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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. JORGE CASTREJON
STATE OF NORTH CAROLINA v. JAVIER MORALES GONZALEZ
Filed: 17 October 2006
1. Joinder--trials--abuse of discretion standard-_impact of evidence against one
The trial court did not abuse its discretion in a trafficking in cocaine case by allowing the
State's motion to join defendants' trials, because: (1) although evidence admitted about one
defendant's possession of a concealed weapon at the scene may have been inadmissible against
the other defendant in a separate trial, the admission of that evidence alone does not warrant
severance or a new trial; (2) neither defendant objected to the admission of testimony concerning
the concealed weapon nor did they request a limiting instruction; and (3) the existence of
antagonistic defenses alone does not necessarily warrant severance, and one of the defendants
simply argued he was in the wrong place at the wrong time instead of directly implicating the
guilt of the other defendant.
2. Confessions and Incriminating Statements--post-arrest exculpatory statement--false
identity--rule of completeness
The trial court did not err in a trafficking in cocaine case by allowing the State's motion
to exclude defendant's post-arrest exculpatory statement while allowing testimony of a false
identity he gave at the same time allegedly in violation of the rule of completeness set forth in
N.C.G.S. § 8C-1, Rule 106, because: (1) defendant failed to provide the text or content of the
alleged exculpatory statements in the record or demonstrate how they were explanatory of or
relevant to him giving the police a false name; and (2) in the absence of the exculpatory
statements in the record, defendants failed to show the trial court abused its discretion.
3. Discovery--alleged violations--motion to dismiss--failure to provide lab report
The trial court did not err in a trafficking in cocaine case by denying defendant's motion
to dismiss based on alleged discovery violations on the ground that the State had not provided the
lab report identifying the package seized as cocaine prior to trial, because: (1) the trial judge
ordered the lab report to be copied and provided to all defense counsel; (2) the trial judge gave all
defense counsel the lunch break to review the report and also stated he would deal with the fact
that more time was needed to deal with the lab report if necessary; and (3) defense counsel made
no further motions on the matter and failed to object when the lab report was entered into
4. Discovery--alleged violations--motion to dismiss--failure to provide police notes
The trial court did not err in a trafficking in cocaine case by denying defendant's motion
to dismiss based on alleged discovery violations on the ground that the State had not provided
police notes an officer used to bolster his testimony, because: (1) upon objection of the
introduction of the police notes, the notes were provided to defense counsel; and (2) each time
defense counsel requested discovery, copies of the documents requested were provided.
5. Constitutional Law--effective assistance of counsel--failure to renew motion to
dismiss at close of all evidence--dismissal of claim without prejudice
Although defendant contends he received ineffective assistance of counsel in a trafficking
in cocaine case based on his counsel's failure to renew a motion to dismiss at the close of all
evidence, this argument is dismissed without prejudice to defendant to move for appropriate
relief and to request a hearing to determine this issue, because the record is insufficient for a
review when the transcripts and record do not reveal whether defense counsel's action or inaction
resulted from trial tactics and strategy or from a lack of preparation or an unfamiliarity with the
Appeals by defendants from judgments entered 12 August 2005 by
Judge Richard D. Boner in Mecklenburg County Superior Court. Heard
in the Court of Appeals 20 September 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Scott K. Beaver and Assistant Attorney General Elizabeth N.
Strickland, for the State.
Brannon Strickland, PLLC, by Anthony M. Brannon, for
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Charlesena Elliott Walker, for defendant-appellant
Jorge Castrejon (Castrejon) appeals from judgment entered
after a jury found him to be guilty of trafficking cocaine. Javier
Morales Gonzalez (Gonzalez) appeals from judgment entered after
a jury found him to be guilty of trafficking cocaine and carrying
a concealed weapon. We find no error.
A. State's Evidence
The State's evidence tended to show Charlotte-Mecklenburg
Police Detective James Almond (Detective Almond) was contacted by
the Gaston Drug Task Force and was informed Abel Carillio
(Carillio) had been charged with a drug offense and would provideinformation on drug activity in Charlotte. Carillio informed
Detective Almond that a Hispanic male named Jorge would be
available to sell a half kilogram of cocaine. Carillio described
Jorge as approximately twenty-four-years-old, five foot ten inches
tall, and drove a white Oldsmobile Aurora vehicle.
