State v Ellis, (03-1204) 08/03/2004

Appeal by defendant from judgment entered 30 May 2003 by Judge Dwight L. Cranford in Halifax County Superior Court. Heard in the Court of Appeals 7 June 2004.

Attorney General Roy Cooper, by Assistant Attorney General Hilda Burnett-Baker, for the State.

Robert J. McAfee, for the defendant.

    TIMMONS-GOODSON, Judge.

    Jimmy Harold Ellis (“defendant”) appeals his conviction of assault with a deadly weapon inflicting serious injury. For the reasons stated herein, we hold that defendant received a trial free of prejudicial error.
    The State's evidence presented at trial tends to show the following: On 1 October 2002, Charles Jason Briggs (“Briggs”) was living at the Carolina Inn in Halifax County, North Carolina. Defendant was also living at the Carolina Inn and knew Briggs as an acquaintance. At 11:30 p.m. defendant and Ricky Rook (“Rook”) knocked on Briggs's door and Briggs, who had been asleep, awoke and allowed them to enter. Briggs recognized that defendant and Rook had been drinking alcohol. Defendant and Rook entered the room. Rook, who is deaf in one ear and was not wearing his hearing aid at the time, sat on a chair and watched television. Defendant told Briggs he was there to kill him, and defendant advanced towards Briggs with a butcher knife. Briggs fell to the floor on the opposite side of the bed and defendant walked around the foot of the bed. Defendant stabbed Briggs in the stomach and the two men struggled over the knife. During the struggle, defendant produced a second knife, a pocketknife, and cut Briggs several times before Rook broke up the fight. Briggs then ran out of the hotel room and collapsed in front of the hotel office.
    Kenny Gibson (“Gibson”), an employee of the hotel, found Briggs and called the police and paramedics. While waiting for help to arrive, Briggs saw defendant and Rook leave the premises in a white Chevrolet Cavalier. Briggs reported to the responding officer, Roanoke Rapids Police Department Lieutenant David Brown (“Lieutenant Brown”), that defendant had left the premises and was most likely at Rook's residence. Briggs was taken to Halifax Regional Hospital and then flown to Pitt Memorial Hospital (“the hospital”) in Greenville, North Carolina, where he was hospitalized for approximately one week.
    At the hospital, doctors inserted a tube into Briggs's lungs and used seventy to eighty staples to repair his stab wounds. Briggs testified at trial that during the operation, the doctors had to “open me up and actually pull my intestines and my stomach out to see if any damage had been done internally.” Briggstestified that he was still in physical pain and received medical treatment twice a month for several months after the injury.
    Rook testified that he, defendant, and defendant's girlfriend, Kim Fitzhugh (“Fitzhugh”), were drinking at Rook's residence before defendant and Rook left in defendant's car to buy more alcohol. They stopped first at the Carolina Inn and went to Briggs's room. Rook testified that he watched television for a few minutes and when he turned around, defendant and Briggs were struggling. Rook broke up the fight. Rook and defendant then left in defendant's vehicle and returned to Rook's residence. On cross examination, Rook testified that he had not seen a knife in defendant's possession on that day.
    Lieutenant Brown testified that he and Officer Jeffrey Baggett went to Rook's residence after a search of Briggs's hotel room and the area outside the room revealed no weapons. The officers arrested defendant and Rook at Rook's residence. The officers also questioned Fitzhugh about the knife. Fitzhugh surrendered a pocketknife, noting “Here is Jimmy's knife.” At trial, Lieutenant Brown identified a knife admitted into evidence as the knife he took from Fitzhugh and testified that there appeared to be blood on the blade. The police officers found no other knives at Rook's residence.
    Briggs's sister, Anne Ottinger (“Ottinger”), testified that she visited her brother at Pitt Memorial Hospital where he told her his version of the incident in the hotel room. Ottinger recounted her conversation with Briggs at trial.    Defendant's evidence tended to show that Briggs was edgy and agitated when defendant and Rook entered the room. Defendant asked Briggs if he had taken a pocketbook belonging to Fitzhugh, to which Briggs angrily responded that he had not. When defendant insisted that Briggs return the pocketbook, Briggs stated again that he did not have the pocketbook. Defendant cursed at Briggs, and Briggs lunged and swung at defendant with a knife. A physical fight ensued. Defendant testified that as the two men wrestled in the room, they “hit the television” and Briggs gave a loud groan. Rook then broke up the fight. Defendant further testified that he did not take his pocketknife from his pants pocket while in Briggs's hotel room.
    At the close of all the evidence, defendant requested that the trial court instruct the jury on the affirmative defenses of self-defense and accident. The trial court denied defendant's request for both jury instructions. The jury found defendant guilty of the lesser-included offense of assault with a deadly weapon inflicting serious injury.
    During the sentencing phase of the trial, defendant requested that the trial court consider his use of alcohol that evening and his resulting impairment as a mitigating factor. Defendant argued that his alcohol use and impairment caused him to suffer a mental or physical condition that significantly reduced his culpability for the offense. The trial court denied defendant's request. The trial court then sentenced defendant to an active term of imprisonment of forty to fifty-seven months. Defendant appeals.

