Cortez–hernandez v. Commonwealth of Va..

• Decision Date: 05 April 2011
• Docket Number: Record No. 0458–10–4.
• Parties: Sebastian CORTEZ–HERNANDEZ, s/k/a Sebastian Cortes–Hernandezv.COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

58 Va.App. 66

706 S.E.2d 893

Sebastian CORTEZ–HERNANDEZ, s/k/a Sebastian Cortes–Hernandez

v.COMMONWEALTH of Virginia.

Record No. 0458–10–4.

Court of Appeals of Virginia, Alexandria.

April 5, 2011.

Christopher Feldmann (Irving & Irving, P.C., on briefs), for appellant.Richard B. Smith, Special Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.Present: HUMPHREYS, HALEY, JJ., and ANNUNZIATA, S.J.HUMPHREYS, Judge.

Sebastian Cortez–Hernandez (“Cortez–Hernandez”) appeals his convictions in the Circuit Court of Prince William County (“trial court”) on one count of first-degree murder, in violation of Code § 18.2–32, and one count of use of a firearm in the commission of a felony, in violation of Code § 18.2–53.1. Cortez–Hernandez asserts the trial court erred in refusing him the opportunity to re-cross-examine a prosecution witness after the Commonwealth's re-direct examination of that witness. Cortez–Hernandez also alleges the trial court erred in refusing to grant jury instructions on excusable self-defense and voluntary manslaughter. For the following reasons, we affirm the trial court.

I. Background

During the second week of May 2008, Omar Vasquez (“Omar”) got into a fistfight with Santos Ontiveros (“Santos”). After besting Santos, Omar went into El Mexicano Restaurant in the Georgetown South Shopping Center to wait for his brother, Ruben, to pick him up. When Ruben arrived, the two drove off toward Omar's residence in the Georgetown South housing community (“Georgetown South”). Before they got to Omar's residence, however, Cortez–Hernandez, Santos, and another individual intercepted them by standing in front of their vehicle, blocking the street. As Omar and Ruben exited the vehicle, Omar got punched in the face. A fight ensued, and Omar was beaten “pretty badly.”

A few weeks later, on May 31, 2008, Cortez–Hernandez and Santos dined with a group of friends at El Mexicano Restaurant in the Georgetown South Shopping Center. At the same time, Omar congregated with his cousin and friends in front of Mike's Quick Mart, also in the Georgetown South Shopping Center. They planned to dine at El Mexicano Restaurant, but when Omar realized the individuals from the previous altercation were inside, he called Ruben to pick them up.

When Cortez–Hernandez found out Omar and his friends were outside, he called a friend to bring him a gun. When the friend arrived, Cortez–Hernandez stashed the .45 caliber gun in his pants. Shortly thereafter, he and his friends exited the restaurant and proceeded down the sidewalk past Omar and his companions, down Grant Avenue and toward Georgetown South. Omar and his friends, also residents at Georgetown South, decided to walk home in the same direction. Along the way, Omar picked up a stick and gave it to his brother, Ruben. When they reached Grant Avenue, Santos came from behind Omar and punched him in the nose. Omar grabbed his face as blood poured out of his nose. Ruben hit Santos with the stick before Santos could hit Omar a second time. Santos ran toward his group, comprised of nine individuals, and one of them responded by charging toward Omar and Ruben with a knife. Ruben again raised the stick to ward him off.

At that point, Cortez–Hernandez positioned himself behind a large tree in a nearby yard and took out his gun. All of a sudden, he lifted up his shirt, yelled, “Que vale mierdas,” ¹ then fired four shots, hitting Omar twice. Ruben called 911 and waited for help while Cortez–Hernandez and his friends fled. Paramedics arrived and announced Omar dead at the scene. The autopsy revealed that Omar had been shot twice, and the kill shot had traveled through his lung, heart, aorta, esophagus and vertebra before lodging in his lower left back. The bullets found in Omar's body were traced to Cortez–Hernandez's .45 caliber gun, and Omar's blood was found “ten to fifteen feet” from the tree behind which Cortez–Hernandez had been standing during the altercation.

