State v Brown, (03-96) 11/18/2003

Appeal by defendant from judgment dated 1 October 2002 by Judge Timothy L. Patti in Gaston County Superior Court. Heard in the Court of Appeals 29 October 2003.

Attorney General Roy Cooper, by Assistant Attorney General V. Lori Fuller, for the State.

Allen W. Boyer for defendant-appellant.

BRYANT, Judge.

    Sidney Brown (defendant) appeals a judgment dated 1 October 2002 entered consistent with a jury verdict finding him guilty of robbery with a dangerous weapon.
    At trial, Justin Marcus Boyd testified that, on the evening of 22 May 2002, he was standing in his neighbor Victoria Ross's yard at 710 West Carolina Avenue in Bessemer City, North Carolina when defendant arrived in a blue Honda automobile. Defendant exited the vehicle with a shotgun and chased Boyd down a dead-end road into a patch of woods. Defendant held the shotgun to the back of Boyd's head and demanded “everything” that he had. Defendant took $625.00 in cash and a two-way pager from Boyd's pockets before leaving onfoot.
    On cross-examination, defense counsel questioned Boyd about the source of the money allegedly taken by defendant. She also adduced that Boyd had stated to defense counsel at a preliminary hearing that he had only $500.00 in his pocket at the time of the robbery. Upon further questioning, Boyd acknowledged that defendant did not take his jewelry or his cellular phone.
    Victoria Ross testified that, on the night of 22 May 2002, she saw defendant chasing Boyd with a sawed-off shotgun and telephoned 911. She did not see defendant again that night, but she saw Boyd when he emerged from the woods. Boyd appeared to be “really shaken up,” saying “he could have killed me; he could have killed me.”
    Gaston County Police Officer Ken Burleson testified that he was dispatched to 710 West Carolina Avenue at 10:42 p.m. on 22 May 2002. He described Boyd as “upset” and “shaken up,” having “leaves, dirt, some other things on his clothing,” and looking as if he had “been l[]ying either in the yard or in some type of debris.” Boyd “was talking extremely fast” and needed time to calm down before giving a statement, which Burleson recounted as follows:
        [Boyd] indicated that [defendant] had exited a blue Honda with some type of long gun, indicating a shotgun . . . . He said that [defendant] pointed the gun in his chest. He ran from the area. He found some heavy foliage and tried to hide once he was able to get into a wooded area. He indicated that as he was l[]ying there that . . . defendant . . . found him and stuck the gun to the back of his head and began to search his pockets. . . . He indicated that as [defendant] was going through his pockets that[defendant] removed approximately $600[.00] from his front left-hand pocket and approximately $25[.00] out of his left back pocket. He took a blue Motorola two[-]way pager.

During cross-examination, Burleson acknowledged initially having some “doubts” about the case because “[t]here were some things that were not logical” and Victoria Ross and two other eyewitnesses appeared to be intoxicated. He clarified, however, that Boyd gave no sign of being intoxicated.
    Defendant offered no evidence. During the charge conference, defense counsel requested an instruction on assault with a deadly weapon as a lesser-included offense of robbery with a dangerous weapon but withdrew her request following a colloquy with the trial court.

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    The sole issue is whether defense counsel rendered ineffective assistance by failing to obtain a jury instruction on the lesser-included offense of assault with a deadly weapon.
    While conceding that ineffective assistance of counsel claims are not generally suited to review on direct appeal, defendant asserts that his counsel's error in this case appears on the face of the record. A claim of ineffective assistance of counsel is properly raised on direct appeal “when the cold record reveals that no further investigation is required,” and the claim “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). We agree withdefendant that his ineffective assistance claim may be fully reviewed based on the record before this Court.
    A defendant claiming a denial of the right to effective assistance of counsel is held to a familiar two-part standard:
        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 . . . .
State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985). A defendant is entitled to a jury instruction on a lesser-included offense only if there is “evidence 'from which the jury could reasonably find that the defendant committed the lesser offense.'” State v. Jordan, 321 N.C. 714, 719, 365 S.E.2d 617, 620 (1988) (quoting State v. Bagley, 321 N.C. 201, 210, 362 S.E.2d 244, 249 (1987)). Moreover, “the mere possibility that the jury might believe part but not all of a victim's testimony is insufficient to require an instruction on a lesser[-]included offense.” Id.
    Defendant's ineffective assistance claim based on defense counsel's abandonment of the request for an instruction on assault with a deadly weapon as a lesser-included offense is without merit. The transcript reveals that counsel initially sought the instruction based only on the possibility that the jury might credit Boyd's testimony about the assault but disbelieve his claim of a robbery. As this was an improper basis for an instruction as held by our Supreme Court in Jordan, see id., and the recordcontains no evidence supporting a finding that defendant assaulted Boyd without robbing him, no instruction on the lesser-included offense was required. Accordingly, this assignment of error is overruled. Defendant has expressly abandoned his remaining assignments of error.
    No error.
    Chief Judge EAGLES and Judge LEVINSON concur.
    Report per Rule 30(e).

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