In the first assignment of error, defendant contends that the
trial court erred in holding unrecorded bench conferences during
the course of the trial, thereby violating his confrontation rights
pursuant to the United States and North Carolina Constitutions. We
disagree.
Our Supreme Court has repeatedly held that a defendant's
constitutional right “to be present at all stages of his capital
trial is not violated when, with defendant present in the
courtroom, the trial court conducts bench conferences, even though
unrecorded, with counsel for both parties.”
State v. Buchanan, 330
N.C. 202, 223, 410 S.E.2d 832, 845 (1991). The Court has so heldbecause, “bench conferences typically concern legal matters with
which an accused is likely unfamiliar and incapable of rendering
meaningful assistance.”
Id. “The defendant's presence in the
courtroom allows him to 'observe the context of each conference,'
and the presence of counsel at the bench conference provides the
defendant with 'constructive knowledge of all that transpired.'”
State v. Blakeney, 352 N.C. 287, 306, 531 S.E.2d 799, 813-14,
(2000) (quoting
Buchanan, 330 N.C. at 223, 410 S.E.2d at 844),
cert. denied, 531 U.S. 1117, 148 L. Ed. 2d 780 (2001). “The burden
is on the defendant to show the usefulness of his presence in order
to prove a violation of his right to presence.”
State v. Speller,
345 N.C. 600, 605, 481 S.E.2d 284, 286 (1997).
A review of the transcript in the instant case reveals that
defendant was represented by counsel during each of the four
challenged bench conferences. Defendant was further “in a position
to observe the context of the conferences and to inquire of his
attorneys as to the nature and substance of each one.”
See
Speller, 345 N.C. at 605, 481 S.E.2d at 286. It can be reasonably
inferred from the transcript that two of the bench conferences were
based on objections made by the parties in order to argue their
respective positions. The third conference was requested by
defense counsel to call the court's attention to the fact that it
was time to take a lunch break. The fourth conference was called
by the court so that both parties could be informed of the
procedure the court would use in instructing the jury. Based on
these facts, defendant has failed to demonstrate that the benchconferences implicated his constitutional rights and this
assignment of error is overruled.
In his second assignment of error, defendant contends that the
trial court erred by admitting his statement to investigating
officers. We disagree.
The Fourth Amendment requires that a defendant's statement be
voluntary and “'the product of an essentially free and
unconstrained choice by its maker,'” in order for it to be
admissible.
State v. Hardy, 339 N.C. 207, 222, 451 S.E.2d 600, 608
(1994) (quoting
Schneckcloth v. Bustamonte, 412 U.S. 218, 225-26,
36 L. Ed. 2d 854, 862 (1973)). The voluntariness of a defendant's
confession is determined by viewing the “totality of the
circumstances.”
State v. Corley, 310 N.C. 40, 47, 311 S.E.2d 540,
545 (1984). Factors to be considered in determining whether a
confession was voluntary include:
whether the defendant was in custody, whether
he was deceived, whether his Miranda rights
were honored, . . . the length of the
interrogation, whether there were physical
threats or shows of violence, whether promises
were made to obtain the confession, the
familiarity of the [defendant] with the
criminal justice system, and the mental
condition of the [defendant].
Hardy, 339 N.C. at 222, 451 S.E.2d at 608. The State has the
burden of proving by a preponderance of the evidence and examined
in the totality of circumstances, that the statement was voluntary.
State v. Campbell, 133 N.C. App. 531, 537, 515 S.E.2d 732, 737,
disc. review denied, 351 N.C. 111, 540 S.E.2d 370 (1999).
“Findings of fact made by a trial judge following a
voir direhearing on the voluntariness of a confession are conclusive upon
this Court if the findings are supported by competent evidence in
the record.”
State v. Jackson, 308 N.C. 549, 569, 304 S.E.2d 134,
145 (1983),
cert. denied, 490 U.S. 1110, 104 L. Ed. 2d 1027 (1989).
In the instant case, defendant challenges the admissibility of
his statement to Detective Lauffer wherein he admitted that “he was
there at Pisgah View Apartments and wanted to tell the truth.” We
conclude that based on the totality of circumstances, defendant's
statement was voluntary. Defendant agreed to come to the police
station for questioning at the request of Detective Lauffer.
Defendant was accompanied by his father and uncle. Defendant was
not handcuffed nor restrained in any manner and was free to leave
at any time. His statement was made after he was afforded his
Miranda rights and before any questioning began. There is nothing
in the record to suggest that the officers made any promises or
made any suggestions of hope. Once defendant declined to make any
further statements without the presence of an attorney, the
interview terminated. Even though the officers read defendant his
Miranda rights, the trial court found that they were not required
to do so because defendant was not in custody. The trial court
further found and concluded as a matter of law that “the statement
was voluntary.” We hold that competent evidence supports this
conclusion and this assignment of error is therefore overruled.
