State v. Gaytan

An unpublished opinion of the North Carolina Court of Appeals does not constitute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

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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.

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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

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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

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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.”

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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

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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?

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A Yes, sir.

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?

A Yes, sir.

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?

A Yes, sir.

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

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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

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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

error, the jury probably would have returned a different

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.”

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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

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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).

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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,

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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

disagree.

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

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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

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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

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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

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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).