State v. Leath ( 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An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-967
NORTH CAROLINA COURT OF APPEALS
Filed: 18 February 2014
STATE OF NORTH CAROLINA
v. Alamance County
Nos. 12 CRS 53844
DERRICK LAMONT LEATH 13 CRS 610
Appeal by Defendant from judgment entered 11 April 2013 by
Judge James E. Hardin, Jr., in Alamance County Superior Court.
Heard in the Court of Appeals 27 January 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Robert K. Smith, for the State.
Todd A. Smith for Defendant.
DILLON, Judge.
Derrick Lamont Leath (“Defendant”) appeals from a judgment
entered upon his conviction for assault with a deadly weapon
inflicting serious injury (“AWDWISI”) and his guilty plea to
habitual felon status. Because we find substantial evidence of
Defendant’s use of a deadly weapon to assault his victim and
further find no constitutionally deficient performance by
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defense counsel, we hold that Defendant received a fair trial,
free from prejudicial error.
The State’s evidence tended to show that, on the night of
24 June 2012, Abjul Shields and Quixote Clark were working as
members of the security team at Club 778 on Graham-Hopedale Road
in Burlington, North Carolina. Shortly after midnight, Shields
walked to the rear of the club and observed Defendant cursing
and threatening Clark. When Defendant ignored his request to
leave, Shields moved between Defendant and Clark and told
Defendant, “[T]his is not what you want to do.” Defendant threw
a punch at Shields, striking him on the side of the face.
Despite landing with “[n]ot too much” force, the blow opened a
five-inch laceration on Shield’s cheek requiring twenty-nine
sutures to close. As Defendant ran, Shields entered a restroom
to examine his face, which “looked like a fish.” Shields was
transported by ambulance to the emergency room, where staff
treated the cut to his face and smaller laceration on his left
wrist.
Within minutes of the foregoing encounter, Clark saw
Defendant in front of the club “[t]rying to leave.” When he
attempted to subdue Defendant, Clark observed a razor blade in
Defendant’s right hand “between his thumb and his forefinger.”
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Defendant swung at Clark twice with the blade before leaving
with an associate in a burgundy truck.
The jury found Defendant guilty of AWDWISI upon Shields but
not guilty of assault with a deadly weapon upon Clark, who
accused Defendant of striking him with a beer bottle prior to
the assault on Shields. After Defendant pled guilty to being an
habitual felon, the trial court sentenced him to an active
prison term of 90 to 120 months. Defendant gave notice of
appeal in open court.
Defendant first claims that the trial court erred in
denying his motion to dismiss the AWDWISI charge based on the
lack of evidence that he employed a deadly weapon in assaulting
Shields. We do not agree.
The trial court’s denial of a motion to dismiss for
insufficient evidence is reviewed de novo. State v. Lowery, __
N.C. App. __, __, 743 S.E.2d 696, 698-99, disc. review denied,
__ N.C. __, 749 S.E.2d 858 (2013). In conducting our review,
“this Court determines whether the State presented substantial
evidence in support of each element of the charged offense.
Substantial evidence is relevant evidence that a reasonable
person might accept as adequate, or would consider necessary to
support a particular conclusion.” State v. Abshire, 363 N.C.
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322, 327-28, 677 S.E.2d 444, 449 (2009) (citations and quotation
marks omitted).
Defendant does not challenge the evidence that he assaulted
or inflicted a serious injury upon Shields. Accordingly, we
need only determine whether the State adduced “substantial
evidence – whether direct, circumstantial, or both – to support
a finding” that Defendant committed the assault with a deadly
weapon. Id. at 328, 677 S.E.2d at 449 (quotation omitted); see
also State v. Jones, 353 N.C. 159, 164, 538 S.E.2d 917, 922
(2000) (listing elements of AWDWISI). “An instrument which is
likely to produce death or great bodily harm under the
circumstances of its use is properly denominated a deadly
weapon.” State v. Joyner, 295 N.C. 55, 64, 243 S.E.2d 367, 373
(1978).
While it is true that no witness saw Defendant use a weapon
to cut Shields, Clark testified that he saw a razor blade in
Defendant’s right hand moments after Defendant opened a five-
inch laceration on Shields’ face by means of a single punch
delivered with little force. The treating physician described
the wound as a “clean” cut, “almost surgical” in nature, and
“obviously” produced by “a very sharp blade, a very straight
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blade, a knife, a razor blade, a box cutter.”1 We believe a
reasonable juror could find this circumstantial evidence more
than sufficient to establish Defendant’s use of a razor blade in
a manner rendering it a deadly weapon. See State v. Gilliland,
66 N.C. App. 372, 373, 311 S.E.2d 40, 41 (1984); see also State
v. Torain, 316 N.C. 111, 121, 340 S.E.2d 465, 471, cert. denied,
479 U.S. 836, 93 L. Ed. 2d 77 (1986).
Defendant next asserts that his trial attorney violated his
constitutional right to effective assistance of counsel by
allowing Burlington Police Officer Neal Doss to testify
regarding prior out-of-court statements made by Shields and
Clark on the night of the assault which were inconsistent with
their sworn testimony at trial. Noting Shields’ testimony that
he never saw Defendant with a weapon, Defendant faults counsel
for allowing Officer Doss to recount Shields’ statement that he
had been “cut” by Defendant while attempting to break up a
“fight” between Defendant and another party. Similarly, Officer
Doss testified that Shields and Clark both claimed to have seen
a female hand Defendant a razor blade before he struck Shields.
