Opinion
No. COA13–89.
2013-08-6
STATE of North Carolina v. Adrian Jomel WILLIAMS, Defendant.
Roy Cooper, Attorney General, by Steven A. Armstrong, Assistant Attorney General, for the State. Office of the Public Defender, by Julie Ramseur Lewis, Assistant Public Defender, for defendant-appellant.
Appeal by defendant from judgment entered 29 February 2012 by Judge F. Lane Williamson in Mecklenburg County Superior Court. Heard in the Court of Appeals 6 June 2013. Roy Cooper, Attorney General, by Steven A. Armstrong, Assistant Attorney General, for the State. Office of the Public Defender, by Julie Ramseur Lewis, Assistant Public Defender, for defendant-appellant.
DAVIS, Judge.
Adrian Jomel Williams (“defendant”) appeals his convictions for robbery with a dangerous weapon and conspiracy to commit robbery with a dangerous weapon. After careful review, we conclude that defendant received a fair trial free from prejudicial error.
Factual Background
The State presented evidence at trial tending to establish the following facts: Sometime between 6:00 a.m. and 6:30 a.m. on 15 April 2011, Kenneth Reese (“Reese”) drove his car to the Bank of America drive-through ATM on Tryon Street in Charlotte, North Carolina. After pulling up to the machine, Reese put his car in park and reached into his pocket for his bank card. As he was reaching to insert his card into the ATM, a man in a red hoodie—later identified as Reginald Conner (“Conner”)—approached the driver's side of Reese's car, pointed a silver pistol at Reese's head, and ordered him to withdraw $200 from the ATM. Conner grabbed Reese though the window and threatened to kill him, saying: “I don't want to take a life, but I will.” Another man—identified at trial as defendant—approached the front passenger's side of the car and watched Reese through the window.
In attempting to withdraw the money, Reese accidentally selected an account with insufficient funds and the ATM denied his request. Defendant and Conner became upset, and defendant told Conner to “bust” Reese—meaning “to shoot him”—if he made another mistake. Reese tried again and successfully withdrew $200 from the ATM.
Conner took the money and ordered Reese to take out another $200. As he was about to do so, Reese decided to try to surreptitiously shift the car into drive and escape. Reese, however, mistakenly put the car in neutral so that when he pressed the accelerator, the car did not move. At that moment, Reese heard Conner's gun “click,” and he quickly drove away.
As he was doing so, Reese saw defendant and Conner get into a car in the parking lot of an automobile repair shop across the street from the bank and drive down Tryon Street. Reese called 911 and began following the men. When defendant and Conner realized that Reese was following them, they turned onto a side street, stopped the car, and ran away. Officers with the Charlotte–Mecklenburg Police Department arrived at the scene and apprehended defendant and Conner.
Both defendant and Conner were brought back to their car, and Reese identified them as the two men who had robbed him at the ATM. Defendant and Conner were searched incident to their arrest, and the officers found that each of them had five crisp, new $20 bills in their pants pockets. Conner also had two .22 caliber bullets in his pocket. Although officers searched the area, the gun used during the robbery was not found.
Defendant was subsequently charged with robbery with a dangerous weapon and conspiracy to commit robbery with a dangerous weapon. Defendant pled not guilty and the case proceeded to trial. At the close of the State's evidence, the trial court denied defendant's motion to dismiss the charges for insufficient evidence. During his testimony, Conner stated, in pertinent part, that (1) he and defendant never discussed taking money from anyone at the ATM; (2) defendant did not know that he had a gun; and (3) defendant was not involved in the robbery. Defendant renewed his motion to dismiss at the close of all the evidence, and the motion was denied.
Conner was also charged in connection with the robbery. He pled guilty to the charges in September 2011 as part of a plea agreement.
The jury found defendant guilty of both charges. The trial court consolidated the charges into a single judgment and sentenced defendant to a presumptive-range term of 72 to 96 months imprisonment, with a credit of 321 days already served. Defendant appealed to this Court.
