Appeal by defendant from judgment entered 14 July 2006 by
Judge Carl R. Fox in Wake County Superior Court. Heard in the
Court of Appeals 28 August 2007.
Attorney General Roy Cooper, by Special Deputy Attorney
General Robert C. Montgomery and Associate Attorney General
LaToya B. Powell, for the State.
Janet Moore for defendant-appellant.
BRYANT, Judge.
Floyd Lee Dunn, Jr. (defendant) appeals from a judgment
entered 14 July 2006 consistent with a jury verdict finding him
guilty of felony possession of a firearm. Defendant was sentenced
to a minimum of fifteen months and a maximum of eighteen months
imprisonment.
The State's evidence tended to show that on the evening of 17
October 2005, at approximately 9:00 p.m. defendant was with his
girlfriend, Marilyn Pulley, at her Raleigh apartment; they had an
argument; defendant went outside and fired a gun; defendant was
seen leaving in a white Honda Accord; minutes later, while driving
the white Honda Accord, the police apprehended defendant and founda gun in the glove compartment; defendant was uncooperative when
officers, utilizing a gunshot residue test, attempted to determine
whether he had recently fired a gun; and the shell casings found
outside Pulley's apartment were fired from the gun found at the
time defendant was apprehended.
This matter was tried at the 12 July 2006 Criminal Session of
Wake County Superior Court before the Honorable Carl R. Fox. After
the trial court denied defendant's motion to suppress, a jury found
defendant guilty of one count of possession of a firearm by a
felon. Defendant was sentenced to a term of fifteen to eighteen
months imprisonment. Defendant appeals.
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Defendant appeals whether the trial court erred by: (I)
warning defendant's witness about committing perjury during a
suppression hearing; (II) failing to provide a limiting instruction
to the jury regarding defendant's prior conviction; and (III)
admitting evidence. In addition, defendant contends he (IV)
received ineffective assistance of counsel. For the following
reasons, we find defendant received a trial free from error.
Preliminarily, we note the State has filed a motion to strike
defendant's narrative of closing arguments or, in the alternative,
a petition for
writ of certiorari, submitted pursuant to N.C. R.
App. P. Rules 9(c)(1) and 11(c). “A trial court's order settling
the record on appeal is final and will not be reviewed on appeal.”
Penland v. Harris, 135 N.C. App. 359, 363, 520 S.E.2d 105, 108
(1999) (citation omitted) We note the State's motion to strikedefendant's narrative is not properly before us as “[r]eview of an
order settling the record on appeal is available, if at all, only
by way of
certiorari.”
Id.
In this case, closing arguments were not recorded. In his
proposed record on appeal, defendant, pursuant to North Carolina
Appellate Rule 9(c), included a narrative of the closing arguments
which were based upon the transcribed events at trial. After
several unsuccessful attempts by the parties to settle the record
on appeal themselves, the State requested an in-court hearing at
which the trial court heard arguments from both parties “by
teleconference and for good cause shown.” On 29 November 2006, the
trial court entered an order,
nunc pro tunc, indicating “the
State's request for an in-court hearing . . . is denied, that
counsel for [defendant] shall perfect his appeal pursuant to the
Appellate Rules, and that the Court allows the filing of
[Defendant's] Narrative Submission separately from the Record on
Appeal with the transcript[.]” N.C. R. App. P. Rules 9(c) and
11(c).
As to unavailable verbatim transcripts, a
party has the means to compile a narration of
the evidence through a reconstruction of the
testimony given. [] N.C. R. App. P. 9(c)(1).
Any dispute regarding the accuracy of a
submitted narration of the evidence can be
resolved by the trial court settling the
record on appeal. [] N.C. R. App. P. 11(c).
Overall, a record must have the evidence
“necessary for an understanding of all errors
assigned.” N.C. R. App. P. 9(a)(1)(e)[.]
State v. Quick, 179 N.C. App. 647, 651, 634 S.E.2d 915, 918
(2006)(citations omitted). In settling the record on appeal, thetrial court properly allowed the narrative submission of the
closing arguments. We deny the State's petition for
writ of
certiorari.
See State v. Gonzalez-Fernandez, 170 N.C. App. 45, 612
S.E.2d 148 (2005) (petition of
writ of certiorari to review
settling of record on appeal denied).
I
Defendant argues the trial court erred during Marilyn Pulley's
testimony at the suppression hearing by warning her not to commit
perjury. Pulley testified that she had placed the gun in the glove
compartment of the car driven by defendant after her cousin gave it
to her.
