Opinion
No. COA10-1508
Filed 7 June 2011 This case not for publication
Appeal by defendant from judgments entered 20 May 2010 by Judge Walter H. Godwin, Jr., in Wilson County Superior Court. Heard in the Court of Appeals 27 April 2011.
Attorney General Roy Cooper, by Assistant Attorney General Catherine F. Jordan, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender David W. Andrews, for defendant appellant.
Wilson County Nos. 08 CRS 54559, 55111.
On 20 May 2010, a jury convicted Terrell Dushon Williams ("defendant") of attempted first-degree murder and assault with a deadly weapon with intent to kill inflicting serious injury. On appeal, defendant contends the trial court erred in (1) denying defendant's motion to dismiss the charges of attempted first-degree murder and assault with a deadly weapon with intent to kill inflicting serious injury, and (2) allowing certain lay opinion testimony of a police officer. Defendant also alleges ineffective assistance of trial counsel. We find no error.
I. Background
Around 1:30 p.m.-2:00 p.m. on 15 September 2008, Christopher Allen ("Allen") was in the vicinity of Lamm Park located in Wilson, North Carolina. Allen was standing in front of the corner store smoking marijuana when he was approached by defendant and a man named Kendrick Battle ("Battle"). Allen, defendant, and Battle are members of the "Blood" gang together. Defendant, known by the street name "Face," knew Allen and asked if he had any marijuana, to which Allen replied, "yeah." Battle did not speak to Allen during the encounter, other than to confirm that Allen was also a member of the Blood gang. Defendant then told Allen he and Battle would return, and the pair then walked away.
Approximately thirty minutes later, Allen saw defendant and Battle again approach him from Lamm Park. Defendant again asked Allen if he still had any marijuana. Allen replied that he still had some and proceeded to follow defendant and Battle into Lamm Park, walking with his head down. Before he could look up, Allen was shot three times and fell to the ground. While Allen was lying on the ground, defendant called Allen a "snitch."
Earlier that day, Tabitha Bynum ("Bynum"), Kisha Melvin ("Melvin"), and three other women had been driving around Wilson in a silver Marquis vehicle owned by Melvin. Defendant contacted one of the women by phone and also spoke to Melvin during that phone conversation. Thereafter, the group picked up defendant and Battle from a nearby gas station and then dropped them off by Lamm Park. Bynum got out of the vehicle to get her son from the park. As she was returning to the vehicle, she heard three gunshots fired behind her. Bynum then saw defendant and Battle approach the vehicle from Lamm Park and get back inside. Bynum saw that Battle was holding a gun. Melvin then took Bynum home, and subsequently drove to Raleigh with defendant and Battle.
Wilson Police Department Detective David Stancil ("Detective Stancil") responded to the dispatch call regarding the shooting in Lamm Park. Upon arriving at the scene approximately two minutes later, Detective Stancil saw that Allen had been shot and was having difficulty breathing, but that Allen was alert and mumbling. Detective Stancil asked Allen who had shot him, and he stated that "Face," or defendant, had shot him. Mike Ellis, Allen's cousin, was on his way home from work when he saw people running through Lamm Park. Ellis saw a black male lying on the ground in the park who he thought looked familiar. After stopping and approaching the park, Ellis realized it was his cousin who had been shot, so he stayed with Allen to try to keep him breathing. Ellis was also present when Allen identified "Face," or defendant, as the shooter. Allen repeated the name three to four times as he was in and out of consciousness. Allen also stated that defendant shot him because "they're saying that I'm a snitch." Detective Stancil told the lead detective on the case, Detective Eric Kearney ("Detective Kearney"), that Allen had identified "Face," or defendant, as the shooter and that Allen had provided a reason why defendant had shot him.
Later that night, around 6:30 p.m., Monica Thomas ("Thomas") received a phone call from Battle and went to meet Battle, defendant, and another woman driving a silver Marquis vehicle at a restaurant in Raleigh. After they met, defendant, Battle, and Thomas went to Wal-Mart so that defendant and Battle could purchase T-shirts, boxers, and socks. The three then went back to Thomas's apartment in Raleigh, where defendant and Battle continuously stepped outside to talk on the phone for 30-40 minutes at a time. Two days later, on 17 September 2008, Detective Kearney arrested defendant at Thomas's apartment in Raleigh.
