Opinion
No. COA09-1371
Filed 21 September 2010 This case not for publication
Appeal by Defendant from judgment entered 29 April 2008 by Judge J. Richard Parker in Superior Court, Chowan County. Heard in the Court of Appeals 14 April 2010.
Attorney General Roy Cooper, by Assistant Attorney General John G. Barnwell, for the State. David L. Neal for Defendant.
Chowan County No. 07 CRS 479.
Defendant Nathaniel Graham was convicted of assault with a deadly weapon with intent to kill inflicting serious injury on 29 April 2008 and was sentenced to an active term of 116 to 149 months. Our Court allowed Defendant's petition for writ of certiorari for the purpose of reviewing the judgment entered by the trial court.
Defendant presents three primary arguments on appeal. First, Defendant argues the trial court erred in failing to instruct the jury regarding identification when identification was a central issue at trial. Second, Defendant argues the trial court's rulings sustaining the State's objections unconstitutionally limited Defendant's cross-examination of the State's witnesses. Third, Defendant argues the trial court erred by sentencing Defendant as a record level III when the record can only support a record level II.
I. Factual Background
Willie Cofield was shot three times on 22 April 2007. Mr. Cofield testified that he was approached by two men as he was backing his vehicle out of a residential driveway. One of the individuals had something in his hand and said to Mr. Cofield, "do you want to buy this?" It was crack cocaine and Mr. Cofield rejected the offer. After Mr. Cofield rejected the offer, he was shot by the individual who had handed him the drugs. At trial, Mr. Cofield identified the non-shooter as Daniel Herrah, but stated that he had never seen the shooter before. After being shot, Mr. Cofield immediately drove himself to the hospital. He suffered extensive injuries, underwent immediate surgery and spent fifteen days in the hospital.
Agent David Nance with the State Bureau of Investigation (SBI) interviewed Mr. Cofield in the hospital on 27 April 2007. He presented Mr. Cofield with a photo lineup containing eight photographs divided onto two sheets of paper. Mr. Cofield stated that, using the photo lineup, he did not have any trouble identifying Defendant as the shooter. However, Mr. Cofield had difficulty describing other details of his conversation with Agent Nance because he "was in and out of it . . . thinking about what would happen and stuff like that."
Agent Nance testified that Mr. Cofield was in intensive care during the interview and "was hooked up to these monitors and tubing and things of that nature." However, Agent Nance also testified that Mr. Cofield was "alert and conscious" at the time. Agent Nance stated that, as he showed Mr. Cofield the photo lineup, Mr. Cofield immediately started tapping on the first photograph, which was a picture of Defendant. Although Mr. Cofield could not speak, Agent Nance asked Mr. Cofield if he was sure that Defendant was the shooter. Mr. Cofield responded with a "thumbs up." Agent Nance then had Mr. Cofield initial the back of the photograph that Mr. Cofield had identified as being a photo of the shooter. During the trial, Mr. Cofield again identified Defendant as the shooter. The State's other primary evidence was the testimony of James Fleming. At trial, Mr. Fleming testified that on 22 April 2007 he was standing outside the home of his mother-in-law when he heard shooting and then witnessed a young man shooting into a car just down the street. Mr. Fleming stated that after shots were fired, the shooter crossed the road, went behind a house, and came back out with a group of five or six men. The group of men then passed within touching distance of Mr. Fleming and made threatening gestures.
Mr. Fleming testified to the following. Mr. Fleming was uncertain as to the color of the shooter's clothing, and he contradicted Mr. Cofield's earlier statement to Agent Nance regarding the color of the shooter's clothing. Defendant also states that during the trial, Mr. Fleming testified that "[f]rom the best that I can say . . . I'm pretty sure" that Defendant was the shooter. Defendant further states that Mr. Fleming testified that he was "between a hundred and hundred fifty yards away. . . . less than a football field. . . . between three [3] and five [5] houses" away from the shooting. Defendant also argues that Mr. Fleming was uncertain regarding the color of Mr. Cofield's car, testifying that he "believe[d]" the car was blue. Mr. Fleming also testified that the events he witnessed occurred in "broad daylight[.]" Mr. Fleming further testified on cross-examination that he was "one hundred percent [100%] sure that it was this young man [Defendant], I remember his face." Defendant did not present any evidence.
II. Jury Instruction on Identification
Defendant contends that the trial court erred by not providing jury instructions regarding identification when identification of Defendant was a significant issue in the case.
