An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA14-277 NORTH CAROLINA COURT OF APPEALS
Filed: 7 October 2014
STATE OF NORTH CAROLINA
v. Guilford County No. 13 CRS 71032 JAVIER FLORES GAYTAN
Appeal by Defendant from judgments entered 23 September
2013 by Judge R. Stuart Albright in Superior Court, Guilford
County. Heard in the Court of Appeals 26 August 2014.
Attorney General Roy Cooper, by Special Deputy Attorney General Staci Meyer, for the State.
Marilyn G. Ozer for Defendant.
McGEE, Chief Judge.
I. Facts
In an effort to receive more favorable sentencing on three
felony drug charges, Fidel Salazar Rangel (“Rangel”) agreed to
cooperate with Greensboro police as part of a plea deal. Rangel
provided information and assistance ‒ in cases unrelated to the
present case ‒ that led to multiple arrests and seizures of
illegal narcotics. As part of his plea agreement, and relevant -2- to this appeal, Rangel contacted Jose Gonzalez-Franco
(“Gonzalez-Franco”) to arrange the purchase of one kilogram of
cocaine. Gonzalez-Franco agreed to meet Rangel in the parking
lot of a Hooters restaurant (“the restaurant”) on High Point
Road, outside Greensboro. Detectives from the Greensboro Police
Department prepared to monitor the transaction.
Rangel was outfitted with a hidden audio recording device.
Detective Carlos Monge (“Detective Monge”) was assigned to
monitor the recording in real time because he spoke both Spanish
and English, and the police thought the transaction would likely
involve Spanish. Other detectives took positions near the
restaurant. Rangel, who was waiting in the restaurant parking
lot, observed Gonzalez-Franco arrive in a pickup truck (“the
truck”) with two other men, and Rangel relayed this information
to the detectives. Gonzalez-Franco left the truck and
approached Rangel. After a short period of time, the two other
men left the truck and joined Rangel and Gonzalez-Franco. These
two men were later identified as Javier Flores Gaytan
(“Defendant”) and his brother Agustin Gaytan. All four men then
entered the restaurant, where they remained for approximately
fifteen minutes.
When the four men exited the restaurant, Defendant,
Gonzalez-Franco, and Agustin Gaytan returned to the truck. -3- Agustin Gaytan entered the truck, and Defendant removed a brown
bag (“the bag”) from the truck. Defendant and Gonzalez-Franco
then walked to Rangel’s vehicle, where Defendant entered the
back seat and Gonzalez-Franco entered the front passenger side
seat. Rangel was sitting in the driver’s seat. Defendant, who
had the bag with him in the back seat, removed the cocaine from
the bag for Rangel to see. Detective Monge, who was monitoring
the conversation in Rangel’s vehicle, alerted the other
detectives that the cocaine was in Rangel’s vehicle. The
detectives then arrested Defendant, along with the other men
involved. Approximately one kilogram of cocaine was recovered
from the back seat of Rangel’s vehicle where Defendant had been
sitting.
Defendant was indicted for one count each of trafficking in
cocaine by possession, trafficking in cocaine by transportation,
and conspiracy to traffic in cocaine. Gonzalez-Franco pleaded
guilty to trafficking in cocaine by possession, trafficking in
cocaine by transportation, and conspiracy to traffic in cocaine.
Gonzalez-Franco was sentenced to consolidated active sentences
of 175 months to 222 months for each charge. As part of
Rangel’s plea agreement, he testified for the State at
Defendant’s trial. The jury found Defendant not guilty of the
conspiracy charge, but guilty of trafficking in cocaine by -4- possession and trafficking in cocaine by transportation. The
trial court sentenced Defendant to two consecutive active
sentences of 175 months to 222 months. Defendant appeals.
II. The Issues
Defendant argues the trial court erred in allowing: (1) the
State to improperly argue that Rangel was going to receive an
active sentence when he only received probation, (2) Detective
Monge to translate the audio recording that was made during the
drug transaction, (3) the State to ask questions implicating
attorney-client privilege, and (4) a State’s witness to refer to
Defendant and the others as “bad guys.” Defendant further
argues the trial court erred by (5) sentencing Defendant in an
inappropriately harsh manner. We hold that Defendant fails to
prove that any prejudicial error occurred at trial.
