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State v. Benitez

Court of Appeals of North Carolina

March 20, 2018


          Heard in the Court of Appeals 6 February 2017.

         Appeal by defendant from judgment entered 20 May 2013 by Judge Douglas B. Sasser and order entered 21 January 2016 by Judge C. Winston Gilchrist in Superior Court, Lee County No. 09CRS001227.

          Attorney General Joshua H. Stein, by Special Deputy Attorney General Amy Kunstling Irene, for the State.

          Appellate Defender Glenn Gerding, by Assistant Appellate Defender Anne M. Gomez, for defendant-appellant.

          STROUD, Judge.

         After the denial of his motions to suppress, defendant pled guilty to first degree murder; he appealed and also filed a motion for appropriate relief with this Court. In 2014, this Court allowed defendant's motion for appropriate relief, reversed the denial of his motions to suppress, and vacated his judgment. The State petitioned the Supreme Court for discretionary review and ultimately that Court vacated this Court's opinion and ordered that defendant's motion for appropriate relief be remanded for consideration by the trial court. On remand, the trial court denied defendant's motion for appropriate relief. Defendant now appeals the denial of his motion for appropriate relief. On defendant's appeal before us, because defendant's attorney made an objectively reasonable determination that defendant's uncle would qualify as his "guardian[, ]" a term not defined in the applicable statutes, and therefore did not seek suppression of defendant's statement on that ground, he did not provide ineffective assistance of counsel in failing to argue his rights under North Carolina General Statute § 7B-2101(b), and his MAR was properly denied.

         Furthermore, during the remand, the Supreme Court specifically tolled the time for appeal of the motion to suppress with instructions for this Court to hear such appeal or terminate it, based upon the determination of defendant's MAR. Because defendant did not prevail with his MAR, we have also addressed his arguments regarding denial of his motions to suppress. Defendant argues he did not make a knowing and intelligent waiver of his rights during police interrogation. Because the trial court failed to address key considerations in determining whether defendant made a knowing and intelligent waiver, we remand the order denying defendant's motion to suppress for further findings of fact.

         I. Procedural Background

         Because this appeal addresses the interrogation of defendant and his attorney's effectiveness as counsel, we will not repeat the factual details of defendant's first degree murder charge and conviction but will instead focus on the procedural background of this case which led to this appeal. In 2007, defendant, age 13, provided a signed statement to the Lee County Sheriff's Office stating he had "shot the lady as she was sleeping on the couch in the head." Defendant's uncle, with whom defendant had been living, was present during the interrogation. On 14 August 2007 - only two weeks after the interrogation - the trial court on its own motion entered an order appointing the director of the Lee County Department of Social Services as guardian of the person for defendant pursuant to North Carolina General Statute § 7B-2001. In the order appointing the guardian, the district court found that "the juvenile appeared in court with no parent, guardian or custodian but he lived with an uncle who did not have legal custody of him" and "[t]hat the mother of the juvenile resides in El Salvador and the father of the juvenile is no where to be found and based on information and belief lives in El Salvador." In 2009, defendant was indicted for first degree murder and was prosecuted as an adult.

         Although there was other evidence that defendant had shot the victim, his signed statement was the most direct evidence of premeditation as an element of first degree murder. Prior to his trial, defendant made separate motions to suppress his statements based upon alleged violations of his right to counsel and his right to remain silent and upon his claim he had not knowingly and voluntarily waived his Miranda rights. In December of 2012, the trial court denied defendant's motions to suppress, and the trial court found that defendant's uncle was present during the questioning; the uncle was defendant's custodian; an interpreter was provided; and neither defendant nor his uncle "indicated any lack of understanding of what was being said" when defendant agreed to waive his rights. In 2013, defendant pled guilty to first degree murder but preserved his right to challenge the denial of his motions to suppress.

         In 2014, defendant filed a motion for appropriate relief ("MAR") with this Court arguing he had been provided ineffective assistance of trial counsel because his attorney did not challenge the admission of his confession because his uncle was not his "parent, guardian, custodian, or attorney[, ]" and therefore his rights under North Carolina General Statute § 7B-2101(b) were violated as no appropriate adult had been present during his custodial interrogation. In an unpublished opinion, this Court allowed defendant's MAR, reversed the denial of defendant's motions to suppress, and vacated defendant's judgment.

         The State petitioned for discretionary review, and our Supreme Court vacated the Court of Appeals' opinion and remanded the case to this Court for remand to the trial court to conduct an evidentiary hearing on the MAR; the entire Supreme Court order reads:

This case has come before the Court by way of the State's Petition for Discretionary Review pursuant to N.C. G.S. § 7A-31.
Pursuant to N.C. G.S. § 15A-1418, the decision of the Court of Appeals is vacated and this Court now ORDERS this case remanded to the Court of Appeals for remand to the Superior Court, Lee County, for an evidentiary hearing to make findings of fact necessary to determine whether the trial counsel's actions fell below an objective standard of reasonableness, see State v. McHone, 348 N.C. 254, 499 S.E.2d 761 (1998) (remanding a motion for appropriate relief to the trial court with instructions to conduct an evidentiary hearing), and, if so, whether defendant was prejudiced by any deficient performance by his trial counsel.
The time periods for perfecting or proceeding with the appeal are tolled. The Superior Court, Lee County, is ordered to transmit its order on the motion for appropriate relief within 120 days so that the Court of Appeals may proceed with the appeal or enter an order terminating the appeal, as appropriate.
By order of the Court in Conference, this 24th day of September, 2015.

State v. Benitez, 368 N.C. 350');">368 N.C. 350, 777 S.E.2d 60 (2015).

