Appeal by Defendant from judgments entered 9 December 2005 by
Judge Ronald K. Payne in Superior Court, Buncombe County. Heard in
the Court of Appeals 22 May 2007.
Attorney General Roy Cooper, by Special Deputy Attorney
General Robert J. Blum, for the State.
Leslie C. Rawls, for the defendant-appellant.
Defendant Travis Wade Jones appeals from his convictions for
robbery with a dangerous weapon and felony first-degree murder by
premeditation and deliberation, arguing that he received
ineffective assistance of counsel and that the trial court abused
its discretion in several of its rulings. After a careful review
of the record and transcripts before us, we find Defendant received
a trial free of error.
At trial, the State presented evidence tending to show that on
2 May 2005, Defendant was living in a mobile home on property owned
by his father, Ted Jones, in Candler, North Carolina. Teresa
Rigsby, a woman with whom Defendant had an ongoing sexualrelationship, was living with Defendant in his mobile home.
Approximately two weeks prior to the incident in question at trial,
Ms. Rigsby's estranged husband Stephen Rigsby moved into the mobile
home with Defendant and Ms. Rigsby. All three were using crack
cocaine on a regular basis, and none were employed at the time of
On 2 May 2005, Defendant was toying with a .22 caliber rifle
in the mobile home. After telling Mr. Rigsby that, This is for
anybody that gets in my way, Defendant put the rifle back in a
shed on the property. Later that evening, Defendant left the
mobile home with a table leg and went to his father's house,
approximately three hundred fifty to four hundred feet away.
Defendant testified that he was going to borrow his father's truck
and to ask him for money for food and cigarettes for Ms. Rigsby,
but took the table leg because he knew his father was upset at
seeing Ms. Rigsby earlier in the day.
Defendant testified that he had a struggle with his father,
took the keys to his father's truck, and left the house. As
Defendant began to drive away, Mr. Jones fired a shotgun blast at
the truck, peppering Defendant with birdshot. Defendant lost
control of the truck, hit a tree, and returned to his mobile home.
In the meantime, Mr. Jones yelled to call 911 because he had
shot Defendant; Mr. Rigsby ran to a neighbor's house to ask him to
call 911. Defendant then went to the shed, retrieved the .22
caliber rifle, and shot Mr. Jones twice. Mr. Jones died of
internal bleeding. His wallet was found in his pocket, but somecontents were on the ground near his body.
Ms. Rigsby testified that Defendant regularly stole money and
marijuana from his father and would use the money to support his
drug habit; Mr. Rigsby corroborated those statements. The State
also offered a voluntary statement made by Defendant to police that
he had taken five blank checks from his father's house in March
2005 and used one for food and fuel and three for cash. Ms. Rigsby
further stated that, prior to the shooting,
Defendant had stolen a
gun from his father identified at trial as the .22 caliber rifle
used to kill Mr. Jones. However, Defendant testified that his
father had given him the rifle for protection about two weeks
before the shooting, after Mr. Jones became aware that Defendant
owed money to several people for crack cocaine. Stephen and Teresa
Rigsby told the jury that Defendant believed his father was going
to will all of his property to Defendant and that Defendant had
recently cut the brake lines on Mr. Jones's truck in the hope that
he would die.
At the conclusion of his trial, the jury returned verdicts of
guilty of felony first-degree murder, with premeditation and
deliberation, and of robbery with a dangerous weapon. After
entering judgment on the verdicts, the trial court sentenced
Defendant to life in prison without parole. Defendant now appeals,
arguing that (I) the trial court abused its discretion and denied
Defendant's right to effective counsel by denying his motions for
a continuance on medical grounds related to defense counsel's
health and; (II) the trial court abused its discretion and erred byruling over Defendant's objection that the jury could consider
evidence that was improperly allowed.
Defendant first argues that the trial court abused its
discretion by denying his motions for a continuance. At the
beginning of Defendant's trial, defense counsel moved for a
continuance on medical grounds that he suffered from an eye
condition and pain from a broken crown on a molar.
contends that allowing his trial to move forward as scheduled, with
his defense counsel unable to see well
in pain, violated his
constitutional right to effective assistance of counsel.
(See footnote 1)
Our standard of review of a trial court's ruling on a motion
for continuance is well established:
Ordinarily, a motion to continue is addressed
to the discretion of the trial court, and
absent a gross abuse of that discretion, the
trial court's ruling is not subject to review.
When a motion to continue raises a
constitutional issue, the trial court's ruling
is fully reviewable upon appeal. Even if the
motion raises a constitutional issue, a denial
of a motion to continue is grounds for a new
trial only when defendant shows both that the
denial was erroneous and that he suffered
prejudice as a result of the error.
State v. Taylor
, 354 N.C. 28, 33-34, 550 S.E.2d 141, 146 (2001)
(internal citations omitted), cert. denied
, 535 U.S. 934, 152 L.Ed. 2d 221 (2001). T
o establish that the denial of a motion for a
continuance was prejudicial, a defendant must show how his case
would have been better prepared had the continuance been granted or
that he was materially prejudiced by the denial of his motion.
