Appeal by defendant from judgment entered 24 August 1999 by
Judge Claude S. Sitton in Mecklenburg County Superior Court. Heard
in the Court of Appeals 28 April 2004.
Attorney General Roy Cooper, by Assistant Attorney General C.
Norman Young, Jr., for the State.
RUDOLF MAHER WIDENHOUSE & FIALKO, by Andrew G. Schopler, for
defendant-appellant.
TIMMONS-GOODSON, Judge.
Maurice Lacato Phifer (“defendant”) appeals his conviction of
assault with a deadly weapon with intent to kill inflicting serious
injury. For the reasons stated herein, we hold defendant received
a trial free of prejudicial error.
The State's evidence presented at trial tends to show the
following: Sometime before June of 1996, defendant's wife,
Cassandra Phifer (“Cassandra”), began a sexual relationship with a
former high school friend, John Lewis Southerland (“Southerland”).
Defendant was unaware of Cassandara's relationship with
Southerland. In June of 1996, defendant and Cassandra separated,
and defendant moved into a different apartment. In October of
1996, defendant and Cassandra reconciled. Defendant returned to
the apartment he had previously shared with Cassandara. However,
unbeknownst to defendant, Cassandra continued her sexual
relationship with Southerland.
On 25 June 1997, Cassandra and Southerland were spending the
afternoon together at the home Cassandra shared with defendant.
Shortly after Cassandra and Southerland had sexual intercourse,
defendant returned home with a friend, Chris Young (“Young”).
Cassandra instructed Southerland to hide in the bedroom closet
while she talked to defendant. She then went to the front of the
house and laid down on a couch. When defendant expressed his
surprise at Cassandra's presence at the home, Cassandra told
defendant she felt sick and thought she might be pregnant. She
then asked defendant to go to the grocery store to buy her a
pregnancy test and some ginger ale. Defendant and Young walked outthe front door, and Cassandra locked it behind them.
A moment later, defendant returned and knocked on the front
door. Cassandra let defendant inside, and asked him if he had
forgotten something. Defendant asked Cassandra where their
daughter was, and Cassandra told defendant the child was in her
sister's care. When defendant noticed Cassandra was nervous and
was continually looking over her shoulder, defendant asked
Cassandra, “you ain't got no other ****** up in here, do you?”
Cassandra responded that she did not. Defendant then picked up a
bag of chips and began walking through the other rooms of the
house. Cassandra followed defendant to the bedroom where
Southerland was hiding. Cassandra implored that defendant “just go
to the store and get the stuff.” Defendant stated that if no one
else was in the home, he would look in the closet. Cassandra told
defendant that he did not need to look in the closet. Defendant
then told Cassandra he was going to get his gun.
Cassandra followed defendant to the bathroom, where
defendant's gun was located. Cassandra tried to prevent defendant
from entering the bathroom, telling him that he did not need a gun.
A struggle ensued, and Cassandra's bracelet fell off and her shirt
was torn. Defendant managed to locate and pick up his 9mm handgun.
Defendant and Cassandra then returned to the bedroom. After
Southerland heard defendant state “I'm about to shoot up the
closet,” Southerland decided to exit the closet. Just as
Southerland emerged from the closet, defendant reached for the
closet door. Southerland and defendant bumped into one another,
and defendant's gun went off. Southerland was shot in the rightside of his neck. As a result of his injuries, Southerland is now
quadriplegic.
Immediately after the shooting, defendant walked past
Cassandra and told her, “you're a whore, you're next.” At trial,
defendant testified that he then fled the scene in his vehicle and
dropped Young off “because at that time I didn't know where I was
going or what was going on.” After dropping off Young, defendant
drove his vehicle until it ran out of gas. The next day, defendant
turned himself in to the Charlotte-Mecklenburg Police Department.
Defendant does not remember what happened to the gun after the
shooting.
