STATE OF NORTH CAROLINA
v. Catawba County
Nos. 03 CRS 56600-01
CESAR ADRIAN FLORES-CHAVEZ
Attorney General Roy Cooper, by Special Deputy Attorney
General Francis W. Crawley, for the State.
J. Clark Fischer, for defendant appellant.
McCULLOUGH, Judge.
Defendant appeals from judgment entered after a jury verdict
of guilty of second-degree murder and assault with a deadly weapon
with intent to kill inflicting serious injury. The trial court
sentenced defendant to concurrent prison terms of 180-225 months
and 90-117 months. We find no error.
The State adduced evidence tending to show that defendant shot
Robert Neff and Roger Torrence with a nine-millimeter handgun in
the home of defendant's brother, Jose Manuel Flores, on the night
of 28 July 2003. An autopsy revealed that Neff died from a gunshot
wound to the face “just below the left eye” and sustained
additional shots to the left arm, left shoulder, and right leg.
Defendant also fired multiple shots at Torrence, striking him oncein the back of his right shoulder as he tried to flee the house.
Torrence, Allen Fernandez, Cynthia Olivera, and Martha Dedios each
testified that defendant shot Neff and Torrence in Flores' dining
room without provocation, and that he was the only person who
displayed or fired a weapon. The witnesses further averred that
neither Neff nor Torrence threatened or argued with defendant prior
to the shooting. At the time of his death, Neff had a .25 caliber
pistol in his right pants' pocket. Although the pistol was loaded,
the safety mechanism was on, and no bullet was in the firing
chamber. Defendant drove away from the scene in Torrence's red
Mazda B3000 pickup truck but returned momentarily and was
identified to police as the shooter by Olivera and Dedios.
Following defendant's arrest, police found a loaded Bryco Arms
nine-millimeter semiautomatic pistol and three additional magazines
of ammunition in the center console area of the truck. They also
found a chrome-plated Bryco Arms nine-millimeter semiautomatic
pistol on Flores' driveway adjacent to the kitchen door. A
forensic firearms and tool mark examiner from the State Bureau of
Investigation concluded that the bullets and spent cartridge cases
found at the shooting scene were fired from the pistol recovered
from the driveway, which defendant purchased from Sportsman Gun and
Pawn in Newton, North Carolina, on 18 November 2002. He purchased
a second nine-millimeter semiautomatic handgun from Sportsman Gun
and Pawn on 4 June 2003.
Defendant offered evidence that he fired at Neff and Torrence
in self-defense. He testified that he went to Flores' house on thenight of 28 July 2003, intending to watch a televised fight with
his brother. He brought with him two nine-millimeter handguns and
five loaded magazines, because he planned to go to a shooting range
the next day. After letting himself into Flores' house, which was
unoccupied, he placed the guns and ammunition in the computer room.
A few minutes later, Neff and his family knocked on the door and
entered the house, followed almost immediately by Torrence.
Defendant had met Neff and Torrence on two prior occasions but
did not know them well. Torrence looked at defendant “all mean
like” and was “breathing real loud” and clenching his fists.
Defendant found a chair for Torrence to sit down at the dining
table. Torrence kept looking out of the window into the yard as
though “agitated, upset or something.” Defendant saw a vehicle
outside with its lights on and told Torrence to “tell them to come
in.” Torrence exchanged a look with Neff and left the room
briefly. When he returned, Torrence closed the blinds. Flores
walked into the house with Fernandez and shook defendant's hand,
looking “frightened all the way.” When Flores went to the
bathroom, Torrence asked Neff if they were “going to do it here.”
Neff replied, “No, we're going to wait until we get to my house.”
Neff looked at defendant and said, “Hey, when your brother gets
back, we are going to go party at my house.”
Defendant left the table and knocked on the bathroom door,
hoping to ask Flores what was happening. When his brother did not
respond, defendant retrieved one of his guns and a clip of
ammunition and walked outside to the driveway. He loaded the gunas he approached Torrence's truck and asked Olivera to come inside.
