An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 19 December 2006
STATE OF NORTH CAROLINA
No. 02 CRS 51953
No. 02 CRS 2740
Appeal by defendant from judgment entered 8 September 2005 by
Judge Steve A. Balog in Montgomery County Superior Court. Heard in
the Court of Appeals 11 October 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Joan M. Cunningham, for the State.
Parish & Cooke, by James R. Parish, for defendant-appellant.
Kenny Legrand (defendant) appeals from judgment entered upon
his conviction of second degree murder and possession of a handgun
by a felon. We find no error.
On 9 September 2002 defendant was indicted for first degree
murder in the 30 August 2002 shooting death of Adrian Hamilton
(Hamilton). The case was tried as a non-capital homicide,
commencing 5 September 2002. Defendant was also indicted for
possession of a firearm by a convicted felon, which was joined for
trial with the murder charge. The State's evidence at trial is summarized in relevant part
as follows: Defendant, Hamilton, and most of the trial witnesses
lived in Troy, North Carolina, near the intersection of Clairmont
and Blue Streets. On 30 August 2002, local residents held an
outdoor neighborhood cook-out party. The party began during the
day and continued into the evening hours. At dusk, defendant and
Hamilton began arguing and scuffling in the street. When Sergeant
Timothy Atkins of the Troy Police Department drove up, they stopped
and assured Atkins that they were just play fighting and that
nothing was wrong. Defendant then headed for his house, and Atkins
directed Hamilton to leave the party area.
After Atkins interrupted the confrontation between Hamilton
and defendant, Hamilton walked to a nearby convenience store with
his cousin, Andrea Gainey. He purchased two beers at the store,
and then he and Andrea walked back towards the intersection where
the party was being held. When Hamilton got to defendant's house,
the defendant was outside with another man, Calvin Mcauley. The
two men began arguing, and shortly thereafter, defendant shot and
Eyewitness testimony was offered by State's witnesses Andrea
Gainey and Pam Capel, and by defense witness Calvin Mcauley. Their
accounts of the shooting differed slightly, but were in general
agreement that defendant and Hamilton exchanged threats and
insults; that Hamilton may have bumped defendant's chest or raised
a beer bottle in a threatening manner; that defendant backed away
from Hamilton; and that they heard a single gunshot and saw a sparkof gunfire. After the shooting, defendant ran down the street,
accompanied by another man, Anthony Marshall. Meanwhile, Hamilton
staggered a few feet before collapsing in the street.
Sergeant Atkins and Lieutenant Allen of the Troy Police
Department testified about their investigation of the shooting.
Allen also testified about a statement he obtained from defendant,
wherein the defendant admitted shooting Hamilton. Expert medical
testimony established that Hamilton died from a gunshot wound.
The defendant called two witnesses, Cato Kelly and Calvin
Mcauley, whose testimony tended to show that Hamilton was the
aggressor in the conflict between him and defendant.
Defendant was convicted of second degree murder and possession
of a firearm by a convicted felon. The trial court consolidated
the offenses for purposes of sentencing, and imposed an active
prison sentence of 198 to 247 months imprisonment. Defendant
Defendant argues first that the trial court committed
reversible error by denying his motion to sever the charge of first
degree murder from the charge of possession of a firearm by a
convicted felon. The defendant did not testify at trial, which
would ordinarily render inadmissable any evidence about his
criminal record. See, e.g., N.C. Gen. Stat. § 8C-1, Rule 609(a)
(2005); State v. Ross, 329 N.C. 108, 119, 405 S.E.2d 158, 165
(1991) (the only legitimate purpose for introducing evidence of
past convictions is to impeach the witness's credibility). However, because a prior felony conviction is an element of the
offense of possession of a firearm by a convicted felon, the
joinder of that offense with the charge of first degree murder
allowed the prosecution to introduce evidence that defendant had a
prior conviction for common law robbery. Defendant contends that
the admission of this evidence was so prejudicial that a new trial
is required. We disagree.
Joinder of offenses for trial is governed by N.C. Gen. Stat.
