Appeal by defendant from judgment entered 9 May 2001 by Judge
Stafford G. Bullock in Durham County Superior Court. Heard in the
Court of Appeals 10 September 2002.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General James M. Stanley, Jr., for the State.
Kevin P. Bradley for defendant-appellant.
HUNTER, Judge.
Marquette Adams (“defendant”) appeals from a conviction of
robbery with a dangerous weapon and a sentence of 120 to 153 months
imprisonment.
(See footnote 1)
For the reasons stated herein, we find no error.
The State's evidence tended to show that between 10:30 p.m.
and 11:00 p.m. on 7 September 2000, Tracey Michelle Long (“Long”)
was driving in Durham, North Carolina, and had one of her tires
blow out. After Long pulled over and retrieved a jack from her
trunk, she saw defendant, who asked Long if she needed help
changing the tire. Long responded that she could handle it
herself, but defendant insisted on helping her. It took aboutthirty-five to forty minutes for defendant to change Long's tire
and according to Long, she was able to see defendant clearly the
entire time.
Defendant informed Long that he had missed his bus and asked
for a ride down the street to his house. Long agreed to give
defendant a ride home but told him that she was on her way
somewhere and was in a hurry. After telling Long to turn multiple
times, defendant instructed Long to pull over. When Long pulled
over, defendant reached for her keys that were in the ignition with
his left hand and pulled out a box cutter with his right hand.
Long fought back as defendant attempted to cut her face. Long
sustained cuts on both of her hands while trying to protect her
face. Defendant eventually got out of the car and then reached
through the sunroof, grabbed Long's chain and continued to try to
cut Long. Long subsequently alighted from the vehicle and began
running down the street. Defendant chased Long and stated that he
was going to kill her. Thereafter, defendant returned to the car
and took Long's cell phone.
Long eventually got back in her car and drove up the street to
determine which direction defendant had gone. When Long returned
to the crime scene, the police were there. After receiving two
calls regarding a suspicious person near the crime scene, Jeffrey
Cockerham (“Officer Cockerham”), a police officer with the Durham
Police Department, found defendant lying in the back seat of a
Nissan Maxima station wagon. When he searched the car, Officer
Cockerham found Long's gold necklace and cell phone. OfficerCockerham also found a green jacket with blood on it and a hat. In
addition, a box cutter was found inside one of defendant's pockets.
Long positively identified defendant as the person who attacked her
with a box cutter after defendant put on the coat and hat that were
found in the car with him. Defendant sustained approximately six
cuts on her hands which required eight stitches.
Defendant was charged on 16 October 2000 in true bills of
indictment with robbery with a dangerous weapon and assault with a
deadly weapon inflicting serious injury. Subsequently, on 30 April
2001, defendant was charged in a true bill of indictment with being
an habitual felon. Defendant did not present any evidence at
trial. The State dismissed the habitual felon indictment prior to
sentencing. A jury found defendant guilty of robbery with a
dangerous weapon and assault with a deadly weapon, a lesser
included offense of assault with a deadly weapon inflicting serious
injury. Defendant appeals.
I.
Defendant initially contends the trial court erred in denying
his pre-trial motion to continue his trial to a date more than
twenty days after defendant was charged in a true bill of
indictment with habitual felon status. Defendant asserts that the
trial court deprived him of a fair trial guaranteed by the Sixth
and Fourteenth Amendments to the United States Constitution and by
Article I, Sections 19, 23, and 24 of the North Carolina
Constitution. “A motion for a continuance is ordinarily addressed to the
sound discretion of the trial court, and the ruling will not be
disturbed absent a showing of abuse of discretion.”
State v.
Blakeney, 352 N.C. 287, 301, 531 S.E.2d 799, 811 (2000),
cert.
denied, 531 U.S. 1117, 148 L. Ed. 2d 780 (2001). However, when a
constitutional question is implicated, the court's ruling is fully
reviewable on appeal.
State v. Taylor, 354 N.C. 28, 33, 550 S.E.2d
141, 146 (2001),
cert. denied, 535 U.S. 934, 152 L. Ed. 2d 221
(2002). Additionally, regardless of whether defendant's motion to
continue raises a constitutional issue, a denial of such motion “is
grounds for a new trial only when defendant shows both that the
denial was erroneous and that he suffered prejudice as a result of
the error.”
Id. at 33-34, 550 S.E.2d at 146.
Pursuant to N.C. Gen. Stat. § 14-7.3, “[n]o defendant charged
with being an habitual felon in a bill of indictment shall be
required to go to trial
on said charge within 20 days of the
finding of a true bill by the grand jury; provided, the defendant
may waive this 20-day period.” N.C. Gen. Stat. § 14-7.3 (2001)
(emphasis added). Defendant made a motion for a continuance under
this statute since this case was scheduled for trial on 8 May 2001
and defendant was indicted as an habitual felon on 30 April 2001.
