Appeal by defendant from judgment entered 13 May 2003 by Judge
J. Gentry Caudill in Gaston County Superior Court. Heard in the
Court of Appeals 7 June 2004.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Jason T. Campbell, for the State.
Leslie C. Rawls for defendant-appellant.
HUNTER, Judge.
Noah Gerald Cain (“defendant”) appeals from a judgment filed
on 13 May 2003 entered consistent with a jury verdict finding him
guilty of robbery with a firearm. As a consequence of this
conviction, defendant was sentenced to forty-five to sixty-three
months incarceration. We conclude that the trial court did not err
by denying defendant's request for specific instructions and that
defendant did not receive ineffective assistance of counsel.
The evidence tends to show that defendant admitted to
committing robbery at a Subway restaurant in Belmont, North
Carolina on 21 August 2002. Defendant was an unemployed twenty-six
year old man who was separated from his wife. They had two
children and defendant testified that he had to do somethingbecause his wife had told him that she and the children were “kind
of low on supplies”. On the night of the robbery, defendant went
to his friend's house and collected a gun, a black glove or gloves,
a black ski mask and a long black shirt that he had stored there.
He wore all black clothing and carried the gun, gloves and ski mask
in a brown McDonald's bag. He asked a friend for a ride and was
dropped off near the shopping center where the Subway restaurant
was located. Defendant walked to Subway where Cliffton Riggins
(“Riggins”) was working as the night manager.
Shortly before midnight, Riggins was doing multiple tasks
before closing up the shop and defendant grabbed him at the back of
the restaurant near the door. Defendant wore the black ski mask
and grabbed Riggins by taking his arm and putting it behind
Riggins' back. He told Riggins that he was not going to hurt him
and that he just wanted the money. Riggins testified that he saw
defendant's gun when defendant put the gun up to his neck, but
defendant could not recall if he touched Riggins with the gun or
not. Defendant gave Riggins the McDonald's bag and walked him to
the front of the store. Riggins placed approximately $145.00 into
the McDonald's bag from the cash register, as well as a $2.00 bill
and a $2.00 roll of nickels. Riggins testified that he added the
roll of nickels to the bag because “[i]t's just something unique.
Not everybody running around has a $2 roll of nickles [sic] and a
$2 bill and $145 at 12 o'clock at night.”
After defendant instructed Riggins to give him the McDonald's
bag, he asked Riggins if the freezer could open from the inside. When Riggins said that it could, defendant told him to get in the
freezer and count to thirty before coming out. Riggins stayed in
the freezer for several minutes, came out and saw that Subway's
telephone had been ripped from the wall. He ran next door to
Dominos Pizza and shouted for them to call the police. Mount Holly
Police Officer Cory Fox (“Officer Fox”) and Belmont Police Sergeant
Gladys Grier (“Sergeant Grier”) responded. Officer Fox went to
Subway and talked to Riggins. Based on her experience, Sergeant
Grier went to Browntown Road where she anticipated a robbery
suspect would go to escape. She encountered defendant, who was
sweating profusely, breathing hard and wearing no shoes. He fit
the description given by Riggins -- white male, approximately 5'9”
or 5'10” with dirty blond hair and a stockier build than Riggins.
Sergeant Grier radioed the information to Officer Fox and Officer
Fox left Riggins to join her.
When questioned by Officer Fox, defendant said he had an
argument with his girlfriend and explained that he became sweaty by
running after her car, where he had left his shoes. Officer Fox
stayed with defendant while Sergeant Grier searched the area where
she had first seen defendant. She saw money scattered on the
ground and radioed Officer Fox to secure defendant. When Officer
Fox asked defendant if he would mind going to Subway to discuss an
incident, he said “you got me.” Defendant said it again when
Officer Fox asked if he was saying that he robbed the Subway.