THE COURT: Hold on a minute. Hold on a
second. Let me -- let me just warn you of
something, okay, Miss Pulley? Because you are
under oath. What you are saying here I feel
compelled to advise you, since you are under
oath and since I have already been advised by
the evidence that this gun, that there are
bullets indicating from this gun [sic] that
were matched to this gun and it's been
described as being used in this incident, that
testifying -- what you are testifying to is a
material fact in this case. And if you are
testifying to something -- if you testify in
this case under oath to something that turns
out to be untruthful, that you could be
subject to being indicted for perjury.
THE WITNESS: Okay.
THE COURT: Now let that -- and that's a
felony. I want to make you perfectly aware of
that before you answer this question about how
this gun and when this gun got into the glove
box.
THE WITNESS: Okay.
THE COURT: Are you aware of that?
THE WITNESS: Yes.
THE COURT: All right. Now you know that.
Defendant contends the trial court's warnings to Pulley, deprived
him of his “rights to due process and the effective presentation of
a defense in a fair trial before an impartial tribunal.” We
disagree.
“[A] judicial warning to a witness about contempt sanctions or
perjury prosecutions is not a
per se due process violation.”
State
v. Melvin, 326 N.C. 173, 186, 388 S.E.2d 72, 78 (1990);
see also
State v. Lamb, 321 N.C. 633, 365 S.E.2d 600 (1988) (rejecting the
defendant's contention that judicial warnings concerning perjury
stifled the free presentation of testimony). “[A] trial judge may,
if the necessity exists because of some statement or action of the
witness, excuse the jurors and, in a judicious manner, caution the
witness to testify truthfully, pointing out to him generally the
consequences of perjury.”
State v. Rhodes, 290 N.C. 16, 23, 224
S.E.2d 631, 636 (1976). “[J]udicial warnings and admonitions to a
witness with reference to perjury are not to be issued lightly or
impulsively . . . [so as not to] upset the delicate balance of the
scales which a judge must hold evenhandedly.”
Id. “Whether
judicial or prosecutorial admonitions to defense or prosecution
witnesses violate a defendant's right to due process rests
ultimately on the facts in each case.”
Melvin, 326 N.C. at 187,
388 S.E.2d at 79. “[T]he reviewing court should examine the
circumstances under which a perjury or other similar admonition was
made to a witness, the tenor of the warning given, and its likely
effect on the witness's intended testimony.”
Id. The record here fails to show Pulley's testimony changed in
any material way from the time she was warned by the trial court
during the suppression hearing until she testified in front of the
jury as a defense witness. In each instance, Pulley's testimony
was consistent -- she had placed her cousin's gun in the glove
compartment of her car the night before defendant was arrested.
Unlike the trial court in
Rhodes, the trial court here never
accused Pulley of not telling the truth. Instead, the trial court
explained to Pulley that, because of other evidence presented, her
testimony on the issue of how the gun appeared in her glove
compartment was a “material fact” and that “if” what she testified
to in the suppression hearing was later found to be untruthful she
would be subject to prosecution for perjury. This warning was
reasonable given these circumstances. Further, there is no
indication that defendant's trial counsel abandoned any line of
questioning or defense as did counsel in
Rhodes. The one specific
question defendant now says his trial counsel asked during the
suppression hearing but did not ask during Pulley's direct
examination during trial -- whether she had a conversation with
defendant concerning the gun -- was a question initially asked
after the trial court gave its perjury warning to Pulley.
Therefore, the trial court did not err in warning Pulley not to
commit perjury.
See Lamb, 321 N.C. at 640, 365 S.E.2d at 603
(distinguishing
Locklear and
Rhodes while finding judicial warnings
concerning perjury did not upset the delicate balance of the
scales). This assignment of error is overruled.
II
Defendant argues the trial court committed plain error by
failing to give the jury a limiting instruction concerning his
prior conviction for discharging a firearm into occupied property.
We disagree. Because defendant did not request a limiting
instruction in this case, he has the burden to show that any error
amounted to “plain error.”
State v. Jones, 358 N.C. 330, 346, 595
S.E.2d 124, 135,
cert. denied, 543 U.S. 1023, 160 L. Ed. 2d 500
(2004). In order to show plain error, a defendant must show there
was an error and that it had a probable impact on the jury's
verdict.
State v. Odom, 307 N.C. 655, 660-61, 300 S.E.2d 375, 378
(1983). “It is a well recognized rule of procedure that when
evidence competent for one purpose only and not for another is
offered it is incumbent upon the objecting party to request the
court to restrict the consideration of the jury to that aspect of
the evidence which is competent.”
State v. Goodson, 273 N.C. 128,
129, 159 S.E.2d 310, 311 (1968) (quotation and citation omitted);
State v. Brower, 289 N.C. 644, 664, 224 S.E.2d 551, 565 (1976)
(holding that in the absence of a request, “failure to give a
limiting instruction is not error”).