Defendant did not object to the jury instructions provided by the trial court, nor did he request that further instructions be given. "When defendant fails to object to a jury instruction at trial, the plain error standard is applied. To demonstrate plain error, defendant must show `that there was error, but that absent the error, the jury probably would have reached a different result.'" State v. Adams, 347 N.C. 48, 69, 490 S.E.2d 220, 231 (1997) (internal citations omitted). Furthermore, our Supreme Court has stated that:
"[T]he plain error rule . . . is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a ` fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done,' or `where [the error] is grave error which amounts to a denial of a fundamental right of the accused,' or the error has `"resulted in a miscarriage of justice or in the denial to appellant of a fair trial"' or where the error is such as to `seriously affect the fairness, integrity or public reputation of judicial proceedings' or where it can be fairly said `the instructional mistake had a probable impact on the jury's finding that the defendant was guilty.'"
State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986) (citations omitted).
Our Court has stated that: "There is no exact form in this state for instructing on the identification of one charged with crime." State v. Mayfield, 74 N.C. App. 601, 603, 329 S.E.2d 419, 420 (1985) (citation omitted). "When a defendant's identity is questioned all that is required is that the court emphasize that proving the defendant's identity as the perpetrator of the crime is an essential element of the case, which the State must prove beyond a reasonable doubt." Id. (citation omitted). Even assuming arguendo that the trial court erred by not providing instructions, ex mero motu, regarding the element of identification, we nevertheless conclude that Defendant has failed to show that the trial court's instructions amounted to plain error.
First, the evidence against Defendant was substantial. Two witnesses identified Defendant as the perpetrator of the crime: Mr. Cofield, who was shot at close range; and Mr. Fleming, who saw the shooting occur within a distance of 100 to 150 yards, and then watched as Defendant left the scene of the shooting and walked past Mr. Fleming "within touching distance[.]"
Defendant argues that the identifications made by the witnesses were unreliable. However, the record shows that both witnesses were unequivocal in their testimony regarding the identification of Defendant as the shooter. Our Supreme Court has stated that "[a]s a general rule, the credibility of witnesses and the proper weight to be given their identification testimony is a matter for jury determination." State v. Turner, 305 N.C. 356, 362, 289 S.E.2d 368, 372 (1982) (citations omitted). Defendant has failed to identity significant evidence from the record to show that the identifications made by the witnesses were inherently unreliable.
Second, the trial court, in instructing the jury, made it clear that "[t]he State must prove to you the Defendant is guilty beyond a reasonable doubt" and then defined this standard for the jury. The trial court further instructed the jury that the State must prove, beyond a reasonable doubt, that Defendant committed each of the four elements for a conviction of assault with a deadly weapon with intent to kill inflicting serious injury, including that "Defendant assaulted [Mr. Cofield] by intentionally shooting him." The trial court further instructed the jury as follows:
You are the sole judges of the credibility of each witness. You must decide for yourselves whether to believe the testimony of any witness. You may believe all or any part or none of what a witness has said on the stand. In determining whether to believe any witness, you should apply the same tests of truthfulness which you apply in your every day affairs.
As applied to this trial, these tests may include the opportunity of the witness to see, hear, know, or remember the facts or occurrences about which he testified, the manner and appearance of the witness, any interest, bias, or prejudice the witness may have, the apparent understanding and fairness of the witness, whether his testimony is reasonable and whether his testimony is consistent with other believable evidence in the case.
Given the evidence in this case, Defendant's opportunity to cross-examine the State's witnesses, and the instructions given by the trial court, we hold that Defendant has failed in his burden of proving that, absent the trial court's failure to instruct the jury ex mero motu regarding identification, the jury would have likely reached a different result at trial. See Adams, 347 N.C. at 69, 490 S.E.2d at 231 (citations omitted). Defendant's argument is without merit.
III. Constitutional Argument
Defendant next argues that the trial court erred by unconstitutionally limiting Defendant's cross-examination of the State's witnesses. Defendant has not preserved this argument for appellate review.
"[A] constitutional question which is not raised and passed upon in the trial court will not ordinarily be considered on appeal." State v. Hunter, 305 N.C. 106, 112, 286 S.E.2d 535, 539 (1982) (citations omitted). Defendant made no constitutional argument before the trial court concerning the trial court's sustaining of the State's objections during Defendant's cross-examination of the State's witnesses. In fact, Defendant made no argument at all to the trial court concerning the trial court's rulings on the State's objections. Because Defendant did not give the trial court the opportunity to rule on the constitutional question Defendant now attempts to argue on appeal, this issue has not been preserved. Id.; see also N.C.R. App. P. 10(b)(1).
IV. Prior Record Level
Defendant contends that the trial court erred by sentencing Defendant as a prior record level III when the record can only support a prior record level II. Specifically, Defendant argues that two points were erroneously assigned on the sentencing worksheet used by the trial court, which resulted in Defendant being sentenced as a prior record level III.
