State v. Hernandez
| Decision Date | 04 June 2013 |
| Docket Number | Nos. COA12–924,COA12–1131.,s. COA12–924 |
| Citation | 742 S.E.2d 825 |
| Parties | STATE of North Carolina v. Rene Reyes HERNANDEZ State of North Carolina v. Dawn Michelle Davis. |
| Court | North Carolina Court of Appeals |
Appeal by defendants from judgments entered 30 January 2012 by Judge Gary M. Gavenus in Buncombe County Superior Court. Heard in the Court of Appeals 30 January 2013.
Attorney General Roy Cooper, by Special Deputy Attorney General Richard E. Slipsky, for the State in response to Defendant Rene Reyes Hernandez.
Attorney General Roy Cooper, by Assistant Attorney General Martin T. McCracken, for the State in response to Defendant Dawn Michelle Davis.
Appellate Defender Staples Hughes, by Assistant Appellate Defender S. Hannah Demeritt, for Defendant–Appellant Hernandez.
Bushnaq Law Office, PLLC, by Faith S. Bushnaq, for Defendant–Appellant Davis.
Defendants Rene Reyes Hernandez and Dawn Michelle Davis 1 appeal from judgments sentencing them to 25 to 30 months imprisonment based upon pleas of guilty to various drug-related offenses. On appeal, Defendants argue that the trial court erred by denying their motions to suppress evidence seized from a motor vehicle owned by Defendant Davis and operated by Defendant Hernandez and from a residence occupied by Defendant Davis. After careful consideration of Defendants' challenges to the trial court's order in light of the record and the applicable law, we conclude that Defendants have failed to properly preserve their principal challenge to the trial court's order for appellate review, that Defendant Davis' ineffective assistance of counsel claim is not ripe for determination at this time, and that, for these reasons, the trial court's judgments should remain undisturbed.
At 7:04 p.m. on 19 March 2011, the Buncombe County Sheriff's Department received an anonymous phone call asserting that a drug transaction would occur later that evening at a specific mobile home located in Woodfin. According to the caller, 50 pounds of marijuana would be delivered by an Hispanic male to a tan and off-white mobile home which had a large front porch on which a number of children's bicycles would be situated. The individual making the delivery would be coming from Hendersonville and would be driving a black Chevy Tahoe with tinted windows. According to the caller, an Hispanic male named “Renea” Hernandez and a white female named Dawn Davis would leave the mobile home around 4:00 a.m. in a maroon Honda for the purpose of taking the marijuana into Tennessee via I–26. The caller also indicated that the maroon Honda was registered to and would be driven by Defendant Davis.
Shortly thereafter, Officer Corey Smith of the Woodfin Police Department traveled to the address provided by the anonymous caller in an attempt to verify the accuracy of the information that had been provided by that individual. Upon arriving at the residence, Officer Smith observed a maroon vehicle sitting outside of the mobile home. In addition, Officer Smith observed an Hispanic male sitting on the couch inside the mobile home. Finally, Officer Smith noticed that the mobile home had a large front porch on which a number of bicycles were situated.
Although certain portions of the information provided by the caller were correct, other portions turned out to be inaccurate. For example, no black Tahoe was parked at the residence. In addition, the maroon vehicle which the officers observed was a 1995 Nissan Maxima rather than a Honda. Finally, the mobile home which Officers Lawrence and Smith observed was blue and white rather than tan and off-white.
After this initial examination of the mobile home and its surroundings, Officer Smith left the area and met up with Officer Lawrence Thomas, also of the Woodfin Police Department, to decide how to proceed. The officers returned to the vicinity of the mobile home at approximately 11:00 p.m. for the purpose of conducting surveillance from a nearby church parking lot. At 3:56 a.m., Officer Smith observed a dark-colored vehicle, which he believed to be the same vehicle that he had observed at the time of his earlier visit, leave the area. At that point, Officer Smith began to follow the vehicle, which began heading west on I–26.
After confirming that the vehicle in question was a maroon Nissan Maxima registered to Defendant Davis and that it bore the same registration place that had been affixed to the vehicle that he had observed at the mobile home earlier that evening, Officer Smith received information to the effect that Defendant Davis' operator's license had been suspended. Although there were two individualsin the maroon Nissan, Officer Smith could not confirm the race, gender, or any other identifying characteristics of the vehicle's driver due to the distance at which he was following it and the limited light that was available at that time of morning. In spite of the fact that the driver had not committed any traffic violation in his presence, Officer Smith, eventually joined by Officer Lawrence, stopped the vehicle after following it for approximately two and a half miles based upon the fact that Defendant Davis' operator's license had expired.
