An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 058293
JACOB CAMERON, JR.
Appeal by defendant from judgment entered 30 September 2004 by
Judge A. Moses Massey in Forsyth County Superior Court. Heard in
the Court of Appeals 30 November 2005.
Attorney General Roy Cooper, by Assistant Attorney General
John G. Barnwell, for the State.
Miles & Montgomery, by Mark Montgomery, for defendant-
Jacob Cameron, Jr. (defendant)
appeals from judgment entered
after a jury found him to be guilty of first-degree murder of Sidra
and sentencing him to life imprisonment without
possibility of parole. We find no error.
A. Prior Incident of Choking
Cindy Johnson (Cindy), Johnson's sister, testified Johnson
called and told her that defendant had choked her, and she had to
kick him to get away from him in June 2001. Following that
conversation, Cindy went to Johnson's apartment. Upon her arrival,
Cindy found Johnson was holding her neck, and she told Cindy
defendant had choked her so severely she could have died. On 21 June 2001, Public Safety Communications Operator
Jennifer Harmon received a 911 call from Johnson. Johnson said her
boyfriend, defendant, had choked her. The jury heard the recording
of that call.
Officer R.E. Workman (Officer Workman) was dispatched to
Johnson's apartment following the June 2001 call. Upon his
arrival, Officer Workman found defendant and Johnson standing
together. He testified that he observed blood coming from
Johnson's mouth and nose and abrasions around her neck.
B. Present Incident Resulting in Death
Johnson's neighbor, Tameka Alexander (Alexander), testified
she heard stumbling, bumping, and banging noises coming from
Johnson's apartment after midnight on 26 July 2003. She heard the
noises for approximately ten minutes and then fell asleep.
Alexander awoke when she heard police cars outside her apartment.
Public Safety Communications Operator Lisa Howard answered a
911 call at 2:19 a.m. on 26 July 2003. Defendant made the call.
Defendant made a second call at 2:21 a.m. During the second call,
defendant told the operator that the victim was half dead. Both
calls were recorded, and audio tapes were played to the jury.
Officer William Patterson (Officer Patterson) was the first
officer to arrive at Johnson's apartment. Defendant was waiting at
the apartment and claimed he had arrived there twenty to thirty
minutes before Officer Patterson. Defendant stated that he had
looked for Johnson and found her in her bedroom, but did not know
what had happened to her. Officer N.M. Blue (Officer Blue) arrived next. He believed
defendant had been drinking. Defendant told Officer Blue, she
upstairs. When Officer Blue found Johnson, he detected no vital
signs, but noticed her skin was still warm.
Officer J.J. Thompson (Officer Thompson) of the Winston-
Salem Police Department was dispatched to Johnson's apartment and
was the last officer to arrive on the scene. Defendant was
standing inside the doorway when Officer Thompson arrived.
Thompson followed Officer Blue up the stairwell and found Johnson
in her bedroom lying face down next to the radiator. A cellular
telephone was lying on the floor broken into two pieces. The
telephone cord of the land line telephone had been pulled out of
the wall. A night stand was partially blocking the doorway.
Officer Thompson noticed a clear liquid coming out of Johnson's
mouth, blood between her fingers, and dried blood on the back of
her right hand. The broken cellular telephone, a glass ashtray,
and three liquor bottles were taken from Johnson's bedroom and
received into evidence. Cindy identified the cellular telephone at
trial as belonging to her sister, Johnson.
Detective M.C. Rowe (Detective Rowe) of the Winston-Salem
Police Department's Homicide Division was assigned as the lead
investigator in this case. Beginning at 9:00 a.m. on 26 July 2003,
Detective Rowe interviewed defendant for approximately forty-five
minutes at the police department. He asked identification
specialists to photograph an injury to defendant's left middle
finger. Detective Rowe later traveled to the hospital where theautopsy on Johnson's body was being performed and spoke with Dr.
Donald Jason (Dr. Jason) about his findings.
Dr. Jason testified as an expert in forensic pathology. He
performed an autopsy on Johnson's body and concluded manual
strangulation had caused her death.
After Detective Rowe returned to the police station, he
informed defendant he was being charged with first-degree murder.
Defendant told Detective Rowe that he wanted to speak with him.
After Detective Rowe informed defendant of his Miranda rights,
defendant executed a written waiver of those rights and made a
statement, which was tape recorded. The audio tape of that
statement was played for the jury, and a twenty-five page
transcript of the statement was distributed to the jury.
