State v. Memije
| Decision Date | 05 February 2013 |
| Docket Number | No. COA12–263.,COA12–263. |
| Citation | 737 S.E.2d 191 |
| Parties | STATE of North Carolina v. Tony MEMIJE. |
| Court | North Carolina Court of Appeals |
OPINION TEXT STARTS HERE
Appeal by defendant from judgment entered 8 September 2011 by Judge Richard W. Stone in Forsyth County Superior Court. Heard in the Court of Appeals 30 August 2012.
Attorney General Roy Cooper, by Assistant Attorney General Donald W. Laton, for the State.
Anne Bleyman for Defendant-appellant.
Defendant Tony Memije appeals from a judgment entered based upon his plea of guilty to felonious breaking or entering and larceny and his admission that he had attained the status of an habitual felon. On appeal, Defendant argues that the indictment purporting to charge him with felonious larceny fails to adequately describe the property he is alleged to have stolen and that the trial court erred by denying his motion to suppress certain evidence obtained by investigating officers in the course of his arrest. After careful consideration of Defendant's challenges to the trial court's judgment in light of the record and the applicable law, we conclude that the trial court's judgment should remain undisturbed.
At approximately 11:00 a.m. on 11 March 2011, Officer David Doby of the Kernersville Police Department was dispatched to Lot 53 in a mobile home park located at 216 Bost Street “in reference to a house break-in in progress.” The instructions provided to Officer Doby stemmed from an anonymous 911 call to the effect that “two Hispanic males or two black males had broken into the front door of Lot 53,” that “they were still in the residence[,] and [that] a black vehicle was parked outside the residence.”
Bost Street is a one-block cul-de-sac with mobile homes on both sides of the roadway. As a result of the fact that he was “right around the corner” from Bost Street when he received the call, Officer Doby arrived at the designated location within thirty seconds after learning of the need to do so. As Officer Doby drove down Bost Street, he saw Defendant, who was carrying a woman's purple purse, and another Hispanic man, who was later identified as a Mr. Rodriguez, running from a trailer.1 Defendant's car, which was an older black Mercedes, had been backed into the driveway of the trailer and was parked approximately 15 or 20 feet from the front door. Defendant ran to the car, threw the purse on the front seat, then jumped into the front seat, while the other man got into the rear seat.
Upon observing the men running from the trailer, Officer Doby “blocked [their] vehicle in[, and] jumped out at gunpoint.” After ordering the two men out of the car, Officer Doby handcuffed the men and took them into custody. Although Officer Doby searched both men, he found nothing incriminating on their persons. Office Doby put Mr. Rodriguez in the back seat of his car while another officer, who had arrived on the scene after Officer Doby, placed Defendant in his patrol vehicle.
On cross-examination, Officer Doby testified that, “at the time [he] arrested [Defendant,]” he acted on the basis of the fact that Defendant “was coming out of a trailer that had been broken into with a pocketbook in his hands.” On redirect examination, Officer Doby testified that he had been told that “two Hispanic males or two black males had broken into the front door of Lot 53” and that they were “still parked outside the residence, black vehicle parked outside the residence.” In addition, Officer Doby testified that:
Q. Would you go through for us in your mindset, what were the factors in your mind that established probable cause to place Mr. Memije and Mr. Rodriguez under arrest at that time?
A. As I was pulling up, I was looking both sides ... for Lot 53, looking both sides, looking for a black vehicle, looking for two Hispanic males in the area, black males in the area ... or leaving the area. As I was pulling in looking, at the point I saw them, I saw them running out of the front door.... I accelerated the vehicle, pulled up alongside their car, jumped out at gunpoint as they was running out the door, down the porch—onto the porch, down the porch with the purple pocketbook in the hand and throwing it into the passenger seat of the vehicle.
According to Officer Doby, there were no reports of other break-ins on Bost Street and no other mobile homes outside of which a black car was parked or from which people were running.