    As an initial matter, we note that defendant's brief contains arguments supporting only seven of the original nine assignments of error on appeal. The two omitted assignments of error are deemed abandoned pursuant to N.C. R. App. P. 28(b)(6) (2004). We therefore limit our review to those assignments of error properly preserved by defendant for appeal.
    The remaining issues on appeal are whether (I) the trial court committed plain error by allowing Briggs to testify about his surgery; (II) the trial court committed plain error by allowing a police officer to testify about blood on the knife; (III) the trial court committed plain error by allowing Briggs's sister to testify about her brother's recollection of the stabbing; (IV) the trial court erred by refusing to instruct the jury on self-defense; (V) the trial court erred by refusing to instruct the jury on the defense of accident; (VI) the trial court erred by failing to find defendant's inebriation to be a mitigating factor; and (VII) defendant received ineffective assistance of counsel. We have addressed defendant's arguments in an order that facilitates a more cogent analysis.
    We first address whether the trial court committed plain error by allowing Briggs to testify about his surgery. Defendant contends that the testimony is inadmissible as lay testimony, inadmissible as expert testimony, and complete hearsay. We conclude that there is no plain error.    “In criminal cases, a question which was not preserved by objection noted at trial and which is not deemed preserved by rule or law without any such action, nevertheless may be made the basis of an assignment of error where the judicial action questioned is specifically and distinctly contended to amount to plain error.” N.C.R. App. P. 10(c)(4) (2004). “To prevail on plain error review, defendant must show that (i) a different result probably would have been reached but for the error or (ii) the error was so fundamental as to result in a miscarriage of justice or denial of a fair trial.” State v. Braxton, 352 N.C. 158, 197, 531 S.E.2d 428, 451 (2000), cert. denied, 531 U.S. 1130 (2001).
    During the State's case-in-chief, the prosecutor and Briggs engaged in the following exchange on direct examination:
        Q. Now, Jason, the cut that is shown that is all the way down your stomach in State's Exhibit No. 12, in that picture, is that _- were you cut by Jimmy _-

        A. The whole cut wasn't done by him; no, it wasn't. I was stabbed in the stomach. They had to open me up and actually pull my intestines and my stomach out to see if any damage had been done internally.

