State v. Leath

• Court: Court of Appeals of North Carolina
• Decided: February 18, 2014
• Docket: 13-967
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-967 NORTH CAROLINA COURT OF APPEALS

Filed: 18 February 2014

STATE OF NORTH CAROLINA

v. Alamance County Nos. 12 CRS 53844 DERRICK LAMONT LEATH 13 CRS 610

Appeal by Defendant from judgment entered 11 April 2013 by

Judge James E. Hardin, Jr., in Alamance County Superior Court.

Heard in the Court of Appeals 27 January 2014.

Attorney General Roy Cooper, by Assistant Attorney General Robert K. Smith, for the State.

Todd A. Smith for Defendant.

DILLON, Judge.

Derrick Lamont Leath (“Defendant”) appeals from a judgment

entered upon his conviction for assault with a deadly weapon

inflicting serious injury (“AWDWISI”) and his guilty plea to

habitual felon status. Because we find substantial evidence of

Defendant’s use of a deadly weapon to assault his victim and

further find no constitutionally deficient performance by -2- defense counsel, we hold that Defendant received a fair trial,

free from prejudicial error.

The State’s evidence tended to show that, on the night of

24 June 2012, Abjul Shields and Quixote Clark were working as

members of the security team at Club 778 on Graham-Hopedale Road

in Burlington, North Carolina. Shortly after midnight, Shields

walked to the rear of the club and observed Defendant cursing

and threatening Clark. When Defendant ignored his request to

leave, Shields moved between Defendant and Clark and told

Defendant, “[T]his is not what you want to do.” Defendant threw

a punch at Shields, striking him on the side of the face.

Despite landing with “[n]ot too much” force, the blow opened a

five-inch laceration on Shield’s cheek requiring twenty-nine

sutures to close. As Defendant ran, Shields entered a restroom

to examine his face, which “looked like a fish.” Shields was

transported by ambulance to the emergency room, where staff

treated the cut to his face and smaller laceration on his left

wrist.

Within minutes of the foregoing encounter, Clark saw

Defendant in front of the club “[t]rying to leave.” When he

attempted to subdue Defendant, Clark observed a razor blade in

Defendant’s right hand “between his thumb and his forefinger.” -3- Defendant swung at Clark twice with the blade before leaving

with an associate in a burgundy truck.

The jury found Defendant guilty of AWDWISI upon Shields but

not guilty of assault with a deadly weapon upon Clark, who

accused Defendant of striking him with a beer bottle prior to

the assault on Shields. After Defendant pled guilty to being an

habitual felon, the trial court sentenced him to an active

prison term of 90 to 120 months. Defendant gave notice of

appeal in open court.

Defendant first claims that the trial court erred in

denying his motion to dismiss the AWDWISI charge based on the

lack of evidence that he employed a deadly weapon in assaulting

Shields. We do not agree.

The trial court’s denial of a motion to dismiss for

insufficient evidence is reviewed de novo. State v. Lowery, __

N.C. App. __, __, 743 S.E.2d 696, 698-99, disc. review denied,

__ N.C. __, 749 S.E.2d 858 (2013). In conducting our review,

“this Court determines whether the State presented substantial

evidence in support of each element of the charged offense.

Substantial evidence is relevant evidence that a reasonable

person might accept as adequate, or would consider necessary to

support a particular conclusion.” State v. Abshire, 363 N.C. -4- 322, 327-28, 677 S.E.2d 444, 449 (2009) (citations and quotation

marks omitted).

Defendant does not challenge the evidence that he assaulted

or inflicted a serious injury upon Shields. Accordingly, we

need only determine whether the State adduced “substantial

evidence – whether direct, circumstantial, or both – to support

a finding” that Defendant committed the assault with a deadly

weapon. Id. at 328, 677 S.E.2d at 449 (quotation omitted); see

also State v. Jones, 353 N.C. 159, 164, 538 S.E.2d 917, 922

(2000) (listing elements of AWDWISI). “An instrument which is

likely to produce death or great bodily harm under the

circumstances of its use is properly denominated a deadly

weapon.” State v. Joyner, 295 N.C. 55, 64, 243 S.E.2d 367, 373

(1978).

While it is true that no witness saw Defendant use a weapon

to cut Shields, Clark testified that he saw a razor blade in

Defendant’s right hand moments after Defendant opened a five-

inch laceration on Shields’ face by means of a single punch

delivered with little force. The treating physician described

the wound as a “clean” cut, “almost surgical” in nature, and

“obviously” produced by “a very sharp blade, a very straight -5- blade, a knife, a razor blade, a box cutter.”1 We believe a

reasonable juror could find this circumstantial evidence more

than sufficient to establish Defendant’s use of a razor blade in

a manner rendering it a deadly weapon. See State v. Gilliland,

66 N.C. App. 372, 373, 311 S.E.2d 40, 41 (1984); see also State

v. Torain, 316 N.C. 111, 121, 340 S.E.2d 465, 471, cert. denied,

479 U.S. 836, 93 L. Ed. 2d 77 (1986).

Defendant next asserts that his trial attorney violated his

constitutional right to effective assistance of counsel by

allowing Burlington Police Officer Neal Doss to testify

regarding prior out-of-court statements made by Shields and

Clark on the night of the assault which were inconsistent with

their sworn testimony at trial. Noting Shields’ testimony that

he never saw Defendant with a weapon, Defendant faults counsel

for allowing Officer Doss to recount Shields’ statement that he

had been “cut” by Defendant while attempting to break up a

“fight” between Defendant and another party. Similarly, Officer

Doss testified that Shields and Clark both claimed to have seen

a female hand Defendant a razor blade before he struck Shields.

