Opinion
NO. COA12-460
12-18-2012
STATE OF NORTH CAROLINA v. ASHLEY TERRESE PARKS
Attorney General Roy Cooper, by Assistant Attorney General Anne Goco Kirby, for the State. Glover & Petersen, P.A., by James R. Glover, for Defendant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Lincoln County
Nos. 08 CRS 52519, 52520,
10 CRS 1137
Appeal by Defendant from judgments entered 17 June 2010 by Judge James W. Morgan in Superior Court, Lincoln County. Heard in the Court of Appeals 13 November 2012.
Attorney General Roy Cooper, by Assistant Attorney General Anne Goco Kirby, for the State.
Glover & Petersen, P.A., by James R. Glover, for Defendant.
McGEE, Judge.
Ashley Terrese Parks (Defendant) was convicted of attempted common law robbery, breaking or entering, and being an habitual felon on 17 June 2010. The trial court sentenced Defendant to a term of 108 months to 139 months' imprisonment. Defendant appeals.
The evidence at trial tended to show that Michael Jenkins (Mr. Jenkins) lived with his fiancée, Kaylan Blunt (Ms. Blunt). Ms. Blunt's mother, Lisa, and her brother, Bronson Blunt, visited Mr. Jenkins and Ms. Blunt on 21 July 2008. LaDeanna McGill (Ms. McGill) lived "right down the road" from Mr. Jenkins. She was with Defendant when Defendant found a turtle in a drain across the street from her house. Ms. McGill and Defendant knew Mr. Jenkins collected reptiles as a hobby, and they went to Mr. Jenkins' house to show him the turtle.
Mr. Jenkins, Ms. Blunt, and Bronson Blunt were on Mr. Jenkins' front porch when Defendant and Ms. McGill approached them with the turtle. The group discussed the turtle and, during the discussion, they were joined by three teenagers identified by Ms. McGill as "Slick, T.J, and Rock." During the discussion, Bronson Blunt pulled a large amount of cash from his pocket and replaced it, and Ms. Blunt testified that Defendant commented on the money. Mr. Jenkins testified he did not keep the turtle.
At about 11:00 p.m. that evening, Mr. Jenkins, Lisa, and Bronson Blunt were in the living room of Mr. Jenkins' house when they heard a knock on the front door. Bronson Blunt answered the door and three men with their faces masked tried to push their way into the house. Mr. Jenkins saw that one of the men was pointing a gun through the door. Mr. Jenkins ran towards the back of the house, telling Ms. Blunt to also run. Mr. Jenkins and Ms. Blunt ran into the backyard and saw a man standing there. The man was not wearing a mask and Mr. Jenkins was "pretty sure" the man was holding a gun. Ms. Blunt testified that she did not see a gun. At trial, Mr. Jenkins and Ms. Blunt each identified Defendant as the man standing in the backyard.
Mr. Jenkins jumped over his fence and ran to the Lincolnton Police station two blocks from his house. He told officers that his house was being robbed. Police officers drove to Mr. Jenkins' house, but the men were not there. Detective Matt Painter (Det. Painter) was assigned as the lead investigator. Det. Painter testified that he received an anonymous call through the Crimestoppers hotline. Det. Painter testified that the caller said three people, including Defendant, were involved in the attempted robbery of Mr. Jenkins' house. Det. Painter prepared a photo lineup which was presented to Mr. Jenkins and Ms. Blunt, and each identified Defendant in the photo lineup as the perpetrator.
I. Issue on Appeal
Defendant raises on appeal the issue of whether "admission of the crime stoppers information about who committed the offenses at [Mr.] Jenkin[s'] residence was plain error in violation of Defendant['s] state and federal constitutional right to confrontation[.]" Defendant also argues that he was denied effective assistance of counsel when "his trial counsel failed to object to the admission of this evidence."
II. Plain Error
Because Defendant did not object to Det. Painter's testimony at trial, he is limited to plain error review by this Court.
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). The North Carolina Supreme Court "has elected to review unpreserved issues 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).
