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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the
print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. PATRICK CORNELIUS DAVIS Defendant
Filed: 4 January 2005
1. Criminal Law_response to jury question_not expression of opinion
The trial court did not express an opinion where defendant was charged with the armed
robbery and common-law robbery of several victims, the jury asked a question about the
requirement of a firearm as to a particular victim, the court instructed the jury that it could return
a verdict of guilty of armed robbery, guilty of common-law robbery, or not guilty, and the court
then instructed the jury on common-law robbery, having already instructed on robbery with a
firearm. N.C.G.S. § 15A-1234(a)(1).
2. Evidence_photo lineup from mug shots_not plain error
There was no plain error in a robbery prosecution in allowing an officer to testify that he
created a photo lineup from mug shots on file with the police department. There were other
references to defendant's prior criminal record, and ample evidence to find the elements of
common-law robbery and armed robbery.
3. Constitutional Law_effective assistance of counsel_negative remarks about
Defendant was not denied effective assistance of counsel where his attorney made
negative remarks at sentencing about defendant's intelligence and decision-making in opting for
trial rather than taking a plea bargain in an effort to show that he was not capable of informed,
reasoned decisions and that his sentence should not be disproportionate to sentences of his
codefendants. Defense counsel was advocating for his client; moreover, each of defendant's
sentences was within the statutory range and there is no evidence that counsel's remarks
improperly influenced the sentencing.
4. Sentencing_discrepancy--announced sentence and written judgment_right to be
Robbery sentences were vacated where there were discrepancies between the sentence
announced in open court and the written judgment. A defendant has the right to be present when
the sentence is imposed.
5. Sentencing_restitution_sufficiency of evidence
The restitution ordered to several victims in a robbery sentence was not supported by the
evidence in several instances, but was supported in one where the court took an average between
the amount the victim estimated was in her pocketbook and the higher amount an accomplice
testified was in the pocketbook.
Appeal by defendant from judgment entered 31 October 1995 by
Judge Preston Cornelius in Guilford County Superior Court. Heard
in the Court of Appeals 19 October 2004.
Attorney General Roy Cooper, by Assistant Attorney General
Daniel D. Addison, for the State.
Appellate Defender Staples Hughes, by Assistant Appellant
Defender Matthew D. Wunsche, for defendant-appellant.
MARTIN, Chief Judge.
Defendant appeals from judgments imposing active sentences of
imprisonment entered upon his conviction of three counts of robbery
with a dangerous weapon and one count of common-law robbery.
The evidence at trial tended to show that on the evening of 26
November 1994, defendant, Sam Blackmon (Blackmon) and Jamie West
(West) were driving around Greensboro in a car Blackmon had stolen
the day before. After defendant suggested holding somebody up to
make some easy money, the men saw Benny Fields, (Fields) age
fourteen, walking down Creekridge Road. Defendant, who was
driving, stopped the car and handed West a gun. Blackmon and West
got out of the car, hit Fields over the head knocking him out, and
then stole his Kansas City Chiefs Starter jacket which held Fields'
calculator and a wallet containing four dollars in it.
Blackmon and West jumped back in the car and defendant drove
them to the Four Seasons Mall. They drove around the parking lot
looking for someone they could get an easy move on. Defendant
parked the car about fifteen to twenty feet from Michael Ellis'
(Ellis) truck, took the gun, got out of the car and approached
Ellis. Defendant pointed the gun at Ellis' head and told him to
empty [his] pockets and put them on the hood of the truck. Ellis
put his money clip which held about fifty to sixty dollars on top
of the truck. Defendant grabbed the money, got back in his carand, with Blackmon driving, the men drove away.
Walter Farlow and his then girlfriend (now wife), Barbara,
were putting packages in their car when a car pulled up beside them
in the Wal-Mart parking lot. As Barbara returned the shopping cart
and Walter unlocked the driver's door, a young black male with a
gun came behind him and said, Give me your wallet. When Barbara
saw the man, she put her purse along with a shopping bag under
another car. Then, after the man demanded she return to her car,
she joined Walter by the car. As she started toward them, another
man got out of the car and picked up Barbara's purse. At Barbara's
urging, Walter took his money, approximately forty dollars, out of
his wallet and laid the money along with his wallet on the trunk of
the car. The man picked up the money and ran back to his car. As
it sped away, Walter observed three individuals in the car.
Officer Norman Rankin investigated the crimes and, as a
result of his investigation, arrested Blackmon on 28 November 1994.
Blackmon made a statement to Officer Rankin confessing his
involvement in the crimes and implicating West and defendant. The
police arrested defendant on 30 November 1994 charging him with
four counts of robbery with a dangerous weapon.
