State v. Chavez

• Decision Date: 07 April 2020
• Docket Number: No. COA19-400,COA19-400
• Citation: 270 N.C.App. 748,842 S.E.2d 128
• Parties: STATE of North Carolina v. Fabiola Rosales CHAVEZ
• Court: North Carolina Court of Appeals

270 N.C.App. 748

842 S.E.2d 128

STATE of North Carolina

v.Fabiola Rosales CHAVEZ

No. COA19-400

Court of Appeals of North Carolina.

Filed: April 7, 2020

Attorney General Joshua H. Stein, by Assistant Attorney General Asher Spiller, for the State-Appellee.

Marilyn G. Ozer, Chapel Hill, for Defendant-Appellant.

COLLINS, Judge.

Defendant appeals from judgments entered upon jury verdicts of guilty of attempted first-degree murder, conspiracy to commit first-degree murder, and assault with a deadly weapon with intent to kill inflicting serious injury. Defendant argues that the trial court: (1) erred by denying Defendant's motions to dismiss the conspiracy charge; (2) committed plain error in the delivery of jury instructions; and (3) plainly erred by admitting hearsay evidence that violated Defendant's right to confrontation. As the trial court incorrectly instructed the jury on the law of conspiracy to commit first-degree murder, we discern plain error and award a new trial on the conspiracy conviction. However, as to the issues concerning the denial of Defendant's motions to dismiss and the admission of hearsay evidence, we discern no error.

I. Procedural and Factual Background

On 3 October 2016, Defendant Fabiola Rosales Chavez was indicted on two counts of attempted first-degree murder, one count of conspiracy to commit first-degree murder, two counts of assault with a deadly weapon with intent to kill inflicting serious injury, and one count of first-degree burglary. The conspiracy indictment stated, "[t]he jurors for the State upon their oath present that on or about the 21st day of September, 2016, in Mecklenburg County, Fabiola Rosales Chavez did unlawfully, willfully, and feloniously conspire with Carlos Roberto Manzanares to commit the felony of First Degree Murder[.]" Orders for Defendant's arrest were issued on 6 October 2016.

On 26 November 2018, the State dismissed one count of attempted first-degree murder, one count of assault with a deadly weapon with intent to kill inflicting serious injury, and the single count of first-degree burglary. That same day, Defendant's case came on for trial.

The evidence at trial tended to show: On 21 September 2016, Defendant, along with Carlos Manzanares ("Carlos") and a second, unidentified male, entered the home of Roberto Hugo Martinez ("Roberto"). Defendant and the two men were armed with a machete and a hammer. Roberto was asleep in bed with his girlfriend, Maria Navarro ("Maria"), and Maria's 16-month-old infant. Roberto and Maria were awakened when the bedroom lights flashed on, and Maria observed Defendant and the two men enter the room. Maria testified that she heard Defendant say, "nobody laughs at me. Nobody makes fun of me, and I'm here to kill you." Maria witnessed Defendant throw the machete at Roberto, and then watched Carlos and the unidentified male strike and kick Roberto repeatedly. One of the men took the machete and hit Roberto in the head with it. After Roberto fell to the ground, "[t]hey hit him. They kicked him. They hit him in the head with the machete and with the hammer."

Carlos and the unidentified male beat Roberto until he was unconscious, and then Carlos told Maria to flee because, "[i]f you stay here [Defendant] will kill you." Maria grabbed her baby, ran from the apartment, and began knocking on doors in search of help. Maria also called 911 and reported that someone was trying to kill her. Defendant and Carlos pursued Maria outside and caught up to her in a parking lot, where Defendant told Carlos to kill Maria because she had called the police. Carlos refused Defendant's directive to kill Maria, and Defendant fled the parking lot. Carlos remained in the parking lot with Maria until law enforcement arrived.

On 29 November 2018, the jury found Defendant guilty on all charges. The trial court sentenced Defendant to 132-171 months' imprisonment for the attempted first-degree murder conviction; 132-171 months' imprisonment for the conspiracy to commit first-degree murder conviction, to be served consecutively to the first sentence; and 72-99 months' imprisonment for the assault with a deadly weapon with intent to kill inflicting serious injury conviction, to be served consecutively to the second sentence. From entry of judgment, Defendant gave proper notice of appeal.

II. Discussion

Defendant argues on appeal that the trial court (1) erred by denying Defendant's motion to dismiss the conspiracy charge; (2) plainly erred by instructing the jury, and accepting its verdict of guilty, on the offense of conspiracy to commit first-degree murder; and (3) plainly erred by admitting hearsay evidence that violated Defendant's right to confrontation.

