Opinion
No. COA11–1341.
2012-06-5
STATE of North Carolina v. Edward Lee STEPHENS, Defendant.
Attorney General Roy Cooper, by Assistant Attorney General Thomas O. Lawton III, for the State. J. Edward Yeager, Jr., for defendant-appellant.
Appeal by defendant from judgment entered 17 June 2011 by Judge Linwood O. Foust in Gaston County Superior Court. Heard in the Court of Appeals 6 March 2012. Attorney General Roy Cooper, by Assistant Attorney General Thomas O. Lawton III, for the State. J. Edward Yeager, Jr., for defendant-appellant.
HUNTER, ROBERT C., Judge.
Defendant Edward Lee Stephens appeals from a judgment entered after a jury found him guilty of assault by strangulation. Defendant argues that: (1) the trial court erred by denying defendant's motion to suppress; (2) he was denied his constitutional right to effective assistance of counsel due to his attorney's failure to comply with the statutory requirements when filing a motion to suppress; (3) the trial court erred in refusing to allow the defense to impeach the State's witness; and (4) the trial court erred in denying defendant's request for a jury instruction regarding voluntary intoxication. After careful review, we find no prejudicial error.
Background
The State's evidence at trial tended to establish the following facts: On 4 July 2010, defendant, a number of relatives, and a family friend were riding and breaking horses at their family property in Gaston County. The individuals present included: defendant; defendant's wife, Natalie Stephens; defendant's brother, Samuel Stephens; defendant's sister-in-law, Megan Stephens; and a family friend and tenant on the property, Brian Morrison. Everyone came together in the horse pen between 11:00 a.m. and 12:00 p.m. and remained there riding and breaking horses until about 10:00 p.m. Trial testimony indicated that all individuals were drinking alcohol throughout the day, but the testimony differed over precisely how much each individual consumed. Samuel testified that defendant and Brian together drank an 18–pack of beer. Brian testified that defendant drank between six to eight beers over the course of the day. In his statement to police, defendant claimed that he drank 12 beers that day.
That afternoon, defendant and Megan lunged a horse: defendant was riding the horse and Megan was using the lunge whip. Testimony indicated that lunging a horse involved hitting the horse on its hindquarters with a lunge whip to motivate the horse to move forward with a rider on its back. A lunge whip is “a six-foot pole with about a six to seven foot line on it that you would use to whip a horse.” While defendant was on horseback, the end of Megan's whip hit defendant's right leg or ankle. Testimony differed as to whether Megan was aware she hit defendant with the whip. Natalie and Brian testified that Megan knew she had hit defendant because they both asked her to stop. Megan testified that she was unaware that she hit defendant.
After being hit in the ankle with the lunge whip, defendant got off the horse, stumbled, and fell to the ground. Testimony differed as to what happened next. Natalie and Brian testified that Megan stood over defendant and hit him in the face with the whip. They also testified that defendant got off the ground and wrapped his arms around Megan and, together, they fell to the ground. Conversely, Megan said that she did not hit defendant with the whip while he was on the ground, but only when he was standing and threatening to kill her. Samuel testified that he observed defendant throw Megan to the ground and wrap his hands around her neck. Samuel also stated that Megan went limp and her eyes rolled back in her head. Brian testified Megan was breathing but unconscious. Natalie and Samuel both called 9–1–1 and shortly thereafter police and medical personnel arrived and took Megan to the hospital. Officer William Howell was the first on the scene and observed Megan to be incoherent and unable to move her legs. Officer Howell requested a helicopter because he suspected Megan might have sustained a neck or back injury that would require a “high level emergency room” for trauma treatment.
Officer J.D. Bryant arrived on the scene and took defendant to the police station for questioning. At the police station, Officer Bryant took defendant's statement. Officer Bryant informed defendant of his Miranda rights before taking his statement and testified that defendant was not coerced or threatened into giving his statement. Officer Bryant wrote the statement, which defendant reviewed and signed. In his statement, defendant asserted that Megan hit him with the whip several times while he was on the horse. He then stated:
I fell of [sic] the horse and was laying on the ground. I then felt a burning sensation on my face and heard every body [sic] screaming “stop whipping” “stop whipping.” I felt a burning sensation on my face when I stood up. All I remember is seeing a figure, holding a whip. I put my hands around their [sic] neck and took them [sic] to the ground. I wrapped my leg around her chest and proceeded to move into a position to break her neck.
