Opinion
No. COA12–1187.
2013-06-18
STATE of North Carolina v. Miles O'Keefe ASKEW.
Attorney General Roy Cooper, by Assistant Attorney General M. Elizabeth Guzman, for the State. Allison Standard, for defendant-appellant.
On writ of certiorari to review judgment entered 17 August 2010 by Judge Wayland J. Sermons, Jr. in Martin County Superior Court. Heard in the Court of Appeals 11 February 2013. Attorney General Roy Cooper, by Assistant Attorney General M. Elizabeth Guzman, for the State. Allison Standard, for defendant-appellant.
CALABRIA, Judge.
We have granted Miles O'Keefe Askew's (“defendant”) petition for writ of certiorari to review a judgment entered upon a jury verdict finding him guilty of robbery with a dangerous weapon (“RWDW”). We find no error.
I. Background
In January 2009, Tiara Council (“Council”), her boyfriend, and Travonn Barnes (“Barnes”) planned to rob Terry Best (“Best”). Council and Best were acquainted because Best occasionally gave Council gifts in exchange for sex. On 18 January 2009, Council contacted Best and he picked her up at her home in Hamilton, North Carolina. As they drove his truck to Roy Beach Road, Council borrowed Best's phone to call Barnes to activate a robbery plan. Best was unaware and unable to hear the content of Council's conversation with Barnes because the radio was playing.
Several minutes after Best stopped and parked the truck, he saw a vehicle approaching. Then defendant, Barnes, and another man arrived at the location. Best attempted to drive away, but was unsuccessful because his truck got stuck in a rain-drenched dirt path. Three men (“the robbers”) exited the vehicle. The robbers' faces were covered with bandanas and at least two of them displayed guns. After knocking on Best's window, they demanded money. Best initially told them he had nothing, but when they pointed a gun at him, he gave them his truck keys, cell phone, and wallet containing $30.00. As they were leaving, one of the robbers fired a shot, but no one was injured. The robbers returned to their vehicle and drove away, accompanied by Council.
When Best arrived home, he called law enforcement. Although Best was unable to identify any of the robbers, he stated that all of them were African American, one was tall with dreadlocks and the other two men were “kind of medium.”
On the night of the robbery, Investigator James Powell (“Investigator Powell”) of the Martin County Sheriff's Department (“MCSD”) questioned Council. At first, she claimed she was a victim of the robbery. Three months later, Council gave MCSD a written statement confessing that the reason she called Barnes was to rob Best. Then Council identified defendant as one of the participants in the robbery and the driver of the robbery vehicle. Council was charged with RWDW, conspiracy to commit RWDW, and prostitution. In exchange for her testimony at defendant's trial, she pled guilty to conspiracy to commit RWDW and received a suspended sentence, and the State dismissed the charges of RWDW and prostitution.
Defendant also provided a statement to Investigator Powell. Defendant indicated that although he and Barnes drove his vehicle, when they arrived at Roy Beach Road he remained inside the vehicle while Council, Best and Barnes argued. He did not exit the vehicle with Barnes.
Defendant was charged with RWDW and conspiracy to commit RWDW. At trial in Martin County Superior Court, Best was unable to identify defendant as one of the robbers. However, Council testified at trial that defendant drove the vehicle, participated in the robbery and possessed a weapon during the robbery. The jury returned a verdict finding defendant guilty of RWDW, but finding him not guilty of conspiracy to commit RWDW. The trial court sentenced defendant to a minimum of thirty-eight and a maximum of fifty-five months in the North Carolina Department of Correction. Defendant appeals.
II. Ineffective Assistance of Counsel
As an initial matter, defendant argues on appeal and in a motion for appropriate relief (“MAR”) that he did not receive a fair trial because of ineffective assistance of counsel during the trial and charge conference.
