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distinguishing Moorman where defense counsel's failure to recall a witness, standing alone, did not rise to the level of ineffective assistance of counsel
Summary of this case from State v. GivensOpinion
No. COA12–1123.
2013-05-21
STATE Of North Carolina v. William Andrew FLOYD.
Attorney General Roy Cooper, by Assistant Attorney General Brandon L. Truman, for the State. Rudolf Widenhouse & Fialko, by M. Gordon Widenhouse Jr., for defendant-appellant.
Appeal by defendant from judgment entered 20 September 2011 and order entered 1 February 2012 by Judge Douglas B. Sasser in Robeson County Superior Court. Heard in the Court of Appeals 13 March 2013. Attorney General Roy Cooper, by Assistant Attorney General Brandon L. Truman, for the State. Rudolf Widenhouse & Fialko, by M. Gordon Widenhouse Jr., for defendant-appellant.
HUNTER, JR., ROBERT N., Judge.
William Andrew Floyd appeals from judgment entered after a jury convicted him of voluntary manslaughter. Defendant contends: (i) he received ineffective assistance of counsel; (ii) the trial court erred by instructing the jury on false, contradictory, or conflicting statements; and (iii) the trial court erred by failing to consider a mitigating factor for sentencing. Upon review, we find no error.
I. Facts & Procedural History
On the night of 14 February 2007, Chris McGirt (“Chris”), and his girlfriend Sonya Smith (“Sonya”), planned to go to the movies for Valentine's Day. Around 7:00 PM, as Chris and Sonya pulled into the movie theater parking lot, Chris received a phone call from his friend Adam Rozier (“Adam”). Adam was upset because his girlfriend, Deidra Rogers, had broken up with him earlier that day.
After Chris and Sonya later married, she adopted the last name “McGirt.”
Chris and Sonya decided to forego the movie and instead invited Adam to Sonya's home for drinks. Adam arrived at Sonya's home around 8:00 PM with his friend Drew Floyd (“Defendant”). Shortly thereafter, Defendant's girlfriend Ashlee Hardin (“Ashlee”) also arrived. The five friends watched basketball, drank beer, and played cards for several hours. Adam drank to the point that he was unsteady on his feet.
Around 10:30 PM, while everyone was playing cards in Sonya's kitchen, Ashlee showed Defendant a text she received from an acquaintance, Chad Arnette (“Chad”). The text read: “What's up Pecan Tan.” Defendant became upset and texted Chad from Ashlee's phone, saying, “If you text her again, I'll kill you.” About ten minutes later, Chad called Ashlee's phone. Defendant angrily took Ashlee's phone and went outside to answer. Adam followed Defendant outside.
The nickname “Pecan Tan” is a reference to Ashlee's mixed race.
Defendant and Adam were outside for about ten minutes. During this time, Chris went outside to smoke a cigarette and heard Defendant tell Chad, “I told you more than twice not to call her or text her.” Defendant later passed the phone to Adam and returned inside. While inside, the friends could hear Adam outside yelling at Chad. Adam then came inside and told Defendant and Chris to come with him to Bo's Supermarket (“Bo's”) to confront Chad. Adam said even though Chad “would bring his boys with him,” they would still “whip his damn ass.”
Although Sonya and Ashlee asked Chris and Defendant not to go, their boyfriends ignored their pleas. Around 11:00 PM, Defendant, Adam, and Chris drove in Defendant's pickup truck to a parking lot near Bo's and Big Lots. Chad had already arrived in his pickup truck with his friend Lee Hunt (“Lee”).
Defendant parked his truck about ten feet from Chad's truck. The trucks were parallel, facing opposite directions. When Defendant, Adam, and Chris arrived, Chad got out of his truck holding a baseball bat. Defendant and Adam exited Defendant's truck to confront Chad; Chris walked toward Chad's truck to talk with Lee. Both Chris and Lee agreed they wanted to prevent their friends from escalating the conflict.
Trial testimony sometimes references the object as a tee ball bat.
For about ten minutes, Defendant and Adam argued with Chad about Chad's text to Ashlee. Adam also argued with Chad about an ongoing dispute between their families. During the encounter, Defendant and Adam were about ten feet from Chad. Chad repeatedly gestured at Defendant and Adam with the baseball bat, and they told Chad several times to put down the bat.