After Officer Smith initiated the stop, he activated his spotlight for the purpose of illuminating the interior of the vehicle. Upon doing that, Officer Smith was able to determine that the vehicle was occupied by both a male and a female person and that the male occupant was driving. As a result, Officer Smith knew at this point “that the registered owner was not driving.”
Officer Smith then approached the passenger side of the vehicle for the purpose of speaking with Defendant Davis. Upon reaching the vehicle, Officer Smith informed Defendant Davis that he had stopped the car because “the registered owner's driver's license was suspended.” Defendant Davis responded that she was the registered owner of the vehicle and that her male friend was driving the car because her license had been suspended. Next, Officer Smith asked Defendant Davis for the vehicle's registration card and asked Defendant Hernandez, who had been driving, for his license. After Defendant Hernandez stated that he did not have a driver's license, Officer Smith told him to turn off the car, hand over the keys, step out of the car, and go to the rear of the vehicle for the purpose of speaking with Officer Lawrence, who had also arrived on the scene.
As soon as Defendant Hernandez had complied with this instruction, Officer Smith asked Defendant Davis whether the vehicle contained anything that he needed to know about, including “drugs, guns, illegal knives, or anything.” In response, Defendant Davis told Officer Smith that there were twenty pounds of marijuana in the car and pointed to the location at which the marijuana was situated. Upon receiving that information, investigating officers searched the vehicle and found some powder cocaine and approximately twenty pounds of marijuana in a garbage bag. After Defendant Davis consented to a search of her residence, investigating officers found a small quantity of marijuana, a pipe, and some rolling papers at that location.
On 20 March 2011, magistrate's orders were issued charging Defendants with trafficking in marijuana by possession, maintaining a vehicle resorted to by persons using controlled substances, and conspiring with each other to traffic in marijuana. On the same date, a magistrate's order charging Defendant Davis with possession of cocaine and a citation charging Defendant Davis with possession of drug paraphernalia were issued. On 11 July 2011, the Buncombe County grand jury returned bills of indictment charging Defendants with trafficking in marijuana by transportation, trafficking in marijuana by possession, maintaining a vehicle used for keeping and selling controlled substances, and conspiring with each other to traffic in marijuana by possession and transportation. In addition, the Buncombe County grand jury returned bills of indictment charging Defendant Davis with possession of cocaine and possession of drug paraphernalia.2
On 10 October 2011, Defendant Hernandez filed a motion seeking to have all of the evidence seized as a result of the search of Defendant Davis' vehicle and residence suppressed on the grounds that the information provided to investigating officers by the anonymous caller was insufficient to create a reasonable articulable suspicion that criminal activity was afoot. On 8 December 2011, Defendant Davis filed a substantively identical suppression motion. Defendants' suppression motions came on for a joint hearing before Judge James U. Downs at the 5 December2011 criminal session of the Buncombe County Superior Court. During the hearing, the State presented the testimony of Officers Lawrence and Smith, who were cross-examined by counsel for Defendant Hernandez. Neither defendant presented any evidence at the suppression hearing.
After all the evidence had been received at the suppression hearing, Judge Downs heard arguments from counsel for the State and Defendants. In the course of seeking to persuade Judge Downs to deny Defendants' suppression motions, the State argued that the issue raised by Defendants' suppression motions was controlled by the decision of this Court in State v. Hess, 185 N.C.App. 530, 648 S.E.2d 913 (2007), disc. review improvidently granted,362 N.C. 283, 658 S.E.2d 657 (2008), given that investigating officers had a reasonable articulable suspicion that Defendant Davis was operating a motor vehicle without a license at the time that they stopped her vehicle. In response, Defendant Hernandez's trial counsel argued that the justification for the stop advanced by the investigating officers was “nothing more than a pretext;” that the “only reason that [officers] were there that night [was] because of the anonymous tip;” and that the information provided by the anonymous caller did not...
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... ... Hernandez, ––– N.C.App. ––––, ––––, 742 S.E.2d 825, 830 (2013) (citations, quotation marks, and brackets omitted). Defendant asserts that there was no possible strategic reason that his trial counsel would fail to cross-examine the eyewitnesses on any prior inconsistent ... ...