State v. Blackwell

An unpublished opinion of the North Carolina Court of Appeals does not constitute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 Appellate Procedure.

NO. COA13-196
NORTH CAROLINA COURT OF APPEALS

Filed: 7 January 2014

STATE OF NORTH CAROLINA

v. Robeson County
Nos. 07 CRS 051866-67
CHANNING ALLAMAR BLACKWELL

Appeal by Defendant from judgments entered 3 May 2012 by

Judge Tanya T. Wallace in Robeson County Superior Court. Heard

in the Court of Appeals 28 August 2013.

Attorney General Roy Cooper, by Special Deputy Attorney
General James A. Wellons, for the State.

Duncan B. McCormick, for Defendant.

DILLON, Judge.

Channing Allamar Blackwell (“Defendant”) appeals from

judgments entered 3 May 2012 convicting him of two counts of

attempted murder, two counts of assault with a deadly weapon

with intent to kill inflicting serious injury, one count of

attempted robbery with a dangerous weapon, and one count of

discharge of a weapon in an occupied vehicle. We find no error,

in part, and we dismiss, in part.
 -2-
The evidence of record tends to show the following:

Defendant worked at a Zaxby’s restaurant location in Robeson

County with Sherry Neldon and Patsy Hardin. In the early

morning hours of 31 March 2007, Ms. Neldon, who was an assistant

manager at the restaurant, left work – accompanied by Ms. Hardin

- to make a night deposit of over $3,000 at a local bank on

behalf of her employer. Upon arriving at the bank, Ms. Neldon

exited the vehicle to make the deposit. Ms. Hardin also got out

and walked toward the back of the vehicle, at which time she saw

a tall, slim African American male approaching and yelling

expletives. Both Ms. Neldon and Ms. Hardin got back into the

vehicle, and, as Ms. Neldon struggled to get the vehicle into

gear, the man fired a gun. The first bullet shattered the

driver’s side window. The man then tried to get into the

vehicle by pointing the gun at Ms. Neldon’s head through the

window. As Ms. Neldon and the man struggled for several

seconds, she heard another three or four gunshots. Ms. Neldon

was then able to get the vehicle into gear and drive away.

One of the bullets had struck Ms. Neldon in the abdomen,

lodging in her spine, which resulted in the required removal of

part of her lower intestine. Ms. Neldon had to learn to walk

again and needed the assistance of a cane. Another bullet
 -3-
struck Ms. Hardin in the back, which resulted in the required

removal of Ms. Hardin’s left kidney, part of her lower

intestine, and her spleen.

A witness saw a person fleeing the scene on foot toward a

cemetery. Officer Steve Smith responded to the scene and

approached a building near the cemetery. Officer Smith saw

Defendant “peeping around the corner” of the building.

Defendant then “took off running in the opposite direction[.]”

Officer Smith apprehended Defendant after Defendant complied

with his command to “get down.” However, even after Defendant

“got down[,] . . . he was constantly moving his hands and . . .

[h]e tried to roll back[.]” Another officer arrived at the

scene and handcuffed Defendant.

A third officer, Officer Jennifer White, arrived with a

police dog. The dog “picked up a cap and a few minutes later

she found a handgun that was buried next to the vegetation.”

The gun was discovered “[m]aybe one feet, two feet” from the

place “[D]efendant went down at [the] command” of Officer Smith.

Defendant was indicted on a number of charges and was tried

during the 30 April 2012 session of Robeson County Superior

Court, the Honorable Tanya Wallace presiding. On 3 May 2012,

the jury returned verdicts finding Defendant guilty of the six
 -4-
crimes named above. The trial court entered two judgments

consistent with the jury’s verdicts. In the first judgment, the

trial court consolidated one count of attempted murder and one

count of assault with a deadly weapon with intent to kill

inflicting serious injury with the count of attempted robbery

with a dangerous weapon, and sentenced Defendant to 220 to 273

months incarceration. In its second judgment, the trial court

consolidated the second count of attempted murder and second

count of assault with a deadly weapon with intent to kill

inflicting serious injury with the count of discharge of a

weapon into occupied property, and sentenced Defendant to a

second term of 220 to 273 months incarceration, with both terms

to be served consecutively. From these judgments, Defendant

appeals.

