Appeal by defendant from judgment entered 9 December 2005 by
Judge Ernest B. Fullwood in New Hanover County Superior Court.
Heard in the Court of Appeals 13 February 2007.
Attorney General Roy Cooper, by Special Deputy Attorney
General Marc Bernstein, for the State.
Lynne Rupp for defendant-appellant.
Defendant appeals from a judgment entered upon his conviction
of possession of a weapon of mass death and destruction, assault on
a female, and false imprisonment. We find no error.
The State's evidence tended to show that Defendant invited
Laura Moore to his residence on the night of 4 March 2002. In the
midst of an otherwise romantic evening, Defendant snapped; became
abusive after appearing to smoke crack cocaine; slapped Ms. Moore;
forced her outside; and announced that she was going on her last
nature walk and [ha]d better enjoy it. Defendant brought a gun
with him on the walk and fired it repeatedly in Ms. Moore's
direction. When she tried to run, he chased her down, beat her,and dragged her toward the Cape Fear River. Defendant threatened
to push Ms. Moore into quicksand or a deep part of the river where
she would be eaten by alligators. Finally, he pulled her toward an
abandoned house and said he would turn her over to the Mexicans
who lived there. After approximately forty-five minutes, Defendant
turned around and walked back to his house. Alone in a dark wooded
area with nowhere to go[,] Ms. Moore followed. When she arrived
back in his house, Defendant acted like nothing had happened, like
everything was fine. Fearing for her life, Ms. Moore stayed with
Defendant until the next morning. Defendant called a taxicab and
paid the driver to take Ms. Moore home after her roommate
telephoned his house looking for her.
New Hanover County Sheriff's Detective Sergeant Susan Johnson
and Detective Mike Howell searched Defendant's house on 3 April
2002, finding, inter alia, a .22 caliber rifle, four boxes of .22
caliber bullets, additional .270 and .30 caliber rounds, a magazine
for an M-1 rifle, an ax, a sword, several knives, a single-shot 20-
gauge shotgun, three boxes of shotgun shells, a .32 caliber pistol,
and a revolver. Sergeant Johnson observed many, many spent
shotgun shells and bullet casings all about the ground outside the
house. Beneath a mattress in Defendant's bedroom, the detectives
found a 12-gauge shotgun with a sawed-off stock and barrel.
Detective Howell measured the length of the gun's barrel as fifteen
inches and the total length of the gun as twenty-two and two-thirds
At sentencing, defense counsel urged the court to suspendDefendant's sentence for possession of a weapon of mass death and
destruction, asserting, It's a sawed-off shotgun that during my
closing argument the handle fell off. It's in pretty bad shape.
It's not loaded. The court consolidated Defendant's convictions
for judgment but imposed an active sentence of thirteen to sixteen
Preliminarily, we note that to sustain a claim of ineffective
assistance of counsel, Defendant must show that counsel made
errors so serious that counsel was not functioning as the 'counsel'
guaranteed the defendant by the Sixth Amendment. 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. 2d 674, 693
(1984)). He must then show that counsel's deficient performance
was so prejudicial as to deprive the defendant of a fair trial, a
trial whose result is reliable. Id. (quoting Strickland, 466 U.S.
at 687, 80 L. Ed. 2d at 693). Moreover, while N.C. Gen. Stat. §
15A-1419(a)(3) (2005) requires a defendant to raise claims of
ineffective assistance that are apparent from the record on
direct appeal, claims which require the development of evidence
outside the record on appeal are properly addressed in a collateral
post-conviction proceeding. State v. Lawson, 159 N.C. App. 534,
543, 583 S.E.2d 354, 361 (2003) (quoting State v. Hyatt, 355 N.C.
642, 668, 566 S.E.2d 61, 78 (2002), cert. denied, 537 U.S. 1133,
154 L. Ed. 2d 823 (2003)). Only when the cold record reveals that
no further investigation is required, i.e., [when the] claims . .
. may be developed and argued without such ancillary procedures asthe appointment of investigators or an evidentiary hearing will
these claims be resolved on direct appeal. 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).
On appeal, Defendant contends that his counsel rendered
constitutionally ineffective assistance by (I) failing to argue, as
an affirmative defense to the possession of the weapon of mass
death and destruction charge, that the sawed-off shotgun found in
his house was inoperable, and (II) admitting his guilt for
possession of a weapon of mass death and destruction to the jury
without his consent.
We are unable to review Defendant's first claim of ineffective
assistance on direct appeal. The face of the record contains no
evidence supporting an inoperability defense to the charge of
possession of a weapon of mass death and destruction under N.C.
Gen. Stat. § 14-288.8. To the extent such evidence was available
to counsel at trial, its existence must be developed in a
collateral post-conviction proceeding. Accordingly, we dismiss
this assignment of error without prejudice to Defendant's right to
file a motion for appropriate relief in the trial court. See id.
at 167, 557 S.E.2d at 525.
In his second claim of ineffective assistance, Defendant
asserts that his counsel admitted to the jury that he was guilty of
possession of a weapon of mass death and destruction.
Because anunauthorized admission of guilt by counsel is ineffective
assistance per se
, Defendant avers that he need not show any
specific prejudice in order to establish his right to a new trial.
In State v. Harbison
, our Supreme Court held that a defense
attorney's admission of guilt to the jury without the defendant's
consent is a per se
violation of the Sixth Amendment right to
effective assistance of counsel.
