State v Duggins and Moore, (03-86) 10/21/2003

Appeal by defendants from order entered 13 November 2002 by Judge L. Todd Burke in Forsyth County Superior Court. Heard in the Court of Appeals 29 September 2003.

Attorney General Roy Cooper, by Assistant Attorney General Anne M. Middleton, for the State

Rosemary Godwin for defendant-appellants.

EAGLES, Chief Judge.

    On 21 October 1996, defendants Donna Jean Duggins and Roberta Jean Moore were indicted on charges of attempted first degree murder, assault with a deadly weapon with intent to kill inflicting serious injury, conspiracy to commit murder and solicitation to commit murder. The victim was Dean Harold Duggins, the husband of defendant Donna Jean Duggins. It was alleged that defendantsconspired with Edward Morgan to kill Mr. Duggins. On 29 May 1996, Edward Morgan assaulted Mr. Duggins with a hammer, allegedly with the intent to kill him. However, Mr. Duggins survived the attack.     The defendants' cases were consolidated for trial at the 21 April 1997 Criminal Session of Forsyth County Superior Court. During the trial, the prosecution presented testimony from Edward Morgan, Casey Kirkman, and Charles Hance regarding incriminating statements made by defendant Moore. Edward Morgan testified that defendant Moore asked him to kill Mr. Duggins and that together, he and defendant Moore planned Mr. Duggins' murder. Casey Kirkman testified that defendant Moore told him that “she was getting Eddie to come down to get Dean,” that defendant Moore “told [him] everything,” and that defendant Moore told him “they [Jeannie and Donna] were going to get some guy to get Dean.” Charles Hance testified that defendant Moore told him to stick to the story he originally told police when Edward Morgan turned himself in. Defendant Duggins testified that defendant Moore “lies sometimes.” Defendants' counsel did not object to any of the above statements.
    On 30 April 1997, both defendants were convicted of attempted first degree murder, assault with a deadly weapon with intent to kill inflicting serious injury, conspiracy to commit murder and solicitation to commit murder. Both defendants were sentenced to two consecutive terms of 157 to 198 months imprisonment. This Court found no error on appeal. See State v. Moore, 131 N.C. App. 65, 505 S.E.2d 172 (1998), cert. denied, 351 N.C. 190, 541 S.E.2d 723 (1999).    On 14 September 2001, defendants filed a motion for appropriate relief, alleging ineffective assistance of trial counsel. The motion was denied by order entered 13 November 2002. From this order, defendants appeal.
    Defendants' sole argument on appeal is that the trial court erred in denying their motion for appropriate relief because they received ineffective assistance of counsel at trial. Specifically, defendants claim their counsel was ineffective for failing to object to joinder. Defendants contend that if their trials had been severed, defendant Moore's statements to Edward Morgan, Casey Kirkman and Charles Hance, implicating defendant Duggins, would have been deemed inadmissible hearsay if offered against defendant Duggins. Furthermore, the jury in defendant Moore's trial would not have heard defendant Duggins' testimony as to defendant Moore's reputation for lying. By allowing joinder, defendants argue that they were deprived of a fair trial because highly prejudicial evidence was admitted that would have otherwise been deemed inadmissible.
    We note initially that “[t]he court's ruling on a motion for appropriate relief pursuant to G.S. 15A-1415 is subject to review: . . . (3) If the time for appeal has expired and no appeal is pending, by writ of certiorari.” G.S. § 15A-1422(c)(3)(emphasis added). Here, defendants' direct appeal concluded in 1999, over one year prior to the filing of the motion for appropriate relief. Consequently, the trial court's ruling on defendants' motion for appropriate relief is reviewable only by writ of certiorari. TheState has filed a motion to dismiss defendant's appeal, asserting that, pursuant to G.S. § 15A-1444, defendant has no statutory right of appeal. Defendants have responded by petitioning for writ of certiorari. We elect to treat defendants' appeal as a petition for writ of certiorari and address the merits. See N.C.R. App. P. 2.
    To demonstrate ineffective assistance of counsel, defendants must show that their counsel's performance was deficient or that their case was prejudiced from their counsel's alleged deficient performance. State v. Braswell, 312 N.C. 553, 563, 324 S.E.2d 241, 248 (1985). Here, defendants argue that their counsel was ineffective because he failed to object to joinder of their case, and as a result, evidence that would have been inadmissible in separate trials was admitted in their joint trial. After careful review of the record, we find no prejudicial error.
    First, we conclude that defendant Moore's statements to Edward Morgan would have been admissible even if the trials had been severed. This Court has stated:
        Rule 801(d) of the North Carolina Rules of Evidence provides that “[a] statement is admissible as an exception to the hearsay rule if it is offered against a party and it is . . . (E) a statement by a coconspirator of such party during the course and in furtherance of the conspiracy.” Statements of coconspirators are admissible against other members of the conspiracy so long as a prima facie case of conspiracy is established independently of the statements sought to be admitted. A coconspirator's statement may be admitted before the establishment of a prima facie case of conspiracy conditioned upon a subsequent showing of conspiracy before the close of the State's evidence. In order to use a coconspirator's statement against other coconspirators, the State must show that “'(1)a conspiracy existed; (2) the acts or declarations were made by a party to it and in pursuance of its objectives; and (3) while it was active, that is, after it was formed and before it ended.'”

State v. Withers, 111 N.C. App. 340, 344, 432 S.E.2d 692, 695 (citations omitted), disc. review denied, 335 N.C. 180, 438 S.E.2d 207 (1993). Here, the State made a prima facie case of conspiracy. Defendant Moore's statements to Edward Morgan were made during the course of and in furtherance of the conspiracy. Accordingly, this evidence was admissible against both defendants.
    Next, we conclude the admission of the testimony of Casey Kirkman and Charles Hance did not result in prejudicial error. Error in this context is prejudicial only where there is a reasonable possibility that a different result would have been reached in the absence of the error. G.S. § 15A-1443(a). In light of Edward Morgan's testimony, we conclude the testimony of Casey Kirkman and Charles Hance would not have changed the outcome of the trial; therefore, any error was harmless.
    Finally, with regard to defendant Duggins' testimony as to defendant Moore's reputation for truthfulness, this Court previously concluded that “there was overwhelming evidence of the guilt of defendant Moore . . . .” Moore, 131 N.C. App. at 72, 505 S.E.2d at 177. Assuming arguendo that defendant Duggins' testimony would have been inadmissible in a separate trial, we conclude the error, if any, would be harmless.
    For the reasons stated, we affirm the judgment of the trial court.    Affirmed.
    Judges BRYANT and LEVINSON concur.
    Report per Rule 30(e).

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