When Chad refused to drop the bat, Defendant retrieved a kitchen knife from his truck's bed. Chris quickly approached Defendant, grabbed the knife by the blade, and told Defendant, “that wasn't necessary, ... let's just forget it all happened and go home.” By this point, Lee had exited Chad's truck and was standing near Chad. Chris then put the knife on the roof or hood of Defendant's truck. Defendant replied, “[L]et's go; we're leaving.” Chad, Defendant, and Chris then moved toward their respective trucks to leave.
As Chad was getting back in his truck, Adam said “we're not through” and ran toward Chad. Defendant was unable to hold Adam back. When Adam swung his arms at Chad, Chad struck Adam with the bat at least three times. Chris ran over to Chad, grabbed the bat, and broke the bat on the pavement. By this point, Adam was on the ground and his head was bleeding from being struck with the bat.
After the scuffle, Chad said, “Oh shit. I've been cut.” Although no one testified seeing Defendant stab Chad, Chris testified he saw Defendant holding the knife after the fight. Chris also testified his pants were slashed by a knife during the scuffle. Chad and Lee then got in Chad's truck and drove away. Defendant, Chris, and Adam got in Defendant's truck and also drove away.
As Defendant drove out of the Bo's/Big Lots parking lot, he threw the knife out the window into nearby woods; he also threw another knife that was in the truck into a nearby field. Defendant then drove Adam to the hospital. Adam went into the emergency room, but came out shortly thereafter. He said he had washed his face and wanted to go home. Defendant then drove everyone back to Sonya's home. When Sonya heard about the night's events, she was so mad she threw a beer bottle at Adam. Defendant, Adam, and Ashlee soon left. Chris showered and went to bed at Sonya's home.
Meanwhile, directly after the encounter in the parking lot, Chad drove away in his truck with Lee. He told Lee he was driving to the hospital because of his stab wound. When Lee asked to see Chad's wound, he observed a gash on Chad's lower stomach with internal organs protruding out. Given the wound's severity, Lee asked to drive. However, Chad fainted before Lee could take the wheel, and the truck crashed into an Aaron's Rental store. With Chad still unconscious, Lee called 911. Both EMS and Lumberton Police Officer Howard Reaves (“Officer Reaves”) soon arrived at the crash scene around 1:15 AM. EMS took Chad to Southeastern Regional Medical Center. Officer Reaves then spoke with Lee. Lee recounted the incident at the Bo's/Big Lots parking lot.
Officer Reaves then called Officer Jonathan Smith (“Officer Smith”) to the scene. Since Officer Smith knew Defendant, Adam, and Chris, he tried to contact them about the night's events. In the early morning hours of 15 February, Defendant and Adam met Officer Reaves, Officer Smith, and Lieutenant Johnny Barnes at a nearby Wal–Mart parking lot. The police took Defendant and Adam to the police station for further questioning. Lee also went to the police station later that night to provide a statement of the night's events. Around 2:30 or 3:00 AM, police drove to Sonya's home to take Chris to the police station for questioning.
Meanwhile, at the hospital, doctors discovered Chad's stab wound penetrated his colon, small bowel, and right common iliac artery, causing severe internal bleeding. The wound was 4 centimeters long, 1.5 centimeters wide, and 10 centimeters deep. Chad died of blood loss later that night.
At the police station, Officer Reaves began interviewing Defendant at 4:25 AM. Defendant received Miranda warnings and waived his rights prior to the interview's start. In his first statement to Officer Reaves, Defendant admitted to picking up the knife and telling Chad, “All right, let's play this game ... I'm ready, let's play this game.” Defendant also acknowledged that after the physical altercation, Chad said “somebody stabbed me.” However, Defendant did not say who stabbed Chad.
By this point, Defendant's father had come to the police station. Officer Reaves let Defendant talk with his father for a few minutes. Defendant's father then left the interview room and Officer Reaves continued questioning Defendant.
