State v. Crocco, Opinion Number: 2013-NMCA-033
| Decision Date | 13 March 2013 |
| Docket Number | Opinion Number: 2013-NMCA-033,Docket No. 31,498 |
| Parties | STATE OF NEW MEXICO, Plaintiff-Appellee, v. GREGG CROCCO, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Certiorari Granted, March 1, 2013, No. 33,938
APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY
Gary K. King, Attorney General
Margaret McLean, Assistant Attorney General
for Appellee
Anthony J. Ayala
Albuquerque, NM
for Appellant
{1} Following a warrantless police entry into a private residence, Defendant Gregg Crocco was arrested and charged with aggravated driving while intoxicated, contrary to NMSA 1978, Section 66-8-102(D)(1) (2008) (amended 2010). His trial counsel did not move to suppress evidence that resulted from the warrantless entry. Defendant was convicted and he appeals, arguing, among other things, that the police made an unconstitutional warrantless entry into the residence and that his counsel was ineffective for failing to move to suppress the evidence obtained as a result. We hold that Defendant hasmade a prima facie showing of ineffective assistance of counsel based on his counsel's failure to move to suppress evidence gained from the warrantless entry. We reverse Defendant's conviction and remand for a new trial.
{2} Officer Charles Weaver of the City of Rio Rancho, New Mexico, Police Department was dispatched to 1584 15th Avenue in Rio Rancho, in response to a 911 call that The individual was later identified as Defendant. Having obtained fragments of a license plate number and a description of the vehicle, a green Ford Explorer, Officer Weaver began looking one street over, on 14th Avenue, from the address of the original incident. He immediately located a vehicle that matched the description he had received. The vehicle was parked on the street in front of 1690 14th Avenue. A registration inquiry of the vehicle, returned Defendant's name and an address in Corrales, New Mexico.
{3} Based on his observation that the vehicle was "very warm to the touch" and based on the fact that it matched the description he had received from dispatch, Officer Weaver called for his back up officer, Sean Ginn. Officer Weaver then looked inside the vehicle and observed a pint-size bottle of vodka, empty except for a small amount of clear liquid. When Officer Ginn arrived, Officer Weaver focused his attention on the residence in front of which the vehicle was parked.
{4} As to his next steps, Officer Weaver testified as follows:
I proceeded to the front of [the] residence, 1690 14th Avenue. Officer Ginn was with me. We were observing the exterior of the residence. We then went up to the front door of the residence. I was somewhat concerned, given the totality of the call that we were on, as far as the person reportedly had entered a residence that he was not known to be—wasn't supposed to be there. People didn't know him. So I didn't know what this individual's intentions were that had made that—approached the original caller, so I went up to that house, now at 1690 14th Avenue, rang the doorbell several times, knocked on the door to attempt to get somebody to come out.
Officer Weaver testified that he did not hear or see anything, and that there were no signs of movement inside the house. The door was unlocked and, having opened it, Officers Weaver and Ginn announced themselves as police officers. From the threshold of the front door, they could see a pair of legs sticking out as though they were on a couch in the living room toward the back of the house. Officer Weaver then "directed [his] announcements in [the] direction" of the legs. He "got no response at all[,]" and he "didn't see any signs of movement from the legs." The officers entered the house and "slowly continued through the house" toward the legs. Officer Weaver testified that
{5} According to Officer Weaver, he and Officer Ginn "entered . . . the residence in order to identify the occupants of the home and any other problems that were going on there, because [he] was concerned at that point in time for the safety of the folks within." Officer Ginn offered a similar account of their reason for entering the house. He testified that "[b]ased on the . . . information that [Defendant] had entered a home that was not his, we felt it was up to us to check the safety of the occupants inside the home[.]"
{6} While Officer Ginn "clear[ed] the rest of the house for other occupants[,]" Officer Weaver stayed with Defendant. The officer "tried waking him up, yelling at him, [and] shaking him." To Officer Weaver, "[i]t was clear . . . that [Defendant] was sleeping or passed out, and he exhibited extreme signs of intoxication." After "several moments[,]" Defendant woke. Officer Weaver testified that he tried to ask Defendant whether he lived in the house and whether he knew whose house it was but, aside from yelling profanities, Defendant responded initially by "just staring" at the officer. "[B]ecause of his mannerisms, because of his screaming profanities and not being cooperative, [Officer Weaver] placed [Defendant] in handcuffs[.]"
