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An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
NORTH CAROLINA COURT OF APPEALS
Filed: 16 October 2012
STATE OF NORTH CAROLINA
Nos. 09 CRS 55921 & 55922
JAMES LESTER VASQUEZ,
and JIMMY DEAN LOCKLEAR,
Appeal by Defendants from judgments entered 6 April 2011 by
Judge Claire V. Hill in Superior Court, Robeson County.
in the Court of Appeals 11 September 2012.
Attorney General Roy Cooper, by Assistant Attorney General
Jason T. Campbell and Special Deputy Attorney General Dahr
Joseph Tanoury, for the State.
M. Alexander Charns for Defendant James Lester Vasquez;
Cheshire Parker Schneider & Bryan, PLLC, by John Keating
Wiles, for Defendant Jimmy Dean Locklear.
convicted of three felonies related to the shooting of James
trial, at the time the shooting occurred, Vasquez and Deese had
Locklear prior to 5 August 2009.
Deese testified that on 5 August 2009, at about 1:00 p.m.,
he was parked at the car wash of a convenience store (the store)
when he saw Defendants pull into the parking lot of the store.
Locklear was driving and Vasquez was sitting in the passenger
Locklear was driving a PT Cruiser.
Locklear parked near
Deese, and Vasquez made eye contact with Deese.
Vasquez got out
of the PT Cruiser, looked at Deese, pointed his finger at Deese,
and shook his head before entering the store.
that Vasquez was threatening him.
Vasquez came out of the store
and got back into the PT Cruiser.
Locklear then drove the PT
Cruiser up beside Deese's car and parked.
Vasquez and Deese
spoke through the open windows of the two vehicles.
told Deese that Vasquez had heard Deese had been hired to kill
Deese testified that Vasquez stated to Deese: "I'm
going to start killing people that is talking about me[.]"
Later that evening, Deese was driving past the Spirit Store
on Highway 711 when he saw the PT Cruiser in the Spirit Store
Vasquez was standing outside on the passenger side
travelling on Highway 711 and was approaching him from behind.
-3Deese turned onto a perpendicular street, and the PT Cruiser did
Deese stopped at a friend's house for about five
minutes, and then drove back the way he had come.
At the stop
sign at Highway 711, Deese saw the PT Cruiser pass by on Highway
711, in front of his vehicle.
The headlights of Deese's vehicle
shone into the PT Cruiser, and Deese could see Locklear in the
driver's seat and Vasquez in the passenger seat.
Deese turned left onto Highway
looked into his
Deese saw the PT Cruiser turn around and begin
to follow him.
Deese then noticed that the PT Cruiser was
approaching him from behind at a high speed.
The PT Cruiser
came within ten to fifteen feet of Deese's rear bumper.
gunshots, and saw what appeared to be muzzle flashes coming from
the PT Cruiser.
Deese was hit by gunfire, including bullets
that impacted his right elbow, shoulder, and the back of his
One of his tires was blown out by the gunfire, but Deese
attempted to drive away from the PT Cruiser.
Deese looked in
his rearview mirror and saw the PT Cruiser turn around and go in
the opposite direction.
Deese stopped his vehicle across from a mobile home park and got
out of his vehicle.
Deese remembered that someone came to help
-4him and that person called 911.
Others came to assist, and
injuries, but survived the shooting.
This incident occurred at
approximately 10:00 p.m. on 5 August 2009.
between 10:00 p.m. and 10:20 p.m. on 5 August 2009 when he
noticed a man lying in the middle of the road.
and called 911.
The 911 operator asked Snarski to try and
determine what had happened.
happened and Deese told Snarski that: "James Lester had shot him
Snarski relayed this information to the 911 operator.
Deputy Michael Ellis (Deputy Ellis) of the Robeson County
Sheriff's Office was the first uniformed officer to arrive at
identified Vasquez as the person who had shot him.
Detective Obershea took a statement from Deese several hours
after the shooting.
Deese told Detective Obershea about seeing
Vasquez at the store earlier in the day.
driving the PT Cruiser.
about the shooting.
Deese told him about
Deese also told Detective Obershea
-5Detective Obershea located the PT Cruiser the day after the
shooting, and Locklear was driving it.
Locklear told Detective
Obershea that he and Vasquez had been driving around in the PT
Cruiser the previous night, but that they had not shot at Deese.
Vasquez was in jail on unrelated charges.
Vasquez not only
denied shooting Deese, but also denied having been in the PT
Cruiser at the time of the shooting.
Vasquez testified at trial.
He testified that he knew
Deese, and that he had heard that Deese had been paid to kill
Vasquez admitted to having discussed this with Deese in
Vasquez also confirmed that he was a passenger in the PT Cruiser
on that day, and that Locklear was driving.
testified that he and Locklear were at the Spirit Store and on
Highway 711 at some point that night, but that Locklear had
dropped him at his home around the same time Deese had been
Vasquez testified that he did not shoot Deese, and did
not know Deese had been shot until days later.
