Appeal by defendant from judgment entered 12 October 2000 by
Judge William Z. Wood, Jr. in Guilford County Superior Court.
Heard in the Court of Appeals 24 June 2002.
Attorney General Roy Cooper, by Assistant Attorney General
Thomas J. Pitman, for the State.
John J. Korzen, for defendant-appellant.
TIMMONS-GOODSON, Judge.
Eugene Tyrone Miller (“defendant”) was charged with first
degree murder and was tried capitally. The State presented
evidence tending to show that at approximately 10:00 p.m. on the
evening of 4 August 1998, James Lattimore, Altina Payne Steele, and
Alex Bethea stopped to assist a female pedestrian, who was lying on
the side of Penny Road in High Point and bleeding profusely. The
three testified that the woman told them that her boyfriend, whom
she identified as “Eugene Miller” or “Gene Miller,” had shot her.
The woman, subsequently identified as Anjanette Craine, died as a
result of multiple gunshot wounds inflicted from close range. The
victim had departed from her mother's house, accompanied by
defendant in defendant's automobile, shortly before 10:00 p.m. thatevening. The victim and defendant were breaking up and the victim
was planning to move back to Texas at the time of the homicide.
Defendant was subsequently apprehended on 15 October 1998 in
Queens, New York.
Defendant testified that four masked men shot the victim while
he and the victim were attempting to purchase marijuana. Defendant
further testified that he abandoned the victim to pursue the
perpetrators and that he did not return to the scene of the
homicide because he believed he had been set up for the victim's
killing.
Defendant was found guilty of first degree murder. He was
sentenced to life imprisonment after the jury found that the
mitigating factors outweighed the factors in aggravation.
Defendant now appeals to this Court.
Defendant's appointed appellate attorney has filed a brief
pursuant to
Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493,
reh'g denied, 388 U.S. 924, 18 L. Ed. 2d 1377 (1967) and
State v.
Kinch, 314 N.C. 99, 331 S.E.2d 665 (1985). Counsel has complied
with the requirements of those cases.
Defendant has filed a handwritten affidavit which we treat as
his
pro se written arguments. In the affidavit he contends that he
was denied effective assistance of counsel by trial counsel. He
alleges that counsel spoke with him only one time for one hour
about his case during the twenty-six (26) months he was in jail
awaiting trial. He also alleges that counsel failed to subpoenawitnesses and present a defense. As an example of evidence that
could have been presented, he cites an incident two weeks prior to
the homicide in which the victim's friend, the friend's mother, and
the victim's new boyfriend came to his residence armed with a
shotgun.
To establish a claim of ineffective assistance of counsel, a
defendant must make a two-part showing: (1) his counsel's
performance was deficient; and (2) he was prejudiced by counsel's
deficient performance.
State v. Braswell, 312 N.C. 553, 562, 324
S.E.2d 241, 248 (1985). Even if counsel makes serious errors, a
reversal is not warranted unless there is a reasonable probability
that a different result would have been obtained had the errors not
been made.
Id. at 563, 324 S.E.2d at 248. When a claim of
ineffective assistance of counsel is made on direct appeal, the
appellate court is bound by the record before it of the trial
proceedings.
State v. Milano, 297 N.C. 485, 496, 256 S.E.2d 154,
160 (1979),
overruled on other grounds by State v. Grier, 307 N.C.
628, 300 S.E.2d 351 (1983).
The record does not support defendant's statement that counsel
only spoke with him one time. The record shows that defendant was
was represented by two attorneys. Before permitting defendant to
testify in his defense, the court made inquiry to determine whether
defendant's decision was intelligent and voluntary. Counsel stated
to the court that he and defendant had “talked about this issue for
months now.” Defendant admitted to the court that counsel's
statement was true. In addition, defendant's statement in hisaffidavit that he received a visit from the victim's new boyfriend
two weeks prior to the incident is inconsistent with his trial
testimony that he did not know the boyfriend.
Furthermore, counsel did present a defense. To impeach the
testimony of the witnesses who testified that the victim told them
that her boyfriend, Eugene or Gene Miller, shot her, counsel
presented pretrial statements of two of them in which they stated
they could not remember the name of the boyfriend or that his name
was “Leroy Cowens” or “Leroy Coin.” In addition to defendant's
testimony, counsel offered the testimony of a witness who testified
that the victim and defendant visited him and “seemed happy” about
the victim's plans to separate from defendant and return to Texas.
The decisions as to what witnesses to call and evidence to offer
are within the exclusive province of the trial attorney, after
consultation with his client, and will not be second guessed on an
ineffective assistance of counsel claim.
State v. Milano, 297 N.C.
at 495, 256 S.E.2d at 160.
Finally, counsel successfully defended defendant's life by
presenting evidence of mitigating factors and persuading the jury
to find that the mitigating factors outweighed the aggravating
factors.
See State v. Lowery, 318 N.C. 54, 69, 347 S.E.2d 729, 739
(1986).
We have reviewed the assignments of error set out in the
record on appeal and we concur with counsel's assessment that they
are without merit. After carefully reviewing the record, we are
unable to find error to support a meaningful appeal. No error.
Chief Judge EAGLES and Judge MCCULLOUGH concur.
Report per Rule 30(e).
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