State v. Guzman

902 S.E.2d 740

STATE of North Carolina

v.Daluis Alejand Javier GUZMAN, Defendant.

No. COA23-412

Court of Appeals of North Carolina.

Filed June 4, 2024

Appeal by defendant from judgments entered 28 April 2022 by Judge David L. Hall in Forsyth County Superior Court. Heard in the Court of Appeals 24 January 2024. Forsyth County, Nos. 20CRS52155, 20CRS52156, 20CRS52158

Attorney General Joshua H. Stein, by Special Deputy Attorney General Jocelyn C. Wright, for the State-appellee.

Patterson Harkavy LLP, by Christopher A. Brook, for defendant-appellant.

GORE, Judge.

Defendant, Daluis Alejand Javier Guzman, appeals the denial of his request for the trial judge’s recusal. The trial judge entered multiple orders prior to trial authorizing, (1) the use of a pen register and trap and trace device, (2) the release of precise location data, (3) the release of subscriber account information, call detail records and cell site location data, and (4) the use of a Global Positioning System ("GPS") tracking device. Defendant argued prior to the start of trial that these orders required recusal of the trial judge who entered them, pursuant to section 16A-291(c). Upon review of the record and the briefs, we affirm the trial court’s denial of the recusal request.

I.

Law enforcement obtained multiple orders, pursuant to Article 16, N.C.G.S. § 15A-291(a), between September 2019 and February 2020 to intercept cell phone conversations between defendant and co-conspirators. These types of orders could only be entered by a judicial review panel, when the request was for the interception of wire, oral, or electronic communications. N.C.G.S. § 15A-291(a) (2022). One of the judges on the panel, Judge Hardin, later recused himself during the pre-trial hearing because of his participation in the judicial review panel.

As the investigation continued, law enforcement sought three more orders, which are the subject of this appeal. The first order, entered 6 December 2019 by Judge Hall, gave authorization to use a GPS tracking device on defendant’s Honda Accord ("GPS Order"). The next two orders, entered 10 January 2020 and 31 January 2020 by Judge Hall (the "January Orders"), provided authorization to install a pen register and trap and trace device, precision location data (GPS), the release of subscriber account information, call detail records, and cell site location information ("CSLI"), both historical and prospective, for two "target telephones." Within the GPS and January Orders, Judge Hall determined there was probable cause for the authorization sought. The January Orders cited sections 15A-262 and 15A-263 within Article 12, as statutory authorization.

In February 2021, defendant was indicted with trafficking in cocaine by possession, possession with intent to sell and deliver cocaine, conspiring to traffic cocaine, and multiple counts of maintaining a vehicle and a place that was used for keeping and selling cocaine. At the pre-trial hearing on 11 April 2022, Judge Hardin recused himself once counsel raised the limitation found in section 15A-291(c), requiring the recusal of judges who participated in a judicial review panel to authorize electronic surveillance orders. Judge Hall presided over the pre-trial hearings on 20 April 2022 as a replacement to Judge Hardin. Defendant, acting pro se, raised the issue of recusal pursuant to section 15A-291(c) with Judge Hall due to the GPS and January Orders that Judge Hall entered.

Judge Hall reviewed the challenge for recusal by reading section 15A-291(c), reviewing the GPS and January Orders and consulting Judicial Standards. Upon review, Judge Hall explained the orders were authorized pursuant to sections 15A-262 and 15A-263 of Article 12, not pursuant to section 15A-291 of Article 16, and that he was not part of a judicial review panel as stated in the plain language of section 15A-291(c). Accordingly, Judge Hall refused to recuse himself because he determined he could preside fairly and without partiality. At the conclusion of the trial, on 28 April 2022, defendant was convicted of all charges and received three consecutive sentences. Defendant entered an oral notice of appeal.

II.

Defendant appeals of right pursuant to N.C.G.S. §§ 7A-27(b) and 15A-1444(a). Defendant argues Judge Hall erroneously refused to recuse himself prior to trial and that this error was structural. Defendant argues this is a statutory mandate under section 15A-291(c) because the January Orders signed by Judge Hall should belong within the scope of Article 16, rather than the stated scope of Article 12. We start by acknowledging defendant did not challenge the validity of the GPS and January Orders signed by Judge Hall, and therefore, the only argument preserved for our review is whether Judge Hall was required to recuse himself pursuant to section 15A-291(c). We review the application "of a question of law" de novo. State v. Rutledge, 267 N.C. App. 91, 95, 832 S.E.2d 745 (2019).

