Opinion
No. COA02-1043
Filed 5 August 2003 This case not for publication
Appeal by defendant from judgment entered 4 August 1995 by Judge Hollis M. Owens, Jr., in Henderson County Superior Court. Heard in the Court of Appeals 22 May 2003.
Attorney General Roy Cooper, by Assistant Attorney General John P. Scherer, II, for the State. Everett Hite, L.L.P., by Kimberly A. Swank, for defendant appellant.
Henderson County Nos. 94 CRS 5296, 8296.
Defendant Timothy Clarence Allison was tried before a jury at the 31 July 1995 Criminal Session of Henderson County Superior Court after being charged with one count of felonious assault with a deadly weapon inflicting serious injury and for being an habitual felon. The pertinent facts of defendant's case are as follows: On 26 June 1994, Ronald Justice (Justice) and his girlfriend, Audrey Henderson, were watching television in Ms. Henderson's trailer. Around 10:30 a.m., they heard a knock at the door. Justice opened the door and let defendant into the trailer. Defendant immediately asked Justice to pay him back the $30.00 he owed, which Justice did. The two men had spoken a few days before about furniture Justice was selling. The two then walked to the back of the trailer so Justice could show defendant the furniture they had previously discussed.
Defendant arrived at Ms. Henderson's trailer in a car with his girlfriend Darcey Martin and their infant daughter. Ms. Martin and the baby remained near the car while defendant went into the trailer. Ms. Henderson went outside to speak to Ms. Martin while the men looked at the furniture. The women talked about their boyfriends, and Ms. Martin told Ms. Henderson that defendant had beaten her, and that defendant was carrying a gun and meant to use it on Justice. At some point during the conversation, Ms. Martin described defendant as "crazy," and Ms. Henderson agreed that Justice sometimes acted "crazy" too. Ms. Henderson told Ms. Martin she and defendant needed to leave, then went back to the porch of her trailer.
After looking at the furniture, defendant was not interested in buying it. As he and Justice walked to the front of the trailer, defendant went to his car and got into the passenger seat. Justice testified that he asked defendant if he owed him anything else, to which defendant replied, "No, we're even." Justice then told defendant, "I want you and that Crack Whore to get out of my yard and don't come back to my house anymore." Justice also told defendant he had heard that defendant was talking to some people about his business, that other people told him defendant had a problem with him, and that he did not like it.
Defendant told his girlfriend to drive away. When he was approximately five feet away from defendant, Justice took off his glasses and told defendant if he had a problem with him, he needed to get out of his car and finish it like a man. Defendant stated he had no problem. Justice then turned and began walking toward the trailer. Ms. Martin began backing out of the yard when Ms. Henderson saw defendant pull out a gun. She screamed, "Ronnie, he's got a gun." Justice turned around and was shot multiple times by defendant. Justice was hit in the groin and in the lower right leg and underwent emergency surgery to address those injuries and to ensure that he did not suffer life-threatening complications.
At trial, Ms. Henderson corroborated the sequence of events Justice described. The State also presented the testimony of several law enforcement officers who were involved in the case. Deputy Sheriff Leonard Nix and Detective Walter Harper of the Henderson County Sheriff's Office secured the scene, talked to Ms. Henderson and Justice, and looked around the trailer and surrounding property for evidence. The officers did not find any weapons at the crime scene or on Justice's person, but did find six .38 caliber shell casings outdoors. Detective Sergeant Randy Stepp of the Henderson County Sheriff's Department heard about the shooting from a police dispatcher and found defendant and Ms. Martin approximately 10-15 minutes after the incident. Detective Stepp and his fellow officers executed a felony stop and placed defendant in custody. Defendant was arrested for assault with a deadly weapon with intent to kill inflicting serious injury, and Ms. Martin was also arrested. The car was searched, but no weapon was found. Defendant initially denied knowledge of the shooting, then asked what he was being charged with. Detective Stepp told defendant he was charged with assault with a deadly weapon with intent to kill inflicting serious injury, but that if the victim died, he would be charged with first-degree murder. Detective Stepp testified defendant snickered and told him that if the shots were fired below the waist, it was not murder. Both Detective Stepp and his fellow officer told defendant that was not true, and took him to the sheriff's office for booking. Defendant waived his rights and told Detective Harper he knew nothing about the incident. Each of the officers who testified affirmatively stated that defendant never told them that he acted in self-defense, that he had a fight with Justice, that Justice threatened him, or that Justice had a knife.