The statement was published to the jury but was not read aloud, and Officer Bryant did not testify concerning its contents.
Officer Howell testified at trial that he overheard defendant make a spontaneous statement to the magistrate. Defendant purportedly stated “ ‘that he knew what he was doing was wrong and he did not want [Megan] charged.’ “
On 1 January 2011, defendant was indicted on the charge of assault by strangulation. The matter came to trial on 15 June 2011. On the morning of trial, defendant filed a written motion to suppress the statement he made to Officer Bryant. Defendant contended that his statement was obtained in violation of his constitutional rights. The State argued that the motion was not filed in accordance with N.C. Gen.Stat. § 15A–976 (2009), which requires that a motion to suppress be filed within 10 working days of receiving notice from the State that defendant's statement would be used at trial. Counsel for defendant admitted to having received discovery from the State in August 2010, which contained defendant's statement. Also, on 1 February 2011, the State provided a plea offer to defendant, which indicated the State's intent to use any statement made by defendant. The State also argued that defense counsel failed to file an affidavit containing facts supporting the motion as required by N.C. Gen.Stat. § 15A–977(a) (2009). The trial court denied the motion to suppress on the grounds it was not timely filed and that it was not accompanied by an affidavit. Defense counsel renewed the motion to suppress during the State's direct examination of Officer Bryant. The motion was denied.
On 17 June 2011, a jury found defendant guilty of assault by strangulation. The trial court sentenced defendant to five to six months imprisonment, but suspended the sentence and placed defendant on supervised probation for 36 months. Defendant entered oral notice of appeal.
Discussion
I.
First, defendant argues that the trial court erred by denying his motion to suppress. We disagree.
Defendant acknowledges that defense counsel failed to comply with the statutory requirements for filing a motion to suppress in that: (1) the motion was not timely filed, as required by N.C. Gen.Stat. § 15A–976, and (2) defense counsel failed to file an affidavit containing facts supporting the motion, as required by N.C. Gen.Stat. § 15A–977(a). Nevertheless, defendant argues that the trial court could have exercised its discretion and held a hearing on the motion, and that the court's refusal to do so constituted an abuse of discretion.
“Motions filed out of time are accepted at the discretion of the trial court, and this court will not entertain challenges to the proper use of this discretion.” United States v. Johnson, 953 F.2d 110, 116 (4th Cir.1991), superseded by statute on other grounds as stated in United States v. Riggs, 370 F.3d 382, 386 (4th Cir.2004). Likewise, “[t]he decision to deny summarily a motion that is not accompanied by an affidavit is vested in the discretion of the trial court.” State v. Langdon, 94 N.C.App. 354, 364, 380 S.E.2d 388, 390 (1989).
Defendant cites no authority to support his argument that the trial court abused its discretion by refusing to hold a hearing and address the merits of defendant's motion. Defendant was informed approximately 10 months before trial that his statement would be presented as evidence by the State, but he did not file his motion to suppress until the day of trial. The motion was not accompanied by an affidavit. Under these circumstances we cannot say that the trial court abused its discretion in denying defendant's motion to suppress his statement. See State v. Austin, 111 N.C.App. 590, 598, 432 S.E.2d 881, 886 (1993) (holding the trial court did not err in denying defendant's motion to suppress where “defendant had both sufficient time to make his motions prior to trial and ample notice of the State's intention” to use the evidence); Langdon, 94 N.C.App. at 356, 380 S.E.2d at 390 (“Because the motion as filed did not comply with the requirements of G.S. 15A–977, the motion was subject to being summarily denied. We cannot say the trial court abused its discretion in denying defendant's initial motion to suppress.” (internal citation omitted)). Defendant's argument is without merit.
II.
Second, defendant argues that he was denied his constitutional right to effective assistance of counsel due to his attorney's failure to comply with the statutory requirements for filing a motion to suppress, which resulted in the motion being denied. We disagree.
To prevail on a claim of ineffective assistance of counsel, a defendant must first show that his counsel's performance was deficient and then that counsel's deficient performance prejudiced his defense. Deficient performance may be established by showing that counsel's representation fell below an objective standard of reasonableness. Generally, to establish prejudice, a defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.
