STATE OF NORTH CAROLINA
v. Durham County
Nos. 00 CRS 65482-85
JERMAINE COVINGTON 01 CRS 7945
Attorney General Roy Cooper, by Assistant Attorney General
Daniel D. Addison, for the State.
Megerian & Wells, by Jonathan L. Megerian, for defendant
appellant.
TIMMONS-GOODSON, Judge.
Jermaine Covington (defendant) appeals from his convictions
of two counts of second-degree kidnapping and two counts of
attempted robbery with a dangerous weapon. For the reasons
discussed herein, we hold that defendant received a trial free from
prejudicial error.
The State presented evidence at trial tending to show the
following: On 25 October 2000, Maurice Ashby (Maurice)
encountered defendant, Harold Brandon (Brandon), and an
unidentified male (the unidentified male) at his home in Durham,
North Carolina (Ashby house). Defendant informed Maurice that he
heard [Maurice] had some puppies for sale, at which time Maurice
denied that he had puppies for sale. Upon hearing the denial, the
unidentified male brandished a firearm and ordered Maurice to lie
on the ground. As Maurice lay on the ground, his pockets were
searched and the unidentified male said, go get it. Defendant
and Brandon then entered Ashby house. At the time, Lakeish Whitter
(Whitter), Maurice's girlfriend, and their two children, Daijah
Ashby (Daijah) and Myah Ashby (Myah) were inside of Ashby
house. Upon entering the house, defendant and Brandon pushed
Whitter to the floor and rambled through several rooms.
Carlos Corbett (Corbett), a retired college campus police
officer, lived next door. Hearing Maurice's dogs barking in an
unusual manner, Corbett secured his gun and flashlight in order to
investigate the disturbance. Upon leaving his home, Corbett saw
defendant, Brandon, the unidentified male and Maurice, standing
outside of Ashby house. Corbett, seeing Maurice with his hands
raised in the air, then walked toward a tree and saw Maurice lying
on the ground as the unidentified male held a gun to his head.
Corbett then yelled, police, drop the weapon, and discharged one
shot from his weapon into the ground. The unidentified male
dropped his weapon, Corbett picked it up, and gave it to Maurice.
As Maurice held the unidentified male at gun point, Corbett
went into Ashby house to apprehend defendant and Brandon. Having
heard Corbett discharge his firearm and unable to escape through
the windows, defendant and Brandon remained inside of a bedroom
with Whitter and four-year-old Daijah. Defendant walked out of the
bedroom with Daijah in his arms followed by Brandon, who picked up
two-year-old Myah. Both men proceeded to walk towards an exit of
Ashby house but Corbett instructed them to release the children and
discharged a warning shot. Despite the warning from Corbett,
defendant proceeded to walk out of Ashby house with Daijah.
Maurice, who was outside fighting the unidentified male, saw
defendant exit Ashby house with Daijah. Maurice pointed his
firearm toward defendant who then held Daijah up as a shield.
Thereafter, Maurice ran toward defendant and began fighting with
him. As Maurice fought with defendant, the unidentified male fled
the scene and Whitter took Daijah away from defendant. Corbett,
still inside of Ashby house, forcefully removed Myah from Brandon.
Police arrived at Ashby house and arrested defendant and Brandon.
The unidentified male was never identified, arrested or charged
with a crime. Brandon was tried separately. At trial, defendant
testified that he was a victim of a crime and present at Ashby
house only to purchase a puppy.
Upon conclusion of the evidence, the jury found defendant
guilty of two counts of kidnapping and two counts of attempted
robbery with a dangerous weapon. Following trial, defendant
admitted his violent habitual felon status. Defendant was
sentenced to a term of life imprisonment. Defendant appeals.
motion to dismiss the charge of attempted armed robbery. In his
final assignment of error defendant asserts that he received
ineffective assistance of counsel at trial.
In his first assignment of error, defendant argues that the
trial court committed reversible error by allowing him to be tried
for attempted armed robbery. Specifically, defendant contends that
the indictments in this matter are flawed, because the description
of the property is valued at $0. We disagree.
Generally it is 'true tha[t] an indictment need only allege
the ultimate facts constituting the elements of the criminal
offense.' State v. Thomas, ____ N.C. App. ____, 570 S.E.2d 142,
147 (quoting State v. Youngs, 141 N.C. App. 220, 230, 540 S.E.2d
794, 801 (2000)), disc. review denied, 356 N.C. 624, ____ S.E.2d
___ (2002). The elements need only be alleged to the extent that
the indictment (1) identifies the offense; (2) protects against
double jeopardy; (3) enables the defendant to prepare for trial;
and (4) supports a judgment on conviction. Id.