On 10 December 2004, Detective Almond met with other police
officers to discuss the information obtained from Carillio.
Detective Almond and the other officers planned a deal between
Carillio and Jorge in the Bi-Lo Supermarket (Bi-Lo) parking lot
located on Albermarle Road in Charlotte. Several officers arrived
at the parking lot to begin surveillance. Detective Almond met
Carillio at a nearby parking lot. Detective Almond searched
Carillio and his vehicle for firearms and illegal drugs. They
drove in separate vehicles to Bi-Lo's parking lot with Detective
Almond following Carillio. Detective Almond observed a parked
white Oldsmobile Aurora as he entered the parking lot. Detective
Almond also observed three Hispanic males standing at the entrance
to Bi-Lo. Detective Almond identified the three men at trial as
Castrejon, Gonzalez, and Rodolfo Hernandez (Hernandez).
Castrejon approached Carillio after he parked. The two
greeted each other and Castrejon entered Carillio's vehicle. After
circling Bi-Lo's parking lot, Carillio parked near the white
Oldsmobile Aurora. Hernandez and Gonzalez each entered a gold
extended cab pick-up truck, circled the parking lot, and parked
near Carillio's vehicle. Detective Almond saw both Hernandez and
Gonzalez turn their attention to the extended cab portion of thetruck. Detective Almond later searched the gold truck and found an
open compartment located behind the driver's area, which was large
enough to hold the package later seized with suspected cocaine.
Hernandez exited the gold truck and entered the back seat of
Carillio's vehicle. Carillio, Hernandez, and Castrejon drove away.
Gonzalez remained inside the gold truck. Carillio exited his
vehicle within minutes and removed his hat. This action was a
predetermined signal to the police officers that Carillio had seen
Law enforcement officials converged on the vehicles. A search
of Carillio's vehicle revealed what appeared to be a one-half
kilogram of cocaine located under the front passenger seat.
Officers arrested Castrejon, Gonzalez, and Hernandez. Gonzalez was
searched and a loaded firearm was recovered from him.
Detective Almond measured the package at the Police
Department's Property Control Room. The package weighed 538.3
grams, including the plastic cellophane wrapping.
Charlotte-Mecklenburg Police Forensic Chemist Deann Johnson
tested the package seized and identified its contents as 498 grams
of cocaine. The report reflecting her testimony that the package
seized contained 498 grams of cocaine was admitted into evidence
without further objection. Detective Almond testified if 498 grams
of cocaine was broken down into ten dollar units, it would sell for
approximately $53,000.00 on the street. Castrejon was charged with trafficking cocaine and Gonzalez
was charged with trafficking cocaine and carrying a concealed
B. Pre-Trial Matters
On 8 August 2005, the trial court heard and ruled upon three
pre-trial matters. The State moved to join Castrejon's and
Gonzalez's trials. Castrejon opposed the motion. The trial court
allowed the State's motion for joinder.
The State requested clarification from the trial court
regarding Castrejon identifying himself as Jose Roman to police
officers upon arrest. As a result of Castrejon's false
identification, various documents in the case, including a lab
report, referred to the name Jose Roman instead of Jorge
Castrejon. The State sought a preliminary ruling to determine if
the State elicited testimony from prospective witnesses concerning
Castrejon's providing an incorrect name to the police, would it
open the door to also allow Castrejon to introduce exculpatory
statements he made to the police. The trial court ruled the
State's elicitation of such testimony would not open the door and
allowed testimony that upon Castrejon's arrest he identified
himself as Jose Roman.
Castrejon's attorney moved to dismiss the charges against him
on the grounds that the State had violated the open-file discovery
statute by not providing Castrejon with the lab report of the
chemical analysis performed on the cocaine seized. The trial court
denied the motion and ordered the clerk of court to provide a copyof the lab report to Castrejon's and Gonzalez's counsel to review
during lunch. The trial court also informed all counsel that if
additional time was needed to review the report, the trial court
would entertain that motion. The record does not reflect that
additional time was requested.
