STATE OF NORTH CAROLINA
v. Rowan County
No. 05 CRS 54333
WILLIAM GEROY FISHER
Attorney General Roy Cooper, by Special Deputy Attorney
General Hal F. Askins, for the State.
Allen W. Boyer for defendant appellant.
McCULLOUGH, Judge.
On 22 May 2005, defendant William Geroy Fisher was cited for
impaired driving. On 14 November 2005, defendant was convicted in
district court and placed on supervised probation. Defendant gave
notice of appeal and a trial de novo was held in Rowan County
Superior Court. The case was tried at the 8 March 2006 Criminal
Session of Rowan County Superior Court.
The State presented evidence at trial which tended to show the
following:
On 22 May 2005, Officer Matthew Vail of the Salisbury
Police Department received a call to investigate a car accident on
West Horah Street. When he arrived on the scene, Officer Vail
observed that a 1987 Nissan pickup truck had struck a telephone
pole. There was no one in the truck, but steam was coming out fromunderneath the hood, and fluid was dripping out from beneath the
vehicle. A man was standing on the opposite side of the road from
where the crash occurred. Officer Vail asked him if he saw anybody
leaving the area, and the man described an “older black male
wearing a white striped shirt and khaki pants.”
Approximately five to ten minutes later, defendant walked up
to the scene of the accident. He was wearing “a straw cap, white
striped shirt button up, khaki pants and tan shoes.” When he
arrived at the scene, he advised Officer Vail that he had been
involved in the accident. Officer Vail asked him to explain and
asked whether defendant had been driving the vehicle. Defendant
told him that he had been driving the truck westbound on Horah
Street, swerved to avoid hitting a white Cadillac, and struck the
telephone pole. Officer Vail smelled a strong odor of alcohol on
defendant and asked him to perform a field sobriety test.
Defendant attempted to perform a one-legged stand, but almost fell.
Officer Vail did not ask him to perform any other tests because he
was afraid defendant would hurt himself. Officer Vail then
arrested defendant and transported him to the police department.
At the police department, Officer Vail informed defendant of
his Miranda rights and questioned him regarding the crash.
Defendant again admitted to operating the vehicle on Horah Street.
Defendant submitted to an Intoxilyzer test, with the results
showing that defendant
had a blood alcohol concentration of .16.
At trial, defendant admitted being drunk on the night of the
accident, but denied driving the truck.
Defendant's sole argument on appeal is that
he received
ineffective assistance of counsel because his attorney failed to
object to prejudicial hearsay testimony. Specifically, defendant
claims that the only direct evidence of his involvement as the
driver of the wrecked truck was Officer Vail's testimony repeating
a statement by a bystander as to what the driver was wearing. The
description given by the bystander matched the defendant's
description when he approached Officer Vail after the crash.
Defendant claims that a jury would thus infer that he was the
driver of the truck. Defendant argues that this evidence was
offered to prove the truth of the matter asserted and that counsel
was ineffective for failing to object to it. Defendant contends
that absent this evidence, there would have been a different result
at trial.
After careful review of the record, briefs and contentions of
the parties, we find no error. We initially note that the
preferred method for raising a claim of ineffective assistance of
counsel is by a motion for appropriate relief. However, a
defendant's ineffective assistance of counsel claim “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) cert.
denied, 535 U.S. 1114, 153 L. Ed. 2d 162 (2002). A review of the
record in this case shows us that defendant's claim of ineffectiveassistance of counsel can be determined without further development
of the record, and that it is proper to address it at this time.
To obtain relief for ineffective assistance of counsel, the
defendant must demonstrate that his “counsel's conduct fell below
an objective standard of reasonableness.” State v. Braswell, 312
N.C. 553, 561-62, 324 S.E.2d 241, 248 (1985)(citing Strickland v.
Washington, 466 U.S. 668, 80 L. Ed. 2d 674, reh'g denied, 467 U.S.
1267, 82 L. Ed. 2d 864 (1984)). This requires a showing that: (1)
counsel's performance was deficient; and (2) that the deficient
performance prejudiced his defense. Id. at 562, 324 S.E.2d at 248.
Upon review of the record, we conclude that defendant has
failed to demonstrate any prejudice from his counsel's alleged
deficient representation. Officer Vail testified that defendant
volunteered to him that he had been driving the truck, had swerved
to avoid hitting another car coming from the opposite direction,
and hit the telephone pole. Defendant failed a sobriety test at
the scene, and later registered a .16 blood alcohol concentration
on an Intoxilyzer test. While at the police station, defendant
again admitted to driving the truck. He then asked to use the
telephone, stating that he was worried about what his girlfriend
would say about him wrecking her truck.
He was also overheard
calling someone on the telephone and apologizing for wrecking the
truck. Defendant's girlfriend at the time of the crash was in fact
the owner of the truck. Thus, there was overwhelming evidence of
defendant's guilt, and we conclude that defendant has failed to
demonstrate that there would have been a different result at trialhad counsel objected to Officer Vail's testimony.
Accordingly, we
find no error.
No error.
Judges STEELMAN and LEVINSON concur.
Report per Rule 30(e).
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