In State v. Owens, 277 N.C. 697, 178 S.E.2d 442 (1971),
overruled on other grounds, 320 N.C. 589, 359 S.E.2d 776 (1987),
the defendant pointed a gun at a storekeeper and forced him to open
the store safe. Id. at 699, 178 S.E.2d at 443. However, another
individual interrupted the robbery and subdued the defendant until
police arrived. Id. The defendant was charged with attempted
armed robbery. The resulting indictment read as follows: . . .
carry[ing] away U. S. currency of the value of ___ from the
presence, person, place of business, and residence of . . . . Id.
at 698, 178 S.E.2d at 443. Our Supreme Court in Owens concluded
that
[t]he gist of the offense as described in this
indictment is attempt to commit robbery by the
use or threatened use of firearms. The force
or intimidation occasioned by the use or
threatened use of firearms is the main element
of the offense. In such a case, it is not
necessary or material to describe accurately
or prove the particular identity or value of
the property, provided the indictment shows
that the property was that of the person
assaulted or under his care, and that such
property is the subject of robbery and that it
had some value.
Id. at 700, 178 S.E.2d at 444.
In the case sub judice, the indictments read in pertinent
part:
. . . the defendant . . . unlawfully,
willfully and feloniously did attempt to
steal, take and carry away another's personal
property, U.S. Currency of the value of $0,
from the presence and person of . . . .
[D]efendant committed this act having in
possession and with the use and threatened use
of firearms and other dangerous weapons,
implements, and means, a semi-automatic
handgun, whereby the life of . . . was
endangered or threatened.
A review of the indictment reveals that it alleged the ultimate
facts constituting the elements for attempted robbery with a
dangerous weapon. We note that the language approved in Owens is
very similar to the language in the present indictment. Some value
can be inferred from the description of U.S. Currency. See Id.
It is clear that the meaning of this was that the amount of
currency defendant was alleged to have attempted to steal was
undetermined. Thus, the indictment was adequate in that it
sufficiently identified the offense, protected against double
jeopardy, sufficiently served the purpose of placing defendant on
notice of the charge in order for him to prepare a defense, and
supports the judgment on conviction. We find no error.
By his second assignment of error, defendant argues that the
trial court committed reversible error when it allowed testimony
from Linda Covington (Linda), defendant's mother, pertaining to
defendant's prior conviction for armed robbery. We disagree.
We first note that defendant did not object to testimony given
by Linda at trial, and he may not assign her testimony as error on
appeal. N.C.R. App. P. 10(b)(2) (2002). Since this issue has not
been preserved for appeal, this Court may review it for plain
error. State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378
(1983). In order to show plain error, defendant must convince
this Court not only that there was error, but that absent the
error, the jury probably would have reached a different result.
State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993).
In State v. Syriani, 333 N.C. 350, 428 S.E.2d 118, cert.
denied, 510 U.S. 948, 126 L. Ed. 2d 341 (1993), the defendant was
on trial for murdering his wife. The defendant, on cross
examination, elicited testimony from his daughter about his violent
behavior. Id. at 378, 428 S.E.2d at 132. On appeal, the defendant
contended that testimony from his daughter was inadmissible because
it contained prior bad acts. Id. The Syriani Court stated that
[t]he law wisely permits evidence not
otherwise admissible to be offered to explain
or rebut evidence elicited by the defendant
himself. Where one party introduces evidence
as to a particular fact or transaction, the
other party is entitled to introduce evidence
in explanation or rebuttal thereof, even
though such latter evidence would be
incompetent or irrelevant had it been offered
initially.
Id. at 378, 428 S.E.2d at 133 (quoting State v. Hudson, 331 N.C.
122, 154, 415 S.E.2d 732, 749 (1992)). A defendant is not
prejudiced . . . by error resulting from his own conduct. State
v. Greene, 324 N.C. 1, 12, 376 S.E.2d 430, 438 (1989) (holding that
a defendant cannot invalidate the trial by inviting error,
eliciting evidence on cross-examination which he might have
rightfully excluded if the same evidence had been offered by the
State).
In the instant case, defendant called Linda to testify and the
following exchange took place:
Q: Did [defendant] work back during that
time?
A: He was trying to find a job. Because he
hadn't been [out of prison] too long . . .
On cross-examination the following colloquy with Linda took place:
Q: And was [defendant] working?
A: No.
Q: Now, he had just been released from prison
for what?
A: Armed robbery.
Q: And how long did he get?
A: Seven years.
Q: He got fourteen years, actually, right?
A: I'm going to say fourteen years, yeah.
Amendment right to remain silent. Id. at 283, 302 S.E.2d at 171.
The Ladd decision has no application to this case, because here
defendant took the stand at trial and offered an explanation for
not talking with police and asking for counsel, thus opening the
door for cross-examination on the issue. Where a defendant takes
the stand at trial and testifies about his reasons for not making
a statement and insisting upon having counsel, he has opened the
door to the State's cross examination on that subject. State v.
McQueen, 324 N.C. 118, 134-5, 377 S.E.2d 38, 47-8 (1989).
