1. Constitutional Law--effective assistance of counsel--failure to bring forth
affirmative defense
Defendant did not receive ineffective assistance of counsel in a first-degree murder and
armed robbery case even though his counsel failed to bring forth the affirmative defense that he
allegedly forecast during opening statements, because: (1) defense counsel did not promise to put
on an affirmative defense, but merely admonished the jury to listen carefully to the witnesses and
weigh their testimony against other facts; and (2) even if defense counsel's statements were
unkept promises, defendant offers no evidence that the opening statements prejudiced the
outcome of the trial.
2. Constitutional Law--effective assistance of counsel--failure to object
Defendant did not receive ineffective assistance of counsel in a first-degree murder and
armed robbery case even though his counsel failed to object to alleged improper questioning of a
witness regarding the fact that the victim had a 10-millimeter gun, because: (1) failure to make an
evidentiary objection does not necessarily place defense counsel's behavior below an objective
standard of reasonableness; and (2) defense counsel's failure to object to the testimony in this
case did not fall below an objective standard of reasonableness.
3. Robbery--armed--motion to dismiss--sufficiency of evidence
The trial court did not err by denying defendant's motion to dismiss the charge of armed
robbery, because: (1) facts in the record on appeal support a reasonable inference that defendant
perpetrated each element of armed robbery; and (2) the facts could lead a jury to reasonably
conclude that by using a dangerous weapon, defendant took possession of the victim's property
and, without his permission, threw some of the victim's possessions out of the car.
4. Evidence--testimony--extrinsic evidence--witness credibility
The trial court did not err in a first-degree murder and armed robbery case by disallowing
the testimony of a witness who claimed to have seen the prosecution's sole eyewitness assist a
prisoner escape from jail because while defendant could have used cross-examination to
challenge the eyewitness's credibility, N.C.G.S. § 8C-1, Rule 608(b) prohibits the use of
extrinsic evidence, such as the testimony of another witness, to attack a witness's credibility.
Bruce T. Cunningham, Jr., for the defendant-appellant.
Attorney General Roy Cooper, by Special Deputy Attorney
General Ralf F. Haskell, for the State.
WYNN, Judge.
Following his convictions on the charges of first-degree
murder and armed robbery, Defendant, Montavius Johnson contends on
appeal that (I) his defense counsel prejudicially failed to present
an affirmative defense after promising to do so in the opening
statement, and object to the improper questioning of Kimberly
Pegues; (II) the trial court erroneously denied his motion to
dismiss the charge of armed robbery; and (III) the trial court
erroneously disallowed the testimony of witness Jimmy Darryl Lasko.
After careful review, we hold that Defendant received a trial free
from prejudicial error.
The State's evidence tended to show that on 2 July 1999 at
approximately 2:30 a.m., Kimberly Pegues met her boyfriend Antonio
Baker at a friend's apartment. When Pegues arrived, she noticed
that Baker had a 10-millimeter Glock handgun in his pocket.
Shortly thereafter, the couple left the apartment and Baker put the
gun in his car. The couple then drove their separate cars to a
fast food restaurant where Pegues got out of her vehicle to use the
phone; Baker remained in his car. Upon returning to her car and
backing out of the parking space, Pegues saw Defendant and another
person approach Baker's car (later identified as C. J. Toney).
Pegues heard someone yell “Give me your shit” and then “I don't
have anything, man.” Pegues saw defendant rummaging through
Baker's car, and observed him throw belongings from Baker's glove
box and back seat into the street. Pegues heard a shot and sawDefendant run back to his vehicle. Shortly thereafter, defendant
returned to Baker's car and Pegues heard another shot. Baker died
from a gunshot wound to the head.
A police investigation uncovered a 10-millimeter shell in
Defendant's yard, with markings consistent with having been fired
from a 10-millimeter Glock. Defendant was charged with first-
degree murder and armed robbery.
At trial, Defendant's counsel made the following statements
during his opening statement:
C. J. Toney is the individual who shot both
shots that night. That is our contention.
And, he is the individual who shot and killed
Baker.
Now, what happens in between there is a
question of whether Mr. Johnson was trying to
prevent that or not. Now remember, whatever
Ms. Pegues tells you, we're asking you to pay
close attention to it and look at; because,
the positioning of the people is very
important; where they were; and, what they may
or may not have been doing.
Because, there may have been other reasons why
Mr. Johnson was in between Mr. Toney and Mr.
Baker. And, we will ask you to consider those
reasons, at the appropriate time.
So, listen carefully to this eyewitness
testimony and weigh what could have been seen
and what could not be seen.
[1] From his convictions on the charged offenses, and sentence
to life in prison, Defendant first argues that his counsel's
failure to bring forth the affirmative defense that he forecast in
his opening statement constituted ineffective assistance of counsel
per se, in violation of the Sixth and Fourteenth Amendments of the
Constitution of the United States. We disagree. “A convicted defendant's claim that counsel's assistance was
so defective as to require reversal of a conviction or death
sentence has two components. 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. Unless a defendant makes both
showings, it cannot be said that the conviction or death sentence
resulted from a breakdown in the adversary process that renders the
result unreliable.” Strickland v. Washington, 466 U.S. 668, 689
(1984).
Defendant argues his counsel's statements in opening were
promises to offer evidence that Defendant tried to prevent the
shooting for which he was charged. Specifically, Defendant points
to the following statement made by his counsel during opening but
never developed during trial: “[T]here may have been other reasons
why Mr. Johnson was in between Mr. Toney and Mr. Baker. And we
will ask you to consider those reasons, at the appropriate time.”
