State v. Diaz

• Decision Date: 31 December 2002
• Docket Number: No. COA02-145.,COA02-145.
• Citation: 155 NC App. 307,575 S.E.2d 523
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Ruben Aburto DIAZ and Jose Juan Espinoza Lopez.

575 S.E.2d 523

155 NC App. 307

STATE of North Carolina v. Ruben Aburto DIAZ and Jose Juan Espinoza Lopez.

No. COA02-145.

Court of Appeals of North Carolina.

December 31, 2002.

Roy Cooper, Attorney General, by Newton G. Pritchett, Jr., David J. Adinolfi, II, Assistant Attorneys General, for the State.

Staples Hughes, Appellate Defender, by Aaron Edward Carlos for defendant-appellant Diaz; and Angela H. Brown for defendant-appellant Lopez.

THOMAS, Judge.

Defendants, Ruben Aburto Diaz and Jose Juan Espinoza Lopez, appeal convictions of trafficking in cocaine by possessing in excess of 400 grams, possession with intent to sell or deliver cocaine, and conspiracy to traffic in cocaine. They were each sentenced to a minimum prison term of 175 months to 219 months. For the reasons herein, we find no error.

The State's evidence tends to show the following: Detective B.A. Bissett of the Greensboro Police Department's Vice and Narcotics Division received a telephone call from a confidential and reliable source. Based on the discussion that ensued, Bissett went to the Best Western Motel in Greensboro, North Carolina, and inquired about the registration of Lopez. Bissett discovered Lopez's full name, Jose Espinoza Lopez, his address in Reading, Pennsylvania, and that Lopez had a Pennsylvania license plate but a North Carolina driver's license. He further found that Lopez checked into Room 233 on the morning of 9 August 2001 without a reservation, paid for two nights in advance with cash, and requested no maid service. These facts heightened Bissett's suspicion of Lopez. Based on his experience as a narcotics detective, Bissett noted that people traveling long distances usually make reservations in advance and use a credit card. Further, regarding the "no maid service" request, Bissett noted that "individuals involved in the illicit drug trade do not want people coming in their room and doing anything because they're usually trying to hide something."

Bissett set up surveillance of Room 233 and Lopez's green Honda. Additional information from his source compelled Bissett to return to the motel office two days later, on 11 August 2001, to inquire about the registration of Arturo Gonzalez Ortuno. He learned that Ortuno checked into Room 244 without first making a reservation, paid with cash for five days, and requested no maid service.

Bissett then asked his department for assistance with surveillance so that both Room 233 and Room 244 could be observed. Early on the afternoon of 11 August 2001, a man identified as Diaz was seen leaving Room 233 and entering Room 244. This was the first time Bissett realized there was any link between the rooms and their occupants.

Soon thereafter, Diaz, Ortuno, a man named Jafet Gomez, and a fourth man never identified, were seen leaving Room 244 and getting into Ortuno's Eagle Vision vehicle. The police did not follow them. Upon return to the motel, the men went to Room 244. After a short while, they got back in the Eagle Vision with the police following them and went to a residence in Graham, North Carolina. After thirty minutes, the men left the Graham residence.

On the morning of 12 August 2001, Bissett noted that neither Diaz's green Honda nor Ortuno's Eagle Vision were in the motel parking lot. Seeing maids cleaning Room 244, Bissett asked a motel employee to retrieve the room's trash. The trash contained a receipt for digital scales, a piece of paper with handwritten calculations, and four different containers of inositol. Inositol is a substance mixed with cocaine to increase its weight, thereby increasing its street value. Bissett testified that scales are used to weigh and divide into grams the cocaine/inositol mix for the purpose of sale. Considering the purchase of scales, the calculations, and the amount of inositol, Bissett estimated that the individuals occupying the room "probably had somewhere in the neighborhood of six kilograms of cocaine."

Believing he then had probable cause to obtain a search warrant for both rooms, Bissett requested electronic surveillance of Room 233 and aid from additional police officers. Officer R.D. Koonce conducted video surveillance of Room 233 while other officers observed Room 244 and perimeter locations.

Shortly after noon, Ortuno arrived at the motel parking lot. Bissett watched as Ortuno took a paper bag from the trunk of a white Chevy Cavalier to Room 244. Soon thereafter, Ortuno and Gomez went to Room 233 where they remained for "quite some time." Diaz was observed exiting and then returning to Room 233 several times. Ortuno and Gomez then left the motel in Ortuno's vehicle.

