Appeal by defendant from judgment dated 20 September 2006 by
Judge Linwood O. Foust in Cleveland County Superior Court. Heard
in the Court of Appeals 24 September 2007.
Attorney General Roy Cooper, by Special Deputy Attorney
General Victoria L. Voight, for the State.
Gilda C. Rodriguez for defendant-appellant.
BRYANT, Judge.
Michael Douglas Feaster, Jr., (defendant) was found guilty of
robbery with a dangerous weapon and felonious breaking and
entering. He was sentenced to terms of imprisonment of sixty-one
to eighty-three months and seven to nine months.
The State presented evidence tending to show that on the
morning of 2 June 2006, defendant visited Kevin Thompson at the
residence Kevin inhabited in Shelby with his father, Calvin
Thompson (hereinafter “Mr. Thompson”). Defendant told Mr. Thompson
that another son owed defendant some money. Mr. Thompson gave
defendant $40 in cash in payment of the debt and told defendant to
leave. Defendant took the money and departed. Later that day, Mr. Thompson's mother delivered groceries to
his residence. She testified that a young man dressed in black
pants and a white shirt was sitting on the front porch of the
residence. She unloaded the groceries from her automobile and
placed them on the porch. The young man helped carry the groceries
into the residence. After unloading the groceries, she drove away.
Mr. Thompson confronted the young man, whom he identified as
defendant, and said, “I thought I told you to leave.” Defendant
placed the groceries down and left. Mr. Thompson locked the screen
door and sat down to watch television. Mr. Thompson subsequently
felt an arm wrapped around his neck and a gun placed to the back of
his head. The intruder, whom he identified as defendant, forced
him to lie on the floor on his stomach. Defendant reached into Mr.
Thompson's back pocket and retrieved a bank envelope containing
$255 in cash. Defendant took the money and ran.
Mr. Thompson ran to his mother's house and called the police.
Officer Michael Bailey of the Shelby Police Department responded to
the call at 3:45 p.m. that day. Mr. Thompson reported to Officer
Bailey that he had been robbed by a man wearing a white silk shirt
and black dress pants. Mr. Thompson gave a description of the
assailant, whom he knew by the name of “Darkside.” Mr. Thompson
stated that the man threw him to the floor, held a gun to the back
of his head, and took $280 in cash from him. Officer Bailey walked
through Mr. Thompson's residence and saw groceries on a table.
Officer Bailey also observed that the lock to the door was broken.
Officer Michael Watson of the Shelby Police Department alsoresponded to the call. Mr. Thompson told him that a son's friend
named “Darkside” had been to his residence earlier that day and
that Mr. Thompson had asked this man to leave the residence. Later
in the day, Mr. Thompson's mother brought some groceries and the
man named “Darkside” helped carry the groceries into the residence.
Mr. Thompson directed Darkside to leave. Darkside subsequently
entered the residence, placed Mr. Thompson in a choke hold, held a
gun to the back of Mr. Thompson's head, forced Mr. Thompson to lie
on his stomach, and removed money contained in an envelope in Mr.
Thompson's back pocket. The man took the money and fled. Mr.
Thompson described Darkside as approximately five-feet, six-inches
in height, weighing 180 to 190 pounds, and wearing a white silk
shirt, black dress pants, black leather shoes, and a derby hat.
Sergeant Stephen Seate of the Shelby Police Department
received the file on 5 June 2006. He recognized a name given in
Mr. Thompson's statements. He prepared a photograph lineup of
eight photographs that contained one photograph of this suspect.
He showed the lineup to Mr. Thompson, who identified the fifth
photograph, that of defendant, as the perpetrator.
Defendant did not present any evidence.
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Defendant presents the issues of: (I) whether the trial court
erred in denying defendant's motion to dismiss based on lack of
physical evidence, credibility problems with the only witness and
ineffective assistance of counsel; and (II) whether defendant
received ineffective assistance of counsel because during the trialhis counsel repeatedly asked the witness if he had bought drugs
from defendant, alleging that this line of questioning created
prejudice against defendant. For the reasons stated below, we find
no error.
I
Defendant assigns as error the denial of his motion to dismiss
the charges for insufficient evidence. In deciding a motion to
dismiss, the trial court must determine whether there is
substantial evidence of each essential element of the offense
charged and of the defendant's perpetration of the offense.
State
v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651 (1982).
