NORTH CAROLINA COURT OF APPEALS
Filed: 2 October 2007
STATE OF NORTH CAROLINA
v. Scotland County
Nos. 05 CRS 52460-61;
MICHAEL ANTHONY BETHEA, 06 CRS 514
Appeal by defendant from judgment dated 22 June 2006 by Judge
B. Craig Ellis in Scotland County Superior Court. Heard in the
Court of Appeals 24 September 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Judith Tillman, for the State.
Mary March W. Exum for defendant-appellant.
Michael Anthony Bethea (defendant) appeals from his 22 June
2006 convictions for felony speeding to elude arrest, resisting a
public officer, failing to wear a seatbelt and for having attained
the status of an habitual felon. The charges against defendant
arose when, on 8 August 2005, defendant refused to stop his vehicle
as requested by a police officer who was attempting to serve
defendant with an outstanding arrest warrant. Instead of complying
with the officer's directions, defendant drove off at an aggressive
rate of speed. After a high-speed pursuit involving five or more
police or sheriff's department cars, defendant stopped his car in
a driveway and attempted to flee on foot. Defendant was quickly
apprehended and arrested. The pursuit of defendant by police, fromthe time defendant was initially asked to stop, was recorded on a
video recorder mounted in an officer's patrol car. The video
recording was entered into evidence at defendant's trial.
Defendant was convicted by a jury of all charges except the
habitual felon charge to which defendant pled guilty. Defendant
now appeals his convictions.
Defendant presents two issues on appeal: (I) whether the
trial court had jurisdiction to enter judgment against defendant;
and (II) whether defendant's trial counsel rendered ineffective
assistance of counsel.
Defendant first argues the trial court had no jurisdiction to
enter judgment against him because the indictment was defective.
We note that defendant did not include this assignment of error in
the record as required by North Carolina Appellate Rules 9(a)(1)(k)
and 10(c)(1). Normally, such failure would preclude this Court's
review of the issue. However, because defects in an indictment may
result in the lack of subject matter jurisdiction of the trial
court, we address this issue ex mero motu
. See Reece v. Forga
N.C. App. 703, 704, 531 S.E.2d 881, 882 ([A] court has inherent
power to inquire into, and determine, whether it has jurisdiction
and to dismiss an action ex mero motu
when subject matter
jurisdiction is lacking.), disc. review denied
, 352 N.C. 676, 545
S.E.2d 428 (2000).
Defendant asserts that the indictment charging defendant withthe felony of speeding to elude arrest should have stated that at
the time of this new offense, defendant had achieved the status of
habitual felon. Defendant cites N.C. Gen. Stat. § 14-7.3 in
support of his argument that the omitted statement was required
and, as a result, his convictions must be reversed. We find
defendant's claim to be without merit.
Contrary to defendant's contention, this Court has previously
held that N.C. Gen. Stat. § 14-7.3 does not require the indictment
charging a defendant with the underlying felony to also charge
defendant as an habitual felon. State v. Peoples
, 167 N.C. App.
63, 71, 604 S.E.2d 321, 327 (2004); State v. Hodge
, 112 N.C. App.
462, 466-67, 436 S.E.2d 251, 254 (1993). Consequently, this
assignment of error is overruled.
In his remaining assignment of error, defendant asserts he was
denied effective assistance of counsel because his trial counsel
failed to present evidence of defendant's medical history including
the records from defendant's hospitalization in October 2003 and in
August 2005. Defendant contends that these medical records would
have been important in proving defendant's state of mind at the
time of his arrest. In addition, he contends that the records from
his hospitalization in October 2003 would have corroborated his
testimony that he was scared to stop for the police because he had
been injured by police when stopped in October 2003 resulting in
his hospitalization for two weeks.
Defendant asserts that the
records for his hospitalization in August 2005 would havecorroborated his testimony regarding how he was treated by police
during his arrest in this case. In support of his argument,
defendant has appended to his brief the medical records he contends
his trial counsel should have offered at his trial.
To demonstrate ineffective assistance of counsel, defendant
must show that his counsel's conduct fell below an objective
standard of reasonableness. 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). Such a showing requires defendant to satisfy the two-prong
test announced by the United States Supreme Court in Strickland
adopted by our Supreme Court
: (1) that counsel's performance was
deficient; and (2) that the deficient performance prejudiced the
defense. State v. Braswell
, 312 N.C. 553, 562, 324 S.E.2d 241, 248
(1985). It is well established that an attorney's tactical
decisions are within the broad scope of reasonable professional
judgment and, consequently, will not give rise to an ineffective
assistance claim. State v. Langley
, 173 N.C. App. 194, 200, 618
S.E.2d 253, 257 (2005), disc. review dismissed and denied
, 360 N.C.
366, 630 S.E.2d 447 (2006).
As an initial matter, we note that determining what evidence
to present is a matter of trial strategy that is well within the
scope of counsel's discretion. Our Supreme Court has held:
[T]he decisions on what witnesses to call,
whether and how to conduct cross examination,
. . . what trial motions should be made, and
all other strategic and tactical decisions are
the exclusive province of the lawyer after
consultation with his client. Trial counsel
are necessarily given wide latitude in these
matters. Ineffective assistance of counselclaims are not intended to promote judicial
second-guessing on questions of strategy as
basic as the handling of a witness.
State v. Milano
, 297 N.C. 485, 495, 256 S.E.2d 154, 160 (1979)
(citations and quotation marks omitted), overruled on other
, State v. Grier
, 307 N.C. 628, 300 S.E.2d 351 (1983).
Furthermore, we find it questionable that these medical
records would have bolstered defendant's own testimony as to his
medical conditions and his state of mind at the time of the arrest.
First, the records do not provide adequate documentation of his
conditions and medications. The only document that lists
defendant's medications is undated and does not describe the
conditions for which they were prescribed. In addition, most of
the medical conditions reflected in the hospital records are only
those self-reported by defendant.
More critically, the hospital records regarding defendant's
hospital treatment in 2003 would have not only further highlighted
a prior arrest of defendant for assault on a police officer, it
would have directly impeached defendant's testimony. Defendant
testified that as a result of the alleged injuries he received from
police during his arrest in 2003, he was in the hospital for two
weeks. However, the corresponding hospital records show that
defendant was brought to the hospital emergency room complaining of
a headache and neck and lower back pain after a fall in his jail
cell and that this hospital visit lasted less than four hours.
After tests showed no fractures or other abnormalities, defendant
was discharged as ambulatory with prescriptions for painmedications.
Upon review of the proposed medical records, we disagree with
defendant that there was no strategic reason for trial counsel's
failure to offer them as evidence. Defendant was permitted to
testify at length about his state of mind at the time of the arrest
and his various medical problems. More importantly, the records
were not only incomplete, but could have impeached defendant's
credibility. Consequently, we conclude that trial counsel's
decision not to offer the records was not an unreasonable strategy.
As such, defendant's second assignment of error is overruled.
Judges WYNN and ELMORE concur.
Report per Rule 30(e).
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