State v Jackson, (03-543) 05/04/2004

Appeal by defendant from judgment entered 31 May 2002 by Judge Peter M. McHugh in Guilford County Superior Court. Heard in the Court of Appeals 19 April 2004.

Attorney General Roy Cooper, by Special Deputy Attorney General Thomas R. Miller, for the State.

Robert T. Newman, Sr., for defendant appellant.

McCULLOUGH, Judge.

    A jury found defendant guilty of robbery with a dangerous weapon and not guilty of conspiracy to commit robbery with a dangerous weapon. The State adduced evidence tending to show that on the night of 20 June 2001, defendant held Walter Nkrumah Williams and Laura Belle at gunpoint while an accomplice stole video game consoles and video games from Williams' residence. Defendant also demanded and took Williams' and Belle's cellular telephones. Williams and Belle made statements to Greensboro Police Officers E.S. Allen and Bobby Edwards, both of whom testified at trial and corroborated the victims' testimony. Defendant denied the incident and suggested that Williams hadfalsely accused him of the robbery in retaliation for defendant's failure to pay Williams for a pound of marijuana. Upon the jury's guilty verdict, the trial court sentenced defendant to 77 to 102 months in prison. Defendant filed a timely notice of appeal.
    Counsel appointed to represent defendant has been unable to identify any issue with sufficient merit to support a meaningful argument for relief on appeal. He asks that this Court conduct its own review of the record for possible prejudicial error. Counsel has shown to the satisfaction of this Court that he has complied with the requirements of Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, reh'g denied, 388 U.S. 924, 18 L. Ed. 2d (1967), and State v. Kinch, 314 N.C. 99, 331 S.E.2d 665 (1985), by advising defendant of his right to file written arguments with this Court and providing him with the documents necessary to do so. Defendant has exercised his right to file pro se arguments which we address below.
    Defendant cites several instances in which he contends his trial counsel rendered ineffective assistance. To sustain an ineffective assistance claim, defendant must show both that his counsel's performance fell below an objective standard of reasonableness and that this deficiency had a probable impact on the outcome at trial. State v. Braswell, 312 N.C. 553, 563, 324 S.E.2d 241, 249 (1985). “[I]f a reviewing court can determine at the outset that there is no reasonable probability that in the absence of counsel's alleged errors the result of the proceeding would have been different, then the court need not determinewhether counsel's performance was actually deficient.” Id.
    Defendant first faults counsel for failing to seek a jury instruction on the lesser included offense of common law robbery. The transcript reveals, however, that neither party adduced evidence supporting such an instruction. Williams and Belle both testified that defendant brandished a handgun during the robbery. For his part, defendant simply denied that the incident occurred. The issue in dispute was whether the armed robbery occurred, not whether defendant had a gun. Thus, the jury could either find defendant guilty or not guilty of armed robbery. Because the evidence would not allow a rational juror to find defendant guilty of common law robbery, counsel had no grounds to request an instruction on this offense. State v. Wilder, 124 N.C. App. 136, 140-41, 476 S.E.2d 394, 397 (1996).
    Defendant next claims his counsel committed plain error by failing to introduce into evidence a police report prepared by Officer Allen to impeach the testimony of Williams and Belle. Although this report was discussed during Allen's testimony, it was not introduced into evidence or included in the record on appeal. Inasmuch as the materials of record do not allow us to determine the report's possible impact on the witnesses' credibility, this claim of ineffective assistance of counsel is more properly raised in a motion for appropriate relief. Accordingly, we dismiss this claim without prejudice because defendant has a right to raise it in a motion for appropriate relief in the trial court. See State v. Lawson, 159 N.C. App. 534, 545, 583 S.E.2d 354, 362 (2003).    Defendant also faults his counsel for failing to object to three portions of the prosecutor's closing argument. In the first instance, the prosecutor addressed the jury as follows:
        As a juror you sit here together as the conscience of our community. With your verdict you speak with the voice of our community.

The prosecutor may cast the jury's role as that of the voice and conscience of the community. State v. Nicholson, 355 N.C. 1, 43, 558 S.E.2d 109, 138 (citing State v. Scott, 314 N.C. 309, 311-12, 333 S.E.2d 296, 298 (1985)), cert. denied, 537 U.S. 845, 154 L. Ed. 2d 71 (2002). Therefore, we find no error.
    Defendant also points to the prosecutor's insistence that Williams and Belle were telling the truth about the robbery, as follows:
        I contend to you there is just flat out no doubt about that. The [witnesses] are being absolutely truthful with you. I don't know what more I can say on that other than again to ask you to consider their demeanor as they testified in this case. And use your common sense.