Analysis
I. Sufficiency of Evidence Regarding Operability of Firearm
Defendant first argues that the trial court erred in denying his motion to dismiss the charges of robbery with a dangerous weapon and conspiracy to commit robbery with a dangerous weapon because the evidence at trial established conclusively that the gun used during the robbery was inoperable, and therefore, did not constitute a “dangerous weapon” under N.C. Gen.Stat. § 14–87. We disagree.
Under N.C. Gen.Stat. § 14–87, the “crime of robbery with a dangerous weapon requires that the dangerous weapon be one which endangers or threatens life.” State v. Summey, 109 N.C.App. 518, 528, 428 S.E.2d 245, 250 (1993). In State v. Allen, 317 N.C. 119, 343 S.E.2d 893 (1986), our Supreme Court set out the framework for resolving questions regarding the sufficiency of the evidence “in armed robbery cases where the instrument used appears to be, but may not in fact be, a firearm or other dangerous weapon capable of endangering or threatening the life of another”:
(1) When a robbery is committed with what appeared to the victim to be a firearm or other dangerous weapon capable of endangering or threatening the life of the victim and there is no evidence to the contrary, there is a mandatory presumption that the weapon was as it appeared to the victim to be. (2) If there is some evidence that the implement used was not a firearm or other dangerous weapon which could have threatened or endangered the life of the victim, the mandatory presumption disappears leaving only a permissive inference, which permits but does not require the jury to infer that the instrument used was in fact a firearm or other dangerous weapon whereby the victim's life was endangered or threatened. (3) If all the evidence shows the instrument could not have been a firearm or other dangerous weapon capable of threatening or endangering the life of the victim, the armed robbery charge should not be submitted to the jury.
Id. at 124–25, 343 S.E.2d at 897 (citing State v. Joyner, 312 N.C. 779, 324 S.E.2d 841 (1985)).
Here, the evidence at trial on this issue tended to show that Conner approached the driver's side of Reese's car while Reese was at the drive-through ATM and pointed a silver handgun in Reese's face. Conner told Reese: “I don't want to take a life, but I will.” When Reese made a mistake trying to withdraw money from his bank account, defendant told Conner to “bust” Reese—meaning “to shoot him.” Later, as Reese was attempting to flee the scene, he “heard the click of the gun.”
The evidence from trial further showed that defendant and Conner were apprehended within minutes of Reese reporting the robbery to the police. Although the gun used during the robbery was not recovered, the officers did find two .22 caliber bullets in Conner's pocket. Officer Jeremiah Logsdon (“Officer Logsdon”), an officer with the Charlotte–Mecklenburg Police Department, provided the following testimony regarding Reese's statement about what occurred at the ATM:
The gun was—according to the victim, the suspect pulled the trigger. The gun was tried to fire or fired, but no bullet, no primer ignited, so no bullet exited the gun. But according to the victim, he heard the click, and it was pointed at his head.
Defendant argues that “all of the evidence showed that ... the gun was incapable of endangering or threatening Reese's life because when the trigger was pulled, it did not fire.” However, defendant's argument misconstrues the evidence in this case. While there is “some evidence” that the handgun did not fire when Conner pulled the trigger, there is also evidence that (1) the instrument Conner pointed at Reese's head appeared to Reese to be a silver pistol; (2) Conner threatened to kill Reese if he did not comply with his demands; (3) defendant told Conner to shoot Reese if he did not cooperate; and (4) Conner was found, minutes after the robbery, with two bullets in his pocket.
The trial court, consequently, properly denied defendant's motion to dismiss and submitted the charge of robbery with a dangerous weapon to the jury in light of the conflicting evidence regarding the operability of the gun. See Allen, 317 N.C. at 125–26, 343 S.E.2d at 897 (“[T]here was evidence that the instrument used by defendant in the robbery appeared to be a firearm capable of endangering or threatening the life of the victim. There was also evidence that the instrument was either a cap pistol or an inoperative firearm incapable of threatening or endangering the life of the victim. It was thus for the jury to determine the nature of the weapon.”); State v. Duncan, 136 N.C.App. 515, 519–20, 524 S.E.2d 808, 811 (2000) (holding that where State presented testimony of victim that defendant pointed what appeared to be a silver handgun at victim during robbery, trial court properly submitted armed robbery charge to jury despite defendant's testimony that handgun was inoperable).