As a result of the shooting, Allen was hospitalized for approximately two months. One of the bullets tore his esophagus, requiring him to be fed through a tube until the hole was repaired. In addition, Allen underwent a total of four surgeries in order to treat all of his injuries.
On 17 May 2010, defendant was tried by a jury for attempted first-degree murder and assault with a deadly weapon with intent to kill inflicting serious injury in connection with the events that occurred on 15 September 2008. On 20 May 2010, the jury returned a guilty verdict on both charges. Defendant appeals.
II. Motion to dismiss
Defendant first contends the trial court erred in denying his motion to dismiss the charges for attempted first-degree murder and assault with a deadly weapon with intent to kill inflicting serious injury. Defendant argues that no substantial evidence was presented that defendant either personally committed or acted in concert with Battle to commit those two offenses. Defendant argues that because Allen expressly denied at trial that defendant shot him, the evidence shows that defendant did not personally commit either of the two offenses. Defendant also argues that the State's evidence against defendant at best raises only a "mere suspicion" that he joined with anyone to commit the two offenses. We disagree with defendant's arguments.
In order to survive a motion to dismiss for insufficient evidence in a criminal trial, the State must present substantial evidence of (1) each essential element of the charged offense and (2) defendant's being the perpetrator of such offense. State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (2000). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Blake, 319 N.C. 599, 604, 356 S.E.2d 352, 355 (1987) (internal quotation marks and citation omitted). "`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 of it, the motion should be allowed.'" State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993) (quoting State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980)).
"In reviewing challenges to the sufficiency of evidence, we must view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences" that can be drawn from the evidence. Fritsch, 351 N.C. at 378-79, 526 S.E.2d at 455; see also State v. Miller, 363 N.C. 96, 98, 678 S.E.2d 592, 594 (2009). "[S]o long as the evidence supports a reasonable inference of the defendant's guilt, a motion to dismiss is properly denied even though the evidence also `permits a reasonable inference of the defendant's innocence.'" Miller, 363 N.C. at 99, 678 S.E.2d at 594 (quoting State v. Butler, 356 N.C. 141, 145, 567 S.E.2d 137, 140 (2002)). Accordingly, "[i]f more than a scintilla of evidence as to each element of the offense is presented, then the case must be submitted to the jury." State v. Essick, 67 N.C. App. 697, 700, 314 S.E.2d 268, 271 (1984) (citing State v. Agnew, 294 N.C. 382, 387, 241 S.E.2d 684, 688 (1978)). "The terms `more than a scintilla of evidence' and `substantial evidence' are in reality the same and simply mean that the evidence must be existing and real, not just seeming or imaginary." Blake, 319 N.C. at 604, 356 S.E.2d at 355 (quoting State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980)).
The crime of attempted first-degree murder is defined as follows: "A person commits the crime of attempted first degree murder if he: [1] specifically intends to kill another person unlawfully; [2] he does an overt act calculated to carry out that intent, going beyond mere preparation; [3] he acts with malice, premeditation, and deliberation; and [4] he falls short of committing the murder." State v. Rush, 196 N.C. App. 307, 312, 674 S.E.2d 764, 769 (2009) (alterations in original) (internal quotation marks and citations omitted), disc. review denied, 363 N.C. 587, 683 S.E.2d 706 (2009). In addition, "[t]he essential elements of assault with a deadly weapon with intent to kill inflicting serious injury are `(1) an assault, (2) with a deadly weapon, (3) with intent to kill, (4) inflicting serious injury, (5) not resulting in death.'" State v. Liggons, 194 N.C. App. 734, 742, 670 S.E.2d 333, 339 (2009) (quoting State v. Reid, 335 N.C. 647, 654, 440 S.E.2d 776, 780 (1994)). Furthermore:
To be convicted of a crime under the theory of acting in concert, the defendant need not do any particular act constituting some part of the crime. State v. Moore, 87 N.C. App. 156, 159, 360 S.E.2d 293, 295 (1987), disc. review denied, 321 N.C. 477, 364 S.E.2d 664 (1988). All that is necessary is that the defendant be "present at the scene of the crime" and that "h . . . act[ ] together with another who does the acts necessary to constitute the crime pursuant to a common plan or purpose to commit the crime." Id. at 159, 360 S.E.2d at 295-96.
