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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. KHOSROW PARMAEI
Filed: 7 November 2006
1. Appeal and Error--appealability--plain error--failure to challenge jury instructions
or evidentiary matters
Although defendant contends the trial court committed plain error in a first-degree
murder case by not allowing the jury to question trial witnesses, this assignment of error is
dismissed because: (1) defendant's assignment of error does not challenge jury instructions or an
evidentiary matter; and (2) application of the plain error doctrine is limited to jury instructions
and evidentiary matters.
2. Constitutional Law--effective assistance of counsel--dismissal of claim without
Defendant's claim of ineffective assistance of counsel in a first-degree murder case based
on his counsel's agreement with the trial court that jurors are not allowed to question witnesses
during trial is dismissed without prejudice to defendant to move for appropriate relief and to
request a hearing to determine whether he received effective assistance of counsel, because the
record is inadequate at this stage of review.
3. Evidence--prior crimes or bad acts--violence toward victim--intent--absence of
The trial court did not err in a first-degree murder case by allowing testimony of
defendant's prior acts of violence toward the victim, because: (1) the testimony was admissible to
prove either defendant's intent to harm the victim or an absence of accident; and (2) defendant
opened the door to the testimony of events that occurred fourteen years prior to the murder, and
remoteness in time goes to the weight and not admissibility.
Appeal by defendant from judgment entered 3 September 2004 by
Judge Ronald K. Payne in Buncombe County Superior Court. Heard in
the Court of Appeals 18 October 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Steven F. Bryant, for the State.
Glover & Petersen, P.A., by Ann B. Petersen, for defendant-
Khosrow Parmaei (defendant) appeals from judgment entered
after a jury found him to be guilty of one count of first-degree
murder. We find no error.
In April 1986, defendant and Meg Parmaei (Meg) were married
in Birmingham, Alabama. Defendant and Meg procreated a daughter,
Maryahm Parmaei (Maryahm) born 24 March 1990. Meg had been
previously married and had bore four children during that marriage.
In February 2002, defendant, Meg, and Maryahm were living in
Black Mountain, North Carolina. Two of Meg's daughters by prior
marriage, Tiffany Sims (Tiffany) and Christiane Smith
(Christiane), were living nearby in Asheville, North Carolina.
Defendant's home in Black Mountain contains several guest
bedrooms, Maryahm's bedroom, and defendant's and Meg's master
bedroom. The room adjoining the master bedroom was used as a
studio. In that room, Meg made quilts and had installed a computer
upon which Meg was writing a book. Defendant and Meg entered their
bathroom and shower from the studio room. The studio contained a
sliding glass door and a pair of windows installed in the outside
On 3 February 2002 at 3:15 a.m. Buncombe County Paramedic
Randy Boggs (Boggs) received a call to respond to the home.
Boggs entered the studio through the sliding glass door and
observed Meg lying on her back, inside a sleeping bag on the floor.
Meg's body was cool and she appeared to have been dead for over
forty-five minutes. Boggs observed a piece of cloth over Meg'smouth and nose. Dr. Patrick Lantz performed the autopsy and
testified Meg's cause of death was due to asphyxiation by manual
A. Christiane's Testimony
The State's evidence tended to show that in the months prior
to February 2002, Meg was upset with defendant and planned to
separate from and divorce him. Christiane testified that in the
week prior to 3 February 2002, Meg had asked Christiane to come
help Meg move a bed from a guest bedroom into the studio. Meg
could not afford a separate residence and planned to move a bed
into the studio and share custody of Maryahm with defendant.
On 2 February 2002, Christiane arrived to help Meg move a bed
into the studio. She heard defendant and Meg arguing. Defendant
angrily told Meg he would not allow Maryahm to be taken away from
him. Later that evening, Christiane asked Meg to return with her
to Asheville. Meg declined because she would not leave Maryahm
alone with defendant. Meg would not take Maryahm with her and
Christiane, because defendant would become more upset.