After Officer Fox told defendant to place his hands behind his
back to handcuff him, defendant jerked his arm away and ran. Officer Fox pursued him down Browntown Road toward Park Street,
down an alleyway, over a fence and into a backyard where he used
his flashlight and saw defendant crouched down between a bush and
a building. With his gun drawn, Officer Fox told him to put his
hands up and lay on the ground. Defendant put his hands up and
stood up, but when Officer Fox again ordered him to get on the
ground, defendant ran. Officer Fox ran after him about five steps
and tackled him to the ground. He held defendant until another
officer arrived and helped him handcuff defendant. Sergeant Grier
and Officer Fox drove to the Subway restaurant and Riggins
identified defendant as the person who had robbed Subway.
At the Belmont Police Department, defendant confessed to the
robbery. Corporal Floyd Bollinger (“Corporal Bollinger”) arrived
on Browntown Road and recovered the handgun, which was not loaded.
Sergeant Grier had located the money totaling $169.35 and asked
Corporal Bollinger to secure it. Corporal Bollinger and Crime
Scene Investigator Jason Gardner searched the area surrounding the
Subway restaurant and Browntown Road and found tennis shoes in a
garbage pail. Then, after the information was radioed in,
defendant told them to look in the drain culvert for the clothing
and Subway telephone.
Defendant assigns error to the trial court's denial of his
oral requests for specific jury instructions that his gun was not
loaded and thus, the gun could not endanger the life of someone
with regard to a conviction of robbery with a firearm. In the
alternative, defendant asserts that he received ineffectiveassistance of counsel based on his counsel's failure to request
this special instruction in writing.
I.
Defendant first argues that the jury instructions, which
included a submission of robbery with a firearm and common law
robbery, were insufficient because they did not allow the jury to
address whether or not the gun was loaded. Defendant asserts that
the failure to give this special instruction deprived the jury of
their right to determine an elemental fact of the crime. We
disagree.
A.
The trial court did not err in denying defendant's requests
for special jury instructions because the requests were not in
writing.
Requests for special instructions must be in
writing, entitled in the cause, and signed by
the counsel or party submitting them. Such
requests for special instructions must be
submitted to the judge before the judge's
charge to the jury is begun. The judge may,
in his discretion, consider such requests
regardless of the time they are made.
N.C. Gen. Stat. § 1A-1, Rule 51(b) (2003);
see also N.C. Gen. Stat.
§ 1-181(a) and (b) (2003).
A request for special instructions, properly
made, imposes a duty on the court to give the
instructions, at least in substance, where
relevant to the case.
State v. Thomas, 28
N.C. App. 495, 221 S.E.2d 749 (1976).
However, in the absence of such a request, no
duty arises on the part of the trial court,
and where the instruction is not in writing
and signed pursuant to G.S. 1-181, it is
within the discretion of the trial judge to
give or to refuse an instruction.
State v.Thomas, supra; State v. Hardee, 6 N.C. App.
147, 169 S.E.2d 533 (1969).
State v. Lang, 46 N.C. App. 138, 143, 264 S.E.2d 821
, 825,
remanded
on other grounds, 301 N.C. 508, 272 S.E.2d 123 (1980).
In the case before us, defendant's trial attorney did not
request the special jury instructions in writing. He verbally made
a request before the verdict form was given to the jury. “For the
record, based upon Mr. Falivene's record, I'd ask you to instruct
the jury on the significance of the gun being loaded and unloaded
in regards to his remarks about not mentioning any bullets in the
instruction. . . .” When the jury asked for the “[w]ritten
difference between guilty of robbery, guilty of common law,”
defendant's counsel made another request. “Your honor, again, I
would ask that the Court, in addition to that, also instruct the
jury that a gun that is unloaded is not a gun that could endanger
the life pursuant to a law that I submitted already.” The judge
decided to instruct the jury in writing “using the pattern
instruction that I've already given.”
It is in the trial court's discretion whether to give the
special instructions to the jury upon defendant's oral requests.
The trial court, in its discretion, chose not to give that
instruction, and based on our review the trial court did not abuse
its discretion. In addition, the trial court sufficiently
instructed the jury based on the law and the facts, and did not err
in this case.
