State v. Tapia

STATE OF NEBRASKA, APPELLEE, v. MANUEL TAPIA, APPELLANT.

No. A-13-1079.

NEBRASKA COURT OF APPEALS

February 3, 2015

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the District Court for Scotts Bluff County: LEO DOBROVOLNY, Judge. Affirmed as modified.

Leonard G. Tabor for appellant.

Jon Bruning, Attorney General, and Kimberly A. Klein for appellee.

MOORE, Chief Judge, and INBODY and PIRTLE, Judges.

MOORE, Chief Judge.

INTRODUCTION

Manuel Tapia appeals from his conviction in the district court for Scotts Bluff County for possession of cocaine with intent to distribute and possession of marijuana. On appeal, Tapia assigns error to the denial of his motion to suppress and motion for continuance and appointment of new counsel. He also asserts that he received ineffective assistance of counsel, that the evidence was insufficient to convict him, and that the court imposed an excessive sentence. For the reasons that follow, we affirm as modified.

BACKGROUND

On May 23, 2013, the State filed an information in the district court charging Tapia with distribution of marijuana in violation of Neb. Rev. Stat. § 28-416(1)(a) (Cum. Supp. 2012), aClass III felony, and possession of cocaine with intent to distribute, not less than 10 grams and not more than 27 grams, in violation of § 28-416(7)(c), a Class ID felony.

On September 9, 2013, Tapia filed a motion to suppress evidence. Specifically, he sought suppression of evidence seized by Officers Aaron Kleensang and Matthew Dodge of the Scottsbluff Police Department, resulting from their search and seizure of evidence "from Tapia's person and the vehicle in which he was seated on April 27, 2013." Tapia alleged that the officers did not have a valid warrant, no consent was given by Tapia and the other occupants of the vehicle, and the officers lacked any probable cause to seize the items in question.

Kleensang and Dodge testified at the suppression hearing held before the district court on September 24, 2013. Kleensang testified that on April 27, he was dispatched to a particular address at about 12:45 a.m. in response to a complaint regarding possible drug use in the parking lot behind the residence at that address. Dispatch advised that a small gray car parked behind the residence was occupied by several people believed to be engaged in illegal activity involving drug use. Dodge also responded to the dispatch and approached the parking lot from one side of the residence, while Kleensang approached from the other side. By the time Kleensang reached the southeast corner of the residence, he could smell "the very pungent odor of burnt marijuana." In the parking lot, Kleensang observed a gray Chevy Malibu occupied by three people. The front passenger side window of the car, which faced Kleensang, was rolled down. Kleensang did not see any other vehicles with occupants in the parking lot at the time. Kleensang approached the front passenger side window, made contact with Tapia who was seated in the front passenger seat, and advised him to step out of the car.

Dodge testified that as he approached the area where the car was parked, he smelled marijuana "in whiffs, not consistently." He stopped to sniff at the open window of the building he was walking along, but did not detect marijuana odor from the building. When Dodge reached the parking lot, he contacted the driver of the car, Tiffanee Garnier, and the rear passenger, Felicia Gorden, while Kleensang dealt with Tapia. Dodge testified that upon his contact with Garnier, the odor of marijuana became consistent.

Similarly, when Kleensang contacted Tapia, he detected the distinct, very pungent odor of burned marijuana from the car's interior. As Tapia stepped out of the car, he immediately put his hands in his pockets, which caused Kleensang concerns for officer safety. Kleensang told Tapia to take his hands out of his pockets and conducted a brief pat down of Tapia. During the pat down, Kleensang found a pocketknife clipped to Tapia's rights pants pocket and detected a bulge in the other pocket with "the feeling of a sandwich bag and a semi-solid object" that Kleensang believed to be contraband or marijuana. Kleensang then removed from Tapia's pocket a clear plastic wrapping containing what Kleensang believed, based on its green leafy appearance and distinctive odor, to be a significant quantity of marijuana. This substance was later weighed and determined to be 3.4 ounces of marijuana.