1. Motion to Dismiss Conspiracy Charge

Defendant first argues that the trial court erred by denying her motion to dismiss for insufficient evidence the charge of conspiracy to commit first-degree murder.

It is apparent from the record that Defendant did not move to dismiss the conspiracy charge at the close of all evidence but, instead, explicitly stated "that [the conspiracy] count should be allowed to go forward" because "conspiracy is very easy for the State to prove[.]" Because Defendant failed to move to dismiss the conspiracy to commit first-degree murder charge, Defendant has failed to preserve this argument for our review. N.C. R. App. P. 10(a)(3) ("In order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion [and] ... obtain a ruling upon the party's request, objection, or motion.").

In the alternative, Defendant requests that we invoke Rule 2 and determine whether there was sufficient evidence to support the conspiracy charge. An appellate court may address an unpreserved argument "[t]o prevent manifest injustice to a party, or to expedite decision in the public interest[.]" N.C. R. App. P. 2. However, "the authority to invoke Rule 2 is discretionary, and this discretion should only be exercised in exceptional circumstances in which a fundamental purpose of the appellate rules is at stake." State v. Pender , 243 N.C. App. 142, 149, 776 S.E.2d 352, 358 (2015) (internal quotation marks, citations, and ellipsis omitted). This case does not involve exceptional circumstances, and we, in our discretion, decline to invoke Rule 2.

Also in the alternative, Defendant argues that her trial counsel rendered ineffective assistance of counsel ("IAC") by failing to move to dismiss the charge of conspiracy to commit first-degree murder.

Claims of IAC generally should be considered through motions for appropriate relief. State v. Stroud , 147 N.C. App. 549, 553, 557 S.E.2d 544, 547 (2001). However, we may decide the merits of this claim because the trial transcript reveals that no further investigation is required. See State v. Fair , 354 N.C. 131, 166, 557 S.E.2d 500, 524 (2001) ("IAC claims brought on direct review will be decided on the merits when the cold record reveals that no further investigation is required ...."). "On direct appeal, [this Court] ... limits its review to material included in the record on appeal and the verbatim transcript of proceedings, if one is designated." Id. at 166, 557 S.E.2d at 524-25, 354 N.C. 131 (quotation marks and citation omitted).

To prevail on a claim for IAC, a defendant must satisfy a two-part test:

"First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable."

State v. Banks , 367 N.C. 652, 655, 766 S.E.2d 334, 337 (2014) (quoting Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ).

An attorney's failure to move to dismiss a charge is not ineffective assistance of counsel when the evidence is sufficient to defeat the motion. State v. Gayton-Barbosa , 197 N.C. App. 129, 141, 676 S.E.2d 586, 594 (2009). "[A] court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury." Strickland , 466 U.S. at 695, 104 S.Ct. 2052. "[I]f a reviewing court can determine at the outset that there is no reasonable probability that in the absence of counsel's alleged errors the result of the proceeding would have been different, then the court need not determine whether counsel's performance was actually deficient." State v. Braswell , 312 N.C. 553, 563, 324 S.E.2d 241, 249 (1985).

A conspiracy is an "agreement between two or more persons to do an unlawful act or to do a lawful act in an unlawful way or by unlawful means." State v. Gibbs , 335 N.C. 1, 47, 436 S.E.2d 321, 347 (1993) (citations omitted). An agreement must be shown to prove a conspiracy, but the agreement may be an implied agreement "generally inferred from ... the surrounding facts and circumstances, rather than established by direct proof." State v. Fleming , 247 N.C. App. 812, 819, 786 S.E.2d 760, 766 (2016) (citing State v. Whiteside , 204 N.C. 710, 712-13, 169 S.E. 711, 712 (1933) ). Direct proof of a conspiracy is "not essential, as such is rarely obtainable." State v. Winkler , 368 N.C. 572, 576, 780 S.E.2d 824, 827 (2015) (citation omitted). Thus, circumstantial evidence is permitted to find a conspiracy. Id.

Moreover, our Courts have determined that a simultaneous attack on a victim or attacking a victim in a coordinated manner is sufficient to present the charge of conspiracy to the jury. See State v. Lamb , 342 N.C. 151, 156, 463 S.E.2d 189, 191 (1995) (determining "substantial evidence from which the jury could find the robbery was carried out pursuant to a common plan" to support the finding of guilty of conspiracy where the defendant and two other men drove to a victim's home,...