Opinion
No. COA03-408
Filed 18 November 2003 This case not for publication
Appeal by defendant from judgment entered 14 January 2003 by Judge Jack A. Thompson in Robeson County Superior Court. Heard in the Court of Appeals 17 November 2003.
Attorney General Roy Cooper, by Assistant Attorney General John G. Barnwell, for the State. Haral E. Carlin for defendant-appellant.
Robeson County No. 02 CRS 10055.
A jury found defendant guilty of attempted robbery with a dangerous weapon, and the trial court sentenced her to sixty-one to eighty-three months imprisonment. Defendant gave notice of appeal in open court.
The State adduced evidence tending to show that Sheila Carey was accosted by a dark-haired white female in the parking lot of a Wal-Mart store in Lumberton, North Carolina, between 10:00 p.m. and 11:00 p.m. on 30 January 2002. As Carey was loading her purchases into her white Oldsmobile, a vehicle pulled into the adjacent parking space. The assailant, who was shorter and "heavier set" than Carey, stepped out the car, demanded and grabbed Carey's purse. When Carey resisted and yelled for help, she was hit multiple times with an iron pipe or bar. Her assailant dragged Carey and her purse toward the waiting car, sat down in the front passenger's seat and told the driver to "take off." The car started forward briefly but stopped. When a bystander, Charlie Branch, pulled Carey away from the car, the would-be robbers drove off. Carey saw someone sitting in the back seat of the car but could not see the driver. Although she described the lighting in the parking lot as "pretty much clear[,]" she was unable to identify her assailant. Branch, who described the robber as a "bright-skinned" female, also saw a male in the car's back seat and a second male in the driver's seat.
Michelle Hughes testified that she saw defendant sitting in the front passenger's seat of a green Toyota Camry in the Wal-Mart parking lot on the night of 30 January 2002. A male was in the driver's seat. As Hughes got out of her van to go into the store, she heard a voice calling for help. She turned around and saw that defendant's green Camry had pulled beside a white or cream-colored car. Defendant's car door was open and she was standing in the parking lot, "hitting just as hard as she could hit" and trying to steal a woman's purse. A man ran past Hughes to assist the victim. When he intervened, the Camry drove away. Hughes called 911. Hughes and defendant had lived in the same apartment complex for almost one year at the time of the incident and she had seen defendant driving the green Camry. Hughes acknowledged, however, that she had seen other people driving defendant's Camry "plenty of times." Defendant testified that she spent the night of 30 January 2002 watching a movie in her apartment with her friends, Kenneth Burke and Tiffany Phillips. At 7:00 p.m., Wesley Carroll came to her residence with Chris Jacobs and Jerry Burney and asked to borrow her car. Defendant allowed Carroll to use the car. She remained at home, approximately twenty miles from the Lumberton Wal-Mart. When she was arrested, defendant gave a statement to police denying any knowledge of or involvement in the incident at Wal-Mart and claiming that Carroll had borrowed her car on the night in question.
Burke, Phillips, and Burney testified for the defense, corroborating defendant's alibi. Both Burke and Phillips claimed that they spent the night of 30 January 2002 with defendant in her apartment watching a movie. They remained with defendant overnight because their apartment had been sprayed for insects. Burney averred that he, Carroll, and Jacobs borrowed defendant's car on the night of 30 December 2002, drove to Clarkton and then "rode around in Lumberton for awhile[.]" At some point, they picked up a white, short, "larger sized" female with dark hair whom Burney did not know. Burney moved to the back seat so that the female could sit in the front next to Carroll. The group drove to the Wal-Mart in Lumberton. Burney stated that defendant was not present when Carey was assaulted in the parking lot.
On appeal, defendant raises three separate claims of ineffective assistance of counsel, asserting that her trial counsel (1) failed to conduct "a meaningful cross-examination" of Hughes, Officer Jackson, and Branch so as to undermine Hughes' identification testimony and to corroborate the details of defendant's alibi; (2) failed to conduct "a meaningful direct — examination" of Burney regarding the identity of the white female in the Camry who assaulted Carey and the details of the incident in the Wal-Mart parking lot; and (3) failed to deliver "a meaningful closing argument" to the jury, due to "the cumulative effect" of his inadequate questioning of these witnesses. Because each of these claims require an inquiry into facts lying outside the record on appeal, they are inappropriate for our review here. See, State v. Fair, 354 N.C. 131, 166, 557 S.E.2d 500, 524-25 (2001), cert. denied, 535 U.S. 1114, 153 L.Ed.2d 162 (2002); State v. Long, 354 N.C. 534, 539-40, 557 S.E.2d 89, 93 (2001). The materials before this Court on direct appeal do not reveal the information possessed by defense counsel which may have guided his questioning of these witnesses; nor do they reveal what evidence would have been adduced by the additional direct and cross-examinations proposed by defendant. Accordingly, we dismiss defendant's claims of ineffective assistance of counsel without prejudice to her right to raise them in a motion for appropriate relief in the trial court. State v. Clark, ___ N.C. App. ___, ___, 583 S.E.2d 680, 687 (2003).
Dismissed.
Judges BRYANT and LEVINSON concur.
Report per Rule 30(e).