Opinion
No. COA02-552
Filed 7 January 2003 This case not for publication
Appeal by defendant from judgment entered 6 December 2001 by Judge Lindsay R. Davis, Jr., in Forsyth County Superior Court. Heard in the Court of Appeals 23 December 2002.
Attorney General Roy Cooper, by Special Deputy Attorney General Ted R. Williams, for the State.
Reita P. Pendry for defendant appellant.
Forsyth County No. 01CRS52874.
On 30 July 2001, defendant Keshonn J. Galloway was indicted for robbery with a dangerous weapon. The case was tried at the 3 December 2001 Criminal Session of Forsyth County Superior Court. The State presented evidence at trial which tended to show the following: On 7 February 2001, Bryant Hardy was working at the Friendly Food Mart in Winston-Salem, North Carolina. At approximately 9:30 or 10:00 p.m., a lone black male approached the register and got in line. After the person in front of him left the store, the man asked Hardy for a pack of cigarettes. Hardy turned to retrieve the pack of cigarettes, and when he turned back around, the man was pointing a gun at him. Hardy put his hands up, and the man told him to put his hands down and demanded that Hardy give him the money. Hardy opened the register drawer, pulled out the "till," and started taking the money out and handing it to the man. The man then asked for his wallet, and Hardy told him he did not have any money on him. The man then told Hardy to turn around and get on the floor, and threatened to shoot him if he got up. The man then ran out of the store.
Hardy called the police, and Officer Todd C. Hart of the Winston-Salem Police Department responded to the call within five minutes of the robbery. Hardy gave a description of the robber to Officer Hart, stating that the man was a black male, approximately 6' to 6'2" tall, 175 to 180 pounds, twenty-seven to thirty years of age, wearing sunglasses and a toboggan with plats hanging over his ears. Hardy also noted that the man's bottom lip was pink and "stood out from everything else."
A few weeks later, Detective C.W. Fine of the Winston-Salem Police Department, who was investigating the robbery, received a report that a fingerprint found at the Food Mart was identified as belonging to defendant. Subsequently, on 8 March 2001, Detective Fine prepared a photographic lineup including defendant and showed it to Hardy. Hardy told Detective Fine that defendant's face "looked familiar." When questioned further, Hardy stated that defendant's picture was familiar from "[w]hen he robbed me, when he came into the store with the gun." Hardy then testified that Detective Fine told him that defendant's fingerprints had been "pulled . . . off of the door of the store." However, Detective Fine denied telling Hardy this information. At trial, Hardy again identified defendant as the robber.
Defendant offered evidence by calling his sister to the witness stand. She testified that defendant was at her home during the time of the alleged robbery. Defendant watched her children for her while she was at work. On the night in question she returned home around 7:45 p.m. She lived two blocks from the convenience store and frequented the establishment. Defendant's sister also noted that defendant was missing several of his teeth, most notably his front teeth. She testified that this was very noticeable.
Defendant was convicted of robbery with a dangerous weapon and sentenced to a term of 96 to 125 months' imprisonment. Defendant appealed.
Defendant argues the trial court erred by denying his motions to dismiss the indictment for insufficient evidence because the State failed to prove that he was the perpetrator of the charged offense. Defendant further argues that his trial counsel was ineffective in failing to ask for instructions on identification, on the theory of defense (alibi), and on the impeachment of the government's eyewitness with prior criminal convictions. For the reasons herein we disagree with defendant's argument and conclude he received a trial free from error.
I.
Defendant first argues that there was insufficient evidence presented identifying him as the perpetrator of the robbery to sustain the conviction. Defendant contends that Hardy's eyewitness testimony was unreliable, noting that: (1) Hardy only had a limited opportunity to view the robbery; (2) there were inconsistencies and inaccuracies in his in-court identification; (3) the in-court identification occurred ten months after the robbery; and (4) Hardy's testimony was "equivocal and was bolstered by improper police procedures." Defendant further argues that the fingerprint identification was flawed because there was no testimony that defendant could have only left the print on the store's door at the time of the robbery.
After careful review of the record, briefs, and contentions of the parties, we find no error. This Court has stated:
"In ruling upon a motion to dismiss, the trial court must determine whether, `upon consideration of all of the evidence in the light most favorable to the State, there is substantial evidence that the crime charged . . . was committed and that defendant was the perpetrator.'" Questions of credibility and the proper weight to be given eyewitness identification testimony are for the jury to decide. "In determining whether a witness' identification testimony is inherently incredible requiring dismissal, the test is whether `there is a reasonable possibility of observation sufficient to permit subsequent identification.'"