Locklear also testified at trial.
anything to do with the shooting.
He denied having had
Locklear did admit that his
trial testimony concerning his whereabouts at the time of the
-6shooting conflicted with the statement he had given to Detective
Locklear's testimony also conflicted with his earlier
statement to Detective Obershea that he left the Spirit Store
with a drug addict named Dustin Steen (Steen), and that Vasquez
was not with him at that time.
At trial, Locklear could not
Steen had been with him and Locklear during part of the night
when the shooting occurred.
When Vasquez was asked why his
story and Locklear's story concerning the events of that night
were different, Vasquez said: "I can't explain it."
While Vasquez was in jail, an ex-girlfriend, Monica Scott
(Scott), visited Vasquez and, at trial, was asked the following:
Q All right. And did you recall asking Mr.
Vasquez in the course of [your jail visit
with Vasquez] if he, in fact, had shot Mr.
Q Tell us what [Vasquez's] reaction was?
A He just nodded.
Q Nodded what?
A His head.
Q And did you further tell him your reaction
to that and indicate some displeasure or
upset with that?
A I just told him he lied to me.
response to her asking Defendant if he had shot Deese, Vasquez
nodded his head just before he said on the tape, "I ain't gonna
Scott testified that Vasquez had originally told her he
concerning whether he did shoot Deese, Vasquez nodded, said he
was not going to lie, and told Scott there was a reason for why
he shot Deese.
Scott then testified that Vasquez changed his
story again, and claimed that he had not shot Deese.
Vasquez called Steen from jail, and that conversation was
played for the jury.
The State questioned Vasquez about that
conversation, as follows:
Q And in that call--and this is the first
call, you had two, basically a continuation
of the same so you could go beyond ten
You asked him not to come
In fact, you heard it, you were
pretty insistent: don't come to court.
A Yes, sir.
Q All right. And at the time you said that,
you knew that [Steen] had been in the car
with you the night of the shooting, with you
and Jimmy Dean Locklear, during a portion of
that evening; correct?
A Yes, sir, that's correct.
Q And [Steen] could have cleared up what
happened as far as you recall just by coming
-8and telling the truth, since you said you
were not guilty.
A Yes, sir.
Q All right. Yet, you asked him not to come
In fact, you asked him several
times not to come to court.
A Yes, sir.
A Well, I didn't say not to come to court.
I said, you know, he didn't have to or, you
know, something like that.
Q Well, you are saying now that you were not
telling him don't come to court, they can't
do anything to you?
A Yes, sir, I recall saying that.
And you didn't repeat that?
fact, when he was--do you recall him saying
he was only sticking around to help you, you
told him not to stay around for that.
A Well, when he said sticking around to help
me, I said he was against me to hurt me.
Q That's right.
You said we would try to
get him to help prosecute somebody.
you didn't have any idea at the time that he
could just ignore a subpoena and nobody
would do anything to him, did you? You knew
he would get in trouble, didn't you?
A No, sir, I didn't.
Q All right. And you recall saying, "If I'm
going to court for assault in Pembroke and
the witness that says I done it doesn't show
up, what are they going to do?
going to throw the court case out of court."
-9A Yes, sir.
Q Now, you were saying that in discussing
with [Steen] whether or not he would show
up, didn't you?
A More or less, yes, sir.
Q Okay. So, you really were telling him you
didn't need him to come to court, you didn't
want him to come to court; correct?
A Yes, sir.
The jury found both Defendants guilty of assault with a
deadly weapon with intent to kill inflicting serious injury,
operation inflicting serious bodily injury, and guilty of felony
conspiracy to discharge a weapon into an occupied vehicle in
operation inflicting serious bodily injury.
Vasquez brings forth four issues on appeal, while Locklear
brings forth three issues on appeal.
Three of the four issues
brought forth by Locklear.
They are whether: (1) the trial
certain lesser-included offenses, (2) the trial court committed
Defendants' attorneys were ineffective.
Vasquez's fourth issue
-10is whether the trial court committed plain error by allowing the
State to mention multiple times that, at the time Vasquez was
arrested on the matter in the present case, he had been in jail
on an "unrelated charge[.]"
trial court committed plain error.
In criminal cases, an issue that was not
preserved by objection noted at trial and
that is not deemed preserved by rule or law
without any such action nevertheless may be
made the basis of an issue presented on
appeal when the judicial action questioned
is specifically and distinctly contended to
amount to plain error.
N.C.R. App. P. 10(a)(4).
In order to prove plain error,
a defendant must establish prejudice that,
after examination of the entire record, the
error "had a probable impact on the jury's
finding that the defendant was guilty."
