Appeal by defendant from a judgment entered 18 July 2005 by
Judge Michael E. Helms in Mecklenburg County Superior Court. Heard
in the Court of Appeals 1 November 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Jill A. Bryan, for the State.
Jon W. Myers for defendant-appellant.
BRYANT, Judge.
Ramses Harris Cordero (defendant) appeals a judgment entered
on 18 July 2005, consistent with a jury verdict finding him guilty
of uttering a forged instrument. For the reasons below, we find
defendant received effective assistance of counsel at his trial.
Facts and Procedural History
The evidence presented at trial by the State tended to show
that on 17 December 2004, defendant entered a World Check Cashiers
on South Tryon Street in Charlotte, North Carolina, with a check in
the amount of $429.89. Defendant presented the check for cashing
to Perlma Medina (Medina) who worked as a teller at the store.
Before cashing the check Medina attempted to verify its
authenticity. Based upon her inquiries she became concerned thatthe check had been forged and called the police. Officers with the
Charlotte-Mecklenburg Police Department responded to the call and
arrested defendant at the store. Medina gave a written statement
to the investigating officers where she indicated that defendant
told her the check he presented was his payroll check.
On 14 March 2004, the Grand Jury of Mecklenburg County
returned an indictment charging defendant with uttering forged
paper, pursuant to N.C. Gen. Stat. § 14-120. Defendant was tried
before a jury on 18 July 2005 in the Superior Court of Mecklenburg
County, the Honorable Michael E. Helms, presiding. At trial, no
testimony was given concerning any conversation defendant may have
had with World Check Cashiers' employees while he attempted to cash
the check. Rather than attempt to refresh Medina's recollection
about defendant's comments surrounding the check, the State moved
to introduce her entire statement into evidence. Defense counsel
did not object to the introduction of Medina's statement, did not
request that the statement only be allowed into evidence for
corroborative purposes, did not request a limiting instruction, and
did not request that the statement be redacted.
On 18 July 2005 the jury returned a verdict of guilty of
uttering a forged instrument and the trial court entered judgment
consistent with the jury verdict, sentencing defendant to six to
eight months imprisonment. The trial court suspended defendant's
sentence, required defendant to serve sixty days imprisonment and
placed defendant on supervised probation for thirty-six months.
Defendant appeals.
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Defendant's sole argument on appeal is whether his trial
counsel's failure to object to the introduction of a written
statement from one of the State's witnesses constitutes ineffective
assistance of counsel (IAC). “To prevail on a claim of ineffective
assistance of counsel, a defendant must first show that his
counsel's performance was deficient and then that counsel's
deficient performance prejudiced his defense.”
State v. Allen, 360
N.C. 297, 316, 626 S.E.2d 271, 286 (2006) (citing
Strickland v.
Washington, 466 U.S. 668, 80 L. Ed. 2d 674 (1984)).
Deficient performance may be established by
showing that “counsel's representation fell
below an objective standard of
reasonableness.” Generally, “to establish
prejudice, a 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. A
reasonable probability is a probability
sufficient to undermine confidence in the
outcome.”
Id. (quoting
Wiggins v. Smith, 539 U.S. 510, 534, 156 L. Ed. 2d
471, 493 (2003)). This Court's review of IAC claims “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),
cert. denied, 535 U.S. 1114,
153 L. Ed. 2d 162 (2002). Based on our review of the record before
this Court, we conclude that we may address defendant's IAC claim
on the merits. Defendant argues the State could not have met its burden
without the statement found in Medina's prior written statement
indicating defendant asked her to cash his “payroll check.”
Defendant's argument is misplaced. The North Carolina Supreme
Court has held that “'[b]y definition a prior statement is admitted
only as corroboration of the substantive witness and is not itself
to be received as substantive evidence.'”
State v. Francis, 343
N.C. 436, 446, 471 S.E.2d 348, 353 (1996) (quoting
State v. Stills,
310 N.C. 410, 415, 312 S.E.2d 443, 447 (1984)). Additionally,
“prior consistent statements are admissible even though they
contain new or additional information so long as the narration of
events is substantially similar to the witness' in-court
testimony.”