However, we note that at trial, the State proceeded only on the
underlying felony charges, robbery with a dangerous weapon and
assault with a deadly weapon inflicting serious injury. The
assistant district attorney handling the case, notified the court
that the State was not going to proceed with the habitual feloncharge until a later date, if at all. After the jury verdict was
announced, the State dismissed defendant's habitual felon
indictment and defendant was sentenced solely on the substantive
charges against him.
We note that “'[w]here the language of a statute is clear and
unambiguous, there is no room for judicial construction and the
courts must construe the statute using its plain meaning.'”
State
v. Cheek, 339 N.C. 725, 728, 453 S.E.2d 862, 864 (1995) (quoting
Burgess v. Your House of Raleigh, 326 N.C. 205, 209, 388 S.E.2d
134, 136 (1990)). The plain meaning of N.C. Gen. Stat. § 14-7.3 is
that defendant may not be tried on an habitual felon charge within
twenty days of being indicted as an habitual felon. There is no
language in the statute which bars trial of the underlying felony
charges within twenty days of the habitual felon indictment.
Therefore, we conclude the trial court did not err in denying
defendant's motion to continue.
Even if the trial court had erred in its denial of defendant's
motion, defendant has failed to show any prejudice as a result of
the alleged error. The State dismissed the habitual felon
indictment and defendant was sentenced solely on the substantive
charges against him. Accordingly, this assignment of error is
overruled.
II.
Defendant next contends the trial court committed plain error
by instructing the jury that “[a] box cutter is a deadly weapon.”
Defendant argues the challenged instruction amounted to a mandatoryconclusive presumption which unconstitutionally relieved the State
of its burden of proving each element of robbery with a dangerous
weapon. This assignment of error is subject to plain error review
since defendant failed to object to the challenged instruction.
See N.C.R. App. P. 10(c)(4). “In order to rise to the level of
plain error, the error in the trial court's instructions must be so
fundamental that (i) absent the error, the jury probably would have
reached a different verdict; or (ii) the error would constitute a
miscarriage of justice if not corrected.”
State v. Holden, 346
N.C. 404, 435, 488 S.E.2d 514, 531 (1997).
It is well settled that “'[w]here the alleged deadly weapon
and the manner of its use are of such character as to admit of but
one conclusion, the question as to whether or not it is deadly
. . .
is one of law, and the Court must take the responsibility of
so declaring.'”
State v. Torain, 316 N.C. 111, 119, 340 S.E.2d
465, 470 (1986) (citations omitted). “An instrument which is
likely to produce death or great bodily harm under the
circumstances of its use is properly denominated a deadly weapon.”
State v. Joyner, 295 N.C. 55, 64, 243 S.E.2d 367, 373 (1978).
After reviewing the evidence presented in the case
sub judice,
we are convinced that the trial court did not err in instructing
the jury that “[a] box cutter is a deadly weapon.” Long testified
that defendant attempted to cut her face with a box cutter so she
covered her face with her hands. Long sustained approximately six
cuts on her hands which required eight stitches. In addition, the
box cutter, which was found inside one of defendant's pocketsshortly after the attack, was admitted into evidence and was
observed by the trial judge and the jury. We hold that the
evidence in this case supports the trial judge's instruction that
a box cutter is a deadly weapon
per se. Therefore, we find no
error, much less plain error, in the trial court's instruction.
III.
Defendant next assigns plain error to the trial court's
sentencing proceeding. The trial court concluded that defendant's
prior record level was VI, based upon its finding that defendant
had twenty-one prior record points. Level VI is assigned to
defendants who have at least nineteen prior record points. N.C.
Gen. Stat. § 15A-1340.14(c)(6) (2001). Defendant takes issue with
only one of the twenty-one prior record points found by the trial
court, based on the trial court's allegedly erroneous finding that
all the elements of defendant's present offense were included in a
prior offense.
See N.C. Gen. Stat. § 15A-1340.14(b)(6). However,
even assuming that one point was erroneously assessed, this error
would be harmless since defendant would still have a prior record
level of VI with twenty prior record points.
See State v. Smith,
139 N.C. App. 209, 533 S.E.2d 518,
appeal dismissed, 353 N.C. 277,
546 S.E.2d 391 (2000). Accordingly, defendant's assignment of
error is overruled.
IV.
Defendant finally claims that his trial counsel provided
ineffective assistance, entitling him to a new trial. We disagree. A defendant's ineffective assistance of counsel claims should
often be litigated in a motion for appropriate relief. However, we
note that “[ineffective assistance of counsel] claims brought on
direct review will be decided on the merits when the cold record
reveals that no further investigation is required, i.e., claims
that may be developed and argued without such ancillary procedures
as the appointment of investigators or an evidentiary hearing.”
State v. Fair, 354 N.C. 131, 166, 557 S.E.2d 500, 524 (2001),
cert.
denied, ____ U.S. ____, 153 L. Ed. 2d 162 (2002). In the instant
case, we will review defendant's ineffective assistance of counsel
claims since we are able to determine from the record, without
further investigation or an evidentiary hearing, whether these
claims have merit.
