State v. Harris ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
NO. COA13-1332
NORTH CAROLINA COURT OF APPEALS
Filed: 19 August 2014
STATE OF NORTH CAROLINA
Mecklenburg County
v.
Nos. 12 CRS 39332, 219403-04
MARLON DEVON HARRIS
Appeal by defendant from judgment entered 3 July 2013 by
Judge W. Robert Bell in Mecklenburg County Superior Court.
Heard in the Court of Appeals 4 August 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Ebony J. Pittman, for the State.
Kevin P. Bradley for defendant-appellant.
ERVIN, Judge.
Defendant Marlon Devon Harris appeals from a judgment
sentencing him to a term of imprisonment based upon his
convictions for possession of cocaine with the intent to sell or
deliver, the sale of cocaine, and having attained the status of
an habitual felon. On appeal, Defendant contends that he is
entitled to relief from the trial court’s judgment on the
grounds that his trial counsel’s failure to object to testimony
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to the effect that, shortly before the transaction upon which
the offenses that Defendant was convicted of committing
occurred, investigating officers had seen him engaged in what
appeared to be a hand-to-hand drug transaction with other
individuals and failure to request the delivery of an
instruction limiting the purposes for which the evidence could
be considered deprived him of his constitutionally protected
right to the effective assistance of counsel. After careful
consideration of Defendant’s challenge to the trial court’s
judgment in light of the record and the applicable law, we
conclude that the trial court’s judgment should remain
undisturbed.
I. Factual Background
A. Substantive Facts
On 3 May 2012, Detectives Charlie Davis and Sidney Lackey
of the Charlotte-Mecklenburg Police Department observed an
African-American male with long dreadlocks who was wearing a red
shirt, gray shorts, and red shoes engage in what appeared to be
hand-to-hand drug transactions with multiple individuals along
Tuckaseegee Road in Charlotte. After making these observations,
Detective Davis and Officer Lackey decided that Officer Lackey,
acting in an undercover capacity, should make contact with this
individual, whom the officers identified as Defendant, in an
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attempt to purchase drugs from him. As Detective Davis watched
from a distance, Officer Lackey approached Defendant; asked if
he had “a dub,” with a “dub” being a street term for twenty
dollars’ worth of cocaine; and received an affirmative answer.
As a result, Officer Lackey followed Defendant into a breezeway,
where Defendant handed him a substance subsequently identified
as .3 grams of crack cocaine and Officer Lackey handed Defendant
twenty dollars. After confirming the suspect’s identity with
Detective Davis, Officer Jonathan Frisk of the Charlotte-
Mecklenburg Police Department placed Defendant under arrest
while he was walking in the Tuckaseegee Road area.
B. Procedural History
On 3 May 2012, Magistrate’s Orders charging Defendant with
possession of cocaine with the intent to sell and deliver, the
sale of cocaine, and the delivery of cocaine were issued. On 14
May 2012, the Mecklenburg County grand jury returned bills of
indictment charging Defendant with possession of cocaine with
the intent to sell or deliver, the sale of cocaine, and the
delivery of cocaine. On 27 August 2012, the Mecklenburg County
grand jury returned a bill of indictment charging Defendant with
having attained the status of an habitual felon.
The charges against Defendant came on for trial before the
trial court and a jury at the 1 July 2013 criminal session of
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the Mecklenburg County Superior Court. On 3 July 2013, the jury
returned verdicts convicting Defendant of possession of cocaine
with the intent to sell or deliver, the sale of cocaine, and the
delivery of cocaine. On the same date, Defendant entered a plea
of guilty to having attained habitual felon status. At the
conclusion of the ensuing sentencing hearing, the trial court
arrested judgment in the case in which Defendant had been
convicted of the delivery of cocaine, consolidated Defendant’s
remaining convictions for judgment, and entered a judgment
sentencing Defendant to a term of 120 to 156 months
imprisonment. Defendant noted an appeal to this Court from the
trial court’s judgment.
II. Substantive Legal Analysis
In his sole challenge to the trial court’s judgment,
Defendant contends that he was deprived of his right to the
effective assistance of counsel. More specifically, Defendant
contends that he received constitutionally deficient
representation from his trial counsel given the failure of his
trial counsel to object to the testimony of Detective Davis and
Officer Lackey concerning the other drug transactions that they
observed prior to the purchase that Officer Lackey made from
Defendant and to request the trial court to deliver an
appropriate limiting instruction in the event that the
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challenged evidence was, in fact, admissible for some non-
propensity-related purpose. We do not find Defendant’s argument
persuasive.
“When a defendant attacks his conviction on the basis that
counsel was ineffective, he must show that his counsel’s conduct
fell below an objective standard of reasonableness.” State v.
Braswell, 312 N.C. 553, 561-62, 324 S.E.2d 241, 248 (1985)
(citing Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.
Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984)). To successfully
assert an ineffective assistance of counsel claim, a “defendant
must prove that counsel’s performance was so deficient as to
deprive him of his right to be represented and that absent the
deficient performance by defense counsel, there would have been
a different result at trial.” State v. Strickland, 346 N.C.