Given “the lack of evidence that [he] had a razor blade on that
evening,” Defendant faults his counsel for (1) failing to object
1
Defendant conceded at trial that Shields’ wounds would support a
finding of “serious injury.”
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when Officer Doss testified about these statements on direct
examination, and (2) calling additional attention to these prior
statements in cross-examining Officer Doss.
In reviewing claims of ineffective assistance of counsel,
we apply the two-part test established in Strickland v.
Washington, 466 U.S. 668, 80 L. Ed. 2d 674 (1984), and adopted
for state constitutional purposes in State v. Braswell, 312 N.C.
553, 562-63, 324 S.E.2d 241, 248 (1985). Defendant must show
that (1) his counsel’s performance fell “below an objective
standard of reasonableness[,]” and (2) “there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” State v.
Waring, 364 N.C. 443, 502, 701 S.E.2d 615, 652 (2010) (quoting
Strickland, 466 U.S. at 688, 694, 80 L. Ed. 2d at 693, 698),
cert. denied, __ U.S. __, 181 L. Ed. 2d 53 (2011) (quotation
marks omitted).
Typically, claims of ineffective assistance of counsel are
more appropriately addressed in a collateral proceeding, which
allow for the development of additional evidence outside the
trial record. See State v. Lawson, 159 N.C. App. 534, 545, 583
S.E.2d 354, 361 (2003). However, such “claims brought on direct
review will be decided on the merits when the cold record
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reveals that no further investigation is required[.]” State v.
Phillips, 365 N.C. 103, 144, 711 S.E.2d 122, 151 (2011)
(quotation omitted), cert. denied, __ U.S. __, 182 L. Ed. 2d 176(2012). Moreover, under Strickland and its progeny, we “need
not determine whether counsel made errors if the record does not
show a reasonable probability that a different verdict would
have been reached in the absence of counsel’s deficient
performance.” State v. Banks, 163 N.C. App. 31, 36, 591 S.E.2d
917, 921, disc. review denied, 358 N.C. 377, 597 S.E.2d 767(2004) (citing Braswell, 312 N.C. at 563, 324 S.E.2d at 248-49).
The record before this Court shows that, throughout
Defendant’s trial, his counsel pursued the strategy of
discrediting Shields and Clark in the eyes of the jury.
Highlighting the multiple inconsistencies between the in-court
and out-of-court statements of the complainants was an obvious
tactic in furtherance of this strategy. See generally State v.
Bishop, 346 N.C. 365, 387, 488 S.E.2d 769, 780 (1997) (stating
that “[p]rior statements of a witness which are inconsistent
with his present testimony are not admissible as substantive
evidence because of their hearsay nature[;] [e]ven so, such
prior inconsistent statements are admissible for the purpose of
impeachment”) (quotation omitted). Prior to Officer Doss’s
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testimony, counsel had vigorously cross-examined Shields and
Clark about the discrepancies between their testimony and their
statements to investigators. Counsel elicited an admission from
Shields that he told the prosecutor that he knew Defendant “in
the community” and “had seen him at the club two times
before[,]” contradicting his testimony that he did not know and
had never seen Defendant prior to 24 June 2012. Shields further
conceded having told Officer Doss that Defendant “cut [him] with
a blade given to him by some unknown black female[,]” despite
the fact that he had not seen Defendant possess a weapon or
interact with a woman. Likewise, Clark admitted on cross-
examination that he “lie[d]” when he told police that he saw a
woman hand Defendant a razor. We believe that counsel’s use of
Officer Doss’s testimony as another opportunity to impeach the
complainants’ credibility was a sound tactical decision well
within the broad discretion granted to defense counsel under the
Sixth Amendment. See State v. Milano, 297 N.C. 485, 495, 256
S.E.2d 154, 160 (1979) (noting that “whether and how to conduct
cross-examination” is the “exclusive province of the lawyer
after consultation with his client”), overruled on other grounds
by State v. Grier, 307 N.C. 628, 300 S.E.2d 351 (1983). Indeed,
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the jury acquitted Defendant of assaulting Clark with a beer
bottle.
Assuming arguendo counsel’s handling of Officer Doss’s
testimony was objectively unreasonable, we find no probability
that it impacted the verdict in this cause. The trial court
instructed the jury that it “must not consider [witnesses’]
earlier statements as evidence of the truth of what was said at
that earlier time because it was not made under oath at this
trial[,]” but could consider the consistency or inconsistency of
a prior statement “in deciding whether you will believe or
disbelieve the witness’s testimony.” Inasmuch as “[t]he law
presumes that the jury follows the judge’s instructions[,]”
State v. Hopper, 292 N.C. 580, 589, 234 S.E.2d 580, 585 (1977),
we deem this instruction sufficient to foreclose any showing of
prejudice from counsel’s supposed error, particularly under the
heightened Strickland standard. Defendant’s argument is
overruled.
NO ERROR.
Chief Judge MARTIN and Judge HUNTER, JR., concur.
Report per Rule 30(e).