State v. Vasques

Decision Date09 March 2007
Docket NumberNo. M2004-00166-SC-R11-CD.,M2004-00166-SC-R11-CD.
Citation221 S.W.3d 514
PartiesSTATE of Tennessee v. Roberto VASQUES, Kevin Joel Hernandez, Luis Martin Vasquez, Hector Alonzo, and Victor Hugo Garza<SMALL><SUP>1</SUP></SMALL>.
CourtTennessee Supreme Court

Dwight E. Scott, Nashville, Tennessee, for the appellee, Victor Hugo Garza.

OPINION

GARY R. WADE, J., delivered the opinion of the court, in which WILLIAM M. BARKER, C.J., and CORNELIA A. CLARK, J., and ADOLPHO A. BIRCH, JR., SP. J., joined. JANICE M. HOLDER, J., concurring and dissenting.

Our grant of the applications for permission to appeal filed by the State of Tennessee and certain of the defendants was for the purpose of determining (1) whether the evidence at trial was sufficient to support the convictions for conspiracy to possess with intent to sell more than seventy pounds of marijuana within one thousand feet of a school zone; (2) whether the waiver of lesser-included offense instructions under Tennessee Code Annotated section 40-18-110 violates constitutional principles; and (3) whether the Court of Criminal Appeals applied the proper standard in affirming the grant of coram nobis relief to Vasquez and Garza, reversing the trial court, and denying the relief to Vasques, Hernandez, and Alonzo. We conclude that the trial evidence was sufficient to support the convictions and that the statutory waiver of the entitlement to complete jury instructions does not violate the right to a jury trial or the separation of powers principle. We also hold that Vasquez and Garza are entitled to a new trial based upon newly discovered evidence and that Vasques, Hernandez, and Alonzo are not entitled to coram nobis relief. In consequence, the judgments of the Court of Criminal Appeals are affirmed.

Roberto Vasques ("Vasques"), Luis D. Vidales Romero ("Romero"), Kevin Joel Hernandez ("Hernandez"), Luis Martin Vasquez ("Vasquez"), Hector Alonzo ("Alonzo"), and Victor Hugo Garza ("Garza") were convicted of conspiracy to possess with intent to sell more than seventy pounds of marijuana within one thousand feet of a school zone, a class A felony. Tenn.Code Ann. §§ 39-17-417(i)(13) (Supp.2000), 39-17-432(b) (2003). They were each sentenced to fifteen years in the Department of Correction. After the trial, the imposition of sentences, and the denial of the motions for new trial, the defendants discovered that Tennessee Bureau of Investigation ("TBI") Agent Patrick Howell, an officer who had testified for the State, was using cocaine, some of which he had stolen from the state crime laboratory. The appeals of the defendants to the Court of Criminal Appeals were stayed and each of the defendants filed petitions for writ of error coram nobis asking for new trials.

Evidence at Trial

On April 18, 2000, Jose Rodriguez ("Rodriguez"), who had been arrested for drug offenses, informed TBI Agent Howell and other officers that the suppliers of his illegal drugs could be found at two locations, 1035 and 1147 Antioch Pike in Nashville, Tennessee. In cooperation with the police, Rodriguez telephoned his supplier, "David," who was later identified as Romero, and arranged to buy one hundred pounds of marijuana at a carwash on Nolensville Road. Officers with the TBI and the Metropolitan Police Department cooperated in the investigation.

Police Detective Jessie Birchwell and approximately fourteen other officers established surveillance at both of the Antioch Pike houses and also at the Nolensville Road carwash. Detective Birchwell observed two men in a white Toyota Camry meet Rodriguez at the carwash. The driver, who was wearing a white football jersey and was later identified as Romero, got out of the Camry and entered Rodriguez's car. Meanwhile, a man in a gray van was parked nearby. He appeared to be talking on a radio. When Romero left the Rodriguez vehicle and drove away in his Camry, the gray van remained at the carwash.

About thirty minutes later, Romero and a passenger later identified as Hernandez returned to the carwash in the same Camry. They were followed by a white Ford Taurus. A black Pontiac Firebird occupied by two Hispanic males was driven into a nearby parking lot. The individuals in the Firebird had an "unobstructed view" of the carwash. When an officer who had been monitoring Rodriguez's conversation with his suppliers gave the "take down" signal, Detective Birchwell drove into the carwash and was able to arrest Romero, who had tried to flee. Hernandez remained in the Camry. A loaded handgun and a walkie-talkie were found in their vehicle.