After Defendant and Mr. Rodriguez were taken into custody, Officer Doby searched the automobile that was parked in the driveway and found “the purple pocketbook with jewelry belonging to the victim in it, a pair of latex gloves, [and] some other items[.]” According to Officer Doby, the purse discovered in the black Mercedes was “the pocketbook that was seen in [Defendant's] hands as he was running out” of the trailer. After investigating officers determined that the victim of the break-in was Irma Gallegos and made contact with her, Ms. Gallegos came to the scene and identified the items taken from the black Mercedes as belonging to her. After being taken to the Kernersville Police station, Defendant was interviewed by Detective J.R. Tilley of the Kernersville Police Department, waived his Miranda rights, and made an inculpatory statement.
On 11 March 2011, a Magistrate's Order was issued charging Defendant with felonious breaking or entering and felonious larceny. On 2 May 2011, the Forsyth County grand jury returned indictments charging Defendant with felonious breaking or entering, felonious larceny, and having attained the status of an habitual felon. A superseding indictment bearing a different file number was returned on 6 June 2011 for the purpose of charging Defendant with felonious breaking or entering and felonious larceny.
On 1 September 2011, Defendant filed a motion seeking to suppress have all property that was seized at the time of his arrest and the statement that he made to investigating officers after his arrest on the grounds that this evidence had been “unlawfully seized and searched” in violation of his rights under the Fourth Amendment to the U.S. Constitution and Article I, §§ 19 and 20 of the North Carolina Constitution. After holding a hearing on 8 September 2011 to address the issues raised by Defendant's suppression motion, the trial court orally denied Defendant's suppression motion and dictated findings of fact into the record.
On the same date, Defendant entered a plea of guilty to felonious breaking or entering, felonious larceny, and having attained habitual felon status while reserving his right to seek appellate review of the denial of his suppression motion. Based upon Defendant's guilty pleas, the trial court entered a judgment consolidating Defendant's convictions for judgment and sentencing him to a term of sixty-six to eighty-nine months imprisonment. During the proceedings held in conjunction with the entry of Defendant's guilty plea, his trial counsel gave oral notice of appeal to this Court from the denial of his suppression motion. On 26 October 2011, a hearing was held for the purpose of formally entering a written order denying Defendant's suppression motion. During the course of that proceeding, Defendant orally noted an appeal from the order denying his suppression motion.
As a result of the fact that the record on appeal presented for this Court's review did not contain any indication that Defendant had noted an appeal from the trial court's judgment, Defendant's appeal was subject to dismissal. See e.g., State v. Hughes, 210 N.C. App 482, 707 S.E.2d 777, 778–79 (2011) (). In apparent recognition of the defective manner in which he had attempted to invoke this Court's jurisdiction, Defendant filed a petition on 20 September 2012 seeking the issuance of a writ of certiorari authorizing review of his challenge to the trial court's judgment on the merits. “While this Court cannot hear defendant's direct appeal, it does have the discretion to consider the matter by granting a petition for writ of certiorari.” State v. McCoy, 171 N.C.App. 636, 638, 615 S.E.2d 319, 320,appeal dismissed,360 N.C. 73, 622 S.E .2d 626 (2005). “The writ of certiorari may be issued in appropriate circumstances by either appellate court to permit review of the judgments and orders of trial tribunals when the right to prosecute an appeal has been lost by failure to take timely action[.]” N.C. R.App. P. 21(a). As a result, in the exercise of our discretion, we elect to grant Defendant's certiorari petition in order to reach his claims on the merits.
In his first challenge to the trial court's judgment, Defendant argues that the indictment purporting to charge him with felonious larceny “is fatally defective because it does not sufficiently allege the essential elements of the offense.” More specifically, Defendant contends that the felonious larceny indictment was facially invalid on the grounds that it failed to sufficiently describe the property he was alleged to have stolen. Defendant's argument lacks merit.
N.C. Gen.Stat. § 15A–924(a)(5) provides, in pertinent part, that an indictment must include:
[a] plain and concise factual statement in each count which, without allegations of an evidentiary nature, 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....
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White v. City of Greensboro
...evidence known to him, a failure to pursue potentially exculpatory leads does not negate probable cause. See State v. Memije, 737 S.E.2d 191 (N.C. Ct. App. 2013) ("Reasonable law enforcement officers are not required to exhaust every potentially exculpatory lead or resolve every doubt about......