Detective Kyle Shearer, having received a radio broadcast that Ortuno and Gomez were leaving the motel, followed them and maintained close visual surveillance. The two men eventually pulled over to a curb, removed a box from the trunk, and put it on the roadside embankment. Told the men had returned to the motel, Detectives Shearer and Bissett went to the embankment and found a box containing approximately two kilograms of cocaine.

Koonce, meanwhile, maintained surveillance of the parking lot and Room 233. He observed Ortuno and Gomez return. The two men removed a small blue bag from the trunk of the white Chevy Cavalier and went to Room 233. Eventually, both men left Room 233 and went to Room 244. They then left the motel, Ortuno in the Eagle Vision and Gomez in the Chevy Cavalier. Ortuno and Gomez were followed by the police and, approximately eight miles from the motel, arrested. The Eagle Vision contained $6000 in cash. A blue apron containing $2000 was found in the Chevy Cavalier.

As Ortuno and Gomez were being arrested, Shearer remained at the motel and observed Diaz leaving Room 233 with two small suitcases and entering Room 244. Shearer took Diaz into custody and left him in Room 244 with several detectives. Upon returning to the parking lot, Shearer saw Lopez arriving in the green Honda. After identifying himself, Shearer arrested Lopez. Lopez admitted that he had rented Room 233, but said he was not staying in it. Shearer then escorted Lopez to Room 233, where Lopez consented to a search. The search revealed three "bricks," or kilos of cocaine.

Pursuant to a plea arrangement with the State, Ortuno testified against Diaz and Lopez. Ortuno admitted that, in exchange for $6000, he agreed to help Gomez "move" some packages arriving from Winston-Salem, North Carolina, which Gomez had said contained marijuana. When Diaz and Lopez arrived from Winston-Salem with luggage containing cocaine, Ortuno protested, but felt he had to do what he was told because of threats from Gomez. Lopez and Diaz then took the packages of cocaine to the Days Inn Motel in Greensboro.

Eventually, Ortuno and Gomez went to the Days Inn. There, Gomez told Diaz to put the packages in Gomez's white Chevy Cavalier. Ortuno, Gomez, and Diaz proceeded to rent rooms at Motel 8, a neighboring motel, with Lopez arriving later. Lopez asked Diaz if he had sold the packages. Diaz said he had not. Lopez responded that he would need to take them to Virginia. Ortuno testified that Lopez had agreed to pay Diaz $24,000. Lopez returned the next day and took Diaz to yet another motel because he said he believed people were watching them.

On 12 August 2001, Ortuno and Gomez attempted to sell two packages of the cocaine to a man in Burlington, North Carolina, but were told the cocaine was "not right" or "no good." Gomez was angered by this, and confronted Diaz. He told Diaz "he was not going to help him anymore. He told him to take his packages." Finally, Gomez agreed he would help but Diaz would have to wait a couple of days. Gomez then told Ortuno to take him somewhere to hide the packages. It was at this time that the two men were observed placing the box containing two kilograms of cocaine on the embankment.

After hiding the box, Ortuno and Gomez went to Room 233. There, Ortuno heard Diaz call Lopez and ask if he would arrive soon. Lopez said yes. Ortuno and Gomez then returned to their room. After receiving $6000, Ortuno left, "[b]ecause [he] didn't have anything else to do with them." He met Lopez and Diaz again in jail, however. Both defendants repeatedly told Ortuno not to say anything to the police.

The defendants elected not to present evidence and their motions to dismiss at the close of the State's evidence and at the close of all the evidence were denied.

The trial court instructed the jury that it could use the theory of acting in concert in addition to the theory of constructive possession as to the charges of trafficking in cocaine by possessing at least 400 grams and possession with intent to sell or deliver. The jury found defendants guilty.

On appeal, Diaz and Lopez each set forth four assignments of error. Diaz contends the trial court erred in: (1) giving a jury instruction on acting in concert; (2) overruling his objections to Bissett's testimony regarding "indicators of drug trafficking" and "special focus" of motels for drug trafficking; (3) not suppressing evidence seized during unreasonable searches; and (4) denying him the last closing argument.

Lopez asserts the trial court erred in: (1) giving a jury instruction on acting in concert; (2) overruling his objection to the testimony concerning indicators of drug trafficking; (3) trying him without a competent, experienced Spanish-speaking translator at all times in the courtroom; and (4) denying his motion to dismiss at the close of all the evidence for insufficiency.

We combine both defendants' assignments of error (1) and (2) above and address them first. We then address Diaz's two remaining assignments of error. Finally, we examine Lopez's remaining two assignments of error.

By their first assignment of error, defendants argue that the trial court erred in instructing the jury on the theory of acting in concert for the trafficking charges. Specifically, they assert: (1) there was insufficient evidence to...