The State also introduced an email into evidence written on 5
December 2001 between Meg and her brother, Mike, which stated:
Although I think [defendant] is a real jerk
and he gets on my nerves and treats me like
shit, he is Maryahm's father and I don't think
it is fair to remove her from her current
crising (sic) status. If he treats me like he
treats her, things will probably be much
Ideally, I will be able to find a place very
near where [Maryahm] can go back and forth
between us while staying in the same schooland maintaining her swim practice schedule . .
B. Maryahm's Testimony
Maryahm was eleven-years-old at the time of trial. On 2
February 2002, Maryahm's friend visited during the day. At
approximately 8:00 p.m., defendant drove Maryham and her friend to
meet her friend's parents at a Food Lion Supermarket, located
approximately one mile from the home. After dropping off the
friend, defendant told Maryahm, I'd know what a father meant and
I'd appreciate a father one day.
Maryahm also testified she had heard her mother, Meg, tell
defendant she wanted to separate and get a divorce. Maryham
testified Meg had previously separated from defendant, but returned
home because she wouldn't leave me alone with him. Maryham
testified defendant reacted badly to Meg moving the bed into the
studio. Maryahm testified, [Defendant] reacted in a very bad way.
[Defendant] kind of ignored us, ignored the fact that they were
even moving anything, didn't talk much, just stomped around and did
his own thing.
C. Detective Ribley's Testimony
Black Mountain Police Department Detective Lee Ribley
(Detective Ribley) also testified for the State. Detective
Ribley arrived at the home at 3:40 a.m. on 3 February 2002.
Detective Ribley observed Meg's body and noted cuts and abrasions
on her face and a small amount of blood consistent with coming
from those little cuts and abrasions. Detective Ribley alsoobserved two pillowcases on Meg's bed, one of which appeared to
have blood on both sides.
Detective Ribley also obtained information from defendant.
Defendant told Detective Ribley he came into the room during the
night, found a window wide open, and also found Meg in the same
condition as when Detective Ribley arrived. Detective Ribley
investigated whether anyone had entered the home through the open
window in the studio. Detective Ribley found a heavy layer of dust
covering the window shelf inside and outside the studio wall.
Nothing outside the home or below the open window tended to show a
person had climbed into or out of the window. No other signs
indicated a forced entry into the home.
D. Defendant's Testimony
Defendant testified and presented evidence in his defense.
Defendant disputed the testimony from Christiane that he and Meg
were arguing when she arrived on 2 February 2002. Defendant
testified he was building a tree house for Maryahm when Christiane
came to the home. Defendant did not argue with Meg that afternoon
and did not know Meg had planned to separate from him.
Defendant also testified about Meg and Christiane moving a bed
from a guest room into the studio. Defendant stated he and Meg had
discussed moving a bed from the guest room to the studio so
defendant would also have an office to work. Meg would sleep in
the studio bed, after she often worked late in the studio.
Defendant testified about the events that occurred during the
evening of 2 February 2002 and the early morning hours of 3February 2002. Defendant took Maryahm and her friend to met her
friend's parents at Food Lion. Defendant told Maryahm, One day
you will appreciate your dad, what I'm doing for you. Defendant
and Maryahm returned home.
Meg and Christiane were moving items, including a bed, from a
guest room into Meg's studio. Defendant gathered some tools and
told Meg he was going out and would be right back. Defendant
went to Tomahawk Lake to run laps, visited a neighbor's house, and
When defendant returned home he saw Meg, Christiane, and
Maryahm watching a movie. Defendant testified he was not
interested in the movie, prepared a pizza, and went to the master
bedroom to watch television. Christiane left the home about 10:00
p.m. Shortly after 10:00 p.m., Meg put Maryahm to bed. Defendant
took a shower in the studio bathroom. After showering, defendant
went to the master bedroom, watched television, and worked on his
laptop computer. Meg eventually came to the door of the master
bedroom and asked defendant if he needed to use the studio bathroom
again that night. Defendant said he did not and Meg closed the
door. Defendant fell asleep watching television.
Later in the evening, defendant awoke to use the bathroom.
Defendant testified he opened the door and walked straight to the
studio bathroom. After using the bathroom, while walking back to
the master bedroom, he began to see unusual things. The window
was open and he saw Meg inside a sleeping bag. Defendant saw that
Meg's hand was purple in color. Defendant checked on Maryahm, whowas safely asleep. Defendant dialed 9-1-1 on a cordless telephone.