The trial judge gave the standard jury instructions for
robbery with a firearm as well as the lesser included crime ofcommon law robbery. The relevant portions of the jury instructions
to this case included the charge
that for you to find the defendant guilty of
robbery with a firearm, the state must prove
seven things beyond a reasonable doubt . . .
six, that the defendant had a firearm in his
possession at the time he obtained the
property or that it reasonably appeared to the
victim that a firearm was being used . . .
and, seven, that the defendant obtained the
property by endangering or threatening the
life of that person with the firearm.
B.
The trial court did not err in denying defendant's requests
for special jury instructions even when defendant testified the gun
was not loaded and he believed it was inoperable.
First, in
State v. Joyner, 312 N.C. 779, 324 S.E.2d 841
(1985), our Supreme Court opined:
[W]here there is evidence that a defendant has
committed a robbery with what appears to the
victim to be a firearm or other dangerous
weapon
and nothing to the contrary appears in
evidence, the presumption that the victim's
life was endangered or threatened is
mandatory. See
State v. Thompson, 297 N.C.
285, 254 S.E.2d 526 (1979). If the jury in
such cases finds the basic fact (that the
robbery was accomplished with what appeared to
the victim to be a firearm or other dangerous
weapon), the jury must find the elemental fact
(that a life was endangered or threatened).
Joyner, 312 N.C. at 782, 324 S.E.2d at 844.
Secondly, “when
any evidence is introduced tending to show
that the life of the victim was not endangered or threatened, 'the
mandatory presumption disappears, leaving only a mere permissive
inference. . . .'”
Id. at 783, 324 S.E.2d at 844
(quoting State v.
White, 300 N.C. 494, 507, 268 S.E.2d 481, 489 (1980)). Next,
Joyner states:
Although the burden of proof beyond a
reasonable doubt always remains upon a State,
the defendant has the burden of demonstrating
to the court the invalidity of the permissive
inference as applied in his case.
Ulster
County Court v. Allen, 442 U.S. at 157;
State
v. White, 300 N.C. at 503, 268 S.E.2d at 487.
If the defendant makes such a showing, the
trial court may not allow the inference to be
made by the jury.
Id. at 783-84, 324 S.E.2d 844-45.
Finally, this Court has also opined:
[W]here a defendant presents evidence that the
weapon used during a robbery was unloaded or
otherwise incapable of firing, such evidence
“tend[s] to prove the absence of an element of
the offense [of armed robbery] and require[s]
the submission of the case to the jury on the
lesser included offense of common law robbery
as well as the greater offense of robbery with
firearms or other dangerous implements.”
State v. Joyner, 67 N.C. App. 134, 136, 312
S.E.2d 681, 682 (1984),
affirmed, 312 N.C.
779, 324 S.E.2d 841 (1985); see also
Allen,
317 N.C. at 126, 343 S.E.2d at 898 (noting
that evidence that a firearm is inoperative
forms the basis for instruction on common law
robbery).
State v. Frazier, 150 N.C. App. 416, 419, 562 S.E.2d 910, 913
(2002).
In the case at bar, the jury could make a permissive inference
that the firearm was operative and threatened Riggins' life,
despite defendant's evidence. In the alternative, the trial court
instructed the jury on the lesser included offense of common law
robbery whether the inference was sufficiently satisfied or not.
The jury heard the evidence, including defendant's admission of
committing the crime when he had a gun in his possession. Duringdeliberations, it asked the court for the “[w]ritten difference
between guilty of robbery, [and] guilty of common law.” The jury
heard conflicting evidence about the gun and, consequently, it was
convinced beyond a reasonable doubt to convict defendant of robbery
with a firearm instead of common law robbery.