    Assuming arguendo that Briggs's testimony about his medical procedures was inadmissible, we conclude that it is not likely that the jury would have reached a different result without the testimony. Because the State presented substantial evidence, through photographs and testimonial evidence, that Briggs suffered “serious injury,” the admission of the testimony does not constitute plain error.     Defendant next argues that the trial court committed plain error by allowing Lieutenant Brown to testify regarding blood on the pocketknife surrendered by Fitzhugh. We disagree.
    This Court cannot find plain error where there was no error at trial. See State v. Spruill, 338 N.C. 612, 659, 452 S.E.2d 279, 305 (1994) cert. denied, 516 U.S. 834 (1995). “If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion.” N.C. Gen. Stat. § 8C-1, Rule 702(a) (2003). However, “nonexperts can testify as to the fact of bloodstains and then it is for the jury to determine the weight to be given the testimony.” State v. Stimpson, 15 N.C. App. 606, 607, 190 S.E.2d 378, 379 (1972) (citing State v. Willis, 4 N.C. App. 641, 167 S.E.2d 518 (1969)). Thus, it is acceptable for a lay person who observes a dark red substance to testify that the substance appears to be blood. See Stimpson, 15 N.C. App. at 607, 190 S.E.2d at 379.
    In the present case, Lieutenant Brown did not offer any scientific or technical testimony about the blood on the knife. Lieutenant Brown merely testified that the knife had “a small amount of substance, red, burgundy, maroon substance that appears to be blood.” Pursuant to Stimpson, we conclude that Lieutenant Brown's testimony was permissible. Thus, we hold the trial court did not err, and therefore there is no plain error.    Defendant next argues that the trial court committed plain error by permitting Ottinger to testify about defendant's comments to her regarding the incident. We disagree.
    As discussed above, “[t]o prevail on plain error review, defendant must show that a different result probably would have been reached but for the error.” State v. Braxton, 352 N.C. 158, 197, 531 S.E.2d 428, 451 (2000), cert. denied, 531 U.S. 1130 (2001).
    In the instant case, the substance of Ottinger's testimony had already been admitted into evidence by other witnesses without objection. Thus, we conclude that had Ottinger's testimony been excluded it is not likely that a different result would have been reached in the case. Therefore, we hold the trial court did not commit plain error by allowing the testimony.
    Defendant next argues that the trial court erred by denying defendant's request for a jury instruction on self-defense. We disagree.
    “A defendant is entitled to a jury instruction on self-defense when there is evidence from which the jury could infer that he acted in self-defense.” State v. Allred, 129 N.C. App. 232, 235, 498 S.E.2d 204, 206 (1998).
        In order to be entitled to an instruction on self-defense, the evidence must establish the following: (1) the defendant believed it necessary to kill or use force against the victim in order to save himself from death or great bodily harm; (2) the defendant's belief was reasonable “in that the circumstances as they appeared to him at the time were sufficient to create such a belief in the mind of a person of ordinary firmness;” (3) the defendant was not the aggressor in bringing on the affray, i.e., “he did not aggressively andwillingly enter into the fight without legal excuse or provocation;” and (4) the defendant did not use excessive force other than what was necessary or reasonably appeared necessary to protect himself from death or great bodily harm.
State v. Thomas, 153 N.C. App. 326, 338, 570 S.E.2d 142, 149 (2002). Thus, to warrant an instruction on self-defense, the defendant must have committed an intentional act. State v. Gray, 347 N.C. 143, 166-67, 491 S.E.2d 538, 546 (1997). Therefore, a defendant cannot claim self-defense where he argues at trial that he did not commit the underlying offense.
    In the present case, defendant testified that he heard Briggs groan as if he had been cut after he and Briggs bumped into the television. However, defendant denied stabbing Briggs or knowing Briggs had been stabbed. Thus, because defendant did not admit that he intentionally stabbed Briggs, we conclude the trial court did not err in refusing to instruct the jury on self-defense.
    Defendant also argues that the trial court erred by not instructing the jury on the defense of accident. We disagree.
    “Where an alleged assault is unintentional and the perpetrator acted without wrongful purpose in the course of lawful conduct and without culpable negligence, a resultant injury will be excused as accidental.” State v. Thompson, 118 N.C. App. 33, 36, 454 S.E.2d 271, 273 (1995), disc. rev. denied, 340 N.C. 262, 456 S.E.2d 837 (1995). “Culpable negligence is such gross negligence or carelessness as 'imports a thoughtless disregard of the consequences' or a 'heedless indifference to the rights and safety of others.'” State v. Thompson, 118 N.C. App. 33, 36, 454 S.E.2d271, 273 (1995) (quoting State v. Everhart, 291 N.C. 700, 702, 231 S.E.2d 604, 606 (1977)), disc. rev. denied, 340 N.C. 262, 456 S.E.2d 837 (1995).
    “It is well established that when a defendant requests a special instruction which is correct in law and supported by the evidence, the trial court must give the requested instruction, at least in substance.” State v. Tidwell, 112 N.C. App. 770, 773, 436 S.E.2d 922, 924 (1993) (citations omitted). “If a requested instruction is refused, defendant on appeal must show the proposed instruction was 'not given in substance, and that substantial evidence supported the omitted instruction.'” State v. Thompson, 118 N.C. App. 33, 36, 454 S.E.2d 271, 273 (1995) rev. denied, 340 N.C. 262, 456 S.E.2d 837 (1995) (quoting State v. White, 77 N.C. App. 45, 52, 334 S.E.2d 786, 792 (1985), cert. denied, 315 N.C. 189, 337 S.E.2d 864 (1985). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980).