Defendant denied killing Meg.
Defendant was indicted for the first-degree murder on 6 May
2002. Defendant was tried in April 2004. On 15 April 2004, the
jury was hopelessly deadlocked and a mistrial was declared.
Defendant was tried for a second time in August 2004. The jury
found defendant to be guilty of first-degree murder. Defendant was
sentenced to life imprisonment without parole and appeals.
Defendant argues: (1) the trial court committed plain error
by not allowing the jury to question trial witnesses; (2) his
defense counsel's concurrence with the trial court's ruling that
jurors are not allowed to question witnesses during trial
constituted ineffective assistance of counsel; and (3) the trial
court erred by allowing testimony of his prior acts of violence
III. Jury Questioning of Witnesses
 The jury sent the trial judge a note at the beginning of
the trial and asked whether jurors were permitted to ask witnesses
follow-up questions. The trial court responded no, but that
jurors could ask witnesses to repeat an answer they did not hear
it. Defense counsel failed to object and agreed it was not the
role of the jury to ask questions. Defendant contends the trial
court committed plain error when it failed to allow the jury to
question trial witnesses. We disagree. Our Supreme Court discussed the application of plain error
review in State v. Anderson, 355 N.C. 136, 558 S.E.2d 87 (2002).
Generally, a purported error, even one of
constitutional magnitude, that is not raised
and ruled upon in the trial court is waived
and will not be considered on appeal. [T]he
rule is that when defendant fails to object
during trial, he has waived his right to
complain further on appeal. Rule 10(c)(4) of
our Rules of Appellate Procedure provides that
an alleged error not otherwise properly
preserved may, nevertheless, be reviewed if
the defendant specifically and distinctly
contends that it amounted to plain error.
This Court has recognized that the plain error
rule applies only in truly exceptional cases
and that a defendant relying on the rule bears
the heavy burden of showing . . . (i) that a
different result probably would have been
reached but for the error or (ii) that the
error was so fundamental as to result in a
miscarriage of justice or denial of a fair
trial . . . . Moreover, this Court has
previously limited application of the plain
error doctrine to jury instructions and
Id. at 142, 558 S.E.2d at 92 (internal citations and quotations
Defendant failed to object to the trial judge's denial of the
jury's request to question trial witnesses. Defendant's assigned
error is not preserved for our review. N.C.R. App. P. 10 (2006).
Further, defendant's assignment of error does not challenge jury
instructions or an evidentiary matter. Application of the plain
error doctrine is limited to jury instructions and evidentiary
matters. State v. Atkins, 349 N.C. 62, 81, 505 S.E.2d 97, 109
(1998), cert. denied, 526 U.S. 1147, 143 L. Ed. 2d 1036 (1999).
Defendant's assignment of error is not reviewable under the limited
scope of plain error review and is dismissed.
IV. Ineffective Assistance of Counsel
 Defendant contends his trial counsel's statement that the
state of the law does not allow the jury to question witnesses is
error and [d]efense counsel's professional error was deficient
State v. Braswell sets out a two-part test to resolve issues
regarding ineffective assistance of counsel. 312 N.C. 553, 562,
324 S.E.2d 241, 248 (1985).
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. (quoting Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed.
2d 674, 693 (1984)). 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.
Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698.
This Court has stated, claims of ineffective assistance of
counsel should be considered through motions for appropriate relief
and not on direct appeal. State v. Stroud, 147 N.C. App. 549,
553, 557 S.E.2d 544, 547 (2001), cert. denied, 356 N.C. 623, 575
S.E.2d 758 (2002). The reasons for this rule are to develop a
factual record and in order to defend against ineffective
assistance of counsel allegations, the State must rely oninformation provided by defendant to trial counsel, as well as
defendant's thoughts, concerns, and demeanor. Id. at 554, 557
S.E.2d at 547 (quoting State v. Buckner, 351 N.C. 401, 412, 527
S.E.2d 307, 314 (2000)).
