An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in a ccordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA14-38
NORTH CAROLINA COURT OF APPEALS
Filed: 2 September 2014
STATE OF NORTH CAROLINA
v. Wake County
No. 12 CRS 214535
SAMUEL GIDEON,
Defendant.
Appeal by defendant from judgment entered 15 August 2013 by
Judge Orlando F. Hudson in Wake County Superior Court. Heard in
the Court of Appeals 22 May 2014.
Roy Cooper, Attorney General, by Robert M. Curran, Special
Deputy Attorney General, for the State.
Richard J. Costanza for defendant-appellant.
DAVIS, Judge.
Samuel Gideon (“Defendant”) appeals from his conviction for
voluntary manslaughter. On appeal, he argues that (1) he
received ineffective assistance of counsel at trial; and (2) the
trial court erred by allowing the introduction of inadmissible
evidence during the sentencing phase of his trial. After
careful review, we dismiss Defendant’s ineffective assistance of
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counsel claim without prejudice and find no error in Defendant’s
trial.
Factual Background
The State presented evidence at trial tending to establish
the following facts: During the early morning hours of 15
January 2012, two men, Ronald Gaither and Terrell Hilliard,
stole a GMC Envoy in Raleigh, North Carolina. They drove the
stolen Envoy to an apartment building, broke into an apartment,
and stole various video games and items of computer equipment.
They then sped away, heading towards New Hope Road.
Abraham Melendez (“Abraham”); his brother, Samuel Melendez
(“Samuel”); his cousin, Elezar Herrera (“Mr. Herrera”); and a
woman named Alison Sanchez were traveling together down New Hope
Road in a Hyundai Sonata when they encountered the speeding
Envoy attempting to make a turn onto New Hope Road. The Envoy
failed to make the turn and crashed onto the side of the road.
After witnessing the accident, Abraham turned his vehicle around
for the purpose of providing assistance to the occupants of the
crashed vehicle.
At the accident scene, Abraham encountered two men,
Defendant and Christopher Rochelle (“Mr. Rochelle”). Defendant
and Mr. Rochelle had recently returned to Mr. Rochelle’s
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residence after playing pool. Shortly thereafter, they heard a
loud noise that sounded like a “mixture of glass and wood and
concrete all together breaking.” Mr. Rochelle went outside to
investigate and saw a man run around a sport utility vehicle
(later determined to be the Envoy), jump into the vehicle, and
“peel[] out.” Mr. Rochelle — believing that his car had been
burglarized — picked up a wrench from his front porch and
proceeded to chase the SUV on foot in an attempt to ascertain
its license plate number. Defendant followed behind on foot.
As they approached the corner of Wallingford Drive and New Hope
Road, they saw the crashed SUV on the side of the road.
At that point, Abraham’s Sonata pulled up to the scene of
the accident, and all four of its occupants exited the vehicle.
Mr. Rochelle approached the Sonata, holding the wrench in his
hand. He then began yelling: “[A]re you with them, are you with
them[?]” Mr. Rochelle approached Mr. Herrera and raised the
wrench at which point Mr. Herrera punched Mr. Rochelle in the
face, causing him to fall to the ground. Abraham and Samuel
then restrained Mr. Herrera in order to prevent a further
confrontation, and Abraham retrieved his cell phone from the car
so he could call 911.
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While Samuel was still holding Mr. Herrera’s arm, Defendant
came from behind Mr. Rochelle and stabbed Mr. Herrera in the
chest. Defendant then fled the scene while Abraham and Samuel
helped Mr. Herrera into the back seat of the Sonata. Mr.
Herrera was transported to a nearby hospital, where he died as a
result of the stab wound.
On 29 October 2012, Defendant was indicted by a grand jury
in Wake County for the murder of Mr. Herrera. The State gave
notice that it would proceed on a charge of second-degree
murder. The matter came on for a jury trial on 5 August 2013 in
Wake County Superior Court.
At trial, Defendant testified on his own behalf and
presented the following account of the events leading up to the
stabbing: When the Sonata stopped at the scene of the accident,
the four occupants “tore out of the truck” and started
immediately yelling at Mr. Rochelle. Mr. Herrera rushed toward
Mr. Rochelle and hit him in the face. Mr. Herrera and his
friends then punched and kicked Mr. Rochelle until he fell to
the ground in the fetal position. At that point, Mr. Herrera
turned to Defendant and said: “Oh, you think you’re the big guy
. . . [y]ou’re going to get it next. You’re going down.” Mr.