State v. Williams
, 355 N.C. 501, 540-41, 565 S.E.2d 609, 632 (2002)
(quotation and citation omitted), cert. denied
, 537 U.S. 1125, 154
L. Ed. 2d 808 (2003).
Moreover, to determine whether a criminal defendant received
effective assistance of counsel, we follow the two-part test
established by our state and federal Supreme Courts:
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.
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)). Thus, if a reviewing court can determine at the
outset that there is no reasonable probability that in the absence
of counsel's alleged errors the result of the proceeding would have
been different, then the court need not determine whether counsel's
performance was actually deficient. Id
. at 563, 324 S.E.2d at
249. Moreover, our Supreme Court has also held that [c]ounsel is
given wide latitude in matters of strategy, and the burden to show
that counsel's performance fell short of the required standard isa heavy one for defendant to bear. State v. Fletcher
, 354 N.C.
455, 482, 555 S.E.2d 534, 550 (2001), cert. denied
, 537 U.S. 846,
154 L. Ed. 2d 73 (2002).
In the instant case, when defense counsel made his first
motion to continue due to an eye condition called acute superficial
punctate keratitis (causing symptoms including blurred vision, pain
around the eyes, photophobia, tearing, and headaches), the trial
court instructed him to have his eye doctor call the trial court.
The optometrist then telephoned the trial court and informed him
that defense counsel's vision was likely 20/40 as a result of the
Noting that defense counsel's vision was not perfect
but was certainly not bad[,] the trial court denied the motion to
continue but appointed another attorney
out of an abundance of
caution to assist defense counsel as a notetaker and reader as
Defense counsel then made another motion to continue because
he had lost a crown on a lower molar that exposed a nerve to the
opening in [his] mouth[,] and he believed those things taken
together render[ed him] . . . to the point of potential ineffective
assistance of counsel.
The trial court denied the motion, noting
that defense counsel seem[ed] to be quite on top of the game
today and pledging to take whatever steps necessary to
accommodate the dentist that might be fixing [the crown] if the
dentist was able to work defense counsel in for an appointment
during the course of the trial.
The record shows that the trial
court did go into recess early one afternoon during the trial toallow defense counsel to go to a 3:00 p.m. dentist appointment.
In his brief to this Court, Defendant acknowledges that it is
difficult to point to specific instances where [defense] counsel's
physical infirmities conflicted with his ability to represent
We agree. From the record and transcripts before
us, it is clear that defense counsel mounted a vigorous defense of
Defendant and was engaged in every aspect of the trial, including
comprehensive cross-examination of prosecution witnesses,
presentation of direct testimony, and numerous evidentiary and
Indeed, Defendant identifies only the failure to renew
Defendant's motion to dismiss at the close of all evidence as a
concrete example of ineffective assistance of counsel. Defendant
asserts that the State failed to present evidence as to each
element of the felony charge of robbery with a dangerous weapon,
such that both that and the charge of felony murder should have
been dismissed. He further argues that the State failed to present
evidence of the requisite mens rea
for murder by premeditation and
deliberation. We find these contentions to be without merit.
The crime of robbery with a dangerous weapon is defined as
(1) the unlawful taking or an attempt to take personal property
from the person or in the presence of another (2) by use or
threatened use of a firearm or other dangerous weapon (3) whereby
the life of a person is endangered or threatened. State v. Small
328 N.C. 175, 181, 400 S.E.2d 413, 416 (1991) (quotation and
citation omitted); see also
N.C. Gen. Stat. § 14-87 (2005).
Additionally, to survive a motion to dismiss, the State must have
presented substantial evidence of each essential element of the
offense charged and of the defendant being the perpetrator of the
offense. State v. Garcia
, 358 N.C. 382, 412, 597 S.E.2d 724, 746
(2004) (citation and quotations omitted), cert. denied
, 543 U.S.
1156, 161 L. Ed. 2d 122 (2005).
Substantial evidence is
relevant evidence that a reasonable person might accept as
adequate, or would consider necessary to support a particular
(citations omitted). In considering a motion to
dismiss by the defense, such evidence must be taken in the light
most favorable to the state. . . . [which] is entitled to all
reasonable inferences that may be drawn from the evidence. State
, 318 N.C. 102, 107, 347 S.E.2d 396, 399 (1986).
At trial, the State presented evidence tending to show that
Defendant got into Mr. Jones's truck and started to drive away,
when Mr. Jones fired a shotgun at the truck. Although Defendant
testified that Mr. Jones often let him borrow the truck, we find it
eminently reasonable that the jury might have concluded from the
fact that Mr. Jones shot at the truck that Defendant had, at least
on this occasion, taken the truck without permission. Moreover,
Defendant admitted to taking the table leg with him to his father's
house, and the State offered testimony tending to show that Mr.