After Kleensang discovered the marijuana in Tapia's pocket, Kleensang and Dodge searched the Malibu, and they found a small digital scale with "loose green leafy substance" that Kleensang believed to be marijuana in the front passenger side door pocket and a small quantity of marijuana in the center console. The marijuana located in the console weighed 5.4 grams.

At some point, a police sergeant arrived, spoke to someone who had arrived in another car, and "cleared" the occupant or occupants of that vehicle by verifying that they did not have awarrant for their arrest. Prior to the arrival of this vehicle, Dodge did not recall seeing any other vehicles pull into the parking lot or anyone else walking around the area.

While Kleensang was taking Tapia to the police car, Dodge walked around the front of the Malibu and found two large cellophane sacks on the ground approximately five feet from the passenger side of the car's front bumper. Dodge initially thought they were wadded up deli sandwich wrappers, but when he picked one up, he felt that there was a weighty substance in it. Dodge used his flashlight to inspect the cellophane further and could see a white powdery substance inside. Dodge had not seen the cellophane before noticing it on the ground and did not know how it got there. Based on the powder's appearance, Dodge believed it was cocaine, which belief was confirmed with later testing. Both of the cellophane packages contained cocaine, and one of the packages was bundled into smaller "corner baggies."

Tapia called Gorden as a witness at the suppression hearing. On the evening in question, she was waiting at a friend's apartment for Garnier and Tapia to pick her up. When Tapia and Garnier arrived, Gorden went to the parking lot in question and sat in the back seat of their car. According to Gorden, while they were sitting in the car, a white Corvette entered the parking lot and parked next to them on the driver's side. Gorden did not recognize the car or its occupants. She testified that they got out of the Corvette and walked between two apartment buildings and disappeared from view. Gorden denied that anyone in the Malibu was smoking marijuana. According to Gorden, the friend she was visiting in the apartment was involved in an ongoing child custody dispute. One of the other individuals involved in the custody dispute lived in a building next to the parking lot in question and was the person who called police with the report about marijuana being smoked in the parking lot.

Kleensang was recalled after Gorden testified. According to Kleensang, if anyone had been walking where Gorden stated the people from the white Corvette had walked, he would have met them as he approached the parking lot. Kleensang did not recall seeing a white Corvette in the parking lot and testified that he would have remembered seeing such a vehicle.

The district court denied the motion to suppress from the bench, finding that there was more than ample evidence to show that the police officers clearly had reasonable suspicion to investigate and that the investigation led to probable cause to support the search.

Although the cocaine found on the ground was not included in Tapia's suppression motion, the court made findings regarding the cocaine. Specifically, the court noted that there may be some credibility issues, but that it would be for the jury to decide whether Tapia was in possession of the bags of cocaine or whether they were dropped by someone from the white Corvette. The court specifically found that Gorden's testimony as to the white Corvette and the persons in it was not credible.

On October 15, 2013, prior to the start of trial, Tapia orally made a motion to continue trial. His counsel also presented the district court with a written, but not yet filed, motion to continue along with an affidavit of his counsel's recollection and understanding of "the problems that we have incurred in our case at this point." The motion and affidavit were subsequently filed with the court on October 18. In the affidavit, Tapia's attorney discussed Tapia's concern about trial preparedness and Tapia's apparent belief that although jury selection would begin on October 15, the evidentiary portion of the trial would be scheduled for a later time. The court heard argument from the parties with respect to the motion to continue.

The district court also gave Tapia an opportunity to express his concerns. Tapia presented the court with a letter which was received into evidence. In the letter, Tapia expressed his concerns about communications with his attorney and trial preparedness and asked the court to appoint him a new attorney. Tapia also presented verbal argument to the court in support of his position.

The district court stated that it would consider Tapia's letter as a motion to appoint alternate counsel and denied both the motion to continue and the motion to appoint alternate counsel.

A jury trial was held on October 15 and 16, 2013. The court received various exhibits into evidence including photographs of the marijuana found in Tapia's pocket, the digital scale and marijuana found in the car, and the cocaine packages.

Kleensang and Dodge both testified at trial, and their trial testimony was consistent with the testimony they gave at the suppression hearing. For the sake of brevity, we have not repeated their...