I: Petition for Discharge of Imprisonment

In Defendant’s first argument on appeal, he contends the

trial court lacked jurisdiction, because Defendant’s appeal was

pending, to enter its Order of 13 July 2012 denying his Petition

for Discharge of Imprisonment (the “Petition”) which he filed

pursuant to Chapter 23, Art. 4, of the North Carolina General

Statutes. We believe this Court does not have jurisdiction to

consider the issue on appeal.
 -5-
Appellate Procedure Rule 4(a) provides that “[a]ny party

entitled by law to appeal from a judgment or order of a superior

or district court rendered in a criminal action may take appeal

by . . . filing notice of appeal with the clerk of superior

court and serving copies thereof upon all adverse parties . . .

.” N.C. R. App. P. 4(a). Compliance with the requirements for

entry of notice of appeal is jurisdictional. Dogwood Dev. &

Mgmt. Co. v. White Oak Transp. Co., 362 N.C. 191, 197-98, 657

S.E.2d 361, 365 (2008). “A jurisdictional default . . .

precludes the appellate court from acting in any manner other

than to dismiss the appeal.” Id. at 197, 657 S.E.2d at 365.

Nothing in the record before us indicates that Defendant gave

notice of appeal from the trial court’s denial of the Petition.

Accordingly, we dismiss this portion of Defendant’s appeal.

II: Right to a Speedy Trial

In Defendant’s second argument on appeal, he contends

Defendant’s constitutional right to a speedy trial was denied

because there was a five year delay in bringing his case to

trial.1 We disagree.

1
Defendant also asserts that he “demanded a speedy trial
pursuant to Section 15A-711(c),” but admits that the “prosecutor
prepared at least nine applications and writs of habeas corpus
for the purpose of prosecution between August 2010 and April
2012[,]” and, therefore, “[Defendant] is asserting only a
 -6-
The right of every person formally accused of crime to a

speedy and impartial trial is secured by the fundamental law of

this State, State v. Hollars, 266 N.C. 45, 145 S.E.2d 309

(1965), and guaranteed by the Sixth Amendment to the federal

constitution, made applicable to the State by the Fourteenth

Amendment, Klopfer v. North Carolina, 386 U.S. 213, 18 L. Ed. 2d

1 (1967). “[I]n considering whether the defendant has been

prejudiced because of a delay between indictment and trial, this

Court noted that a speedy trial serves (i) to prevent oppressive

pretrial incarceration; (ii) to minimize anxiety and concern of

the accused; and (iii) to limit the possibility that the defense

will be impaired.” State v. Grooms, 353 N.C. 50, 63, 540 S.E.2d

713, 722 (2000), cert. denied, 534 U.S. 838, 151 L. Ed. 2d 54

(2007).

“To determine whether a defendant’s right to a speedy trial

has been denied, four factors must be examined: the length of

the delay, reasons for the delay, defendant’s assertion of the

right, and prejudice suffered by the defendant.” State v.

Joyce, 104 N.C. App. 558, 568, 410 S.E.2d 516, 522 (1991), cert.

denied, 331 N.C. 120, 414 S.E.2d 764 (1992). “These four

factors are considered together to determine under the

violation of his state and federal constitutional rights.”
 -7-
circumstances whether a sixth amendment violation has occurred.”

Id. “[T]he length of the delay is not per se determinative of

whether the defendant has been deprived of his right to a speedy

trial.” State v. Grooms, 353 N.C. at 62, 540 S.E.2d at 721. A

long delay between accusation and trial, however, triggers

consideration of the other factors. State v. Webster, 337 N.C.

