STATE OF NORTH CAROLINA
No. 03 CRS 53968
RODNEY RASHAWN GIBBS
Attorney General Roy Cooper, by Assistant Attorney General
Lauren M. Clemmons, for the State.
McAfee Law Firm, by Robert J. McAfee, for defendant.
Defendant appeals his conviction and judgment entered 17 March 2005 for robbery with a dangerous weapon. We find no error.
The evidence presented at trial may be summarized as follows:
Erik Morgado testified that, on 29 September 2003, he agreed to meet some men, one of whom he had met earlier that day, to discuss possible employment opportunities. Morgado first met the three men at a hotel and later at his home. The three men invited Morgado to talk with them inside the van in which they were riding. Once Morgado entered the van, the men asked Morgado if he, or anyone he knew, wanted to purchase a firearm. Morgado told them that I didn't know anybody and that I didn't have any money. I then turned my attention to the floor. While I was doing that, thedriver turned towards me and put a firearm to my head. Then, according to Morgado, all three men pointed guns at him and told him to give them his wallet. Before Morgado could give them his wallet, they reached in [his pocket] and took it out. Morgado was able to escape by rolling down the window and jumping through it. Morgado telephoned the police as the van was driving away.
Deputy Ben Williams, an investigator with the Beaufort County Sheriff's Department, testified. Williams responded to a larceny call on 29 September 2003 and drove to Morgado's home. Morgado described the events of the robbery to Williams. Williams called the most recent number on Morgado's cell phone. Though the call was not answered, Williams was able to hear voices on the line. He heard, D---, we shouldn't have done that. The f------ cops saw us. Williams dialed the number again, identified himself to the person who answered, and requested that Morgado's wallet be returned. The call was disconnected. Williams' subsequent call was not answered. Williams searched the neighborhood for the van and talked with a man who told him there were three guys in the woods[.] Williams spoke with other nearby residents, who indicated three black males had been knocking on doors in the neighborhood.
Deputy James Vanlandingham, an investigator with the Beaufort County Sheriff's Department, also testified. He became involved in the investigation on 29 September 2003. He assisted in the search for the suspects that evening. The van used during the robbery was located in the River Road neighborhood. Vanlandingham interviewedMorgado. Morgado described the robbery to him. Vanlandingham then interviewed Stephanie Powell, the owner of the abandoned van. She told Vanlandingham that she had let Shikera Walker use her van to take his daughter home. Vanlandingham determined that Shikera Walker had the alias Shikem Gibbs. Vanlandingham recovered latent fingerprints from the van and prepared a photo line-up from the information to show Morgado. Morgado identified defendant in the photo line-up as the driver of the van. Vanlandingham encountered defendant in the jail 10 May 2004. Defendant told Vanlandingham that the guy's wallet was snatched, but no gun was used[,] and that he might be guilty of a strong armed robbery but not an armed robbery.
Vanlandingham also testified that Powell made a statement concerning the events of the alleged robbery when she was in jail 23 Februrary 2004. In her statement, Powell told Vanlandingham that defendant snatched the keys to her van 29 September 2003 and left with Shandell and another from New Jersey. Defendant later called Powell and told her they went to rob a Mexican and the deal went bad[.] In her statement, Powell stated the weapons were hidden in the woods and that defendant and his father or stepfather retrieved them the next day.
Stephanie Powell testified. At the time of the robbery she was defendant's girlfriend. They had been living together for approximately three weeks. Powell read from a statement she earlier made to the police concerning the alleged robbery. The statement explained that, on 29 September 2003, defendantsnatched the keys to her van and left with two of his friends. Defendant later called her to say that they went to rob a Mexican and the deal went bad and that [Powell] needed to report the van as stolen. Defendant called back and told her the following:
[He and two friends went] to sell a Mexican a gun for $250. Instead of them selling the gun, they tried robbing the man, but the man jumped out of the van and ran, calling the police from a cell phone, giving them [the van's] tag number.
Powell continued to read from her earlier written statement to authorities, and explained that defendant called again and told Powell the van had broken down; that defendant had left the van in a residential area and had spent the night in the swamp; that he hid the gun in the swamp; and that he and his father subsequently retrieved the gun and took it to his mother's house. Powell further stated, again by reading her previous written statement, that all three of the guns were sold to different people. Powell testified that all the information about the alleged robbery and the guns set forth in her written statement came from defendant: This is what he told me.
