State v. McDonald

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of A p p e l l a t e P r o c e d u r e . NO. COA13-210 NORTH CAROLINA COURT OF APPEALS Filed: 15 October 2013 STATE OF NORTH CAROLINA v. Sampson County No. 11 CRS 53331 MORRIS S. MCDONALD, Defendant. Appeal by defendant from judgments entered 12 October 2012 by Judge John E. Nobles in Sampson County Superior Court. Heard in the Court of Appeals 7 October 2013. Attorney General Roy Cooper, by Assistant Attorney General Mary S. Mercer, for the State. Irons & Irons, P.A., by Ben G. Irons, II, for defendant appellant. BRYANT, Judge. Defendant appeals from judgments entered upon jury verdicts finding him guilty of possession with intent to sell and deliver cocaine, possession habitual felon status. of drug paraphernalia, and attaining -2The State confidential presented informant evidence contacted tending the to police controlled drug buy from defendant. On show about or about that a making a 29 November 2011, the confidential informant made an undercover purchase of 0.3 grams of cocaine from defendant at defendant s home. The law enforcement officers who arranged the transaction then obtained a warrant to search defendant s residence. Officers with the Sampson County Sheriff s Department executed the warrant on 1 December 2011. controlled buy At trial, operation and the officers search of who conducted defendant s the residence testified that during the search they found an off-white rocklike substance which was subsequently analyzed as 9.7 grams of cocaine base. The officers also found $891.00 in cash, digital scales, a marijuana cigarette, and ammunition. During trial, the confidential informant testified that she had purchased cocaine from defendant in the past, probably more than fifty times. Defendant was acquitted of charges arising out of the 29 November 2011 controlled buy transaction but was convicted of charges arising residence. out of Defendant the was 1 December also found 2011 search guilty of habitual felon status. _________________________ of his attaining -3On appeal, defendant contends that his trial counsel rendered ineffective assistance of counsel in violation of his right to a fair trial under the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Sections 19 and 23 of the attacks North his Carolina conviction Constitution. on the basis When that a defendant counsel was ineffective, he must show that his counsel s conduct fell below an objective standard of reasonableness. 312 N.C. 553, 561 62, 324 S.E.2d 241, State v. Braswell, 248 (1985) (citing Strickland v. Washington, 466 U.S. 668, 687-88, 80 L. Ed. 2d 674, 693, reh g denied, 467 U.S. 1267, 82 L. Ed. 2d 864 (1984)). In order to prevail on this attack, the defendant must satisfy a two-part test established by the United States Supreme Court and expressly adopt[ed] by the North Carolina Supreme Court. at 562, 324 S.E.2d at 248. 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. Id. -4Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693. The fact that counsel made an error, even an unreasonable error, does not warrant reversal of a conviction unless there is a reasonable probability that, but for counsel s errors, there would have been a different result in the proceedings. at 563, 324 S.E.2d at 248. Braswell, 312 N.C. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698; accord State v. Poindexter, 359 N.C. 287, 608 S.E.2d 761 (2005). Therefore, if a reviewing court can determine at the outset that there is no reasonable probability that in the absence alleged errors the result of the proceeding of counsel s would have been different, then the court need not determine whether counsel s performance was actually deficient. Braswell, 312 N.C. at 563, 324 S.E.2d at 249. We first address defendant s argument that counsel rendered ineffective assistance of counsel by referring to Exhibit Number 14, the off-white rock-like substance found during the search of defendant s residence, as crack cocaine. examination of Agent Dwayne Barber of Sheriff s Office, defense counsel asked: During her crossthe Sampson County And when you were participating in the search warrant on December 1, you collected -5Exhibit Number 14, the crack cocaine? On appeal, defendant asserts that by making this statement in front of the jury, counsel conceded defendant s guilt to the offense of possession with intent to sell and deliver cocaine. State v. Harbison, 315 N.C. 175, 180, Defendant relies on 337 S.E.2d 504, 507 (1985), in support of his contention that he is entitled to a new trial. In Harbison, self-defense, the and defendant defendant s maintained trial theory throughout the trial. that counsel he acted adhered to in this Id. at 177, 337 S.E.2d at 506. However, during closing arguments and without the defendant s consent, counsel stated, should be found innocent. I don t feel that defendant] I think he should do some time to think about what he has done. I think you should find him guilty of manslaughter and not first degree. 337 S.E.2d at 506. [the Id. at 177 78, In their decision to award the defendant a new trial, our Supreme Court held that every criminal case in which the defendant s counsel admits the defendant s guilt to the jury without the defendant s consent is a per se violation of the defendant s right to the effective assistance of counsel. Id. at 180, 337 S.E.2d at 507 08. The Harbison Court established that when the trial counsel s error amounts to a per -6se violation of the defendant s rights the harm is so likely and so apparent addressed. that the issue of prejudice need not be Id. at 180, 337 S.E.2d at 507. However, in his reliance on Harbison, defendant overlooks the fact that cases decided by our Supreme Court after Harbison hold that a defendant is entitled to a new trial for a violation of his right to effective counsel if the attorney expressly admits the defendant s guilt of a crime in addressing the jury. See State v. Randle, 167 N.C. App. 547, 