Converted WP file 060929-1

Appeal by defendant from judgments entered 25 January 2006 by Judge Lindsay R. Davis, Jr. in Guilford County Superior Court. Heard in the Court of Appeals 21 March 2007.

Attorney General Roy A. Cooper, III, by Assistant Attorney General Douglas W. Corkhill, for the State.

D. Tucker Charns, for defendant-appellant.

    JACKSON, Judge.

    In the early morning hours of 28 November 2003, Barry Sebastian (“Sebastian”) was asleep on his couch in his home. At approximately 3:00 a.m., Michael Antwan Harris (“defendant”) and “Nikki” knocked on Sebastian's front door. Nikki, a friend of Sebastian's live-in girlfriend, had been storing clothing and other personal items at Sebastian's home. Defendant and Nikki told Sebastian they were there to get Nikki's personal items. Sebastian responded by asking the two to leave and come back during the day.
    Sebastian then closed the door on defendant and Nikki, and his front door was kicked in as he returned to the couch. Defendant and Nikki came into Sebastian's home and went directly to the room in which Nikki's belongings were located. The two gathered Nikki'sthings and left as Sebastian remained on the couch. Once they left, Sebastian got a hammer and repaired the door jam that was damaged when the front door was kicked in. Sebastian then decided to go to his bedroom. Before Sebastian could make it to his bedroom, the front door was kicked in again. Sebastian saw defendant immediately come through the door and down the hallway towards him. Defendant had a gun in his hand, which he raised and pointed directly at Sebastian. As defendant raised the gun, he made a statement to the effect of “what are you going to do now.”     Defendant and Sebastian began to struggle, and the gun went off, shooting Sebastian in the head. The two men continued to fight, and Sebastian was knocked down onto his bed, where defendant proceeded to hit him several times. Nikki eventually ran into the house and took the gun away from defendant. Nikki and defendant then ran out of Sebastian's home.
    Sebastian went to his neighbor's house seeking assistance and to have them call 911. Detective Randall Shepherd (“Detective Shepherd”) received a call about the incident at 3:30 a.m., and proceeded directly to Sebastian's home. When he arrived, he found Sebastian in the front yard. Sebastian's head wound was bleeding, and Sebastian appeared upset and somewhat incoherent. Prior to being taken to the hospital, Sebastian gave Detective Shepherd an initial statement about the events which had occurred.
    On 1 March 2004, defendant was indicted on charges of first degree burglary and assault with a deadly weapon with intent to kill inflicting serious injury. Following a trial by jury,defendant was found guilty of first degree burglary and misdemeanor assault with a deadly weapon. Defendant was sentenced to a prison term of 150 days for the assault conviction, to be followed by a term of 108 to 139 months imprisonment for the burglary conviction. Defendant appeals from his convictions.
    Defendant's first two assignments of error deal with an incomplete recordation of his trial. Defendant contends that his trial counsel's failure to request recordation of the jury voir dire constitutes ineffective assistance of counsel, in that it has deprived him of a full appellate review and effective assistance of appellate counsel.
    In order to prevail on an ineffective assistance of counsel claim, defendant must show that his trial counsel's performance fell below an objective standard of reasonableness. State v. Braswell, 312 N.C. 553, 561-62, 324 S.E.2d 241, 248 (1985). To meet this burden, defendant must satisfy 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.”
Id. at 562, 324 S.E.2d at 248 (emphasis in original) (quoting Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984)).    At trial, defendant's counsel specifically waived recordation of jury voir dire, and on appeal defendant fails to cite to any error which occurred during this unrecorded portion of his trial. Assuming arguendo that trial counsel's performance was deficient for waiving recordation of jury voir dire, defendant has failed to show prejudice by the waiver. We previously have held that a trial counsel's failure to request recordation of jury voir dire does not constitute ineffective assistance of counsel. State v. Crawford, 163 N.C. App. 122, 128-29, 592 S.E.2d 719, 723-24, disc. review denied, 358 N.C. 734, 601 S.E.2d 867 (2004). Defendant acknowledges this Court's prior holdings on this issue, but asks that we reconsider our holdings. Defendant, who fails to cite any case in support of his argument that we should reconsider our holdings, ignores the fact that one panel of this Court may not overrule another panel. See State v. Jones, 358 N.C. 473, 487, 598 S.E.2d 125, 134 (2004) (“While we recognize that a panel of the Court of Appeals may disagree with, or even find error in, an opinion by a prior panel and may duly note its disagreement or point out that error in its opinion, the panel is bound by that prior decision until it is overturned by a higher court.”); In the Matter of Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989).