Rush, 196 N.C. App. at 312, 674 S.E.2d at 769 (alterations in original).
The evidence in the present case shows the following: defendant and Battle first approached Allen under the pretense of obtaining marijuana; defendant and Battle disappeared together into Lamm Park, then returned together 30 minutes later and proceeded to lead Allen into Lamm Park where Allen was shot three times; after the shooting, defendant called Allen a snitch, and Battle was seen carrying a gun; both defendant and Battle left Lamm Park together, immediately drove to Raleigh together, and conferred with each other multiple times after the shooting; Allen was a member of the Blood gang with defendant and Battle and had a reputation on the streets as being a snitch; and Allen testified that once a gang member is labeled as a snitch, he is likely to be hurt.
When viewed in the light most favorable to the State, we find this evidence is sufficient for the jury to reasonably infer that defendant was not only present at the scene of the crime, but that defendant was acting together with Battle to kill Allen. The evidence is also sufficient for the jury to reasonably infer that defendant, together with Battle, intended to kill Allen because he was a snitch, shot Allen with a gun three times after leading him into the park, and left Allen to die on the ground in the park after calling him a snitch. The evidence also shows the shooting caused serious injuries to Allen's esophagus and throat. As a result, the record contains substantial evidence tending to show defendant's guilt of attempted first-degree murder and assault with intent to kill inflicting serious injury under an acting in concert theory, so that the trial court properly denied defendant's motion to dismiss both of those charges. Defendant's argument is therefore overruled.
III. Plain error
Defendant contends the trial court committed plain error in allowing certain opinion testimony of Detective Kearney. Defendant argues the trial court improperly allowed Detective Kearney to testify that defendant was guilty under the legal theory of acting in concert and that defendant was involved in a "hit" on Allen. Defendant contends the trial court's admission of such improper testimony on the ultimate issue of defendant's guilt and such improper lay opinion testimony was plain error with a probable impact on the jury's verdict.
Plain error is "a fundamental error so prejudicial that justice cannot have been done." State v. Haselden, 357 N.C. 1, 13, 577 S.E.2d 594, 602 (2003). "The defendant has the heavy burden of showing that the error constituted plain error[.]" State v. Garris, 191 N.C. App. 276, 288, 663 S.E.2d 340, 349 (2008). "`The plain error rule applies only in truly exceptional cases. Before deciding that an error by the trial court amounts to plain error, the appellate court must be convinced that absent the error the jury probably would have reached a different verdict.'" State v. Treadway, ___ N.C. App. ___, ___, 702 S.E.2d 335, 340 (2010) (quoting State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986)). Therefore, "`[i]n order to prevail under a plain error analysis, defendant must establish not only that the trial court committed error, but that absent the error, the jury probably would have reached a different result.'" State v. Smith, ___ N.C. App. ___, ___, 687 S.E.2d 525, 529 (2010) (quoting State v. Steen, 352 N.C. 227, 269, 536 S.E.2d 1, 25-26 (2000)).
We first note the rule that "[s]tatements elicited by a defendant on cross-examination are, even if error, invited error, by which a defendant cannot be prejudiced as a matter of law." State v. Gobal, 186 N.C. App. 308, 319, 651 S.E.2d 279, 287 (2007) (citing State v. Greene, 324 N.C. 1, 11, 376 S.E.2d 430, 437 (1989), vacated on other grounds, 494 U.S. 1022, 108 L. Ed. 2d 603 (1990)), aff'd, 362 N.C. 342, 661 S.E.2d 732 (2008); see also State v. Chatman, 308 N.C. 169, 177, 301 S.E.2d 71, 76 (1983) (holding that the defendant could not assign error to testimony elicited by defense counsel during cross-examination of the State's witness); State v. Fraley, ___ N.C. App. ___, ___, 688 S.E.2d 778, 785 (2010) (holding that the defendant could not be prejudiced as a matter of law by opinion testimony elicited by defense counsel during cross-examination of a police detective). Furthermore, "a defendant who invites error has waived his right to all appellate review concerning the invited error, including plain error review." State v. Barber, 147 N.C. App. 69, 74, 554 S.E.2d 413, 416 (2001).