§ 15A-926 (2005), which provides in pertinent part that:
(a) Two or more offenses may be joined in one
pleading or for trial when the offenses,
whether felonies or misdemeanors or both, are
based on the same act or transaction or on a
series of acts or transactions connected
together or constituting parts of a single
scheme or plan.
The propriety of joinder depends upon the circumstances of each
case and is within the sound discretion of the trial judge.
'Absent a showing that a defendant has been deprived of a fair
trial by joinder, the trial judge's discretionary ruling on the
question will not be disturbed.' Nevertheless, under N.C.G.S. §
15A-927(c)(2) [(2005)] the trial court must deny a joinder for
trial [if] . . . it is necessary to promote a fair determination of
the guilt or innocence of one or more defendants. State v.
Pickens, 335 N.C. 717, 724, 440 S.E.2d 552, 556 (1994) (quoting
State v. Nelson, 298 N.C. 573, 586, 260 S.E.2d 629, 640 (1979)).
In the instant case, defendant concedes that the two offenses
arose from the same act or transaction, but asserts that joinder
deprived him of a fair trial. He contends that admission ofevidence of defendant's prior conviction of common law robbery
significantly bolstered the State's case. We disagree.
First, there was only one brief mention of defendant's prior
conviction during the trial, and no discussion of the factual
background of the charge. Secondly, the homicide case was
straightforward; the cause of death was undisputed, and defendant
admitted shooting and killing Hamilton. The basic issue for the
jury was clear; defendant claimed that the shooting was in self
defense, and the State's position was that defendant did not act in
self defense. Several eyewitnesses testified about the shooting,
providing a first-hand account of the incident. Finally, we note
that defendant argues on appeal that admission of his prior
conviction was significant in part because the testimony of his
witnesses, Cato Kelly and Calvin Mcauley, corroborated the
testimony of the defendant that the victim was the aggressor.
This is inaccurate, as defendant did not testify.
Under N.C. Gen. Stat. § 15A-1443(a) (2005), a defendant is
prejudiced by errors relating to rights arising other than under
the Constitution of the United States when there is a reasonable
possibility that, had the error in question not been committed, a
different result would have been reached at the trial out of which
the appeal arises. The burden of showing such prejudice under this
subsection is upon the defendant. After reviewing the evidence
in the instant case, we conclude the joinder of the two charges did
not unjustly or prejudicially hinder defendant's ability to defend
himself or to receive a fair hearing. In addition, the evidencewas not complicated and the trial court's instruction to the jury
clearly separated the two offenses. State v. Cromartie, __ N.C.
App. __, __, 627 S.E.2d 677, 681, disc. review denied, 360 N.C. 539
(2006). This assignment of error is overruled.
Defendant next argues that defense counsel rendered
ineffective assistance of counsel by admitting during closing
argument that defendant was guilty of possession of a firearm by a
convicted felon, without first obtaining defendant's permission and
consent to admit this offense. We disagree.
In his opening statement, defense counsel stated:
I'll go ahead and tell you right now: Mr.
Legrand had a pistol in his pocket. He pulled
it out and showed it to Adrian Hamilton.
Adrian kept coming with that bottle. And,
yes, I'll go on record right now, and I have
my client's permission to do this, he shot and
killed Adrian Hamilton.
After opening statements were delivered, the trial court
questioned the defendant, and specifically asked whether defendant
had consented to defense counsel's admission of both the fact of
his possessing a firearm, and that he used it to shoot and kill
TRIAL COURT: Mr. Legrand, did you know ahead
of time that [defense counsel] was going to
let the jury know that _ or admit on your
behalf in his opening statement that you, in
fact, did shoot Adrian Hamilton?
DEFENDANT: Yes, sir.
TRIAL COURT: Did he do so with your
DEFENDANT: Yes, sir.
TRIAL COURT: Okay. I guess in so doing, he
also admitted that you were in possession of a
firearm, a handgun. Did he admit _ make that
admission with your permission also?
DEFENDANT: Yes, sir.