[S]ee also Walker, 316 N.C. at 39, 340
S.E.2d at 83 (stating "that absent the error
the jury probably would have reached a
although the evidentiary error affected a
fundamental right, viewed in light of the
entire record, the error was not plain
error). Moreover, because plain error is to
be "applied cautiously and only in the
exceptional case," the error will often be
one that "seriously affect[s] the fairness,
integrity or public reputation of judicial
State v. Lawrence, __ N.C. __, __, 723 S.E.2d 326, 334 (2012)
The trial court read aloud its intended instruction for
assault with a deadly weapon with
intent to kill inflicting
The trial court then asked:
Any objection from the State or defense with
regards to those two charges?
MR. BERK [prosecutor]: No, none from the
I would ask if the defense is
requesting in any of these charges any
lesser included offense.
THE COURT: Mr. Bullard, Mr. Ransom?
Honor, I'm not asking for a lesser included.
MR. RANSOM [Locklear's attorney]: No, Your
Honor, we are not as well.
ignored the preferences they stated at trial and should have
instructed on certain lesser included offenses.
"If the State's
evidence is sufficient to fully satisfy its burden of proving
each element of the greater offense and there is no evidence to
instruction on the lesser offense."
State v. Smith, 351 N.C.
251, 267-68, 524 S.E.2d 28, 40 (2000) (citation omitted).
hold that the State presented sufficient evidence to prove the
elements of assault with a deadly weapon with intent to kill
-12inflicting serious injury.
involved at all.
Defendants did not argue that they
Instruction on any lesser included offenses
was not required.
honoring Defendants' requests at trial, Defendants' arguments
instructions at trial, and did not object when the instructions
were not given, Defendants must prove that failure to instruct
on the lesser included offenses rises to the level of plain
inflicting serious injury, we hold that, even if the jury had
been instructed on any lesser included offenses, Defendants have
failed to prove that the "jury probably would have reached a
334 (citation omitted).
Lawrence, __ N.C. at __, 723 S.E.2d at
This argument is without merit.
Defendants next argue that the trial court committed plain
instructed as follows:
-13The State contends and . . . [D]efendant
. . .
Evidence of flight may be considered by you,
circumstances in this case, in determining
whether the combined circumstances amount to
an admission or a show of consciousness of
guilt. However, proof of this circumstances
is not sufficient in itself to establish
. . . [D]efendant's guilt.
"[O]ur courts have long held that a trial court may not
instruct a jury on defendant's flight unless 'there is some
evidence in the record reasonably supporting the theory that
defendant fled after commission of the crime charged.'"
v. Levan, 326 N.C. 155, 164-65, 388 S.E.2d 429, 433-34 (1990)
Defendants argue that the State failed to
present any evidence that Defendants fled after commission of
On the facts of the present case, the flight instruction,
even if erroneously given, could not have prejudiced Defendants.
At trial, the State contended that Defendants followed Deese on
Highway 711, and that Vasquez shot Deese as Deese was driving
Had the jury believed Defendants, it could not have
found that Defendants fled because the jury would have had to
believe that Defendants were not at the scene.
If the jury
Whether or not Defendants fled from the scene after
shooting Deese was not material on these facts in showing an
admission of, or consciousness of, guilt.
prove plain error.
Defendants fail to
This argument is without merit.
Vasquez argues that the trial court committed plain error
indicated Vasquez was in jail on an unrelated charge when he was
first questioned by police in this matter.
Vasquez points to four instances at trial where a witness
indicated that Vasquez had been incarcerated on another charge
instances where the State mentioned this fact.
objected to any of these remarks; thus, Vasquez never gave the
trial court the opportunity to make a ruling as to whether these
remarks were improper and, if so, the opportunity to instruct
the jury to disregard the remarks.
Vasquez now argues that the
trial court should have intervened sua sponte, and that failure
to do so constituted plain error.
Initially, we note that though Vasquez acknowledges that
plain error is the proper standard of review, Vasquez does not
Vasquez was incarcerated on an unrelated charge, the jury would
-15have probably reached a different outcome.
__, 723 S.E.2d at 334.
Lawrence, __ N.C. at
It is Vasquez's duty to prove plain
error on appeal, and he has failed to meet his burden.
light of the overwhelming evidence of Vasquez's guilt, we hold
that there is no probability that,
absent the statements, a
different verdict would have been reached.
This argument is
Defendants both argue that their attorneys were ineffective
for failing to request instructions on lesser included offenses
counsel, Defendants must prove not only that their attorneys were
State v. Allen, 360 N.C. 297, 316, 626 S.E.2d
271, 286 (2006).
"Generally, to establish prejudice, a defendant
must show that there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding
probability sufficient to undermine confidence in the outcome."
Id. (citations and quotation marks omitted).
-16We hold that there is no reasonable probability that the
result of the trial would have been different had the trial court
instructed the jury as Defendants argue on appeal.
Defendants' counsel committed unprofessional errors.
argument is without merit.
No prejudicial error.
Judges BEASLEY and THIGPEN concur.
Report per Rule 30(e).