Herrera then “struck [Defendant] a couple of times,” causing
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Defendant to “fear for [his] life.” In an attempt to stop Mr.
Herrera, Defendant retrieved a pocket knife from his right
pocket. He then used the pocket knife to fend off Mr. Herrera
and unintentionally stabbed him.
On 15 August 2013, the jury returned a verdict finding
Defendant guilty of voluntary manslaughter. At sentencing, the
jury found as an aggravating factor that Defendant had committed
a probation violation during the ten-year period prior to the
commission of the 15 January 2012 offense. Defendant was
sentenced to an aggravated term of 105 to 138 months
imprisonment. Defendant gave notice of appeal in open court.
Analysis
I. Ineffective Assistance of Counsel
During the direct examination of Defendant at trial, his
trial counsel brought up the fact that Defendant had invoked his
right to counsel during questioning by Detective Amanda Salmon
(“Detective Salmon”) following his arrest.
Q. Do you remember talking to Detective
Salmon briefly after you were first
arrested?
A. That's correct.
Q. And you waived your right to counsel for
a short time and answered some questions
that she put to you, then later said you
wanted a lawyer before you said any more, do
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you remember that?
A. I do.
During the remainder of his testimony, including cross-
examination, additional references were made to the fact that
Defendant had asserted his right to counsel while being
questioned.
On appeal, Defendant contends that he received ineffective
assistance of counsel due to his trial counsel's reference to
his invocation of his right to counsel and failure to object to
the State's subsequent questioning on cross-examination
regarding this subject.
To prevail on a claim for 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.
State v. Rodelo, ___ N.C. App.___,___, 752 S.E.2d 766, 773
(2014) (internal citations and quotation marks omitted).
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“In general, claims of ineffective assistance of counsel
should be considered through motions for appropriate relief and
not on direct appeal.” State v. Stroud, 147 N.C. App. 549, 553,
557 S.E.2d 544, 547 (2001), cert. denied, 356 N.C. 623, 575
S.E.2d 758 (2002). This is so because this Court is “without
the benefit of information provided by defendant to trial
counsel, as well as defendant's thoughts, concerns, and
demeanor[,] that could be provided in a full evidentiary hearing
on a motion for appropriate relief.” Id. at 554–55, 557 S.E.2d
at 547 (citation and quotation marks omitted and alteration in
original). Ineffective assistance of counsel claims are only
appropriately reviewed on direct appeal “when the cold record
reveals that no further investigation is required, i.e., claims
that may be developed and argued without such ancillary
procedures as the appointment of investigators or an evidentiary
hearing.” State v. Thompson, 359 N.C. 77, 122–23, 604 S.E.2d
850, 881 (2004) (citation and quotation marks omitted), cert.
denied, 546 U.S. 830, 163 L.Ed.2d 80 (2005).
Here, it is unclear from the present record whether
Defendant’s trial counsel elicited testimony about this subject
as part of a trial strategy such as, for example, a desire to
provide context for the responses that Defendant gave to
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Detective Salmon before requesting an attorney. Accordingly, it
is appropriate to dismiss Defendant's ineffective assistance of
counsel claim without prejudice to his right to reassert it
through a motion for appropriate relief. See State v. al–
Bayyinah, 359 N.C. 741, 752–53, 616 S.E.2d 500, 509–10 (2005)
(dismissing ineffective assistance of counsel claim asserted on
direct appeal without prejudice because “[t]rial counsel's
strategy and the reasons therefor [were] not readily apparent
from the record, and more information [needed to] be developed
to determine if defendant's claim” had merit), cert. denied, 547
U.S. 1076, 164 L.Ed.2d 528 (2006).1
II. Sentencing Phase
At the sentencing phase of Defendant’s trial, the State
presented evidence concerning the aggravating factor that
Defendant had been found in willful violation of his probation
within 10 years of the commission of the 15 January 2012
offense. The State called as a witness Margaret Brewer (“Ms.
