Emerson Alexis Deras-Castro v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: March 5, 2024
• Docket: 1941222
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Causey, Lorish and White UNPUBLISHED

Argued at Salem, Virginia

EMERSON ALEXIS DERAS-CASTRO MEMORANDUM OPINION* BY v. Record No. 1941-22-2 JUDGE LISA M. LORISH MARCH 5, 2024 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY Cheryl V. Higgins, Judge

David A. Eustis (Eustis & Graham, PC, on brief), for appellant.

William K. Hamilton, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

The trial court partially granted Emerson Alexis Deras-Castro’s motion in limine to exclude

any reference to gang-related evidence found in Deras-Castro’s home during the Commonwealth’s

case-in-chief. The motion did not seek to preclude eyewitnesses from testifying to gang-related

statements made by Deras-Castro before he shot the victims. Deras-Castro now appeals his

convictions for malicious wounding and one count of using a firearm in the commission of a felony,

assigning error only to the trial court’s partial denial of his pretrial motion in limine. We conclude

any error in the pretrial ruling was made harmless by the unchallenged testimony about

Deras‑Castros’ gang-related statements and because Deras-Castro also testified and opened the door

to rebuttal evidence about his alleged gang affiliations. Because Deras-Castro does not challenge

the admission of this other evidence on appeal, we affirm the trial court.

* This opinion is not designated for publication. See Code § 17.1-413(A). BACKGROUND1

Javier Bernal Lopez, Marco Anthony Jimenez, Caesar Montecino, and Jose Mejia were

drinking beer outside Mejia’s apartment. Deras-Castro encountered the men and shot Mejia in the

back of his shoulder and Lopez in the hand and spine. At the hospital, Mejia told investigating

officers that Deras-Castro displayed gang hand signals before firing. Albemarle police obtained a

search warrant for Deras-Castro’s home, and found the firearm used in the shooting, ammunition,

and items related to the MS-13 gang. Deras-Castro told the police that he shot Lopez and Mejia,

though the details changed throughout his retellings. He claimed that the men were disrespecting

him and continued to approach after he pointed his firearm and warned them not to come near him.

Deras-Castro was charged with two counts of malicious wounding, two counts of using a firearm in

the commission of a felony, and one count of possessing a firearm as an undocumented immigrant.2

Before trial, Deras-Castro moved the trial court to exclude any evidence “about gangs, gang

activity, gang signs or artifacts, or gang membership.” At the hearing on his motion, he limited the

scope of his motion to testimony from law enforcement, conceding that the witnesses could testify

to their recollections and be subject to cross-examination. Specifically, he stated that “[t]he object

of [his] motion is not to have gang memorabilia, signs, and flags brought in without a decent

foundation that it is this defendant’s property.”

After taking the motion under advisement to watch an hours-long recorded interview, the

trial court found that allowing the Commonwealth “[t]o say this defendant is a member of a[n]

MS-13 gang and to allow testimony that explains the MS-13 gang procedures . . . would be

1 We recite the facts “in the ‘light most favorable’ to the Commonwealth, the prevailing party in the trial court.” Hammer v. Commonwealth, 74 Va. App. 225, 231 (2022) (quoting Commonwealth v. Cady, 300 Va. 325, 329 (2021)). 2 Deras-Castro ultimately was tried on two counts of malicious wounding and one count of using a firearm in the commission of a felony. -2- inflammatory and its relevancy would be outweighed by its [tendency to cause] passion and

prejudice under the facts of this case.” Accordingly, the trial court ruled that it would allow

“evidence of what is to be referred [to] as gang activity,” but would bar any mention of MS-13.

Thus, while the Commonwealth could not show the jury a picture of the flag recovered from

Deras-Castro’s home, it could “state that there was a flag consistent with a gang.”

At trial, Lopez recalled that he was facing the apartment building when Deras-Castro

approached the group3 and that Deras-Castro shouted “long live a gang”4 before shooting Lopez and

Mejia. Jimenez corroborated Lopez’s testimony recalling that Deras-Castro used a “phrase of

aggression” associated with his gang.5 Officers testified about their investigation and that they

found “gang-related” items at Deras-Castro’s home, which he shared with other individuals. During

the Commonwealth’s case-in-chief, no officer explained what those items were, stated or implied

any relationship with MS-13, or mentioned gangs in any other way.