"For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial." State v. Lawrence, ___ N.C. ___, ___, 723 S.E.2d 326, 334 (2012). "To show that an error was fundamental, a defendant must establish prejudice that, after examination of the entire record, the error 'had a probable impact on the jury's finding that the defendant was guilty.'" Id. (citation omitted). "Moreover, because plain error is to be 'applied cautiously and only in the exceptional case,' . . . the error will often be one that 'seriously affect[s] the fairness, integrity or public reputation of judicial proceedings[.]'" Id. (citations omitted).
We note, however, that in Defendant's argument concerning Det. Painter's testimony, Defendant merely recites the standard of review for plain error. Defendant asserts that the admission of Det. Painter's testimony was plain error but he does not explain how it was plain error. However, in Defendant's argument regarding ineffective assistance of counsel, Defendant states that "[b]ecause the State's evidence linking Defendant[] to the attempted home invasion by the three men at the front door is so weak[,] apart from the inadmissible testimonial hearsay, the admission of that evidence probably led the jury to reach a verdict different from the verdict" it would have returned otherwise. We disagree.
Mr. Jenkins testified that Defendant and other men had come to his house earlier that day and had seen Bronson Blunt with a large amount of cash. Mr. Jenkins testified that, during the attempted robbery, when he ran into the backyard, he "stopped in the middle of [his] backyard, near the fence, and [he] made eye contact with . . . Defendant who at that point in time was wearing a white shirt." Mr. Jenkins testified that "the lighting was pretty good[,]" and that Defendant was "at least twelve or thirteen feet away from [him], from where [he] was when [he] stopped." Further, Mr. Jenkins testified that he and Defendant made eye contact "[f]or at least a good ten seconds[,]" and that Defendant was holding something that Mr. Jenkins thought was "[a] gun, a giant L, you know. It was black, and I mean, I don't know anybody who holds anything else like that." Mr. Jenkins positively identified Defendant in court, as well as identifying Defendant during the photo lineup. Finally, Mr. Jenkins was asked, "[d]o you have any question in your mind as to whether it was . . . Defendant that you saw that night?" Mr. Jenkins replied, "I know it was him[.]" Ms. Blunt testified that she saw Defendant in the backyard that evening and also identified Defendant in court.
In light of this evidence, we hold it was not likely the jury would have reached a different verdict had Det. Painter been prevented from testifying that an anonymous caller told him Defendant was involved in the attempted robbery. Thus, assuming arguendo it was error to admit Det. Painter's testimony, "after examination of the entire record, [we are not persuaded that] the error 'had a probable impact on the jury's finding that the defendant was guilty.'" Lawrence, ___ N.C. at ___, 723 S.E.2d at 334 (citation omitted). Therefore, even assuming arguendo there was any error at all, we hold there was no plain error arising out of the admission of Det. Painter's testimony.
III. Ineffective Assistance of Counsel
Defendant argues that his trial counsel's failure to object to Det. Painter's testimony amounted to ineffective assistance of counsel. "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." State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271, 286 (2006) (citations omitted, emphasis added). "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." Id. (citation and quotation marks omitted). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. (citation and quotation marks omitted).
Defendant's argument concerning prejudice in the context of his ineffective assistance of counsel claim is identical to that involved in his plain error confrontation clause analysis, to wit: "Because the State's evidence linking Defendant . . . to the attempted home invasion by the three men at the front door is so weak[,] apart from the inadmissible testimonial hearsay, the admission of that evidence probably led the jury to reach a verdict different from the verdict [it] would have . . . returned[.]" However, as discussed above, we have concluded that Det. Painter's testimony did not have "'a probable impact on the jury's finding that the defendant was guilty.'" Lawrence, ___ N.C. at ___, 723 S.E.2d at 334 (citation omitted). For the same reasons as discussed above, we find that, assuming arguendo Defendant's trial counsel committed an unprofessional error by failing to object to Det. Painter's testimony, there is no "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Allen, 360 N.C. at 316, 626 S.E.2d at 286 (citations and quotation marks omitted). Therefore, we conclude Defendant's ineffective assistance of counsel claim is without merit.
No plain error.
Judges BRYANT and ERVIN concur.
Report per Rule 30(e).