Defendant was indicted and tried for assault with a deadly
weapon with intent to kill inflicting serious injury. On 20 August
1999, the jury returned a guilty verdict, on 23 August 1999, the
trial court sentenced defendant to 100 months to 129 months
incarceration. On 24 August 1999, the trial court ordered the
exhibits from the trial destroyed, pending notice of appeal within
thirty days. Defendant did not thereafter file an appeal.
However, on 28 June 2002, this Court granted defendant's “Petition
for a Writ of Certiorari,” thereby allowing the instant appeal to
proceed.
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As an initial matter, we note that defendant's brief contains
arguments supporting only five of his original thirteen assignments
of error. Pursuant to North Carolina Rule of Appellate Procedure
28(b)(6) (2004), the eight omitted assignments of error are deemed
abandoned. Therefore, we limit our present review to thoseassignments of error properly preserved by defendant for appeal.
[1] Defendant first argues that he received ineffective
assistance of counsel at trial because his counsel failed to
request a jury instruction on self-defense, defense of a third
party, and defense of habitation. Defendant asserts that his trial
counsel's performance was deficient and resulted in prejudice to
defendant. We disagree.
We note initially that although the preferred method for
raising ineffective assistance of counsel is by motion for
appropriate relief made in the trial court, a defendant may bring
his ineffective assistance of counsel claim on direct appeal. On
direct appeal, defendant's ineffective assistance of counsel claim
“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,
535 U.S. 1114 (2002).
A successful ineffective assistance of counsel claim requires
satisfaction of the familiar two-prong test established in
Strickland v. Washington, 466 U.S. 668 (1984) and adopted by our
Supreme Court in
State v. Braswell, 312 N.C. 553, 324 S.E.2d 241
(1985). First, defendant must establish that his counsel's
performance was deficient in that it fell below an “objective
standard of reasonableness.”
Braswell, 312 N.C. at 561-62, 324
S.E.2d at 248. Second, defendant must establish that a reasonable
probability exists that but for the error, the result ofdefendant's trial would have been different.
Id. at 563, 324
S.E.2d at 248.
During the charge conference in the instant case, the
following exchange occurred between the trial court and defendant's
counsel:
THE COURT: Now at this point the Court
also will be making inquiry of
the State and the defendant in
regard to the evidence and
whether or not, particularly
the defendant, whether he
contends the Court based upon
this evidence should instruct
as to self-defense, there being
some evidence from the
defendant's wife that he pushed
or attempted to push or
whatever the evidence reflects
or shows.
Does the defendant
contend and request self-
defense?
TRIAL COUNSEL: May I have a moment to confer?
(Pause in Proceedings)
TRIAL COUNSEL: We will not be asking for that
charge.
THE COURT: You're saying then and telling
the Court you're not requesting
that, contending that is not a
part of his defense and the
Court should not instruct, is
that correct?
TRIAL COUNSEL: That is correct.
THE COURT: Now the same, the Court will be
asking as to the defense of
habitation of one's residence.
Is there any request for that
instruction?
TRIAL COUNSEL: Let me confer.
(Pause in Proceedings)
TRIAL COUNSEL: We will not be requesting that,
Your Honor.
THE COURT: You're indicating that you do
not desire that to be
instructed to the jury as being
a part of the evidence and a
part of the defense in the
case?
TRIAL COUNSEL: That is correct.
THE COURT: The Court will make further
inquiry of the defendant
whether or not he desires a
defense of lawful defense of a
third person?
TRIAL COUNSEL: If I might have just a moment.
(Pause in Proceedings)
TRIAL COUNSEL: We will not be. Thank you.
THE COURT: Are you asking the Court not to
instruct based upon the
possible evidence in the case
and the strategy of the
defense?
TRIAL COUNSEL: That is correct.
The trial court then instructed the jury only as to defendant's
requested defense of accident.