1
As an alternative to his claim for ineffective assistance of
counsel, Defendant asks this Court to review the trial court’s
admission of this testimony for plain error. However, it is
well established that the plain error doctrine does not apply to
the admission of evidence introduced or invited by the
defendant. See State v. Barber, 147 N.C. App. 69, 74, 554
S.E.2d 413, 416 (2001) (holding that “a defendant who invites
error has waived his right to all appellate review concerning
the invited error, including plain error review”), disc. review
denied, 355 N.C. 216, 560 S.E.2d 141 (2002).
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Brewer”), the judicial district manager for Wake County
Probation and Parole. The State introduced three documents
during Ms. Brewer’s testimony: (1) a 14 February 2001 judgment
entered in file number 00 CRS 62383 placing Defendant on
supervised probation for assault on a female and resisting a
public officer; (2) a probation violation report executed by
probation officer Margaret Price in December 2001, alleging that
Defendant had violated the terms and conditions of his
probation; and (3) a revocation of probation form indicating
that Defendant’s sentence was activated by Judge Stafford
Bullock in Wake County Superior Court on 18 March 2002.
During Ms. Brewer’s direct examination, she was allowed to
give the following testimony:
Q. Ms. Brewer, using – and you weren’t
personally involved in Mr. Gideon’s
probation case; is that right?
A. Not at the time of the revocation. I
am familiar with the offender when he was
under supervision under Erica Ward back in
2000.
Q. That was more of a supervisory
capacity?
A. It was, actually I was a co-worker of
Ms. Ward’s at that time.
Q. Using the documents to explain what
happened in this particular case, could you
tell us when was Mr. Gideon placed on
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probation in this particular case, what
date?
A. February 14, 2001.
Q. Okay. And on what date was he
eventually revoked on his probation, I think
that’s going to be on State’s Exhibit Number
24.
A. March 18, 2002.
Q. And how long – was looking at the
judgment, that’s State’s Exhibit 22, how
long was he supposed to be on probation if
he had completed it?
A. 24 months of supervised probation.
Q. Okay. The probation revocation form
that’s State’s Exhibit Number 24 has a box
marked about the Defendant electing to serve
the sentence, do you see that?
A. I do.
Q. Does that appear to be correct to you?
A. No.
Q. Could you explain why that is?
A. Offenses that were committed prior to
January 1997, an offender could elect to
serve their sentence. So, in other words,
they could decide at any time that they no
longer wanted to be under supervised
probation and they could petition and go to
court and get their suspended sentence
activated and go to jail or prison. Any
offense after January 1st, 1997, you could
no longer elect to serve, that you actually
had to be found in violation and either
revoked or terminated. And so in this
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particular case, based on the offense date,
it would not be something that could have
been ordered at that time for them to elect
to serve.
Q. Okay. And were you working with the
probation department during this time when
that change in the law was made?
A. Yes.
Q. Is this something that was commonly
occurring on these revocation forms?
A. Yes.
Q. Basically, if the offender was not
electing to serve, but you saw this box
checked, what was more than likely the
actual procedure that happened?
Mr. Manning: I object to that.
The Court: Overruled.
The Witness: That the offender was
revoked, and their time was activated.
Q. But would they do that –
Mr. Manning: Motion to strike the answer.
The Court: Motion denied.
Mr. Manning: This is triple hearsay on
this, Your Honor, from this witness.
The Court: Motion denied.
Q. The – what is the procedure, what is
done if an offender comes into court and
actually admits the violation?
Mr. Manning: Objection.
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The Court: Overruled.
The Witness: If they admit the violation,
some type of modification or termination or
revocation is then brought forth.
Mr. Manning: Motion to strike the answer.
The Court: Motion denied.
Q. Is this same form that used [sic] in
State’s Exhibit Number 24, is that [the]
same form that would be used in that
circumstance if someone admitted their
violation?
Mr. Manning: Objection.
The Court: Overruled.
The Witness: If the Court revoked their
probation, yes.
Mr. Manning: Motion to strike the answer.
The Court: Denied.
Mr. Saacks: Thank you, ma’am. I don’t
think I have anything further.
