Opinion
No. COA09-1194
Filed 20 July 2010 This case not for publication
Appeal by defendant from judgment entered 20 May 2009 by Judge James G. Bell in Cumberland County Superior Court. Heard in the Court of Appeals 10 March 2010.
Attorney General Roy Cooper, by Special Deputy Attorney General, Victoria L. Voight, for the State. Kevin P. Bradley for defendant appellant.
Cumberland County No. 08 CRS 59682.
Jose Suarez Rodriguez ("defendant") appeals from his convictions of robbery with a dangerous weapon and assault with a deadly weapon inflicting serious injury. Defendant contends that the trial court erred by admitting evidence that he possessed a knife at the time of his arrest. Defendant argues that the evidence was irrelevant because no connection was established tending to show that the knife found during his arrest was the knife used during the commission of the crimes charged. Defendant also asserts that he received ineffective assistance of counsel due to (1) defense counsel's failure to object to the trial court's instruction that the jury should "consider the nature of the sharp object" and "the manner in which it was used" and (2) defense counsel's failure to object to, and eliciting of, opinion testimony from a State's witness concerning the victim's demeanor during the photographic line-up.
After review, we conclude that the evidence that defendant possessed a knife at the time of his arrest was highly relevant because the physical evidence adduced at trial showed that the victim received a stab wound. In addition, we conclude that defense counsel's actions did not constitute ineffective assistance of counsel pursuant to the standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984). As such, we hold that defendant received a trial free of prejudicial error.
I. FACTUAL BACKGROUND
Defendant was indicted for robbery with a dangerous weapon and assault with a deadly weapon inflicting serious injury to Donnie McLaurin ("McLaurin") on 27 October 2008. Defendant pled not guilty to all charges and was tried before a jury on 18-20 May 2009.
At trial, the State's evidence tended to show the following: McLaurin was riding his bike to see his girlfriend when defendant flagged him down and asked for a cigarette. McLaurin immediately recognized defendant because he had seen defendant at the convenience store that he frequented, and he had given defendant spare change and cigarettes in the past. McLaurin stopped his bicycle and opened his gym bag to get a cigarette for defendant. As he did so, defendant stabbed McLaurin in the chest, grabbed the gym bag, and ran down the street. When defendant took the bag it contained McLaurin's work clothes, his work shoes, and approximately twenty-five dollars in cash.
McLaurin testified that he never saw a knife and that at the time of the incident, he thought defendant had punched him. However, McLaurin later realized that he had been stabbed after he began having trouble breathing and noticed blood on his shirt. At this time, McLaurin felt that he had been seriously injured and went to the HighSmith Raney Hospital in Cumberland County, North Carolina, for treatment. McLaurin rode his bike part of the way to the hospital, but was forced to walk the remainder of the way due to pain from his injury.
McLaurin was transported from HighSmith Raney Hospital to Cape Fear Hospital by ambulance for further treatment. McLaurin was treated for a collapsed lung and a right chest wound described as being approximately three centimeters in length. The chest wound was closed by staples. Although the collapsed lung did not require surgery, McLaurin had to stay at the hospital overnight for observation to ensure that the lung re-inflated properly.
At the hospital, McLaurin told the emergency room personnel that he had been robbed, whereupon a hospital staff member called the police. Detective Navarro arrived at the hospital and McLaurin gave the detective a basic description of what happened and told the detective that a man he knew as "Jose" committed the offense against him. McLaurin also gave a detailed description of Jose's appearance and told Detective Navarro where Jose could likely be found.
On 27 June 2008, defendant Jose Rodriguez was taken into custody as fitting the description given by McLaurin. On 30 June 2008, Detective Navarro set up a photographic line-up after he obtained a photograph of defendant. Detective Charles Dew conducted the line-up at the behest of Detective Navarro. At this time, McLaurin recognized defendant's picture and stated that defendant was the person who robbed and stabbed him. Detective Dew testified that McLaurin had "goose-bumps," was "legitimately fearful," and "seemed traumatized" when he saw defendant's picture in the line-up.
During trial, McLaurin identified defendant before the jury as the perpetrator of the crimes. McLaurin further testified that he told Detective Dew that the shoes defendant was wearing when he was taken into custody were the same shoes that defendant had been wearing when defendant attacked and robbed him.
At the time of his arrest, defendant was carrying a knife. Diana Engel, a Fayetteville Police Department forensic technician, and the State Bureau of Investigation analyzed the knife for DNA and blood. Diana Engel testified that all tests failed to reveal the presence of blood or DNA on the knife; however, she further testified that the knife could have been washed or wiped clean of any blood or DNA. Over defense counsel's objection, the State introduced the knife that defendant was carrying at the time of his arrest into evidence.
At the close of the State's case-in-chief, defendant made a motion to dismiss, which was denied by the trial court. Defendant did not present any evidence.
