State Carolina v. Hernandez

• Decision Date: 21 December 2010
• Docket Number: No. COA10–178.,COA10–178.
• Citation: 704 S.E.2d 55
• Parties: STATE of North Carolinav.Carlos Rozeles HERNANDEZ, aka Adam Gusman, aka Carlos R. Hernandez, a/k/a Carlos Rozalas Hernandez, Defendant.
• Court: North Carolina Court of Appeals

704 S.E.2d 55

STATE of North Carolina

v.Carlos Rozeles HERNANDEZ, aka Adam Gusman, aka Carlos R. Hernandez, a/k/a Carlos Rozalas Hernandez, Defendant.

No. COA10–178.

Court of Appeals of North Carolina.

Dec. 21, 2010.

OPINION TEXT STARTS HERE

Appeal by Defendant from judgments entered 13 and 19 May 2009 by Judge James M. Webb in Rockingham County Superior Court. Heard in the Court of Appeals 30 August 2010.

Attorney General Roy Cooper, by W. Wallace Finlator, Jr., Assistant Attorney General, for the State.

Greene & Wilson, P.A., by Thomas Reston Wilson, New Bern, for Defendant–Appellant.

ERVIN, Judge.

Defendant Carlos Hernandez ¹ appeals from judgments entered based upon his convictions for assault with a deadly weapon with intent to kill inflicting serious injury, attempted first degree murder, and armed robbery. On appeal, Defendant challenges the trial court's decision to deny his motions to suppress evidence seized during a 3 January 2007 search of a pickup truck in which he was riding in New Jersey. After careful consideration of Defendant's challenges to the trial court's decision in light of the record and the applicable law, we find no error in the proceedings leading to the entry of the trial court's judgments.

I. Factual Background

A. Substantive Facts

On 28 December 2006, Rosa Rodriguez Dominguez and her husband, Santiago Mungary, owned and operated a store in Reidsville, North Carolina, at which they sold, among other things, 14 carat gold jewelry. On the evening of 28 December 2006, four Hispanic men entered the store. After coming into the store, one of them threatened the couple with a pistol. As two of the men held Ms. Rodriguez, she heard her husband struggling with the others and then heard a gunshot. At that point, the other men threatened to shoot Ms. Rodriguez, after which she heard another loud noise and experienced a “very hard hit” to her head. Ms. Rodriguez passed out on the floor, awoke just as the men were leaving, called 911, and reported that her husband, who was severely and permanently disabled by a gunshot wound, had been injured. Subsequently, Ms. Rodriguez discovered that all the jewelry had been stolen from the display case. At trial, Ms. Rodriguez identified Defendant as one of the perpetrators of the robbery.

At approximately 8:00 p.m. on 3 January 2007, New Jersey State Police Trooper Deverron Ramcheran was on patrol on I–295 South, about seventy miles south of New York City and 40 miles north of Philadelphia. Trooper Ramcheran stopped a 1978 pickup truck after observing that it had followed another vehicle too closely and had been making erratic lane changes. According to Trooper Ramcheran, four Hispanic men occupied the truck, with the driver, Jose Arturo Reyes Ocampo, Defendant, and Josue Rodriguez sitting in the front seat and a man named Israel Manuel concealed under a blanket in the truck's bed. At the time that Trooper Ramcheran spoke with the four men, he noted that (1) none of them had a drivers license or other identification; (2) they gave inconsistent descriptions of their itinerary; (3) some of the men stated that the group was driving into various boroughs of New York despite the fact that they were more than an hour's drive from New York and heading south when Trooper Ramcheran stopped them; (4) the driver had “unusual tattoos on his hands” that Trooper Ramcheran associated with criminal gang membership; (5) despite the fact that one or more of the men claimed to be traveling from North Carolina to New York, none of them appeared to have sufficient luggage for such a long trip; and (6) the driver exhibited a nervous and evasive demeanor. As Trooper Ramcheran talked with the occupants of the vehicle, several other officers arrived.

After speaking with the occupants of the truck for about fifteen minutes and while acting consistently with his observations and New Jersey state law, Trooper Ramcheran telephoned his supervisor in order to ask permission to seek the driver's consent to search the truck. Trooper Ramcheran's supervisor authorized him to seek consent to search the truck on the condition that he utilize a Spanish language consent form. Since he did not have a Spanish language consent form in his patrol vehicle, Trooper Ramcheran radioed other officers and requested that one be brought to him.