{7} Defendant told Officer Weaver that the house belonged to somebody named Michael. Officer Weaver found some mail on the kitchen counter addressed to "Michael" so he "was somewhat relieved that [Defendant knew] the name of the individual there." Defendant did not respond to Officer Weaver's inquiries regarding whether he had permission to be in the house or whether the residents of the house knew he was there. Officer Weaver took Defendant out of the residence and placed Defendant in his patrol car "so as to continue the investigation." "Ultimately," Officer Weaver testified, "based on the information that [he and Officer Ginn] had that warranted [a driving while intoxicated] investigation[,]" he contacted an officer from the DWI unit to further conduct such an investigation.
{8} Officer Joel Holt, of the DWI unit, administered a series of field sobriety tests upon Defendant. Based on his observations of Defendant's performance on the field sobriety tests, as well as the information he had received from the other two officers, Officer Holt determined that Defendant was impaired, and he placed Defendant under arrest for driving while intoxicated. At the police station, Defendant submitted two breath samples, the results of which revealed Defendant's breath alcohol content to be .26 and .27, more than twice the legal limit.
{9} Following a bench trial, Defendant was convicted of aggravated driving while intoxicated. After trial, but before sentencing, Defendant moved for and was granted leave to substitute his counsel in this matter. Through his new counsel, Defendant moved to set aside the verdict or for a new trial. Defendant's motion was based on ineffective assistance of counsel, particularly the failure of his trial counsel to move to suppress evidence that was, in Defendant's view, "obtained following an illegal entry and search of a home where [D]efendant was allowed to stay."
{10} The district court held a hearing on Defendant's motion for a new trial based on ineffective assistance of counsel. The court denied the motion based, in part, on the absence in the record of any evidence of Defendant's standing to object to the warrantless entry. Additionally, the court found that:
[the officers'] entry into the home was reasonable, not only for officer safety, because I don't believe they really felt they were in danger, but more of the safety of any potential occupants of this residence, because they already had a report where someone had entered the wrong residence. And their continued investigation into the DWI was also reasonable based upon information that they had at the time.
{11} Defendant was sentenced in accordance with the guilty verdict, and he appeals from the final judgment and sentence. On appeal, Defendant argues that his trial counsel was ineffective because he did not move to suppress evidence on the grounds that the warrantless police entry into the house in which Defendant was arrested violated the United States and New Mexico Constitutions. He presents an argument encompassing the evidentiary and legal support for a motion to suppress which, in his view, establishes a prima facie case of ineffective assistance of counsel. And he requests that we order the evidence suppressed and reverse his conviction.
{12} Contrary to the district court's conclusion that Defendant's motion for a new trial based on ineffective assistance of counsel was "not well-taken," we hold that Defendant has made a prima facie showing of ineffective assistance of counsel based on his trial counsel's failure to move to suppress evidence based on the warrantless police entry into the residence. We reverse Defendant's conviction. Defendant is entitled to a new trial. Because we reverse Defendant's conviction on this basis, we do not consider Defendant's remaining arguments.
{13} The Sixth Amendment to the United States Constitution guarantees the right to the effective assistance of counsel. Patterson v. LeMaster, 2001-NMSC-013, ¶ 16, 130 N.M. 179, 21 P.3d 1032. "We review claims of ineffective assistance of counsel de novo." State v. Dylan J., 2009-NMCA-027, ¶ 33, 145 N.M. 719, 204 P.3d 44. To evaluate a claim of ineffective assistance of counsel, we apply the two-part test in Strickland v. Washington, 466 U.S. 668, 687 (1984). Dylan J., 2009-NMCA-027, ¶ 36.
{14} The first requirement of the Strickland test is a showing by the defendant "that counsel's performance was deficient," that is, "that counsel made errors so serious that counsel was not...
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