Defendant testified. He stated that he drove the van to meet with Morgado, and that he and his friends were meeting with Morgado to purchase marijuana. Morgado entered the van to discuss the marijuana deal. Morgado and Shandell were not able to agree on a price. Morgado got out of the van, leaving his wallet in the seat, and Shandell snatched it. Defendant testified there were no guns involved in the incident. On cross-examination, defendant testified in detail about his criminal history. Defendant had noprior convictions involving firearms. He also testified that he had owned guns prior to 29 September 2003 and purchased one thereafter, but did not own a gun on 29 September 2003. Defendant acknowledged that he had a gun in his bag when he was arrested in Maryland sometime after 29 September 2003.
Defendant was found guilty of robbery with a dangerous weapon, and the trial court sentenced him to 112-144 months imprisonment. Defendant appeals.
Defendant first argues that the trial court erred by failing to intervene on its own motion to prevent the introduction of the hearsay statements by Powell, and by failing to instruct the jury to disregard her statement. Because defendant made no objection to this evidence at trial, we review for plain error.
The test for plain error places the burden on a defendant to show that error occurred and that the error was a 'fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done.' State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (internal quotation marks and citation omitted). Consequently, the defendant must show the error 'had a probable impact on the jury's finding of guilt.' Id. at 661, 300 S.E.2d at 379.
State v. McEachin, 142 N.C. App.60, 68, 541 S.E.2d 792, 798 (2001). Our Supreme Court has extended plain error review to issues concerning the admissibility of evidence. State v. Black, 308 N.C. 736, 741, 303 S.E.2d 804, 807 (1983).
Rule 801 of the North Carolina Rules of Evidence defines hearsay as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to provethe truth of the matter asserted. N.C.R. Evid. 801(c). A statement is admissible as an exception to the hearsay rule if it is offered against a party and it is . . . his own statement[.] N.C.R. Evid. 801(d). An admission is a statement of pertinent facts which, in light of other evidence, is incriminating. State v. Trexler, 316 N.C. 528, 531, 342 S.E.2d 878, 879-80 (1986).
In the instant case, Powell testified that defendant told her that he, Shandell, and the other guy went to sell a Mexican a gun for $250. Instead of them selling the gun, they tried robbing the man, but the man jumped out of the van and ran, calling the police[.] Powell testified the gun defendant used during the robbery was hidden in a swamp and later recovered by defendant and his father. Powell's testimony gave detailed evidence regarding the disposal of the three different guns used during the alleged robbery. Powell stated that [a]ll of this information came from [defendant].
The gravamen of defendant's argument is that much of Powell's testimony was inadmissible because it was based on out of court statements made to her by another. Because the out of court statements were made to Powell by defendant himself, the statements at issue fall within the exception to the hearsay rule under Rule 801(d), admission by a party opponent. See State v. White, 131 N.C. App. 734, 743, 509 S.E.2d 462, 468 (1998) (defendant's statement to another party, overheard by the witness testifying at trial, that [defendant] was going to have to cap someone if employer did not stop garnishing defendant's wages, admissibleunder Rule 801(d) as an admission or statement by a party opponent). Therefore, the trial court did not err in admitting this testimony. This assignment of error is overruled.
Defendant next contends that his conviction must be reversed because he received ineffective assistance of counsel. Defendant enumerates numerous instances wherein his counsel either failed to object to evidence, or failed to make certain objections.
Claims of ineffective assistance of counsel brought on direct review 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). A review of the record reveals that defendant's claims of ineffective assistance of counsel can be determined without further development of the record.
In order to establish a claim of ineffective assistance of counsel, a defendant must meet a two-prong test:
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.
State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985) (quoting Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d674, 693, reh'g denied, 467 U.S. 1267, 82 L. Ed. 2d 864 (1984)). Ineffective assistance of counsel claims are not intended to promote judicial second-guessing on questions of strategy and trial tactics. State v. Brindle, 66 N.C. App. 716, 718, 311 S.E.2d 692, 693-94 (1984).
[T]he decisions on what witnesses to call, whether and how to conduct cross-examination, what jurors to accept or strike, what trial motions should be made, and all other strategic and tactical decisions are the exclusive province of the lawyer after consultation with his client. Trial counsel are necessarily given wide latitude in these matters. Ineffective assistance of counsel claims are not intended to promote judicial second-guessing on questions of strategy as basic as the handling of a witness.
State v. Milano, 297 N.C. 485, 495, 256 S.E.2d 154, 160 (1979) (internal quotation marks and citations omitted), overruled on other grounds, State v. Grier, 307 N.C. 628, 300 S.E.2d 351 (1983). In analyzing the reasonableness of the attorney's actions under the first prong of the test, the material inquiry is whether the actions were reasonable considering the totality of the circumstances at the time of performance. State v. Gainey, 355 N.C. 73, 112-13, 558 S.E.2d 463, 488 (2002).
