STATE OF NORTH CAROLINA
v. Buncombe County
No. 98 CRS 63978
GEORGE LEE FARLOW, JR.
Attorney General Roy Cooper, by Special Deputy Attorney
General W. Richard Moore, for the State.
James N. Freeman, Jr., for defendant-appellant.
LEVINSON, Judge.
Defendant was indicted for solicitation to commit the felony
of first degree murder. This matter was tried before a jury during
the 20 September 1999 criminal session of Buncombe County Superior
Court. Defendant was found guilty as charged, and sentenced to a
minimum of 120 months and a maximum of 153 months on 23 September
1999. On 22 April 2002, defendant filed a petition for writ of
certiorari, said petition being allowed on 14 May 2002.
Sean Lambert was seeking a place to set up his mobile home,
and defendant allowed Lambert to place his mobile home on
defendant's land. Approximately three or four months thereafter,
defendant and Lambert discussed killing their ex-wives. Lambert
thought defendant was not serious until several months later whendefendant made Lambert an offer in exchange for Lambert to kill
defendant's ex-wife.
Lambert contacted Detective John Cabe of the Buncombe County
Sheriff's Department concerning the offer. On 24, 25 and 29
September 1998, arranged meetings or phone calls between Lambert
and defendant occurred with Detective Cabe either recording or
monitoring the conversations.
At trial, defendant's ex-wife, Mitzi Farlow Fisher, testified
that defendant told her if she ever tried to leave him, he would
kill her. Fisher testified defendant shot into the vehicle she was
driving on 16 August 1996 and was convicted of discharging a
firearm into an occupied vehicle in April, 1997. Fisher also
testified she had filed several charges against defendant resulting
in his convictions for communicating threats and assault on a
female in 1997.
Cynthia Delametter, defendant's girlfriend from 1996 until
1999, testified on behalf of the defendant. Delametter testified
that during September 1998, defendant was being treated for
clinical depression and was taking prescription medication for his
depression. In addition, Delametter testified that defendant did
not appear to be upset, frustrated or angry on the evening of 29
September 1998.
First, defendant argues that he received ineffective
assistance of counsel because his trial counsel failed to object to
Fisher's testimony concerning the judgment for his conviction of
discharging a firearm into a vehicle Fisher occupied. We disagree. Claims for ineffective assistance of counsel must ordinarily
be presented in a motion for appropriate relief. State v. Fair,
354 N.C. 131, 166, 557 S.E.2d 500, 524 (2001), cert. denied, 535
U.S. 1114, 153 L. Ed. 2d 162 (2002). However, such claims may be
addressed on direct appeal “when the cold record reveals that no
further investigation is required, i.e., claims . . . may be
developed and argued without such ancillary procedures as the
appointment of investigators or an evidentiary hearing.” Id. In
the instant case, the record is sufficient from which defendant's
claim may be addressed on direct appeal.
North Carolina follows a two prong test to determine whether
a defendant has received ineffective assistance of counsel.
Defendant must first “show that counsel's performance fell below an
objective standard of reasonableness as defined by professional
norms.” State v. Lee, 348 N.C. 474, 491, 501 S.E.2d 334, 345
(1998). Second, defendant “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.
Defendant asserts that the first prong is satisfied because
his trial counsel failed to object to testimony made inadmissible
by operation of the North Carolina Rules of Evidence. Rule 404(b)
makes evidence of “other crimes, wrongs, or acts” inadmissible “to
prove the character of a person in order the show that he acted in
conformity therewith,” but admissible for other purposes “such as
proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake, entrapment or accident.” N.C.G.S.§ 8C-1, Rule 404(b) (2001). “The State may not introduce prior
crimes evidence under Rule 404(b) by introducing the bare fact that
defendant was previously convicted of a crime, even if defendant's
previous conviction was for the same crime for which he or she is
currently charged.” State v. Wilkerson, 148 N.C. App 310, 327, 559
S.E.2d 5, 16 (Wynn, J., dissenting) (emphasis added), dissent
adopted per curiam, 356 N.C. 418, 571 S.E.2d 583 (2002). However,
“evidence eliciting details of acts that formed the basis of prior
convictions may be elicited under Rule 404(b) even though such
evidence may be barred under Rule 609 [to impeach defendant].” Id.
at 323, 559 S.E.2d at 13 (Wynn, J., dissenting), dissent adopted
per curiam, 356 N.C. 418, 571 S.E.2d 583.
In the instant case, the State did not merely offer “the bare
fact” of defendant's prior conviction. Defendant's ex-wife, Mitzi
Farlow Fisher, testified that defendant told her that he would kill
her if she tried to leave him, and she testified about the incident
where defendant shot into a vehicle she was occupying. In addition
to this testimony, Fisher testified that defendant had been found
guilty of discharging a gun into a vehicle she was occupying.
Given that Fisher's testimony provided far more information to the
jury than merely “the bare fact” of defendant's conviction, it was
not clearly objectionable. Accordingly, the failure to object does
not rise to the level of unreasonableness required for a showing of
ineffective assistance of counsel.
Even assuming arguendo that defendant's attorney was remiss in
failing to object to Fisher's testimony about the prior conviction,we conclude that defendant has not met his burden with respect to
the second prong of the ineffective assistance of counsel test
because there is not a reasonable probability that the trial result
would have been different absent the alleged error. The testimony
about defendant's prior conviction was a small part of the State's
case against the defendant. Moreover, the trial court provided a
limiting instruction, contemporaneous with the testimony,
instructing the jury to only consider the evidence about the
shooting at the vehicle occupied by Fisher for the purpose of
determining defendant's motive, intent, absence of mistake, or
entrapment.
Therefore, defendant has not demonstrated that his attorney's
failure to object to the testimony about defendant's prior
conviction rises to the level of ineffective assistance of counsel.
Second, defendant argues that the trial court erred in failing
to find a mitigating factor - clinical depression - pursuant to
N.C.G.S. § 15A-1340.16(e)(3) (2001). We disagree.
N.C.G.S. § 15A-1340.16(e)(3) allows the court to consider as
a mitigating factor that “[t]he defendant was suffering from a
mental or physical condition that was insufficient to constitute a
defense but significantly reduced the defendant's culpability for
the offense.” Evidence that the condition exists, standing alone,
is insufficient to mandate consideration. See State v. Jackson,
119 N.C. App. 285, 291, 458 S.E.2d 235, 240 (1995). The burden of
proving the existence of a mitigating factor, by the preponderance
of the evidence, rests with the defendant. N.C.G.S. § 15A-1340.16(a) (2001).
In the instant case, defendant relies upon the testimony of
his former girlfriend, Delametter, to evidence the existence of
depression during the relevant time period. Delametter's testimony
-that defendant was depressed and was taking a lot of prescription
medicine - was insufficient to establish proof of significantly
reduced culpability. Delametter testified that on the night of the
last arranged meeting between Lambert and defendant, defendant did
not seem angry or upset. Furthermore, during the sentencing
hearing, defendant did not request that the trial court consider
evidence of his depression as a mitigating factor.
Defendant failed to meet his burden of showing that the
existence of the condition significantly reduced his culpability.
No error.
Chief Judge EAGLES and Judge BRYANT concur.
Report per Rule 30(e).
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