The elements of self-defense are:
(1) it appeared to defendant and he believed
it to be necessary to kill the [victim] in
order to save himself from death or great
bodily harm; and
(2) defendant's belief was reasonable in that
the circumstances as they appeared to him at
that time were sufficient to create such a
belief in the mind of a person of ordinary
firmness; and
(3) defendant was not the aggressor in
bringing on the affray, i.e., he did not
aggressively and willingly enter into the
fight without legal excuse or provocation; and
(4) defendant did not use excessive force,
i.e., did not use more force than was
necessary or reasonably appeared to him to be
necessary under the circumstances to protect
himself from death or great bodily harm.
State v. Larry, 345 N.C. 497, 518, 481 S.E.2d 907, 919 (1997).
The elements of self-defense are applicable to the defense of
others. In general, one may use defensive force to protect another
if that person “believes it to be necessary to prevent death or
great bodily harm to the other 'and has a reasonable ground for
such belief, the reasonableness of this belief or apprehension to
be judged by the jury in light of the facts and circumstances as
they appeared to the defender at the time of the [use of defensive
force].'”
State v. Perry, 338 N.C. 457, 466, 450 S.E.2d 471, 476
(1994) (quoting
State v. Terry, 337 N.C. 615, 623, 447 S.E.2d 720,
724 (1994)). “'The right to kill in defense of another cannot
exceed such other's right to kill in his own defense as that
other's right reasonably appeared to the defendant.'”
Id.
The elements of defense of habitation are also similar to
those governing self-defense. N.C. Gen. Stat. § 14-51.1(a) (2003)
provides as follows:
A lawful occupant within a home or other place
of residence is justified in using any degree
of force that the occupant reasonably believes
is necessary, including deadly force, against
an intruder to prevent a forcible entry into
the home or residence or to terminate the
intruder's unlawful entry (i) if the occupant
reasonably apprehends that the intruder may
kill or inflict serious bodily harm to the
occupant or others in the home or residence,
or (ii) if the occupant reasonably believes
that the intruder intends to commit a felony
in the home or residence.
Defendant contends that his trial counsel's performance wasdeficient because each of the above-detailed defenses was supported
by the evidence, and therefore no reasonable attorney would
withhold consideration of a valid legal defense from the jury.
However, given the great amount of evidence challenging the
credibility of defendant's claim that he was acting in defense of
himself, his estranged wife, and her home, we conclude that the
decision by defendant's trial counsel to decline the trial court's
offer to instruct the jury on the pertinent defenses was
reasonable.
Defendant testified that he searched the house “pretty much
for [his] own personal security,” and that his first thought when
Southerland exited the closet was that Southerland “was in my house
to do my family harm.” However, defendant also testified that
while searching the home, “me being hungry I reached in the kitchen
[and] got me a bag of chips.” He further testified that he “didn't
suspect there was still someone in the bedroom area” when he
returned to the home, and that the gun went off after he and
Southerland “bumped into each other.” Cassandra testified that she
responded “no” after defendant asked her, “you ain't got no other
****** up in here, do you?” Cassandra also testified that while in
the bedroom, she told defendant, “you don't have to look in the
closet, just go to the store,” to which defendant replied, “well,
I'm going to get my gun.” Cassandra further testified that on the
way back to the bedroom after retrieving the gun, defendant looked
“confused and upset,” and pushed her out of the way after she
struggled with defendant and said, “Maurice, you don't need no
gun.” Finally, Cassandra testified that after shootingSoutherland, defendant walked past her and said, “you're a whore,
you're next.” Southerland testified that before he exited the
closet, he heard defendant say, “I'm about to shoot up the closet.”
As defendant correctly notes, strategic and tactical decisions
such as whether to request an instruction or submit a defense are
“within the 'exclusive province' of the attorney.”
State v. Rhue,
150 N.C. App. 280, 290, 563 S.E.2d 72, 79 (2002),
appeal dismissed
and disc. review denied, 356 N.C. 689, 578 S.E.2d 589 (2003).
Trial counsel are thereby given wide latitude in their decisions to
develop a defense, and “[s]uch decisions are generally not second-
guessed by our courts.”