Defendant cites numerous instances where defense counsel failed to object to evidence admitted through the testimony of Deputy Williams, Deputy Vandlandingham, and/or Powell that helped establish that defendant was at the scene of the alleged robbery; that defendant was in Powell's van; and that defendant had a prior criminal history. We observe that defendant himself testified thathe drove Powell's van to Morgado's home to try to purchase marijuana from Morgado, and did not dispute that he was the driver of the van during the meeting with him. According to defendant's testimony, Morgado left his wallet in the van when he got out, and that no guns were involved in the incident. On cross-examination, defendant testified at length concerning his criminal history. Thus, defendant testified, in substance, to the facts and circumstances he complains should not have been admitted through the testimony of three other witnesses. As a consequence, the failure of defense counsel to object to this testimony cannot constitute ineffective assistance of counsel. See State v. Linton, 145 N.C. App. 639, 648, 551 S.E.2d 572, 578 (2001) (holding no reasonable probability that defense counsel's failure to object to testimony of witnesses could have affected the outcome of the trial where the witnesses' testimony provided evidence similar to that provided by the statements of defendant and another witness K which were admitted into evidence and considered by the jury).
Defendant next contends that, by failing to object to Vanlandingham's testimony of statements made to him by Morgado, his counsel's representation was deficient. However, these statements to Vanlandingham largely corroborated Morgado's own testimony. See State v. Farmer, 333 N.C. 172, 192, 424 S.E.2d 120, 131 (1993) (In order to be admissible as corroborative evidence, a witness's prior consistent statements merely must tend to add weight or credibility to the witness's testimony.) (citation omitted). Therefore, these statements were admissible. Defendant also asserts that hiscounsel's failure to move to suppress his out-of-court statement to Vanlandingham constituted deficient representation. Here, the record reveals that defendant executed a waiver of his Miranda rights. Moreover, his statement was admissible as an admission by a party-opponent, see Rule 801(d), and his own in-court testimony was largely consistent with the statement he provided to Vanlandingham. [C]ounsel's failure to object to evidence which is in fact admissible does not amount to deficient representation. State v. Frazier, 142 N.C. App. 361, 368, 542 S.E.2d 682, 687 (2001) (citing State v. Lee, 348 N.C. 474, 492-93, 501 S.E.2d 334, 346 (1998)).
Defendant next contends his counsel should have objected when the prosecutor asked Powell to read the written statement she previously provided to law enforcement authorities. Powell's written statement was read into the record with no foundation for its use or admission. See, e.g., N.C.R. Evid. 803(5) (recorded recollection); N.C.R. Evid. 612(a) (writing or object used to refresh memory while testifying). Even assuming, arguendo, that trial counsel's failure to object to Powell's reading of her written statement to the authorities constituted deficient representation, we cannot conclude that defendant was therefore denied a fair trial, or that the verdict would have been any different had counsel required the prosecutor to establish some foundation for the statement. Powell's written statement did provide some evidence that defendant used a gun during the robbery. However, Morgado also testified that each of the three men whorobbed him, including defendant, pointed a gun at him. Moreover, Powell testified that it was defendant who gave her all the information that was contained in the written statement, and Powell did not assert at trial that the statement she provided to the authorities contained an inaccurate or untruthful account of what defendant told her. And defendant had a full and complete opportunity to cross-examine Powell concerning the veracity of all her testimony.
Defendant also contends his counsel should have objected to the admission of Powell's testimony concerning his prior criminal history and involvement in unrelated crimes. Defendant himself testified at length about his criminal history. And we are confident, after reviewing the record in its entirety, that Powell's passing reference to her sister's comment that defendant tried to rape her did not change the outcome of the trial.
Finally, defendant contends that his counsel's failure to renew his motion to dismiss the charge at the close of all the evidence constituted deficient representation. A motion to dismiss on the ground of sufficiency of the evidence raises for the trial court the issue 'whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense.' State v. Barden, 356 N.C. 316, 351, 572 S.E.2d 108, 131 (2002) (quoting State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996)). After reviewing the record, we conclude there was substantial evidence of each of the elements of robbery with a dangerous weapon for the same to besubmitted to the jury. Thus, defense counsel's failure to renew the motion to dismiss the charge at the close of all the evidence did not constitute ineffective assistance of counsel.
The relevant assignments of error are overruled.
Judges HUDSON and JACKSON concur.
Report per Rule 30(e).
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