Officer Reaves wrote down Defendant's new statement while Defendant talked:
My name is William Andrew Floyd. People call me Drew. I was born in Lumberton 11/5/1984. I am 22 years old. Sergeant Howard Reeves [sic] read my rights to me and I understand my rights. No promises or threats have been made to me. This is my second statement that I gave to Howard Reeves [sic].
I am sorry for lying on the first statement. I was scared. All of the rest of my statement is true. The only thing that—that—the only thing is that when Chad was hitting Adam, I was scared he was going to kill Adam. I just ran up to Chad and stabbed him. I didn't mean to. I looked at the knife and I didn't see anything on it, so I was not sure if I stabbed him.
After I stabbed Chad, he said he had to go. He said he had been stabbed and Chad got in his truck and left. Me, Chris, and Adam got in my truck and we left. I drove behind Big Lots and I thought, I need to get rid of this shit. So I threw the knife I used to stab Chad out of my truck into some woods.
When Chad was beating Adam with the ball bat, I ran toward Chad with the knife and Chris ran toward Chad. Chris took the bat from Chad. I stabbed Chad but I didn't think I did. It happened so fast and I couldn't tell until Chad said he had been stabbed. Chad—Chad said, “You stabbed me.”
Then we got to the Regan Church Road, I threw another knife out of the truck into a field. Adam told me we needed to get rid of another knife that was in my truck. I said, “Why?” Nothing was done with this knife, but I threw it in the field anyway.
....
Me, Adam, and Chris went to Big Lots parking lot to meet with Chad. When we got there, we argued with Chad. I argued with Chad, and Adam and Chad argued. Adam and Chad started fighting. Chad hit Adam with a ball bat. I ran up to Chad and stabbed Chad. Chris took the ball—correction, Chris took the bat from Chad. Chad said, “You stabbed me,” and he got in his truck and left.
We got in my truck and we left. I threw the knife I used to stab Chad in some woods behind Big Lots.
Defendant signed this statement. Defendant was then arrested and charged with second degree murder.
The case came on for jury trial during the 22 August 2011 session of Robeson County Superior Court. Defendant's main defense at trial was that he only stabbed Chad to defend Adam. In this light, Defendant's lawyer made the following remarks during his opening statement:
They went out there that night, and I think it's important when you hear Drew Floyd, you're going to hear what was going through his mind. Chad had a reputation for fighting. Drew was afraid of him, but when they went out there, when he said this meeting was arranged to go out there, Drew had come in the house and the conversation was between Adam and Chad, and you will hear that Adam and Chad had had words before.
During the state's case-in-chief, the prosecutor called Officer Smith. On cross-examination, Defendant's lawyer tried to elicit testimony of Chad's reputation for violence. The state objected, and outside the jury's presence Defendant's lawyer told the trial court:
[Defense Counsel]: I've already stood up in front of this jury and told them that my client's going to testify and that my client is going to testify that he was afraid of this man and that the reason he was afraid of him was his reputation, and you know, and it was widely known in this community.
Based on that, I have a right to put in how he would know about that reputation, and it's a perfectly permissible question along those lines. Now, if you want to put him on the stand, then reserve the subpoena and call him back, it's only going to have a more dramatic effect then, but I'll do it then.
THE COURT: At this point, that would be the appropriate timing under the rules. Court's going to sustain the objection at this time.
Despite this exchange, defense counsel never re-called Officer Smith to testify during Defendant's case-in-chief.
At the close of all the evidence, the trial court conducted a charge conference outside the jury's presence. During the charge conference, the State requested pattern jury instructions on false, contradictory, or conflicting statements. The following exchange then occurred:
[The State]: Yes, sir. State would also ask for 105.21, false, contradictory, or conflicting statements of the defendant. Now, the defendant has given two statements, and, in fact, in one of them he acknowledges that the other one was a lie, and they do differ in, as the charge says, highly relevant facts proven at trial. They're not entirely irrelevant, according to the charge, without substantial probative force, but they do tend to show a consciousness of guilt. The charge says the State contends and the defendant denies that the defendant made false, contradictory, and conflicting statements. If you find that the defendant made such statements, they may be considered by you as a circumstance tending to reflect the mental process of a person possessed of a guilty conscience seeking to divert suspicion or to exculpate the person, and you should consider that evidence, along with all the other believable evidence in this case. However, if you find that the defendant made such statements, they do not create a presumption of guilt, and such evidence, standing alone, is not sufficient to establish guilt. And I would drop the last sentence in that. That's in parentheses because that goes only to first degree where it says such evidence may not be considered as tending to show premeditation and deliberation. I believe that that should be removed since that's not an element of these charges.