State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271, 286 (citations and quotation marks omitted), cert. denied,549 U.S. 867, 166 L.Ed.2d 116 (2006). “[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 was actually deficient.” State v. Braswell, 312 N.C. 553, 563, 324 S.E.2d 241, 249 (1985). Though defense counsel made several errors in failing to comply with the statutory requirements for filing a motion to suppress, defendant has not shown that a reasonable probability exists that a different outcome would have been reached but for counsel's mistakes.
Upon review of defendant's statement, it is clearly damaging to defendant in that he essentially admits to assault by strangulation. Nevertheless, we fail to see how a different result would have occurred had the statement been excluded given the additional evidence of defendant's guilt.
“The offense of assault by strangulation requires only that an individual assault another person and inflict physical injury by strangulation.” State v. Braxton, 183 N.C.App. 36, 41, 643 S.E.2d 637, 641,disc. review denied,361 N.C. 697, 653 S.E.2d 4 (2007). The State presented testimony from Samuel that defendant threw Megan to the ground, wrapped his arms around her neck, and locked his hands behind her neck. Defendant's wife, Natalie, testified that defendant “came up off the ground and just wrapped around [Megan.]” Brian testified that defendant jumped up and grabbed Megan, and they fell to the ground with his arms around her. Megan testified that she remembers defendant threatening to kill her shortly before he attacked her, although she does not remember the actual attack. Officer Howell further stated that Megan was incoherent and unable to move her legs when he arrived at the scene. He believed that she had suffered a neck or back injury. Officer Howell testified that he overheard defendant admit to the magistrate that what he had done was “wrong.” The State also produced photographs of Megan showing injuries consistent with testimony that she had been strangled. The photographs showed Megan with swollen, bloodshot eyes and marks around her neck and shoulders.
Though defense counsel committed an error, defendant has failed to show that her deficient performance prejudiced his defense. Consequently, defendant is not entitled to a new trial based on ineffective assistance of counsel.
We note that defendant claimed in his motion to suppress that he was not provided Miranda warnings; however, it appears from the evidence of record that this argument was baseless. Consequently, had defense counsel timely filed the motion with affidavits, the denial of the motion would have been proper.
III.
Third, defendant argues that the trial court abused its discretion by refusing to allow the defense to impeach the State's witness Samuel Stephens. During cross-examination of Samuel, defense counsel asked: “Mr. Stephens, did you make a statement to [defendant] after this incident occurred that if he pays you a sum of money, you would not testify today?” The trial court sustained the State's objection to this question. Defendant claims that since Samuel was the State's only witness who testified supporting their theory that defendant strangled Megan, any potential motive for his testimony was relevant. Assuming, arguendo, that the trial court erred, we hold that the error was not prejudicial.
We note that defendant does not argue that his Confrontation Clause rights were violated by the curtailment of his cross-examination of Samuel. Consequently, we limit our scope of review to defendant's argument that the trial court abused its discretion by limiting defendant's cross-examination.
“A witness may be cross-examined on any matter relevant to any issue in the case, including credibility.” N.C. Gen.Stat. § 8C–1, Rule 611(b) (2009). “The Supreme Court has specifically declined to set precise limits for the scope of cross-examination for impeachment, requiring only that ‘(1) the scope thereof is subject to the discretion of the trial judge, and (2) the questions must be asked in good faith.’ “ State v. Harrington, 78 N.C.App. 39, 43, 336 S.E.2d 852, 854 (1985) (quoting State v. Williams, 279 N .C. 663, 675, 185 S.E.2d 174, 181 (1971)); State v. Coffey, 326 N .C. 268, 290, 389 S.E.2d 48, 61 (1990) (“[A]lthough cross-examination is a matter of right, the scope of cross-examination is subject to appropriate control in the sound discretion of the court.”). “The long-standing rule in this jurisdiction is that the scope of cross-examination is largely within the discretion of the trial judge, and his rulings thereon will not be held in error in the absence of a showing that the verdict was improperly influenced by the limited scope of the cross-examination.” State v. Woods, 307 N.C. 213, 220–21, 297 S.E.2d 574, 579 (1982). In other words, “[a] defendant is not entitled to a new trial unless there is a reasonable possibility that a different result would have been reached absent the challenged testimony.” State v. Chapman, 154 N.C.App. 441, 447, 572 S.E.2d 243, 248 (2002), disc. review denied,356 N.C. 682, 577 S.E.2d 898 (2003); N.C. Gen.Stat. § 15A–1443 (a) (2009).
