the van to the house at 5329 Wenesly Court.

After being driven to the house, Alvarado was confined in a bedroom and questioned about drugs by defendant and four of his accomplices. Pena testified that he heard defendant's accomplices tell Alvarado that if he did not tell them where the drugs were "it was going to go bad for him." Alvarado informed defendant and his accomplices that two disc jockeys at Ambis, a Hispanic Club, had cocaine. The two disc jockeys were Juan Lezama (Lezama) and Ricardo Martinez (Martinez).

Martinez and Lezama lived in Windsor Falls Apartments in the same apartment with Alvarado. Pena testified that defendant directed him and the others to follow the same pattern they had used to kidnap Alvarado to kidnap Martinez and Lezama. Martinez was alone in the apartment when defendant and his accomplices entered the apartment claiming to be police officers. Martinez testified that the four people who entered the apartment broke the phone, threw him on the ground, and put ties on his hands. Lezama testified that when he returned to the apartment, a man he did not recognize forced him inside at gunpoint. Defendant and the others acted as though they were narcotics police officers. Lezama was handcuffed, taken to the bedroom, and questioned about drugs and money. Defendant and his accomplices told Lezama that they were taking him to the police precinct. Pena was instructed to drive the van over from the car wash. Lezama and Martinez were placed in the van and their heads were covered.

Defendant and his accomplices continued to interrogate Lezama and Martinez about the location of drugs for approximately eight hours. Lezama's wife, Luz Martinez (Luz), continually made contact with defendant and his accomplices via telephone. Luz was told that no harm would come to her husband or Martinez and that they would be released in a few hours. On one occasion when Luz was allowed to speak with her husband, she informed him of her discovery that defendant and his accomplices were not police officers.

Lezama testified that while confined at 5329 Wenesly Court, he could hear a man screaming and being hit. Lezama further testified that he could smell something burning. Later, Lezama heard a window break and a person yelling for help. Lezama and Martinez saw a man come in the room with a sledgehammer. The man came towards Lezama and Martinez as if he were going to hit them with the sledgehammer. Someone screamed "hey, hey, hey, no, no." Lezama and Martinez were told that if they called the police they would be killed. The men removed the handcuffs from Lezama and Martinez and released them. Lezama saw Alvarado as he was leaving defendant's house. He testified that Alvarado looked "extremely beat up ... his face was swollen ... [and] he could barely run."

Because Lezama and Martinez were unable to provide defendant with information about where the drugs and money were located, defendant's accomplices questioned Alvarado again. Pena testified that defendant's accomplices told Alvarado that they knew he was lying about having no knowledge of the drugs or the money. Alvarado eventually informed defendant's accomplices that he knew someone who could bring him drugs. Defendant allowed Alvarado to call someone, and Alvarado requested that the person on the phone bring ten to fifteen kilos of drugs. Alvarado arranged to meet the person at a fast food restaurant in Raleigh.

Defendant ordered Pena to go to the restaurant at the agreed-upon time and wait for the person bringing the drugs. While Pena was waiting for the person to arrive, defendant and the others parked in the parking lot of a hotel adjacent to the meeting place. A car matching the description given to Pena by defendant pulled into the parking lot. There were two men in the car who were later identified as Gustavo Carbajal (Carbajal) and Miguel Hernandez (Hernandez). Carbajal, the person Alvarado requested the drugs from, got into the van with Pena. Pena, with Carbajal as a passenger, and Hernandez following in the car, drove to an apartment complex off of Capital Boulevard to complete the purchase.

Defendant's accomplices had been following Pena, Carbajal, and Hernandez from a distance in the car equipped with the police lights and siren. Once Pena pulled into the apartment complex, defendant's accomplices pulled in front of Hernandez and put on their police lights and sirens. Two of defendant's accomplices got out of the car dressed as police officers, grabbed Hernandez from his car, and took him into the van. Carbajal and Hernandez were laid on the floor of the van. Pena drove Carbajal and Hernandez to the house at 5329 Wenesly Court.

Once at the house, defendant and his accomplices put Carbajal and Hernandez into a room and questioned them about where the drugs were located within Hernandez's car. Carbajal explained that the drugs were hidden and told defendant and his accomplices how to get to the hidden location. Defendant and his accomplices were still unable to find the drugs. One of defendant's accomplices brought Carbajal to the car. The car was running, so defendant's accomplice put a gun to Carbajal's ribs and told him if he tried to move the car he would be killed. Carbajal opened the compartment where the drugs were. Defendant and his accomplices removed the drugs from the car.

Stanley Marrin (Marrin) lived at 5333 Wenesly Court. He testified that on 14 September 2005, he heard a large breaking sound, and saw a man, later identified as Carbajal, running from a broken window at the house next door. John Williams (Williams), a construction worker, was working at a house near Wenesly Court on September 14. Williams testified that he heard someone screaming for help. He saw Carbajal come from the house wearing only his underwear and bound by handcuffs. Williams testified that Carbajal seemed extremely frightened. He furthered testified that Carbajal had multiple cuts, was bleeding from a large cut on his thigh, and appeared to have had candle wax poured on him. Williams helped Carbajal hide from defendant's accomplices, who were chasing him. Williams called 911.

Raleigh police officer Branford Winston (Winston) responded to the call from the area of 5329 Wenesly Court. Winston observed Williams talking to and providing first aid to a partially clothed and handcuffed Carbajal. Winston testified that Carbajal's face was swollen and bruised, that he had melted wax on him, that there was a deep cut on his thigh, and that he was in a lot of pain. Raleigh Detective Randy Miller (Miller) testified that the window at 5329 Wenesly Court had been broken from the inside. Miller furthered testified that in the house he located an air mattress, a large duffle bag full of stacks of money, a walkie-talkie, a police badge, a bathtub full of water, two candles, a sledgehammer, a cell phone, and charger.

Defendant presented no evidence.

Defendant first argues that "the trial court lacked jurisdiction to enter judgment against the defendant ... for first degree kidnapping where the indictments ... failed to allege necessary elements that the victims were seriously injured or not released in a safe place." We agree.

An indictment must contain "[a] plain and concise factual statement in each count which ... asserts facts supporting every element of a criminal offense and the defendant's commission thereof with sufficient precision clearly to apprise the defendant or defendants of the conduct which is the subject of the accusation." N.C. Gen. Stat. § 15A-924(a)(5) (2007). An indictment is the means by which a court obtains jurisdiction to prosecute a criminal case. State v. Stokes, 274 N.C. 409, 411, 163 S.E.2d 770, 772 (1968).

The established rule is that an indictment will not support a conviction for a crime unless all the elements...