THE COURT: All right. [Defense counsel], as to the State's request?
[Defense Counsel]: We oppose it.
THE COURT: Sir?
[Defense Counsel]: We oppose it.
THE COURT: [The State]?
[The State]: Yes, sir.
THE COURT: My concern, again looking at the instructions: Note well: This instruction is—all caps—only proper where the defendant's statement and/or trial testimony is contradictory to highly relevant facts proven at trial.
[The State]: Correct.
THE COURT: The last sentence is—again, all caps—extreme care should also be taken to assure that the defendant's Fifth Amendment right to remain silent is not used against the defendant.
[The State]: And, Your Honor, it relates specifically and clearly to the two different statements he made, and it is extremely important in this, especially since the Court has allowed, and is giving a charge, as well, to the bolstering of the defendant's honesty, which, again, he did not testify—that's true—so, it's bolstering his statements, which are the only contact he had with saying anything about this case.
Now, these two statements are contradictory, and he relates that in the second statement, and they're contradictory as to him stabbing the victim. It cannot be more relevant. It cannot be more critical, and the jury should know that they can consider that. I'm not asking for any more than the facts show, but to delete that after all this bolstering evidence that was put in, I think would actually be a miscarriage of justice in that the jury hears all that, has these two statements, knows they're different, and then has five witnesses bolstering that he's telling the truth, not knowing anything about the case.
I believe that, in all fairness, and truthfully, this would go some way towards making it somewhat fair—not beyond that—but this instruction clearly should be used. This is just the kind [of] case in which it should be used, and I would note—it says, however, if you find that the defendant made such statements. That was the testimony. He made these statements. It was clear. They were differentiated. The detective testified—Officer Reaves—Sergeant Reaves—that he made one, then he made the second after a break when he talked to his father, and that he did relate the difference.
I mean, when acknowledged by a defendant that one was a lie, I do believe that we have every right to ask for this charge, which doesn't add anything to the evidence. It merely explains how to interpret it, or that they may interpret it that way, like all the other charges.
It doesn't prejudice the defendant in any way, and it doesn't suggest testimony in any way. It always refers—only refers to statements.
THE COURT: All right. [Defense counsel]?
[Defense Counsel]: Your honor, I just feel like the Court would err in doing that.
THE COURT: I'll allow the State's request for including the instruction 105.21, deleting the last sentence of that instruction.
[The State]: Yes, sir. I think that's the only other
[Defense Counsel]: Please note our exception.
THE COURT: So noted.
[The State]: I think those are the only other requests I have, short of the substantives.
The trial court subsequently gave the requested instruction on false, contradictory, or conflicting statements.
The jury found Defendant guilty of voluntary manslaughter. During the sentencing hearing, Defendant asked the trial court to consider Mitigating Factor No. 11 (“The defendant voluntarily acknowledged wrongdoing in connection with the offense to a law enforcement officer.”). Specifically, Defendant referenced his second statement to Officer Reaves. The trial court did not consider this statement as a mitigating factor. On 20 September 2011, the trial court sentenced Defendant to imprisonment for a minimum of 45 months and a maximum of 63 months. This sentence was below the presumptive range, based on several other mitigating factors.
On 29 September 2011, Defendant filed a motion for appropriate relief in Robeson County Superior Court. He requested a new trial because the trial court refused to admit evidence of Chad's character for violence. Defendant contended this evidence was relevant for determining: (i) whether Defendant or Chad was the first aggressor; and (ii) whether Defendant used excessive force to defend Adam. Officer Smith provided an affidavit of his proposed testimony that accompanied Defendant's motion. The trial court denied this motion in an order entered 1 February 2012.
On 14 February 2012, Defendant filed timely notice of appeal of his conviction for voluntary manslaughter and the trial court's order denying his motion for appropriate relief.