He followed Olivera into the house. When she saw Torrence, she
smiled. Torrence saw defendant, looked at Neff and said, “Do it,
do it now.” Defendant drew his weapon and saw Neff “coming up with
his hands like this[,]” brandishing a black gun. Defendant fired
two shots at Neff's arm. When Neff stood up and came toward him,
defendant fired a third shot and struck Neff in the leg. Defendant
fired a fourth shot at Neff, which felled him. Believing that
Torrence was shooting at him, defendant fired at Torrence, who
“took off running[.]” Torrence stopped at the front door and
turned back toward defendant with a gun. Defendant fired twice
more at Torrence before ducking behind a wall. When he heard the
front door open, he came out from behind the wall and saw that
Torrence was gone. Flores appeared and asked, “What are you
doing?” Defendant told his brother, “They're trying to kill me.
He's got a gun.” Defendant warned Flores not to go outside,
because “the other one is out there.” Flores took defendant's gun,
called 911, and told defendant to “[g]et the 'F' out of here. Get
out of here now.” Defendant got into Torrence's truck and drove
onto Highway 127, placing his guns on the center console of the
truck. After driving a few miles, he returned to his brother's
residence and submitted to arrest by police.
Flores also testified for the defense, stating that he arrived
at his house with Fernandez just after 10:15 p.m. and found
defendant, Neff, Torrence, Dedios and Olivera rolling marijuana
cigarettes at his dining table. He did not see anyone with a gun. Defendant, Neff and Torrence were not arguing but were
“talking . . . [,] rolling the weed up and having a good time.”
Flores went to the bathroom and was in the kitchen getting a beer
when he heard the gunshots, but thought that someone was outside
“just shooting or playing with a gun.” Defendant came into the
kitchen, grabbed Flores and said, “Back up, back up because he's
got a - - he's got a gun.” When Flores tried to look into the
dining room, defendant said, “Don't look out there. . . . [T]hey're
blasting.” Flores walked into his dining room and saw Neff on the
floor. After telling Dedios to get her children out of the house,
he called 911 and returned to the kitchen. Defendant told Flores
that Torrence had drawn a gun and “was going to shoot [her].”
Defendant then asked Flores to give him a ride. Flores refused and
ran from the house.
In his sole argument on appeal, defendant claims the trial
court erred by allowing the prosecutor to cross-examine Flores
about the details of his prior conviction for trafficking in
marijuana in a manner exceeding the permissible scope of such
impeachment evidence under N.C.R. Evid. 609. We disagree.
Rule 609(a) provides as follows: “For the purpose of attacking
the credibility of a witness, evidence that the witness has been
convicted of a felony . . . shall be admitted if elicited from the
witness or established by public record during cross-examination or
thereafter.” Otherwise, extrinsic evidence of a witness' prior
conduct may not be used for impeachment purposes unless the
specific conduct is “probative of truthfulness or untruthfulness.” N.C.R. Evid. 608(b). In applying these rules, our courts have held
“that a cross-examiner can elicit only the 'name of the crime and
the time, place, and punishment for impeachment purposes under Rule
609(a) in the guilt-innocence phase of a criminal trial.'” State
v. Braxton, 352 N.C. 158, 193, 531 S.E.2d 428, 448 (2000) (quoting
State v. Lynch, 334 N.C. 402, 410, 432 S.E.2d 349, 353 (1993)),
cert. denied, 531 U.S. 1130, 148 L. Ed. 2d 797 (2001). Additional
evidence regarding a witness' prior conviction may be elicited “'to
correct inaccuracies or misleading omissions in the [witness']
testimony or to dispel favorable inferences arising therefrom.'”
Id. (quoting Lynch, 334 N.C. at 412, 432 S.E.2d at 354). However,
such additional evidence must be “related to the factual elements
of the crime rather than the tangential circumstances of the
crime.” State v. King, 343 N.C. 29, 49, 468 S.E.2d 232, 245
(1996).
In this case, Flores acknowledged on direct examination that
he was imprisoned in Columbus County, North Carolina “for drug
trafficking[,]” and had been in prison there for “[f]our months” at
the time of defendant's trial. Defense counsel later asked Flores
how long he had “actually been incarcerated[,]” and he responded,
“For sixteen months.” On cross-examination, the State elicited
testimony from Flores that he had prior convictions “[f]or
possession of meth[amphetamine], one driving without owner's
consent, and this drug trafficking that I'm here on now.” When the
prosecutor sought clarification, Flores confirmed that he was
“presently serving time for a conviction in trafficking inmarijuana.” Flores conceded that he adopted the alias of “Jose
Antonio” or “Jose Antonio Cortez Flores” when he came to North
Carolina, “because [he] had warrants out there in California.” He
also used the alias of “Ruben Fernandez Garchuzo” to avoid arrest
for driving a friend's car without a license, and used a fourth
alias, “Jose Torres” in California. Flores further admitted using
three different social security numbers while living in the United
States. Flores then testified that prior to the shooting in July
of 2003, he had been dealing marijuana for [a]bout six months[,]”
and estimated that he sold “[p]robably about [four] or [five]
pounds a month.