    In the present case, defendant testified that Briggs may have been stabbed as a result of their struggle for control of the knife. Defendant stated at trial that he “grabbed [Briggs's] arm with my left and then my right and pushed toward him. And as we hit the TV, I heard him when he did that 'unh' like, you know, that it had stuck him or cut him one. I didn't know.” Defendant's testimony was significantly outweighed by the physical evidence of the extent of Briggs's injuries. We conclude that defendant failed to offersufficient evidence to support the affirmative defense of accident. Briggs received four or five stab wounds which required extensive surgery, including a chest tube inserted into his lungs and seventy to eighty staples to repair the damage done to his internal organs. Such wounds are not indicative of an accidental injury during a struggle. Accordingly, we conclude that the trial court did not err by denying defendant's request for a jury instruction on the defense of accident.
    Defendant next argues that the trial court erred by failing to find defendant's intoxication as a mental or physical condition that reduces his culpability. We disagree.
    North Carolina General Statute § 15A-1340.16(e)(3) provides that the trial court may find 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 defendant's culpability for the offense.” On appeal, the trial court's determination regarding mitigating and aggravating factors during sentencing is reviewed using the abuse of discretion standard. See N.C. Gen. Stat. § 15A-1340.16(a) (2003). The defendant must show by a preponderance of the evidence that a mitigating factor is present. N.C. Gen. Stat. § 15A-1340.16(a). “When a defendant argues that his intoxication compels a finding of a mitigating factor, he must not only prove his intoxication, but also prove that the intoxication reduced his culpability for the offense.” State v. Watkins, 89 N.C. App. 599, 606, 366 S.E.2d 876, 880 (1988). This Court has held that the ability to operate a motorvehicle signifies a cognizance of one's actions. See State v. Watkins, 89 N.C. App. 599, 606, 366 S.E.2d 876, 880 (1988)(holding defendant's ability to drive his truck considerable distances to and from the scene of the assault shows cognizance despite defendant's evidence of voluntary intoxication).
    At trial, defendant, Briggs, and Rook testified that defendant had been drinking and Briggs's testimony indicated defendant may have been staggering. However, the evidence also revealed that defendant was capable of operating his vehicle to and from the scene of the assault. Therefore, pursuant to Watkins, we conclude that defendant was sufficiently cognizant of his actions, and the trial court could properly find that intoxication was not a mitigating factor. Therefore, the trial court did not err.
    Defendant's final argument is that he received ineffective assistance of counsel. We disagree.
    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 of defendant's trial would have been different. Id. at 563, 324 S.E.2d at 248. “Because of the difficulties inherent in determining if counsel's conduct was within reasonable standards, a court must indulge a strong presumption that counsel's conduct falls within the broad range of what is reasonable assistance.” State v. Fisher, 318 N.C. 512, 532, 350 S.E.2d 334, 346 (1986)(citing Strickland, 466 U.S. at 689).
    Upon review of the record, we find no support for defendant's argument that the performance of his trial counsel fell below an objective standard of reasonableness.
    Defendant argues that trial counsel's failure to object to the admission of testimony in the following three instances amounted to ineffective assistance of counsel: Briggs's testimony regarding his medical procedures; Lieutenant Brown's testimony regarding the knife; and Ottinger's testimony.
    We have concluded supra that none of these evidentiary issues amount to plain error, meaning defendant has failed to show that “adifferent result probably would have been reached but for the error.” Braxton, 352 N.C. at 197, 531 S.E.2d at 451. The second prong of the ineffective assistance of counsel test requires the defendant show that “a reasonable probability exists” that without the error the result of the trial would differ. Pursuant to our analysis of these issues supra regarding plain error, we conclude that the decisions by defense counsel do not amount individually or collectively to ineffective assistance of counsel.
    Defendant further argues that defense counsel's decision to not call Fitzhugh as a witness demonstrates ineffective assistance of counsel. We disagree.
    “Ineffective assistance of counsel claims are not intended to promote judicial second-guessing on questions of strategy and trial tactics.” State v. Taylor, 79 N.C. App. 635, 638, 339 S.E.2d 859, 861 (1986), disc. rev. denied, 317 N.C. 340, 346 S.E.2d 146 (1986)(quoting State v. Brindle, 66 N.C. App. 716, 718, 311 S.E.2d 692, 693-94 (1984)). Decisions on which witnesses to call are questions of strategy and trial tactic and are exclusively the province of the trial counsel after consultation with the client. See State v. Milano, 297 N.C. 485, 495, 256 S.E.2d 154, 160 (1979), overruled on other grounds by State v. Grier, 307 N.C. 628, 300 S.E.2d 351 (1983).
    Because the decision to call Fitzhugh was within the exclusive province of defense counsel and because this Court has held such strategic trial decisions are not indicative of ineffectiveassistance of counsel, we conclude that defense counsel's actions here do not fall below an objective standard of reasonableness.
    Defendant also argues that defense counsel's decision not to “explore the victim Briggs' elevated blood levels of cocaine and alcohol revealed by hospital records” amounts to ineffective assistance of counsel. We disagree.
    Defense counsel thoroughly questioned Briggs regarding his alcohol and drug consumption on the date in question.
        Q. Well, you said that you had consumed some alcohol earlier in the night?

        A. Yes. I had drank three or four beers while I was doing my laundry.