At the close of the State's evidence, defendant presented the testimony of Ms. Martin. She stated that Ms. Henderson warned her that Justice had "been eatin' Zanex and he was in a real bad mood already cause they were fightin'." Ms. Martin also stated she saw Justice carrying a knife as he and defendant came to the front of the trailer, and that defendant was running toward her, so she got into the car and started it. She testified she was afraid Justice was going to hurt defendant, her, or their baby, so she tried to back out of the yard, but the car stalled and she had to restart it. When asked what happened as she backed away, she invoked her constitutional right against self-incrimination. On cross-examination, Ms. Martin admitted that she never mentioned a knife, self-defense, or fear of attack by Justice in her statements to law enforcement officers.
Defendant testified on his own behalf and stated that Justice was acting strangely and admitted to defendant that he had just taken some pills. According to defendant, Justice was belligerent and threw two twenty dollar bills at him without defendant asking for repayment. Defendant placed a ten dollar bill on a table as change, and Justice said he heard defendant had been talking to people about his business. After they looked at the furniture, Justice seemed angry that defendant did not want to buy it. Defendant testified that he wanted to leave at that point, but Justice hit him on the back of the head with his fist. Defendant stated he began running to his car because he was afraid of Justice. Defendant said when he saw Justice pull out a knife, he told his girlfriend to drive away. Defendant admitted he pulled a gun out of his waistband, but stated he did so because Justice was advancing on them with a knife, the car had stalled, and he feared for his life and the lives of his girlfriend and child. On cross-examination, defendant admitted he did not mention a knife or a fear of attack from Justice to any law enforcement officers.
Defendant's motion to dismiss at the close of all the evidence was denied. After deliberating, the jury found defendant guilty of assault with a deadly weapon inflicting serious injury and for being an habitual felon. Defendant was sentenced in the aggravated range to a term of fifty years' imprisonment, and appealed.
On appeal, defendant argues the trial court erred by (I)allowing the prosecutor to make improper comments to the jury during the habitual felon proceedings; (II) depriving him of his federal and state constitutional rights by precluding him from presenting evidence in support of his motion to dismiss the habitual felon indictment; (III) imposing judgment for the charge of habitual felon because the trial court lacked jurisdiction; (IV) relying erroneously on an element to aggravate his sentence; and (V) failing to instruct the jury on the defense of another. Defendant also argues that he was (VI) being denied effective assistance of counsel; and (VII) considering parole eligibility information by the jury violated the separation of powers clause in the North Carolina Constitution. For the reasons stated herein, we disagree with defendant's arguments and hold he received a trial free from error.
Prosecutor's Comments
By his first assignment of error, defendant contends the trial court erred by failing to intervene ex mero motu during the habitual felon proceeding when the prosecutor argued to the jury. Specifically, defendant contends that the prosecutor expressed personal knowledge or beliefs on matters not in evidence, misrepresented the law, and improperly influenced the jury with irrelevant and highly prejudicial matters. Defendant maintains the prosecutor's conduct violated his due process rights. We do not agree.
During the habitual felon proceeding, the prosecutor made the following comments:
Members of the jury, thank you for your patience. It was not until you returned your verdict that we could hear the matters of law pertaining to this, and that's the reason for the delay.
This is very important. The reason that I chose — you heard about the defendant's record, and the reason that I chose these three particular felonies was to indicate something to you. Number one, he's doing the same things over and over again. Number two, that it goes back to 1976. You know why that's important, it's important because the defendant has been doing this for a long, long time, going on twenty years.
And during that twenty years this defendant has been afforded every opportunity by the State of North Carolina, that the State of North Carolina can afford him, whether it is unsupervised probation, supervised probation, intensive probation, and parole. We've done everything that we can do with Mr. Allison and he just does not stop committing crimes, felony crimes at that, serious crimes. That's why the State comes before you and asks that you attribute this habitual felon status upon the defendant so that he can be sentenced appropriately in this matter.