Ineffective assistance of counsel is a constitutional issue that is reviewed de novo. State v. Campbell, 359 N.C. 644, 617 S.E.2d 1 (2005). To prove ineffective assistance of counsel, the defendant must show that “(1) ‘counsel's performance was deficient,’ meaning it ‘fell below an objective standard of reasonableness,’ and (2) ‘the deficient performance prejudiced the defense,’ meaning ‘counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.’ “ State v. Garcell, 363 N.C. 10, 51, 678 S.E.2d 618, 644 (2009) (citations omitted). “ ‘[C]ounsel is given wide latitude in matters of strategy, and the burden to show that counsel's performance fell short of the required standard is a heavy one for defendant to bear.’ “ Campbell, 359 N.C. at 690, 617 S.E.2d at 30 (citation omitted). This Court has explained that “strategic and tactical decisions such as whether to request an instruction or submit a defense are within the exclusive province of the attorney.” State v. Phifer, 165 N.C.App. 123, 130, 598 S.E.2d 172, 177 (2004) (internal quotations and citations omitted).
III. Motion for Appropriate Relief
On 1 November 2012, defendant filed an MAR with this Court pursuant to N.C. Gen.Stat. § 15A–1415(b)(3), Art. 1 §§ 19 and 23 of the North Carolina Constitution, and the Sixth and Fourteenth Amendments to the United States Constitution, requesting an order vacating his RWDW conviction. Defendant believes that because his trial counsel failed to cross-examine Council and Best regarding prior criminal charges and/or convictions, he was denied effective assistance of counsel and should be granted a new trial. We disagree.
When filing an MAR, a defendant “must show the existence of the asserted ground for relief. Relief must be denied unless prejudice appears, in accordance with G.S. 15A–1443.” N.C. Gen.Stat. § 15A–1420 (c)(6) (2011). A defendant may assert that his conviction was obtained in violation of either the North Carolina or United States Constitutions by an MAR. N.C. Gen.Stat. § 15A–1415(b)(3) (2011). “A violation of the defendant's rights under the Constitution of the United States is prejudicial unless the appellate court finds that it was harmless beyond a reasonable doubt .” N.C. Gen.Stat. § 15A–1443(b) (2011).
“For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a felony, or of a Class A1, Class 1, or Class 2 misdemeanor, shall be admitted if elicited from the witness or established by public record during cross-examination or thereafter.” N.C. Gen.Stat. § 8C1, Rule 609 (2011). Evidence of a prior conviction “is not admissible if a period of more than 10 years has elapsed since the date of the conviction....” N.C. Gen.Stat. § 8C–1, Rule 609(b) (2011). “Evidence of a witness' prior convictions is admissible for the purpose of impeaching the witness' credibility.” State v. Braxton, 352 N.C. 158, 193, 531 S.E.2d 428, 448 (2000).
A. Council's Testimony
Defendant argues that he was denied effective assistance of counsel because his trial counsel failed to impeach Council's credibility by eliciting from her during cross-examination her prior conviction for common law uttering (“uttering”), since uttering is directly related to truthfulness.
“ ‘Uttering a forged instrument consists in offering to another the forged instrument with the knowledge of the falsity of the writing and with intent to defraud.’ “ State v. McAllister, 287 N.C. 178, 189, 214 S.E.2d 75, 84 (1975) (citation omitted). “The mere offer of the false instrument with fraudulent intent constitutes an uttering.” State v. Seraphem, 90 N.C.App. 368, 373, 368 S.E.2d 643, 646 (1988).
In the instant case, Council testified for the State that she pled guilty to conspiracy to commit RWDW. Defendant's trial counsel cross-examined Council but did not impeach her for her prior conviction for uttering, even though it would have been admissible at trial because a period of less than ten years had elapsed. Since Council was the only witness at trial who identified defendant, defendant contends trial counsel's performance was deficient for failure to impeach Council's credibility during cross-examination regarding her uttering conviction.
Defendant's trial counsel thoroughly cross-examined Council regarding the inconsistent statements she gave to police, her relationship with the victim, and particularly the benefit she received by agreeing to enter a plea and testify for the State. Defendant's trial counsel also cross-examined Investigator Powell regarding Council's inconsistent statements. After the charge conference, the trial court instructed the jury on the credibility of witnesses, including an instruction on interested witnesses:
There is evidence which tends to show that a witness was testifying under an agreement with the prosecutor for a charge reduction and a sentence concession in exchange for the testimony. If you find that the witness testified in whole or in part for this reason, you should examine this testimony with great care and caution in deciding whether or not to believe it.