After another trooper arrived with a Spanish language consent form, Trooper Ramcheran sought and obtained the driver's consent to search the truck. In the course of his search, Trooper Ramcheran found a loaded .380 caliber firearm in the bed of the truck. At that point, Trooper Ramcheran directed the other officers to handcuff all four men. During a subsequent search of Defendant's person, investigating officers found various items of incriminating evidence, including a woman's wallet and jewelry. In addition, two other firearms, including one associated with the Reidsville robbery, and an assortment of jewelry to which price tags were still affixed, were seized from the pickup truck after the discovery of the .380 caliber firearm. The occupants of the truck were arrested for unlawfully possessing firearms and transported to the New Jersey State Police barracks for further processing.

On 10 January 2007, Special Agents Brian Norman and Duane Deaver of the State Bureau of Investigation traveled to New Jersey, where they interviewed Defendant. During the interview, Special Agent Norman posed questions in English, after which Special Agent Deaver would translate the questions into Spanish for Defendant's benefit. After Defendant answered Special Agent Norman's questions in Spanish, Special Agent Deaver provided an English translation of what Defendant said. During the course of this interview, Defendant made an incriminating statement admitting his participation in the 28 December 2006 robbery.

B. Procedural History

On 5 January 2007, a warrant for arrest was issued charging Defendant with assaulting Mr. Mungaray with a deadly weapon with intent to kill inflicting serious injury and with robbing Mr. Mungaray with a dangerous weapon. On 5 February 2007, the Rockingham County Grand Jury returned bills of indictment charging Defendant with assaulting Mr. Mungaray with a deadly weapon with intent to kill inflicting serious injury, robbing Mr. Mungaray with a dangerous weapon, and the attempted first degree murder of Mr. Mungaray. On 11 December 2007, Defendant waived extradition to North Carolina.

On 6 March 2009, Defendant filed a motion to “suppress all evidence obtained as a result of the Defendant's arrest on January 3, 2007, including any statements made to law enforcement officials and the use of any physical evidence seized from the Defendant's person as fruits of an illegal arrest and detention of the Defendant.” According to Defendant's suppression motion, although the discovery of a handgun in the truck justified a “pat down” of Defendant, the officers lacked probable cause to search him; the officers lacked probable cause to arrest him for unlawful possession of a firearm; and Trooper Ramcheran had no basis for forming “a reasonable and articulable suspicion that any criminal activity occurring in connection with the Ford pickup truck was related to the Defendant.” On 16 March 2009, Defendant filed an addendum to his suppression motion in which he asserted that the search of the truck violated the provisions of the New Jersey Constitution as outlined in State v. Elders, 192 N.J. 224, 927 A.2d 1250 (2007). On 4 May 2009, Defendant filed a third suppression motion in which he incorporated his earlier allegations and asserted that the driver of the truck “did not knowingly and freely consent” to the search of the truck; that Defendant had “standing to contest the search of the vehicle;” and that he was effectively in custody as soon as he was “removed from the vehicle and ... required to sit on the grass beside the vehicle.”

On 4 May 2009, the trial court began conducting a hearing concerning Defendant's suppression motions. After the presentation of evidence and arguments of counsel, the trial court entered an order on 6 May 2009 denying Defendant's suppression motion on the basis of oral findings of fact and conclusions of law.² After the denial of Defendant's suppression motions, the charges against Defendant came on for trial before the trial court and a jury. On 13 May 2009, the jury returned verdicts finding Defendant guilty of attempted first degree murder, assault with a deadly weapon with intent to kill inflicting serious injury, and robbery with a dangerous weapon. After determining that Defendant had one prior record point and should be sentenced as a Level II offender, the trial court entered judgments sentencing Defendant to a minimum term of 100 months and a maximum term of 129 months imprisonment in the custody of the North Carolina Department of Correction for assault with a deadly weapon with intent to kill inflicting serious injury; to a concurrent term of a minimum of 77 months and a maximum of 102 months imprisonment in the custody of the North Carolina Department of Correction for robbery with a dangerous weapon; ³ and to a consecutive term of a minimum of 151 months and a maximum of 191 months imprisonment in the custody of the North Carolina Department of Correction for attempted first degree murder. Defendant noted an appeal to this Court from the trial court's judgments.

II. Legal Analysis

A. Introduction

Defendant's sole challenge to the trial court's judgments is his contention that the trial court erred by denying his pretrial motions to suppress evidence, including incriminating statements, obtained as a result of the stop of the truck in which Defendant was riding. In his brief, Defendant argues that his detention by law enforcement officers violated the provisions of the United States and North Carolina Constitutions prohibiting unreasonable searches and seizures on the grounds that, while Trooper Ramcheran had a valid basis for...