III. Closing Remarks
In Defendant’s first argument, he contends that the trial
court erred by failing to intervene ex mero motu to address an
improper argument made by the State in its closing remarks. We
disagree.
Defendant did not object to the portion of the State’s
argument he now contends was improper.
When defendant fails to object to an argument, this Court must determine if the argument was “so grossly improper that the trial court erred in failing to intervene ex -5- mero motu.”
In other words, the reviewing court must determine whether the argument in question strayed far enough from the parameters of propriety that the trial court, in order to protect the rights of the parties and the sanctity of the proceedings, should have intervened on its own accord and: (1) precluded other similar remarks from the offending attorney; and/or (2) instructed the jury to disregard the improper comments already made.
State v. Walters, 357 N.C. 68, 101-02, 588 S.E.2d 344, 364
(2003) (citations omitted).
The State made the following statements in its closing
argument, the highlighted portions of which Defendant includes
in his brief:
Our legislature enacted the trafficking statutes and the mandatory sentences, coupled with harsh fines, to deter drug trafficking networks. “Yet, at the same time, our legislature recognized that the system of mandatory sentences . . . is not alone sufficient to ‘deter the corrupting influence of drug dealers and traffickers.’ The nature of the crime – ‘the mischief to be remedied’ – dictates the methods used[.] To effectively combat trafficking, police authorities need information on, and access to, the myriad of drug-dealing activities in the various networks. Built into the [drug] trafficking statutes is a bargaining tool, 90-95(h)(5), a provision exchanging potential leniency for assistance from those who have easy access to drug networks.” -6- The prospect of leniency is clearly calculated to provide a strong incentive to drug violators to cooperate with law enforcement officers and become informers. The raw truth is this. Fidel Rangel, like [Defendant], is a drug dealer, and should be treated accordingly. If law enforcement officers could on their own arrange for the delivery of these drugs without the likes of a cooperating Fidel Rangel, they would. If these matters could be tried without the likes of a charged and admitted drug dealer taking the witness stand, they would. But the reality is, this is a secret, this is a clandestine criminal enterprise. All this talk of county surveillance and trying to conduct this business in such a way that they might be concealed from those that would be interested in their activities is such, ladies and gentlemen, we need – we need – the likes of those with easy access to identify and, ultimately through their cooperation, sometimes testify against those individuals. Mr. Rangel is one of those individuals with easy access. He will be punished. He will receive a sentence appropriate, given his level of involvement, in his own case on balance with the cooperation that he involved himself in subsequent to that. But he is an admitted drug dealer. And he will be dealt with accordingly. (Emphasis added).
Defendant argues that the underlined portion of the closing
argument above “[s]uggest[ed] to the jury that Rangel would face
substantial prison time as a drug dealer” and was therefore
“grossly improper[.]”
Defendant first complains of multiple statements made by
the State “throughout the trial” that suggested Rangel “would -7- still be sentenced to significant time in prison.” However,
Defendant did not object to any of these statements at trial,
and does not now argue that any of these statements amount to
plain error. Defendant has therefore failed to preserve any
argument that these statements constituted error. State v.
Haselden, 357 N.C. 1, 17, 577 S.E.2d 594, 604-05 (2003) (for
issues dealing with evidence or jury instruction, failure to
object at trial and failure to assign plain error on appeal
constitutes abandonment of issue for appellate review).
When read in context, we do not find the State’s comment
that, as an admitted drug dealer, Rangel would be “dealt with”
to have been grossly improper. This statement was, in fact,
true. Defendant argues that the statement was grossly improper
because the State did not advise the jury that Rangel might
receive probation instead of an active prison sentence.
However, Defendant had a full opportunity to bring forth this
issue at trial, but failed to do so. Defendant cross-examined
Rangel, in part, as follows:
Q All of your cooperation since your arrest has been to benefit you at sentencing; isn't that right?
