An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced
NORTH CAROLINA COURT OF APPEALS
Filed: 20 December 2005
STATE OF NORTH CAROLINA
No. 03 CRS 114124
RAEFORD LEE MORGAN
Appeal by defendant from judgment entered 19 August 2004, by
Judge Donald W. Stephens in Wake County Superior Court. Heard in
the Court of Appeals 3 November 2005.
Attorney General Roy Cooper, by Assistant Attorney General
Brent D. Kiziah, for the State.
Terry F. Rose for defendant appellant.
Defendant appeals from judgment entered after a jury verdict
of guilty on the charge of robbery with a dangerous weapon. We find
On 10 February 2004, a Wake County grand jury indicted
defendant for the offenses of assault with a deadly weapon with the
intent to kill and robbery with a dangerous weapon. On 17 August
2004, the State dismissed the charge of assault with a deadly
weapon with the intent to kill and proceeded to trial on the
robbery charge in Wake County Superior Court.
The State presented evidence at trial tending to show the
following: On 10 December 2003, there was a robbery at 1601 NewBern Avenue, New Bern Mini Mart. There was a videotape of the
robbery which showed James Mitchell (Mr. Mitchell) and another
person with a gun robbing the store. Initially Mr. Mitchell made a
statement to the police by telephone that he went to the Mini Mart
for a cake, when someone came in behind him, pulled a gun and
robbed the store, firing a shot from the gun. Mr. Mitchell also
stated that, after the event occurred, he ran out of the store to
attempt to catch the suspect. He further stated that he did not
know anything about the robbery or who the perpetrator was. After
the initial conversation, Mr. Mitchell was arrested, taken into
custody and read his Miranda rights. He waived his rights and began
to make a statement which was consistent with the one given to the
officer over the phone. Mr. Mitchell was shown a photo lineup and
he picked defendant out as the person who robbed the store, but
denied knowing him at all. When the officers confronted him
regarding their lack of belief in his statement, Mr. Mitchell began
to cry and stated they are going to kill [me]. It was at this
time that Mr. Mitchell indicated defendant had robbed the store and
that Mr. Mitchell knew he was going to rob the store.
At trial, Mr. Mitchell testified for the State. He recounted
the events of the night of 10 December 2003 stating that he was at
his cousin's house on the night in question and that night he went
to the Mini Mart with defendant where he and defendant worked
together to rob the convenience store. Mr. Mitchell stated that
the plan was for him to go into the store and buy a cake and when
the cash drawer was open, defendant was going to come in and robthe store, and that these were the events which occurred. Further,
Mr. Mitchell admitted to having lied to the police several times in
the investigation, including after being arrested. Testimony was
also elicited showing that Mr. Mitchell wrote a letter while in
jail stating that defendant was not involved in the Mini Mart
robbery. The evidence further showed that Mr. Mitchell had not
been charged, tried and convicted of or pled guilty to any other
offense punishable by more than 60 days in the last ten years.
At the close of the State's evidence and at the close of all
the evidence, defendant made a motion to dismiss the charges which
was denied by the court. At the charge conference, the trial judge
inquired of both counsel for defendant and the State as to whether
either desired an instruction on impeachment or corroboration of a
prior statement by a witness and both stated they did not.
However, the trial judge did offer the following instructions to
the jury regarding credibility:
I remind you again that you, and you alone,
are the sole judges of the credibility and the
accuracy of each witness.
You must decide for yourselves whether or
not to believe the testimony of any witness.
You can believe all or any part or none of
what a witness has said on the witness stand.
In determining whether or not . . . those
tests should include . . . any interest or
bias or prejudice the witness might have in
the case; the apparent understanding and
fairness of the witness; whether or not a
witness' testimony is reasonable; and whether
or not the testimony of the witness is
consistent with other believable evidence in
Further, the trial judge gave specific instructions regarding the
testimony of Mr. Mitchell and considerations to be given to the
testimony of an interested witness:
You may find that a witness is interested
in the outcome of this trial. In deciding
whether or not to believe such a witness you
may take the interests of that witness into
. . . .
Ladies and gentlemen, in this case James
Mitchell has testified regarding his
activities on the night in question and his
testimony tends to show that he was an
accomplice in the commission of the crime
charged in this case.
. . . An accomplice is considered by law
or in law to have an interest in the outcome
of the case.
Therefore, I instruct you that you should
examine every part of the testimony of this
witness James Mitchell with the greatest of
care and caution. If after doing so you
believe his testimony in whole or in part,
then you should treat what you believe the
same as any other believable evidence in the
The jury returned a verdict of guilty on the charge of robbery with
a dangerous weapon.
Defendant now appeals.
On appeal, defendant contends that his attorney rendered
ineffective assistance of counsel in failing to request jury
instructions regarding impeachment by conviction and impeachment or
corroboration by prior statement. We disagree. The preferred method for raising ineffective assistance of
counsel is by motion for appropriate relief made in the trial
court; however, 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, 153 L. Ed. 2d 162
A successful ineffective assistance of counsel claim requires
the satisfaction of a two-prong test. State v. Gainey, 355 N.C. 73,
112, 558 S.E.2d 463, 488, cert. denied, 537 U.S. 896, 154 L. Ed. 2d
165 (2002). The defendant must first show that counsel's
performance fell below an objective standard of reasonableness.