C. Gonzalez's Evidence
Castrejon did not present any evidence or testify on his own
behalf at trial. Gonzalez did testify on his own behalf at trial.
Gonzalez testified on 10 December 2004 he went to Bi-Lo in search
of work. After not finding work, he stood by Castrejon and
Hernandez while the men waited outside Bi-Lo for the rain to stop.
Gonzalez testified Castrejon walked to Bi-Lo's parking lot and
Hernandez approached and offered him a job cleaning yards.
Gonzalez entered Hernandez's gold truck, anticipated instructions
on the job, and left Bi-Lo's parking lot. Hernandez drove around
until it stopped raining and Gonzalez and Hernandez exited the
truck to retrieve some trash bags from the rear of the truck to
begin work. When the rain resumed, the two men re-entered the
truck. Hernandez exited the vehicle and requested Gonzalez wait
for him inside. Gonzalez was arrested by police as he waited
inside Hernandez's truck. Gonzalez testified he immediately told
the police he had a weapon, had no previous relationship with
either Castrejon or Hernandez, and he knew nothing about the seized
On 11 August 2005, a jury found both Castrejon and Gonzalez
guilty of trafficking in cocaine by possession of 400 or moregrams. Gonzalez was also found guilty of carrying a concealed
weapon. Castrejon and Gonzalez were each sentenced to a minimum
term of 175 months and a maximum term of 219 months. Castrejon and
Castrejon and Gonzalez jointly assign three errors and argue
the trial court erred by: (1) allowing the State's motion to join
their trials; (2) allowing the State's motion to exclude
Castrejon's post-arrest exculpatory statement, while allowing
testimony of a false identity he gave at the same time in violation
of the rule of completeness; and (3) denying Castrejon's motion to
dismiss for discovery violations. Gonzalez further argues he
received ineffective assistance of counsel.
 Castrejon and Gonzalez argue the trial court erred by
granting the State's motion to join their trials. Castrejon
properly objected to the joinder. N.C. Gen. Stat. § 15A-927(c)(2)
(2005) requires the trial court to deny joinder of the defendants
for trial whenever it is necessary to promote or achieve a fair
determination of guilt or innocence.
A. Standard of Review
Whether defendants should be tried jointly or separately is
a question addressed to the sound discretion of the trial judge.
State v. Rasor, 319 N.C. 577, 581, 356 S.E.2d 328, 331 (1987)
(citing State v. Slade, 291 N.C. 275, 229 S.E.2d 921 (1976)). A
trial court's ruling on such questions of joinder or severance,however, is discretionary and will not be disturbed absent a
showing of abuse of discretion. State v. Carson, 320 N.C. 328,
335, 357 S.E.2d 662, 666-67 (1987).
B. Exclusion of Evidence
Castrejon and Gonzalez cite State v. Foster, 33 N.C. App. 145,
234 S.E.2d 443 (1977) and argue the joint trial was prejudicial and
unfair. The trial court allowed the admission of the concealed
weapon against Gonzalez, which would have been excluded against
Castrejon, if he had been granted a separate trial.
Our Supreme Court has stated:
There is a strong policy in North Carolina
favoring the consolidation of the cases of
multiple defendants at trial when they may be
held accountable for the same criminal
conduct. Severance is not appropriate merely
because the evidence against one codefendant
differs from the evidence against another.
The differences in evidence from one
codefendant to another ordinarily must result
in a conflict in the defendants' respective
positions at trial of such a nature that, in
viewing the totality of the evidence in the
case, the defendants were denied a fair trial.
However, substantial evidence of the
defendants' guilt may override any harm
resulting from the contradictory evidence
offered by them individually.
State v. Barnes, 345 N.C. 184, 220, 481 S.E.2d 44, 63-64 (1997)
(internal citations and quotations omitted), cert. denied, 523 U.S.
1024, 140 L. Ed. 2d 473 (1998).