Based on this same argument, defendant also challenges his conviction for conspiracy to commit robbery with a dangerous weapon. Our Supreme Court has defined the offense of conspiracy as
an agreement between two or more persons to do an unlawful act or to do a lawful act in an unlawful way or by unlawful means. To constitute a conspiracy it is not necessary that the parties should have come together and agreed in express terms to unite for a common object: A mutual, implied understanding is sufficient, so far as the combination or conspiracy is concerned, to constitute the offense.
State v. Bindyke, 288 N.C. 608, 615–16, 220 S.E.2d 521, 526 (1975) (citation, quotation marks, and emphasis omitted).
It is, therefore, “not necessary for all of the parties to the conspiracy to agree expressly to the use of a dangerous weapon prior to the robbery in order for a charge of conspiracy to commit robbery with a dangerous weapon to be submitted to the jury.” State v. Carter, 177 N.C.App. 539, 541, 629 S.E.2d 332, 335,aff'd per curiam, 361 N.C. 108, 637 S.E.2d 537 (2006). Instead, it is “only essential that there be evidence that the parties had a mutual, implied understanding to commit robbery with a dangerous weapon.” State v. Johnson, 164 N.C.App. 1, 17, 595 S.E.2d 176, 186,appeal dismissed and disc. review denied,359 N.C. 194, 607 S.E.2d 658–59 (2004).
Notably, defendant makes no argument that there was insufficient evidence of an agreement between himself and Conner to use the gun to commit the robbery. Instead, as with his argument regarding the armed robbery charge, defendant contends that the charge for conspiracy to commit robbery with a dangerous weapon should have been dismissed because “[n]o ... evidence was presented to support a finding that the gun was indeed operable ....“ However, as addressed above, we reject this argument. The evidence presented at trial was sufficient to permit a reasonable inference by the jury that the instrument was an operable firearm and thus a dangerous weapon under § 14–87. See Allen, 317 N.C. at 125–26, 343 S.E.2d at 897;Duncan, 136 N.C.App. at 519–20, 524 S.E.2d at 811. For these reasons, the trial court did not err in denying defendant's motion to dismiss with respect to the charge of conspiracy to commit robbery with a dangerous weapon.
II. Jury Instructions
Defendant also contends that the trial court should have instructed the jury on (1) the lesser-included offense of common law robbery; (2) the offense of conspiracy to commit common law robbery; and (3) the definition of the term “dangerous weapon.” Defendant acknowledges that because he failed to request these instructions at trial, our standard of review is limited to reviewing for plain error. Our Supreme Court has recently emphasized that in order
[f]or an error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial. 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. Moreover, because plain error is to be applied cautiously and only in the exceptional case, the error will often be one that seriously affects the fairness, integrity or public reputation of judicial proceedings.
State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (citation, quotation marks, and alterations omitted).
With regard to defendant's argument that the trial court should have instructed the jury on common law robbery as a lesser-included offense of armed robbery, our Supreme Court has ruled that
where the uncontroverted evidence is positive and unequivocal as to each and every element of armed robbery, and there is no evidence supporting [the] defendant's guilt of a lesser included offense, the trial court does not err by failing to instruct the jury on the lesser included offense of common law robbery. The sole factor determining the judge's obligation to give such an instruction is the presence, or absence, of any evidence in the record which might convince a rational trier of fact to convict the defendant of a less grievous offense.
State v. Cummings, 346 N.C. 291, 325, 488 S.E.2d 550, 570 (1997) (citation and quotation marks omitted), cert. denied,522 U.S. 1092, 139 L.Ed.2d 873 (1998).
“The critical difference between armed robbery and common law robbery is that [armed robbery] is accomplished by the use or threatened use of a dangerous weapon whereby the life of a person is endangered or threatened.” State v. Peacock, 313 N.C. 554, 562, 330 S.E.2d 190, 195 (1985). Common law robbery, on the other hand, does not require the use or threatened use of a dangerous weapon. Id. at 562–63, 330 S.E.2d at 195.