Although Defendant's notice of appeal mentions the order denying his motion for appropriate relief, Defendant does not make any arguments regarding this order in his appellate brief. In fact, in his appellate brief Defendant states, “it appears the trial court correctly denied them [sic] motion.” Consequently, we decline to further address the trial court's order denying Defendant's motion for appropriate relief.
II. Jurisdiction and Standard of Review
This Court has jurisdiction to hear the instant case pursuant to N.C. Gen.Stat. § 7A–27(b) (2011).
“A criminal defendant has a constitutional right to the effective assistance of counsel.” State v. Redman, ––– N.C.App. ––––, ––––, 736 S.E.2d 545, 550 (2012) (citing State v. Braswell, 312 N.C. 553, 561, 324 S.E.2d 241, 247 (1985)). “The standard of review for alleged violations of constitutional rights is de novo.” State v. Graham, 200 N.C.App. 204, 214, 683 S .E.2d 437, 444 (2009), appeal dismissed and disc. rev. denied,363 N.C. 857, 694 S.E.2d 766 (2010); see also Piedmont Triad Reg'l Water Auth. v. Sumner Hills Inc., 353 N.C. 343, 348, 543 S.E.2d 844, 848 (2001) (“[D]e novo review is ordinarily appropriate in cases where constitutional rights are implicated.”).
Additionally, “[a]s a question of law, this Court reviews the sufficiency of jury instructions de novo.” State v. Boyd, ––– N.C.App. ––––, ––––, 714 S.E.2d 466, 471 (2011). “ ‘Under a de novo review, the court considers the matter anew and freely substitutes its own judgment’ for that of the lower tribunal.” State v. Williams, 362 N.C. 628, 632–33, 669 S.E.2d 290, 294 (2008) (quoting In re Greens of Pine Glen Ltd., 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003)).
“When a defendant assigns error to the sentence imposed by the trial court, our standard of review is ‘whether [the] sentence is supported by evidence introduced at the trial and sentencing hearing .’ “ State v. Deese, 127 N.C.App. 536, 540, 491 S.E.2d 682, 685 (1997) (quoting N.C. Gen.Stat. § 15A–1444(a1) (Cum.Supp.1996) (alteration in original))
III. Analysis
On appeal, Defendant makes three arguments: (i) Defendant received ineffective assistance of counsel when his lawyer failed to call Officer Smith during Defendant's case-in-chief; (ii) the trial court erred by instructing the jury on false, contradictory, or conflicting statements; and (iii) the trial court erred by failing to consider Defendant's prior acknowledgment of wrongdoing as a mitigating factor in sentencing. Upon review, we find no error.
A. Ineffective Assistance of Counsel
Defendant first argues he received ineffective assistance of counsel when his lawyer failed to call Officer Smith to testify about Chad's reputation for violence. We disagree.
In North Carolina,
[t]o successfully assert an ineffective assistance of counsel claim, defendant must satisfy a two-prong test. First, he must show that counsel's performance fell below an objective standard of reasonableness. Second, once defendant satisfies the first prong, he must show that the error committed was so serious that a reasonable probability exists that the trial result would have been different absent the error. However, 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. This determination must be based on the totality of the evidence before the finder of fact.
State v. Batchelor, 202 N.C.App. 733, 739, 690 S.E.2d 53, 57 (2010) (citations and quotation marks omitted). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland v. Washington, 466 U.S. 668, 694 (1984). Our appellate courts “engage[ ] in a presumption that trial counsel's representation is within the boundaries of acceptable professional conduct” when reviewing ineffective assistance of counsel claims. State v. Roache, 358 N.C. 243, 280, 595 S.E.2d 381, 406 (2004) (citation omitted).
Defendant contends Officer Smith's testimony was crucial to his “defense of another” argument. It is well-established in North Carolina that “[a] person has the right to kill not only in his own self-defense but also in the defense of another.” State v. McKoy, 332 N.C. 639, 643, 422 S.E.2d 713, 716 (1992). “[W]hen [defense of another] is raised as a defense, the defendant may produce evidence of the victim's character tending to show, ‘(1) that the victim was the aggressor or (2) that [the] defendant had a reasonable apprehension of death or bodily harm, or both.’ “ State v. Corn, 307 N.C. 79, 85, 296 S.E.2d 261, 266 (1982) (quoting 1 Brandis on North Carolina Evidence, § 106 (2d rev. ed.1982)).
