Opinion
No. 07-597.
Filed March 4, 2008.
Wayne County Nos. 05CRS56029 06CRS4895.
Appeal by defendant from judgments entered 24 August 2006 by Judge Russell J. Lanier, Jr. in Wayne County Superior Court. Heard in the Court of Appeals 28 November 2007.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Sandra Wallace-Smith, for the State. Parish Cooke, by James R. Parish, for defendant-appellant.
Jonathan Anthony Uzzell ("defendant") appeals from a judgment entered on 24 August 2006 pursuant to a jury verdict finding him guilty of discharging a firearm into occupied property, assault with a deadly weapon with intent to kill inflicting serious injury, and attempted murder. All of defendant's judgments were consolidated, and defendant was sentenced on those convictions to a minimum term of 175 months' and a maximum term of 219 months' imprisonment. After careful consideration, we find no error. The State presented evidence that tended to show the following: Deputy William Young, of the Wayne County Sheriff's Department, responded to a report of a shooting five blocks from the police station. Deputy Young arrived at the scene and saw a green Lexus stopped, with the engine running. There were three to four bullet holes in the driver's side door and Frederick Montrell Williams ("Williams") was slumped over in the driver's side seat. When Deputy Young opened the door, Williams fell out of the car. Williams was unconscious but alive. Deputy Young noted that Williams had been struck by bullets in his lower back.
Defendant was also convicted of possession of a firearm by a felon and sentenced to a minimum term of twelve months' and a maximum term of fifteen months' imprisonment, to be served at the expiration of the first judgment. Defendant, however, does not appeal this charge.
After securing the area, Deputy Young saw a young woman sixty yards away, crying and running towards the vehicle. He later learned she was the victim's girlfriend, Stephanie Jones ("Jones"). Jones and defendant had a prior relationship and were raising a child together. However, defendant had found out that he was not the child's father.
The police investigation found that it was likely that two separate weapons were used as different caliber bullets were found at the scene and that the bullets that went through the window on the car likely came from outside the vehicle. Additionally, no weapons were found in the vehicle.
Upon discovering that the police were interested in speaking with him, defendant turned himself in. While discussing the incident with the police, defendant conceded that he had "pull[ed] the trigger" and was sorry and that he did not intend to hurt anyone. At trial, defendant argued that he was acting in self-defense when he shot at Williams.
Defendant presents the following issues for this Court's review: (1) whether the trial court erred in failing to dismiss all charges against defendant; and (2) whether defendant received ineffective assistance of counsel under the Sixth Amendment to the United States Constitution and under Article § b § Section 23 of the North Carolina Constitution when defendant's counsel failed to renew his motion to dismiss the charges on insufficiency of evidence grounds.
I.
Defendant's first argument is that the trial court erred by not granting his motion that the State had not produced sufficient evidence to submit the charges to the jury. We disagree.
At the outset, defendant asserts that his trial counsel, by only raising the motion to dismiss the charges at the close of the State's evidence, but not renewing the motion at the close of all evidence, has waived appellate review of this issue under Rule 10(b)(3) of the North Carolina Rules of Appellate Procedure, and therefore received ineffective assistance of counsel. The State, however, contends that he has not waived appellate review of this issue. Under N.C. Gen. Stat. § 15A-1446(d)(5) (2007), defendants need not bring alleged errors regarding insufficiency of the evidence to receive appellate review on the issue. This Court has recognized that N.C. Gen. Stat. § 15A-1446(d)(5) and Rule 10(b)(3) of the Rules of Appellate procedure are in direct conflict and has held that Rule 10(b)(3) negates the statute. State v. Jordan, 321 N.C. 714, 716-17, 365 S.E.2d 617, 619 (1988). Accordingly, defendant has waived appellate review of this issue and thus argues that he received ineffective assistance of counsel.
A defendant's Sixth Amendment right to effective assistance of counsel is violated when: (1) a defendant's trial counsel performance falls below an objective standard of professional reasonableness; and (2) but for counsel's errors, there is a reasonable probability that the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 700, 80 L. Ed. 2d 674, 702 (1984) ("[f]ailure to make the required showing of either deficient performance or sufficient prejudice defeats [an] ineffectiveness claim"). This standard has been adopted by our Supreme Court as well. See State v. Braswell, 312 N.C. 553, 561-62, 324 S.E.2d 241, 248 (1985).
The State makes no serious argument, aside from citing a statute that this Court has deemed non-applicable, that failure to object at the close of all evidence to the sufficiency of the evidence presented falls below an objective standard of reasonableness in this case. Regardless, if there was sufficient evidence to submit the challenged charges to the jury, defendant will be unable to establish any prejudice as a result of defense counsel's failure to object and, as such, his argument for ineffective assistance of counsel will fail.