674, 678, 447 S.E.2d 349, 351 (1994). “[The] defendant has the

burden of showing that the delay was caused by the neglect or

willfulness of the prosecution.” Grooms, 353 N.C. at 62, 540

S.E.2d at 721 (2000). “A criminal defendant who has caused or

acquiesced in a delay will not be permitted to use it as a

vehicle in which to escape justice.” Id. at 63, 540 S.E.2d at

722 (2000) (quoting State v. Tindall, 294 N.C. 689, 695-96, 242

S.E.2d 806, 810 (1978)).

Defendant argues on appeal that because the “case was tried

five years after [Defendant’s] arrest . . . [t]he delay . . .

may have hindered his ability to locate witnesses who could

corroborate his testimony.” This, Defendant asserts, violated

Defendant’s right to a speedy trial. However, Defendant’s

argument on appeal fails to assert, in any way, how “the delay

was caused by the neglect or willfulness of the prosecution.”

Grooms, 353 N.C. at 62, 540 S.E.2d at 721. Moreover, the record
 -8-
tends to show the opposite may have been, at least partially,

true. In this case, the State sought continuances due to a full

docket, an unavailable witness, and a coinciding week-long first

degree murder case; Defendant sought or agreed to continuances

because counsel was unavailable or needed to review the case

file. Defendant also sought a continuance because replacement

counsel needed additional time to prepare. The record in this

case does not affirmatively show that the delay was due to the

neglect or willfulness of the prosecution; rather, several

continuances benefitted defense counsel. Because Defendant has

failed to meet his burden of showing that “the delay was caused

by the neglect or willfulness of the prosecution[,]” Grooms, 353

N.C. at 62, 540 S.E.2d at 721, we find Defendant’s argument

without merit.

III: Right to Self-Representation

In Defendant’s third argument on appeal, he contends the

trial court erred by failing to allow Defendant to proceed pro

se. We disagree.

“It is well settled that an accused is entitled to the

assistance of counsel at every critical stage of the criminal

process as constitutionally required under the Sixth and

Fourteenth Amendments to the United States Constitution.” State
 -9-
v. Taylor, 354 N.C. 28, 35, 550 S.E.2d 141, 147 (2001), cert.

denied, 535 U.S. 934, 122 S. Ct. 1312, 152 L. Ed. 2d 221 (2002).

“[W]aiver of the right to counsel and election to proceed pro

se[,]” however, “must be expressed clearly and unequivocally.”

State v. Thomas, 331 N.C. 671, 673, 417 S.E.2d 473, 475 (1992)

(citation and quotation marks omitted). “Once a defendant

clearly and unequivocally states that he wants to proceed pro

se, the trial court, to satisfy constitutional standards, must

determine whether the defendant knowingly, intelligently, and

voluntarily waives the right to in-court representation by

counsel.” Id. at 673, 417 S.E.2d at 476. “In order to

determine whether the waiver meets that standard, the trial

court must conduct a thorough inquiry[,] [and] [t]his Court has

held that the inquiry required by N.C.G.S. § 15A-1242 satisfies

constitutional requirements.” Id.

N.C. Gen. Stat. § 15A-1242 (2011) provides the following:

A defendant may be permitted at his election
to proceed in the trial of his case without
the assistance of counsel only after the
trial judge makes thorough inquiry and is
satisfied that the defendant:

(1) Has been clearly advised of his right
to the assistance of counsel, including
his right to the assignment of counsel
when he is so entitled;

(2) Understands and appreciates the
 -10-
consequences of this decision; and

(3) Comprehends the nature of the charges
and proceedings and the range of
permissible punishments.

Id.

In this case, Defendant filed a pro se handwritten document

on 19 January 2011 “seeking to file for a motion for dismissal.”

