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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
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STATE OF NORTH CAROLINA v. ELI ALVAREZ
Filed: 15 February 2005
1. Homicide--first-degree murder--short-form indictment--constitutionality
A short-form indictment used to charge defendant with first-degree murder is
2. Jury_-peremptory challenges--Batson challenge--race-neutral reasons
The trial court did not err in a double first-degree murder, first-degree kidnapping, and
robbery with a firearm case by denying defendant's Batson challenge to the State's exercise of a
peremptory challenge to remove a prospective African-American juror, because sufficient race-
neutral reasons for the State's challenge to the prospective juror were presented to comply with
Batson including that: (1) the prospective juror's responses on the death penalty questionnaire
were weak; (2) she admitted she might develop sympathy toward defendant; and (3) she made a
misrepresentation on her juror questionnaire.
3. Identification of Defendants--photographic identification--discrepancies
The trial court did not err in a double first-degree murder, first-degree kidnapping, and
robbery with a firearm case by denying defendant's motion to suppress a photographic
identification, because: (1) although defendant argues several instances that question the validity
of the witness's identification, her interaction with defendant both on 10 February 2001 and 11
February 2001 supports her identification; (2) the witness was in the driver's seat of the pertinent
car when defendant yelled at her to open the door, banged on the window, and shot out the
driver's side window; and (3) the discrepancies cited by defendant do not render the
identification impermissible, but are for the jury to weigh and consider in determining the
4. Evidence--prior crimes or bad acts--robberies
The trial court did not abuse its discretion in a double first-degree murder, first-degree
kidnapping, and robbery with a firearm case by denying defendant's motion to suppress evidence
of prior robberies, because: (1) the robberies were sufficiently similar in how they were
committed and occurred within weeks of each other; (2) the State proffered testimony that the
robberies were all part of a common scheme or plan toward a drug transaction with a
Connecticut gang; and (3) prior to the introduction of testimony concerning the robberies, the
trial court cautioned and instructed the jury to consider the evidence only for the limited purpose
of showing an alleged common scheme, and the trial court again provided this limiting
instruction when it charged the jury prior to deliberations.
5. Evidence--limitation on cross-examination--coparticipant's pending charges
The trial court did not abuse its discretion in a double first-degree murder, first-degree
kidnapping, and robbery with a firearm case by allegedly limiting the cross-examination of
defendant's coparticipant concerning pending charges against him, because: (1) the only
instances where the trial court sustained the State's objections during defendant's cross-
examination occurred after defendant had asked the witness about third-party statements offered
for the truth of the matter asserted; (2) other testimony was admitted regarding the witness'spenal interest in defendant's case; (3) the jury instructions specifically pointed to the potential
bias concerning the witness's testimony against defendant; and (4) the record did not disclose
any voir dire or offers of proof submitted by defendant's counsel following the trial court
sustaining the State's hearsay objections of what the witness's answers would have been.
6. Constitutional Law--effective assistance of counsel_-alleged concession of guilt
Defendant was not denied effective assistance of counsel in a double first-degree murder,
first-degree kidnapping, and robbery with a firearm case based on his counsel allegedly
conceding defendant's guilt twice during the closing argument to the jury, because: (1) taken in
context with counsel's closing argument that all events arose in a drug deal gone bad, the
concession that defendant was the getaway driver related to an intended drug deal, not a murder,
and was the crux of defendant's argument throughout trial; (2) the other pertinent comment that
if the jury found defendant not guilty of going to the victim's residence to commit an armed
robbery, you will find him guilty of everything else or not guilty of everything else merely
spoke to the charges involved and the resulting practical implications rather than being a
reference to or indication of defendant being guilty of the crimes charged; (3) neither attorney
conceded defendant's guilt to the crimes charged or to any lesser-included offense; and (4)
defendant failed to show that his counsels' performance was so deficient that they were not
acting as counsel for defendant and that the deficiencies complained of deprived defendant of a
7. Homicide--first-degree murder--failure to instruct on lesser-included offense of
The trial court did not err in a double first-degree murder case by failing to provide a jury
instruction on involuntary manslaughter because when a jury is properly instructed on the
elements on first-degree murder and second-degree murder and thereafter returns a verdict of
first-degree murder based on premeditation and deliberation like in the instant case, any error in
the trial court's failure to instruct on involuntary manslaughter is harmless even if the evidence
would have supported such an instruction.
