State v. Allen

NO. COA13-1100

NORTH CAROLINA COURT OF APPEALS

Filed: 15 April 2014

STATE OF NORTH CAROLINA

v. Person County
Nos. 12 CRS 51030—32, 13 CRS
361—62
HUBERT ALLEN,
Defendant.

Appeal by defendant from judgments entered 18 April 2013 by

Judge Michael R. Morgan in Person County Superior Court. Heard

in the Court of Appeals 5 March 2014.

Attorney General Roy Cooper, by Assistant Attorney General
Laura Edwards Parker, for the State.

Appellate Defender Staples Hughes, by Assistant Appellate
Defender Charlesena Elliott Walker, for defendant-
appellant.

BRYANT, Judge.

A claim of ineffective assistance of counsel will be denied

where defendant cannot show how his counsel’s error prejudiced

him. Where the trial court gave jury instructions as to self-

defense on four out of five charges and where defendant agreed
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that he was satisfied with the jury instructions, defendant

cannot show plain error.

At 7:00 p.m. on 15 June 2012, the Roxboro Police Department

received a call about a shooting on Highway 501. When officers

arrived at the scene, they saw a car with shattered front and

back windows on the passenger’s side and multiple bullet holes

in the front driver’s and passenger’s doors, in the head rest on

the front passenger side, and inside the car. The driver of the

car, Crystal Barker, had a bullet graze wound to her shoulder.

Barker’s boyfriend, Bryant Richardson, had also been in the car

at the time of the shooting but was not hurt. Barker told

Officer Mills that a red SUV pulled alongside her while she was

driving and the SUV’s driver fired multiple shots into her car

before speeding away. Police searched Barker and Richardson,

then searched Barker’s car where they found bullets and bullet

fragments but no weapons.

After receiving information from a confidential informant

regarding the shooting, the Roxboro police responded to a

residence on Holeman Ashley Road. A burgundy SUV was found

parked behind the residence. Upon entering the residence, the

police encountered defendant Hubert Allen. Defendant was taken
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into custody, and a loaded handgun was recovered from a table

next to him.

At the police station, defendant waived his Miranda rights

and gave a statement to Detective Shull in which he admitted to

shooting at Barker’s car. Defendant stated that while driving

down Highway 501, he received threatening messages, then saw a

man leaning out of a car making a hand gesture towards him in

imitation of a gun. Defendant told Detective Shull that this

man, later identified as Richardson, then fired shots towards

defendant. Defendant stated that he returned fire at Barker’s

car because he felt threatened.

On 15 June 2012, a Person County grand jury indicted

defendant on one count each of assaulting Richardson with a

deadly weapon with intent to kill, assaulting Barker with a

deadly weapon with intent to kill and inflicting serious injury,

discharging a firearm into an occupied vehicle, attempted first-

degree murder of Barker, and attempted first-degree murder of

Richardson. On 18 April 2013, a jury convicted defendant on all

charges. The jury also found the existence of an aggravating

factor, that “defendant knowingly created a great risk of death

to more than one person by means of a weapon which would

normally be hazardous to the lives of more than one person.”
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The trial court found the aggravating factor outweighed three

mitigating factors and entered two judgments, each sentencing

defendant to a term of 157 to 201 months, to be served

consecutively. Defendant appeals.

________________________

On appeal, defendant raises two issues: (I) whether trial

counsel provided defendant with ineffective assistance of

counsel; and (II) whether the trial court committed plain error

with regard to jury instructions.

I.

Defendant first argues that trial counsel provided him with

ineffective assistance of counsel. We disagree.

"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) (citations omitted).

It is well established that ineffective
assistance of counsel claims "brought on
direct review will be decided on the merits
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."
Thus, when this Court reviews ineffective
assistance of counsel claims on direct
appeal and determines that they have been
brought prematurely, we dismiss those claims
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without prejudice, allowing defendant[s] to
bring them pursuant to a subsequent motion
for appropriate relief in the trial court.

State v. Thompson, 359 N.C. 77, 122—23, 604 S.E.2d 850, 881

(2004) (quoting State v. Fair, 354 N.C. 131, 166, 557 S.E.2d

500, 524—25 (2001)).

Criminal defendants are entitled to the
effective assistance of counsel. 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. In
order to meet this burden [the] defendant
must satisfy 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.

In considering [ineffective assistance
of counsel] claims, if 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. Boozer, 210 N.C. App. 371, 382—83, 707 S.E.2d 756, 765
 -6-
(2011) (citations and quotation omitted), disc. review denied,

365 N.C. 543, 720 S.E.2d 667 (2012). “Judicial scrutiny of

counsel's performance must be highly deferential.” Strickland

v. Washington, 466 U.S. 668, 689 (1984). "Trial counsel are

necessarily given wide latitude in these matters [of trial

strategy]. Ineffective assistance of counsel claims are not

intended to promote judicial second-guessing on questions of

strategy as basic as the handling of a witness." State v.