Cortez–Hernandez was indicted and tried by a jury for first-degree murder and use of a firearm during the commission of a felony. Hermenjildo Rivera (“Rivera”), an eyewitness and friend of the decedent, testified during the Commonwealth's case-in-chief. During re-direct examination, the Commonwealth asked Rivera for the first time about the fight and the shooting. Defense counsel objected, arguing the Commonwealth exceeded the scope of direct and cross. The Commonwealth offered to “relieve [Rivera] and re-call him back.” Without comment, the trial court said, “I overrule the objection.” The Commonwealth proceeded to ask Rivera details about the shooting. Rivera corroborated the fact that Ruben hit Santos with the stick after Santos punched Omar in the face. Rivera also testified that Omar did not have a weapon, and Rivera did not see Omar hit anyone prior to the shooting. Rivera explained,

[Cortez–Hernandez] went up to the yard, and when he said that phrase, “que vale mierda,” he took out the gun and he pointed the gun, and it was some seconds—he took out the gun and he started to move around like this (indicating), and he said that it was no vale mierda, and he fired it. A few seconds went by, and he took it up again and he fired again.

Rivera responded, “no,” when asked whether anyone in Omar's group had gotten into a physical fight with Cortez–Hernandez.

As the Commonwealth concluded its re-direct, defense counsel made some indication, the nature of which is unclear from the record, to which the court responded, “No.” Defense counsel then requested and received a bench conference in which the following discussion took place:

MS. IRVING [Defense counsel]: At the time that Ms. Millette started her direct examination, she never talked about the actual shooting. She only talked about when they were outside of Mike's, walking, waiting until the Defendant and his friends had passed, and that's where her cross—her direct ended.

THE COURT: Then you should have objected. I do not allow recross.

MS. IRVING: Judge, I did object. If I can—

THE COURT: You did object, and then she went in—you objected before it went into the shooting. After the shooting you did not object.

MS. IRVING: If I may just make my record clear, then. I objected when I thought she exceeded my scope. She mentioned that she could call him again, at which the point the Court—

THE COURT: Overruled your objection.

MS. IRVING:—overruled the objection. And I was under the impression that instead of having her call him again one more time that she could continue going because I thought she had exceeded the scope.

THE COURT: No. I overruled the objection, you did not object again, so the objection is noted. You cannot go recross. Thank you. You may step back.

MS. IRVING: Please note my exception. Thank you, sir.

Following this exchange, Cortez–Hernandez's attorney did not seek an additional opportunity to re-cross Rivera or otherwise proffer for the record the questions she would have asked Rivera or the expected answers.

Cortez–Hernandez later took the stand in his own defense. He testified that when he learned Omar and two friends were outside the restaurant, he got nervous so he called a friend to bring him a gun. After he left El Mexicano, he didn't realize there was any trouble until Santos “passed me running ... holding his head....” At that point, Cortez–Hernandez turned around and saw one of Omar's friends approaching him with a stick. He testified that he raised his hands for protection and the man hit his hands with the stick. Cortez–Hernandez then “ran behind a tree.”

Although Cortez–Hernandez's group outnumbered Omar's group nine to four, Cortez–Hernandez claimed eight people surrounded him, causing him to tremble with fear and feel like he could lose “my life right then and there.” He testified the group was only about five feet away from him. Cortez–Hernandez testified he pulled out his gun to scare Omar's group off, but when they didn't back off, he shot toward the ground. Two of the bullets hit Omar, even though Cortez–Hernandez maintained he never aimed at anyone. Cortez–Hernandez admitted Omar was not the individual who hit him that evening, nor did he ever see Omar with any weapons. After he fired the rounds, Cortez–Hernandez did not stop to see whether he had hit anyone. Instead, he fled the scene and stashed the weapon at a friend's residence nearby.

[706 S.E.2d 898 , 58 Va.App. 75]

At the conclusion of the evidence, Cortez–Hernandez proffered model jury instructions on excusable self-defense and voluntary manslaughter. The trial court refused both instructions finding they were inapplicable to the facts presented at trial. Instead, the court instructed the jury on justifiable self-defense, and first and second-degree murder.

The jury found Cortez–Hernandez guilty of both first-degree murder and use of a firearm during the commission of a felony, and fixed his sentence at 63 years imprisonment. The trial court entered final judgment on March 9, 2010. Cortez–Hernandez noted this appeal.

II Analysis

A. Trial Court's Refusal to Allow Re–Cross–Examination

Cortez–Hernandez first contends the trial court erred in refusing to allow him the right to re-cross-examine a prosecution witness, Hermenjildo Rivera, after the Commonwealth brought out new information on re-direct. Cortez–Hernandez specifically alleges the trial court erred in not allowing him re-cross-examination concerning matters brought out for the first time on Rivera's re-direct by the prosecutor. The Commonwealth agrees the trial court erred in refusing to allow re-cross-examination of Rivera, but asserts the error is “not reversible error” because Cortez–Hernandez failed to proffer the questions he would have asked Rivera on re-cross and the expected answers. We do not address the merits of this assignment of error because it is not properly preserved for appeal.

Rule 5A:18 provided that “[n]o ruling of the trial court ......