NO. COA02-552
Appeal by defendant from judgment entered 6 December 2001 by
Judge Lindsay R. Davis, Jr., in Forsyth County Superior Court.
Heard in the Court of Appeals 23 December 2002.
Attorney General Roy Cooper, by Special Deputy Attorney
General Ted R. Williams, for the State.
Reita P. Pendry for defendant appellant.
McCULLOUGH, Judge.
On 30 July 2001, defendant Keshonn J. Galloway was indicted
for robbery with a dangerous weapon. The case was tried at the 3
December 2001 Criminal Session of Forsyth County Superior Court.
The State presented evidence at trial which tended to show the
following: On 7 February 2001, Bryant Hardy was working at the
Friendly Food Mart in Winston-Salem, North Carolina. At
approximately 9:30 or 10:00 p.m., a lone black male approached the
register and got in line. After the person in front of him left
the store, the man asked Hardy for a pack of cigarettes. Hardy
turned to retrieve the pack of cigarettes, and when he turned back
around, the man was pointing a gun at him. Hardy put his hands up,
and the man told him to put his hands down and demanded that Hardygive him the money. Hardy opened the register drawer, pulled out
the “till,” and started taking the money out and handing it to the
man. The man then asked for his wallet, and Hardy told him he did
not have any money on him. The man then told Hardy to turn around
and get on the floor, and threatened to shoot him if he got up.
The man then ran out of the store.
Hardy called the police, and Officer Todd C. Hart of the
Winston-Salem Police Department responded to the call within five
minutes of the robbery. Hardy gave a description of the robber to
Officer Hart, stating that the man was a black male, approximately
6' to 6'2" tall, 175 to 180 pounds, twenty-seven to thirty years of
age, wearing sunglasses and a toboggan with plats hanging over his
ears. Hardy also noted that the man's bottom lip was pink and
“stood out from everything else.”
A few weeks later, Detective C.W. Fine of the Winston-Salem
Police Department, who was investigating the robbery, received a
report that a fingerprint found at the Food Mart was identified as
belonging to defendant. Subsequently, on 8 March 2001, Detective
Fine prepared a photographic lineup including defendant and showed
it to Hardy. Hardy told Detective Fine that defendant's face
“looked familiar.” When questioned further, Hardy stated that
defendant's picture was familiar from “[w]hen he robbed me, when he
came into the store with the gun.” Hardy then testified that
Detective Fine told him that defendant's fingerprints had been
“pulled . . . off of the door of the store.” However, Detective
Fine denied telling Hardy this information. At trial, Hardy againidentified defendant as the robber.
Defendant offered evidence by calling his sister to the
witness stand. She testified that defendant was at her home during
the time of the alleged robbery. Defendant watched her children
for her while she was at work. On the night in question she
returned home around 7:45 p.m. She lived two blocks from the
convenience store and frequented the establishment. Defendant's
sister also noted that defendant was missing several of his teeth,
most notably his front teeth. She testified that this was very
noticeable.
Defendant was convicted of robbery with a dangerous weapon and
sentenced to a term of 96 to 125 months' imprisonment. Defendant
appealed.
Defendant argues the trial court erred by denying his motions
to dismiss the indictment for insufficient evidence because the
State failed to prove that he was the perpetrator of the charged
offense. Defendant further argues that his trial counsel was
ineffective in failing to ask for instructions on identification,
on the theory of defense (alibi), and on the impeachment of the
government's eyewitness with prior criminal convictions. For the
reasons herein we disagree with defendant's argument and conclude
he received a trial free from error.
I.
Defendant first argues that there was insufficient evidence
presented identifying him as the perpetrator of the robbery to
sustain the conviction. Defendant contends that Hardy's eyewitnesstestimony was unreliable, noting that: (1) Hardy only had a limited
opportunity to view the robbery; (2) there were inconsistencies and
inaccuracies in his in-court identification; (3) the in-court
identification occurred ten months after the robbery; and (4)
Hardy's testimony was “equivocal and [] was bolstered by improper
police procedures.” Defendant further argues that the fingerprint
identification was flawed because there was no testimony that
defendant could have only left the print on the store's door at the
time of the robbery.
After careful review of the record, briefs, and contentions of
the parties, we find no error. This Court has stated:
“In ruling upon a motion to dismiss, the
trial court must determine whether, 'upon
consideration of all of the evidence in the
light most favorable to the State, there is
substantial evidence that the crime charged
... was committed and that defendant was the
perpetrator.'” Questions of credibility and
the proper weight to be given eyewitness
identification testimony are for the jury to
decide. “In determining whether a witness'
identification testimony is inherently
incredible requiring dismissal, the test is
whether 'there is a reasonable possibility of
observation sufficient to permit subsequent
identification.'”