In cases where the evidence is conflicting as to whether an instrument that appeared to be a firearm was, in fact, fake, unloaded, inoperable, or otherwise incapable of firing, the trial court is required to instruct the jury on the lesser-included offense of common law robbery as well as the greater offense of armed robbery. See State v. Mitchell, 317 N.C. 661, 669, 346 S.E.2d 458, 463 (1986) (holding that defendant's testimony that gun used in robbery was not loaded “was affirmative evidence tending to show that life was not threatened or endangered by the defendant” and thus “the trial court was required to instruct the jury on the lesser included offense of common law robbery”); Joyner, 312 N.C. at 786, 324 S.E.2d at 846 (holding that where “some evidence” in record suggested that rifle used in robbery was not loaded and without firing pin, trial court “properly instructed the jury that they were to consider possible verdicts of guilty of armed robbery, guilty of the lesser included offense of common law robbery and not guilty”).
In the present case, as discussed above, the evidence was conflicting as to whether the gun was operable at the time of the robbery. Thus, the trial court erred in failing to instruct the jury on both armed robbery and common law robbery. See Mitchell, 317 N.C. at 669, 346 S.E.2d at 463;Joyner, 312 N.C. at 786, 324 S.E.2d at 846.
Similarly, when a defendant is charged with conspiracy to commit armed robbery and the evidence of the firearm's operability is conflicting, the trial court should also instruct the jury on conspiracy to commit common law robbery. See Carter, 177 N.C.App. at 543, 629 S.E.2d at 336 (“The same conflicting evidence [regarding the nature of the weapon] directly pertained to defendant's charge of conspiracy to commit robbery with a dangerous weapon, in that the evidence regarding the agreement between defendant, Oakley, and the other parties to the conspiracy also was conflicting as to whether or not the gun Oakley was to use was in fact real. Thus, we hold the trial court erred in failing to instruct the jury on the offense of conspiracy to commit common law robbery ....“ Furthermore, in such cases, “the jury must be properly instructed with a definition of a dangerous weapon.” State v. Fleming, 148 N.C.App. 16, 26, 557 S.E.2d 560, 566 (2001).
The trial court thus erred in this case by not instructing the jury on (1) the lesser-included offense of common law robbery; (2) conspiracy to commit common law robbery; and (3) the definition of the term “dangerous weapon.” We are not convinced, however, that these instructional errors amounted to plain error.
Defendant is correct that in Carter and Fleming this Court found plain error where—as here—the evidence regarding the dangerous nature of the weapon used was conflicting and the trial court failed to give the required instructions. However, in neither Carter nor Fleming did the Court address whether the respective defendants had demonstrated “the prejudicial effect necessary to establish that the error was a fundamental error.” Lawrence, 365 N.C. at 519, 723 S.E.2d at 335. Our Supreme Court has recently made clear that “[i]t is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court.” Id. at 517, 723 S.E.2d at 333 (citation and quotation marks omitted).
The Supreme Court's recent clarification of the plain error standard in Lawrence provides guidance in determining whether the instructional errors in this case constitute plain error. There, the defendant was charged with, among other offenses, conspiracy to commit robbery with a dangerous weapon and attempted robbery with a dangerous weapon. Id. at 510, 723 S.E.2d at 329. The trial court properly instructed the jury on the attempted robbery charge but, when instructing the jury on the conspiracy charge, “erroneously omitted the element that the weapon must have been used to endanger or threaten the life of the victim.” Id. Although this Court had held that the omission constituted plain error, the Supreme Court disagreed, reasoning that since the trial court had properly instructed the jury on attempted robbery, the only additional element necessary for a conviction on the conspiracy charge was that of an agreement to commit the robbery. Id. at 519, 723 S.E.2d at 334. Relying on the “overwhelming” evidence of the agreement between the co-conspirators, the Court held that the defendant could not “show the prejudicial effect necessary to establish that the error was a fundamental error.” Id., 723 S.E.2d at 335 (emphasis added).