The next morning, before bringing in the jury, the trial
court, prosecutor, and defense counsel discussed the charge of
possession of a firearm by a convicted felon. The court told the
prosecutor that evidence of the fact of defendant's conviction of
common law robbery was admissible, but that she could not introduce
evidence that defendant was originally charged with a more serious
offense. In response, defense counsel stated:
And to that end, Your Honor, we'll stipulate
that. I mean, we don't have to go through all
that. We'll stipulate that he was convicted
of common law robbery. (Emphasis added).
Moreover, when the prosecutor introduced evidence of the
conviction, defendant did not object and did not ask any questions
about the conviction on cross-examination. Thus, the record
establishes that (1) defendant expressly stated in court that he
consented to his counsel's admission that he possessed a firearm;
(2) defendant expressly stated in court that he consented to his
counsel's admission that he shot and killed the victim; (3) defense
counsel told the trial court that defendant would stipulate to
having a prior conviction; and (4) the record of defendant's prior
conviction was admitted without objection, cross-examination, or
In this factual context, defendant contends that his counsel
provided ineffective assistance by admitting his guilt ofpossession of a firearm by a convicted felon. Notably, he does not
argue that this admission by counsel was a poor strategy, or that
there was any doubt as to his prior felony conviction. Nor does
defendant assert that he did not consent to the admission of guilt
of possession of a firearm by a convicted felon. His claim of
ineffective assistance of counsel rests entirely on his contention
that the record inadequately documents his express consent to his
counsel's admission that he had a prior felony conviction. To
support his position, defendant relies on language in State v.
Harbison, 315 N.C. 175, 337 S.E.2d 504 (1985), wherein the North
Carolina Supreme Court held that 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. . . .
[W]e conclude that ineffective assistance of counsel, per se in
violation of the Sixth Amendment, has been established in every
criminal case in which the defendant's counsel admits the
defendant's guilt to the jury without the defendant's consent.
Id. at 180, 337 S.E.2d at 507-08 (emphasis added). Based on
Harbison, defendant argues that, in the absence of an express
statement on the record establishing defendant's explicit consent
to admission of each element of an offense, per se ineffective
assistance of counsel is conclusively established. We conclude
that, on the facts of this case, there is no possibility that the
defendant was surprised by counsel's admission.
More importantly, since Harbison was decided in 1985, the
United States Supreme Court has found that whether or not adefendant expressly consented to counsel's argument was not
dispositive in finding ineffective assistance. State v.
Al-Bayyinah, 359 N.C. 741, 757, 616 S.E.2d 500, 512 (2005)
(emphasis added) (citing Florida v. Nixon, 543 U.S. 175, 160 L. Ed.
2d 565, 581 (2004)). In Nixon, defense counsel representing a
capital defendant concluded that the best strategy would be to
concede guilt, thereby preserving his credibility in urging
leniency during the penalty phase. Nixon, 543 U.S. at 181, 160 L.
Ed. 2d at 575. Defendant was sentenced to death. As 'no
competent, substantial evidence . . . establish[ed] that Nixon
affirmatively and explicitly agreed to counsel's strategy,' the
Florida Supreme Court reversed and remanded for a new trial.
Nixon, 543 U.S. at 186, 160 L. Ed. 2d at 577 (quoting Nixon v.
State, 857 So. 2d 172, 176 (Fla. 2003). The United States Supreme
Court reversed and held that defense counsel's statements to the
jury were not the equivalent of a guilty plea:
A presumption of prejudice is not in order
based solely on a defendant's failure to
provide express consent to a tenable strategy
counsel has adequately disclosed to and
discussed with the defendant.
Nixon, 543 U.S. at 179, 160 L. Ed. 2d at 573. The Court also held
that ineffective assistance of counsel claims based on the issue of
defense counsel's admission to the jury of defendant's guilt of
certain acts or offenses should be analyzed according to the
standard prescribed in Strickland v. Washington, 466 U.S. 668, 80
L. Ed. 2d 674 (1984), which . . . require[s defendant] to show thatcounsel's concession strategy was unreasonable. Nixon, 543 U.S.
at 189, 160 L. Ed. 2d at 580.