Although evidence admitted about Gonzalez's possession of the
gun at the scene may have been inadmissible against Castrejon in a
separate trial, the admission of that evidence alone does not
warrant severance or a new trial. State v. Nelson, 298 N.C. 573,586-89, 260 S.E.2d 629, 640-41 (1979), cert. denied, 446 U.S. 929,
64 L. Ed. 2d 282 (1980). Our Supreme Court in Nelson stated, That
the jury might have considered evidence competent only against one
defendant as evidence against the other is a consequence defendants
might have avoided had they made timely objections and motions for
limiting instructions. 298 N.C. at 589, 260 S.E.2d at 641. Here,
as in Nelson, neither defendant objected to the admission of
testimony concerning the concealed weapon.
Castrejon and Gonzalez also failed to request limiting
instructions. As this Court stated in State v. Pierce:
[Defendants] may not now be heard to complain
because evidence showing the separate
possession of each was admitted generally
against both without instructions to the jury
to make it clear as against which defendant
the evidence might be considered. Prejudice,
if any, suffered by the defendants resulted,
not because the cases were consolidated for
trial, but because defendants' counsel failed
to request limiting instructions or to
interpose timely general objections requiring
36 N.C. App. 770, 772, 245 S.E.2d 195, 198 (1978). Castrejon
failed to show any abuse of discretion in the trial court's joinder
of these trials due to evidence of Gonzalez's possession of a
concealed weapon. This assignment of error is overruled.
Castrejon and Gonzalez also argue they were prejudiced because
Gonzalez presented an antagonistic defense to Castrejon. They
contend the defenses were antagonistic because Gonzalez presented
a defense which was based on the assertion that Castrejon was the
real guilty party.
Our Supreme Court has stated: [T]he existence of antagonistic defenses alone
does not necessarily warrant severance. The
test under section 15A-927(c)(2) is whether
the conflict in the defendants' respective
positions at trial is such that, considering
all of the other evidence in the case, they
were denied a fair trial. Thus the focus is
not on whether the defendants contradict one
another but on whether they have suffered
Rasor, 319 N.C. at 582-83, 356 S.E.2d at 332 (internal citations
and quotations omitted). Here, Gonzalez's defense was not
antagonistic to Castrejon. Gonzalez's defense was that he was
simply in the wrong place at the wrong time. Gonzalez did not
make any assertion regarding Castrejon's guilt and did not directly
implicate Castrejon. Castrejon suffered no prejudice by Gonzalez's
defense. The trial court did not abuse its discretion in
overruling Castrejon's objection to the joinder of these trials on
this ground. This assignment of error is overruled.
IV. Post-Arrest Exculpatory Statements
 Castrejon and Gonzalez contend it was reversible error for
the trial court to exclude Castrejon's post-arrest exculpatory
statements while allowing testimony that Castrejon gave police a
N.C. Gen. Stat. § 8C-1, Rule 106 (2005), entitled, Remainder
of or Related Writing or Recorded Statement, states, When a
writing or recorded statement or part thereof is introduced by a
party, an adverse party may require him at that time to introduce
any other part or any other writing or recorded statement which
ought in fairness to be considered contemporaneously with it. Our Supreme Court addressed Rule 106 in State v. Thompson and
noted that our State rule is identical to the Federal rule, which
has been interpreted and applied in many federal courts' decisions.
332 N.C. 204, 219, 420 S.E.2d 395, 403 (1992). [T]his Court
frequently looks to federal decisions for guidance with regard to
the Rules of Evidence. Id.
Our Supreme Court cited extensive federal case law in Thompson
and set out the following principles:
The lessons of the federal decisions
discussing Rule 106 are well settled. Rule
106 codifies the standard common law rule that
when a writing or recorded statement or a part
thereof is introduced by any party, an adverse
party can obtain admission of the entire
statement or anything so closely related that
in fairness it too should be admitted. The
trial court decides what is closely related.
The standard of review is whether the trial
court abused its discretion. The purpose of
the 'completeness' rule codified in Rule 106
is merely to ensure that a misleading
impression created by taking matters out of
context is corrected on the spot, because of
'the inadequacy of repair work when delayed to
a point later in the trial.'