State v. Williamson, 333 N.C. 128, 136, 423 S.E.2d
766, 770 (1992) (citation omitted). This Court has further held
that “[e]vidence of prior consistent statements is admissible for
the limited purpose of affirming a witness's credibility, and upon
proper request a defendant is entitled to both a limiting
instruction at the time of its admission and a jury instruction as
to its limited purpose.”
State v. Ferebee, 128 N.C. App. 710, 715,
499 S.E.2d 459, 462 (1998) (citation omitted). “However, 'an
instruction limiting admissibility of testimony to corroboration is
not required unless counsel specifically requests such an
instruction.'”
State v. Borkar, 173 N.C. App. 162, 169, 617 S.E.2d
341, 345 (2005) (quoting
State v. Smith, 315 N.C. 76, 82, 337
S.E.2d 833, 838 (1985)). In the case at hand, the failure of defendant's trial counsel
to object to the admission of Medina's statement or request a
limiting instruction or redaction of the statement might be
considered sound trial strategy. At the close of the State's
evidence, defendant's trial counsel moved to dismiss the charges on
the ground that the State had not presented substantial evidence as
to the element that defendant knew the check was false. The
following colloquy ensued:
[Prosecutor]: No, her statement's entered
into evidence; it states that. That the
Defendant said that it was his payroll check,
and on the memo line of the check it says
refund. But since there was no cross-
examination, I couldn't ask any further
questions. The statement is in evidence.
[Defense Counsel]: Well, it's in, Your Honor,
as corroborative, not substantive evidence.
[The Court]: Counsel, you made no objection
to the admission. I thought that went a little
too smoothly, quite frankly. You didn't object
to the introduction of that statement. There
were no limitations placed upon it in its
admission, and I realize it should have been
entered for purposes of corroborating her
testimony here, but I'm not sure that it was.
[Defense Counsel]: Well, Your Honor, I didn't
object to it, because it was admissible on the
grounds of corroboration. I'm only going to
object to something if it's inadmissible.
[The Court]: Counselor, you know the rules.
If there's a limitation, your objection should
be made. I'll rule on it, and admit it for the
purpose, limited purpose. You made no
objection. Therefore, it's at issue in is
unlimited. [sic] However, there is a bit of
slight of hand by the State.
Defendant's trial counsel's argument that prior consistent
statements are only admissible as corroborative evidence, whileconsistent with our case law, was not upheld by the trial court.
It is possible defendant's trial counsel did not object or
otherwise move to limit the admission of Medina's statement at the
time it was introduced as evidence because he did not want to draw
attention to the weakness of the State's evidence on whether
defendant knew the check was false. This could indeed be deemed
sound trial strategy. Thus, defendant cannot show his trial
counsel's performance was deficient.
Even assuming
arguendo the performance of defendant's trial
counsel was deficient for not objecting to the admission of, or
requesting a limiting instruction on or redaction of, Medina's
prior written statement, defendant was not prejudiced by his trial
counsel's actions. The offense of uttering forged paper “comprises
three essential elements: (1) the offer of a forged check or other
instrument to another; (2) with knowledge that the instrument is
false; and (3) with the intent to defraud or injure another.”
State v. Thompson, 62 N.C. App. 585, 586, 303 S.E.2d 85, 86 (1983);
see also N.C. Gen. Stat. § 14-120 (2005). This Court has further
held that it may be presumed that one in possession of a forged
instrument who attempts to obtain money or goods with that
instrument either forged or consented to the forging of the
instrument.
State v. Roberts, 51 N.C. App. 221, 223-24, 275 S.E.2d
536, 537,
disc. rev. denied, 303 N.C. 318, 281 S.E.2d 657 (1981).
Defendant's argument addresses only the element of whether
defendant knew or should have known that the check was false.
However, under the
Robert's presumption, the element of defendant'sknowledge that the check was false is met regardless of the trial
court's admission of Medina's prior written statement as
substantive evidence.
Thus, defendant cannot show ineffective assistance of counsel,
and as such cannot show that he was prejudiced by his trial
counsel's actions such that the result of the proceeding would have
been different. Because we hold defendant was not prejudiced by
the actions of his trial counsel, we overrule his assignment of
error and affirm the judgment of the trial court.
Affirmed.
Judges McGEE and STEELMAN concur.
Report per Rule 30(e).
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