To augment his ineffective assistance of counsel claim, Defendant
offered the following quote from the prosecutor's closing argument:
The defense also made an opening statement.
And, in that opening statement, the defense
offered to show you that the defendant,
Montavius Johnson, tried to prevent the murder
of Baker. But what did the evidence show you?
I would contend that the evidence showed you
that Montavius Johnson did everything but
attempt to prevent the murder of Baker.
We disagree with Defendant's characterization of his counsel's
opening statements as “promises” to put on an affirmative defense.
Rather, defense counsel admonished the jury to listen carefully to
the witnesses and weigh their testimony against other facts.
Moreover, even if defense counsel's statements were unkept
promises, Defendant offers no evidence that defense counsel's
opening statements prejudiced the outcome of the trial. Absent
evidence establishing to a reasonable probability that the trial
outcome would have been different had defense counsel offered the
evidence “promised” in the opening, Defendant has failed to satisfy
the prejudice prong of his ineffective assistance of counsel claim.
[2] Defendant further argues that defense counsel was
ineffective in failing to object to improper questioning of
Kimberly Pegues regarding whether Antonio Baker had a 10-millimeter
gun. Defendant argues that his counsel should have objected when
the prosecutor asked eye witness Pegues the following question:
“While you were there, were you aware that Antonio had his 10-
millimeter Glock handgun with him?” Defendant contends this
question assumed three facts not in evidence: (1) Baker had a gun;
(2) the gun was manufactured by Glock and (3) the caliber was 10
millimeters. Defendant further argues that had his counsel
objected, the objection would have been sustained and the Motion to
Dismiss the armed robbery charge would have been granted. We
disagree.
As stated earlier, an ineffective assistance of counsel claim
can only succeed if defense counsel's behavior falls below an
objective standard of reasonableness and such behavior prejudicedDefendant. Id. However, failure to make an evidentiary objection
does not necessarily place defense counsel's behavior below an
objective standard of reasonableness. See State v. Gainey, 355
N.C. 73, 113, 558 S.E.2d 463, 488 (2002) (holding that “counsel's
failure to object to these issues [admission of statements, jury
instructions and the verdict sheets] at trial cannot be said to
fall below an objective standard of reasonableness”). In this
case, defense counsel's failure to object to the testimony of
Pegues did not fall below an objective standard of reasonableness.
Accordingly, Defendant's claim of ineffective assistance of counsel
is without merit.
[3] Defendant next argues that the trial court erred in
denying his motion to dismiss the armed robbery charge for
insufficiency of the evidence. We disagree.
“In ruling on a motion to dismiss for insufficient evidence,
the trial court must consider the evidence in the light most
favorable to the State, which is entitled to every reasonable
inference which can be drawn from that evidence.” State v. Dick,
126 N.C. App. 312, 317, 485 S.E.2d 88, 91 (1997). “[T]he question
for the Court is whether there is substantial evidence (1) of each
essential element of the offense charged . . . and (2) of
defendant's being the perpetrator of such offense.” State v.
Brayboy, 105 N.C. App. 370, 373-74, 413 S.E.2d 590, 592 (1992).
“Substantial evidence is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” State v.
Williams, 133 N.C. App. 326, 328, 515 S.E.2d 80, 82 (1999).
N.C. Gen. Stat. § 14-87 provides that: Any person or persons who, having in
possession or with the use or threatened use
of any firearms or other dangerous weapon,
implement or means, whereby the life of a
person is endangered or threatened, unlawfully
takes or attempts to take personal property
from another or from any place of business,
residence or banking institution or any other
place where there is a person or persons in
attendance, at any time, either day or night,
or who aids or abets any such person or
persons in the commission of such crime, shall
be guilty of a Class D felony.
Contrary to Defendant's argument, facts in the record on
appeal support a reasonable inference that Defendant perpetrated
each element of armed robbery. In particular, Pegues testified
that she heard someone yell “Give me your shit” and “I don't have
anything, man.” She also testified that defendant rummaged through
the victim's car; the victim's wallet and other personal items were
ultimately found strewn outside his car. Prior to the shooting,
Pegues said she saw Baker put a Glock handgun in his car. These
facts could lead a jury to reasonably conclude that by using a
dangerous weapon, Defendant took possession of the victim's
property and, without his permission, threw some of the victim's
possessions out of the car. This evidence is sufficient to support
Defendant's conviction. Accordingly, we uphold the trial court's
denial of Defendant's motion to dismiss.
[4] Lastly, Defendant asserts that the trial court erred by
excluding testimony from defense witness Jimmy Darryl Lasko, who
claimed to have seen the prosecution's sole eye witness, Pegues,
assist a prisoner escape from jail. Defendant sought to introduce
Lasko's testimony to cast doubt on Pegues' credibility, but thetrial court found the evidence irrelevant and proscribed Lasko's
testimony.
While Defendant could have used cross-examination to challenge
Pegues's credibility, North Carolina statute prohibits the use of
extrinsic evidence, i.e., the testimony of another witness, to
attack a witness' credibility. N.C. Gen. Stat. § 8C-1, Rule
608(b). Therefore, we uphold the trial court's exclusion of
Lasko's testimony.
No error.
Judges TYSON and LEVINSON concur.
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