The trial court responded, stating the following: “According to

our records you are represented by an attorney. Please discuss

your concerns with your attorney. You must act through your

attorney when filing court documents.” Almost a year later,

Defendant filed a motion to dismiss and, purportedly, a

concurrent motion to waive counsel,2 in which Defendant stated

that he “knowingly, voluntarily, and intelligently proceeds pro

se.” The trial court responded on 5 March 2012, again stating

the following: “According to our court records you are

represented by an attorney. Please discuss your concerns with

your attorney. You must act through your attorney when filing

court documents.”

2
Defense counsel states in his brief that “[u]ndersigned counsel
went to Robeson County to review the Clerk’s file twice . . .
for the specific purpose of determining whether a separate,
concurrently filed motion was in the file, and counsel could not
locate one.”
 -11-
At trial, Defendant did not express a desire to proceed pro

se, and the trial court did not conduct an inquiry. Despite

repeated inquiries from the trial court as to whether there were

any other matters before the jury came in, neither Defendant nor

his court-appointed counsel informed the trial court that

Defendant desired to waive in-court representation by counsel so

that Defendant could proceed pro se. “Only if a defendant

clearly expresses his desire to have counsel removed and to

proceed pro se is the trial court obligated to make further

inquiry pursuant to N.C.G.S. § 15A-1242 to determine if

defendant understands the consequences of his decision and

voluntarily and intelligently wishes to waive his right to the

representation of counsel.” State v. Johnson, 341 N.C. 104,

111, 459 S.E.2d 246, 250 (1995) (citation omitted). We believe

the facts of this case – because there is no motion to waive

counsel, only a reference to one, and because there was no

mention at trial of Defendant’s desire to proceed pro se – do

not support the proposition that Defendant clearly expressed his

desire to have counsel removed and to proceed pro se. As such,

the trial court had no obligation to make further inquiry

pursuant to N.C. Gen. Stat. § 15A-1242. This argument is

without merit.
 -12-
IV: Motion to Dismiss; Ineffective Assistance of Counsel

In Defendant’s next arguments, he contends the trial court

erred by denying his motion to dismiss the charges of attempted

murder and assault with a deadly weapon with the intent to kill

inflicting serious injury. Defendant admits that defense

counsel failed to renew Defendant’s motion to dismiss at the

close of all evidence, but nonetheless argues the denial of

Defendant’s motion to dismiss was error, and further contends

that defense counsel’s failure to renew the motion was

ineffective assistance of counsel.

Our appellate rules provide that, “if a defendant fails to

move to dismiss the action or for judgment as in case of nonsuit

at the close of all the evidence, he may not challenge on appeal

the sufficiency of the evidence to prove the crime charged.”

N.C.R. App. P. 10(b)(3). Because Defendant presented his own

evidence and failed to renew his motion to dismiss at the close

of all evidence, Defendant waived his right to contest this

issue on appeal. Id. The portion of Defendant’s appeal

pertaining to the trial court’s denial of his motion to dismiss

is, resultantly, dismissed. See State v. Blackmon, 208 N.C.

App. 397, 400, 702 S.E.2d 833, 836 (2010); State v. Tanner, 193
 -13-
N.C. App. 150, 666 S.E.2d 845 (2008), rev'd on other grounds,

364 N.C. 229, 695 S.E.2d 97 (2010).

Defendant also asserts that defense counsel’s failure to

renew the motion to dismiss at the end of all evidence

constitutes ineffective assistance of counsel.

“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.” State v. Allen, 360 N.C.

297, 316, 626 S.E.2d 271, 286, cert. denied, 549 U.S. 867, 166

L. Ed. 2d 116 (2006) (citations and quotation marks omitted).

“Deficient performance may be established by showing that

counsel’s representation fell below an objective standard of

reasonableness.” Id. “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.” Id. “A reasonable

probability is a probability sufficient to undermine confidence

in the outcome.” Id.

“[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
 -14-
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). The

issue in this case, therefore, turns on whether there was a

reasonable probability the trial court would have ruled in

Defendant’s favor had defense counsel renewed the motion to

dismiss at the conclusion of all evidence. We believe there was

not.