In the present case, defendant first challenges the following exchange as plain error, which occurred when defense counsel cross-examined Detective Kearney at trial:
Q: If you're laying [sic] on the ground and in that kind of pain you hear a statement or think you hear a statement then I suppose you could point that finger at anybody you want to again and nobody can tell the difference; can they?
A: If he had died it would have been a dying declaration and it would have been powerful testimony, yes, sir.
Q: Yes, sir.
A: Yes, sir.
Q: And the wrong person would have been pointed out.
A: As the actual shooter?
Q: Yes, sir.
A: Yes, sir. Acting in concert, no, sir.
(Emphasis added.) Defendant argues the last statement above is impermissible lay opinion testimony as to the ultimate issue of defendant's guilt under an acting in concert theory. Even assuming arguendo that the statement is error, defendant cannot be prejudiced as a matter of law by that statement as he invited it on cross-examination.
Defendant also challenges the following testimony as plain error:
Q: Are you the investigator that took Christopher Allen's statement?
A: I am.
Q: And in your investigation did you follow up on any information about whether or not Christopher Allen was a snitch or a rat?
A: The case that they're referring to I didn't have anything to do with where they thought he was a snitch. I did ask around to try to determine if they had any relevance to my case.
Q: And did it?
A: It did.
Q: I'm sorry?
A: It did.
Q: What was that relevance?
A: The fact that there was a, what I deemed as a hit put out on Mr. Allen.
(Emphasis added.) Defendant argues the last statement above is impermissible lay opinion testimony as it is neither based on Detective Kearney's first-hand knowledge nor helpful to the jury. This testimony was given during the State's direct examination of Detective Kearney and was not objected to by defense counsel. However, immediately following the above testimony, defense counsel began his cross-examination as follows:
Q: Let's start where you finished up.
A: Okay.
Q: All right. You expressed to us your statement that there was a hit on Mr. Allen.
A: That's what it seemed, yes, sir.
Q: Now I'm going to ask you this —
A: Yeah, I understand.
Q: I'm going to ask you upon what you're basing that statement.
A: It was based on what, also what Tabitha Bynum said in her statement and based on what Mr. Allen had said, told me in the hospital and the interview with Detective Hendricks or where I spoke with Detective Hendricks, not an interview but informal conversation with Mr. Hendricks who handled that situation on whatever date that might have been.
. . . .
Q: Now when you talked to Mr. Allen and Mr. Allen began to explain to you that the reason why he got shot was because there was a hit out for him, what did you ask him?
A: Why that would be, you know, how he would have come to get that information. And I believe in his statement he explains that they had received some discovery and that some of his gang members, the other gang members had thought there was a, his name was on some paperwork listing him as a snitch.
Q: Other than what Mr. Allen told you and what Mr. Allen's friends have said in this case, you've not been able to obtain any concrete information that there was any so-called hit out for Mr. Allen; have you?
A: No, sir. I also haven't been able to find concrete information that he was a snitch.
(Emphasis added.) Again, assuming arguendo the challenged statement that Detective Kearney believed there was "a hit" put out on Allen's life is error, defendant cannot be prejudiced by that statement as a matter of law. Defense counsel repeatedly invited the same statements during cross-examination. See Keller v. Southern Railway Co., 205 N.C. 269, 279, 171 S.E. 73, 78 (1933) (holding admission of testimony is not prejudicial where "[t]he defendant brought out the same fact on cross-examination of one of plaintiff's witnesses"); Shelton v. Southern Railway Co., 193 N.C. 670, 674, 139 S.E. 232, 235 (1927) (holding that, absent objection, "`[t]he erroneous admission of evidence on direct examination is held not to be prejudicial when it appears that on cross-examination the witness was asked substantially the same question and gave substantially the same answer[]'" (quoting Hamilton v. Lumber Co., 160 N.C. 47 (1912))); Fowler v. Fibre Co., 191 N.C. 42, 47, 131 S.E. 380, 382 (1926) (holding admission of testimony of plaintiff's witness is not reversible error where defendants elicited the same evidence on cross-examination). Accordingly, we overrule defendant's arguments that Detective Kearney's testimony was plain error.