This Court must determine whether defendant's trial counsel's performance was a strategic and tactical decision that was prejudicial. We find that other testimony was presented that weakened Council's credibility. Council testified that she initially lied to investigators and that she had an arrangement with the State that she would plead guilty in exchange for her testimony. Even if counsel's failure to mention Council's uttering conviction was unreasonable, it is unlikely that knowledge of the conviction would have led the jury to a different result since Council's credibility was already questionable. Therefore, we find that defendant has failed to show that he was prejudiced by counsel's performance.
B. Best's Testimony
Defendant also argues that the evidence regarding Best's prior conviction for second-degree rape and a criminal charge for prostitution would have caused the jury to question Best's credibility and bias and counsel's failure to cross-examine Best was ineffective assistance of counsel.
Even assuming, arguendo, that it was unreasonable for counsel to fail to cross-examine Best regarding the prior conviction and criminal charge, defendant has failed to show that he was prejudiced. While Best testified that he was robbed, he never identified defendant as a participant in the robbery. He also did not identify defendant's car as the vehicle that approached his truck. Nothing about Best's testimony linked defendant to the robbery. It is unclear how evidence of the rape conviction or the prostitution charge would have caused the jury to question Best's credibility regarding the robbery.
Because Best's prior conviction and the prostitution charge do not bear on his credibility regarding the robbery, defendant's trial counsel's failure to cross-examine Best on these issues did not prejudice defendant or deprive him of effective assistance of counsel. Therefore, we deny his MAR.
IV. Jury Instructions
Defendant argues that he received ineffective assistance of counsel because his attorney failed to request an instruction to limit Council's testimony regarding her conviction of conspiracy to commit RWDW for the purpose of impeachment. In the alternative, defendant argues plain error because the trial court should have given the instruction ex mero motu. We disagree.
A. Ineffective Assistance of Counsel
On appeal, defendant claims that his trial counsel failed to request a limiting instruction as to the use of Council's guilty plea to conspiracy to commit RWDW as substantive evidence against defendant. During jury instructions, the trial court did not give an instruction explaining to the jury that evidence of a co-defendant's conviction was limited to whether or not the jury should believe or disbelieve her testimony at trial.
During the charge conference, trial counsel requested an instruction on “Impeachment of a Witness by Evidence of a Prior Crime”:
The [c]ourt: And, from there,—I have a question about this one. Impeachment of a Witness by Evidence of a Prior Crime. The Prostitution was dismissed.
[Defense Counsel]: Yes, sir.
The [c]ourt[:] Would you like that one?
[Defense Counsel]: Yes, sir.
The [c]ourt: Does the State object?
[The State]: Yes.
The [c]ourt: Do you care to be heard?
[The State]: Yes, because it was dismissed as part of a plea.
The [c]ourt: All right. I'll read that one ... let me read it. I'm going to spend a minute or two here ... and I will decide.
The requested instruction stated:
Evidence has been received concerning criminal convictions of a witness. You may consider this evidence for one purpose only. If, considering the nature of the crime(s), you believe that this bears on the witness's truthfulness, then you may consider it, together with all other facts and circumstances bearing upon the witness' truthfulness, in deciding whether you will believe or disbelieve the witness's testimony at this trial. You may not consider this evidence for any other purpose.
N.C.P.I.—Crim. 105.35 (2011). The trial court did not give the requested instruction.
The instruction that trial counsel requested, “Impeachment of a Witness by Evidence of a Prior Crime,” did not specifically include that a co-defendant's testimony regarding a guilty plea should not be used as substantive evidence. Rather, it accomplished the purpose of having the judge explain to the jury that the purpose of the evidence regarding a witness's criminal charges was limited to whether the jury believed the nature of the crime bears on the witness's truthfulness. On appeal, defendant concedes that Council's testimony was for the legitimate purpose of showing her bias and willingness to testify so that the State would dismiss her charges and she would receive a probationary sentence. However, defendant contends that since the trial court did not specifically limit Council's testimony to this purpose, it was prejudicial error. The instruction trial counsel requested would have explained the purpose of Council's conviction was to reflect only on her truthfulness. According to the instruction requested by defendant's trial counsel, the jury would have known Council's testimony regarding her criminal charges were to be considered only for impeachment purposes.
Since trial counsel is given wide discretion in strategic and tactical decisions, such as jury instructions, we find that his request for a jury instruction on “Impeachment of a Witness by Evidence of a Prior Crime” was sufficient to address the concerns defendant raises on appeal. See Phifer, 165 N.C.App. at 130, 598 S.E.2d at 177. Had the trial court given the requested instruction, the jury would have known that Council's guilty plea should not be used to determine defendant's guilt. Therefore, we are satisfied that this was not ineffective assistance of counsel.
