A decision without a published opinion is authority only in the case in which such decision is rendered and should not be cited in any other case in any court for any other purpose, nor should any court consider any such decision for any purpose except in the case in which such decision is rendered. See Rule of Appellate Procedure 30 (e)(3).

NO. COA01-958

NORTH CAROLINA COURT OF APPEALS

Filed: 16 July 2002

STATE OF NORTH CAROLINA

         v.                        Guilford County
                                No. 98 CRS 15719
EUGENE TYRONE MILLER

    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).

*** Converted from WordPerfect ***