In the present case, Defendant contends he received ineffective assistance of counsel because his lawyer failed to call Officer Smith to testify about Chad's reputation for violence. We disagree.
Defendant relies on State v. Moorman, 320 N.C. 387, 358 S.E.2d 502 (1987), to argue his lawyer provided ineffective assistance. Specifically, Defendant contends his lawyer's failure to call Officer Smith fell below an objective standard of reasonableness because it undermined the credibility of Defendant's “defense of another” argument. See id. at 400, 358 S.E.2d at 510 (“If the fact finder loses confidence in the credibility of the advocate, it loses confidence in the credibility of the advocate's cause.”). However, Moorman is distinguishable from the instant case.
In Moorman, the lawyer representing a man accused of rape promised evidence that the defendant was physically incapable of rape; however, he failed to produce the evidence at trial. Id. at 393, 358 S.E.2d at 506. Although our Supreme Court determined the defendant received ineffective assistance of counsel, the lawyer's failure to produce the promised evidence was only one factor in this determination. See id. at 393, 358 S.E.2d at 506. Our Supreme Court also analyzed how:
(1) [defense counsel] did not appear to be listening to the state's case; (2) [defense counsel] was generally disheveled or rumpled in his appearance, clothing and hair; (3) [defense counsel] exhibited marked mood changes-there were times when he appeared alert and aggressive and other times when he appeared lethargic and even drowsy; and (4) [defense counsel] appeared to be asleep during the cross-examination of defendant.
Id. In the instant case, none of these additional circumstances are present. Since there exists “a presumption that trial counsel's representation is within the boundaries of acceptable professional conduct,” we conclude Defendant's reliance on Moorman is unfounded. Roache, 358 N.C. at 280, 595 S.E.2d at 406.
We acknowledge Officer Smith's testimony could have aided Defendant's “defense of another” argument; however, we do not believe defense counsel's failure to re-call Officer Smith, standing alone, rises to the level of ineffective assistance of counsel. Defense counsel's conduct, although not the best practice, does not “f[a]ll below an objective standard of reasonableness.” Batchelor, 202 N.C.App. at 739, 690 S.E.2d at 57.
Furthermore, even if Defendant's lawyer erred by failing to call Officer Smith, this error was not prejudicial because the jury was already presented with evidence that Chad was a violent person.
For instance, Chris testified Adam said Chad would “bring his boys with him” to the parking lot encounter, suggesting Chad intended to fight. When Defendant, Adam, and Chris arrived at the Bo's/Big Lots parking lot, they saw Chad holding a baseball bat. Throughout the parking lot encounter, Chad gestured at Defendant and Adam with the bat to the point where they felt threatened. During the scuffle with Adam, Chad continued to hit Adam with the bat even after Adam was no longer a threat.
Additionally, Officer Smith's testimony would likely have provided only limited support of Defendant's “defense of another” argument. In his affidavit supporting Defendant's motion for appropriate relief, Officer Smith crossed out certain statements:
4. I have known Chad Arnette since grade school as well. If asked about his reputation for fighting and/or violence, I would have answered that I am familiar with his rep[u]tation for same. I would have stated that Chad has a bad reputation for fighting and violent behavior. ....
5. Furthermore, it would be my opinion that [Defendant] would know of Chad Arnette's reputation for fighting and violent behavior.
Officer Smith's deletion of these statements indicates his unwillingness to testify about the extent of Chad's reputation for violence.
Consequently, we conclude Defendant did not receive ineffective assistance of counsel.
B. Jury Instruction on False, Contradictory, or Conflicting Statements
Next, Defendant argues the trial court erred by instructing the jury on false, contradictory, or conflicting statements. We do not agree.
1. Argument Preserved
Preliminarily, we determine Defendant has preserved this argument for appeal under North Carolina Rule of Appellate Procedure 10(a)(2) (“A party may not make any portion of the jury charge or omission therefrom the basis of an issue presented on appeal unless the party objects thereto. stating distinctly that to which objection is made and the grounds of the objection.”). N.C. R.App. P. 10(a)(2). In reaching this conclusion, we examine the context of Defendant's objection.