The standard of review on appeal of the denial of a criminal defendant's motion to dismiss for insufficient evidence is whether the State has offered substantial evidence to show the defendant committed each element required to be convicted of the crime charged. State v. Williams, 154 N.C. App. 176, 178, 571 S.E.2d 619, 620 (2002). Substantial evidence is evidence that is existing, not just seeming or imaginary. State v. Irwin, 304 N.C. 93, 97-98, 282 S.E.2d 439, 443 (1981). Upon a motion to dismiss, the evidence must be viewed in the light most favorable to the State, "giving the [S]tate the benefit of every reasonable inference that might be drawn therefrom." State v. Etheridge, 319 N.C. 34, 47, 352 S.E.2d 673, 681 (1987). That said, "`[w]hen the State offers evidence which tends to exculpate the defendant, he is entitled to whatever advantage the testimony affords, and so, when it is wholly exculpatory, he is entitled to his acquittal.'" State v. Hoskins, 236 N.C. 412, 416, 72 S.E.2d 876, 878-79 (1952) (quoting State v. Robinson, 229 N.C. 647, 649, 50 S.E.2d 740, 741 (1948)).
Defendant argues there was insufficient evidence upon which to convict him of the three convictions he is appealing because the State failed to refute the evidence of self-defense.
The State bears the burden of proving that defendant did not act in self-defense. State v. Herbin, 298 N.C. 441, 259 S.E. 2d 263 (1979). To
survive a motion to dismiss, the State must therefore present sufficient substantial evidence which, when taken in the light most favorable to the State, is sufficient to convince a rational trier of fact that defendant did not act in self-defense.
State v. Hamilton, 77 N.C. App. 506, 513, 335 S.E.2d 506, 511 (1985) (citations omitted).
Perfect self-defense establishes a complete excuse for a killing or, in this case, an excuse for an attempted killing and the crimes committed in furtherance of that attempt. See State v. Ammons, 167 N.C. App. 721, 725-26, 606 S.E.2d 400, 404 (2005). Perfect self-defense will be found when:
"`(1) it appeared to defendant and he believed it to be necessary to kill the deceased in order to save himself from death or great bodily harm; and
(2) defendant's belief was reasonable in that the circumstances as they appeared to him at that time were sufficient to create such a belief in the mind of a person of ordinary firmness; and
(3) defendant was not the aggressor in bringing on the affray, i.e., he did not aggressively and willingly enter into the fight without legal excuse or provocation; and
(4) defendant did not use excessive force, i.e., did not use more force than was necessary or reasonably appeared to him to be necessary under the circumstances to protect himself from death or great bodily harm.'"
Id. (quoting State v. Reid, 335 N.C. 647, 670, 440 S.E.2d 776, 789 (1994) (citation omitted)).
As to the first element, that defendant believed it necessary to shoot the victim to protect himself, the State presented defendant's own statement, made to the police, in which he said that, after his brother dropped him off before the shooting, his brother "did not know what was on my mind. I panicked out of fear and frustration. I can't take anything back, but I'm sorry, sorry, sorry. I didn't mean to pull the trigger or hurt anyone." From this statement, coupled with evidence presented by the State that the victim had shot at and threatened defendant on multiple occasions prior to the shooting, a rational jury could infer that defendant had only a generalized fear of the victim, and that there was no immediate need to use deadly force. Thus, under the second factor, a person of ordinary firmness would not feel that deadly force was necessary under the circumstances. Although defendant argues that this evidence is merely circumstantial, this Court has held that circumstantial evidence which supports a finding that the offense charged has been committed is sufficient to deny a defendant's motion to dismiss. State v. Blizzard, 169 N.C. App. 285, 289, 610 S.E.2d 245, 249 (2005).
As to the third element, that defendant was not the aggressor, the State presented evidence that shell casings were found behind large bushes, several feet away from the victim's car. From this testimony, a jury could conclude that defendant was lying in wait for the victim and was the first to act. Defendant's own statement, that his brother did not know what he had on his mind, also indicates that defendant was planning on being the aggressor were he to encounter the victim. Further indication that defendant was the aggressor came from police testimony regarding the car windows being shot out. Officer Harris testified that typically, persons firing from inside a car roll down the window before shooting. Accordingly, a jury could infer that defendant had shot out the windows before the victim engaged defendant in an altercation.
While there was no evidence, circumstantial or otherwise, presented as to the fourth element, that defendant used reasonable force, we conclude that the State presented sufficient evidence to submit to the jury the charges of attempted first degree murder, assault with a deadly weapon, and intent to kill inflicting serious injury. Accordingly, defendant's assignments of error are overruled. See Strickland, 466 U.S. at 700, 80 L. Ed. 2d at 702.
II.
We conclude that because the trial court did not err when it denied defendant's motion to dismiss at the close of the State's evidence, defendant is unable to establish an ineffective assistance of counsel claim.
No error.
Judges CALABRIA and STROUD concur.
Report per Rule 30(e).