To successfully assert an ineffective assistance of counsel
claim, a defendant must satisfy the following two-prong test:
“First, the defendant must show that
counsel's performance was deficient. This
requires showing that counsel made errors so
serious that counsel was not functioning as
the 'counsel' guaranteed the defendant by the
Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced
the defense. This requires showing that
counsel's errors were so serious as to deprive
the defendant of a fair trial,
a trial whose
result is reliable.” (Emphasis added.)
State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985)
(quoting
Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d
674, 693 (1984)).
Defendant specifically alleges that his appointed counsel
“neglected to investigate [defendant's] prior convictions todetermine whether her office had any conflict of interest in
representing [defendant] in the current case or to determine
whether there were any grounds to move for appropriate relief from
any of those prior convictions.” However, there is no suggestion
in defendant's brief or the record as to what, if anything, such an
investigation would have revealed or how this alleged failure to
make such an investigation affected defendant's prior record level
or sentencing.
Defendant next avers that his attorney “neglected to develop
any grounds to challenge for cause and neglected to challenge
jurors who had been victimized in similar crimes to those being
tried and whose long-term employment would likely cause them to
view the prosecution's case more favorably than the defense.” Our
review of the record, however, reveals that the State asked the
jurors if they previously had their home or car broken into or had
been robbed with a weapon. In addition, counsel for defendant
asked the jurors if they had a close family member or a close
friend who had been the victim of a crime. The only juror who had
been robbed with a weapon was excused by the State for cause.
Further, we note that defense counsel exercised two peremptory
challenges with respect to one police officer and one former police
officer. Defense counsel used all six peremptory challenges
allowed by N.C. Gen. Stat. § 15A-1217(b)(1) (2001). We find no
basis for defense counsel to have challenged any of the remaining
jurors for cause pursuant to N.C. Gen. Stat. § 15A-1212 (2001). We
acknowledge that trial counsel are necessarily given wide latitudein matters involving strategic and tactical decisions such as which
jurors to accept or strike.
State v. Milano, 297 N.C. 485, 495,
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). In addition,
ineffective assistance of counsel claims are “not intended to
promote judicial second-guessing on questions of strategy . . . .”
Sallie v. North Carolina, 587 F.2d 636, 640 (4th Cir. 1978). After
a thorough review of the record, we conclude defendant has failed
to show that his trial counsel's tactics were deficient during jury
selection.
Defendant further asserts that his attorney failed to object
to inadmissible hearsay statements. Specifically, defendant
contends that his trial counsel should have objected when Officer
Cockerham testified that while at the crime scene with Long, he
received a call about a “suspicious black male looking inside of
vehicles attempting to open the doors” near the crime scene. In
addition, Officer Cockerham testified, without objection, that he
received another call shortly thereafter, in which the caller
directed him to the Nissan Maxima station wagon in which defendant
was found. Assuming
arguendo that these statements were hearsay,
there was such overwhelming evidence of defendant's guilt that the
admission of these statements did not prejudice defendant.
Defendant additionally argues that his trial attorney was
ineffective by failing to object to the prosecutor arguing that the
evidence was uncontroverted and by failing to call defendant's
nephew as a witness. We conclude, however, that “uncontroverted”was a fair characterization of the evidence. Long identified
defendant as her assailant, identified the box cutter that
defendant used during the robbery and assault, identified the
jacket that defendant was wearing, and identified the gold chain
and cell phone that defendant had taken from her. Officer
Cockerham corroborated Long's testimony. Defendant presented no
evidence. The State is allowed to bring it to the jury's attention
that a defendant has failed to produce exculpatory evidence or has
failed to contradict evidence presented by the State.
State v.
Mason, 317 N.C. 283, 345 S.E.2d 195 (1986). Therefore, defense
counsel was not ineffective by failing to object to the
prosecutor's accurate statement that the evidence was
uncontroverted. In addition, defendant has not shown that calling
his nephew as a witness would have affected the jury's verdict,
especially considering the overwhelming evidence of defendant's
guilt. Further, trial counsel are necessarily given wide latitude
on their decisions involving what witnesses to call.
See Milano,
297 N.C. at 495, 256 S.E.2d at 160.
Defendant next contends that his trial counsel was ineffective
by failing to object to the trial court's instruction to the jury
that “[a] box cutter is a deadly weapon.” As determined previously
in section II, however, this instruction was proper and therefore,
defense counsel had no reason to object.
Defendant finally claims that his trial counsel was
ineffective by failing to except to the trial court's finding that
all of the elements of the present offense were included in someprior offense for which defendant was convicted. However, as
concluded in section III, had this alleged error not occurred,
defendant's prior record level would still have been VI.
Therefore, defendant was not prejudiced by his counsel failing to
object to the alleged error. For the foregoing reasons, we find no
merit in defendant's ineffective assistance of counsel claim.
We conclude defendant received a fair trial, free from
prejudicial error.
No error.
Judges WYNN and CALABRIA concur.
Footnote: 1