A Yes, sir.
Q And you're hoping, by your cooperation, that you get a sentence less than 175 to 222 months per drug trafficking count; isn't that correct? -8-
Q And you know that you're not in a position for law enforcement to talk to the sentencing judge about your cooperation unless you produce seizures, correct?
Q And you will do what you need to do to make sure that you can produce those seizures and those convictions; isn't that right?
Q Even if it means dealing with these people and not telling law enforcement about it; isn't that correct?
A No, sir. I don't do anything without keeping them posted.
Q When it's to your advantage, isn't that correct?
A No, sir. Nothing is to my advantage at this point. I lost everything. I lost my job. I lost everything.
Defendant thoroughly attacked Rangel’s credibility by
exposing Rangel’s motivation to provide testimony on behalf of
the State in exchange for the State’s advocating on Rangel’s
behalf for a reduced sentence. It was the province of the jury
to decide which part, if any, of Rangel’s testimony to believe.
Defendant fails to show that the trial court should have stepped
in ex mero motu to address the challenged argument of the State,
or that Defendant was prejudiced, assuming arguendo the State’s -9- argument was improper. Walters, 357 N.C. at 101-02, 588 S.E.2d
at 364; State v. Jones, 355 N.C. 117, 134, 558 S.E.2d 97, 108
(2002).
In addition, Defendant states in his brief: “If the jurors
had known that Rangel understood that the right testimony could
equate to a get out of jail free card, it would have greatly
lessened his credibility.” However, Defendant provided no
evidence that Rangel actually “understood” that he might receive
only probation and would not have to serve any active sentence.
If Rangel did not know probation was a possibility, and we find
no record evidence that he did know this when he testified, this
information could not have impacted his testimony, nor have
provided any additional motivation for him to testify
untruthfully. In short, if Rangel did not know that helping the
State might allow him to avoid an active sentence altogether,
this fact was irrelevant to his credibility as a witness. It
was Defendant’s duty to present evidence at trial that Rangel
knew probation was a possibility in order to establish the
relevance of this information and preserve this issue for
appeal. This argument is without merit.
IV. State’s Witness as Translator
In Defendant’s second argument, he contends that the trial
court committed plain error in “allowing one of the -10- participating officers to translate and then relate to the
jurors what [that officer] thought was captured by the wire on
the confidential informant.” We disagree.
Defendant contends that Detective Monge, who was involved
in the operation leading to Defendant’s arrest on the current
charges, was allowed to improperly translate an audio recording
made from a recording device Rangel was carrying at the time of
the drug transaction.
We do not address Defendant’s argument because Defendant
has failed to properly argue plain error. In order to prevail
in a plain error argument, Defendant must show that “absent the
error, the jury probably would have returned a different
verdict.” State v. Lawrence, 365 N.C. 506, 519, 723 S.E.2d 326,
335 (2012). Defendant argues: “The jury may well have acquitted
[Defendant] . . . if they had heard the wire translated by an
unbiased interpreter.” Defendant fails to properly argue plain
error, much less meet his burden of proving that “absent the
verdict.” Id. This argument is without merit.
Defendant also seeks to preserve his right to file a motion
for appropriate relief in the trial court to argue ineffective
assistance of counsel based upon his attorney’s failure “to
request the wire be translated by an AOC certified interpreter.” -11- Nothing in this opinion should be interpreted as denying
Defendant his right to file any legitimate motion for
appropriate relief.
V. Attorney-Client Privilege
In Defendant’s third argument, he contends the trial court
“erred by allowing the State to ask questions implicating
attorney-client privilege.” We disagree.
During Defendant’s testimony, the State asked Defendant:
“And you’ve had an opportunity to listen to the audiotape of the
conversation that took place inside the car, have you not?”
