Opinion
No. 07-97.
Filed July 3, 2007.
Halifax County No. 03-CRS-54974.
Appeal by defendant from judgment entered 14 October 2004 by Judge Cy A. Grant in Halifax County Superior Court. Heard in the Court of Appeals 11 June 2007.
Attorney General Roy Cooper, by Assistant Attorney General Charles E. Reece, for the State. Leslie C. Rawls for defendant-appellant.
Defendant was charged with first degree murder and was found guilty of voluntary manslaughter. He was sentenced on 14 October 2004 to active imprisonment for a minimum of 103 months and a maximum of 133 months. His petition for a writ of certiorari was allowed by this Court on 28 August 2006.
The evidence for the State tends to show that at approximately 11:45 p.m. on 24 July 2003, defendant rode his bicycle onto Martin Luther King Avenue in Enfield and stopped in front of a yard where a group of young men had congregated. Defendant and Donail Benjamin ("Benjamin"), who was among the group of young men, engaged in a verbal exchange. Defendant pulled out a .25 caliber handgun from his waistband. Defendant fired multiple shots at Benjamin. As Benjamin lay bleeding on the ground, defendant mounted his bicycle and rode away. Benjamin died at approximately 2:00 a.m. on 25 July 2004. The pathologist who conducted the autopsy on Benjamin testified that Benjamin sustained three bullet wounds, one to the abdomen, one to the right leg, and one to the left leg. The bullet to the abdomen pierced the abdominal aorta, resulting in acute hemorrhaging and Benjamin's death.
Defendant subsequently turned himself in to the police. After initially giving a statement denying that he shot Benjamin, he gave a second statement in which he asserted he shot Benjamin in self-defense. One witness testified on defendant's behalf that he saw Benjamin reach into a mailbox and grab a gun and that defendant and Benjamin shot guns at each other.
Defendant contends the court committed plain error by allowing Enfield Police Chief Alan Exum to testify, in response to the prosecutor's question, "[w]hat happened next.":
There was talk about the Carriage House apartments, him being holed up in an apartment somewhere over there. Witnesses had seen him come over there bragging about he had just laid him a — down, something to that fact.
He argues the testimony was inadmissible hearsay and was not relevant to any issue at trial.
Plain error is defined as one which is "so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached." State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244, 251 (1987), cert. denied, 485 U.S. 1036, 99 L. Ed. 2d 912 (1988). Hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.C. Gen. Stat. § 8C-1, Rule 801(c) (2005). If the testimony is offered for a purpose other than to show the truth of the matter asserted, then it is not hearsay and is admissible. State v. Coffey, 326 N.C. 268, 282, 389 S.E.2d 48, 56 (1990). One such admissible purpose long recognized by our Supreme Court is "to explain the subsequent conduct of the person to whom the statement was made." State v. White, 298 N.C. 430, 437, 259 S.E.2d 281, 286 (1979). We have held that evidence that explains an officer's conduct in investigating a crime is relevant and admissible. State v. Ferguson, 105 N.C. App. 692, 695, 414 S.E.2d 769, 770-71 (1992).
Here, Chief Exum testified that as a result of hearing this statement, he and a couple of officers went to the Carriage House Apartments searching for the suspect. We hold the court properly admitted the evidence to explain his subsequent conduct, and we overrule this assignment of error.
Defendant next contends that he was deprived of his right to effective assistance of counsel when counsel failed to object to and move to strike the foregoing testimony of Chief Exum. To establish a claim of ineffective assistance of counsel, a defendant must show that (1) counsel's performance was deficient and (2) his defense was prejudiced by counsel's deficient performance. State v. Braswell, 312 N.C. 553, 563, 324 S.E.2d 241, 248-49 (1985). This showing cannot be made by defendant because, as we have held above, the court properly admitted the evidence. This assignment of error is overruled.
No error.
Judges CALABRIA and JACKSON concur.
Report per Rule 30(e).