STATE OF NORTH CAROLINA
v. Scotland County
No. 01 CRS 2317
AMBER M. SMITH
Attorney General Roy Cooper, by Elizabeth N. Strickland,
Assistant Attorney General, for the State.
Parish & Cooke, by James R. Parish, for defendant-appellant.
STEELMAN, Judge.
Defendant, Amber M. Smith, appeals a conviction of assault
with a deadly weapon with intent to kill inflicting serious injury.
For the reasons discussed herein, we find no error.
The State's evidence tended to show that defendant was
involved in a physical altercation with Rose Smith (Smith),
defendant's cousin by marriage. Police were called, and Laurinburg
Police Officer A. Spruill responded to the scene. When he arrived,
neither defendant nor Smith were there. Two bystanders, however,
informed the officers of their location. The officer first located
defendant, who appeared calm and without injury. Defendant
admitted to having been involved in a fight, and told him where shelast saw Smith. Officer Spruill asked defendant to accompany him
as he tried to locate Smith. Defendant accompanied the officer,
and he subsequently found Smith in front of a nearby store. Smith
was hysterical, and bleeding from the top of her head and the side
of her face. When the officer approached Smith, she said, “Amber
did it, she tried to kill me.” Officer Spruill stepped back to his
vehicle, where defendant sat, and asked her if she had assaulted
Smith. Defendant stated that she had. Smith was subsequently
transported by ambulance to the hospital, where she received ten
staples in the top of her head, sixteen stitches to the side of her
face, five stitches in her neck and five stitches in her shoulder.
Later, Officer Chris Strickland, found the knife used by
defendant in the assault some 300-400 feet from the location that
Officer Spruill had originally found defendant. The knife had
dried blood on it, and was described as a “six-inch lock blade.”
Defendant had previously threatened Smith with bodily harm
after Smith began to date defendant's friend, Neal McNair (McNair).
McNair and defendant had each sworn out warrants against each other
for communicating threats and had appeared before the Scotland
County District Court just before the instant assault occurred.
While in court, the assistant district attorney and the presiding
district court judge recalled hearing defendant make threats
against Smith in court. Contrary to the judge and district
attorney's instruction to the three not to “mess with each other,”
after leaving the courthouse, defendant verbally and physically
assaulted Smith. Defendant's evidence tended to show that she had previously
dated McNair. Defendant denied being upset by Smith dating McNair.
She maintained that Smith was the aggressor in the 26 March 2001
assault. She stated that Smith called her names, “pick[ed] on her”
during their appearance in district court, waited for her after
court and followed her to a convenience store. Defendant stated
that Smith announced that she wanted to fight and hit defendant
first. The fight escalated when defendant saw Smith pull a
“pointed object” from her pocket. Defendant testified that she
only pulled her knife out and cut Smith in self-defense. She noted
that Smith was known to carry a box cutter and ice pick. Defendant
stated that she did not intend to hurt or kill Smith, and that she
did not know that Smith was hurt in the altercation.
Defendant's friend, Denise Lester (Lester), who was with the
defendant on 26 March 2001 corroborated defendant's testimony.
Lester further testified, however, that she did not hear any of the
threats allegedly made by either of the women during court. Lester
noted that Smith did pull something shiny out of her pocket, but
could not identify what the object was. Lester testified that she
saw Smith's face bleeding and saw red marks on defendant's face
after the fight.
The jury found defendant guilty as charged. The trial court
sentenced defendant to 85 to 111 months in prison. Defendant
appeals.
In her first assignment of error, defendant argues that the
trial court erred in denying her spontaneous, pro se pre-trialmotion to continue to allow her time to retain counsel. Defendant
contends that court-appointed counsel failed to discuss her case
with her and counsel was not adequately prepared for trial. We
disagree.
Generally, a motion to continue is addressed to the sound
discretion of the trial court, and reviewable only upon a showing
of an abuse of that discretion. 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). When the motion to continue is based on an asserted
constitutional right, the trial court's ruling is a reviewable
question of law. Id. However, as explained, by our Supreme Court
in Taylor, “even if the motion raises a constitutional issue, a
denial of a motion to continue 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.
Counsel had been appointed more than a year before this matter
came on for trial. At no time prior to this matter being called
for trial did defendant express any dissatisfaction with counsel's
representation. While defendant contends that she was unaware that
she could retain counsel, our laws require that at the time a
defendant makes her initial appearance in court, her rights to
representation be thoroughly explained. The record does not show
that defendant was not apprised of these rights in this case. As
noted by defendant's Order of Assignment or Denial of Counsel and
Affidavit of Indigency, defendant applied for and accepted court-appointed counsel. Moreover, and most significantly, defendant has
failed to establish how retained counsel could have better prepared
for trial had the continuance been granted or that she was
prejudiced by the denial of her motion. Accordingly, we conclude
that the trial court did not err in denying defendant's motion to
continue. This assignment of error is without merit.
In her second assignment of error, defendant argues that trial
counsel rendered ineffective assistance of counsel by failing to
cross-examine Officer Spruill in the presence of the jury about
defendant's statement that she attacked Smith because Smith had a
knife. We disagree.
To establish an ineffective assistance of counsel claim,
defendant must show: (1) that counsel's performance fell below an
objective standard of reasonableness; and (2) that the error
committed was so serious that a reasonable probability exists that
the trial result would have been different absent the error. State
v. Blakeney, 352 N.C. 287, 307-08, 531 S.E.2d 799, 814-15 (2000),
cert. denied, 531 U.S. 1117, 148 L. Ed. 2d 780 (2001) (citing
Strickland v. Washington, 466 U.S. 668, 691-96, 80 L. Ed. 2d 674,
696-99 (1984) and State v. Braswell, 312 N.C. 553, 561-62, 324
S.E.2d 241, 248 (1985)).
In Braswell, our Supreme Court explained that the defendant
must show more than mere deficient performance by counsel, but that
“'counsel made errors so serious that counsel was not functioning
as the “counsel” guaranteed the defendant by the Sixth Amendment.'”
312 N.C. at 562, 324 S.E.2d at 248 (quoting Strickland, 466 U.S. at687, 80 L. Ed. 2d at 693). Mere allegations surrounding matters of
trial tactics, without more, are not sufficient to meet the
Strickland test. State v. Piche, 102 N.C. App. 630, 638, 403 S.E.2d
559, 564 (1991).
Defendant is unable to make the requisite showing to be
entitled to relief. Although counsel may not have inquired of the
officer as to defendant's comments that she attacked Smith out of
self-defense, evidence was already before the jury in that regard.
Both defendant and Lester testified that they saw Smith take
something shiny out of her pocket during the fight. In addition,
defendant testified that Smith was known to carry a box cutter and
ice pick. Further, defendant admitted to cutting Smith in the head
and face with a knife. Here, counsel's failure to question the
responding officer was not an error “'so serious that counsel was
not functioning as the “counsel” guaranteed the defendant by the
Sixth Amendment.'” See Braswell, 312 N.C. at 562, 324 S.E.2d at
248 (quoting Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693).
Further, in light of her own testimony and other evidence before
the court, defendant cannot show that but for counsel's alleged
error, there would have been a different result. Thus, this
assignment of error without merit.
NO ERROR.
Judges WYNN and TYSON concur.
Report per Rule 30(e).
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