Defendant contends that the trial court erred during the
sentencing phase of his trial by allowing a “former probation
officer [Ms. Brewer] to offer testimony which contradicted the
court record in an attempt to show [Defendant] violated a
condition of his probation.” Defendant argues that Ms. Brewer’s
testimony during the sentencing hearing was hearsay and
constituted an improper lay opinion since Ms. Brewer was not
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Defendant’s probation officer and “did not have personal
knowledge of the facts or circumstances surrounding the
activation of his suspended sentence.”
However, “[p]er statute, the Rules of Evidence do not apply
at sentencing hearings.” State v. Sings, 182 N.C. App. 162,
164, 641 S.E.2d 370, 371, appeal dismissed and disc. review
denied, 361 N.C. 574, 651 S.E.2d 558 (2007). The “trial court
has discretion to admit any evidence relevant to sentencing.”
State v. Carroll, 356 N.C. 526, 547, 573 S.E.2d 899, 913 (2002),
cert. denied, 539 U.S. 949, 156 L.Ed.2d 640 (2003). Our Supreme
Court has recently reaffirmed this principle, holding that “our
Rules of Evidence, other than those concerning privileges, do
not apply in proceedings for sentencing, or granting or revoking
probation.” State v. Murchison, ___ N.C. ___, ___, 758 S.E.2d
356, 358 (2014) (citation and quotation marks omitted).
In reaching its holding in Murchison, our Supreme Court
found instructive its prior decision in Carroll. Id. at ___,
758 S.E.2d at 358. In Carroll, the defendant was found guilty
of first-degree murder. During the sentencing phase, in an
effort to prove aggravating factors, the State presented
testimony from two witnesses: (1) a deputy clerk in Cumberland
County; and (2) an expert in fingerprint identification.
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Carroll, 356 N.C. at 545-46, 573 S.E.2d at 912. These witnesses
testified that a judgment from Florida showed the defendant had
a prior violent felony conviction and that the fingerprints
contained in the Florida file matched the copy of the
defendant’s fingerprints contained in the Cumberland County
file. Id.
On appeal, the defendant’s counsel argued that this
testimony was hearsay and that the court had erred by allowing
the jury to consider and find an aggravating factor that was
based solely on inadmissible hearsay. Id. at 545, 573 S.E.2d at
912. Our Supreme Court concluded that the “trial court has
discretion to admit any evidence relevant to sentencing” and
that the hearsay evidence was “reliable evidence relevant to the
State’s duty to prove its aggravating circumstances.” Id. at
547, 573 S.E.2d at 913; see also Sings, 182 N.C. App. at 164,
641 S.E.2d at 371 (upholding trial court’s admission of hearsay
offered to prove existence of aggravating factor during
defendant’s sentencing).
Here, in an effort to prove the existence of an aggravating
factor, the State offered testimony from Ms. Brewer to establish
both that Defendant’s sentence had been activated on 18 March
2002 and that the repeal of N.C. Gen. Stat. § 15A–1341(c),
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effective 1 January 1997, eliminated a defendant's ability to
elect to serve a prison sentence in lieu of completing his
probation.
Therefore, even though page one of Defendant’s revocation
of probation form indicated that Defendant had voluntarily
elected to serve his sentence instead of completing his
probation, as Ms. Brewer explained, such a voluntary election by
Defendant would not have been available to him under North
Carolina law on 18 March 2002. Her testimony further
established that after 1 January 1997, the only way that
Defendant could have had his sentence activated would have been
if the trial court had found him in violation of the conditions
of his probation and revoked his probation. Therefore, we do
not believe the trial court was precluded from allowing Ms.
Brewer’s testimony on this issue.
Moreover, we note that page two of Defendant’s revocation
of probation form contains a finding that “[D]efendant waived a
violation hearing and admitted that [he] violated each of the
conditions [of] [D]efendant’s probation as set forth below.”
Therefore, this argument is overruled.
Conclusion
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For the reasons stated above, we (1) dismiss without
prejudice Defendant’s ineffective assistance of counsel claim;
and (2) conclude that the trial court did not err in admitting
Ms. Brewer’s testimony.
DISMISSED IN PART; NO ERROR IN PART.
Judges HUNTER, JR. and ERVIN concur.
Report per Rule 30(e).