Federal decisions also make clear that Rule
106 does not require introduction of
additional portions of the statement or
another statement that are neither explanatory
of nor relevant to the passages that have been
332 N.C. 204 at 219-20, 420 S.E.2d at 403-04.
Here, Castrejon and Gonzalez must demonstrate that the
statement showing Castrejon gave the police a false name upon
arrest was taken out of context when introduced into evidence and
Castrejon's allegedly exculpatory statements were explanatory of or
relevant to his giving the police the name Jose Roman. Id. Castrejon failed to provide the text or content of the alleged
exculpatory statements in the record or demonstrate how they were
explanatory of or relevant to him giving the police the name Jose
Roman. In the absence of the exculpatory statements in the
record, Castrejon and Gonzalez have failed to show the trial court
abused its discretion when it allowed testimony that Castrejon gave
police a false name after arrest and excluded Castrejon's post-
arrest exculpatory statements. Id. This assignment of error is
V. Discovery Violations
A. Lab Report
 Castrejon and Gonzalez argue the trial court erred by not
granting Castrejon's motion to dismiss the case for discovery
violations. At the pre-trial hearing on 8 August 2005, Castrejon
moved to dismiss the charge for discovery violations on the grounds
the State had not provided the lab report identifying the package
seized as cocaine prior to trial. The trial court ordered the lab
report to be copied and provided to all defense counsel. The trial
court gave all defense counsel the lunch break to review the report
and also stated, If you think there's some need for some time to
deal with [the lab report], I'll deal with that, to disclose I will
deal with that if necessary. Defense counsel made no further
motions on the matter and failed to object when the lab report was
entered into evidence. This assignment of error is overruled.
B. Officer's Notes
 Castrejon and Gonzalez also argue the trial court erred by
allowing Detective Almond to use his police notes to bolster his
testimony. Castrejon and Gonzalez objected to the introduction of
the police notes because they had not been provided to them prior
to trial. Upon objection, Detective Almond's police notes were
provided to all defense counsel.
N.C. Gen. Stat. § 15A-903 (2005) states, in relevant part:
(a) Upon motion of the defendant, the court
must order the State to:
(1) Make available to the defendant the
complete files of all law enforcement and
prosecutorial agencies involved in the
investigation of the crimes committed or the
prosecution of the defendant. The term file
includes the defendant's statements, the
codefendants' statements, witness statements,
investigating officers' notes, results of
tests and examinations, or any other matter or
evidence obtained during the investigation of
the offenses alleged to have been committed by
the defendant. Oral statements shall be in
written or recorded form. The defendant shall
have the right to inspect and copy or
photograph any materials contained therein
and, under appropriate safeguards, to inspect,
examine, and test any physical evidence or
sample contained therein.
A defendant is not entitled to discovery of materials in the
possession of the State unless he makes a motion to compel
discovery. State v. Abbott, 320 N.C. 475, 482, 358 S.E.2d 365,
370 (1987); see State v. Reaves, 343 N.C. 111, 113, 468 S.E.2d 53,
54 (1996) ([A] prosecutor's open-file policy does not grant a
defendant a standing motion for discovery.). Here, each timedefense counsel requested discovery, copies of the documents
requested were provided. This assignment of error is overruled.
Castrejon and Gonzalez argue that providing them with
incomplete discovery that omits officer's notes and a lab report
routinely conducted cannot be said to satisfy . . . considerations
of due process and fundamental fairness. The United States
Supreme Court has expressly stated, the suppression by the
prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to guilt
or to punishment, irrespective of the good faith or bad faith of
the prosecution. Brady v. Maryland, 373 U.S. 83, 87, 10 L. Ed. 2d
215, 218 (1963) (emphasis supplied). Last minute or day of trial
production to the defendant of discoverable materials the State
intends to use at trial is an unfair surprise and may raise
constitutional and statutory violations. We do not condone either
non-production or a sandbag delivery of relevant discoverable
materials and documents by the State. See State v. Payne, 327 N.C.
194, 202, 394 S.E.2d 158, 162 (1990) ([T]he purpose of discovery
under our statutes is to protect the defendant from unfair surprise
by the introduction of evidence he cannot anticipate.), cert.
denied, 498 U.S. 1092, 112 L. Ed. 2d 1062 (1991).