Vasques fled from the white Taurus and ran toward Nolensville Road before being tackled by Officer Rob Forrest. A loaded handgun was found in a carwash bay near where Vasques had run. Alonzo, who was seated on the passenger side of the Taurus, was taken into custody by Detective John Donnegan. Three trash bags in the trunk of the Taurus and another on the ground behind the vehicle contained approximately one hundred pounds of marijuana. By the time the four men had been arrested, the gray van had been driven from the scene.

During the period of surveillance, Police Officer Herbert Kajihara watched the Firebird traveling slowly through a Dairy Queen parking lot before it was parked in a Burger King parking area within view of the carwash. The vehicle's occupants, whom Kajihara described as "slouched" down in their seats and "looking back and forth," stayed in the car. When the take-down signal was given, Kajihara approached the Firebird, which Detective Leon Taylor had blocked with his car. The suspects in the Firebird, who were later identified as Garza and Vasquez, made no effort to avoid arrest.

At trial, Detective Taylor testified that prior to the arrests, he had followed the Camry from the carwash to a Walgreens at the corner of Antioch Pike and Nolensville Road. The Camry was met there by the white Taurus. Detective Taylor continued to watch as the Taurus was driven from the parking lot and proceeded along Antioch Pike before being returned to the Walgreens some ten minutes later. The black Firebird followed the Taurus. Taylor assisted in the arrest of Garza and Vasquez. Although a loaded shotgun was found behind the front seat of the Firebird, Taylor found no evidence of illegal drugs in the vehicle.

TBI Agent Howell, who was involved in the initial arrest of the informant Rodriguez and was a part of the surveillance team near the carwash, witnessed the black Firebird being parked in the Dairy Queen parking lot. According to Agent Howell, the Firebird's occupants left the Dairy Queen after glancing toward the carwash and then parked near the Burger King. He described the two men as continuously looking straight ahead and observed that neither left the vehicle. Agent Howell, who did not participate in the arrests, identified Vasquez and Garza as the occupants of the Firebird.

Metropolitan Police Officer Thomas Rollins likewise testified that shortly before the arrests, he saw the Taurus occupied by Hispanic males enter the driveway at 1147 Antioch Pike. He saw the driver knock on the door and stand there for a few minutes before returning to his vehicle and driving to 1035 Antioch Pike. No one got out of the car at that location. Shortly thereafter, two Hispanic males arrived in the black Firebird, got out of their vehicle, and walked toward the back of the residence. The Taurus left the residence first and the Firebird followed, each being driven to the Walgreens where the Camry was already parked.

Metropolitan Police Detective Mike Clark, who had also provided surveillance at the carwash, trailed the Camry from the carwash to the Walgreens. At trial, Clark testified that as the two cars traveled from the residences on Antioch Pike toward the Walgreens, they passed by Glencliff Elementary School, Glencliff High School, and Wright Middle School. He measured the distance from Glencliff Elementary School to Antioch Pike at 200 feet and he determined that Glencliff High School was 202 feet from the road. The officer testified that Wright Middle School was 222.6 feet from Antioch Pike and that the Walgreens was only eighty-one feet from Radnor Baptist Elementary. He also concluded that Radnor Baptist Elementary was "just shy" of one thousand feet from the carwash.

Following the arrests of the defendants, the officers obtained a search warrant for the houses located at 1035 and 1147 Antioch Pike. At the 1035 Antioch Pike address, they found a safe containing money, electronic scales, marijuana, ammunition, a loaded handgun magazine, and a box to a Glock model 26 handgun. At the 1147 Antioch Pike address, they found a Glock model 26 handgun, ten trash bags each of which contained twenty-five one-pound baggies of marijuana, a ledger containing records of amounts paid and drugs shipped, eight one-pound bags of marijuana, and a shotgun. The bags for the marijuana were identical to the bags found in the Taurus occupied by Vasques and Alonzo.

The evidence found at the scene and at the two houses on Antioch Pike was secured, sealed, and sent to the lab for testing. TBI forensic chemist Donna Flowers testified that the marijuana in the Taurus weighed 93.8 pounds and that the marijuana confiscated at 1035 Antioch Pike weighed 250.5 pounds. TBI forensic scientist William H. Stanton, Jr., testified that the marijuana found at the 1147 Antioch Pike residence...

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