State v. Castaneda, COA08-790.
| Decision Date | 07 April 2009 |
| Docket Number | No. COA08-790.,COA08-790. |
| Citation | 674 S.E.2d 707 |
| Parties | STATE of North Carolina v. Mateo Felipe CASTANEDA. |
| Court | North Carolina Court of Appeals |
Glover & Petersen, P.A., by Ann B. Petersen, Chapel Hill, for Defendant-Appellant.
Mateo Felipe Castaneda (Defendant) was found guilty by a jury on 8 November 2007 of first-degree murder of Fabrico Leopoldo Orellana (Orellana). Defendant was convicted on the theory that he aided and abetted the actual shooter, Christian Pacheco-Torres (Torres). The trial court sentenced Defendant to life imprisonment without parole. Defendant appeals.
The relevant evidence presented at trial tended to show that Orellana was shot and killed in front of the mailboxes outside his apartment in Winston-Salem at 7:00 p.m. on 12 August 2005. Orellana's seven-year-old daughter, R.O., was in Orellana's car at the time and witnessed the shooting. R.O. told the police that her father got out of the car to check his mailbox when a man with a gun came up and shot him. She described the shooter as a Hispanic man wearing a white shirt with a skinned head and a tattoo on his neck.
The Winston-Salem Police Department obtained cell phone records (the records) showing calls to and from the cell phones owned by Orellana, Defendant, and Luz Orellana (Luz). Luz was Orellana's ex-wife and was currently married to Defendant. On the day of the shooting, the records showed calls from Defendant's cell phone to a telephone registered to Cecilia Contreras (Contreras). Investigators learned from a police database that Contreras was living with Torres, who matched the description of the shooter. Detective Stanley Nieves (Detective Nieves) with the Winston-Salem Police Department, called Torres at his job. Detective Nieves told Torres it was important that the police talk to him, and that detectives would come and pick him up at his place of employment. However, Torres fled before officers could arrive.
Torres was later charged with first-degree murder of Orellana. Torres was arrested in Texas on 27 December 2005 and brought to Forsyth County on 2 February 2006. Investigators attempted to interrogate Torres, but after being advised of his Miranda rights, Torres exercised his right to an attorney. Months later, Torres' attorney notified the State that Torres wanted to provide information about the case. When Torres was questioned by officers on 9 April 2007, he confessed to shooting Orellana. However, Torres stated that he was hired by Defendant and Luz to kill Orellana.
At trial, the jury heard two conflicting versions of events leading up to 12 August 2005. Torres testified that Luz, who was his co-worker, approached Torres at work and asked him to beat up her ex-husband, Orellana. Torres said Luz later told him she wanted him to kill Orellana. Torres testified that Luz and Defendant wanted Orellana dead because they felt Orellana was mistreating Luz's daughter, R.O. Torres testified regarding details of the plan to kill Orellana, including a promise by Luz and Defendant to pay Torres money to kill Orellana. Torres also testified about discussions he had with Luz and Defendant, as well as preparations they made, such as Luz and Defendant giving Torres a gun and taking him to Orellana's apartment complex.
Defendant testified that he knew Torres through Defendant's wife, Luz. However, Defendant denied asking Torres to kill Orellana, paying Torres to do so, or giving Torres a gun. Defendant admitted he and Luz were having difficulty with Orellana over Orellana's treatment of Luz's daughter. Defendant said he went to Orellana's apartment twice in order to try to talk with Orellana. Defendant said Torres had offered to come along as a witness to Defendant's confronting Orellana. Defendant admitted being at Orellana's apartment complex with Torres on the evening Orellana was killed. However, Defendant testified that while waiting in the car for Orellana to arrive, Defendant spoke with Luz on the phone. Luz told Defendant that Orellana had already picked up R.O. Defendant said he told Torres they would leave because Defendant did not want to talk to Orellana when R.O. was present. Defendant said Torres told Defendant to wait for him. Torres then got out of the car and went toward the apartments. When Torres ran back to the car, Defendant said he asked Torres what had happened and that Torres responded that "nothing" had happened and to "just go." Defendant testified he did not know Orellana had been shot and killed until the police notified him later that evening.
During the charge conference, the trial court inquired whether Defendant requested a jury instruction on accomplice testimony and Defendant's counsel said no. However, the State then requested the instruction. Defense counsel responded that the core issue of fact in the case was whether Torres was an accomplice. The trial court, defense counsel, and the State agreed to alter the pattern jury instruction to say that Torres was alleged to be an accomplice.
