State v Graham, (03-822) 05/04/2004

Appeal by defendant from judgments entered 16 May 2002 by Judge J. Gentry Caudill in Mecklenburg County Superior Court. Heard in the Court of Appeals 19 April 2004.

Attorney General Roy Cooper, by Assistant Attorney General Diane Martin Pomper, for the State.

Rudolph Maher Widenhouse & Fialko, by Andrew G. Schopler, for defendant appellant.

McCULLOUGH, Judge.

    Defendant was charged with two counts of robbery with a dangerous weapon and two counts of second-degree kidnapping. The State's evidence tended to show that defendant and two friends, Scott Hemphill and “Pooh,” traveled to a Charlotte, North Carolina Taco Bell in a car driven by defendant. Once there, defendant and Hemphill got out of the vehicle and began to converse with a couple of Taco Bell employees who were outside on break. A second car, occupied by Desmond Smothers, Dallas Caraway, Tiffany Lampley, and another female, pulled into the Taco Bell parking lot and parked beside defendant's car. The employees, followed by Lampley, who was followed by Smothers, and lastly defendant, entered therestaurant. Caraway stayed in the car and listened to music. Though it is unclear exactly what happened thereafter, it is undisputed that when Smothers returned to his car, the occupants of defendant's car got out, approached Smothers' vehicle with guns, and robbed its occupants of jewelry, money, a pager, and a cell phone. After the robbery, the assailants made Smothers and Caraway walk to the other end of the parking lot before fleeing the scene in defendant's car.
    Defendant testified that he was inside the Taco Bell when Hemphill and Pooh initiated the robbery. Defendant further stated that when he exited the restaurant and observed the robbery in progress, he attempted to leave the scene, but Hemphill and Pooh got into the car while he waited to pull into traffic. Defendant presented the testimony of Darius Givens, an employee at Taco Bell, to support his testimony. Givens stated that defendant was inside the restaurant initially, but left a short time before Tiffany Lampley returned to the restaurant to report the robbery.
    Lampley, however, testified that defendant participated in the robbery. Lampley knew defendant because he was her friend's boyfriend. Desmond Smothers and Dallas Caraway also indicated that all three occupants of defendant's car were involved in the armed robbery. Finally, codefendant Hemphill testified that defendant was involved in the 19 May 2001 robbery of the occupants of the car driven by Desmond Smothers.
    After hearing the testimony and arguments of counsel, the jury found defendant guilty as charged. The trial court sentenceddefendant to two consecutive terms of 50-69 months in prison. Defendant appeals.
    On appeal, defendant argues that he was deprived of a fair trial when the prosecutor failed to correct certain testimony of codefendant Scott Hemphill on cross-examination and then elicited further false testimony from Hemphill on redirect examination. Defendant has not, however, properly preserved this issue for appellate review. Where a defendant assigns plain error but fails to specifically argue that there is plain error in his brief, the argument is not properly before the Court. See State v. Grooms, 353 N.C. 50, 66, 540 S.E.2d 713, 723 (2000), cert. denied, 534 U.S. 838, 151 L. Ed. 2d 54 (2001); State v. McNeil, 350 N.C. 657, 681, 518 S.E.2d 486, 501 (1999), cert. denied, 529 U.S. 1024, 146 L. Ed. 2d 321 (2000).
    Assuming, however, that this issue was properly before the Court, the record does not show the “knowing use” of “materially false testimony” by the prosecutor that would entitle defendant to a new trial. See State v. Morgan, 60 N.C. App. 614, 622, 299 S.E.2d 823, 828 (1983) (“Knowing use by the prosecution of materially false testimony violates a defendant's right to a fair trial. This is true whether the evidence is solicited by the prosecutor or is simply allowed to stand uncorrected when it appears.”). After thoroughly examining the testimony here, we conclude that the exchange between defense counsel on cross-examination and the instant witness, and the subsequent exchange between the prosecutor and the witness on redirect examination do not necessarily showdeception on the part of the witness, and certainly not of the nature that such deception would be apparent to the prosecutor. Accordingly, defendant cannot show entitlement to a new trial.
    We move then to defendant's next argument that he received ineffective assistance of trial counsel, in that counsel failed to investigate the criminal history of codefendant Scott Hemphill. Specifically, defendant contends, “Such an investigation would have yielded impeachment material and allowed defense counsel to expose Hemphill as a liar when he denied having a criminal record.”
    Initially, we note that ineffective assistance of counsel claims are generally better suited to examination on motion for relief in the superior court. See State v. Dockery, 78 N.C. App. 190, 192, 336 S.E.2d 719, 721 (1985) (“The accepted practice is to raise claims of ineffective assistance of counsel in post- conviction proceedings, rather than direct appeal.”). However, where, as in this case, the merits of the claim can be decided on a cold record, which needs no further investigation, this Court will pass upon the claim. See State v. Long, 354 N.C. 534, 540, 557 S.E.2d 89, 93 (2001).
    To prevail on a claim of ineffective assistance of counsel, the defendant must show the following: (1) “that counsel's performance fell below an objective standard of reasonableness,” and (2) “that the error committed was so serious that a reasonable probability exists that the trial result would have been different absent the error.” State v. Blakeney, 352 N.C. 287, 307-08, 531 S.E.2d 799, 814-15 (2000), cert. denied, 531 U.S. 1117, 148 L. Ed.2d 780 (2001); and State v. Braswell, 312 N.C. 553, 561-62, 324 S.E.2d 241, 248 (1985)), cert. denied, 531 U.S. 1117, 148 L. Ed. 2d 780 (2001). In Braswell, our Supreme Court explained that the defendant must show more than mere deficient performance by counsel, but that “'counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.'” Id. at 562, 324 S.E.2d at 248 (quoting Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984)). Mere allegations surrounding matters of trial tactics, without more, are not sufficient to meet the test set forth in Strickland and its progeny. State v. Piche, 102 N.C. App. 630, 638, 403 S.E.2d 559, 564 (1991).
    The record does not show dispositively that trial counsel did not investigate Hemphill's criminal record. Significantly, when trial counsel questioned Hemphill about his prior record, counsel specifically asked him about crimes punishable by more than 60 days in jail. As it turns out, Hemphill had previously pled guilty to two misdemeanors--neither of which were punishable by a sentence of more than 60 days. Counsel did not inquire about those other crimes, and it is unclear whether he was unaware of the convictions, or had simply made a tactical decision not to bring them up. Further, even if, as defendant contends, counsel did not investigate Hemphill's criminal history, defendant cannot show that such failure constituted deficient performance as contemplated by the first prong of the Strickland test. Finally, even if counsel's performance was below the level guaranteed by the Sixth Amendment,defendant could not show that the performance prejudiced him.
    Here, the jury had evidence that Hemphill committed the robbery in question. Therefore, it is doubtful that further knowledge of his conviction of two misdemeanors would have affected the jury's opinion of the witness's credibility. In addition, notwithstanding Hemphill's testimony, the jury still had before it the testimony of two of the victims and an eyewitness that tended to show that defendant committed the 19 May 2001 robberies and kidnappings. We conclude that defendant cannot make out a claim for ineffective assistance of counsel.
    In light of all of the foregoing, we hold that defendant received a fair trial, free from prejudicial error.
    No error.
    Judges WYNN and HUNTER concur.
    Report per Rule 30(e).

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