443, 455, 488 S.E.2d 194, 201 (1997) (citing Braswell, 312 N.C.
at 562-63, 324 S.E.2d at 248, which describes the applicable
prejudice test as whether there is a “reasonable probability”
that the outcome would have been different but for the allegedly
deficient representation), cert. denied, 522 U.S. 1078, 118 S.
Ct. 858, 139 L. Ed. 2d 757 (1998). A reviewing court addressing
an ineffective assistance of counsel claim “need not determine
whether counsel’s performance was deficient before examining the
prejudice suffered by the defendant as a result of the alleged
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deficiencies,” so that, “[i]f it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient
prejudice, which we expect will often be the case, that course
should be followed.” Strickland, 466 U.S. at 697, 104 S. Ct. at
2069, 80 L. Ed. 2d at 699.
An ineffective assistance of counsel claim asserted on
direct appeal may “be decided on the merits when the cold record
reveals that no further investigation is required, i.e., claims
that may be developed and argued without such ancillary
procedures as the appointment of investigators or an evidentiary
hearing.” State v. Fair, 354 N.C. 131, 166, 557 S.E.2d 500, 524
(2001), cert. denied, 535 U.S. 1114, 122 S. Ct. 2332, 153 L. Ed.
2d 162 (2002). As a result of our inability to see how further
evidentiary development would have any bearing on the proper
resolution of the ineffective assistance of counsel claim that
Defendant has advanced in this case, we will proceed to address
Defendant’s ineffectiveness claim on the merits.
According to Defendant, the testimony of Detective Davis
and Officer Lackey concerning the drug transactions in which
Defendant appeared to have engaged prior to the point at which
he sold cocaine to Officer Lackey was inadmissible pursuant to
N.C. Gen. Stat. § 8C-1, Rule 404(b), which provides that
“[e]vidence of other crimes, wrongs, or acts is not admissible
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to prove the character of a person in order to show that he
acted in conformity therewith,” but “may, however, be admissible
for other purposes, such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of
mistake, entrapment, or accident.” As the Supreme Court has
clearly held, N.C. Gen. Stat. § 8C-1, “Rule 404(b) states a
clear general rule of inclusion of relevant evidence of other
crimes, wrongs or acts by a defendant, subject to but one
exception requiring its exclusion if its only probative value is
to show that the defendant has the propensity or disposition to
commit an offense of the nature of the crime charged.” State v.
Coffey, 326 N.C. 268, 279, 389 S.E.2d 48, 54 (1990) (emphasis
omitted). According to well-established North Carolina law,
evidence concerning the drug transactions that Detective Davis
and Officer Lackey observed before Officer Lackey purchased
cocaine from Defendant would have been admissible for a number
of purposes, including intent and identity. See, e.g., State v.
Montford, 137 N.C. App. 495, 501-02, 529 S.E.2d 247, 252
(upholding the admission of evidence of other drug sales by the
defendant for a number of purposes, including intent and
identity), cert. denied, 353 N.C. 275, 546 S.E.2d 386 (2000).
As a result, given that the evidence that underlies Defendant’s
ineffective assistance of counsel claim was, in fact, admissible
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for certain purposes, we are unable to conclude that the mere
failure of Defendant’s trial counsel to object to the admission
of the evidence at issue here constituted deficient
representation.
Assuming, without deciding, that Defendant’s trial counsel
should have requested the trial court to instruct the jury that
the evidence in question could only be considered for limited
purposes, such as intent and identity, we are unable to see how
the absence of such a limiting instruction prejudiced Defendant
in light of the record developed at trial. As the record
clearly reflects, both Detective Davis and Officer Lackey
identified Defendant as the individual whom they saw engaging in
what appeared to be hand-to-hand drug transactions in the
Tuckaseegee Road area immediately prior to the time at which
Officer Lackey purchased cocaine from Defendant. In addition,
Officer Lackey clearly identified Defendant as the individual
from whom he purchased cocaine. Finally, Officer Frisk placed
Defendant under arrest in the same area in which the events
described in the testimony of Detective Davis and Officer Lackey
had occurred. Although the record does establish, as Defendant
contends, that one or the other of the investigating officers
lost sight of Defendant at various times and that neither drugs
nor any significant amount of money were found on Defendant’s
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person at the time of his arrest, we are simply not persuaded
that there is a “reasonable probability” that the jury would
have acquitted Defendant if they had been instructed that the
evidence of Defendant’s earlier drug sales could only be
considered for the purpose of showing Defendant’s identity and
intent. As a result, we do not believe that Defendant is
entitled to relief from the trial court’s judgment based upon
his trial counsel’s failure to request the delivery of a
limiting instruction relating to the evidence of the drug sales
that Defendant appeared to have made prior to selling cocaine to
Officer Lackey.
III. Conclusion
Thus, for the reasons set forth above, we conclude that
neither aspect of Defendant’s challenge to the trial court’s
judgment has merit. As a result, the trial court’s judgment
should, and hereby does, remain undisturbed.
NO ERROR.
Judges Robert C. HUNTER and STEPHENS concur.
Report per Rule 30(e).