After the Commonwealth rested, Deras-Castro testified that he had acted in self-defense. He

claimed that the four men threatened to beat and kill him and that they advanced on him while

holding the necks of their beer bottles. He claimed that he shot into the ground and stepped

backwards before shooting Lopez in the hand. On cross-examination, he testified that he could not

remember whether he had mentioned these facts to officers during his interview. Also on

cross-examination, Deras-Castro testified that the men “said that their clique was crazy, and [that]

3 Witnesses also testified that a second, unnamed individual was present with Deras-Castro, but indicated he did not engage in any criminal actions. 4 The exact quote was “long live la Maras Salvatrucha.” Out of the presence of the jury, Lopez testified that he understood “Mara Salvatrucha” to apply to multiple gangs. Due to this statement, the trial court directed the interpreter to interpret this phrase for the jury as “long live a gang.” 5 Jimenez testified that Deras-Castro yelled “La Mara Salvatrucha, the Salvatrucha gang,” and understood that as “being aggressive from his part and his gang.” The trial court directed the interpreter to interpret this as a “phrase which shows aggression by that individual and his gang.” -3- no one stopped them.” In response to further questions, Deras-Castro explained that he understood

the phrase clique to mean “they were some type of gang members.”

At this point, the Commonwealth (outside the presence of the jury), argued that the

“defendant has opened the door to bringing testimony about his gang involvement” by

“introduc[ing] the idea of cliques, potentially an opposing gang facing him.” Thus, the

Commonwealth argued that it should be able to “delve into his gang background” now that

Deras-Castro had opened the door. The trial court agreed. The Commonwealth then recalled an

officer who testified that he saw photographs on Deras-Castro’s phone where he was throwing gang

signs, specifically signs related to MS-13. The Commonwealth also introduced photographs of the

gang-related material found in Deras-Castro’s home, including “MS-13 imagery” and drawings.

The trial court instructed the jury on perfect and imperfect self-defense. The jury convicted

Deras-Castro of all three charges. Following a sentencing hearing, the trial court sentenced him to

23 years’ imprisonment with 16 years suspended. Deras-Castro appeals.

ANALYSIS

The “admissibility of evidence is within the discretion of the trial court,” and we will not

reject such a decision absent an “abuse of discretion.” Williams v. Commonwealth, 71 Va. App.

462, 487 (2020). “The abuse of discretion standard draws a line—or rather, demarcates a

region—between the unsupportable and the merely mistaken, between the legal error . . . that a

reviewing court may always correct, and the simple disagreement that, on this standard, it may

not.” Jefferson v. Commonwealth, 298 Va. 1, 10-11 (2019) (alteration in original) (quoting

Reyes v. Commonwealth, 297 Va. 133, 139 (2019)). “[T]he abuse of discretion standard requires

a reviewing court to show enough deference to a primary decisionmaker’s judgment that the

[reviewing] court does not reverse merely because it would have come to a different result in the

-4- first instance.” Commonwealth v. Thomas, 73 Va. App. 121, 127 (2021) (alterations in original)

(quoting Lawlor v. Commonwealth, 285 Va. 187, 212 (2013)).

Deras-Castro assigns error only to the trial court’s partial denial of his motion in limine.

There, Deras-Castro conceded that witnesses could testify to their recollections and be subject to

cross-examination, but asked the court to prevent the Commonwealth from introducing evidence

of “gang memorabilia, signs, and flags brought in without a decent foundation that it is this

defendant’s property.” The trial court ruled that the Commonwealth could put on evidence of

gang-related material found in Deras-Castro’s home—but not mention MS-13.

In the Commonwealth’s case-in-chief, one officer testified, without disclosing additional

details, that “gang-related materials” were found. Deras-Castro argues this testimony was not

relevant, but even if it were, its relevance would have been outweighed by the danger of unfair

prejudice. Indeed, this Court has noted that “evidence identifying a defendant as a member of a

gang may be prejudicial, since juries may associate such groups with criminal activity and

improperly convict on the basis of inferences as to the defendant’s character.” Utz v.