Defendant’s attorney asked to approach the bench, and apparently
asked to discuss the issue outside the presence of the jury. On
voir dire, Defendant’s attorney stated: “Judge, concerning [the
State’s] question about listening to the audiotape of the 6th,
[Defendant] has not listened to that. Because he is in custody,
trying to get the CD with a computer to him, he has not listened
to it.” Defendant objected to the State’s question and stated:
“The basis of the objection is that the answer potentially could
disclose attorney work product.” Defendant’s attorney did not
request time for Defendant to listen to the recording. The
State then indicated it was prepared to “move on,” meaning not
to pursue questioning as to whether Defendant had listened to -12- the recording. The trial court responded: “If you’re going to
move on, it will be moot anyway.”
Defendant contends that the State continued to “ask
questions from [Detective] Monge’s testimony concerning what he
heard on the [recording.]” However, the State did not again ask
Defendant if he had listened to the tape. The State cross-
examined Defendant about what transpired in Rangel’s vehicle,
and what Defendant said while Defendant was in Rangel’s vehicle.
Defendant answered those questions. Defendant now argues the
State should have been prevented from asking Defendant questions
based upon evidence that was presented at trial because
Defendant’s answers might somehow implicate attorney-client
privilege.
Initially, we note that Defendant objected at trial on the
basis that answers Defendant might have given “potentially could
disclose attorney work product.” The work product doctrine and
attorney-client privilege are separate issues. See Evans v.
United Servs. Auto. Ass'n, 142 N.C. App. 18, 31, 541 S.E.2d 782,
790 (2001). Because Defendant failed to object at trial on the
basis of attorney-client privilege, he has failed to preserve
this issue for appellate review. State v. Gibbs, 335 N.C. 1,
49, 436 S.E.2d 321, 349 (1993). -13- Assuming arguendo Defendant had preserved this argument,
Defendant did not indicate at trial what privileged information
might be compromised if Defendant had informed the jury that he
had not listened to the recording because his attorney had not
provided it to him, and Defendant does not now indicate what
privileged information might be implicated, or how it would have
prejudiced him. Defendant fails to demonstrate that any
privileged communications were implicated in this matter. State
v. Murvin, 304 N.C. 523, 531, 284 S.E.2d 289, 294 (1981)
(citations omitted) (“A privilege exists if (1) the relation of
attorney and client existed at the time the communication was
made, (2) the communication was made in confidence, (3) the
communication relates to a matter about which the attorney is
being professionally consulted, (4) the communication was made
in the course of giving or seeking legal advice for a proper
purpose although litigation need not be contemplated and (5) the
client has not waived the privilege.”). Having failed to
identify any particular communication alleged to have been
privileged, Defendant automatically fails in four of the five
prongs of the test enumerated in Murvin.
Finally, Defendant has made no argument in his brief in
support of his bald statement that he was prejudiced by any
error. State v. Watkins, 195 N.C. App. 215, 222, 672 S.E.2d 43, -14- 48 (2009) (citation omitted) (“The person asserting the
privilege bears the burden of establishing each of the five
elements.”). This argument is without merit.
VI. Reference to Defendant as a “Bad Guy”
In Defendant’s fourth argument, he contends that the trial
court committed plain error by allowing Detective Monge “to
repeatedly refer to the defendants as ‘the bad guys.’” We
Detective Monge referred to the three men involved in the
transaction with Rangel multiple times as “the bad guys.”
Defendant never objected to this characterization. Defendant
again fails to make a proper plain error argument. Defendant
states:
Standing alone these references to [D]efendant’s guilty [sic] may not have swayed the jury, but when viewed in the context of Monge’s entire testimony in which he was allowed to translate and paraphrase everything that went on during the meeting, his clear opinion that Gaytan was guilty raises a reasonable probability that without his characterization the jury would have returned a different verdict.
However, we do not “apply the plain error doctrine on a
cumulative basis when defendant is assigning error to unrelated
admissions of evidence to which he did not object, and the trial
court made no affirmative ruling on the admissibility of any of
them.” State v. Holbrook, 137 N.C. App. 766, 769, 529 S.E.2d -15- 510, 512 (2000). Because Defendant admits that Detective
Monge’s use of the term “bad guys” might not have amounted to
plain error absent Detective Monge’s unobjected to testimony in
which Defendant argued Detective Monge improperly served as a
translator, Defendant has not alleged or properly argued plain
error. Further, we agree with Defendant that Detective Monge’s
use of the term “bad guys” standing alone, as it must in plain
error review, id., does not rise to the level of plain error.