    Therefore, defendant's assignment of error is overruled.
    Defendant next contends that the trial court's failure to order recordation of the jury voir dire sua sponte also deprived him of a meaningful appellate review and constitutes ineffectiveassistance of counsel, in that defendant has been deprived of the right to have his appellate counsel be able to raise all possible appellate issues.
    North Carolina General Statutes, section 15A-1241(a) (2005) provides that upon a motion by any party or the court, the trial court may order recordation of jury selection in non-capital criminal cases. Section 15A-1241(c) provides a defendant with a procedure for protecting his rights and preserving his objections for appellate review of any errors which occur during an unrecorded portion of his trial. See N.C. Gen. Stat. § 15A-1241(c) (2005). As previously stated, defendant has cited no error which he alleges to have occurred during jury voir dire. Moreover, this Court previously has held that when a defendant has failed to show prejudice, it does not constitute error for a trial court to fail to order recordation of jury voir dire. See State v. Price, 170 N.C. App. 57, 67, 611 S.E.2d 891, 898 (2005). Thus, defendant's second assignment of error also is overruled.
    Defendant next contends the trial court erred in allowing Detective Shepherd to testify that Sebastian told the detective that defendant had stolen money out of Sebastian's wallet during the attack. At trial, the State offered this statement as corroborative evidence of Sebastian's prior consistent statement to the detective. The trial court ruled that the statement did not constitute corroborative evidence, but instead allowed the statement to be admitted pursuant to the hearsay exceptions for present sense impression and excited utterance. On appeal,defendant argues that the statement does not fall within either of the hearsay exceptions, and as such, the statement should not have been admitted into evidence.
    “It has been well established in this state that '[a] prior consistent statement of a witness is admissible to corroborate the testimony of the witness whether or not the witness has been impeached,' even though the statement was hearsay.” State v. Walters, 357 N.C. 68, 88-89, 588 S.E.2d 344, 356 (quoting State v. Jones, 329 N.C. 254, 257, 404 S.E.2d 835, 836 (1991)), cert. denied, 540 U.S. 971, 157 L. Ed. 2d 320 (2003). In addition, our Supreme Court has held that:
        “In order to be admissible as corroborative evidence, a witness' prior consistent statements merely must tend to add weight or credibility to the witness' testimony. Further, it is well established that such corroborative evidence may contain new or additional facts when it tends to strengthen and add credibility to the testimony which it corroborates.”
Id. at 89, 588 S.E.2d at 356 (quoting State v. Farmer, 333 N.C. 172, 192, 424 S.E.2d 120, 131 (1993)). “'[I]f the previous statements are generally consistent with the witness' testimony, slight variations will not render the statements inadmissible, but such variations . . . affect [only] the credibility of the statement.'” Id. at 89, 588 S.E.2d at 356-57 (quoting State v. Martin, 309 N.C. 465, 476, 308 S.E.2d 277, 284 (1983)); see also State v. Locklear, 320 N.C. 754, 762, 360 S.E.2d 682, 686 (1987) (victim's out of court statement was not considered to be hearsay,where it was admitted for the nonhearsay purpose of corroborating victim's testimony).
    In the instant case, Sebastian testified in detail as to the events that happened on the night of 28 November 2003. During his testimony, he stated defendant kicked his door in a second time, and then came at Sebastian with a gun raised towards him. He testified that the two struggled, and that defendant fired the gun, striking Sebastian in the head. Sebastian stated the two men continued to fight, and that defendant hit him several times in the face before leaving. Sebastian said nothing about having any money stolen during the attack. During Detective Shepherd's testimony, he stated he arrived at the scene shortly after receiving the call at 3:30 a.m., and met Sebastian in the front yard. He testified as to how Sebastian looked, how he was acting, and to the informal statement Sebastian gave him. Detective Shepherd's testimony regarding Sebastian's statement of events which had occurred was consistent with Sebastian's testimony, with the exception of one statement. Detective Shepherd testified that while speaking with Sebastian, Sebastian told him that defendant had stolen money from his wallet during the incident.
    Based upon the substantial similarity between Sebastian's testimony and that of Detective Shepherd, we hold the admission of the additional statement regarding money being stolen from Sebastian was not improper, and that on a whole Detective Shepherd's testimony constituted corroborative evidence. The testimony regarding Sebastian's statement to Detective Shepherd wasgenerally consistent with his trial testimony, and the additional variation affects the credibility of the statement only. Corroborative evidence need not be a word for word recitation of the previous testimony. In addition, defendant has presented no argument as to how the admission of this statement has prejudiced him. While the trial court ruled that the statement was not corroborative evidence, and was in fact admissible under hearsay exceptions, we hold this misstatement does not affect the admissibility of the evidence. Detective Shepherd's testimony was properly admitted for the nonhearsay purpose of corroborating Sebastian's testimony, and as such, defendant's assignment of error is overruled.