The trial court instructed the jury:
The defendant has been charged with possessing
a firearm after having been convicted of a
felony. For you to find the defendant guilty
of this offense, the State must prove two
things beyond a reasonable doubt: First, that
the defendant was convicted of a felony in
Wake County Superior Court. The term
conviction is defined as final judgment in any
case in which felony punishment or
imprisonment for a term exceeding one year, asthe case may be, is permissible without regard
to the plea entered or the sentence imposed.
And second, that thereafter the defendant
possesses a firearm.
Defendant has not shown the absence of an instruction that
defendant's prior conviction could be considered an element of the
offense but not evidence of predisposition that caused the jury to
find defendant guilty.
See State v. Alexander, 16 N.C. App. 95,
100, 191 S.E.2d 395, 398 (holding that absent a request, the trial
court's failure to give a limiting instruction as to the admission
of evidence of prior convictions was not error),
cert. denied, 282
N.C. 305, 192 S.E.2d 195 (1972). This assignment of error is
overruled.
III
Defendant argues the trial court committed plain error by
allowing Catina Burnette to testify that she saw “gunfire smoke”
when she saw defendant's hand up the air. We disagree.
Pursuant to N.C. Gen. Stat. § 8C-1, Rule 602, a witness may
testify to any relevant matter about which he or she has personal
knowledge.
State v. Anthony, 354 N.C. 372, 411, 555 S.E.2d 557,
583 (2001),
cert. denied, 536 U.S. 930, 153 L. Ed. 2d 791 (2002).
Pursuant to N.C. Gen. Stat. § 8C-1, Rule 701, “a lay witness may
testify as to his or her opinion, provided that the opinion is
rationally based upon his or her perception and is helpful to the
jury's understanding of the testimony.”
Id. at 411, 555 S.E.2d at
583. “Personal knowledge is not an absolute but may consist of
what a witness thinks he knows from personal perception.”
State v.
Wright, 151 N.C. App. 493, 495, 566 S.E.2d 151, 153 (2002)(quotation marks omitted). “[O]pinion evidence is always
admissible when the facts on which the opinion or conclusion is
based cannot be so described that the jury will understand them
sufficiently to be able to draw their own inferences.”
State v.
Smith, 300 N.C. 71, 74, 265 S.E.2d 164, 167 (1980).
Catina Burnette testified she heard defendant and his
girlfriend arguing outside, heard two loud sounds like gunshots and
observed “gunfire smoke.” Defendant initially objected to “the
State's characterization of the gunfire smoke” because the witness
had not testified “as to gunfire smoke.” Even though the trial
court sustained the objection and struck the State's
characterization, the transcript plainly shows that the witness had
previously referred to what she saw as “gunfire smoke.” After the
objection was sustained, the State asked whether the witness had
said “that it was like gunfire smoke.” The witness answered
affirmatively. Defendant raised no further objection when the
State elicited additional testimony from the witness that she saw
“gunfire smoke.” Moreover, Burnette had personal knowledge that
she saw smoke and her reference to it as “gunfire smoke” was
rationally based upon her perception.
See State v. Mitchell, 342
N.C. 797, 808, 467 S.E.2d 416, 422 (1996) (holding “testimony was
not mere speculation, but was based on her personal observation”
and “helpful to a clear understanding of a fact in issue”). The
trial court did not commit error by admitting Burnette's testimony.
This assignment of error is overruled.
IV
Defendant contends he received ineffective assistance of
counsel and was “prejudiced at trial and on appeal by his lawyer's
acts and omissions.” We disagree.
“[I]neffective assistance of counsel claims '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.
Thompson, 359 N.C. 77, 122-23, 604 S.E.2d 850, 881 (2004) (quoting
State v. Fair, 354 N.C. 131, 166-67, 557 S.E.2d 500, 524-25 (2001),
cert. denied, 535 U.S. 1114, 153 L. Ed. 2d 162 (2002)). Defendant
must show that counsel's performance was deficient such 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, 561-62, 324 S.E.2d 241, 247-48
(1985)
(citing
Strickland v. Washington, 466 U.S. 668, 687, 80 L.
Ed. 2d 674, 693 (1984)). Defendant must also show the deficient
performance prejudiced the defense such that counsel's errors were
so serious as to deprive defendant of a fair trial.
Id.
Defendant raises five claims of ineffective assistance of
counsel. However, in each claim, he fails to show how counsel's
performance prejudiced defendant and deprived him of a fair trial.
“[I]f 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 wasactually deficient.”
Braswell, 312 N.C. at 563, 324 S.E.2d at 249.
From our review of the record, we overrule defendant's ineffective
assistance of counsel claims.
No error.
Judges WYNN and HUNTER concur.
Report per Rule 30(e).
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