“Substantial evidence is that amount of relevant evidence necessary
to persuade a rational juror to accept a conclusion.”
State v.
Scott, 356 N.C. 591, 597, 573 S.E.2d 866, 869 (2002). If the
evidence “is sufficient only to raise a suspicion or conjecture as
to either the commission of the offense or the identity of the
defendant as the perpetrator, the motion to dismiss must be
allowed.”
State v. Malloy, 309 N.C. 176, 179, 305 S.E.2d 718, 720
(1983).
Defendant argues that Mr. Thompson's statements to law
enforcement officers and his trial testimony are so “riddled with
many inconsistencies and omissions” and not supported by “any
physical evidence or independent testimony” that the court erred by
denying the motion to dismiss. However, in deciding a motion to
dismiss the court is required to consider the evidence in the light
most favorable to the State, giving it the benefit of everyreasonable inference that may be drawn.
State v. Powell, 299 N.C.
95, 99, 261 S.E.2d 114, 117 (1980). Contradictions and
discrepancies are for the jury to resolve and do not warrant
dismissal.
Id. The issue for the court is simply whether a
reasonable inference of the defendant's guilt may be drawn from the
evidence.
Id.
We conclude a reasonable inference of defendant's guilt may be
drawn from the evidence presented. We hold the court properly
denied the motion to dismiss the charges. This assignment of error
is overruled.
II
Defendant also contends that he was denied effective
assistance of counsel because his trial counsel asked Mr. Thompson,
during cross examination, whether he had consumed marijuana with or
purchased drugs from defendant. Defendant argues that counsel's
insinuation that defendant consumed or sold illegal drugs was
highly prejudicial.
To establish a claim of ineffective assistance of counsel, a
defendant must satisfy a two-prong test which was developed by the
United States Supreme Court in
Strickland v. Washington, 466 U.S.
668, 687, 80 L. Ed. 2d 674, 693,
reh'g denied, 467 U.S. 1267, 82 L.
Ed. 2d 864 (1984).
State v. Braswell, 312 N.C. 553, 562-63, 324
S.E.2d 241, 248 (1985). First, the defendant must show that
counsel's performance fell below an objective standard of
reasonableness.
Id. at 561-62, 324 S.E.2d at 248. Second, the
defendant must show that the error committed was so serious that areasonable probability exists that the trial result would have been
different absent the error.
Strickland at 694, 80 L. Ed. 2d at
698. The Court in
Strickland reasoned that
[j]udicial scrutiny of counsel's performance
must be highly deferential. It is all too
tempting for a defendant to second-guess
counsel's assistance after conviction or
adverse sentence, and it is all too easy for a
court, examining counsel's defense after it
has proved unsuccessful, to conclude that a
particular act or omission of counsel was
unreasonable. . . . A fair assessment of
attorney performance requires that every
effort be made to eliminate the distorting
effects of hindsight, to reconstruct the
circumstances of counsel's challenged conduct,
and to evaluate the conduct from counsel's
perspective at the time. Because of the
difficulties inherent in making the
evaluation, a court must indulge a strong
presumption that counsel's conduct falls
within the wide range of reasonable
professional assistance; that is, the
defendant must overcome the presumption that,
under the circumstances, the challenged action
'might be considered sound trial strategy.'
Id. at 689, 80 L. Ed. 2d at 694-95 (citations omitted).
Regardless, the Court stated, “[a]n error by counsel, even if
professionally unreasonable, does not warrant setting aside the
judgment of a criminal proceeding if the error had no effect on the
judgment.”
Id. at 691, 80 L. Ed. 2d at 696.
It is apparent from a reading of counsel's cross examination
of Mr. Thompson that counsel's strategy was to attempt to discredit
Mr. Thompson's credibility, given that Mr. Thompson was the sole
witness to the crimes, by any means possible even if it meant
placing defendant's character at issue. As
Strickland cautions, we
are not to engage in judicial second guessing of counsel'sstrategy. We note that counsel did not concede defendant's guilt
of the charged crimes or of any lesser offense thereof. We are
also not convinced that had counsel not engaged in this line of
cross examination, a different verdict probably would have resulted
given the strong and uncontradicted evidence of defendant's guilt.
This assignment of error is overruled.
Defendant has abandoned his remaining assignments of error by
not bringing them forward in his brief. N.C. R. App. P. 28(b)(6).
No error.
Judges WYNN and ELMORE concur.
Report per Rule 30(e).
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