    In his next assignment of error, defendant contends the trial court erred in permitting the State to admit, as evidence, the Miranda warnings form read to and provided to defendant following his arrest and prior to Detective Jones' attempt to interview defendant. Defendant argues this evidence was irrelevant and that there was no proper purpose for which the State should have been permitted to introduce this evidence. He contends the only purpose for introducing the form was to show that defendant did not make any statements to police.
    “It is well established under both the United States and the North Carolina Constitutions that post-Miranda silence may generally not be used to impeach the defendant on cross-examination.” State v. Fair, 354 N.C. 131, 156, 557 S.E.2d 500, 518 (2001) (citing Doyle v. Ohio, 426 U.S. 610, 618-19, 49 L.Ed. 2d 91, 98 (1976) (holding that when Miranda warnings are given, “it would be fundamentally unfair and a deprivation of due process to allow the arrested person's silence to be used to impeach an explanation subsequently offered at trial”)), cert. denied, 535 U.S. 1114, 153 L. Ed. 2d 162 (2002); see also, State v. Herndon, __ N.C. App. __, __, 629 S.E.2d 170, 174, disc. review denied, 360 N.C. 539, 634 S.E.2d 542 (2006). “This rule is supported by the assurance, given explicitly in the Miranda warnings, that silence will carry no penalty.” Id. (citing Doyle, 426 U.S. at 618, 49 L. Ed. 2d at 98; Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694 (1966)).
    Pursuant to North Carolina General Statutes, section 15A-1443, a violation of a defendant's rights under the Constitution of the United States warrants a new trial unless the State can show the error to be harmless beyond a reasonable doubt. N.C. Gen. Stat. § 15A-1443(b) (2005). “'To find harmless error beyond a reasonable doubt, we must be convinced that there is no reasonable possibility that the admission of this evidence might have contributed to the conviction.'” State v. Christian, __ N.C. App. __, __, 638 S.E.2d 470, 472 (2006) (quoting State v. Ladd, 308 N.C. 272, 284, 302 S.E.2d 164, 172 (1983)). In determining whether the introduction of a defendant's invocation of his rights constitutes harmless or reversible error, this Court has considered the following factors:
        (1) whether the State presented other overwhelming evidence of guilt of the defendant; (2) whether the testimony was elicited by the State or volunteered by a witness; (3) whether the State emphasized the defendant's invocation of rights; and (4)whether the State attempted to capitalize on the defendant's invocation of rights through reference in its closing statement or during cross-examination.
Id. Further, “questioning which references a defendant's invocation of rights but serves 'merely to explain the chronology of the investigation' does not warrant a new trial.” Id. (quoting State v. Holsclaw, 42 N.C. App. 696, 702, 257 S.E.2d 650, 654 (1979)).
    In the instant case, Detective Jones testified during the State's case in chief, that after arresting defendant, he attempted to interview defendant. Detective Jones advised defendant of his Miranda rights by using a Sheriff's department form which details each of defendant's rights, including the right to remain silent, the right to have counsel present, the right to have counsel appointed, and the right to stop answering questions at any time. The officer testified that defendant acknowledged that he understood each of his rights, but that defendant did not sign the form.
    Based upon the testimony presented, Detective Jones did not say, and the State did not ask, whether defendant made any statement to the police. The sole statement regarding defendant's invocation of his right to remain silent came when the State asked the detective “Did he sign the form?” to which the detective replied “No.” The State did not dwell on this portion of the evidence, and did not ask duplicative or unnecessary questions regarding Detective Jones' attempt to interview defendant. In addition, substantial evidence was presented showing defendant'sguilt. The detective's testimony did not include any statement that defendant invoked his right to remain silent, or that he refused to speak with the officer. Instead, the evidence merely showed that defendant did not sign the Sheriff's department form detailing all of his rights. As there was no evidence that defendant invoked his right to remain silent, we hold the trial court did not err in allowing this testimony. Therefore, defendant's assignment of error is overruled.
    Defendant next contends the trial court erred in overruling his motion to dismiss the charges against him based upon an insufficiency in the evidence.
