STATE OF NORTH CAROLINA
v
.
Beaufort County
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.
LEVINSON, Judge.
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, defendant“snatched” 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.
No error.
Judges HUDSON and JACKSON concur.
Report per Rule 30(e).
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