Assuming, arguendo, that the trial court erred in sustaining the State's objection, we hold that the error was not prejudicial such that a new trial is warranted. Defendant incorrectly asserts that the State's case hinged on Samuel's testimony. To the contrary, the State provided other evidence to support defendant's conviction of assault by strangulation. Every eyewitness, including defendant's witnesses, testified that defendant attacked Megan in some manner after she hit him with the whip. There was no evidence that anyone else attacked Megan or that her injuries could have been the result of some other incident. Officer Howell testified that when he arrived at the scene Megan was incoherent and it was apparent to him that she had some sort of neck or back injury that required helicopter transportation to the hospital. The photographs of Megan showed injuries consistent with strangulation. Defendant admitted to putting his hands around her neck and positioning himself so that he could “break her neck.” Based on this additional evidence, it is unlikely that defendant would have been acquitted had he been allowed to impeach Samuel by revealing the alleged extortionate conduct. See generally State v. Crandell, 322 N.C. 487, 506, 369 S.E.2d 579, 590 (1988) (holding that defendant who was not allowed to fully impeach a witness was not entitled to a new trial “[i]n light of all of the evidence against [him]”); State v. Pallas, 144 N.C.App. 277, 284, 548 S.E.2d 773, 779 (2001) (“We hold that defendant fails to make a showing that the verdict was improperly influenced by any of the trial court's curtailments of his cross-examination[.]”). Because defendant has failed to show that there is a reasonable probability that the outcome of the trial would have been different had the scope of cross-examination not been limited, we hold that the trial court did not commit prejudicial error in sustaining the State's objection.
IV.
Finally, defendant argues that the trial court erred in denying defendant's request for a jury instruction regarding voluntary intoxication. We disagree.
The choice of jury instructions rests “within the trial court's discretion and will not be overturned absent a showing of abuse of discretion.” State v. Nicholson, 355 N.C. 1, 66, 558 S.E.2d 109, 152,cert. denied,537 U.S. 845, 154 L.Ed.2d 71 (2002). “Generally ... [i] ntoxication is not a defense unless the crime charged requires a specific intent, such as first-degree murder.” State v. Coffey, 43 N.C.App. 541, 544, 259 S.E.2d 356, 358 (1979) (internal citations omitted). Assaults are general intent, not specific intent, crimes. State v. Elliott, 137 N.C.App. 282, 287–88, 528 S.E.2d 32, 36 (Lewis, J. dissenting), rev. per curiam per the dissent,352 N.C. 663, 535 S.E.2d 32 (2000). Consequently, defendant was not entitled to an instruction on voluntary intoxication.
Assuming, arguendo, that voluntary intoxication is a defense to assault by strangulation, defendant has not shown that such an instruction should have been given. An instruction for voluntary intoxication is not warranted unless there is substantial evidence that his “mind and reason were so completely intoxicated and overthrown as to render him utterly incapable of forming a [mens rea].” State v. Cheek, 351 N.C. 48, 74–75, 520 S.E.2d 545, 560–61 (1999) (quoting State v. Strickland, 321 N.C. 31, 40–41, 361 S.E.2d 882, 888 (1987)).
In State v. Brown, 335 N.C. 477, 492, 439 S.E.2d 589, 598 (1994), our Supreme Court held that a defendant who had consumed 10 or 11 beers in the three or so hours before the event had not provided sufficient evidence to warrant an instruction on voluntary intoxication. Similarly, in State v. Baldwin, 330 N.C. 446, 463, 412 S.E.2d 31, 41 (1992), the Court found that a defendant who consumed five or six beers and smoked marijuana and cocaine had provided insufficient evidence to merit an instruction on voluntary intoxication. In this case, the evidence shows defendant had somewhere between six and 12 beers over the course of approximately 10 hours. There is no evidence that defendant used any other intoxicating substances. Moreover, prior to the assault, defendant was not so intoxicated that he was unable to ride and lunge his horse. We hold that the evidence is insufficient to support an instruction on voluntary intoxication in this case.
Conclusion
In sum, we hold that the trial court did not err in denying defendant's motion to suppress and defendant was not subjected to ineffective assistance of counsel due to his trial counsel's failure to properly file the motion to suppress. We further hold that the trial court did not commit prejudicial error in limiting the scope of cross-examination of the State's witness. Finally, we hold that defendant was not entitled to an instruction on voluntary intoxication.
No prejudicial error. Chief Judge MARTIN and Judge STEPHENS concur.
Report per Rule 30(e).