In the charge conference, after the state proposed the jury instruction, Defendant's lawyer twice objected by saying, “We oppose it.” The trial court then expressed that, “[m]y concern, again looking at the instructions: Note well: This instruction is-all caps-only proper where the defendant's statement and/or trial testimony is contradictory to highly relevant facts proven at trial.” The trial court further elaborated that, “[t]he last sentence is—again, all caps—extreme care should also be taken to assure that the defendant's Fifth Amendment right to remain silent is not used against the defendant.” After the trial court expressed its concern, Defendant's lawyer stated, “I just feel like the Court would err in [using this jury instruction].” The trial court then allowed the pattern jury instruction on false, contradictory, or conflicting statements. Defendant's lawyer once again stated, “Please note our exception.” In the context of the entire discussion, we conclude defense counsel's objection adopted the trial court's concerns.
2. No Error
Although we conclude Defendant preserved his argument for appeal, we do not find the argument meritorious.
During its jury instructions, the trial court issued pattern jury instruction 105.21 on false, contradictory, or conflicting statements:
The State contends and the defendant denies that the defendant made false, contradictory or conflicting statements. If you find that the defendant made such statements, they may be considered by you as a circumstance tending to reflect the mental process of a person possessed of a guilty conscience, seeking to divert suspicion or to exculpate the person, and you should consider that evidence, along with all the other believable evidence in this case. However, if you find that the defendant made such statements, they do not create a presumption of guilt, and such evidence, standing alone, is not sufficient to establish guilt.
See N.C.P.I.-Crim. 105.21 (2012).
“Our Supreme Court has held that false, contradictory, or conflicting statements made by an accused concerning the commission of a crime may be considered as a circumstance tending to reflect the mental processes of a person possessed of a guilty conscience seeking to divert suspicion and to exculpate himself.” State v. Scercy, 159 N.C.App. 344, 353, 583 S.E.2d 339, 344 (2003); see also State v. Myers, 309 N.C. 78, 86, 305 S.E.2d 506, 511 (1983) (“The probative force of such evidence is that it tends to show consciousness of guilt.”). “The instruction is proper not only where defendant's own statements contradict each other but also where defendant's statements flatly contradict the relevant evidence .” Scercy, 159 N.C.App. at 353, 583 S.E.2d at 344.
Still, “a trial judge should not give instructions to the jury which are not supported by the evidence produced at the trial.” State v. Cameron, 284 N.C. 165, 171, 200 S.E.2d 186, 191 (1973). Additionally, the trial court may only issue this jury instruction if the defendant's statement is relevant to proving he or she committed the crime at hand. State v. Walker, 332 N.C. 520, 537, 422 S.E.2d 716, 726 (1992).
In the instant case, we conclude the trial court's use of the pattern jury instruction on false, contradictory, or conflicting statements is supported by the evidence at trial. See Cameron, 284 N.C. at 171, 200 S.E.2d at 191.
In his first statement to Officer Reaves, Defendant avoided saying who stabbed Chad. However, in his signed second statement, Defendant expressly stated:
I am sorry for lying on the first statement. I was scared. All of the rest of my statement is true. The only thing—that—the only thing is that when Chad was hitting Adam, I was scared he was going to kill Adam. I just ran up to Chad and stabbed him. I didn't mean to. I looked at the knife and I didn't see anything on it, so I was not sure if I stabbed him.
In sum, Defendant admitted: (i) he provided two statements; (ii) he lied in the first statement; and (iii) he told the truth in the second statement. Therefore, the trial court did not err in determining he made two conflicting statements. Furthermore, Defendant's statement is fundamentally relevant to proving he committed the crime at hand. See Walker, 332 N.C. at 537, 422 S . E.2d at 726. Specifically, in his second statement Defendant explicitly admitted “I just ran up to Chad and stabbed him.”
Consequently, we conclude the trial court did not err in instructing the jury on false, contradictory, or conflicting statements.