Appeal by defendant from judgments entered 1 April 2003 by
Judge Melzer A. Morgan, Jr., in Forsyth County Superior Court.
Heard in the Court of Appeals 25 January 2005.
Attorney General Roy Cooper, by Special Deputy Attorney
General David Roy Blackwell, for the State.
Paul Pooley, for defendant-appellant.
Eli Alvarez (defendant) appeals
from judgments entered after
a jury found him to be guilty of:
(1) two counts of first-degreemurder; (2) first-degree kidnapping; and (3) robbery with a
firearm. We find no error.
The State's evidence tended to show Robert E. Sanchez
(Sanchez), Juan Suarez (Suarez), and defendant met in January
2001. Defendant and Sanchez were both members of the Latin
Kings, a Puerto Rican gang. Sanchez, Suarez, and defendant
discussed various crimes they planned to commit. One possible
crime involved robbing Jose Luis Vera (Chepa), a well-known drug
dealer who dealt in large amounts of contraband. The three men
obtained information that Chepa may live in an apartment complex
located on Timlic Avenue in Winston-Salem, North Carolina. They
traveled there on the night of 11 February 2001 to find him.
Defendant, Suarez, and Sanchez arrived at the apartment
complex and observed a black Honda in the parking lot. Defendant
just flipped and ran towards the car.
Gustavo Saguilan Ventura (Gustavo), Noe Silva (Noe),
Felipa Ayona (Felipa), Noelina Ayona (Noelina), and Ader
Gonzalez (El Flocco) had planned to go to a dance club on the
night of 11 February 2001. Felipa drove Gustavo, Noe, and Noelina
in a black Honda to pick up El Flocco, who lived in an apartment on
While Felipa, Gustavo, Noe, and Noelina waited for El Flocco
in the parking lot, defendant, Sanchez, and Suarez attacked the
car. One of the attackers spoke Puerto Rican and told them to
get out of the car. He hit the driver's side window with a gun,
but it did not break. He then aimed the gun at the window, firedthe gun, and shattered the window. Felipa backed the Honda away
from the men and drove to Chepa's house on Marne Street.
After Felipa drove the black Honda away from the scene,
defendant ran towards El Flocco as he emerged from his apartment.
Defendant held El Flocco at gunpoint while Suarez and Sanchez
ransacked his apartment. After El Flocco told defendant where
Chepa lived, the assailants forced El Flocco into their car and
drove to Chepa's house.
Vincenta Marin Cruz (Cruz) and her husband, Chepa, were
present at their house on Marne Street the night of 11 February
2001, along with Bernarda Marin, her husband, Ignacio Clemente, and
their two daughters. At approximately 9:00 p.m., Felipa, Ventura,
Noe, and Noelina arrived at Chepa's house nervous and scared. They
explained what occurred at El Flocco's apartment. Ignacio Clemente
looked out the window and saw three men walking toward the house
with El Flocco. Chepa told everyone to get in a back bedroom and
call the police. Cruz gave Chepa an AK-47 rifle before he left
the bedroom to confront the three men.
Defendant and Sanchez, both armed, led El Flocco up to Chepa's
front door. Sanchez kicked in the door to find Chepa standing in
the hallway holding the rifle. Sanchez dropped to the floor.
Defendant, while using El Flocco as a human shield, fired multiple
times hitting Chepa.
While in the bedroom, Ventura heard gunshots and Chepa cry out
that he had been shot. Cruz called the police, then passed the
phone to Felipa who provided the street address to the dispatcher. After defendant shot Chepa, Sanchez grabbed Chepa's rifle and
ran out of the house towards their car. Defendant led El Flocco
through the house to the back door, then emptied his clip into El
Flocco, killing him. Sanchez and Suarez had driven away and met
with defendant later.