This argument is without merit.
VII. Appropriateness of Sentence
In Defendant’s final argument, he contends that “sentencing
Defendant to thirty to thirty-seven years in prison when the
same court sentenced his co-defendant to half that time was
clearly and palpably gross, harsh and abusive.” We disagree.
Defendant makes this argument based upon the fact that his
co-defendant, Gonzalez-Franco, received concurrent sentences
after pleading guilty, but the trial court sentenced Defendant
to consecutive sentences, effectively sentencing Defendant to
twice the active sentence of Gonzalez-Franco. However, this
Court has held:
Nor did the court err by sentencing defendant to a greater sentence than that received by [his co-defendant] pursuant to a plea bargain. See, e.g., State v. Garris, 265 N.C. 711, 712, 144 S.E.2d 901, 902 (1965) (“There is no requirement of law that -16- defendants charged with similar offenses be given the same punishment.”); State v. Sligh, 27 N.C. App. 668, 669, 219 S.E.2d 801, 802 (1975) (court did not err by “imposing a sentence against defendant which was greatly in excess of the sentence given his codefendant . . . under [his] plea bargaining arrangement”).
State v. Shelman, 159 N.C. App. 300, 312, 584 S.E.2d 88, 96-97
(2003). This Court has held that sentences falling within the
statutory guidelines will only be reviewed if it is readily
discernable that the sentence is clearly harsh or abusive:
“[S]o long as the punishment rendered is within the maximum provided by law, an appellate court must assume that the trial judge acted fairly, reasonably and impartially in the performance of his office.” Moreover when the sentence imposed is “. . . within statutory limits . . . [it] cannot be considered excessive, cruel or unreasonable.” Thus, “. . . sentences imposed, which are within the limits provided by law, are beyond our review.” Notwithstanding the principle that such sentences are nonreviewable, appellate courts have reviewed sentences when the particular sanction imposed is clearly and palpably gross, harsh and abusive. Only when such an abuse of discretion is readily discernible will appellate courts intercede. The defendant, attacking a sentence, however, is confronted by the presumption that the trial judge acted “. . . fairly, reasonably, and impartially in the performance of the duties of his office. . . . Our entire judicial system is based upon the faith that a judge will keep his oath. ‘Unless the contrary is made to appear, it will be presumed that judicial acts and duties have been duly and regularly performed.’ . . . So long as errants make -17- it necessary for other men to judge them it is best to indulge the presumption that a judge will do what a judge ought to do.”
State v. Harris, 27 N.C. App. 385, 386-87, 219 S.E.2d 306, 307
(1975) (citations omitted). Defendant was convicted of
trafficking in 400 grams or more of cocaine by possession, and
trafficking in 400 grams or more of cocaine by transporting.
N.C. Gen. Stat. § 90-95 states:
(3) Any person who sells, manufactures, delivers, transports, or possesses 28 grams or more of cocaine . . . shall be guilty of a felony, which felony shall be known as “trafficking in cocaine” and if the quantity of such substance or mixture involved:
. . . .
c. Is 400 grams or more, such person shall be punished as a Class D felon and shall be sentenced to a minimum term of 175 months and a maximum term of 222 months in the State's prison and shall be fined at least two hundred fifty thousand dollars ($250,000).
N.C. Gen. Stat. § 90-95(h)(3)(c.) (2013). The trial court
sentenced Defendant to consecutive active sentences of 175
months to 222 months, which is the statutory range for the
offenses for which Defendant was convicted. We hold these
sentences are nonreviewable, as they are not “clearly and
palpably gross, harsh [or] abusive[,]” and no “abuse of
discretion is readily discernible[.]” Harris, 27 N.C. App. at -18- 386, 219 S.E.2d at 307 (citations omitted). This argument is
without merit.
No error.
Judges BRYANT and STROUD concur.
Report per Rule 30(e).