C. Mitigating Factor for Sentencing
Lastly, Defendant argues the trial court erred by failing to consider his voluntary acknowledgment of wrongdoing as a mitigating factor for sentencing. We disagree.
In North Carolina, when a trial court imposes a sentence outside the presumptive range, it must consider evidence of mitigating factors. SeeN.C. Gen.Stat. § 15A–1340.16(a) (2011) (“The court shall consider evidence of aggravating or mitigating factors present in the offense that make an aggravated or mitigated sentence appropriate, but the decision to depart from the presumptive range is in the discretion of the court.”). “[T]he offender bears the burden of proving by a preponderance of the evidence that a mitigating factor exists.” Id.
One statutory mitigating factor is that “[p]rior to arrest or at an early stage of the criminal process, the defendant voluntarily acknowledged wrongdoing in connection with the offense to a law enforcement officer.” N.C. Gen.Stat. § 15A–1340.16(e)(11) (2011). Our state's appellate courts routinely remand for resentencing when trial courts fail to consider evidence of this mitigating factor. See State v. Daniel, 319 N.C. 308, 312, 354 S.E.2d 216, 219 (1987); State v. Winnex, 66 N.C.App. 280, 283, 311 S.E.2d 594, 596 (1984).
However, before trial courts consider this mitigating factor, defendants must still prove they actually acknowledged culpability for the criminal offense. See State v. Brewington, 71 N.C.App. 442, 444, 322 S.E.2d 205, 207 (1984) ( “[A]n acknowledgement of wrongdoing connotes an admission of culpability, responsibility or remorse. At the very least, the statutory language requires an admission of guilt.” (internal citation omitted)). Where defendants admitted the underlying facts of the offense but offered an affirmative defense, we have held trial courts did not err by declining to consider this mitigating factor. See State v. Clark, 314 N.C. 638, 643, 336 S.E.2d 83, 86 (1985) (upholding the trial court's decision not to consider this mitigating factor when the defendant admitted shooting the victim but argued self-defense); State v. Jones, 83 N.C.App. 593, 605, 351 S.E.2d 122, 129–30 (1986); State v. Michael, 311 N.C. 214, 221, 316 S.E.2d 276, 280–81 (1984) (holding that when the defendant admitted to shooting the victim but argued the shooting was accidental, there was no admission of wrongdoing).
In the present case, Defendant argues the trial court erred by failing to consider his admission to Officer Reaves that he stabbed Chad as a mitigating factor. We find Defendant's argument unpersuasive.
In Defendant's second statement to Officer Reaves, he unequivocally stated, “I just ran up to Chad and stabbed him.” However, at trial Defendant pled not guilty based on the affirmative defense of defense of another person. Specifically, Defendant argued he only stabbed Chad to protect Adam. In his closing argument, Defendant's lawyer succinctly stated that, “the most important thing ... is that this is a case that cries for defense of another person.”
After the jury found Defendant guilty of voluntary manslaughter, the trial court sentenced Defendant below the presumptive range based on several mitigating factors. However, the trial court declined to find as a mitigating factor that Defendant “voluntarily acknowledged wrongdoing in connection with the offense to a law enforcement officer.”
Even though Defendant admitted to stabbing Chad, we determine he did not acknowledge culpability because throughout the trial he offered the affirmative argument that he was defending Adam. See Clark, 314 N.C. at 643, 336 S.E.2d at 86;Jones, 83 N.C.App. at 605, 351 S.E.2d at 129–30;Michael, 311 N.C. at 221, 316 S.E.2d at 280–81. Thus, Defendant did not prove the mitigating factor by a preponderance of evidence. SeeN.C. Gen.Stat. § 15A–1340.16(a) (2011). Therefore, we conclude the trial court did not err by declining to consider his admission as a statutory mitigating factor.
IV. Conclusion
Consequently, we conclude: (i) Defendant did not receive ineffective assistance of counsel; (ii) the trial court did not err by instructing the jury on false, contradictory, or conflicting statements; and (iii) the trial court did not err by failing to consider Defendant's voluntary acknowledgment of wrongdoing as a mitigating factor during sentencing. For the foregoing reasons, we find
NO ERROR. Judges BRYANT and McCULLOUGH concur.
Report per Rule 30(e).