Castrejon and Gonzalez failed to raise the issue of the
constitutionality of admitting the late delivered lab report in
their pre-trial motion to dismiss the case pursuant to the open-
file [d]iscovery statute for discovery violations. Castrejon and
Gonzalez also failed to raise the issue of the constitutionality aspart of their objection to Officer Almond using his notes not
previously provided to them during testimony. A constitutional
issue not raised in the trial court will not be considered for the
first time on appeal. State v. Hunter, 305 N.C. 106, 112, 286
S.E.2d 535, 539 (1982) ([A] constitutional question which is not
raised and passed upon in the trial court will not ordinarily be
considered on appeal.); see State v. Benson, 323 N.C. 318, 322,
372 S.E.2d 517, 519 (1988) (Defendant may not swap horses after
trial in order to obtain a thoroughbred upon appeal.). This
assignment of error is dismissed.
VI. Ineffective Assistance of Counsel
 Gonzalez argues his trial counsel provided ineffective
assistance after counsel failed to renew his motion to dismiss at
the close of all the evidence. Gonzalez asserts the State failed
to present substantial evidence he constructively possessed the
Gonzalez's counsel moved to dismiss the charges at the close
of the State's evidence, but failed to renew the motion at the
close of all the evidence. Gonzalez contends that due to the
absence of evidence showing Gonzalez constructively possessed the
cocaine, trial counsel's failure to renew the routine motion
constituted ineffective assistance of counsel and he should be
awarded a new trial for trafficking in cocaine.
This Court has stated, claims of ineffective assistance of
counsel should be considered through motions for appropriate relief
and not on direct appeal. State v. Stroud, 147 N.C. App. 549,553, 557 S.E.2d 544, 547 (2001), cert. denied, 356 N.C. 623, 575
S.E.2d 758 (2002). The reasons for this rule is to develop a
factual record and in order to defend against ineffective
assistance of counsel allegations, the State must rely on
information provided by defendant to trial counsel, as well as
defendant's thoughts, concerns, and demeanor. Id. at 554, 557
S.E.2d at 547. An ineffective assistance of counsel claim may be
brought on direct review when the cold record reveals that no
further investigation is required, i.e., claims that may be
developed and argued without such ancillary procedures as the
appointment of investigators or an evidentiary hearing. State v.
Fair, 354 N.C. 131, 166, 557 S.E.2d 500, 524 (citations omitted),
motion to withdraw opinion denied, 354 N.C. 576, 558 S.E.2d 861
(2001), cert. denied, 535 U.S. 1114, 153 L. Ed. 2d 162 (2002).
Here, the record is insufficient for us to review and rule on
Gonzalez's claim. The transcripts and record are insufficient for
us to determine whether defense counsel's actions or inaction
resulted from trial tactics and strategy or from a lack of
preparation or an unfamiliarity with the legal issues. We decline
to reach Gonzalez's ineffective assistance of counsel assignment of
error because it is not properly raised at this stage of review.
This assignment of error is dismissed.
Our dismissal of this assignment of error is without prejudice
to Gonzalez to move for appropriate relief and to request a hearing
to determine whether he received effective assistance of counsel.
See State v. Dockery, 78 N.C. App. 190, 192, 336 S.E.2d 719, 721(1985) (The accepted practice is to raise claims of ineffective
assistance of counsel in post-conviction proceedings, rather than
direct appeal.) (citing e.g., State v. Vickers, 306 N.C. 90, 291
S.E.2d 599 (1982)).
Castrejon and Gonzalez failed to show the trial court abused
its discretion in overruling Castrejon's objection to the joinder
of their trials. Castrejon and Gonzalez failed to use available
procedures and instructions to limit the impact of the concealed
weapon testimony. Castrejon and Gonzalez also failed to show the
trial court abused its discretion when it allowed testimony
concerning a post-arrest statement in which Castrejon gave police
a false name and excluded his post-arrest exculpatory statements.
The trial court did not err by denying Castrejon's and
Gonzalez's motions to dismiss for discovery violations. Castrejon
and Gonzalez failed to preserve for review constitutional issues on
the State's discovery violations.
Gonzalez's claim of ineffective assistance of counsel is not
properly before us and is dismissed without prejudice. Castrejon
and Gonzalez received a fair trial free from prejudicial errors
each preserved, assigned, and argued.
Judges BRYANT and LEVINSON concur.
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