State v. Tellez

• Decision Date: 03 November 2009
• Docket Number: No. COA09-338.,COA09-338.
• Citation: 684 S.E.2d 733
• Parties: STATE of North Carolina v. Luciano Diaz TELLEZ.
• Court: North Carolina Court of Appeals

684 S.E.2d 733

STATE of North Carolina v. Luciano Diaz TELLEZ.

No. COA09-338.

Court of Appeals of North Carolina.

November 3, 2009.

Appeal by defendant from judgments entered 22 August 2008 by Judge Thomas H. Lock in Johnston County Superior Court.

Heard in the Court of Appeals 16 September 2009.

Attorney General Roy A. Cooper, III, by Special Attorney General Hal Askins and Assistant Attorney General Jess D. MeKeel, for the State.

Sofie W. Hosford, Wilmington, for defendant-appellant.

JACKSON, Judge.

Luciano Diaz Tellez ("defendant") appeals from a conviction of two counts of second-degree murder and one count of felonious hit-and-run. For the reasons set forth below, we hold no error.

On 4 March 2007, at approximately 1:00 p.m., defendant arrived at a party in Coats, North Carolina where LuJayne Childers ("Childers") and Ramon Castro ("Castro") were already present. Defendant consumed approximately four beers during the party. Childers, who consumed three beers during the party, observed defendant drinking but did not spend significant time with him and did not know how much alcohol defendant had consumed. Shortly before dark, Childers, Castro, and defendant left the party. Defendant drove Castro's car; Castro sat in the front passenger seat, and Childers sat in the rear passenger seat. At the time, Childers did not believe that defendant was intoxicated.

At approximately 5:00 p.m., Dwane Braswell ("Mr. Braswell") left his house in Clayton, North Carolina with his nine-year-old son Jerry Braswell ("Jerry") to pick up his weekly paycheck in Fuquay-Varina, North Carolina. Mr. Braswell hauled logs for a living with his eighteen-wheeler truck. At 6:18 p.m., Mr. Braswell called his wife Candy Braswell ("Ms. Braswell") on a two-way radio and offered to bring dinner home.

Thereafter, Staley Ogburn ("Ogburn") observed a large truck—a tractor without a trailer attached—approach the intersection of Plain View Church Road traveling eastbound on Highway 210 at approximately fifty-five miles per hour, which was the speed limit for that portion of the highway. Ogburn had stopped at the intersection to wait for the truck to pass so that he could turn right onto Highway 210.

Meanwhile, defendant approached the intersection of Plain View Church Road and Highway 210. Defendant slowed down the car, but did not stop at the stop sign. Defendant drove around Ogburn's car and drove into the intersection at approximately twenty or twenty-five miles per hour. Childers yelled, "the truck," and Castro yelled, "the trucka," but defendant drove into the truck's path and collided with the truck. The truck rolled several times and caught on fire.

Childers did not see defendant after the collision, but he noticed that the driver's side door of the car was open. Ogburn saw two people, who appeared to be unharmed, sitting in the back seat of the car that hit the truck; Ogburn saw no one in the driver's seat.

Emergency Medical Services ("EMS") was dispatched at 6:46 p.m. and arrived on the scene at 6:53 p.m. Paramedics were unable to help the truck's occupants due to the intensity of the flames and were forced to wait for the fire department to arrive. Paramedics discovered the bodies of an adult male driver and a young male child, both burned beyond recognition. At approximately 9:35 p.m., Trooper Derek L. Mobley ("Trooper Mobley") informed Ms. Braswell that her husband and son had been killed in a car crash. Dr. Samuel Simmons ("Dr. Simmons"), an expert in forensic pathology, later testified that Mr. Braswell died of smoke and soot inhalation and thermal injury while Jerry died from smoke and soot inhalation, thermal injury, and blunt force cerebral injuries.

Trooper R. Brian Maynard ("Trooper Maynard") was the first trooper on the scene. He observed that the driver's side door of the car was ajar and that there were three beer cans inside the car—one in the driver's side door and two on the driver's side floorboard. One of the beer cans was open. Trooper Maynard also noticed a strong smell of alcohol coming from the inside of the car. Trooper Maynard took a written statement from Childers. Childers advised Trooper Maynard that she did not know where defendant was after the collision and that defendant "was drunk and left. He was drunk and ran, got scared." Officers were unable to locate defendant that night.