We conclude that the trial court's failure to document
defendant's express consent to defense counsel's admission that he
had a prior felony conviction does not require us to find that
defense counsel was per se ineffective. We further conclude that
defense counsel's strategy, to admit to the jury that defendant was
guilty of possession of a firearm by a convicted felon, while
asserting self-defense was not unreasonable. This assignment of
error is overruled.
Defendant argues next that the trial court erred by failing to
instruct the jury on the lesser-included offense of involuntary
manslaughter. We conclude that defendant has not preserved this
issue for appellate review.
The transcript of the charge conference reveals, in pertinent
part, the following dialogue:
TRIAL COURT: . . . Let me ask, first of all,
from the defendant's standpoint with regard to
the charge of first degree murder. What
offenses does the defendant ask be submitted,
if any, by way of lesser included offenses?
DEFENSE COUNSEL: Your Honor, I think it would
be appropriate to submit as way of lesser
included both voluntary and involuntary and,
of course, the defense of self-defense.
TRIAL COURT: . . . What offenses do you
suggest should be submitted to the jury on the
DEFENSE COUNSEL: . . . [J]ust include
voluntary, involuntary, and the defense of
. . . .
TRIAL COURT: . . . [I'll submit] guilty of
first degree murder, guilty of second degree
murder, guilty of voluntary manslaughter, or
. . . .
TRIAL COURT: . . . Does anybody have any
objections to any of those instructions?
DEFENSE COUNSEL: No sir.
Although defendant requested an instruction on involuntary
manslaughter, he did not object to the trial court's decision not
to instruct on the offense, even when the trial court specifically
asked if there were objections.
Under N.C.R. App. P. 10(b)(1) of the North Carolina Rules of
Appellate Procedure, [i]n order to preserve a question for
appellate review, a party must have presented to the trial court a
timely request, objection or motion. Accordingly, defendant may
not assign as error any portion of the jury charge or omission
therefrom unless he objects thereto before the jury retires to
consider its verdict[.] N.C.R. App. P. 10(b)(2). Further, when
a defendant fails to specifically and distinctly allege that the
trial court's ruling amounts to plain error, defendant waives his
right to have the issues reviewed under plain error. A defendant
also waives plain error review by failing to allege plain error in
his assignments of error. State v. Forrest, 164 N.C. App. 272,
277, 596 S.E.2d 22, 25-26 (2004) (citing State v. Hamilton, 338
N.C. 193, 208, 449 S.E.2d 402, 411 (1994), and State v. Flippen,
349 N.C. 264, 274-75, 506 S.E.2d 702, 710 (1998)). In the instant case, defendant neither objected at trial nor
assigned plain error on appeal. This assignment of error is
Defendant also argues that the trial court erred by denying
his motion to suppress a statement made to law enforcement
officers. Defendant asserts that the trial court's oral findings
of fact, that the officers scrupulously honored defendant's right
to counsel and that defendant reinitiated contact with the officers
after first invoking his right to counsel, were not supported by
the evidence. This argument is without merit.
The trial court's oral findings of fact are amply supported by
the testimony elicited at the suppression hearing. Defendant
essentially argues that the law enforcement officer's testimony was
susceptible to an interpretation different from that of the trial
court, or that other facts might have been found that would have
supported a different conclusion. However, in reviewing a trial
court's ruling on a motion to suppress, the trial court's findings
of fact 'are conclusive on appeal if supported by competent
evidence, even if the evidence is conflicting.' State v. Watkins,
169 N.C. App. 518, 524, 610 S.E.2d 746, 751 (quoting State v.
Brewington, 352 N.C. 489, 498, 532 S.E.2d 496, 501 (2000)), disc.
review denied, 360 N.C. 77, 624 S.E.2d 632 (2005). This assignment
of error is overruled.
In a related argument, defendant asserts that the trial court
committed reversible error by failing to reduce its ruling on
defendant's motion to suppress to a written order. However, a
written order was filed, and the Record on Appeal was amended to
include the order. This assignment of error is overruled.
For the reasons discussed above, we conclude that defendant
received a fair trial, free of prejudicial error.
Judges TYSON and BRYANT concur.
Report per Rule 30(e).
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