The trial court subsequently instructed the jury regarding the substantive elements of the crimes charged. The jury found defendant guilty of robbery with a dangerous weapon and assault with a deadly weapon inflicting serious injury. Defendant was sentenced to 103-133 months' imprisonment with 325 days credited for his prejudgment confinement. Defendant filed notice of appeal with this Court on 14 September 2009.
II. ADMISSION OF THE KNIFE INTO EVIDENCE
Defendant first challenges the trial court's admission of evidence that he possessed a knife at the time of his arrest. Defendant's challenge is based upon his contention that the evidence was irrelevant because there was no evidence presented that the knife found during his arrest was the knife actually used during the commission of the crimes charged. We disagree.
Relevant evidence is that which has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." N.C. Gen. Stat. § 8C-1, Rule 401 (2009). A trial court's ruling on relevancy is "technically . . . not discretionary and therefore [is] not reviewed under the abuse of discretion standard." State v. Wallace, 104 N.C. App. 498, 502, 410 S.E.2d 226, 228 (1991). However, such determinations "are given great deference on appeal." Id.
Here, defendant asserts that the evidence of the knife found on defendant's person at the time of his arrest is irrelevant because it cannot be logically connected to the crime charged. Defendant relies on State v. Patterson, 59 N.C. App. 650, 297 S.E.2d 628 (1982), to support his position. In Patterson, the trial court admitted evidence that defendant Patterson possessed a sawed-off shotgun at the time of his arrest; however, in that case, no evidence had been presented tending to show that a sawed-off shotgun had been used to commit the offense. Id. at 652-53, 297 S.E.2d at 631. Based on those facts, our Court held that evidence of the shotgun was irrelevant and should not have been admitted because the shotgun was not connected to the robbery. Id.
Defendant's reliance on Patterson is misplaced. In the present case, although McLaurin did not actually see a knife, the State produced sufficient evidence that a sharp object was used to stab McLaurin. For instance, McLaurin testified that he realized that he had been stabbed after he noticed blood on his shirt and had trouble breathing. In addition, Rhonda Fetters ("Fetters"), the lead nurse at Cape Fear Valley Emergency Room, testified that McLaurin arrived at the ER with a stab wound on 23 June 2008. Fetters further approximated that the wound was 3 centimeters long and 3/4 of an inch deep. Fetters testified that the object used to stab McLaurin cut in between his ribs and punctured his right lung, causing it to collapse.
Based on the evidence presented to the jury, there is sufficient evidence to support a finding that a knife was used in the commission of the assault inflicting serious injury charge. See State v. Bruton, 344 N.C. 381, 386, 474 S.E.2d 336, 340 (1996) (providing that "`[a]s a general rule weapons may be admitted in evidence "where there is evidence tending to show that they were used in the commission of a crime."'") (citation omitted); State v. Macklin, 210 N.C. 496, 187 S.E. 785 (1936) (holding that a shotgun found in defendant's room a few days after a shooting was held admissible where defendant was charged with murder and there was testimony that the shotgun was like the one with which defendant had been seen on the night of the shooting); State v. Marecek, 152 N.C. App. 479, 568 S.E.2d 237 (2002) (This Court held that testimony that defendant kept a nightstick in his car one month prior to his wife's murder was properly admitted by the trial court. The Court concluded that this evidence was relevant to the State's theory that defendant caused his wife's death by inflicting blunt-force injuries on his wife, because it tended to show that he possessed an instrument that could have been used to inflict the injuries.). Evidence that a knife was found on defendant's person, even four days after the commission of the offense, is clearly relevant because it tends to show that defendant's knife was likely the sharp object used to stab McLaurin. Accordingly, defendant's assignment of error is without merit and the trial court did not err.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant next asserts that he was prejudiced by his counsel's allegedly deficient performance because defense counsel (1) failed to object to the trial court's instruction that the jury should "consider the nature of the sharp object" and "the manner in which it was used" and (2) also failed to object to, and elicited, opinion testimony from a State's witness concerning the victim's demeanor during the photographic line-up.
To constitute ineffective assistance of counsel, an attorney's performance (1) must have been deficient and (2) must have prejudiced the defense. State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985) ("expressly adopt[ing] the test set out in Strickland v. Washington as a uniform standard to be applied to measure ineffective assistance of counsel under the North Carolina Constitution"). In order to state a claim for ineffective assistance of counsel, a defendant must prove that his counsel made serious errors and show that "there is a reasonable probability that, but for counsel's errors, there would have been a different result in the proceedings." Id. at 563, 324 S.E.2d at 248. Moreover, our United States Supreme Court has stated that "[j]udicial scrutiny of counsel's performance must be highly deferential[,]" and that "[a] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694-95.
A. Failure to Object to Jury Instructions
First, defendant asserts that defense counsel's performance was deficient because he failed to object to the trial court's instruction that the jury should "consider the nature of the sharp object and the manner in which it was used."