Winston-Salem Police Officers
Livingstone and Branshaw both
responded to a shots fired call on Marne Street shortly before
. Officer Livingstone arrived at Chepa's home just after
9:00 p.m. Officer Branshaw was already on the scene. Officer
Livingstone observed a black Honda with a shattered window parked
near the street, and spent brass shell casings on the steps and
front porch. He entered the living room through the open front
door and saw Chepa's body lying in the hallway. Officer Branshaw
informed Officer Livingstone that he found El Flocco's body near
the back door. Cruz,
Clemente, Marin and
Clemente's two daughters,
Felipa, Ventura, Noe, and Noelina
remained at the scene. All appeared to be traumatized.
officers observed massive blood splatter on the kitchen floor and
Winston-Salem Police Detective Russell Lamar Barbee
(Detective Barbee) arrived on the scene at 10:30 p.m. He also
observed Felipa's black Honda
parked at the foot of the driveway
with a shattered driver's side window
. As he approached Chepa's
house, he observed several brass shell casings on the front
sidewalk and the front porch. More brass shell casings were
located just inside the front door. Inside, the wall dividing the
living room from the kitchen bore several bullet holes sprayedrandomly. The ceiling bore one bullet hole, and another bullet had
penetrated a window.
Detective Barbee saw Chepa's body literally covered in
blood. He viewed blood splatter all over the floor and on the
walls of the kitchen. Detective Barbee found a spent, deformed
bullet laying on the concrete step at the back of the house, near
El Flocco's body. The bullet was later identified to have been
fired from defendant's
On 12 February 2001, defendant was arrested for the murders of
Chepa and El Flocco. The police seized his gun and ammunition that
was later identified as the murder weapon. The Grand Jury returned
true bills of indictment charging defendant with: (1) two counts
of first-degree murder; (2) first-degree kidnapping; (3) robbery
with a dangerous weapon; and (4) discharge of a dangerous weapon
into occupied property. On 27 January 2003, the Grand Jury
returned a superceding indictment in the first-degree murders.
Defendant was tried capitally by a jury at the 24 February
2003 Criminal Session in Forsyth County Superior Court. On 26
March 2003, the jury found defendant to be guilty of: (1) two
counts of first-degree murder; (2) first-degree kidnapping; and (3)
robbery with a firearm. The jury failed to reach an unanimous
verdict on the discharge of a dangerous weapon into occupied
property charge, and the State took a dismissal.
Following a capital sentencing hearing and after the jury did
not recommend death, defendant was sentenced to two consecutive
terms of life imprisonment without parole. Defendant appeals.
Defendant argues: (1) the short-form indictments are
unconstitutional; (2) the trial court erred in: (a) denying
defendant's objection to the State's peremptory challenge to strike
a juror; (b) denying defendant's motion to suppress a photographic
identification and evidence of prior robberies; (c) limiting
defendant's cross-examination of a State's witness; and (d) not
submitting the charge of involuntary manslaughter to the jury; and
(3) defendant was denied his constitutional right to effective
assistance of counsel.
III. Short-Form Indictments
 Defendant argues that the short-form murder indictment
violated his rights under the Fifth, Sixth, and Fourteenth
Amendments to the United States Constitution and under Article I,
§§ 19, 22, and 23 of the North Carolina Constitution. We disagree.
We have reviewed over fifty additional decisions in which
this issue has been raised and rejected by our Supreme Court and
this Court in the last three years. These decisions consistently
hold that the short[-]form murder indictment is constitutional.
State v. Messick, 159 N.C. App. 232, 238, 585 S.E.2d 392, 396
(2003), per curiam aff'd, 358 N.C. 145, 593 S.E.2d 583 (2004).
This assignment of error is summarily dismissed.
IV. Peremptory Challenge
 Defendant argues the trial court erred in denying his
Batson challenge to the State's exercising of a peremptory
challenge to remove a prospective African-American juror. We
disagree. Our Supreme Court recently addressed Batson's application in
State v. Williams.
The Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution
and Article I, Section 26 of the North
Carolina Constitution prohibit a prosecutor
from peremptorily excusing a prospective juror
solely on the basis of his or her race.
Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d
69, 106 S. Ct. 1712 (1986); State v. Floyd,
343 N.C. 101, 106, 468 S.E.2d 46, 50, cert.
denied,  U.S. , 136 L. Ed. 2d 170
(1996). A three-step process has been
established for evaluating claims of racial
discrimination in the prosecution's use of
peremptory challenges. Hernandez v. New York,
500 U.S. 352, 359, 114 L. Ed. 2d 395, 405, 111
S. Ct. 1859 (1991). First, defendant must
establish a prima facie case that the
peremptory challenge was exercised on the
basis of race. Id. Second, if such a showing
is made, the burden shifts to the prosecutor
to offer a race-neutral explanation to rebut
defendant's prima facie case. Id. Third, the
trial court must determine whether the
defendant has proven purposeful
355 N.C. 501, 550, 565 S.E.2d 609, 638-39 (2002) (quoting State v.
Lemons, 348 N.C. 335, 360-61, 501 S.E.2d 309, 324-25 (1998),
sentence vacated on other grounds, 527 U.S. 1018, 144 L. Ed. 2d 768
(1999)), cert. denied, 537 U.S. 1125, 154 L. Ed. 2d 808 (2003).
Here, defendant argues the State's peremptory challenge of a
prospective African-American juror was based solely on race.
Defendant offered the following evidence to support his prima facie
case of discrimination: (1) seventy-five percent of prospective
African-American jurors were excused; (2) the prospective juror
rejected was not distinguishable from a white juror the State
selected earlier; and (3) the prospective juror supplied good,
middle of the road answers on her questionnaire. The State offered the following race-neutral explanations for
its challenge to the prospective juror: (1) her responses on the
death penalty questionnaire were weak; (2) she admitted that she
might develop sympathy towards defendant; and (3) she made a
misrepresentation on her juror questionnaire.
Defendant responded to the State's three race-neutral reasons
by arguing those reasons were insufficient to distinguish this
prospective juror from others the State had selected. First, the
juror's hesitancy towards use of the death penalty is a common
answer and is exactly what the law is. Second, although she
admitted that she might feel sympathy for defendant, she was very
adamant about . . . being able to set that aside. Third, the
State selected a white, male, twenty-seven-year-old, unemployed,
ninth grade dropout who did not fit the conservative, employed,
educated, members of the community demographic the State
supposedly sought from the jury pool.
The trial court ruled, there has been no purposeful
discrimination proven [and] the explanations given were not
The Williams Court noted that once the prosecutor offers race-
neutral explanations for the peremptory challenges, 'the only
issue for [the appellate court] to determine is whether the trial
court correctly concluded that the prosecutor had not intentionally
discriminated.' 355 N.C. at 551, 565 S.E.2d at 638-39 (quoting
Lemons, 348 N.C. at 361, 501 S.E.2d at 325). As 'the trial court
is in the best position to assess the prosecutor's credibility, we
will not overturn its determination absent clear error.' Williams, 355 N.C. at 551, 565 S.E.2d at 638-39 (quoting Lemons,
348 N.C. at 361, 501 S.E.2d at 325 (citation omitted)).
Defendant has failed to show clear error in the trial
court's overruling of defendant's objection. Sufficient race-
neutral reasons for the State's challenge to the prospective juror
were presented to comply with Batson. This assignment of error is
V. Motions to Suppress
 Defendant contends the trial court erred in denying his
motions to suppress: (1) a photographic identification; and (2)
evidence of prior robberies. We disagree
A. Photographic Identification
Our Supreme Court addressed this issue in State v. Rogers,
where it recognized that determining [w]hether an identification
procedure is unduly suggestive depends on the totality of the
circumstances. 355 N.C. 420, 432, 562 S.E.2d 859, 868 (2002)
(citing State v. Pigott, 320 N.C. 96, 99, 357 S.E.2d 631, 633
(1987)). 'First, the Court must determine whether the
identification procedures were impermissibly suggestive . . . . If
so, the Court must then determine whether the [suggestive]
procedures created a substantial likelihood of irreparable
misidentification.' State v. Rogers, 355 N.C. 420, 432, 562
S.E.2d 859, 868 (quoting State v. Fowler, 353 N.C. 599, 617, 548
S.E.2d 684, 698 (2001), cert. denied, 535 U.S. 939, 152 L. Ed. 2d
230 (2002)) (alteration in original). Our standard of review is to
determine whether competent evidence supports the trial court'sfindings of fact. Rogers, 355 N.C. at 433, 562 S.E.2d at 869
(citing Fowler, 353 N.C. at 618, 548 S.E.2d at 698).