“This Court reviews the trial court’s denial of a motion to

dismiss de novo.” State v. Smith, 186 N.C. App. 57, 62, 650

S.E.2d 29, 33 (2007). “Upon defendant’s motion for dismissal,

the question for the Court is whether there is substantial

evidence (1) of each essential element of the offense charged,

or of a lesser offense included therein, and (2) of defendant’s

being the perpetrator of such offense. If so, the motion is

properly denied.” State v. Fritsch, 351 N.C. 373, 378, 526

S.E.2d 451, 455, cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150

(2000) (citation and quotation marks omitted). “Substantial

evidence is such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” State v. Smith,

300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980).

Circumstantial evidence may withstand a
motion to dismiss and support a conviction
 -15-
even when the evidence does not rule out
every hypothesis of innocence. If the
evidence presented is circumstantial, the
court must consider whether a reasonable
inference of defendant’s guilt may be drawn
from the circumstances. Once the court
decides that a reasonable inference of
defendant’s guilt may be drawn from the
circumstances, then it is for the jury to
decide whether the facts, taken singly or in
combination, satisfy [it] beyond a
reasonable doubt that the defendant is
actually guilty.

Fritsch, 351 N.C. at 379, 526 S.E.2d at 455 (citation and

quotation marks omitted). “In making its determination, the

trial court must consider all evidence admitted, whether

competent or incompetent, in the light most favorable to the

State, giving the State the benefit of every reasonable

inference and resolving any contradictions in its favor.” State

v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert.

denied, 515 U.S. 1135, 132 L. Ed. 2d 818 (1995).

i: Attempted Murder

Defendant argues the trial court erred by denying his

motion to dismiss the charges of attempted murder because there

was neither insufficient evidence to support the element of

premeditation and deliberation nor the element of intent to

kill. We address each argument in turn.
 -16-
“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.

Tirado, 358 N.C. 551, 579, 599 S.E.2d 515, 534 (2004); see also

N.C. Gen. Stat. § 14-17 (2011).

a: Premeditation and Deliberation

Defendant first argues there was insufficient evidence to

support the element of premeditation and deliberation. “In the

context of attempted first-degree murder, circumstances that may

tend to prove premeditation and deliberation include, among

others: (1) lack of provocation by the intended victim or

victims; and (2) conduct and statements of the defendant both

before and after the attempted killing.” State v. Reid, 175

N.C. App. 613, 619, 625 S.E.2d 575, 582 (2006). “Premeditation

and deliberation, both processes of the mind, must generally be

proven by circumstantial evidence.” State v. Smith, 357 N.C.

604, 616, 588 S.E.2d 453, 461 (2003), cert. denied, __ U.S. __,

159 L. Ed. 2d 819, 124 S. Ct. 2915 (2004); see also State v.

Cozart, 131 N.C. App. 199, 202, 505 S.E.2d 906, 909 (1998)

(stating that “[i]n the context of attempted first-degree
 -17-
murder, circumstances that may tend to prove premeditation and

deliberation include: (1) lack of provocation by the intended

victim or victims; (2) conduct and statements of the defendant

both before and after the attempted killing; (3) threats made

against the intended victim or victims by the defendant; and (4)

ill will or previous difficulty between the defendant and the

intended victim or victims”). “The nature and number of the

victim’s wounds is . . . a circumstance from which an inference

of premeditation and deliberation can be drawn.” State v.

Bullard, 312 N.C. 129, 161, 322 S.E.2d 370, 388 (1984).

“Premeditation and deliberation may be inferred from the

multiple shots fired by defendant.” State v. Chapman, 359 N.C.

328, 376, 611 S.E.2d 794, 828 (2005). “[A] defendant’s attempt

to cover up his participation in the shooting by hiding the

[gun] is evidence from which premeditation and deliberation may

be inferred.” Id. at 376, 611 S.E.2d at 829.