Milano, 297 N.C. 485, 495—96, 256 S.E.2d 154, 160 (1979)

(citation and quotation omitted), overruled on other grounds by

State v. Grier, 307 N.C. 628, 300 S.E.2d 351 (1983).

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 . . . .

Strickland, 466 U.S. at 689 (citation omitted).

Defendant contends that his counsel was ineffective

because: she “pro-actively elicited a hearsay statement” that

conflicted with his claim of self-defense; she failed to object

to evidence that he sold drugs on a prior occasion; and she
 -7-
failed to move to dismiss the charges at the close of the

evidence. Because the record reveals no further investigation

is required, we review defendant’s ineffective assistance of

counsel claims.

Defendant pursued a self-defense strategy at trial and now

argues on appeal that his counsel elicited hearsay testimony

that contradicted his self-defense claim. The testimony in

question concerned the statements of a confidential informant

that were included in Officer Williams’ police report. The

State questioned Officer Williams as to his role in the

investigation, to which Officer Williams responded that his job

was to find the shooter and that he solicited information to

that effect. On cross-examination, defense counsel asked

“follow-up” questions seeking further explanation of what

Officer Williams had done to “find the shooter,” and

specifically, what the confidential informant had told him.

Officer Williams testified that the confidential informant said

that the shooting was a result of a “drug deal that went bad”

and that Richardson had been “in Roxboro in a silver and gray

vehicle, just like the victim’s vehicle, looking for

[defendant]” because defendant owed him money, and that
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Richardson had told defendant “to have his money or there would

be war.”

Defendant’s self-defense theory was that Richardson

believed defendant owed him money for drugs, that Richardson

threatened defendant, and that Richardson came looking for

defendant. Richardson started shooting at defendant when he saw

him, at which point defendant shot back in self-defense.

Therefore, it appears from the record that defense counsel

elicited the hearsay testimony as part of defendant’s self-

defense trial strategy, as the confidential informant’s

statements bolstered defendant’s self-defense strategy by

showing why defendant felt threatened by Richardson and fired at

Barker’s car. Such evidence does not contradict defendant’s

self-defense strategy. Further, even without the admission of

the confidential informant’s statement concerning a “drug deal

that went bad,” there was sufficient evidence presented by which

a jury could determine if defendant fired at Barker’s car in

self-defense, regardless of whether the shooting was drug-

related.

Defendant next contends he received ineffective assistance

of counsel because his counsel failed to object to evidence

concerning defendant’s selling of drugs on a prior occasion.
 -9-
When defendant testified on his own behalf, his counsel asked

him questions regarding when he purchased a handgun and why;

defendant responded that he purchased the gun in March 2012

after he began receiving threatening messages. Defendant

further testified that he had “never been convicted of nothing.”

On cross-examination, the State asked defendant to further

clarify his statements concerning the handgun, the threatening

messages, and his record. Perhaps, as defendant alleges, his

counsel may have been deficient in failing to object to evidence

of defendant selling drugs. However, as we discuss infra, even

if defense counsel was deficient in that one instance, there is

no reasonable possibility that this error affected the outcome

of the case.

Defendant further argues that he received ineffective

assistance of counsel because his counsel failed to move to

dismiss the charges at the close of the evidence. Specifically,

defendant contends that had defense counsel moved to dismiss the

charges at the close of the evidence, the trial court “likely

would have dismissed” the attempted murder and assault charges

because the evidence was insufficient to show an intent to kill.

Likewise, defendant contends, the trial court “likely would have

dismissed” the charge of assault on Barker with a deadly weapon
 -10-
with intent to kill inflicting serious injury because Barker’s

bullet graze wound was not serious.

In weighing the sufficiency of the
evidence, the trial court considers all
evidence admitted at trial, whether
competent or incompetent: . . . in the light
most favorable to the State, giving the
State the benefit of every reasonable
inference that might be drawn therefrom.
Any contradictions or discrepancies in the
evidence are for resolution by the jury.
The trial judge must decide whether there is
substantial evidence of each element of the
offense charged. Substantial evidence is
such relevant evidence as a reasonable mind
might accept as adequate to support a
conclusion.

State v. Cox, 190 N.C. App. 714, 720, 661 S.E.2d 294, 299 (2008)

(citations omitted). The trial judge must merely ensure that

there exists substantial evidence as to each element of the

offense; the jury’s job is to determine beyond a reasonable

doubt whether the evidence proves the defendant was guilty of

the offense. State v. Matias, 354 N.C. 549, 551—52, 556 S.E.2d

269, 270 (2001) (citations omitted).