Although an attorney is prohibited by statute from “express[ing] his personal belief as to the truth or falsity of the evidence,” he may “on the basis of his analysis of the evidence, argue any position or conclusion with respect to a matter in issue.” N.C. Gen. Stat. § 15A-1230(a) (2003).
    Here, the prosecutor was responding to defense counsel's focus on discrepancies between the witnesses' testimony and the police reports. The prosecutor made clear that the jury was charged withdetermining the witnesses' credibility based on various factors, including the witnesses' ability to observe the events they testified to, their possible bias or prejudice, the consistency of their statements, and the factual plausibility thereof. The prosecutor then reviewed many of these factors before asserting in conclusion that Williams and Belle were “being absolutely truthful” in this instance. The prosecutor did not purport to vouch for their character or credibility based on personal knowledge or other factors outside the record. See State v. Wiley, 355 N.C. 592, 565 S.E.2d 22 (2002), cert. denied, 537 U.S. 1117, 154 L. Ed. 2d 795 (2003).
    Defendant also challenges the prosecutor's commentary on defendant's theory that Williams falsely accused him of the robbery in retaliation for defendant's failure to pay for marijuana that Williams had advanced to him:
        Drug dealers don't settle disputes by coming to court and making false charges. Use your common sense again. Drug dealers settle things with violence, with guns, with intimidation, with force. . . . They don't come into the courtroom and settle them in court. That's -- again use your common sense. That's just not what happens.

(Emphasis added.) While the prosecutor's comments could have been delivered more cautiously, we do not believe that the remarks were improper. The prosecutor did not express his personal belief or knowledge. Instead, he encouraged the jurors to utilize their common sense in evaluating the plausibility of defendant's testimony.    Finally, even assuming that any portion of the challenged remarks were impermissible, we find no probability that the outcome at trial was affected. Prior to closing arguments, the court instructed the jury as follows:
        You need to keep in mind during these arguments that you are the sole judges of what the evidence was, and you are the sole judges of what facts you are going to find from the evidence. . . . And to repeat, you are the judges of what the evidence was, not the attorneys. You are the judges of what facts you'll find from the evidence, not the attorneys.

Following closing arguments, the trial court reiterated to the jury its role in assessing the witnesses' credibility:
        As the jury which has been impaneled to hear the evidence in this case, you are the sole judges of the credibility of the witnesses. What this means is that you must decide for yourselves whether you are going to believe the testimony of any person who has testified during this trial.

        You are entitled to believe all of what a particular witness has testified to. You may believe a portion of a witness's testimony but less than all of it. Or you may believe none of what a particular witness has testified.

In light of these clear instructions, it is unlikely that the jury was improperly swayed by the prosecutor's closing argument.
    Citing N.C. Gen. Stat. § 15A-1233 (2003), defendant assigns plain error to the trial court's refusal to allow the jury to examine Officer Allen's police report during its deliberations. This statute grants discretion to the trial court to “permit the jury to take to the jury room exhibits and writings which have been received into evidence.” N.C. Gen. Stat. § 15A-1233(b). Inasmuchas Allen's report was not received in evidence at trial, the court “ha[d] no authority” to allow it into the jury room. State v. Parker, 61 N.C. App. 94, 99-100, 300 S.E.2d 451, 454 (1983).
    Defendant next avers the prosecutor committed plain error by failing to prove the elements of robbery with a dangerous weapon beyond a reasonable doubt. We interpret this assertion as a challenge to the sufficiency of the State's evidence, which we overrule as without merit. The State adduced eyewitness testimony from Williams and Belle, who described being held at gunpoint by defendant while he demanded and stole their telephones. This evidence was sufficient to support a guilty verdict on the charge of robbery with a dangerous weapon. See State v. Thompson, 297 N.C. 285, 288-89, 254 S.E.2d 526, 528 (1979). Contrary to defendant's claim, the State was not obliged to produce the gun used or the property taken during the robbery.
    In his remaining assignment of error, defendant repeats his challenge to the prosecutor's “improper statements” during closing arguments. Because defense counsel raised no objection at trial, “'our review is limited to whether the argument was so grossly improper as to warrant the trial court's intervention ex mero motu.'” State v. Nicholson, 355 N.C. at 41, 558 S.E.2d at 137 (quoting State v. Cummings, 353 N.C. 281, 296-97, 543 S.E.2d 849, 859, cert. denied, 534 U.S. 965, 151 L. Ed. 2d 286 (2001)), cert. denied, 537 U.S. 845, 154 L. Ed. 2d 71 (2002). Such action is required of the trial court only if the State's “'argument strays so far from the bounds of propriety as to impede defendant's rightto a fair trial.'” State v. Smith, 351 N.C. 251, 269, 524 S.E.2d 28, 41 (citation omitted), cert. denied, 531 U.S. 862, 148 L. Ed. 2d 100 (2000).
    As discussed above in the context of defendant's ineffective assistance claims, the prosecutor did not err in reminding the jury that it served as the conscience of the community and in asking the jury to use its common sense in assessing the credibility of defendant's testimony. To the extent the prosecutor overstepped the bounds of propriety by stating that Williams and Belle were “being absolutely truthful” in their testimony, this remark was not so grossly improper as to deny defendant a fair trial and require ex mero motu intervention by the trial court. See Wiley, 355 N.C. at 622, 565 S.E.2d at 44.
    In accordance with Anders, we have fully examined the record to determine whether any issues of arguable merit appear therefrom and whether the appeal is wholly frivolous. We conclude the appeal is frivolous. Furthermore, we have examined the record for possible prejudicial errors and have found none. Because we find one of defendant's ineffective assistance claims more properly raised in a post-conviction motion, we dismiss this claim without prejudice, and defendant may raise it in a motion for appropriate relief in the trial court. See Lawson, 159 N.C. App. at 545, 583 S.E.2d at 362.
    No error in part; dismissed without prejudice in part.
    Judges WYNN and HUNTER concur.
    Report per Rule 30(e).

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