Commonwealth, 28 Va. App. 411, 421 (1998) (quoting John E. Theuman, Admissibility of

Evidence of Accused’s Membership in Gang, 39 A.L.R.4th 775 (1985)).

Assuming, without deciding, that the trial court erred in its pretrial evidentiary ruling, any

error would be harmless under the circumstances of this case. “An appellate court reviews a

decision to admit or exclude evidence where no federal constitutional issue was raised under the

standard for non-constitutional harmless error provided in Code § 8.01-678.” Haas v.

Commonwealth, 299 Va. 465, 467 (2021). The statute provides that:

When it plainly appears from the record and the evidence given at the trial that the parties have had a fair trial on the merits and substantial justice has been reached, no judgment shall be arrested

-5- or reversed . . . [f]or any . . . defect, imperfection, or omission in the record, or for any other error committed on the trial.

Code § 8.01-678.

Only the officer’s testimony during the Commonwealth’s case-in-chief that “gang-related

materials” were found in Deras-Castro’s home was admitted over Deras-Castro’s pretrial

objection in his motion in limine. Any prejudice resulting from the earlier testimony that

Deras-Castro had “gang-related” materials in his home was rendered harmless by the admission

of other evidence of his gang affiliation introduced at trial—evidence that Deras-Castro does not

challenge on appeal.

The jury heard evidence of Deras-Castro’s gang association through both Lopez and

Jimenez who separately testified about statements Deras-Castro made just before shooting the

victims. Deras-Castro did not object to that testimony; indeed, he affirmatively stated that he

“had no objection, and does not complain [in his appellate brief], to the testimony of the two

eyewitnesses.” What is more, Deras-Castro then testified and opened the door to the admission

of more evidence about his gang affiliation on rebuttal. After Deras-Castro said the victims were

part of a gang that he understood to be crazy and that “no one stopped them,” in support of his

self-defense theory, the Commonwealth asked the trial court for permission to put on additional

evidence of Deras-Castro’s own gang affiliation. While Deras-Castro objected to that rebuttal

evidence being introduced below, he did not assign error to the trial court’s admission of the

same on appeal. The jury heard testimonial evidence of Deras-Castro’s association with MS-13

and saw photographic evidence of items from his home that had MS-13 affiliation.

Ultimately, the jury found Deras-Castro was not credible. The jury, “who ha[d] the

opportunity to see and hear the witnesses, ha[d] the sole responsibility to determine their

credibility, the weight to be given their testimony, and the inferences to be drawn from proven

facts.” Commonwealth v. McNeal, 282 Va. 16, 22 (2011) (quoting Commonwealth v. Taylor, -6- 256 Va. 514, 518 (1998)). Lopez and Jimenez provided a materially different version of events

from those Deras-Castro described, and the jury had the authority to decide which version to

believe.

Other evidence corroborated Lopez and Jimenez’s account. The forensic evidence did

not support Deras-Castro’s contention that he shot the men while they charged at him. The

record shows that the victims were shot in the shoulder blade and the spine, not in the front of

their body as one would expect for a person charging the shooter. Moreover, Deras-Castro gave

multiple versions of events to the police and testified to further new details at trial. From that

circumstance, the jury could conclude that Deras-Castro was lying to conceal his guilt. See

Rams v. Commonwealth, 70 Va. App. 12, 27 (2019).

In the light most favorable to the Commonwealth, the evidence established that

Deras-Castro shouted a gang-related statement before opening fire on the men, wounding Lopez

and Mejia. Deras-Castro then opened the door to the Commonwealth introducing more detailed

evidence about the gang-related materials found in his home in rebuttal. We therefore find that

any error in the trial court’s ruling permitting law enforcement officers to testify during the

Commonwealth’s case-in-chief that there were “gang-related materials” in Deras-Castro’s room

was harmless.

CONCLUSION

Accordingly, we affirm the trial court’s judgment.

Affirmed.

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