1. Impermissible Suggestiveness
In Rogers, our Supreme Court considered the factors in
analyzing whether a photographic identification was impermissibly
suggestive, including: (1) the opportunity of the witness to view
the criminal at the time of the crime; (2) the witness's degree of
attention; (3) the accuracy of the witness's prior description of
the criminal; (4) the level of certainty shown by the witness; and
(5) the time between the offense and the identification. 355 N.C.
at 432, 562 S.E.2d at 868; see Manson v. Brathwaite, 432 U.S. 98,
114, 53 L. Ed. 2d 140, 154 (1977).
Here, Felipa identified defendant based on: (1) seeing
defendant and recognizing his voice during the attack on the black
Honda at El Flocco's apartment; and (2) seeing and hearing
defendant at a bar the night before the shooting. Felipa did not
see any of the three individuals as they arrived at Chepa's house.
Defendant argues that despite Felipa's recognition of
defendant, her photo identification in January 2003 was
impermissibly suggestive because: (1) Felipa failed to identify
defendant from a similar line-up ten days after the crime; (2)
Felipa saw a photo of defendant in a newspaper article discussing
the case in February 2001; (3) Felipa saw defendant in court at a
bond hearing in May 2002; and (4) Felipa was not completely certain
about identifying defendant's photo in January 2003.
Under our standard of review, we hold that competent evidence
exists to justify the trial court's denial of defendant's motion tosuppress the photographic identification. See Rogers, 355 N.C. at
432, 562 S.E.2d at 868 (citing Fowler, 353 N.C. at 618, 548 S.E.2d
at 698). Although defendant argues several instances that question
the validity of Felipa's identification, Felipa's interaction with
defendant both on 10 February 2001 and 11 February 2001 supports
her identification. She was in the driver's seat of the black
Honda when defendant yelled at her to open the door, banged on the
window, and shot out the driver's side window. The trial court
correctly noted that discrepancies cited by defendant do not render
Felipa's identification inadmissible, but are for the jury to weigh
and consider in determining Felipa's credibility. This assignment
of error is overruled.
B. Other Crimes
 Defendant argues the trial court's admission of evidence
of other crimes was prejudicial error and requires a new trial. We
Rule 404(b) of the North Carolina Rules of Evidence states in
Evidence of other crimes, wrongs, or acts is
not admissible to prove the character of a
person in order to show that he acted in
conformity therewith. It may, however, be
admissible for other purposes, such as proof
of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of
mistake, entrapment or accident.
N.C. Gen. Stat. § 8C-1, Rule 404(b) (2003). The admissibility of
404(b) evidence is subject to the weighing of probative value
versus unfair prejudice mandated by Rule 403. State v. Agee, 326
N.C. 542, 549, 391 S.E.2d 171, 175 (1990) (citing United States v.
Montes-Cardenas, 746 F.2d 771, 780 (11th Cir. 1984)); N.C. Gen.Stat. § 8C-1, Rule 403 (2003) (Although relevant, evidence may be
excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading
the jury, or by considerations of unfair delay, waste of time, or
needless presentation of cumulative evidence.). Rule 404(b) is a
rule of inclusion, not exclusion. Agee, 326 N.C. at 550, 391
S.E.2d at 175 (citation omitted).
The balancing of these factors lies within the sound
discretion of the trial court, and the trial court's ruling should
not be overturned on appeal unless the ruling was 'manifestly
unsupported by reason or [was] so arbitrary that it could not have
been the result of a reasoned decision.' State v. Hyde, 352 N.C.
37, 55, 530 S.E.2d 281, 293 (2000) (quoting State v. Hennis, 323
N.C. 279, 285, 372 S.E.2d 523, 527 (1988)), cert. denied, 531 U.S.