Defendant next assigns error to the trial court's denial of
his motion to dismiss the charges of first-degree murder,
possession of counterfeit controlled substance with intent to selland deliver, and conspiracy to sell counterfeit controlled
substances. We disagree.
“In ruling on a motion to dismiss, the issue before the trial
court is whether substantial evidence of each element of the
offense charged has been presented, and that defendant was the
perpetrator of the offense.”
State v. Carr, 122 N.C. App. 369,
371-372, 470 S.E.2d 70, 72 (1996). “Substantial evidence is 'such
relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.'”
State v. Rogers, 109 N.C. App. 491, 504,
428 S.E.2d 220, 228 (1993),
disc. review denied, 334 N.C. 625, 435
S.E.2d 348 (1993),
cert denied, 511 U.S. 1008, 128 L. Ed. 2d 54
(1994)(citations omitted). “If the trial court determines that a
reasonable inference of the defendant's guilt
may be drawn from the
evidence, it must deny the defendant's motion and send the case to
the jury even though the evidence may also support reasonable
inferences of the defendant's innocence.”
State v. Smith, 40 N.C.
App. 72, 79, 252 S.E.2d 535, 540 (1979). All the evidence, whether
direct or circumstantial, is to be considered in the light most
favorable to the State, with the State being entitled to every
reasonable inference to be drawn from the evidence.
Carr, 122 N.C.
App. at 372, 470 S.E.2d at 72.
Defendant argues that there was insufficient evidence to
submit the charge of possession of counterfeit controlled substance
with intent to sell and deliver and conspiracy to sell counterfeit
controlled substances. We disagree.
In the instant case, the trial court charged the jury on atheory of acting in concert as to all of the above-stated offenses.
The doctrine of acting in concert provides that where:
“two persons join in a purpose to commit a
crime, each of them, if actually or
constructively present, is not only guilty as
a principal if the other commits that
particular crime, but he is also guilty of any
other crime committed by the other in
pursuance of the common purpose . . . or as a
natural or probable consequence thereof.”
State v. Barnes, 345 N.C. 184, 233, 481 S.E.2d 44, 71 (1997)
(quoting
State v. Westbrook, 279 N.C. 18, 41-42, 181 S.E.2d 572,
586 (1971)),
cert. denied, 523 U.S. 1024, 140 L. Ed. 2d 473 (1998).
“A person is constructively present during the commission of a
crime if he is close enough to provide assistance if needed and to
encourage the actual execution of the crime.”
State v. Gaines, 345
N.C. 647, 675-76, 483 S.E.2d 396, 413,
cert. denied, 522 U.S. 900,
139 L. Ed. 2d 177 (1997).
In order to obtain a conviction of possession with intent to
sell and deliver a counterfeit controlled substance under N.C. Gen.
Stat. § 90-95(a)(2), the State must prove “(1) that defendant
possessed a counterfeit controlled substance, and (2) that
defendant intended to 'sell or deliver' the counterfeit controlled
substance.”
State v. Swinson,___ N.C. App. ___, 562 S.E.2d 608
(2002);
see N.C. Gen. Stat. § 90-95 (a)(2) (2001);
see also N.C.
Gen. Stat. § 90-87 (6)(b)(2001)(providing that a counterfeit
controlled substance is any substance intentionally misrepresented
as a controlled substance). There is no requirement that a jury
find that defendant's possession was with the intent to both sell
and deliver the counterfeit controlled substance.
See State v.Creason, 313 N.C. 122, 129, 326 S.E.2d 24, 28 (1985),
reversed in
part by State v. Morgan, 329 N.C. 654, 406 S.E.2d 833 (1991). The
jury must only find that the possession was with the intent to sell
or deliver, and if found, the crime is proved.
Id.
In the instant case, there was substantial evidence presented
that defendant possessed a counterfeit controlled substance with
the intent to sell. The evidence, taken in the light most
favorable to the State, reveals that defendant, Davis, and Tommy
stood in the Pisgah View Apartments, each awaiting a drug sale.
Defendant and Tommy approached Winsell's vehicle, competing for a
drug sale, each possessing a counterfeit controlled substance.
Defendant and Tommy stood at the passenger side of the vehicle,
attempting to sell drugs, representing the substance to be crack
cocaine. Welch took the counterfeit rock from them, tasted it, and
determined that it was “no good.” A chemical analysis of the
substance later revealed a composition of wax and starch combined
to resemble crack cocaine. Clearly, a reasonable jury could find
that defendant possessed the counterfeit controlled substance with
the intent to sell.
Defendant further contends that there was insufficient
evidence that he conspired to sell or assist in the sale of the
counterfeit controlled substance and therefore, the trial court
erred in denying his motion to dismiss. We disagree.
“A criminal conspiracy is an agreement between two or more
people to do an unlawful act or to do a lawful act in an unlawful
manner.”