Gainey, 355 N.C. at 112, 558 S.E.2d at 488. 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. Strickland v. Washington, 466 U.S. 668,
694, 80 L. Ed. 2d 674, 698 (1984). Relief should be granted only
when counsel's assistance is 'so lacking that the trial becomes a
farce and mockery of justice.' State v. Montford, 137 N.C. App.
495, 502, 529 S.E.2d 247, 252, cert. denied, 353 N.C. 275, 546
S.E.2d 386 (2000) (citation omitted). Further, a claim based on a failure to request a jury
instruction requires the defendant to prove that without the
requested jury instruction 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 '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) (citation omitted).
To determine whether it was plain error for trial counsel to fail
to request a jury instruction regarding inconsistent statements,
this Court may look to whether trial counsel questioned the
witnesses about said statements and whether the trial court
provided instructions on witness credibility. See Swann, 322 N.C.
at 681, 688, 370 S.E.2d at 541, 545.
This Court has held that strategic and tactical decisions
such as whether to request an instruction or submit a defense are
within the 'exclusive province' of the attorney. State v. Phifer,
165 N.C. App. 123, 130, 598 S.E.2d 172, 177 (2004) (citation
omitted). A defendant's counsel is presumed to act with reasonable
professional judgment. Gainey, 355 N.C. at 112, 558 S.E.2d at 488.
Reviewing courts should avoid the temptation to second-guess the
actions of trial counsel, and judicial review of counsel's
performance must be highly deferential. Gainey, 355 N.C. at 113,
558 S.E.2d at 488. Mere allegations surrounding matters of trial
tactics, without more, are not sufficient to meet the test setforth in Strickland. State v. Piche, 102 N.C. App. 630, 638, 403
S.E.2d 559, 563-64 (1991). 'The defendant must show that there is
a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.' State v. Quick, 152 N.C. App. 220,
222, 566 S.E.2d 735, 737 (2002) (citation omitted).
Impeachment by Conviction
In the instant case, defendant contends that ineffective
assistance of counsel was rendered upon failure to request the
court to instruct the jury on North Carolina Pattern Jury
Instruction 105.35: Impeachment Of A Witness:
When evidence has been received tending
to show that a witness has been convicted of
(a) criminal charge(s), you may consider this
evidence for one purpose only. If, considering
the nature of the crime(s), you believe that
this bears on truthfulness, then you may
consider it, together with all other facts and
circumstances bearing upon the witness'
truthfulness, in deciding whether you will
believe or disbelieve his testimony at this
trial. Except as it may bear on this decision,
this evidence may not be considered by you in
your determination of any fact in this case.
N.C.P.I., Crim. 105.35. The plain meaning of this pattern jury
instruction states that a conviction is contemplated. In the
footnotes to the jury instruction there is a reference to N.C. Gen.
Stat. § 8C-1, Rule 609 which allows impeachment by evidence of
conviction of a crime. The evidence at trial was clear that Mr.
Mitchell had no prior convictions. The only evidence elicited at
trial regarding prior crimes at all was that Mr. Mitchell had beencharged in the same crime that was at issue at trial. This is in no
way a conviction as contemplated by this pattern jury instruction,
and therefore there was no evidence warranting that the jury be so
instructed. It would have been improper for this instruction to be
submitted to the jury on the basis of the testimony of Mr.
Impeachment by Corroboration or Prior Statement
Defendant further contends that ineffective assistance of
counsel was rendered upon failure to request the court to instruct
the jury on North Carolina Pattern Jury Instruction 105.20:
Impeachment Or Corroboration By Prior Statement:
When evidence has been received tending
to show that at an earlier time a witness made
a statement which may be consistent or may
conflict with his testimony at trial, you must
not consider such earlier statement as
evidence of the truth of what was said at that
earlier time because it was not made under
oath at this trial. If you believe that such
earlier statement was made, and that it is
consistent or does conflict with the testimony
of the witness at this trial, then you may
consider this, together with all other facts
and circumstances bearing upon the witness's
truthfulness, in deciding whether you will
believe or disbelieve his testimony at this
N.C.P.I., Crim. 105.20. In the instant case, the jury was fully
aware that credibility was at issue even though this instruction
was not given to the jury.
(To determine whether it was plain
error for trial counsel to fail to request a jury instruction
regarding inconsistent statements, this Court may look to whether
trial counsel questioned the witness about said statements andwhether the trial court provided instructions on witness
credibility. State v. Pratt
, 161 N.C. App. 161, 165, 587 S.E.2d
437, 440 (2003)). Trial counsel extensively cross-examined Mr.
Mitchell and Detective Huger about the inconsistent statements made
by Mr. Mitchell. The trial court also instructed the jury regarding
the credibility of witnesses, interested witness testimony and,
moreover, accomplice testimony of Mr. Mitchell. Where the jury was
aware that credibility was an issue in the case, this Court will
not second-guess the strategical and tactical decisions of trial
counsel. Therefore this assignment of error is overruled.
Accordingly, we find that there is no merit in defendant's
contention that ineffective assistance of counsel was rendered by
failure to request certain jury instructions. The jury was fully
aware that credibility was at issue and to include the instructions
discussed above would have added little to the jury's awareness.
Judges ELMORE and LEVINSON concur.
Report per Rule 30(e).
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