In this case, the evidence of record tends to show that

Defendant worked with Ms. Neldon and Ms. Hardin at Zaxby’s and

knew when and where the night deposit was made. Evidence does

not show that there was any ill will among Ms. Neldon, Ms.

Hardin and Defendant prior to the shooting. Evidence further

shows that Defendant was waiting in the bank parking lot after
 -18-
1:00 A.M. with a gun on the night of the shooting; that

Defendant reached through the shattered vehicle window to shoot

Ms. Neldon at point blank range; and that Defendant fired four

shots at Ms. Neldon and Ms. Hardin. Defendant attempted to hide

his gun in the grass when he was arrested. We believe the

evidence supporting the element of premeditation and

deliberation in this case was substantial, such that the

question of whether Defendant committed attempted first degree

murder was properly one for the jury. We believe the evidence

was such that the jury could have inferred from the

circumstances that Defendant fired shots in a cool state of

blood, planning to take the bank deposit. See Chapman, 359 N.C.

at 377, 611 S.E.2d at 829.

b: Specific Intent to Kill

Defendant next argues there was insufficient evidence to

support the element of specific intent to kill.

Intent to kill is an element of both the crime of attempted

first degree murder and assault with a deadly weapon with intent

to kill inflicting serious injury. See Cozart, 131 N.C. App. at

202, 505 S.E.2d at 909. “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
 -19-
circumstances.” State v. Musselwhite, 59 N.C. App. 477, 480,

297 S.E.2d 181, 184 (1982). In this case, we reiterate that

Defendant reached through the shattered vehicle window to shoot

Ms. Neldon at point blank range; and that Defendant fired four

shots at Ms. Neldon and Ms. Hardin. One bullet struck Ms.

Neldon in the abdomen, lodging in her spine, which resulted in

the required removal of part of Ms. Neldon’s lower intestine by

doctors. Another bullet struck Ms. Hardin in the back, which

resulted in the required removal of Ms. Hardin’s left kidney,

part of her lower intestine, and her spleen. We believe this

evidence supporting the element of intent to kill was

substantial, such that the question of whether Defendant

committed attempted first degree murder was properly one for the

jury. See State v. Cain, 79 N.C. App. 35, 47, 338 S.E.2d 898,

905, disc. review denied, 316 N.C. 380, 342 S.E.2d 899 (1986)

(stating that “[t]he requisite ‘intent to kill’ can be

reasonably inferred by the defendant’s use of a .357 magnum

revolver, fired numerous times”); see also State v. Maddox, 159

N.C. App. 127, 131, 583 S.E.2d 601, 604 (2003).

ii: Assault With Deadly Weapon With Intent to Kill Inflicting
Serious Injury

Defendant also argues the trial court erred by denying his

motion to dismiss the charges of assault with a deadly weapon
 -20-
with intent to kill inflicting serious injury because there was

insufficient evidence to support the element of intent to kill.

We disagree.

“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.” State v.

Tirado, 358 N.C. 551, 579, 599 S.E.2d 515, 534 (2004); see also

N.C. Gen. Stat. § 14-32(a) (2011). Intent to kill is an element

of both the crime of attempted first degree murder and assault

with a deadly weapon with intent to kill inflicting serious

injury. See Cozart, 131 N.C. App. at 202, 505 S.E.2d at 909

(1998).

Defendant again argues there was insufficient evidence to

support the element of specific intent to kill. For the reasons

discussed previously concerning whether there was substantial

evidence to support the element of intent to kill in the context

of attempted first degree murder, we disagree.

Based on the evidence, we believe there was no reasonable

probability the trial court would have granted Defendant’s

motion to dismiss had he made one at the end of all evidence.
 -21-
Therefore, Defendant’s ineffective assistance of counsel claim

must necessarily fail.

NO ERROR in part; DISMISSED in part.

Judge BRYANT and Judge STEPHENS concur.

Report per Rule 30(e).