Defendant's argument essentially hinges on his previously addressed contention that evidence of the knife found in his possession at the time of his arrest was irrelevant. For instance, in his brief, defendant argues that there was no evidence that a sharp object was used in any manner merely because McLaurin did not see a knife at the time he was stabbed. Based on this argument, defendant asserts that the trial court's instruction to the jury communicated an improper judicial opinion, and as such, should have been objected to by defense counsel.
We addressed defendant's relevancy issue above. In that analysis, we noted the wealth of evidence tending to show that a sharp object was used to stab McLaurin, and held that the evidence of the knife found on defendant's person was clearly relevant.
Based on the offenses charged and the evidence presented at trial, the trial court instructed the jury regarding the element of each offense requiring the use of a "deadly weapon" as follows:
A deadly weapon is a weapon that is likely to cause death or serious bodily injury. A sharp object is a deadly weapon.
In determining whether a sharp object was a deadly weapon, you should consider the nature of the sharp object; the manner in which it was used; [and] the size and strength of the defendant as compared to the victim.
The trial court followed the pattern jury instructions when it provided the jury with the above instruction. See N.C.P.I., Crim. 208.15 (2009); N.C.P.I., Crim. 217.30 (2009). Moreover, the trial court did not state or suggest that the knife found on defendant's person was the "sharp object" used to stab McLaurin. As such, defense counsel's failure to object to the trial court's instruction did not amount to a serious, prejudicial error as required to state a claim for ineffective assistance of counsel.
B. Failure to Object to and Eliciting Testimony from Detective Dew
Second, defendant contends that Detective Dew rendered an inadmissible opinion as to McLaurin's demeanor while identifying defendant during the photographic line-up. Defendant contends that his counsel was ineffective by failing to object to testimony that McLaurin was "legitimately fearful" and by eliciting further testimony from Detective Dew on this issue.
Here, defendant argues that the following testimony was improperly elicited by defense counsel during cross-examination:
[DEFENSE COUNSEL]: [Y]ou stated [on direct examination] that Mr. McLaurin had goose-bumps on his arms and he was visibly stressed?
[DETECTIVE DEW]: Yes.
Q: Even appeared fearful?
A: Yes.
. . . .
Q: You had stated that you were quite surprised — [in] your experience in showing photo arrays, not many people react the way Mr. McLaurin did?
A: Right.
Q: While he's in the inter — while he was in the room with you, it was just the two of you in the room?
A: Correct.
Q: Did he appear impaired at all?
A: No, he did not.
Q: When you said he acted in such a distinct way, would you say that he overacted?
A: No, not at all; and it was — it was very distinct things. I — I need to explain. In — in the type of work that I have done in investigations . . . [p]art of the training that you go through, particularly as it relates to homicide, you get as many interpersonal identification classes as you can, i.e., identifying things you do that you don't realize you do when you're stressed, when you're lying, when you're telling the truth, et. cetera. You learn to interpret neuro-physical things, sweating, breathing rate, goose-bumps, things of that nature. So those are things that I'm trained to look for that the average person would not be. I notice these things. Mr. McLaurin's response was in my opinion, definitely not intended. He just — he — like I said, what surprised me was he seemed legitimately fearful at looking at that photo while sitting in a room, just the two of us, safely, within the Fayetteville Police Department.
Q: Would you consider that a normal reaction?
A: It was a surprising reaction. It was apparent to me that this had obviously been a stressful and fearful situation for the person who was sitting in front of me, not knowing anything about the case.
Q: Did he seem traumatized by seeing this photograph?
A: That could be one way of explaining it. It was instant and immediate — immediately upon seeing the photograph, there was no hesitation. There was no thinking about it. It was immediate; absolutely, positively, that's the person; I'm 1,000 percent sure. The physical reaction in Mr. McLaurin was also immediate. The goose-bumps immediately appeared. Goose-bumps are a fear response or a response to cold, as we all know. It was immediate[.]
We note that even without Detective Dew's testimony, the evidence presented at trial included the following: (1) testimony by Detective Navarro that McLaurin told her that he had been stabbed and robbed, and that McLaurin named and described defendant as the person who committed the offenses against him; (2) testimony by McLaurin positively identifying defendant as the person who stopped him and asked for a cigarette, and then subsequently stabbed him and took his gym bag; (3) testimony of the arresting officer, Allen Sanford, stating that defendant possessed a knife at the time of his arrest; (4) testimony of Rhonda Fetters, the lead nurse at Cape Fear Valley Emergency Room, stating that McLaurin arrived at the ER with a three-centimeter stab wound to his chest which caused his lung to collapse. In addition to the aforementioned testimony, McLaurin's bloodstained clothing, photographs of McLaurin's injuries, and the knife found in defendant's possession were properly admitted into evidence and published to the jury. Therefore, even without Detective Dew's statements describing McLaurin as being "legitimately fearful" while identifying defendant during the photographic line-up, defendant has failed to show that there is a reasonable probability that, absent the alleged error, the trial result would have been different. Accordingly, this assignment of error is overruled.
No error.
Judges HUNTER, Robert C., and CALABRIA concur.
Report per Rule 30(e).