Given “the lack of evidence that [he] had a razor blade on that

evening,” Defendant faults his counsel for (1) failing to object

1 Defendant conceded at trial that Shields’ wounds would support a finding of “serious injury.” -6- when Officer Doss testified about these statements on direct

examination, and (2) calling additional attention to these prior

statements in cross-examining Officer Doss.

In reviewing claims of ineffective assistance of counsel,

we apply the two-part test established in Strickland v.

Washington, 466 U.S. 668, 80 L. Ed. 2d 674 (1984), and adopted

for state constitutional purposes in State v. Braswell, 312 N.C.

553, 562-63, 324 S.E.2d 241, 248 (1985). Defendant must show

that (1) his counsel’s performance fell “below an objective

standard of reasonableness[,]” and (2) “there is a reasonable

probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” State v.

Waring, 364 N.C. 443, 502, 701 S.E.2d 615, 652 (2010) (quoting

Strickland, 466 U.S. at 688, 694, 80 L. Ed. 2d at 693, 698),

cert. denied, __ U.S. __, 181 L. Ed. 2d 53 (2011) (quotation

Typically, claims of ineffective assistance of counsel are

more appropriately addressed in a collateral proceeding, which

allow for the development of additional evidence outside the

trial record. See State v. Lawson, 159 N.C. App. 534, 545, 583

S.E.2d 354, 361 (2003). However, such “claims brought on direct

review will be decided on the merits when the cold record -7- reveals that no further investigation is required[.]” State v.

Phillips, 365 N.C. 103, 144, 711 S.E.2d 122, 151 (2011)

(quotation omitted), cert. denied, __ U.S. __, 182 L. Ed. 2d 176

(2012). Moreover, under Strickland and its progeny, we “need

not determine whether counsel made errors if the record does not

show a reasonable probability that a different verdict would

have been reached in the absence of counsel’s deficient

performance.” State v. Banks, 163 N.C. App. 31, 36, 591 S.E.2d

917, 921, disc. review denied, 358 N.C. 377, 597 S.E.2d 767

(2004) (citing Braswell, 312 N.C. at 563, 324 S.E.2d at 248-49).

The record before this Court shows that, throughout

Defendant’s trial, his counsel pursued the strategy of

discrediting Shields and Clark in the eyes of the jury.

Highlighting the multiple inconsistencies between the in-court

and out-of-court statements of the complainants was an obvious

tactic in furtherance of this strategy. See generally State v.

Bishop, 346 N.C. 365, 387, 488 S.E.2d 769, 780 (1997) (stating

that “[p]rior statements of a witness which are inconsistent

with his present testimony are not admissible as substantive

evidence because of their hearsay nature[;] [e]ven so, such

prior inconsistent statements are admissible for the purpose of

impeachment”) (quotation omitted). Prior to Officer Doss’s -8- testimony, counsel had vigorously cross-examined Shields and

Clark about the discrepancies between their testimony and their

statements to investigators. Counsel elicited an admission from

Shields that he told the prosecutor that he knew Defendant “in

the community” and “had seen him at the club two times

before[,]” contradicting his testimony that he did not know and

had never seen Defendant prior to 24 June 2012. Shields further

conceded having told Officer Doss that Defendant “cut [him] with

a blade given to him by some unknown black female[,]” despite

the fact that he had not seen Defendant possess a weapon or

interact with a woman. Likewise, Clark admitted on cross-

examination that he “lie[d]” when he told police that he saw a

woman hand Defendant a razor. We believe that counsel’s use of

Officer Doss’s testimony as another opportunity to impeach the

complainants’ credibility was a sound tactical decision well

within the broad discretion granted to defense counsel under the

Sixth Amendment. See State v. Milano, 297 N.C. 485, 495, 256

S.E.2d 154, 160 (1979) (noting that “whether and how to conduct

cross-examination” is the “exclusive province of the lawyer

after consultation with his client”), overruled on other grounds

by State v. Grier, 307 N.C. 628, 300 S.E.2d 351 (1983). Indeed, -9- the jury acquitted Defendant of assaulting Clark with a beer

bottle.

Assuming arguendo counsel’s handling of Officer Doss’s

testimony was objectively unreasonable, we find no probability

that it impacted the verdict in this cause. The trial court

instructed the jury that it “must not consider [witnesses’]

earlier statements as evidence of the truth of what was said at

that earlier time because it was not made under oath at this

trial[,]” but could consider the consistency or inconsistency of

a prior statement “in deciding whether you will believe or

disbelieve the witness’s testimony.” Inasmuch as “[t]he law

presumes that the jury follows the judge’s instructions[,]”

State v. Hopper, 292 N.C. 580, 589, 234 S.E.2d 580, 585 (1977),

we deem this instruction sufficient to foreclose any showing of

prejudice from counsel’s supposed error, particularly under the

heightened Strickland standard. Defendant’s argument is

overruled.

NO ERROR.

Chief Judge MARTIN and Judge HUNTER, JR., concur.

Report per Rule 30(e).