Pursuant to N.C. Gen. Stat. § 15A-1446(d), an error based upon the sentence imposed "may be the subject of appellate review even though no objection, exception or motion has been made in the trial division." N.C. Gen. Stat. § 15A-1446(d)(18) (2009) ("The sentence imposed was unauthorized at the time imposed, exceeded the maximum authorized by law, was illegally imposed, or is otherwise invalid as a matter of law.").
The sentencing worksheet, in this case, identifies six prior record level points used in calculating the total points to be assigned. Four points were assigned for prior convictions and they are not disputed by the parties to this appeal. One point was assigned because the trial court found that all the elements of assault with a deadly weapon inflicting serious injury were included in the required elements for at least one prior conviction. N.C. Gen. Stat. § 15A-1340.14(b)(6) (2007). Additionally, one point was assigned because the trial court found that the offense occurred while Defendant was on "probation, parole, or post-release supervision, or while . . . serving a sentence of imprisonment, or while . . . on escape[.]" N.C.G.S. § 15A-1340.14(b)(7). Though six points were assigned on the worksheet, the total calculated on the worksheet was only five, and Defendant was sentenced as a prior record level III based upon five prior record points having been found. Defendant contends he should have been sentenced as a prior record level II.
However, our review of the record indicates that Defendant's counsel's actions "constituted a stipulation" to Defendant's prior record level before sentencing. Therefore, Defendant has waived the right to argue issues concerning his prior record level on appeal.
In this case, the trial court asked Defendant's counsel prior to sentencing if Defendant's counsel had seen the prior record level worksheet, and Defendant's counsel responded: "Yes, sir." The trial court then expressed confusion concerning the worksheet, stating: "I don't know who fills these things out. I can't interpret this." Thereupon, the trial court called a bench conference with the attorneys for Defendant and the State. Following the bench conference, the trial court stated: "All right. The prior record points is a five [5] and the prior record level is a level III. All right. Mr. Crowe [Defendant's counsel], anything you care to say with reference to sentencing?" In response, Defendant's counsel merely gave some biographical information about Defendant. Defendant's counsel did not in any way contest the prior record level determination just discussed at the bench.
In State v. Alexander, 359 N.C. 824, 616 S.E.2d 914 (2005), our Supreme Court stated: "`"While a stipulation need not follow any particular form, its terms must be definite and certain in order to afford a basis for judicial decision, and it is essential that they be assented to by the parties or those representing them. Silence, under some circumstances, may be deemed assent[.]"'" Id. at 828, 616 S.E.2d at 917 (citations omitted). In Alexander, our Supreme Court held that the evidence was sufficient to show that the defendant had stipulated to his prior record level based upon his attorney's conduct at trial. Id. at 826, 616 S.E.2d at 916.
Under the Structured Sentencing Act, before imposing a felony sentence, the sentencing judge must determine a defendant's prior record level pursuant to N.C.G.S. § 15A-1340.14. N.C.G.S. § 15A-1340.13(b) (2003). A prior conviction, in turn, can be proved by any of the following methods:
(1) Stipulation of the parties.
. . . .
Id. at 827-28, 616 S.E.2d at 916-17 (cited in relevant part). In Alexander, after the defendant had stipulated to the factual basis for the plea agreement he had reached with the State, the trial court then
asked defendant's attorney whether he had anything "to say" with respect to sentencing. [The] [d]efendant's attorney related a brief background of defendant, concluding by remarking that [the] defendant "[was] a single man and up until this particular case he had no felony convictions, as you can see from his worksheet."
Id. at 826, 616 S.E.2d at 916. Our Supreme Court held that this was enough to constitute a stipulation by the defendant to the contents of the prior record level worksheet, stating:
Here, defense counsel did not expressly state that he had seen the prior record level worksheet; however, we find it telling that he specifically directed the trial court to refer to the worksheet to establish that defendant had no prior felony convictions. Defense counsel specifically stated that "up until this particular case he had no felony convictions, as you can see from his worksheet." This statement indicates not only that defense counsel was cognizant of the contents of the worksheet, but also that he had no objections to it.
Defendant, by arguing that his trial counsel did not stipulate to his previous misdemeanor conviction, simply seeks to have his cake and eat it too. If defense counsel's affirmative statement with respect to defendant's lack of previous felony convictions was proper, then so too was the implicit statement that defendant's previous misdemeanor convictions were properly reflected on the worksheet in question. Moreover, this Court's previous decisions make it clear that counsel need not affirmatively state what a defendant's prior record level is for a stipulation with respect to that defendant's prior record level to occur. See Albert, 312 N.C. at 579-80, 324 S.E.2d at 241. Therefore, we find that, under these circumstances, defense counsel's statement to the trial court constituted a stipulation of defendant's prior record level pursuant to N.C.G.S. § 15A-1340.14(f)(1). Thus, defendant's sentence was imposed based upon a proper finding of defendant's prior record level.