Riggins testified that he saw defendant with a gun and
defendant “stuck it” up against his neck. It felt like cold steel
and defendant kept it on his neck until they walked to the front of
the store. The rest of the time, defendant kept the gun pointed at
Riggins, “trained at me so if I did the wrong thing he could easily
have a shot at me.” Defendant could not recall putting it up to
Riggins' neck, but admitted “I'm not saying that I did not.”
Defendant testified that he had bought the gun for his estranged
wife earlier that year because she lived in a bad neighborhood. He
bought it for $20.00 without a clip and believed it was inoperable,
but wanted his wife to be able to scare away people in the
neighborhood. Defendant testified he was convinced it was
inoperable because at one point after retrieving the gun from his
wife, it came apart in his hands.
The State Bureau of Investigation (“SBI”) presented expert
testimony on the testing of the gun and determined that it was
operable and that it could be fired without a clip. Based on the
serial number, the expert said that the clip could be easily
removed and the 25 caliber automatic cartridges that it used could
be easily removed and thrown away too. The evidence also tended to show that defendant admitted to
throwing away the other robbery items in the dark, including the
gun and money. The State offered that when the investigators
searched in the dark for evidence early that morning after the
crime, they could have overlooked the round and clip of the gun
that defendant used if they had been thrown away also. While
confessing to the robbery, defendant never told officers that the
gun was unloaded and inoperable, as he testified in court.
Defendant did not have witnesses such as his wife or the gun
salesman to testify and corroborate his testimony.
Accordingly, we hold that the trial court did not have a duty
to give defendant's requested special instructions because it was
not in writing, and further the trial court did not abuse its
discretion by not instructing on the gun being unloaded or loaded.
II.
Defendant next argues that he was deprived of his right to due
process and effective assistance of counsel (1) if this Court
cannot review the special jury instruction requests because they
were not made in writing, and (2) since there was plain error in
the trial court's jury instructions, which excluded the special
instructions, when his attorney failed to make the requests
properly. We disagree with defendant's assertions that he received
ineffective assistance of counsel.
“To successfully assert an ineffective assistance of counsel
claim, defendant must satisfy a two-prong test.”
State v. Gainey,
355 N.C. 73, 112, 558 S.E.2d 463, 488 (2002). Defendant must first“show that counsel's performance fell below an objective standard
of reasonableness.”
Id. “Second, the defendant must also show
that the error committed was so egregious that 'but for counsel's
unprofessional errors, the result of the proceeding would have been
different.'”
State v. Pratt, 161 N.C. App. 161, 163, 587 S.E.2d
437, 439 (2003) (quoting
Strickland v. Washington, 466 U.S. 668,
694, 80 L. Ed. 2d 674, 698 (1984).
In
State v. Seagroves, 78 N.C. App. 49, 336
S.E.2d 684 (1985),
disc. review denied, 316
N.C. 384, 342 S.E.2d 905 (1986), the Court of
Appeals held that in order to show ineffective
assistance of counsel because of the failure
to request jury instructions, the defendant
must show that without the requested
instructions there was plain error in the
charge.
State v. Swann, 322 N.C. 666, 688, 370 S.E.2d 533, 545 (1988).
Plain error is defined as “'a “fundamental error, something so
basic, so prejudicial, so lacking in its elements that justice
cannot have been done,” or “where [the error] is grave error which
amounts to a denial of a fundamental right of the accused[.]”'”
State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)
(
quoting United States v. McCaskill, 676 F. 2d 995, 1002 (4th Cir.
1982)).
In the case
sub judice, defendant's counsel did make requests,
though not in writing, and the trial judge denied them. In any
event, as we have previously discussed, defendant was not entitled
to these special instructions and did not prove that his counsel's
actions resulted in plain error in the charge. Thus, defendant has
not shown that his counsel acted contrary to the objective standardof reasonableness or that but for his failure to provide written
requests for instructions the result of the trial would have been
different. Therefore, the attorney's failure to provide them in
writing does not amount to ineffective assistance of counsel.
No error.
Chief Judge MARTIN and Judge TIMMONS-GOODSON concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***