State v. Lesane, 137 N.C.
App. 234, 246,
528 S.E.2d 37, 45,
appeal dismissed and disc. review denied, 352
N.C. 154, 544 S.E.2d 236 (2000). In the instant case, defendant's
trial counsel chose not to request that the trial court instruct
the jury on defenses that were contradicted by the great weight of
the evidence as well as the testimony of all witnesses but
defendant. We conclude that the trial counsel's decision was not
so objectively unreasonable that “'the trial [became] a farce and
mockery of justice.'”
State v. Montford, 137 N.C. App. 495, 502,
529 S.E.2d 247, 252,
cert. denied, 353 N.C. 275, 546 S.E.2d 386
(2000) (quoting
State v. Pennell, 54 N.C. App. 252, 261, 283 S.E.2d
397, 403,
disc. review denied and appeal dismissed, 304 N.C. 732,
288 S.E.2d 804 (1982)). Thus, we overrule defendant's argument
that he received ineffective assistance of counsel when his counsel
failed to request jury instructions on self-defense, defense of
habitation, and defense of others.
[2] Defendant next assigns error to his trial counsel'sfailure to file a notice of appeal on behalf of defendant.
Defendant argues that his trial counsel's failure to file an appeal
constituted deficient performance that resulted in prejudice to
defendant.
We note initially that in a footnote contained within his
brief, defendant requests this Court take judicial notice of the
fact that trial counsel did not consult defendant regarding his
right to an appeal. Defendant's trial counsel denied this
allegation in an affidavit attached to the State's response to
defendant's petition for writ of certiorari. This Court's review
of matters before it is based “solely upon the record on appeal and
the verbatim transcript[.]” N.C.R. App. P. 9 (2004). It is the
appellant's responsibility to ensure that the record before this
Court is complete and in proper form.
State v. Thigpen, 10 N.C.
App. 88, 92, 178 S.E.2d 6, 9 (1970). Beyond defendant's bald
assertion that his trial counsel “neglected even to consult with
[defendant] about his right to an appeal,” the record before us
contains no evidence pertaining to conversations between defendant
and his trial counsel concerning defendant's decision to appeal.
Therefore, we refuse to take judicial notice of this fact.
Assuming
arguendo that defendant requested his trial counsel
to file notice of appeal and that trial counsel neglected to do so,
defendant has nevertheless failed to convince this Court that he
was prejudiced by the alleged deficient performance. As defendant
correctly states, “[t]he usual remedy for a failure to file notice
of appeal is to reinstate the appeal.” This Court reinstated
defendant's appeal in the 28 June 2002 Order granting defendant's“Petition for a Writ of Certiorari.” However, defendant contends
that because the alleged deficient performance precipitated
“further injury” to defendant, namely the destruction of exhibits,
“the remedy should be a new trial or at least a hearing on a Motion
for Appropriate Relief.” We find no authority to support this
contention, and for the reasons discussed below, we fail to see how
defendant was injured by the destruction of the exhibits. Thus, we
overrule defendant's argument that he received ineffective
assistance of counsel because his counsel failed to file appeal on
his behalf.
[3] Defendant argues alternatively that if his trial counsel's
failure to appeal was not ineffective assistance of counsel, the
destruction of evidence as a result of the failure to file an
appeal was prejudicial to him. Defendant argues that the trial
court committed reversible error by issuing the order to destroy
exhibits #1-47 because the destruction of the evidence “deprived
defendant of his rights to,
inter alia, due process and fair
appellate review of his conviction and sentence.”
Rule 14 of the General Rules of Practice For the Superior and
District Courts of North Carolina (2003) provides:
Once any item of evidence has been introduced,
the clerk (not the court reporter) is the
official custodian thereof and is responsible
for its safekeeping and availability for use
as needed at all adjourned sessions of the
court and for appeal.
. . . .