315 N.C. 175, 180, 337 S.E.2d
504, 507-08 (1985), cert. denied
, 476 U.S. 1123, 90 L. Ed. 2d 672
(1986). However, where counsel does not expressly admit guilt or
admits only certain elements of a charged offense, no Harbison
violation occurs. See State v. Randle
, 167 N.C. App. 547, 551, 605
S.E.2d 692, 694 (2004) (citing State v. Gainey
, 355 N.C. 73, 93,
558 S.E.2d 463, 476 (no Harbison
violation where defense counsel
did not admit guilt of murder but only that if he's guilty of
anything, he's guilty of accessory after the fact), cert. denied
537 U.S. 896, 154 L. Ed. 2d 165 (2002); State v. Hinson
, 341 N.C.
66, 78, 459 S.E.2d 261, 268 (1995) (no Harbison
defense counsel did not concede that the defendant himself had
committed any crime); State v. Fisher
, 318 N.C. 512, 532-33, 350
S.E.2d 334, 346 (1986) (no Harbison
violation where counsel
conceded malice element of murder and voluntary manslaughter but
did not clearly admit guilt)).
In support of his Harbison
claim, Defendant points to
counsel's cross-examination of Sergeant Johnson regarding the
weaponry allegedly found in Defendant's house on 3 April 2002, and
displayed to the jury: Q. Let me ask you about all those weapons,
actually. Other than the sawed-off shotgun,
is it illegal
, or was it illegal, for him, in
any way, to own a single gun, any one of those
guns, knives or ammunition?
A. No, sir.
(Emphasis by Defendant). Counsel then elicited an admission from
Sergeant Johnson that it was likewise not against the law to shoot
guns out in the county, on your own property[,] an allusion to the
shell casings Sergeant Johnson reported finding outside Defendant's
We find no merit to the suggestion that counsel's query to
Sergeant Johnson admitted Defendant's guilt to the charge of
possession of a weapon of mass death and destruction. Rather,
counsel directed the witness to address whether any of the other
items described and displayed to the jury were considered to be
contraband. It was undisputed that the State had charged Defendant
with a crime based on his alleged possession of the sawed-off
shotgun. In acknowledging the evidentiary basis for the charge,
counsel did not admit that his client was guilty.
Defendant also cites a series of remarks made by counsel
during his closing argument to the jury which, Defendant contends,
emphasize[d] the sawed-off shotgun's status as a prohibited
weapon and suggested to the jury that there was no legitimate
legal basis to find him not guilty of possessing it. On the
issue of counsel's improper emphasis, Defendant quotes counsel as
. . . [T]he State of North Carolina has spent
a lot of time introducing a lot of evidencethat, frankly, has absolutely nothing to do
with this case. . . . All this evidence,
shotgun shells, knives, guns, well, . . . the
[S]tate contends that this sawed-off shotgun
is evidence of a crime
. . . . [O]kay, let's
give them the .22 rifle, because they allege
the .22 rifle was used in this fictional
assault on Ms. Moore. What does any of the
rest of this stuff have to do with the case? .
. . It has absolutely nothing _ not a single
one of these weapons, other than this
], the [S]tate even contends is
against the law to possess.
. . .
In the search, they find this thing
(Indicating [the sawed-off shotgun]) and, at
some point later, charge him with possession
of a weapon of mass [death and] destruction.
(Emphasis by Defendant). As for counsel's alleged suggestion that
the jury had no legal basis to acquit Defendant on the charge,
Defendant offers the following passage at the conclusion of
. . . [Y
]ou ought certainly find him not
guilty of everything involving Laura Moore
and, frankly, you would be justified
back and finding him not guilty of everything
because of _ because of the presentation by
the [S]tate in this case.
(Emphasis by Defendant).
Having carefully reviewed counsel's argument, we find no basis
claim of ineffective assistance per se
Rather than admitting Defendant's guilt for possession of a weapon
of mass death and destruction, counsel reviewed the State's
contentions and evidence and asked the jury to reject them. He
argued that the jury should not accept the testimony of Detective
Howell and Sergeant Johnson on this charge in light of theirunreasonable proffer on the charges involving Ms. Moore.
Specifically, counsel argued the State's witnesses failed to
acknowledge the inconsistencies in Ms. Moore's statements,
presented extraneous evidence to the jury in order to paint
Defendant in an unfavorable light, withheld potentially exculpatory
evidence or findings, and conducted an incomplete and unfair
investigation. The record fails to show that counsel conceded
Defendant's guilt or suggested that the jury should find him guilty
of any offense. See Randle
, 167 N.C. App. at 552, 605 S.E.2d at
694. Moreover, counsel's assertion that the State's witnesses were
not sufficiently credible to establish Defendant's guilt beyond a
reasonable doubt provided the jury a legal basis for his
acquittal. See generally Hyatt
, 355 N.C. at 666, 566 S.E.2d at 77
([I]t is the province of the jury . . . to assess and determine
In sum, we hold that Defendant received a fair trial that was
free from prejudicial error. We note further that although the
record on appeal includes additional assignments of error, those
assignments are deemed abandoned because Defendant did not address
them in his brief to this Court. N.C. R. App. P. 28(b)(6).
Judges ELMORE and GEER concur.
Report per Rule 30(e).
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