    “In ruling on a defendant's motion to dismiss, the trial court must determine whether the State has presented substantial evidence (1) of each essential element of the offense and (2) of the defendant's being the perpetrator.” State v. Boyd, __ N.C. App. __, __, 628 S.E.2d 796, 804 (2006). “'Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Id. (quoting State v. Matias, 354 N.C. 549, 552, 556 S.E.2d 269, 270 (2001)). “When considering a motion to dismiss, the trial court must view all of the evidence presented 'in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor.'” Id. (quoting State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied, 515 U.S. 1135, 132 L. Ed. 2d 818 (1995)).    In order for a defendant to be convicted of first degree burglary, the State must present substantial evidence that there was “(i) the breaking (ii) and entering (iii) in the nighttime (iv) into the dwelling house or sleeping apartment (v) of another (vi) which is actually occupied at the time of the offense (vii) with the intent to commit a felony therein.” State v. Singletary, 344 N.C. 95, 101, 472 S.E.2d 895, 899 (1996). Defendant specifically contends there was insufficient evidence of his intent to commit a felonious assault at the time of the breaking and entering. Defendant argues there was no evidence presented showing he intended to assault Sebastian when he entered the home the second time. Defendant does not contend that there was insufficient evidence presented at trial regarding any of the other elements of first degree burglary, and therefore, questions regarding the other elements are deemed abandoned. N.C. R. App. P. 28(b)(6) (2006).
    Our Supreme Court has held that
        “The intent with which an accused broke and entered may be found by the jury from evidence as to what he did within the house. . . . However, the fact that a felony was actually committed after the house was entered is not necessarily proof of the intent requisite for the crime of burglary. It is only evidence from which such intent at the time of the breaking and entering may be found. Conversely, actual commission of the felony, which the indictment charges was intended by the defendant at the time of the breaking and entering, is not required in order to sustain a conviction of burglary.”
State v. Bell, 285 N.C. 746, 750, 208 S.E.2d 506, 508 (1974) (quoting State v. Tippett, 270 N.C. 588, 594, 155 S.E.2d 269, 274 (1967)). Moreover, “[i]ntent is a mental attitude seldom provableby direct evidence. It must ordinarily be proved by circumstances from which it may be inferred.” Id. “The determining factor, then, is whether there was sufficient evidence from which a reasonable juror could infer that defendant possessed the requisite intent to commit serious injury.” State v. Hannah, 149 N.C. App. 713, 719, 563 S.E.2d 1, 5, disc. review denied, 355 N.C. 754, 566 S.E.2d 81 (2002).
    The evidence presented at trial showed that defendant kicked the door down at Sebastian's home two separate times in the early morning hours of 28 November 2003. Defendant and Nikki came to Sebastian's home at 3:00 a.m., attempting to collect Nikki's personal belongings. When Sebastian told the two to return during the day, defendant kicked in the front door to Sebastian's home. The first time he kicked the door in, aided by Nikki, they collected her things which were being stored in the home. In the second incident, defendant entered Sebastian's home holding a gun and immediately came towards Sebastian. Defendant raised the gun, pointing it directly at Sebastian, and said something to the effect of “what are you going to do now?” Defendant and Sebastian struggled, and defendant fired the weapon shooting Sebastian in the head. After the shooting, the two men continued to fight and defendant proceeded to hit Sebastian several times in the face. As shown by the evidence, defendant had no reason to enter Sebastian's home a second time once he had collected Nikki's belongings. He not only unlawfully entered Sebastian's home at 3:00 a.m. after initially being told to leave, but he did so while in possession ofa weapon, and he immediately approached Sebastian in an assaultive manner after entering the residence.
    Therefore, when taken in the light most favorable to the State, we hold there was sufficient evidence to raise an inference of defendants's intent to commit a felonious assault at the time he entered the residence the second time. Defendant's assignment of error is overruled.
    Finally, defendant contends the trial court erred in denying his motion to dismiss the burglary conviction, based upon an inconsistency in the jury's verdicts. Defendant argues that since the jury found him not guilty of felonious assault, then his conviction for first degree burglary must be dismissed as felonious assault served as the underlying felony for the burglary charge.
    As previously stated, our courts have held that “'actual commission of the felony, which the indictment charges was intended by the defendant at the time of the breaking and entering, is not required in order to sustain a conviction of burglary.'” Bell, 285 N.C. at 750, 208 S.E.2d at 508; see also State v. Brewer, 80 N.C. App. 195, 198, 341 S.E.2d 354, 356 (1986). Again, defendant acknowledges the existing precedent on this issue, and asks this Court to reconsider the prior holdings in light of the facts of the instant case. Defendant presents no argument as to why this Court should reconsider this issue, and he fails to cite to any caselaw in support of his assertion. As such, we hold the verdicts in defendant's case were not inconsistent, and his assignment of error is overruled.    No error.
    Judges HUNTER and TYSON concur.
    Report per Rule 30(e).

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