An ineffective assistance of counsel claim may be brought on
direct review 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) (citations omitted), cert.
denied, 535 U.S. 1114, 153 L. Ed. 2d 162 (2002).
Here, the record is insufficient for us to review and rule on
defendant's ineffective assistance of counsel claim. The
transcripts and record are insufficient for us to determine whether
defense counsel's actions resulted from trial tactics and strategy
or from a lack of preparation or an unfamiliarity with the legal
issues. The transcripts and records are also insufficient for us
to determine whether defense counsel's actions prejudiced his
defense. We decline to reach defendant's ineffective assistance of
counsel assignment of error because the record is inadequate at
this stage of review. This assignment of error is dismissed.
Our dismissal of this assignment of error is without prejudice
to defendant to move for appropriate relief and to request a
hearing to determine whether he received effective assistance of
counsel. See State v. Dockery, 78 N.C. App. 190, 192, 336 S.E.2d
719, 721 (1985) (The accepted practice is to raise claims ofineffective assistance of counsel in post-conviction proceedings,
rather than direct appeal. (citing e.g., State v. Vickers, 306
N.C. 90, 291 S.E.2d 599 (1982)).
V. Prior Acts Evidence
 Defendant contends the trial court erred by allowing
testimony of his alleged prior acts of violence towards Meg. Over
defense counsel's objection, Meg's two daughters by prior marriage,
Christiane and Tiffany, were allowed to testify about alleged prior
acts of violence by defendant towards Meg.
A. Christiane's Testimony
Rule 404(b) 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) (2005) (emphasis supplied).
Our Supreme Court has stated:
Rule 404(b) state[s] 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. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990).
After a Rule 404(b) hearing outside the presence of the jury,
Christiane was allowed to testify about two prior acts of violence
by defendant toward Meg in 1997. One incident involved defendantallegedly pushing Meg in front of a moving vehicle, the other
asserted defendant attempted to strike Meg with a piece of
firewood. Christiane's testimony of both incidents was allowed as
proper Rule 404(b) evidence. Defendant contends allowing this
testimony was error because the alleged bad acts were too remote in
time and lacked factual similarities.
Christiane's testimony was admissible to prove either
defendant's intent to harm Meg or an absence of accident.
Evidence of previous threats is admissible in trials for
first-degree murder to prove premeditation and deliberation. The
remoteness in time of the threat goes to its weight and does not
make it inadmissible. State v. Cox, 344 N.C. 184, 188, 472 S.E.2d
760, 762 (1996) (citing State v. Myers, 299 N.C. 671, 675, 263
S.E.2d 768, 771 (1980)). This assignment of error is overruled.
B. Tiffany's Testimony
Over objection, Tiffany was allowed to testify defendant had
thrown a record player at Meg during an argument that occurred
fourteen years prior to the murder. Tiffany's testimony was
allowed on the basis defendant had opened the door to Tiffany's
testimony during cross-examination. Defense counsel asked
Q. You did not witness any acts of domestic
violence by [defendant] against your
mother since _ ever, have you?
Q. Not since 1997?
A. Since 1997, no.
As noted, remoteness in time goes to the weight not
admissibility. Id. The trial court correctly ruled defendant had
opened the door to the State's subsequent questions to Tiffany
concerning defendant's prior acts of violence toward Meg. See
State v. Albert, 303 N.C. 173, 177, 277 S.E.2d 439, 441 (1981)
([T]he law wisely permits evidence not otherwise admissible to be
offered to explain or rebut evidence elicited by the defendant
himself.). This assignment of error is overruled.
Defendant failed to preserve for appellate review any error in
the trial court denying the jury's request to question trial
witnesses. This assignment of error is not reviewable under plain
error review and is dismissed. Defendant's claim of ineffective
assistance of counsel is not properly before us and is dismissed
The trial court did not err by allowing testimony of
defendant's prior acts of violence towards the victim under Rule
404(b). Defendant opened the door to the testimony of events that
occurred fourteen years prior to the murder. Defendant received a
fair trial free from the errors he preserved, assigned, and argued.
Judges BRYANT and LEVINSON concur.
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