IV. Ineffective assistance of counsel
Finally, defendant urges this Court to hold that he was denied the effective assistance of counsel because his trial counsel failed to move to strike the alleged inadmissible testimony of Detective Kearney.
To establish ineffective assistance of counsel in violation of a defendant's constitutional rights, the defendant bears the burden of meeting a two-part test:
"First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable."
State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985) (quoting Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984)). "When a defendant attacks his conviction on the basis that counsel was ineffective, he must show that his counsel's conduct fell below an objective standard of reasonableness." State v. Hoover, 89 N.C. App. 199, 211, 365 S.E.2d 920, 927 (1988).
When a court undertakes to engage in such an analysis, [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.
State v. Yarborough, 198 N.C. App. 22, 38, 679 S.E.2d 397, 409 (2009) (alteration in original) (internal quotation marks and citations omitted), cert. denied, 363 N.C. 812, 693 S.E.2d 143 (2010). The general rule is that "the incompetency (or one of its many synonyms) of counsel for the defendant in a criminal prosecution is not a Constitutional denial of his right to effective counsel unless the attorney's representation is so lacking that the trial has become a farce and a mockery of justice." State v. Sneed, 284 N.C. 606, 612, 201 S.E.2d 867, 871 (1974). Ultimately, defendant has the burden of showing "there is a reasonable probability that, but for counsel's inadequate representation, the result would have been different." State v. Austin, 75 N.C. App. 338, 341, 330 S.E.2d 661, 663 (1985); see also State v. Piche, 102 N.C. App. 630, 638, 403 S.E.2d 559, 564 (1991).
In the present case, defendant argues that a jury gives more weight to police testimony, especially that of the lead investigator in a case, than testimony by other lay witnesses, such that there is a reasonable probability that Detective Kearney's testimony ultimately swayed the jury's verdict. However, we fail to see how Detective Kearney's testimony would produce such a result in the present case, where multiple other witnesses, including eyewitnesses and the victim himself, testified before the jury. As such, defendant has shown no reasonable probability that the jury's verdict would have been different had defense counsel not elicited or moved to strike the two challenged statements by Detective Kearney. Further,
because the challenged statements were elicited on cross-examination, we fail to see how defense counsel's trial strategy made "a farce and a mockery of justice." Defendant's ineffective assistance of counsel claims are thus without merit.
We note that this Court continuously sees the issue of ineffective assistance of trial counsel raised on appeal, and this Court has consistently addressed those arguments. However, we find this argument unnecessary where the ineffective assistance of counsel argument is based entirely on issues that are separately alleged as error. If the underlying errors, such as the admission of evidence in the present case, had merit, defendant would be granted the appropriate relief based on those errors, not on defense counsel's failure to object to them. We find it disheartening to see appellate counsel continue to raise this argument criticizing the efforts of trial counsel, especially under circumstances as are presented in the present case.
V. Conclusion
We hold the State presented substantial evidence of the charges for attempted first-degree murder and assault with a deadly weapon with intent to kill inflicting serious injury, such that the issue was properly submitted to the jury. In addition, because the challenged statements by Detective Kearney were invited by defendant during cross-examination, he cannot be prejudiced by those statements as a matter of law. Defendant has thus waived his right to appellate review on those issues. Finally, defendant has failed to show how the opinion testimony of Detective Kearney, if objected to and excluded, would have changed the outcome of his trial, and therefore has failed to show ineffective assistance of trial counsel. Accordingly, we find no error in defendant's trial.
No error.
Judges HUNTER (Robert C.) and BRYANT concur.
Report per Rule 30(e).