Whenever any models, diagrams, exhibits, or
materials have been offered into evidence and
received by the clerk, they shall be removed
by the party offering them, except as
otherwise directed by the court, within 30days after final judgment in the trial court
if no appeal is taken; if the case is
appealed, within 60 days after certification
of a final decision from the appellate
division. At the time of removal a detailed
receipt shall be given to the clerk and filed
in the case file.
If the party offering an exhibit which has
been placed in the custody of the clerk fails
to remove such article as provided herein, the
clerk shall write the attorney of record (or
the party offering the evidence if he has no
counsel) calling attention to the provisions
of this rule. If the articles are not removed
within 30 days after the mailing of such
notice, they may be disposed of by the clerk.
In the instant case, the trial court issued an Order of
Disposition of Physical Evidence requiring destruction of forty-
seven of the “articles introduced into evidence,” including the
videotape defendant asserts is “crucial” to the instant appeal.
Although the order was entered 24 August 1999, the day after
defendant was sentenced, defendant does not contend nor do we
conclude the evidence was destroyed or removed prior to the thirty-
day period required by Rule 14. In fact, the bottom of the order
reads:
NOTE***THIS EVIDENCE TO BE HELD THIRTY DAYS
PENDING NOTICE OF APPEAL
(emphasis in original). Nevertheless, assuming
arguendo that
defendant and/or his trial counsel failed to receive written
notification of the destruction of the exhibits, for the reasons
discussed below, we conclude any such error by the trial court was
harmless.
Defendant contends that this Court should adopt the rule of
Adams v. Transportation Ins. Co., 845 S.W.2d 323 (1992). In
Adams,
the Texas Court of Appeals reversed and remanded a worker'scompensation claim, holding that the loss of exhibits used during
the trial made it impossible for the court to make a proper
determination of whether the trial court's finding was against the
weight and preponderance of the evidence.
Id. at 327. However, we
remind defendant that the decisions of the Texas Court of Appeals
are not binding upon this Court or other courts in this state.
Furthermore, in the instant case, defendant is not challenging a
finding of fact made by the trial court or the trial court's
decision to allow the introduction of the destroyed exhibits, nor
is defendant challenging his trial counsel's decision not to object
to the introduction of the destroyed exhibits. Instead, defendant
asserts that the exhibits, specifically his videotaped statement,
“could well have determined whether [defendant's] appellate
arguments carried the day.” Specifically, defendant contends that
if this Court could review the videotape, his ineffective
assistance of counsel argument might be strengthened.
The videotaped statement defendant refers to was taken by
Charlotte-Mecklenburg Police Department Officer Robert Buening
(“Officer Buening”) on 26 June 1999, the day after the shooting.
Officer Buening testified at trial that during his taped interview
with defendant, defendant admitted being in the bedroom when
Southerland was shot but did not admit or deny shooting
Southerland. Officer Buening also testified that defendant stated
that he had handled a BB or pellet gun sometime before Southerland
was shot, but that he did not have the BB or pellet gun when
Southerland was shot. Although the videotape was played for the
jury, when questioned at trial about the statements he made on thevideotape, defendant could not recall discussing a BB or pellet
gun. However, he did recall being “still upset, nervous” when he
made the statement to Buening. On cross-examination, defendant
testified that:
The statement I gave them was -- I don't want
to say true or false or accurate. I was
telling them how I felt that things had went
the day before.
On re-direct examination, defendant admitted that the videotaped
statement was “incomplete,” and that the story he related to the
jury on direct examination was the “complete story.”
When considered in light of the testimony at trial regarding
the videotape, we conclude defendant's videotaped statement further
contradicts a potential claim of self-defense, defense of others,
or defense of habitation. As such, the videotape only supports our
conclusion that defendant's trial counsel was not objectively
unreasonable in withholding the undeveloped and potentially futile
defenses from the jury. Thus, we conclude the videotaped statement
is unnecessary to our present review of whether defendant received
ineffective assistance of counsel.
Therefore, defendant's final
assignment of error is overruled.
No error.
Judges McGEE and TYSON concur.
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