Jones had suffered from blunt force trauma to the head. In light
of this evidence, we find that the State offered sufficient
evidence to establish each element of robbery with a dangerous
weapon to withstand a motion to dismiss, had it been made at theclose of all evidence.
Defendant also argues that the State failed to present
evidence of the requisite mens rea
for murder by premeditation and
deliberation, and that charge should likewise have been dismissed.
However, Stephen and Teresa Rigsby testified that Defendant had
earlier told them that he had cut the brake lines on his father's
truck in the hope that he would die, and that he had gone to his
father's house with a table leg in his hands. We find this
evidence sufficient for the jury to conclude that Defendant acted
with premeditation and deliberation in the murder of his father.
Given the overwhelming evidence presented by the State to
establish each element of the crimes Defendant was charged with,
conclude that there is no reasonable probability that in the
absence of counsel's alleged errors the result of the proceeding
would have been different
, 312 N.C. at 563, 324
S.E.2d at 249. Accordingly, and noting the vigorous defense
reflected in the record and transcripts before us, we decline to
determine whether defense counsel's performance was actually
Defendant's assignments of error alleging
ineffective assistance of counsel are therefore overruled.
Further, nowhere in the record or transcripts before us is
there any suggestion that defense counsel's failure to renew his
motion to dismiss at the close of all evidence was in any way
related to his eye condition or tooth pain. Again, we observe that
the record and transcripts before us indicate that defense counsel
was actively engaged in every aspect of the trial, from cross-examining prosecution witnesses to eliciting direct testimony to
lodging objections to evidence and certain lines of questioning.
We see no abuse of discretion in the trial court's refusal to grant
Defendant's motions to continue in such circumstances, as we can
find no evidence that Defendant was prejudiced by the trial moving
forward, particularly in light of the accommodations made by the
trial court for defense counsel. These assignments of error are
Finally, Defendant argues that the trial court abused its
discretion and erred by ruling over Defendant's objection that the
jury could consider evidence that was improperly allowed.
Defendant contends that it was improper to allow the jury to
consider Defendant's statement to police about the checks he had
stolen from his father, as the prejudicial effect of such evidence
outweighed its probative value. We disagree.
Our Rules of Evidence exclude evidence of other crimes,
wrongs, or acts offered to prove character or propensity to commit
the crime charged; however, such evidence is allowed for other
purposes, such as to show proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake,
entrapment or accident. N.C. Gen. Stat. § 8C-1, Rule 404(b)
(2005). Moreover, [a]lthough relevant, evidence may be excluded
if its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury,
. . . N.C. Gen. Stat. § 8C-1, Rule 403 (2005).
A trial court'srulings under Rule 403 are reviewed for an abuse of discretion, see
State v. Lanier
, 165 N.C. App. 337, 345, 598 S.E.2d 596, 602, disc.
, 359 N.C. 195, 608 S.E.2d 59 (2004), as are those
under Rule 404(b). See State v. al-Bayyinah
, 359 N.C. 741, 747,
616 S.E.2d 500, 506 (2005) (Whether to exclude evidence is a
decision within the trial court's discretion.), cert. denied
U.S. 1076, 164 L. Ed. 2d 528 (2006). This Court will find an abuse
of discretion only where a trial court's ruling is manifestly
unsupported by reason or is so arbitrary that it could not have
been the result of a reasoned decision. State v. Campbell
N.C. 644, 673, 617 S.E.2d 1, 19 (2005) (citation and quotation
omitted), cert. denied
, 547 U.S. 1073, 164 L. Ed. 2d 523 (2006).
When the State sought to have Defendant's statement to police
about the stolen checks read to the jury, defense counsel objected,
and the trial court offered the following limiting instruction:
All right, members of the jury, I'm
allowing you to hear this evidence for two
purposes: First, you may consider this
evidence, if you believe it, that it
corroborates the testimony of any prior
witnesses that may have testified about these
alleged events. In other words, you can
consider it for corroborative purposes in
determining whether you believe or disbelieve
the prior testimony.
You may also consider this evidence for
the purpose of showing whether or not the
Defendant had the intent, which is a necessary
element of Robbery with a Dangerous Weapon,
that is one of the two charges that is before
you, and accept this for those two purposes.
If you believe this evidence, you may consider
it, but only for those two purposes and
Defendant asserts that the statement should not have been allowedto show intent, as the crime described in the statement - namely,
forgery - was too remote in time and subject matter to be relevant
to the crimes of robbery and murder at issue at Defendant's trial.
Nevertheless, we find the statement and the prior bad acts
relevant to show the intent and willingness of Defendant to steal
property from his father and sell it, as he had done in the past to
support his drug habit. Given the trial court's limiting
instruction, we see no abuse of discretion in determining that the
probative value of the statement was not substantially outweighed
by its prejudicial effect. Even assuming arguendo
the statement to be read was improper, we conclude that it did not
prejudice Defendant in light of the other, overwhelming evidence
against him, including as to establish the element of intent. This
assignment of error is overruled.
Judges TYSON and CALABRIA concur.
Report by Rule 30(e).