"The elements of attempted first-degree murder are: (1) a

specific intent to kill another; (2) an overt act calculated to

carry out that intent, which goes beyond mere preparation; (3)

malice, premeditation, and deliberation accompanying the act;

and (4) failure to complete the intended killing." State v.
 -11-
Tirado, 358 N.C. 551, 579, 599 S.E.2d 515, 534 (2004) (citations

omitted). "The elements of assault with a deadly weapon with

intent to kill inflicting serious injury are: (1) an assault,

(2) with the use of a deadly weapon, (3) with an intent to kill,

and (4) inflicting serious injury, not resulting in death." Id.

"The requisite 'intent to kill' may be inferred from the nature

of the assault, the manner in which it was made, the conduct of

the parties, and other relevant circumstances." State v.

Musselwhite, 59 N.C. App. 477, 480, 297 S.E.2d 181, 184 (1982)

(citation omitted).

To show defendant had intent to kill Barker and Richardson,

the State presented evidence that: defendant admitted he sped up

to reach Barker’s car before firing into it; defendant fired

directly into Barker’s car at close range; defendant’s multiple

shots fired directly at the car resulted in bullet holes in the

front driver and passenger doors, the front passenger seat, and

the front passenger’s seat headrest; bullets shattered both

windows on the passenger’s side; and Barker sustained a bullet

wound to her shoulder. Defendant admitted that he could have,

but did not, call 911 at any time between when he received the

threats and the shooting. This evidence, viewed in the light

most favorable to the State, is sufficient to establish the
 -12-
element of intent for the charges of attempted murder and

assault. See id.; see also State v. Davis, 349 N.C. 1, 37, 506

S.E.2d 455, 475 (1998) (holding that to show intent where a

firearm is used against a victim, "[t]he malice or intent

follows the bullet." (citations omitted)).

Defendant also contends that because Barker’s bullet graze

wound was not serious the trial court would have dismissed the

offense of assault with a deadly weapon with intent to kill

inflicting serious injury upon a proper motion to dismiss.

Defendant contends Barker’s injury was not serious because its

treatment did not require hospitalization or medication, nor did

it cause Barker to miss work. “Serious injury” means physical

or bodily injury, but not death, resulting from an assault with

a deadly weapon. State v. Joyner, 295 N.C. 55, 65, 243 S.E.2d

367, 373—74 (1978) (citations omitted). Whether serious injury

has been inflicted depends on the particular facts of each case

and is a question for the jury. State v. Ferguson, 261 N.C.

558, 560, 135 S.E.2d 626, 628 (1964). “[A]s long as the State

presents evidence that the victim sustained a physical injury as

a result of an assault by the defendant, it is for the jury to

determine the question of whether the injury was serious."

State v. Alexander, 337 N.C. 182, 189, 446 S.E.2d 83, 87 (1994)
 -13-
(citation omitted). "The trial court is required to submit

lesser included degrees of the crime charged in the indictment

when . . . there is evidence of guilt of the lesser degrees."

State v. Simpson, 299 N.C. 377, 381, 261 S.E.2d 661, 663 (1980)

(citations omitted).

The trial court, at the request of defense counsel and in

light of the evidence presented as to the seriousness of

Barker’s injury, instructed the jury as to all lesser-included

charges for the offense of assault with a deadly weapon with

intent to kill inflicting serious injury: assault with a deadly

weapon with intent to kill, assault with a deadly weapon

inflicting serious injury, and assault with a deadly weapon.

The trial court also defined “serious injury” in its

instructions to the jury. As such, “[w]hether serious injury

ha[d] been inflicted” to Barker was a question for the jury to

decide based upon the evidence presented. Ferguson, 261 N.C. at

560, 135 S.E.2d at 628; see also State v. Stephens, 347 N.C.

352, 493 S.E.2d 435 (1997) (bullet graze wound to the face was a

serious injury); Alexander, 337 N.C. 182, 446 S.E.2d 83 (cuts to

the victim’s arm from glass shattered by a bullet constituted a

serious injury); State v. Bell, 87 N.C. App. 626, 362 S.E.2d 288

(1987) (bullet graze wound above the eye was a serious injury).
 -14-
Where “the evidence is sufficient to support a conviction, the

defendant is not prejudiced by his counsel's failure to make a

motion to dismiss at the close of all the evidence.” State v.

