Opinion
No. COA12–456.
2012-12-4
STATE of North Carolina v. George GATTIS, Defendant.
Attorney General Roy Cooper, by Special Deputy Attorney General Elizabeth Leonard McKay, for the State. Winifred H. Dillon for defendant-appellant.
On writ of certiorari to review judgment entered 25 March 2010 by Judge Paul C. Ridgeway in Durham County Superior Court. Heard in the Court of Appeals 26 November 2012. Attorney General Roy Cooper, by Special Deputy Attorney General Elizabeth Leonard McKay, for the State. Winifred H. Dillon for defendant-appellant.
HUNTER, Robert C., Judge.
Defendant was resentenced 9 September 2010.
Defendant George Gattis appeals from judgment entered after a jury found him guilty of robbery with a dangerous weapon, simple assault, and discharging a firearm in the city. On appeal, he argues the trial court erred by refusing to allow defense counsel to ask prospective jurors certain questions, and that his counsel was ineffective for failing to cross-examine a codefendant about his deal with the State. We find no error.
The State's evidence tends to show that on the night of 15 April 2008, Alexander Valencia was robbed by two individuals, one of whom was armed with a gun. After several items were taken from Valencia, he tried to fight back but was pushed to the ground. Two gunshots were fired in front of Valencia, and the assailants ran. Valencia chased after them. The assailant with the gun fired another shot, and they got away in a car. Later that night, the police stopped a car carrying four individuals who were determined to be involved in the armed robbery. Defendant and Nicholas Nickerson were among the men arrested. Defendant gave a statement to the police naming a fifth man, nicknamed “Loke,” who he said committed the robbery with Nickerson. “Loke” was never found by police.
At trial, Nickerson testified that defendant was one of the two assailants who approached Valencia. Codefendant Dreycell Johnson testified on defendant's behalf, corroborating defendant's claim that “Loke” and Nickerson were the assailants.
The jury returned verdicts finding defendant guilty of robbery with a firearm, simple assault, and discharging a firearm within city limits. The trial court consolidated the offenses and sentenced defendant to one active term of 94 to 122 months imprisonment. Defendant appeals.
Defendant first argues the trial court erred in refusing to allow defense counsel the opportunity to question prospective jurors about potential witness testimony. The defense “may personally question prospective jurors individually concerning their fitness and competency to serve as jurors in the case to determine whether there is a basis for a challenge for cause or whether to exercise a peremptory challenge.” N.C. Gen.Stat. § 15A–1214 (c) (2012). “[W] hile counsel is allowed wide latitude in examining jurors on voir dire, the form of counsel's questions is within the sound discretion of the trial court.” State v. Jones, 339 N.C. 114, 134, 451 S.E.2d 826, 835 (1994), cert. denied, 515 U.S. 1169, 115 S.Ct. 2634, 132 L.Ed.2d 873 (1995). Thus, “the standard of review on this issue is whether the trial court abused its discretion and whether that abuse resulted in harmful prejudice to defendant.” State v. Henderson, 155 N.C.App. 719, 725–26, 574 S.E.2d 700, 705,appeal dismissed and disc. review denied,357 N.C. 64, 579 S.E.2d 569 (2003).
In the present case, defense counsel attempted to ask the following question of potential jurors: “Has anybody known of or had an experience wherein they're aware that the State offers to witnesses reduced sentences, or lighter sentencing, in relation to testimony in a criminal case against a defendant?” The trial court sustained the State's objection to this question and explained that the question “did not tend merely to inquire into the fitness and competency of the prospective jurors, but rather tended to be argumentative or an attempt to indoctrinate[.]” Defendant contends his question did not seek to commit jurors to a particular verdict or propose what evidence jurors needed in order to find favorably for defendant. He argues the question was meant as the first in a series of questions designed to find out whether potential jurors could follow the law with respect to interested witness testimony and to cull any bias regarding such testimony. He asserts the trial court abused its discretion in sustaining the State's objection to this line of inquiry. We do not agree.
The particular wording of the challenged question does not appear to seek an answer as to whether the jurors could be impartial when faced with evidence from an interested witness. Although defendant contends the question was designed to do just that as part of a more thorough inquiry, defense counsel did not follow up with any further questions on the topic of interested witnesses. Where the trial court determined that the form of the question was improper, we are unable to find the trial court's decision to disallow the question was “manifestly unsupported by reason” so as to constitute an abuse of discretion. State v. Summers, 177 N.C.App. 691, 697, 629 S.E.2d 902, 907 (internal quotation marks omitted), appeal dismissed and disc. review denied,360 N.C. 653, 637 S.E.2d 192 (2006). Furthermore, defendant can show no prejudice where counsel did not attempt to pursue the matter further. We note that the jury was properly instructed on its duty to determine the credibility of witnesses, including witnesses who might have an interest in the outcome of the case or who might have been accomplices in the commission of the crimes. Therefore, defendant's contention that the trial court erroneously denied him the opportunity to seat an impartial jury is without merit.
In his second argument, defendant argues his counsel provided ineffective assistance for failing to adequately cross-examine Nicholas Nickerson about the deal he struck with the State in exchange for testifying against defendant. The standard of review is as follows:
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. Deficient performance may be established by showing that counsel's representation fell below an objective standard of reasonableness. 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. A reasonable probability is a probability sufficient to undermine confidence in the outcome.
State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271, 286 (citations and internal quotation marks omitted), cert. denied,549 U.S. 867, 127 S.Ct. 164, 166 L.Ed.2d 116 (2006).
Defendant argues that defense counsel failed to get on the record the fact that Nickerson received a suspended sentence and probation in return for his testimony against defendant, and that such failure shows a “clearly deficient” performance. He contends that where Nickerson's testimony was contradicted by defendant's own statement to the police, in addition to Johnson's testimony, the extent of Nickerson's favorable treatment was crucial information for the jury to know. We do not agree.
In general, a trial counsel's examination of a witness is part of trial strategy which will not be second-guessed on appeal by way of a claim of ineffective assistance of counsel. State v. Lowery, 318 N.C. 54, 68, 347 S.E.2d 729, 739 (1986). Thus, we decline to find that the manner in which trial counsel conducted cross-examination of Nickerson constituted ineffective assistance of counsel. We note the State's direct examination of Nickerson elicited the fact that Nickerson entered into a plea agreement and that he pled guilty to reduced charges in return for agreeing to testify against defendant.
Based on the foregoing, we conclude defendant received a trial free from error.
No error. Judges CALABRIA and McCULLOUGH concur.
Report per Rule 30(e).