Id. at 830, 616 S.E.2d at 918; see also State v. Boyd, ___ N.C. App. ___, ___, 682 S.E.2d 463, 468 (2009); State v. Mack, 188 N.C. App. 365, 379, , 656 S.E.2d 1, 12 (2008); State v. Phillips, 2010 N.C. App. LEXIS 1277 (July 20, 2010) (unpublished).
In the case before us, not only did Defendant's counsel state that he had seen the prior record level worksheet, he discussed the worksheet with the trial court and the prosecutor, and did not object when the trial court thereafter asked him if he had anything else to say with regard to sentencing. We hold, being bound by Alexander and other cases cited, that Defendant stipulated to the prior record level used at sentencing and, therefore, Defendant's sentence "was imposed based upon a proper finding of [D]efendant's prior record level." See Alexander, 359 N.C. at 830, 616 S.E.2d at 918; see also Boyd, ___ N.C. App. at ___, 682 S.E.2d at 468; Mack, 188 N.C. App. at 379, 656 S.E.2d at 12; Phillips, 2010 N.C. App. LEXIS 1277.
Defendant argues, based upon State v. Hurt, 361 N.C. 325, 643 S.E.2d 915 (2007), that our "Supreme Court has reaffirmed — since its ruling in Alexander — an admission or stipulation must be an affirmative act by a defendant personally or through counsel." We note that the page of the Hurt opinion to which Defendant cites states the following:
A stipulation must be "definite and certain in order to afford a basis for judicial decision." While we have recognized that stipulations and admissions may take a variety of forms and may be found by implication, see, e.g., State v. Mullican, 329 N.C. 683, 686, 406 S.E.2d 854, 855 (1991) (holding that when the prosecutor said he summarized the State's evidence "with the permission of the defendant," the defendant's failure to object was a factor supporting the finding of a stipulation), after reviewing the arguments made at sentencing, we are satisfied that, at most, defendant's attorney was acknowledging that the aggravating factors might apply as he asked the trial court not to accept the State's argument. We do not believe defense counsel's argument opposing imposition of an aggravating factor can be construed as an admission that the very same aggravating factor did apply to defendant. To the contrary, we hold that a judge may not find an aggravating factor on the basis of a defendant's admission unless that defendant personally or through counsel admits the necessary facts or admits that the aggravating factor is applicable.
Id. at 329-30, 643 S.E.2d at 918 (internal citations omitted). In Hurt, we do not find the requirement of an "affirmative act." Further, the defendant in Hurt "asked the trial court not to accept the State's argument." Id. at 330, 643 S.E.2d at 918 (emphasis added). The Hurt Court then stated: "We do not believe defense counsel's argument opposing imposition of an aggravating factor can be construed as an admission that the very same aggravating factor did apply to defendant." Id. In the case before us, Defendant's counsel stated that he had seen the worksheet, and the trial court announced Defendant's prior record level in court. Defendant's counsel never indicated that Defendant had any problem with the prior record points or the prior record level. Hurt does not control the outcome of this case.
We note that it is a simple matter for a defendant to sign the prior record level worksheet when the defendant stipulates to its contents, and it is a simple matter for a defendant to object to anything contained in the prior record level worksheet if the defendant is not in agreement with the worksheet. We also encourage the State to insure that the prior record level worksheet is signed by the defendant in order to avoid unnecessary appellate arguments. Timely objection gives the trial court the opportunity to address and correct any errors at trial. See State v. Hargett, 157 N.C. App. 90, 93, 577 S.E.2d 703, 705 (2003).
V. Ineffective Assistance of Counsel
Finally, in a footnote Defendant asks this Court to dismiss without prejudice certain assignments of error related to his trial attorney's performance. Without addressing the substantive issues associated with these assignments of error, Defendant requests that these assignments of error be dismissed without prejudice so that Defendant may "develop the record after further investigation in conformity with N.C. Gen. Stat. § 15A-1411 et seq." Defendant argues that the record is insufficient to evaluate these assignments of error and that the procedures available for the purposes of a Motion for Appropriate Relief will allow for the "examination of defense counsel's decision-making, whether defense counsel's decisions were reasonable under prevailing professional norms, and the extent of prejudice." Nothing in this opinion should be interpreted to bar Defendant from seeking any appropriate relief available to him pursuant to N.C. Gen. Stat. § 15A-1411 et seq. See State v. Long, 354 N.C. 534, 540, 557 S.E.2d 89, 93 (2001).
No error.
Judges STROUD and HUNTER Jr. concur.
Report per Rule 30(e).