551, 605 S.E.2d 692, 694 (2004) ( our Supreme Court has found no Harbison violation where defense counsel did not expressly admit the defendant s guilt ); see also State v. Hinson, 341 N.C. 66, 78, 459 S.E.2d 261, 268 (1995) (holding that there was no Harbison error where defense counsel did not concede to the jury that defendant himself had committed any crime); and State v. Fisher, 318 N.C. 512, 532 33, 350 S.E.2d 334, 346 (1986) (holding that there was no Harbison violation where the defense counsel conceded malice to the jury but did not expressly admit guilt, and told the jury that it could find the defendant not guilty). In State v. Goss, 361 N.C. 610, 651 S.E.2d 867 (2007), cert. denied, 555 U.S. 835, 172 L. Ed. 2d 58 (2008), the defendant claimed that his trial counsel s remark during closing -7arguments that [defendant s] statement alone guarantees he ll serve a substantial terrible consequences amount of a of time first in prison degree murder and face the conviction, amounted to a concession of the defendant s guilt for firstdegree murder. Id. at 622 23, 651 S.E.2d at 875. The defendant argued that because this concession was made without his consent it was a per se violation of his rights. at 875. Id. at 623, 651 S.E.2d However, after a review of the record, our Supreme Court determined that the statement of defense counsel to which defendant error. assigns error clearly did not amount to Harbison Rather, when this statement is viewed in the context of defense counsel s entire closing argument, it appears that his reference to unnoticed. first-degree murder was accidental Id. at 624 25, 651 S.E.2d at 876. and went Further, the Court stated [d]efendant would have this Court interpret Harbison to allow a defendant to seize upon a lapsus linguae uttered by trial counsel in order to be awarded a new trial. However, we are unconvinced that the statement in question amounted to a concession of defendant s guilt . . . . Absent such a concession, defendant has the burden of showing that his trial counsel s performance fell below an objective standard of reasonableness, a burden which defendant has failed to carry. -8Id. at 625, 651 S.E.2d at 876 (citing Strickland, 466 U.S. at 687-88, 80 L. E. 2d 674). Here, counsel s statement during cross-examination that the substance was crack cocaine linguae which unnoticed. the record See id. appears to have been indicates was accidental a lapsus and went Therefore, we hold that this was not a concession of defendant s guilt amounting to a per se violation of defendant s right to effective assistance of counsel. As this case does not fall with the Harbison line of cases where violation of the defendant s Sixth Amendment rights are presumed, the defendant s claim of ineffective assistance counsel must be analyzed using the Strickland factors. 318 N.C. at 533, 350 S.E.2d at 346. not address the first prong of of Fisher, Applying Braswell, we need Strickland whether counsel s performance was in fact deficient if we 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 . . . . Braswell, 312 N.C. at 563, 324 S.E.2d at 249. In the State s direct examination of Agent Barber (before defense counsel s lapsus linguae during cross-examination), Agent Barber informed the court that in defendant s statement to -9the police after the search of his residence, defendant admitted to selling crack from his home. Further, Agent Lauren Wiley, a drug chemist for the North Carolina State Crime Lab who performed the chemical analysis of Exhibit Number 14, subsequently testified that in her opinion the substance was 9.7 grams of cocaine base. There was sufficient evidence for the jury to reasonably find that the substance was cocaine. therefore hold that defense counsel s misstatement did We not prejudice defendant as there is no indication in the record that, had counsel not made this statement, the result of the proceeding would have been different. Defendant cites four additional errors committed by counsel which, he argues, warrant a new trial. We consider these claims together because they all pertain to either counsel s failure to object to testimony or to make certain motions during trial. Defendant contends that counsel failed to object during trial in two instances. First, when both a law enforcement officer and the prosecutor referred to substances found during the search as narcotics, and second, when the confidential informant testified that she had purchased cocaine from defendant on fifty previous occasions. Defendant asserts that counsel s failure to object set the tone for the remainder of the trial and caused -10him irreparable prejudice. In addition, defendant claims that counsel failed to move to suppress the results of the chemical analysis of the substance alleged to be cocaine because of an absent link in the chain of custody. Finally, defendant argues that counsel failed to move to dismiss the habitual felon charge for insufficient evidence based on the fact that one of the three offenses was not fully identified in the judgment offered as proof of the prior conviction. Generally, Prevatte, will decisions tactical we made 356 N.C. not by 178, second-guess defense 236, 570 the counsel. S.E.2d strategic See 440, 472 State or v. (2002). Ineffective assistance of counsel claims are not intended to promote judicial second-guessing on basic as the handling of a witness. questions of strategy as State v. Milano, 297 N.C. 485, 495, 256 S.E.2d 154, 160 (1979) (internal quotation marks omitted), overruled on other grounds by State v. Grier, 307 N.C. 628, 300 S.E.2d 351 (1983). Strickland explained that [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 -11within 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. Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694 95 (emphasis added) (internal quotation marks omitted). [D]ecisions on what witnesses to call, whether and how to conduct cross-examination, what jurors to accept or strike, what trial motions should be made, and all other strategic and tactical decisions are the exclusive province of the lawyer after consultation with his client. Milano, 297 N.C. at 495, 256 S.E.2d at 160 (internal quotation marks omitted). The four errors that defendant cites involve either counsel s failure to object or failure to make a motion at trial; after a review of the record, we conclude that under these circumstances the alleged errors can be considered strategic and tactical decisions. See id. Counsel is given wide latitude in matters of strategy, and the burden to show that counsel s performance fell short of the required standard is a heavy one for defendant to bear. State v. Fletcher, 354 N.C. 455, 482, 555 S.E.2d 534, 551 (2001). As explained above, before considering whether defense counsel s performance was in fact deficient, we will first look to whether there is a reasonable probability that the alleged -12errors prejudiced the defense. 324 S.E.2d at 249. See Braswell, 312 N.C. at 563, It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding. Virtually every act or omission of counsel would meet that test . . . . L. Ed. 2d at 697. Strickland, 466 U.S. at 693, 80 Defendant asserts that these four alleged errors prejudiced him irreparably, but has failed to demonstrate how, but for counsel s errors, different result in the proceedings. there would have been a See Braswell, 312 N.C. at 563, 324 S.E.2d at 248. The State s evidence in this case was overwhelming: the prosecution presented physical evidence of the drugs obtained during both the controlled buy search of defendant s residence. operation and the subsequent The chemist who performed the analysis of the drug samples testified as to the results of the tests she performed on each sample. Further, the confidential informant testified regarding the controlled buy transaction, and her testimony was corroborated with both audio and video recordings that were played for the jury. Therefore, even if counsel had objected to the allegedly prejudicial statements, there is not a reasonable probability that the outcome would have been different. -13Defendant argues that counsel s failure to move to suppress the laboratory testimony results relating [defendant s] [defendant] was prejudicial to the analysis bedroom, the State possessed cocaine. of could because the not sample have However, [w]ithout found in proved that fact that [t]he counsel made an error, even an unreasonable error, does not warrant reversal of a conviction unless there is a reasonable probability that, but for counsel s errors, there would have been a different result in the proceedings. at 563, 324 S.E.2d at 248. presented ample evidence including defendant s own Braswell, 312 N.C. As previously set forth, the State that defendant statement to possessed the police cocaine, where he admitted to selling cocaine from his residence, as well as the audio and video recordings of the controlled buy operation that were played for the jury. Even assuming, arguendo, that it was an unreasonable error for counsel to not address a break in the chain of custody, defendant s argument still fails as he has not shown that counsel s alleged error was so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. 693. See Strickland, 466 U.S. at 687, 80 L. Ed. 2d at -14Finally, there is not a reasonable probability that, had defense counsel made a motion to dismiss the habitual felon charge, defendant would have prevailed. Defendant argues that [t]here was no evidence to establish Defendant s guilt of one of the three underlying felonies specified in the indictment [and defendant] habitual felon may if have counsel avoided had the made a finding motion habitual charge at the close of the evidence. purpose of establishing habitual felon that to he was dismiss a the However, for the status, [a] prior conviction may be proved by stipulation of the parties or by the original or a certified copy of the court record of the prior conviction. N.C. Gen. Stat. § 14-7.4 (2011). Here, the prosecutor presented certified copies of three judgments to show that defendant had previously been convicted of three judgments separate failed felony to offenses. identify the Although substance one of the defendant was convicted of possessing with the intent to sell or deliver, the prosecutor remedied this deficiency (with the consent of defense counsel) by submitting a certified copy of the transcript of plea which was a part of the court record of that conviction. This transcript of plea identified the offense in full and set forth the terms of the agreement, including the sentence. Thus, -15counsel s failure to move to dismiss the habitual felon charge did not prejudice defendant. Therefore, we reject defendant s ineffective assistance of counsel argument as there is not a reasonable probability that, but for counsel s alleged errors, there different result in the proceedings. would have been a See Braswell, 312 N.C. at 563, 324 S.E.2d at 248. Defendant s court committed informant s final plain testimony argument error that on by appeal admitting she had is that the purchased defendant on fifty previous occasions. the trial confidential cocaine from Because defendant did not object to the admission of this evidence at trial, he did not preserve this issue for appeal. State v. Lawrence, 365 N.C. 506, 513, 723 S.E.2d 326, 331 (2012). To prevail on this issue, defendant trial must demonstrate that the court committed a fundamental error which had a probable impact upon the jury s verdict. Id. at 518, 723 S.E.2d at 334. We conclude that defendant cannot meet this burden because, as explained above, even if the testimony from the confidential informant had been excluded, the evidence of defendant s guilt arising out of the search of his residence is overwhelming. argument is overruled. Therefore, defendant s -16No error. Judges HUNTER, Robert C., and McCULLOUGH concur. Report per Rule 30(e).

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