Defendant admitted, in his statement to Detective Rowe, that
his earlier statements that he knew nothing about what had happened
to Johnson were untrue. He admitted being responsible for
Johnson's death and expressed regret. Defendant explained that he
was jealous of Johnson's other boyfriend. He stated that Johnson
picked him up from work on 25 July 2003. He drank wine and
consumed a twenty cent piece of crack cocaine. Defendant and
Johnson began arguing about 1:30 or 2:00 a.m. on 26 July 2003.
Defendant grabbed Johnson, wrestled her down, and choked her.
Defendant stated that while he wanted to hurt Johnson, he did not
intend to kill her. When Johnson did not wake up, defendant
panicked and called 911. Defendant did not dispute the accuracy of
the recording or the voluntariness of his confession. Defendantdid not offer any other evidence in his defense. A jury found
defendant to be guilty of first-degree murder. Defendant was
sentenced to life imprisonment without the possibility of parole.
Defendant argues: (1) the trial court erred when it admitted
evidence he had choked Johnson on a previous occasion; and (2) he
was denied effective assistance of counsel when his trial counsel
argued to the jury that there was no excuse for defendant's conduct
and conceded that defendant was guilty of second degree murder.
III. Evidence of a Prior Alleged Incident
Defendant argues the trial court erred when it admitted
evidence that on a previous occasion he had choked Johnson.
A. Standard of Review
Our Supreme Court has stated:
The exclusion of evidence under Rule 403 is a
matter generally left to the sound discretion
of the trial court. Abuse will be found only
where the trial court's ruling is manifestly
unsupported by reason or is so arbitrary it
could not have been the result of a reasoned
State v. Alston, 341 N.C. 198, 229, 461 S.E.2d 687, 703 (1995)
(citation omitted), cert. denied, 516 U.S. 1148, 134 L. Ed. 2d 100
B. Rule 403
Rule 403 of the North Carolina Rules of Evidence provides,
[a]lthough relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfairprejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence. N.C. Gen. Stat. § 8C-1, Rule
C. Rule 404
Rule 404 of the North Carolina Rules of Evidence provides:
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).
Our Supreme Court has stated:
Rule 404(b) is a clear general rule of
inclusion of relevant evidence of other
crimes, wrongs or acts by a defendant, subject
to but one exception requiring its exclusion
if its only probative value is to show that
the defendant has the propensity or
disposition to commit an offense of the nature
of the crime charged.
State v. Lloyd, 354 N.C. 76, 88, 552 S.E.2d 596, 608 (2001)
Here, the trial court admitted evidence that two years prior
to the murder defendant had choked Johnson almost to the point
where she could have died. The State offered this evidence as
proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake, entrapment or accident. Id.
Defendant argues the trial court erred when it failed to give alimiting instruction to the jury on how it could apply that
evidence to the case.
In Alston, the defendant murdered his former girlfriend. 341
N.C. at 216, 461 S.E.2d at 695. The trial court admitted evidence
of the defendant's prior assault on the victim as relevant to an
issue other than character. Id. at 218, 461 S.E.2d at 697. Our
Supreme Court stated, [i]n applying Rule 404(b), this Court has
repeatedly held that a defendant's prior assaults on the victim,
for whose murder defendant is presently being tried, are admissible
for the purpose of showing malice, premeditation, deliberation,
intent or ill will against the victim. Id. at 229, 461 S.E.2d at
In State v. Spruill, the defendant killed his former
girlfriend. 320 N.C. 688, 694, 360 S.E.2d 667, 670 (1987), cert.
denied, 486 U.S. 1061, 133 L. Ed. 2d 63 (1988). The trial court
admitted evidence of the defendant's prior assaults on the victim.
Id. at 692, 360 S.E.2d at 669. Our Supreme Court stated that the
evidence was competent to prove his malice towards [the victim]
and was admissible. Id. at 693, 360 S.E.2d at 669.
Our Supreme Court also held that evidence of a defendant's
prior assault of a victim was properly admitted in State v. Kyle,
333 N.C. 687, 697, 430 S.E.2d 412, 417 (1993). The Court stated,
[t]he evidence of defendant's prior assault on the victim tends to
establish malice, an element of first-degree murder, and thus is
relevant to an issue other than defendant's character. Id. Here, evidence was admitted that defendant had choked Johnson
on a previous occasion in June 2001. This evidence was admissible
to show defendant's intent, ill will, malice, premeditation, and
absence of mistake or accident pursuant to Rule 404(b). The trial
court balanced the prejudice and relevance of the evidence in light
of Rules 403 and 404. Defendant has failed to show the trial court
abused its discretion in admitting the evidence of the prior
strangulation. This assignment of error is overruled.
IV. Ineffective Assistance of Counsel
Defendant argues he was denied effective assistance of counsel
when his counsel argued to the jury that there was no excuse for
defendant's conduct and conceded defendant was guilty of second
A. Standard of Review
The United States Supreme Court provided a two-prong test for
a defendant to establish ineffective assistance of counsel.
Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693
(1984). The test requires:
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 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 reliable.
Id. Our Supreme Court has stated, this court engages in a
presumption that trial counsel's representation is within the
boundaries of acceptable professional conduct when reviewing
ineffective assistance of counsel claims. State v. Roache, 358
N.C. 243, 280, 595 S.E.2d 381, 406 (2004).
In State v. Lowery, the
Court stated, [w]e ordinarily do not consider it to be the
function of an appellate court to second-guess counsel's tactical
318 N.C. 54, 68, 347 S.E.2d 729, 739 (1986)
B. Conceding Defendant's Guilt
Defendant argues his trial counsel violated Strickland, 466
U.S. 668, 80 L. Ed. 2d 674, and our Supreme Court's holding in
State v. Harbison, 315 N.C. 175, 337 S.E.2d 504 (1985), cert.
denied, 476 U.S. 1123, 90 L. Ed. 2d 672 (1986), when trial counsel
conceded defendant's guilt to a lesser included offense.
In Harbison, our Supreme Court held that a trial counsel's
concession of guilt without the defendant's knowing and voluntary
consent is ineffective assistance of counsel per se. 315 N.C. at
175, 337 S.E.2d at 504. The defendant in Harbison was charged with
first-degree murder and maintained throughout the trial that he
acted in self-defense. 315 N.C. at 175, 337 S.E.2d at 504. During
closing argument, and without the defendant's consent, defense
counsel stated, I have my opinion as to what happened on that
April night, and I don't feel that [the defendant] should be found
innocent. I think he should do some time to think about what he
has done. I think you should find him guilty of manslaughter and
not first-degree. Id. at 177-78, 337 S.E.2d at 506. Our SupremeCourt held, when counsel to the surprise of his client admits his
client's guilt, the harm is so likely and so apparent that the
issue of prejudice need not be addressed. Id. at 180, 337 S.E.2d
Here, defense counsel neither admit[ted] his client's guilt,
nor did he concede defendant was guilty of a lesser included
offense. Id. Defense counsel made the following statements to the
jury during his closing argument:
The evidence in this case fits the facts, much
more appropriately, to second-degree murder,
which is the unlawful killing of a human being
. . . .
And then there is not guilty. Not guilty in
this case applies because there has to be the
intent to kill in either one of these. First-
degree implies intent with premeditation and
deliberation. Second degree has the intent,
that you intended the death. And not guilty
is because he didn't intend the death. And it
was tragic in what happened and it went beyond
what he should have been doing -- and
shouldn't have been doing at all. But it was
not the intended consequence of the action,
and it was not a logical result of what you
. . . .
I'd ask you to find that Mr. Cameron did not
have the intent to kill Sidra Johnson at the
time she died, and that as a result of that,
your verdict should not be guilty.
In Roache, the defendant's trial counsel characterized the
murders for which the defendant was being tried as brutal and
suggested to the jury that the defendant made the wrong choice.
358 N.C. at 281-82, 595 S.E.2d at 406-07. The defendant argued onappeal that he was denied effective assistance of counsel in
violation of Harbison. Id. at 281, 595 S.E.2d at 407. The
defendant contended that use of the word brutal amounted to an
admission of an aggravating factor. Id. Our Supreme Court stated,
[d]escribing a murder as 'brutal' does not satisfy the legal
standard in the e(9) aggravator that the capital felony was
'heinous, atrocious, or cruel,' much less 'especially' so. Id.
The Court also stated, a counsel's statement of a fact strongly
suggesting guilt of a crime does not necessarily amount to an
admission of legal guilt. Id. at 281, 595 S.E.2d at 406 (citation
Defense counsel did not admit defendant's guilt. He conceded
defendant had no excuse for strangling Johnson. Defendant admitted
that he had strangled Johnson. Defense counsel's decision to
concede defendant lacked an excuse could have been a part of his
trial strategy. Also, counsel urged the jury to find defendant not
guilty and argued defendant did not have the intent to kill
Johnson, an essential element in both first-degree and second
degree murder. Trial counsel's statements to the jury were
asserted within the boundaries of acceptable professional
conduct. Id. This assignment of error is overruled.
Defendant failed to show the trial court abused its discretion
when it admitted evidence of his prior choking assault of Johnson.
Defendant has also failed to show his defense counsel did not
provide effective assistance. This Court
will not second-guesscounsel's tactical decisions
318 N.C. at 68, 347 S.E.2d
. Defendant received a fair trial free from the errors he
assigned and argued.
Judges BRYANT and CALABRIA concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***