1114, 148 L. Ed. 2d 775 (2001). [S]uch [404(b)] evidence is
relevant and admissible so long as the incidents are sufficiently
similar and not too remote. State v. Blackwell, 133 N.C. App. 31,
35, 514 S.E.2d 116, 119 (citing State v. Bagley, 321 N.C. 201, 207,
362 S.E.2d 244, 247-48 (1987)), cert. denied, 350 N.C. 595, 537
S.E.2d 483 (1999); see also State v. Smith, 152 N.C. App. 514, 527,
568 S.E.2d 289 (The use of evidence permitted under Rule 404(b) is
guided by two constraints: similarity and temporal proximity.)
(citation omitted), cert. denied, 356 N.C. 623, 575 S.E.2d 757
The State offered evidence concerning the robberies by
defendant of Severo Peralta, Marchello Young, and Toledo Leopoldo.
All three robberies occurred immediately prior to 11 February 2001,satisfying temporal proximity. Each of the robberies was
committed: (1) by Sanchez, Suarez, and defendant; (2) at gunpoint;
(3) for money, jewelry, and/or drugs; (4) after the three men
discussed robbing individuals to finance their drug trafficking
operation involving a gang in Connecticut; and (5) based upon an
agreement to divide the loot. The robberies involved Hispanic drug
dealers and show a particular modus operandi of defendant, Suarez,
and Sanchez. Finally, the robberies were interrelated with the
murders and kidnapping under a common scheme and purpose.
Evidence of other crimes or acts committed by defendant may
be admissible under Rule 404(b) if they establish a chain of
circumstances or help create a context of the charged crime. Agee,
326 N.C. at 548, 391 S.E.2d at 174 (citation omitted). The
evidence must enhance the natural development of the facts or be
necessary to complete the story of the crime at issue for the jury.
Our review of the record and transcript indicate the trial
court did not err in permitting the admission of the three
robberies. Each was sufficiently similar in how they were
committed and occurred within weeks of one another. In addition,
the State proffered testimony that the robberies were all part of
a common scheme or plan towards a drug transaction with a
We further recognize that prior to the introduction of
testimony concerning the robberies, the trial court cautioned and
instructed the jury to consider the evidence only for the limited
purposes of showing an alleged common scheme. The trial courtagain provided this limiting instruction when it charged the jury
prior to deliberations.
Defendant has failed to show the trial court abused its
discretion in admitting the evidence of the prior robberies. This
assignment of error is overruled.
VI. Limitation of a Cross-Examination
 Defendant contends the trial court erred in prohibiting
the cross-examination of Suarez concerning pending charges against
him. We disagree.
A witness may be cross-examined on any matter relevant to any
issue in the case, including credibility. N.C. Gen. Stat. § 8C-1,
Rule 611(b) (2003). Evidence that tends to show that a witness is
biased with respect to a party or issue goes to credibility. State
v. Hart, 239 N.C. 709, 711, 80 S.E.2d 901, 902-03 (1954) (citation
omitted). Thus, a party may inquire of an opposing witness on
cross-examination particular facts having a logical tendency to
show that the witness is biased against him or his cause, or that
the witness is interested adversely to him in the outcome of the
litigation. Id. (citations omitted). Although the scope of
cross-examination is subject to the control of the trial court,
State v. Hosey, 318 N.C. 330, 334-35, 348 S.E.2d 805, 808 (1986),
it may not limit a showing of bias or interest, a recognized
substantial legal right. Hart, 239 N.C. at 711, 80 S.E.2d at 902-
03 (citations omitted).
Here, defendant sought to cross-examine Suarez about his
interest in the case. Specifically, defendant inquired whether
Suarez was receiving favorable treatment from the State in exchangefor his testimony against defendant. Under the North Carolina
Rules of Evidence and prior case law, such questioning is permitted
to attack the credibility of the witness. See State v. Graham, 118
N.C. App. 231, 237-38, 454 S.E.2d 878, 882, disc. rev. denied, 340
N.C. 262, 456 S.E.2d 834 (1995). We review the trial court's
limitation of this line of questioning under the abuse of
discretion standard. Jones v. Rochelle, 125 N.C. App. 82, 85-86,
479 S.E.2d 231, 233 (such a ruling will not be disturbed unless it
is shown that it was so arbitrary that it could not have been the
product of a reasoned decision), disc. rev. denied, 346 N.C. 178,
486 S.E.2d 205 (1997).
Our complete review of the transcript detailing defendant's
cross-examination of Suarez shows the limitations imposed by the
trial court resulted from N.C. Gen. Stat. § 8C-1, Rule 802 (2003).