State v. Smith, 130 N.C. App. 71, 78, 502 S.E.2d 390, 395 (1998) (citations omitted). Here, Hardy testified that he looked at defendant during the robbery, that defendant was not wearing a disguise, and that he was able to give a description of defendant that varied little from his actual appearance. After the robbery, Hardy was able to pick defendant out of a photographic lineup. Although defendant contends that Hardy's identification was improperly bolstered because Hardy was told that defendant's fingerprints had been lifted from the store, the purported comment was made after Hardy identified defendant's picture. Thus, defendant has failed to show that the identification evidence was "inherently incredible." Id. Defendant further argues that there were discrepancies in Hardy's testimony and identification of him. However, Hardy's "credibility and the weight to be accorded his identification testimony were for the jury to determine." Id. Moreover, defendant's fingerprints were found on the door to the store, and there was no evidence presented suggesting that defendant had ever been in the store prior to the robbery. Accordingly, in the light most favorable to the State, we conclude there was sufficient evidence to sustain the conviction. Defendant's first assignment of error is overruled.
II.
We next consider whether defendant received ineffective assistance of counsel because his attorney failed to ask for certain jury instructions. Specifically, defendant contends that counsel failed to request instructions that: (1) the State must prove the identity of defendant as the perpetrator of the crime beyond a reasonable doubt; (2) the burden of proving an alibi does not rest upon defendant, but that the State must prove that defendant was present at and participated in the crime charged; and, (3) the prior criminal convictions of Hardy, the State's only witness to the robbery, bore on his truthfulness. Defendant argues that counsel's errors deprived him of a fair trial. We are not persuaded.
We initially note that, although the preferred method for raising ineffective assistance of counsel is by a motion for appropriate relief made in the trial court, a defendant's 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." State v. Fair, 354 N.C. 131, 166, 557 S.E.2d 500, 524 (2001), cert. denied, ___ U.S. ___, 153 L.Ed.2d 162 (2002). A review of the record in the case sub judice reveals that defendant's claim of ineffective assistance of counsel can be determined without further development of the record, and thus it is proper to address it at this time.
To obtain relief for ineffective assistance of counsel, defendant must demonstrate that his "counsel's conduct fell below an objective standard of reasonableness." State v. Braswell, 312 N.C. 553, 561-62, 324 S.E.2d 241, 248 (1985). This requires a showing that: (1) counsel's performance was deficient; and (2) that the deficient performance prejudiced his defense. Id. Here, defendant alleges his counsel was deficient in failing to request certain jury instructions. `"[I]n order to show ineffective assistance of counsel because of the failure to request jury instructions, the defendant must show that without the requested instructions there was plain error in the charge.'" State v. Montford, 137 N.C. App. 495, 502, 529 S.E.2d 247, 252 (2000) (quoting State v. Swann, 322 N.C. 666, 688, 370 S.E.2d 533, 545 (1988)).
In this case, we conclude defendant failed to make the required showing. First, defendant contends that counsel should have requested an instruction that the State had the burden of proving the identity of defendant beyond a reasonable doubt. However, the general instructions given by the trial court required the State to prove that defendant committed the crime beyond a reasonable doubt. Thus, it was not plain error for the trial court to fail to give a separate instruction on identity, because the substance of this instruction was provided in the general instructions.
Second, defendant argues that counsel should have requested a separate instruction on alibi. However, we conclude that the failure to instruct on alibi was not plain error "[b]ecause the trial court's charge afforded the defendant the same benefits a formal charge on alibi would have afforded[.]" State v. Hood, 332 N.C. 611, 618, 422 S.E.2d 679, 682 (1992), cert. denied, 507 U.S. 1055, 123 L.Ed.2d 659 (1993). Thus, defendant was not prejudiced by his counsel's failure to request an instruction on alibi.
Finally, defendant argues that counsel should have requested a special instruction on impeachment of a witness by proof of a crime, noting that Hardy had previously been convicted of criminal charges. However, there is nothing in the record to suggest that Hardy had any basis to be untruthful about defendant's identity as the perpetrator of the crime, or any reason to doubt that his testimony was credible. Moreover, the jury was made aware of Hardy's criminal record, and was instructed that: (1) they were the "sole judges of the credibility of each witness"; (2) that they were free to disbelieve a witness's testimony; and (3) that they "should apply the same tests of truthfulness that you apply in your everyday affairs," including "any interest, bias or prejudice the witness may have." Thus, the failure to instruct on impeachment of a witness did not amount to plain error, and defendant's counsel was not ineffective for failure to request the instructions. Defendant's final assignment of error is overruled.
Upon careful review of the record and the arguments presented by the parties, we conclude defendant received a fair trial free from error.
No error.
Chief Judge EAGLES and Judge HUDSON concur.
Report per Rule 30(e).