Defendant leads us down a circuitous route to demonstrate why Judge Hall should have recused himself under the statutory mandate of section 15A-291(c). Section 15A-291(c) states, "No judge who sits as a member of a judicial review panel shall preside at any trial or proceeding resulting from or in any manner related to information gained pursuant to a lawful electronic surveillance order issued by that panel." N.C.G.S. § 15A-291(c) (2022). According to defendant, the judge entered "a lawful electronic surveillance order" and therefore he should have recused himself. Defendant attempts a "substance over form" argument by arguing the substance of the January Orders should have qualified within the scope of Article 16. See N.C.G.S. § ISA-291 (2022). But this argument was not made at the trial level, and as previously stated, defendant made no suggestion at the trial level that the GPS and January Orders were improperly authorized.

Defendant made the following arguments at the trial level to support a recusal:

[DEFENDANT]: Do you remember what Mr. Broyhill introduced on Monday, the first time we came here from General Statute 15A-291, application for electronic surveillance order. I just found that you signed three orders in this case. That was on December 6th, 2019, the GPS on the Honda Accord. And I’ve got the order right here. The order for this telephone that is signed by you. So you can’t be the judge to preside over this case either. Because that’s why we came here Monday, and Mr. Broyhill got Honorable Judge Hardin off the case.

…

[DEFENDANT]: There is another one I didn’t bring today. You signed a GPS order for the Honda Accord 2014 on December 6th, 2019.

…

THE COURT: For the record, so everyone understands, the first order I have here is an order that we refer to as an order allowing a trap and trace device, it was signed by me January 10th of 2020. The statute that permits such an order is 15A-263. I’m going to look and see if it addresses whether that judge may then preside. I’ve never addressed this issue before.

…

MR. JORDAN [standby counsel]: Not to argue the point, but for clarification for Mr. Guzman.

THE COURT: Yes, sir.

MR. JORDAN [standby counsel]: I think he’s referring to statute 15A-291, and specifically the heading of electronic surveillance, and then from there. So I don’t think he’s arguing the phone numbers. I think he’s arguing any electronic surveillance, which I think would include the tracking device. That’s my understanding.

…

THE COURT: All right, let’s come back to order, please. I just spent time talking with Judicial. Standards. There is no prohibition. The case will move forward. Now, put on the record the only thing I would need to be concerned about under Canon 3 is whether anything I read or heard - which, frankly, I don’t remember other than I remember -- I remember the gentleman’s wife, Dorka, because I had never heard that name before, and I remembered that this morning -- whether it would impair my ability to be fair and impartial in any way, and it will not, so we will move forward.

On appeal, defendant argues beyond what was challenged at the trial level. A review of the transcript demonstrates the only issue Judge Hall passed upon was whether section 15A-291(c) would disqualify him based upon the GPS and January Orders he authorized. Defendant argued that because of the header "electronic surveillance" for section 15A-291, that any form of electronic surveillance would require Judge Hall to recuse himself. There was no argument that the GPS and January Orders went beyond the scope of their authorization and there was no argument that those Orders should have been authorized under Article 16.

Although defendant sought to compare Judge Hall with Judge Hardin, who recused himself, Judge Hall clarified that Judge Hardin recused himself because of his participation in a judicial review panel that issued multiple Article 16 Orders, commonly called "wiretap orders." Whereas the GPS and January Orders entered by Judge Hall were authorized under a different statute, Article 12, and are commonly called "ping orders." Judge Hall looked to see if Article 12 or any further statutes addressed any requirements for judicial recusal, because the GPS and January Orders were not entered under Article 16, and he did not sit on a judicial review panel.

Judge Hall only considered whether section 15A-291(c) would disqualify him having entered orders under different statutory provisions. The GPS and January Orders were not authorized pursuant to Article 16 or a judicial review panel. The plain language of section 15A-291(c) only disqualifies judges who enter orders as part of a judicial review panel that authorize "any manner related to information gained pursuant to a lawful electronic surveillance order." Therefore, given the limited review and missing challenge to the validity of the GPS and January Orders, Judge Hall correctly determined section 15A-291(c) did not require his recusal.

Defendant cites multiple cases...