 Defendant first argues the trial court violated its
statutory and constitutional responsibilities by expressing its
opinion as to defendant's guilt in response to the jury's question
about an element of robbery with a dangerous weapon. During
deliberations the jury sent a note asking the court, Is guilty of
robbery allowed without saying by firearm? RE: Benny Fields. Thecourt brought the jury back into the courtroom and instructed them
As to that particular charge, members of the jury, you
may return one of three possible verdicts _ guilty of
robbery with a firearm and I'm going to tell you about
common law robbery or not guilty. I think you've already
been charged as to robbery with a firearm.
The judge then proceeded to instruct the jury on common law
First, the State notes that defendant failed to preserve this
issue for review on appeal because he failed to object to the
instructions at trial. However, in State v. Tucker, 91 N.C. App.
511, 516, 372 S.E.2d 328, 331 (1988) this Court held defendant did
not waive his right to pursue his appeal by failing to object to
additional jury instructions.
N.C. Gen. Stat. § 15A-1234(a)(1) (2003) provides [a]fter the
jury retires for deliberation, the judge may give appropriate
additional instructions to . . . [r]espond to an inquiry of the
jury made in open court. This statute does not prevent the judge
from responding in open court to a written question from the jury.
State v. Davis, 353 N.C. 1, 17, 539 S.E.2d 243, 255 (2000), cert.
denied, 534 U.S. 839, 151 L. Ed. 2d 55 (2001). In addition, the
judge is not required to repeat instructions which have been
previously given to the jury in the absence of some error in the
charge. State v. Hockett, 309 N.C. 794, 800, 309 S.E.2d 249, 252
It is apparent from the record that the judge instructed the
jurors that they had three options: guilty of robbery with a
firearm, guilty of common law robbery or not guilty. Since an
instruction in the elements necessary for conviction of robberywith a firearm had previously been given, the court only instructed
the jury on the elements of common law robbery. The instruction
does not indicate an expression of opinion in violation of
defendant's statutory or constitutional rights. The assignment of
error is overruled.
 Next, defendant argues the trial court committed plain
error by allowing Detective A. C. Yow (Yow) to testify that he
created a photo lineup from mug shots on file with the police
department. The testimony was prejudicial, defendant argues,
because it amounted to evidence of defendant's prior criminal
Where a defendant has not preserved an issue for review by
objecting at trial, an appellate court may review the issue only
for plain error. N.C. R. App. P. 10(c)(4). Under a plain error
analysis, defendant is entitled to a new trial only if the error
was so fundamental that, absent the error, the jury probably would
have reached a different result. State v. Jones, 355 N.C. 117,
125, 558 S.E.2d 97, 103 (2002).
Detective Yow testified at trial that he
took the names of the known suspects and in
our computer system with Guilford County all
mug shots are done in this computer and filed.
This filing system, when you are setting up a
series of picture line-ups picks subjects of
the same characteristics, same heights,
basically the same weight and they present
these pictures to us and then we do the line-
However, there were other references at trial to defendant's
prior criminal record. Blackmon testified that after defendant got
back into the car at Wal-Mart, defendant was all tensed up andsaid he wasn't going back to prison. Blackmon also testified
that when he answered a phone call at defendant's mother's home, he
asked who was calling because defendant's mother said, which one
called because he has brothers that's locked up too. At trial,
Detective Norman Rankin of the Greensboro Police Department read a
statement given on 23 October 1995 by Blackmon in his own
handwriting which said, inter alia, [defendant] don't [sic] want
to go back to prison.
Furthermore, there was ample evidence in the record to permit
the jury to find the elements of common-law robbery and robbery
with a dangerous weapon. After careful review of the record, we
cannot say absent the reference to the mug shots, the outcome of
the trial would have been different. Therefore, the assignment of
error is without merit.
 Defendant alleges he was denied effective assistance of
counsel during sentencing when his attorney failed to advocate for
him and argued he should receive a harsher sentence than his co-
defendants. A defendant has a right to the effective assistance of
his counsel. State v. Braswell, 312 N.C. 553, 561, 324 S.E.2d 241,
247 (1985). In order to establish a claim of ineffective
assistance of counsel, defendant, using an objective standard of
reasonableness, must meet a two-prong test established by the
United States Supreme Court. Strickland v. Washington, 466 U.S.
668, 687, 80 L. Ed. 2d 674, 693 (1984).