On the morning of 5 March 2007, Sergeant Joe A. Starling ("Sergeant Starling") observed a person matching defendant's description at a mobile home where officers believed defendant was residing. As Sergeant Starling pulled his car up to the home, defendant, who was drinking a beer at the time, "looked directly at" and "made eye contact" with Sergeant Starling and "turned and ran directly 180 degrees from [Sergeant Starling] towards the wood line." Sergeant Starling chased defendant and "hollered at him to stop." Defendant stopped after Sergeant Starling caught up to and placed his hands on defendant. Sergeant Starling then placed defendant under arrest. Trooper Mobley arrived minutes later and observed that defendant's clothes were damp, that he had a slight odor of alcohol about his person, and that he had scratches on his arms and face.

On the morning of 6 March 2007, police interviewed defendant with the assistance of Lea Granados, a Spanish interpreter certified by the Administrative Office of the Courts. Defendant admitted that he was driving the car at the time of the collision. Defendant stated that he did not see the truck when he pulled onto Highway 210 and that he tried to speed up upon realizing the truck was about to hit him. Defendant said he ran away after the collision because he was on probation. He also stated that he spent the night in the woods near his house. Defendant explained that he was "just having a beer" at the time Sergeant Starling encountered him at his residence.

Defendant admitted that he did not have and had never had a North Carolina driver's license, and that his privilege to obtain one had been revoked. He further admitted that he had been arrested twice for driving while impaired. Specifically, defendant had been convicted of driving while impaired on 28 August 2002 stemming from driving with a 0.12 blood-alcohol concentration ("BAC") on 15 May 2002. On 4 November 2005, defendant pleaded guilty and was placed on supervised probation for driving while license revoked and driving while impaired stemming from an incident on 29 April 2005 when, with a 0.21 BAC, he drove into two parked cars, forcing one of them into a residential building.

On 9 April 2007, a grand jury returned true bills of indictment against defendant for two counts of second degree murder and one count of felonious hit-and-run. At the 18 August 2008 Criminal Session of Johnston County Superior Court, defendant's case was called for trial. On 22 August 2008, a jury found defendant guilty as charged, and the trial court sentenced defendant as a prior record level II offender to consecutive sentences of imprisonment of 189 to 236 months, 189 to 236 months, and seven to nine months, respectively, for the convictions. Defendant appeals.

On appeal, defendant first argues that the trial court improperly instructed the jury with respect to evidence of his prior impaired driving and driving while license revoked convictions and that the court effectively instructed the jury that the State had proven the element of malice for second-degree murder. Defendant, however, has failed to preserve this argument for appellate review.

The North Carolina Rules of Appellate Procedure, Rule 10(b)(2) provides that

[a] party may not assign as error any portion of the jury charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly that to which he objects and the grounds of his objection....

N.C. R.App. P. 10(b)(2) (2007). It is well-established that "where a theory argued on appeal was not raised before the trial court, the law does not permit parties to swap horses between courts in order to get a better mount in the appellate courts." State v. Holliman, 155 N.C.App. 120, 123, 573 S.E.2d 682, 685 (2002) (internal citations and quotation marks omitted). See also State v. Lopez, 188 N.C.App. 553, 557, 655 S.E.2d 895, 898 (2008) (noting the defendant's impermissible attempt at an "equine swap"). But, the North Carolina Rules of Appellate Procedure also provide that

[i]n criminal cases, a question which was not preserved by objection noted at trial and which is not deemed preserved by rule or law without any such action, nevertheless may be made the basis of an assignment of error where the judicial action questioned is specifically and distinctly contended to amount to plain error.

N.C. R.App. P. 10(c)(4) (2007). See also In re W.R., 363 N.C. 244, 247, 675 S.E.2d 342, 344 (2009) (noting that "plain error review is limited to errors in a trial court's jury instructions or a trial court's rulings on admissibility of evidence") (quoting State v. Golphin, 352 N.C. 364, 460, 533 S.E.2d 168, 230-31 (2000)).

In the case sub judice, the trial court, prosecutor, and defense counsel engaged in the following colloquy with respect to giving pattern jury instruction, number 104.15 prior to the introduction of evidence of defendant's previous convictions:

[THE COURT]: Well, here is what I proposed to tell the jury. Something along these lines: Members of the jury, you are about to hear evidence tending to show that on a previous occasion the defendant was charged with—I could say another crime. I could say the crimes of driving while impaired and driving while his driver's license was revoked. I simply say as I indicated was charged with some other crime. Perhaps that's the best way to deal with it right now. This evidence is being received solely for the purpose of showing malice as that term will be defined for you at a later time. If you believe this evidence, you may consider...