Similarly, here, in arguing plain error on appeal, defendant overlooks critical evidence presented at trial. Conner—defendant's co-conspirator and the individual who actually committed the robbery—repeatedly testified that he “robbed” Reese at the ATM and that he did so with “a gun.” Throughout his testimony, Conner was affirmative and unequivocal that he committed the robbery with a gun. Indeed, there is no portion of his testimony that even remotely suggests that the gun was inoperable at the time of the robbery. In light of this testimony, “defendant cannot show that, absent the error, the jury probably would have returned a different verdict.” Id.; see also State v. Carter, ––– N.C. ––––, ––––, 739 S.E.2d 548, 551–52 (2013) (holding, based on Lawrence, that even if trial court erred in failing to instruct on lesser-included offense, error would “not rise to the level of plain error” in light of sufficient evidence of defendant's guilt of greater offense).
Moreover, defendant's principal defense at trial was not that no armed robbery occurred, but rather, that he was an innocent bystander. Indeed, during both opening statements and closing arguments, defense counsel made statements acknowledging that Conner “pull[ed] out a gun ... and rob[bed] Mr. Reese.” Thus, the issue regarding whether the gun was operable was not critical to defendant's defense. See Mitchell, 317 N.C. at 669, 346 S.E.2d at 463 (holding that while trial court erred in not instructing on common law robbery where defendant testified that gun used was unloaded, omission was not plain error because dangerousness of gun was not central to “defendant's main defense”). In light of Lawrence and Mitchell, we conclude that the trial court's instructional errors in this case were “not such an egregious denial of a fundamental right as to be ‘plain error’ entitling [defendant] to relief in the absence of an objection.” Id.
III. Right to Effective Assistance of Counsel
Defendant's final argument on appeal is that he received ineffective assistance of counsel when his trial counsel failed to request the jury instructions addressed above. In order to establish ineffective assistance of counsel, a defendant must satisfy both parts of a two-pronged test by establishing that: (1) “counsel's performance fell below an objective standard of reasonableness”; and (2) “the error committed was so serious that a reasonable probability exists that the trial result would have been different absent the error.” State v. Blakeney, 352 N.C. 287, 307–08, 531 S.E.2d 799, 814–15 (2000) (citing Strickland v. Washington, 466 U.S. 668, 80 L.Ed.2d 674 (1984)), cert. denied, 531 U.S. 1117, 148 L.Ed.2d 780 (2001).
Our Supreme Court has further explained that “[t]he fact that counsel made an error, even an unreasonable error, does not warrant reversal of a conviction [based on ineffective assistance of counsel] unless there is a reasonable probability that, but for counsel's errors, there would have been a different result in the proceedings.” State v. Braswell, 312 N.C. 553, 563, 324 S.E.2d 241, 248 (1985). Consequently, “if a reviewing court can determine at the outset that there is no reasonable probability that in the absence of counsel's alleged errors the result of the proceeding would have been different, then the court need not determine whether counsel's performance was actually deficient.” Id., 324 S.E.2d at 249.
Once again, we believe that defendant cannot show prejudice from his trial counsel's failure to request these instructions. As such, his claim for ineffective assistance of counsel lacks merit. See id. at 563–64, 324 S.E.2d at 249 (rejecting defendant's ineffective assistance of counsel claim for failure to demonstrate prejudice where (1) “evidence of defendant's guilt was overwhelming”; and (2) defendant's defense was an “unlikely story” of self-defense); see also State v. Cameron, N.C.App. –––, ––––, 732 S.E.2d 386, 389 (2012) (“Even if we assume arguendo that defendant's counsel's representation was deficient and the jury instructions were in error, for the same reasons [that the assumed error does not constitute plain error], ... we cannot conclude that there is a reasonable probability that, but for counsel's errors, there would have been a different result in the proceedings.”).
Conclusion
For the reasons stated above, we conclude that defendant received a fair trial free from prejudicial error.
NO PREJUDICIAL ERROR. Judges CALABRIA and STROUD concur.
Report per Rule 30(e).