         The trial court then held an evidentiary hearing on the MAR and entered an order with these findings of fact regarding defendant's uncle and his attorney's knowledge and investigation regarding his uncle's status:

1. Attorney Fred D. Webb of Sanford, North Carolina, was duly appointed to represent the defendant upon the defendant being charged with murder in Juvenile Court in the District Court of Lee County and continued to represent the defendant through the Superior Court proceedings in Lee County wherein the defendant entered a plea agreement as is of record.
. . . .
4. Defendant's Uncle, Jeremias-Cruz, advised Mr. Webb that the defendant was Mr. Cruz's sister's son, and that by agreement with defendant's mother, the defendant had lived with him ever since the defendant came to North Carolina from El Salvador; for approximately 1½ years before the defendant was arrested. Defendant had no parent, custodian or guardian other than Jeremias Cruz living in the United States.
5. Mr. Cruz provided the sole support for the defendant, had provided the defendant with his own room in Mr. Cruz's house, provided food for the defendant, provided clothing for the defendant, provided medical care for the defendant, enrolled the defendant in the Lee County school system and had otherwise provided all the needs of a juvenile the defendant's age.
6. Attorney Webb had learned from the conferences with Mr. Cruz and with the defendant that Mr. Cruz had provided all the above referenced care for the defendant and had been accepted as a guardian by the Lee County School system to enroll the defendant in school.
7. Attorney Webb had obtained documentation from the Lee County Schools and Lee County Health Department showing that Mr. Cruz had appeared before each of these entities and been accepted as the guardian of the defendant Juan C. Benitez.
8. Mr. Cruz considered himself to have legal custody of the defendant since he had sole physical custody of the defendant by agreement with his sister and Mr. Cruz had advised others including Detective Brandon Wall on the day the defendant was arrested before the interview of defendant, that he was the defendant's uncle, that the defendant lived with him . . ., that he was defendant's legal guardian or custodian and Juan had lived with him for about a year and a half and Mr. Webb had seen this in discovery provided by the State.
9. The defendant's uncle Jeremias Cruz signed or was listed as a parent or guardian on numerous documents some of which are dated January 2006; those documents were obtained and received by Attorney Webb.
. . . .
12. After learning of the evidence of the relationship of Jeremias Cruz and the defendant, Attorney Webb had a member of his staff, early in his representation of the defendant, research the issue of who is a parent, guardian or custodian under NCGS 7B-2101, and Attorney Webb reviewed the cases of State v. Jones and State v. Oglesby as written by the Court of Appeals.
. . . .
15. Prior to the evidentiary hearing on defendant's Motion to Suppress Defendant's statement, Attorney Webb read the Supreme Court of North Carolina's opinion in State v. Oglesby.
. . . .
18. Attorney Webb, in the exercise of professional judgment, formed the opinion that Oglesby as decided by the Supreme Court was not inconsistent with the Court of Appeals opinion in Jones in that the same factors were discussed in determining if a person qualified as an approved person under NCGS 7B-2101, those factors being whether the person ever had custody of the juvenile, whether the juvenile stayed with or lived with the person for a considerable length of time, whether the person signed school paperwork, fed and clothed the juvenile, provided medical and other necessary care for the juvenile.
19. Based upon the case law as interpreted by Attorney Webb and the facts of this case regarding the Uncle Jeremias Cruz and the defendant, Attorney Webb made the decision that Uncle Jeremias Crus would be the appropriate person under 7B-2101 and believed his interpretation of the law as it existed was correct. Attorney Webb therefore did not identify or raise at the suppression hearing any issues as to whether Jeremias Cruz was the parent, custodian, or guardian of Defendant. On direct appeal, the Court of Appeals determined that Jeremias Cruz was not the "guardian" of the defendant.
20. Attorney Webb's file does not contain any copy of, nor any reference to, the Court of Appeals decision in the case of In re M.L.T.H. Given the existence of Oglesby, counsel was not under any duty to find the M.L.T.H. opinion or the dicta contained in a footnote of that opinion stating that Oglesby "imp[l]iedly" overruled Jones. The decision in M.L.T.H. was filed in November, 2009, and did not become final until 2010. . . .
21. . . . the evidence does not establish that Attorney Webb read M.L.T.H. before the hearing on the motion to suppress. The court finds as a fact that Attorney Webb was mistaken in his belief that he had reviewed M.L.T.H. prior to the suppression hearing. . . .
22. At the time of the suppression hearing[, ] Attorney Webb knew that Jeremias Cruz had assumed responsibility for the care and upbringing of the defendant. Attorney Webb conducted a preliminary review of the cases and the law relating to the issue of who could be a "parent, guardian or custodian" under the applicable statute, including the Supreme Court's decision in Oglesby. These cases were understood by Attorney Webb, in the reasonable exercise of his best professional judgment, to support the conclusion, which was consistent with the realities of defendant's actual living situation, that Jeremias Cruz was acting as defendant's "guardian" within the meaning of N.C. Gen. Stat. 7B-2101. . . .
. . . .
25. Attorney Webb's representation of defendant, viewed at the time of counsel's representation, and not merely through hindsight, was objectively reasonable.

         The trial court then concluded that Attorney Webb did not provide ineffective assistance of counsel as counsel's performance was not deficient nor was defendant prejudiced. The trial court denied defendant's MAR; it is from this order and the denial of defendant's motion to suppress that defendant's appeal is now before us.

         II. MAR

         Defendant argues the trial court erred when it denied his MAR. Defendant contends he did not receive effective assistance from his counsel because Attorney Webb failed to challenge his confession on the ground ...

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