B. Plain Error
Defendant argues that the trial court committed plain error by failing to intervene and instruct the jury that the purpose of the evidence regarding co-defendant Council's conviction was to be limited to whether or not the jury should believe or not believe her testimony at trial. We disagree.
“In criminal cases, an issue that was not preserved by objection noted at trial and that is not deemed preserved by rule or law without any such action nevertheless may be made the basis of an issue presented on appeal when the judicial action questioned is specifically and distinctly contended to amount to plain error.” N .C.R.App. P. 10(a)(4) (2013); see also State v. Goss, 361 N.C. 610, 622, 651 S.E.2d 867, 875 (2007). Unpreserved issues may be reviewed “for plain error when they involve either (1) errors in the judge's instructions to the jury, or (2) rulings on the admissibility of evidence.” State v. Gregory, 342 N.C. 580, 584, 467 S.E.2d 28, 31 (1996). “Plain error exists where, after reviewing the entire record, the claimed error is so fundamental, so basic, so prejudicial, or so lacking in its elements that justice could not have been done.” Braxton, 352 N.C. at 197, 531 S.E.2d at 451. “To prevail on plain error review, defendant must show that (i) a different result probably would have been reached but for the error or (ii) the error was so fundamental as to result in a miscarriage of justice or denial of a fair trial.” Id.
Council testified that she pled guilty to conspiracy to commit RWDW. She further testified that she made a plan with her boyfriend and Barnes to rob Best. She never testified that defendant participated in the conspiracy along with the others to rob Best. Since the jury found defendant was not guilty of conspiracy to commit RWDW, Council's testimony regarding her plea agreement for conspiracy to commit RWDW appears to have had no effect on the jury.
Defendant claims that Council's testimony regarding her plea agreement was used as substantive evidence since the jury found him guilty of RWDW. However, as the trial court instructed the jury, to prove conspiracy to commit RWDW, the State had to prove that there was an agreement to commit RWDW and that the conspirators “ intended that the agreement be carried out at the time it was made.” (emphasis added). Therefore, even though Council testified that she pled guilty to conspiracy to commit RWDW, it was not offered as evidence that RWDW occurred since the completion of the act is not a necessary element of conspiracy.
Furthermore, there was additional evidence that supported defendant's conviction of RWDW. There is no dispute that the State presented evidence showing that defendant was present at the location where the robbery occurred on the night in question. Investigator Powell testified that in defendant's statement to police that he admitted driving to Roy Beach Road. Defendant also told law enforcement that he was with Barnes, another man that Council identified as a participant in the robbery. Furthermore, despite defendant's claim that Barnes, Best and Council just stood outside Best's truck “fussing,” both Best and Council testified that a robbery occurred. In addition, Council testified that defendant participated in the robbery and that he used a gun. Therefore, there was additional evidence, other than Council's guilty plea, to support the jury's verdict finding defendant guilty of RWDW. Even without a limiting instruction, Council's testimony regarding her guilty plea did not prejudice defendant.
Since defendant has failed to show that if the trial court had given the limiting instruction a different result probably would have been reached, it follows that the trial court's failure to intervene did not result in a miscarriage of justice or in defendant being denied a fair trial. Defendant failed to show that the trial court committed plain error in failing to issue the limiting instruction.
V. Conclusion
Defendant has failed to show that his trial counsel's failure to impeach Council by eliciting the uttering conviction from her during cross-examination and failure to elicit Best's prior convictions and/or criminal charges was prejudicial. Therefore, we deny his MAR as to ineffective assistance of counsel. Since defendant's trial counsel requested a jury instruction to limit Council's testimony to impeachment, we find that defendant's counsel's performance did not rise to the level of ineffective assistance of counsel. Additionally, defendant failed to show a different result probably would have been reached or that the error was so fundamental it resulted in a miscarriage of justice or denial of a fair trial. Braxton, 352 N.C. at 197, 531 S.E.2d at 451. Thus, the trial court's failure to give the limiting instruction, ex mero motu, did not amount to plain error.
No error. Chief Judge MARTIN and Judge McGEE concur.
Report per Rule 30(e).