The prosecutor then returned to Flores' conviction for
marijuana trafficking, which led to the exchange at issue in
defendant's appeal:
Q. And you're aware that there are certain
amounts of marijuana that one has to sell in
order to be convicted or plead guilty to
trafficking in marijuana?
[DEFENSE COUNSEL]: Objection, Your Honor.
THE COURT: Well, he can answer the question.
Go ahead.
Q. Are you aware of that, sir?
A. Yes, sir. It has to be over [ten] pounds
to be a drug trafficking.
Q. . . . So at some point you sold over [ten]
pounds of marijuana, because you're serving
time for that?
[DEFENSE COUNSEL]: Objection --
A. No.
[DEFENSE COUNSEL]: -- Your Honor.
THE COURT: Overruled.
Q. No, that's not true?
A. I wouldn't sell that _ That's about the
most I would get is [ten pounds], and then
I'll sell one probably every other week _ a
week, two a week. But I'll get about [ten] of
them.
Q. But - Well, you responded to my question
about what you're serving time for.
Defendant now contends that such a “broad-ranging inquiry into the
specifics of [Flores'] prior conviction[]” was forbidden by N.C.R.
Evid. 609(a) and served “no legitimate purpose other than to
portray [him] as a 'major drug dealer' whose testimony supporting
[d]efendant's self-defense claim was unworthy of belief.” Casting
Flores' account of the shooting as “pivotal” to his defense,
defendant seeks a new trial.
We find no merit to defendant's claim. In response to
defendant's admission to a prior conviction for “drug
trafficking[,]” the State elicited his further admissions that (1)
he was convicted of trafficking in marijuana, and (2) this offense
reflected Flores' involvement with “over [ten] pounds” of
marijuana. “Weight of the marijuana is an essential element of
trafficking in marijuana under G.S. 90-95(h).” State v. Goforth,
65 N.C. App. 302, 306, 309 S.E.2d 488, 492 (1983). Moreover, as
Flores testified, North Carolina law requires the weight of
marijuana involved to exceed ten pounds in order to qualify as
“trafficking” under N.C. Gen. Stat. § 90-95(h). Accordingly, weconclude the prosecutor's questions merely illuminated for the jury
an essential element of Flores' otherwise undefined conviction for
marijuana “trafficking” and did not stray improperly into the
tangential circumstances of his crime. See King, 343 N.C. at 49-
50, 468 S.E.2d at 245.
We further find that any error under Rule 609(a) was harmless.
See N.C. Gen. Stat. § 15A-1443(a) (2005). The challenged cross-
examination concerned the past criminal activity of Flores, rather
than defendant. Compare Braxton, 352 N.C. at 194, 531 S.E.2d at 449
(“Even if the questions . . . did exceed the proper scope of
inquiry, any error was not prejudicial in that the questions were
asked of a defense witness, not of defendant.”) with State v.
Wilson, 98 N.C. App. 86, 91, 389 S.E.2d 626, 629 (1990) (finding
prejudicial error where the defendant admitted his prior conviction
for accessory to armed robbery and the prosecutor then asked him
whether the gun used in the robbery and the stolen money were on
his person at the time of his arrest). Moreover, Flores did not
purport to see the shootings but merely relayed defendant's hearsay
statement to him immediately thereafter. Flores also admitted
without objection that he had been convicted of trafficking in
marijuana, that he sold four or five pounds of marijuana per month,
that he had employed aliases to evade criminal liability, and that
he had used three social security numbers in California. In light
of these admissions, we find no likelihood that the State's inquiry
into the meaning of “trafficking” affected the jury's assessment of
his credibility. The record on appeal includes additional assignments of error
not addressed by defendant in his brief to this Court. Pursuant to
N.C.R. App. P. 28(b)(6), we deem them abandoned.
No error.
Judges HUDSON and STEELMAN concur.
Report per Rule 30(e).
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