(Hearsay is not admissible except as provided by these rules.).
The only instances where the trial court sustained objections by
the State during defendant's cross-examination occurred after
defendant had asked Suarez about third-party statements offered for
the truth of the matter asserted. See Livermon v. Bridgett, 77
N.C. App. 533, 539-40, 335 S.E.2d 753, 757 (1985) (a statement by
one other than the presently testifying witness is hearsay and
inadmissible if offered for the truth of the matter asserted),
cert. denied, 315 N.C. 391, 338 S.E.2d 880 (1986). Defendant fails
to show that the State's objections were sustained for any other
reason. Other testimony was admitted regarding Suarez's penal
interest in defendant's case. We hold the trial court did not abuse its discretion in
limiting defendant's cross-examination of Suarez for hearsay
reasons. We further note that in the jury instructions the trial
court specifically pointed to the potential bias concerning
Suarez's testimony against defendant. Finally, the record did not
disclose any voir dire or offers of proof submitted by defendant's
counsel following the trial court sustaining the State's hearsay
objections of what Suarez's answers would have been. This
assignment of error is overruled.
VII. Ineffective Assistance of Counsel
 Defendant contends his attorneys violated his
constitutional rights by twice conceding his guilt during the
closing argument to the jury. We disagree.
Our Supreme Court adopted the United States Supreme Court's
language in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d
674, reh'g denied by, 467 U.S. 1267, 82 L. Ed. 2d 864 (1984),
concerning claims of ineffective assistance of counsel. State v.
Braswell, 312 N.C. 553, 324 S.E.2d 241 (1985). The Braswell Court
developed a two-part test in considering these arguments:
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 by the Sixth Amendment.
Second, the defendant must show that the
deficient 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
312 N.C. at 562, 324 S.E.2d at 248 (quoting Strickland, 466 U.S. at
687, 80 L. Ed. 2d at 693). In State v. Harbison, our Supreme Courtdetermined that ineffective assistance of counsel, per se in
violation of the Sixth Amendment, has been established in every
criminal case in which the defendant's counsel admits the
defendant's guilt to the jury without the defendant's consent.
315 N.C. 175, 180, 337 S.E.2d 504, 507-08 (1985), cert. denied, 476
U.S. 1123, 90 L. Ed. 2d 672 (1986).
A. First Concession
Here, defendant was represented by two attorneys, each of whom
made a closing argument to the jury. Defendant's first attorney
chronicled the events of 11 February 2001 and described them as a
drug deal gone bad. He argued that defendant, Sanchez, and
Suarez went to Chepa's house for a drug transaction. Sanchez and
Suarez went to the house, while defendant remained in the car.
Defense counsel explained that once the shooting began, he
described defendant's situation as: He's the getaway driver.
He's a bad getaway driver because he just left them there.
Defendant argues this concession that he was the getaway driver
was made without his consent and violated his constitutional
The strength of defendant's defense against the charges of
first-degree murder, first-degree kidnapping, and robbery with a
firearm, was his assertion that the events of 11 February 2001 were
a drug deal gone bad. Defendant asserted no intention of
participating in a kidnapping or killing. Rather, he argued that
he was the driver, while Suarez and Sanchez attempted to broker a
drug deal with Chepa. Defendant testified to and offered further
evidence of this argument. Taken in context with counsel's closingargument that all events arose in a drug deal gone bad, the
concession that defendant was the getaway driver: (1) related to
an intended drug deal, not a murder; and (2) was the crux of
defendant's argument throughout trial. This assignment of error is
B. Second Concession
Defendant's second counsel continued the argument that the
events of 11 February 2001 were not intended to be a kidnapping,
robbery, and/or killings. Instead, he argued that everyone went to
Chepa's house on Marne Street for a drug transaction. Included in
this closing argument was the following excerpt:
I think the whole case really stems from the
[State's] allegation that [defendant] and
these other people went over there to commit a
robbery with a dangerous weapon; that is, to
steal a rifle from [Chepa]. I contend to you
there's no evidence that [defendant] ever did
that, and everything else flows from that. If
you find him not guilty of that, I would
contend, as a practical matter, although the
judge will give you the law, that you will
find him guilty of everything else or not
guilty of everything else.