During jury instructions, the trial court did not give the modified jury instruction agreed to in the charge conference. Instead, the trial court gave the following jury instruction:
I instruct you that the witness, Mr. Torres, was an accomplice, and you should examine every part of such a witness's testimony with the greatest care and caution. An accomplice is a person who joins with another in the commission of a crime. The accomplice- and in this case, Mr. Torres may actually take part in the acts necessary to accomplish the crime or may knowingly help and encourage another in the commission of the crime, either before or during its commission.
(emphasis added). Defendant argues that the trial court committed prejudicial error by giving the above jury instruction instead of the instruction agreed upon in the charge conference.
We first address the State's contention that we should overrule Defendant's argument that the trial court erred because Defendant's assignment of error and argument in his brief do not correspond, in violation of N.C.R.App. P. 28(b)(6). In his brief, Defendant references assignment of error number nine in which Defendant argues that the trial court committed plain error in instructing the jury that Torres was an accomplice in the case. However, in Defendant's accompanying argument he argues that the trial court committed prejudicial error in giving the wrong jury instruction.
We note that "`[c]ompliance with the rules [of Appellate Procedure] ... is mandatory.'" Azar v. Presbyterian Hosp., ___ N.C.App. ___, ___, 663 S.E.2d 450, 452 (2008) (quoting Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 191, 194, 657 S.E.2d 361, 362 (2008)). N.C.R.App. P. 28(b)(6) states "[a]ssignments of error not set out in the appellant's brief, or in support of which no reason or argument is stated ... will be taken as abandoned." See State v. Price, 170 N.C.App. 672, 675, 613 S.E.2d 60, 63 (2005); State v. Lemonds, 160 N.C.App. 172, 180, 584 S.E.2d 841, 846 (2003). Additionally, because Defendant's argument does not correspond to his assignment of error, his argument is also deemed abandoned. See Guerrier v. Guerrier, 155 N.C.App. 154, 159-60, 574 S.E.2d 69, 72 (2002) (citing State v. Purdie, 93 N.C.App. 269, 278, 377 S.E.2d 789, 794 (1989)).
Defendant's violations of N.C.R.App. P. 28(b)(6) are non-jurisdictional in nature. Therefore, pursuant to Dogwood, we must
first determine whether the noncompliance is substantial or gross under Rules 25 and 34. If [we] so [conclude], [we] should then determine which, if any, sanction under Rule 34(b) should be imposed. Finally, if [we] [conclude] that dismissal is the appropriate sanction, [we] may then consider whether the circumstances of the case justify invoking Rule 2 to reach the merits of the appeal.
Dogwood, 362 N.C. at 201, 657 S.E.2d at 367.
In order to evaluate whether appellate rules violations are "substantial" or "gross" we may consider "whether and to what extent the noncompliance impairs [our] task of review and whether and to what extent review on the merits would frustrate the adversarial process." Dogwood, 362 N.C. at 200, 657 S.E.2d at 366-67. Even when a non-jurisdictional violation is "substantial" or "gross," our Supreme Court has expressed a "systemic preference" for sanctions other than dismissal in order to review the merits of the appeal whenever possible. Dogwood, 362 N.C. at 200, 657 S.E.2d at 366. However, in Dogwood, our Supreme Court further noted that "in certain instances noncompliance with a discrete requirement of the rules may constitute a default precluding substantive review." Dogwood, 362 N.C. at 200, 657 S.E.2d at 367. Our Supreme Court specifically referenced a violation of N.C.R.App. P. 28(b)(6) as an example of when a default may preclude substantive review. Id.
Defendant violated N.C.R.App. P. 28(b)(6) when he failed to argue plain error, and instead argued prejudicial error, for which there was no corresponding assignment of error in the record. Defendant's violations substantially impair this Court's task of review by presenting two different bases for error, neither of which fully comply with the North Carolina Rules of Appellate Procedure, making it unclear to the Court which error is Defendant's intended argument. See Jones v. Harrelson & Smith Contrs., LLC, ___ N.C.App. ___, ___, 670 S.E.2d 242, 256-57 (2008) (). Further, Defendant's failure to set out "prejudicial error" in his assignments of error, frustrates the adversarial process by failing to give...
To continue reading
Request your trial
- State v. Chavez
- State v. Martinez
- State v. Chapman
- State v. Keane