In the present case, defendant maintained as his defense that
he was a victim at Ashby house and was only there to discuss the
purchase of a puppy. On direct examination defendant testified
that he wanted to explain to the police that he was a victim, but
did not get the opportunity. Defendant further testified that
although he intended to inform police that he was a victim, he
instead told them I prefer to see a lawyer. On cross-examination
the State's questions challenged defendant's claim that he was a
victim and that he did not have an opportunity to explain this
important fact to the police. The State's questions elicited
testimony explaining that defendant had been given an opportunity
to inform the police that he was not the perpetrator of a crime,
however, he declined to offer this information to police. The
State's questions concerning defendant's choice to wait for counsel
rather than make a statement clarified testimony given by defendant
on direct examination. Therefore, defendant opened the door to
questions concerning his behavior with the police and his assertion
of his right to counsel. The trial court did not err in failing to
intervene during cross-examination. This assignment of error is
overruled.
In his fourth assignment of error, defendant argues that the
trial court erred in denying his motion to dismiss the charges of
attempted armed robbery due to the insufficiency of evidence. In
this assignment of error, defendant argues that the evidence failed
to show that he searched Maurice's pockets or that he attempted to
remove property from Whitter in Ashby house. We disagree.
In considering a motion to dismiss, the trial court must
examine the evidence in the light most favorable to the State and
give the State the benefit of every reasonable inference that may
be drawn from the evidence. State v. Benson, 331 N.C. 537, 544,
417 S.E.2d 756, 761 (1992). A motion to dismiss on the ground of
insufficient evidence should be denied if there is substantial
evidence of each element of the crime, and that defendant [is] the
perpetrator. State v. Cozart, 131 N.C. App. 199, 202, 505 S.E.2d
906, 909 (1998), disc. review denied, 350 N.C. 311, 534 S.E.2d 600
(1999). Evidence is substantial when a jury could find the fact
to be proved beyond a reasonable doubt. State v. Sumpter, 318
N.C. 102, 108, 347 S.E.2d 396, 399 (1986).
'Under the doctrine of acting in concert, if two or more
persons act together in pursuit of a common plan or purpose, each
of them, if actually or constructively present, is guilty of any
crime committed by any of the others in pursuit of the common
plan.' State v. McCullers, 341 N.C. 19, 30, 460 S.E.2d 163, 169
(1995) (quoting State v. Laws, 325 N.C. 81, 97, 381 S.E.2d 609, 618
(1989)). This is true even where the other person does all the
acts necessary to commit the crime. State v. Jefferies, 333 N.C.
501, 512, 428 S.E.2d 150, 156 (1993).
Viewing the evidence in the light most favorable to the State,
we hold that there was substantial evidence from which a jury could
find that defendant attempted armed robbery with a dangerous
weapon. The evidence tends to show that defendant arrived at Ashby
house with two other assailants, held a gun to the head of Maurice
and searched his pockets. Maurice testified that he thought [he]
had a few dollars in [his] pocket. It is irrelevant as to which
of the assailants actually held the gun to Maurice's head or took
money from his pocket. Further evidence shows that defendant
entered Ashby house, where Whitter resides, instructed her to lie
on the floor, and then began to search several rooms inside Ashby
house. Although Whitter could not identify which assailant had a
weapon, she did testify that one of the assailants was in
possession of a weapon upon entering Ashby house. From this
evidence, a jury could properly infer that defendant was at the
scene acting together with two other assailants in an attempt to
rob Maurice and Whitter, while using a dangerous weapon.
Therefore, defendant's motion to dismiss was properly denied.
In his last assignment of error, defendant argues that he
received ineffective assistance of counsel at trial. Defendant
contends that his trial counsel failed to object, on cross-
examination, to improper testimony from defendant and his witness,
Linda. We disagree.
In order for defendant to prevail on an ineffective assistance
of counsel claim, a two-prong test must be satisfied. State v.
Stroud, 147 N.C. App. 549, 555, 557 S.E.2d 544, 547 (2001), cert.
denied, 356 N.C. 623, ____ S.E.2d _____ (2002). 'First, he must
show that counsel's performance fell below an objective standard of
reasonableness. Second, . . . he must show that the error
committed was so serious that a reasonable probability exists that
the trial result would have been different absent the error.' Id.
(quoting State v. Blakeney, 352 N.C. 287, 307-08, 531 S.E.2d 799,
814-15 (2000)). In analyzing the reasonableness under the first
prong of the test, a reviewing court must indulge a strong
presumption that counsel's conduct falls within the wide range of
reasonable professional assistance. See id. at 555, 557 S.E.2d at
549.
Here, defendant refers to arguments raised in assignments of
error two and three to develop his ineffective assistance of
counsel argument. However, defendant fails to satisfy the test as
laid out in Stroud. First, defendant has failed to show that his
attorney's performance fell below an objective standard of
reasonableness. Second, given the overwhelming evidence against
defendant, the failure to object in certain instances would not
make it more probable that the outcome of the trial would have been
different. Defendant's last assignment of error is overruled.
For the reasons contained herein, we hold the trial court did
not err.
No error.
Judges WYNN and HUNTER concur.
Report per Rule 30(e).