First, the defendant must show that counsel's performance
was deficient. This requires showing that counsel made
errors so serious that counsel was not functioning as the
'counsel' guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that thedeficient performance prejudiced the defense. This
requires showing that counsel's errors were so serious as
to deprive the defendant of a fair trial, a trial whose
result is reliable.
Id. The fact that counsel made an error, even an unreasonable
error, does not warrant reversal of a conviction unless there is a
reasonable probability that, but for counsel's errors, there would
have been a different result in the proceedings, Braswell, 312
N.C. at 563, 324 S.E.2d at 248.
Although defense counsel made negative remarks during the
sentencing hearing about defendant's intelligence, his decision
making and his decision to opt for a trial rather than taking a
plea bargain, when viewing the totality of the evidence, it is
apparent he did this in an effort to advocate for his client.
Defense counsel attempted to show that defendant was not mentally
capable of making informed, reasoned decisions and therefore his
sentence should not be incredibly disproportionate to his fellows
when he's got that kind of thing going on.
Defense counsel requested that the court consolidate the
Farlow cases into one case and the other two cases into one so
defendant would be sentenced for only two cases rather than four.
Without consolidation, defense counsel contended defendant would be
looking at 20-some years which he argued was incredibly
disproportionate to the other people involved in the crime as well
as what to me would be simple notions of justice.
Defendant relies on State v. Davidson, 77 N.C. App. 540, 335
S.E.2d 518 (1985), disc. review denied, 315 N.C. 393, 338 S.E.2d
882 (1986), where defendant's counsel was deemed ineffective.
However, in Davidson, unlike the present case, defendant's counseloffered no argument in defendant's favor, made no plea for
findings of mitigating factors, failed to argue for reduced
punishment on the basis that defendant was not the armed
participant, failed to suggest any favorable or mitigating aspects
of defendant's background, and failed even to advocate leniency.
Id. at 545, 335 S.E.2d at 521.
In addition to failing to establish that defense counsel was
not functioning as counsel, defendant has not demonstrated that but
for counsel's error his sentence would have differed. When a
sentence is within the statutory limit it will be presumed regular
and valid unless the record discloses that the court considered
irrelevant and improper matter in determining the severity of the
sentence. State v. Johnson, 320 N.C. 746, 753, 360 S.E.2d 676,
681 (1987). Each of defendant's sentences were within the
presumptive range and there is no evidence in the record showing
that counsel's arguments improperly influenced the trial court's
sentencing. Accordingly, the assignment of error is overruled.
 Next defendant contends the trial court erred when it
increased defendant's sentence in the written judgment after
announcing a different sentence in open court. The State, in its
brief, concedes there were discrepancies between the judgment
announced in open court and the written judgment form.
A defendant has a right to be present at the time the sentence
was imposed. State v. Crumbley, 135 N.C. App. 59, 66, 519 S.E.2d
94, 99 (1999). Because defendant was not present at the time the
written judgment was entered, the sentence must be vacated and the
matter remanded for the entry of a new sentencing judgment. Id.
 In his final argument, defendant asserts the evidence did
not support the amount of restitution the trial court ordered
defendant to pay to the four victims. At the sentencing hearing,
the trial court awarded $45.00 to Michael Ellis, $125.00 to Benny
Fields. $180.00 to Barbara Farlow and $50.00 to Walter Farlow as
restitution. The State concedes the evidence did not support the
amounts of restitution ordered as to Michael Ellis, Benny Fields
and Walter Farlow. As to Barbara Farlow, the evidence at trial was
Barbara Farlow testified that although she did not know the
exact amount, the pocketbook taken from her contained between a
hundred and twenty and a hundred and fifty dollars in cash. On
the other hand, West testified the pocketbook contained about
$240.00 of which he took $40.00. It appears the trial court, in
awarding $180.00, took an average between Barbara Farlow's lowest
estimate of $120.00 and West's estimate of $240.00.
The amount of restitution ordered by the trial court must be
supported by the evidence. State v. Wilson
, 340 N.C. 720, 726, 459
S.E.2d 192, 196 (1995). However, [w]hen, as here, there is some
evidence as to the appropriate amount of restitution, the
recommendation will not be overruled on appeal. State v. Hunt
N.C. App. 190, 195, 341 S.E.2d 350, 354 (1986). Therefore, we will
not disturb the trial court's order of restitution to Barbara
Farlow. We remand for reconsideration of restitution as to Michael
Ellis, Benny Fields and Walter Farlow.
Defendant's remaining assignments of error were not brought
forward in his brief and thus are deemed abandoned. N.C. R. App.P. 28(a).
No error in trial, remanded for resentencing and
redetermination of restitution.
Judges McCULLOUGH and ELMORE concur.
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