State v. Smith, 130 N.C. App. 71, 78, 502 S.E.2d 390, 395 (1998)
(citations omitted). Here, Hardy testified that he looked at
defendant during the robbery, that defendant was not wearing a
disguise, and that he was able to give a description of defendant
that varied little from his actual appearance. After the robbery,
Hardy was able to pick defendant out of a photographic lineup.
Although defendant contends that Hardy's identification wasimproperly bolstered because Hardy was told that defendant's
fingerprints had been lifted from the store, the purported comment
was made after Hardy identified defendant's picture. Thus,
defendant has failed to show that the identification evidence was
“inherently incredible.”
Id. Defendant further argues that there
were discrepancies in Hardy's testimony and identification of him.
However, Hardy's “credibility and the weight to be accorded his
identification testimony were for the jury to determine.”
Id.
Moreover, defendant's fingerprints were found on the door to the
store, and there was no evidence presented suggesting that
defendant had ever been in the store prior to the robbery.
Accordingly, in the light most favorable to the State, we conclude
there was sufficient evidence to sustain the conviction.
Defendant's first assignment of error is overruled.
II.
We next consider whether defendant received ineffective
assistance of counsel because his attorney failed to ask for
certain jury instructions. Specifically, defendant contends that
counsel failed to request instructions that: (1) the State must
prove the identity of defendant as the perpetrator of the crime
beyond a reasonable doubt; (2) the burden of proving an alibi does
not rest upon defendant, but that the State must prove that
defendant was present at and participated in the crime charged;
and, (3) the prior criminal convictions of Hardy, the State's only
witness to the robbery, bore on his truthfulness. Defendant argues
that counsel's errors deprived him of a fair trial. We are notpersuaded.
We initially note that, although the preferred method for
raising ineffective assistance of counsel is by a motion for
appropriate relief made in the trial court, a defendant's
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). A review of the record in
the case
sub judice reveals that defendant's claim of ineffective
assistance of counsel can be determined without further development
of the record, and thus it is proper to address it at this time.
To obtain relief for ineffective assistance of counsel,
defendant must demonstrate that his “counsel's conduct fell below
an objective standard of reasonableness.”
State v. Braswell, 312
N.C. 553, 561-62, 324 S.E.2d 241, 248 (1985). This requires a
showing that: (1) counsel's performance was deficient; and (2) that
the deficient performance prejudiced his defense.
Id. Here,
defendant alleges his counsel was deficient in failing to request
certain jury instructions. “'[I]n order to show ineffective
assistance of counsel because of the failure to request jury
instructions, the defendant must show that without the requested
instructions there was plain error in the charge.'”
State v.
Montford, 137 N.C. App. 495, 502, 529 S.E.2d 247, 252 (2000)(quoting
State v. Swann, 322 N.C. 666, 688, 370 S.E.2d 533, 545
(1988)).
In this case, we conclude defendant failed to make the
required showing. First, defendant contends that counsel should
have requested an instruction that the State had the burden of
proving the identity of defendant beyond a reasonable doubt.
However, the general instructions given by the trial court required
the State to prove that defendant committed the crime beyond a
reasonable doubt. Thus, it was not plain error for the trial court
to fail to give a separate instruction on identity, because the
substance of this instruction was provided in the general
instructions.
Second, defendant argues that counsel should have requested a
separate instruction on alibi. However, we conclude that the
failure to instruct on alibi was not plain error “[b]ecause the
trial court's charge afforded the defendant the same benefits a
formal charge on alibi would have afforded[.]”
State v. Hood, 332
N.C. 611, 618, 422 S.E.2d 679, 682 (1992),
cert. denied, 507 U.S.
1055, 123 L. Ed. 2d 659 (1993). Thus, defendant was not prejudiced
by his counsel's failure to request an instruction on alibi.
Finally, defendant argues that counsel should have requested
a special instruction on impeachment of a witness by proof of a
crime, noting that Hardy had previously been convicted of criminal
charges. However, there is nothing in the record to suggest that
Hardy had any basis to be untruthful about defendant's identity as
the perpetrator of the crime, or any reason to doubt that histestimony was credible. Moreover, the jury was made aware of
Hardy's criminal record, and was instructed that: (1) they were the
“sole judges of the credibility of each witness”; (2) that they
were free to disbelieve a witness's testimony; and (3) that they
“should apply the same tests of truthfulness that you apply in your
everyday affairs,” including “any interest, bias or prejudice the
witness may have.” Thus, the failure to instruct on impeachment of
a witness did not amount to plain error, and defendant's counsel
was not ineffective for failure to request the instructions.
Defendant's final assignment of error is overruled.
Upon careful review of the record and the arguments presented
by the parties, we conclude defendant received a fair trial free
from error.
No error.
Chief Judge EAGLES and Judge HUDSON concur.
Report per Rule 30(e).
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