Fraley, 202 N.C. App. 457, 467, 688 S.E.2d 778, 786 (2010)

(citation omitted). Given the record in this case and the case

law noted above regarding what facts may constitute serious

injury, there is no likelihood the trial court would have

dismissed the charge of assault with a deadly weapon with intent

to kill inflicting serious injury had defense counsel made a

motion to dismiss.

Reviewing the record in its entirety, plaintiff’s

ineffective assistance of counsel claim must fail. Even

assuming arguendo that defense counsel was deficient in failing

to object to testimony regarding defendant selling drugs,

defendant has failed to show how this testimony prejudiced him.

“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.” State

v. Braswell, 312 N.C. 553, 563, 324 S.E.2d 241, 248 (1985)

(citation omitted). “After examining the record we conclude

that there is no reasonable probability that any of the alleged
 -15-
errors of defendant's counsel affected the outcome of the

trial.” Id. at 563, 324 S.E.2d at 249. Accordingly,

defendant’s arguments are overruled, and his claim of

ineffective assistance of counsel denied.

II.

Defendant next argues that the trial court committed plain

error in failing to instruct the jury on self-defense for the

charge of discharging a firearm into an occupied vehicle. We

disagree.

For error to constitute plain error, a
defendant must demonstrate that a
fundamental error occurred at trial. To
show that an error was fundamental, a
defendant must establish prejudice—that,
after examination of the entire record, the
error had a probable impact on the jury's
finding that the defendant was guilty.

State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012)

(citations and quotation omitted).

Defendant contends the trial court committed plain error in

failing to instruct the jury on self-defense as it related to

the charge of discharging a firearm into an occupied vehicle.

Specifically, defendant argues that “the trial court acted under

a misapprehension of the law” in its decision not to give a

self-defense instruction. Defendant’s argument lacks merit, as
 -16-
a review of the record indicates that the trial court gave

sufficient instruction to the jury on self-defense.

In its instructions to the jury on the charges of attempted

first-degree murder and assault, the trial court instructed the

jury as to self-defense for each charge. For the charge of

discharging a firearm into an occupied vehicle, the trial court

did not give the full instruction on self-defense, but rather

stated that the jury must find whether defendant committed this

offense without justification or excuse. In a jury instruction

conference held outside of the jury’s presence, defendant agreed

to this instruction, stating that: “Your Honor, the defendant

agrees that the self-defense instruction has been given

multiple, multiple times here, and also that your Honor gave

within his instructions on this particular charge, added without

justification qualifications. The defendant is satisfied, your

Honor.”

This Court has held that "a charge must be construed

contextually, and isolated portions of it will not be held

prejudicial when the charge as a whole is correct." State v.

Gaines, 283 N.C. 33, 43, 194 S.E.2d 839, 846 (1973) (citations

omitted).

Where the charge as a whole presents the law
fairly and clearly to the jury, the fact
 -17-
that isolated expressions, standing alone,
might be considered erroneous affords no
grounds for a reversal. Technical errors
which are not substantial and which could
not have affected the result will not be
held prejudicial.

State v. Jones, 294 N.C. 642, 653, 243 S.E.2d 118, 125 (1978)

(citations omitted).

Here, it is clear from the record that “the trial court

unmistakably placed the burden of proof upon the State to

satisfy the jury beyond a reasonable doubt that defendant did

not act in self-defense” when he shot at Barker’s car. See id.

at 654, 243 S.E.2d at 125. Furthermore, as the jury convicted

defendant of the attempted first-degree murder and assault

charges even though each of these offenses was given with a

self-defense instruction, it seems unlikely that the jury would

have reached a different result had the trial court given a full

instruction on self-defense for the charge of discharging a

firearm into an occupied vehicle. Moreover, defendant accepted

the trial court’s proposed instruction, stating that the

repetition of the self-defense instruction for the other four

charges, coupled with a clear instruction that the jury must

determine whether defendant discharged a firearm into an

occupied vehicle without justification or excuse, was

sufficient. As defendant has failed to show fundamental error
 -18-
or prejudice, his argument is accordingly overruled. See id. at

654, 243 S.E.2d at 125. (“We think the jury clearly understood

that the burden was upon the State to satisfy it beyond a

reasonable doubt that defendant did not act in self-defense and

clearly understood the circumstances under which it should

return a verdict of not guilty by reason of self-defense.”); see

also State v. Creasman, No. COA02-1498, 2003 N.C. App. LEXIS

1249 (July 1, 2003) (holding that where the trial court gave

full self-defense instructions for the first two charges against

the defendant, the defendant was not prejudiced where the trial

court did not give a full self-defense instruction as to a third

charge). We find no error in the judgment of the trial

court. Defendant’s claim of ineffective assistance is denied.

No error.

Judges STEPHENS and DILLON concur.