(emphasis supplied). This language does not amount to a concession
of guilt by defense counsel.
Defense counsel argued that Suarez and Sanchez were the real
perpetrators of the crimes and defendant was the perfect patsy.
The above comment on defendant's guilt merely spoke to the charges
involved and the resulting practical implications. There is no
reference to or indication of defendant being guilty of the crimes
C. Harbison and Strickland Analysis
Harbison applies when defense counsel concedes defendant's
guilt to either the charged offense or a lesser included offense.
State v. Wiley, 355 N.C. 592, 619-20, 565 S.E.2d 22, 42 (2002),
cert. denied, 537 U.S. 1117, 154 L. Ed. 2d 795 (2003). Here, the
primary defense to the crimes charged centered on explaining the
events as an uncharged drug transaction gone terribly wrong. Both
closing argument comments which defendant assigns error to were in
the context of that central argument. Neither attorney conceded
defendant's guilt to the crimes charged or any lesser-included
offense. See State v. Gainey, 355 N.C. 73, 92-93, 558 S.E.2d 463,
476 (counsel merely noted defendant's involvement in the events
surrounding the death of the victim), cert. denied, 537 U.S. 896,
154 L. Ed. 2d 165 (2002).
In addition, defendant has failed to show and our review of
the record and transcript does not indicate that: (1) defense
counsel's performance was so deficient that they were not acting as
counsel for defendant; and (2) the deficiencies complained of
deprived defendant of a fair trial. See Strickland, 466 U.S. at
687, 80 L. Ed. 2d at 693. This assignment of error is overruled.
VIII. Lesser-Included Offense
 Defendant asserts the trial court erred in not providing
the jury an instruction on involuntary manslaughter. We disagree.
Our Supreme Court has held that when a jury is properly
instructed on the elements of first-degree and second-degree murder
and thereafter returns a verdict of first-degree murder based on
premeditation and deliberation, any error in the court's failure to
instruct the jury on involuntary manslaughter is harmless even ifthe evidence would have supported such an instruction. State v.
Hales, 344 N.C. 419, 425-26, 474 S.E.2d 328, 331-32 (1996) (citing
State v. Jones, 339 N.C. 114, 451 S.E.2d 826 (1994), cert. denied,
515 U.S. 1169, 132 L. Ed. 2d 873 (1995)); State v. Hardison, 326
N.C. 646, 392 S.E.2d 364 (1990); State v. Young, 324 N.C. 489, 380
S.E.2d 94 (1989)).
Our review of the transcript shows the trial court properly
instructed the jury on: (1) discharging a firearm into an occupied
vehicle; (2) first-degree kidnapping; (3) first-degree murder; (4)
second-degree murder; and (5) robbery with a firearm. The
defendant was found guilty of two counts of first-degree murder,
first-degree kidnapping, and robbery with a firearm. The jury
found premeditation and deliberation to support first-degree murder
and rejected second-degree murder. See Hales, 344 N.C. at 425-26,
474 S.E.2d at 331-32. Under our Supreme Court's guidance,
presuming the trial court erred in not charging the jury on
involuntary manslaughter, defendant's conviction of first-degree
murder negated any prejudice to defendant. This assignment of
error is overruled.
Our Supreme Court and this Court has repeatedly held that the
short-form murder indictment is constitutional. The State provided
race-neutral reasons for its challenge to an African-American
prospective juror. The trial court properly denied defendant's
motions to suppress both the photographic identification and Rule
404(b) evidence pertaining to the three prior robberies.
Defendant's cross-examination of Suarez was appropriately limiteddue to defendant's solicitation of hearsay evidence. Defense
counsel, in their closing arguments, did not concede defendant's
guilt to the crimes charged. Presuming defendant was entitled to
an instruction of involuntary manslaughter to the jury, the jury
rejected second-degree murder and found defendant guilty of first-
degree murder, negating any prejudice to defendant. Hales
N.C. at 425-26, 474 S.E.2d at 331-32.
Judges WYNN and MCGEE concur.
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