State v. Morgan, 329 N.C. 654, 658, 406 S.E.2d 833, 835(1991). In a prosecution for conspiracy, “the State need not prove
an express agreement; evidence tending to show a mutual, implied
understanding will suffice” to withstand defendant's motion to
dismiss.
Id. The existence of a conspiracy may be established by
circumstantial evidence or “established by a number of indefinite
acts, each of which, standing alone, might have little weight, but
taken collectively, they point unerringly to the existence of a
conspiracy.”
State v. Abernathy, 295 N.C. 147, 165, 244 S.E.2d
373, 384 (1978).
In the instant case, as noted above, the evidence is
sufficient to support a finding that defendant conspired with Davis
and Tommy to sell counterfeit crack cocaine. The evidence revealed
that defendant and Tommy, each possessing a counterfeit controlled
substance, stood at the passenger side of Welch's vehicle competing
for a drug sale. Defendant then reached inside of the vehicle
attempting to “rip” a one-hundred dollar bill from Welch, as Davis
held a pistol to the driver. Based upon this evidence, a jury
could reasonably infer that defendant conspired with Davis and
Tommy to sell a counterfeit controlled substance.
We further note that the evidence supported defendant's
conviction of first-degree murder. Defendant was convicted of
first-degree felony murder based on the underlying felony of
attempted armed robbery and sale of a counterfeit controlled
substance. Felony murder occurs when “[a] murder . . . [is]
committed in the perpetration or attempted perpetration of any . .
. robbery . . . or other felony committed or attempted with the useof a deadly weapon.” N.C. Gen. Stat. § 14-17 (2001). “When a
defendant is convicted of first-degree murder pursuant to the
felony murder rule, and a verdict of guilty is also returned on the
underlying felony . . . this latter conviction merges into the
murder conviction, and any judgment imposed on the underlying
felony must be arrested.”
State v. Moore, 339 N.C. 456, 468, 451
S.E.2d 232, 238 (1994).
The elements of attempted armed robbery include:
“(1) the unlawful . . . attempt to take
personal property from the person or in the
presence of another; (2) by use or threatened
use of a firearm or other dangerous weapon;
(3) whereby the life of a person is endangered
or threatened.” “[T]he temporal order of the
threat or use of a dangerous weapon and the
taking is immaterial.” Rather, there must be
a continuous transaction in which the threat
or use of the dangerous weapon and the taking
are “so joined in time and circumstances as to
be inseparable.”
State v. Barnes, 125 N.C. App. 75, 78, 479 S.E.2d 236, 238,
affirmed, 347 N.C. 350, 492 S.E.2d 355 (1997) (citations omitted).
In the instant case, there was substantial evidence tending to show
that defendant acted in concert in the commission of attempted
armed robbery. The evidence was undisputed that when Davis drew a
pistol on Welch, defendant reached into Welch's vehicle,
attempting to “rip” a one-hundred dollar bill. Further,
substantial evidence was presented that defendant acted in concert
with Davis and Tommy in the commission of selling a counterfeit
controlled substance. Because there was substantial evidence
supporting either of the underlying theories, the trial court did
not err in failing to dismiss the charge of first-degree murder. Accordingly, this assignment of error is overruled.
In his last assignment of error, defendant contends that his
trial counsel rendered ineffective assistance during the course of
his trial in violation of his state and federal constitutional
rights. This argument is without merit.
“A defendant's right to counsel includes the right to
effective assistance of counsel.”
State v. Grooms, 353 N.C. 50,
64, 540 S.E.2d 713, 722 (2000),
cert. denied, ___ U.S. ___, 151
S.E.2d 54 (2001). “In order to establish ineffective assistance of
counsel, a defendant must establish (1) that his attorney's
performance fell below an objective standard of reasonableness; and
(2) that the defendant was prejudiced by his attorney's performance
to the extent there exists a reasonable probability that the result
of the trial would have been different absent the error.”
State v.
Skipper, 146 N.C. App. 532, 537-38, 553 S.E.2d 690, 694 (2001).
In the present case, defendant has failed to argue that his
counsel's performance fell below an objective standard of
reasonableness or that his counsel's errors in representation were
such that the result of defendant's trial would have been different
in their absence. A review of the transcript reveals that
defendant was represented by two attorneys at trial and both were
zealous in defending defendant's case and participated actively in
all phases of the trial. Defendant cites one instance of allegedly
ineffective assistance that occurred during closing arguments to
the jury when defense counsel dropped clothing taken from the
deceased on the floor, indicating that the victim's clothing, whichhad been introduced into evidence by the State, “proved nothing.”
While we note that the tactic may have been “distasteful” as
argued by the State, it did not render counsel's performance
ineffective as to deny defendant a fair trial. This assignment of
error is overruled.
Accordingly, we hold that defendant received a trial, free
from prejudicial error.
No error.
Judges MARTIN and BRYANT concur.
Report per Rule 30(e).
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