The other factor I want you to consider is this, that at the time he committed this offense, the fourth felony, the one for which you convicted him today, that he was on parole. He had been released from the Department of Corrections. He was on parole, certifying to the State of North Carolina and to you as a citizen of this state, to the parole commission that he was going to remain of good behavior, and it didn't last very long. He was not to have had a gun and he had one. He was committing more serious offenses.
The Judge is going to instruct you that once again reasonable doubt applies. This is just like before, you've got to apply your reason and common sense and take all the evidence into consideration.
The State has presented you, members of the jury, with clear evidence that the defendant for some twenty years now has been committing very serious felony crimes, and unless you follow your duty, that it's going to happen again. I don't know what else we can do with him. The State's done everything we can do and this is the last step that we can take to make sure that he doesn't commit more crimes.
The maximum sentence which he can receive if you return this verdict is fifty years. He has to serve at least seven. If you don't do this, he's not even going to look at seven years. That's the bottom line here.
So I ask that when you go back to deliberate — I do apologize for the late hour, but we took into consideration that we didn't want you to have to come back tomorrow. We wanted you to be free to go about your own personal business tomorrow. When you go back there to deliberate, you consider this is clear evidence, this is convincing evidence. And I chose not only convictions going back twenty years, but three in which he pled guilty — that hasn't always been the case — but three in which he pled guilty so he can't come to you and say "I was found guilty wrongly".
This is clear evidence, members of the jury, and I hope you will consider that and do your duty, and follow the law in this case as Judge Owens is going to give it to you. Thank you.
Every person charged with a crime "is entitled to a trial before an impartial judge and an unprejudiced jury in keeping with substantive and procedural due process requirements of the Fourteenth Amendment. It is the duty of both the court and the prosecuting attorney to see that this right is sustained." State v. Britt, 288 N.C. 699, 710, 220 S.E.2d 283, 290 (1975) (citations omitted). Under N.C. Gen. Stat. § 15A-1230(a) (2001), a trial attorney must meet the following guidelines for a closing argument:
During a closing argument to the jury an attorney may not become abusive, inject his personal experiences, express his personal belief as to the truth or falsity of the evidence or as to the guilt or innocence of the defendant, or make arguments on the basis of matters outside the record except for matters concerning which the court may take judicial notice. An attorney may, however, on the basis of his analysis of the evidence, argue any position or conclusion with respect to a matter in issue.
"The scope of jury arguments is left largely to the control and discretion of the trial court, and trial counsel will be granted wide latitude in the argument of hotly contested cases." State v. Call, 349 N.C. 382, 419, 508 S.E.2d 496, 519 (1998).
The standard of review for assessing alleged improper closing arguments that fail to provoke timely objection from opposing counsel is whether the remarks were so grossly improper that the trial court committed reversible error in failing to intervene ex mero motu. State v. Trull, 349 N.C. 428, 451, 509 S.E.2d 178, 193 (1998), cert. denied, 528 U.S. 835, 145 L.Ed.2d 80 (1999). In other words, the reviewing court must determine whether the argument in question strayed far enough from the parameters of propriety that the trial court, in order to protect the rights of the parties and the sanctity of the proceedings, should have intervened on its own accord and: (1) precluded other similar remarks from the offending attorney; and/or (2) instructed the jury to disregard the improper comments already made.
State v. Jones, 355 N.C. 117, 133, 558 S.E.2d 97, 107 (2002). The comments "must be viewed in the context in which they were made and in light of the overall factual circumstances to which they referred." Call, 349 N.C. at 420, 508 S.E.2d at 519. The comments must be "both improper and prejudicial" to constitute reversible error. Jones, 355 N.C. at 133, 558 S.E.2d at 107-08.
(1) Defendant's prior record and future dangerousness
In the present case, defendant believes the prosecutor improperly referenced matters outside the record because she asserted that "defendant has been doing this for a long, long time, going on twenty years" and commented that "defendant has been afforded every opportunity whether it is unsupervised probation, supervised probation, intensive probation, and parole." Defendant argues these comments amounted to an improper reference to prior convictions in violation of N.C. Gen. Stat. § 8C-1, Rule 404(b) (2001) because the prosecutor referenced convictions for other, unrelated crimes to which he admitted on cross-examination (crimes which were not alleged in the habitual felon indictment).
Defendant further argues that inclusion of the prior convictions amounted to a use of prior bad acts to prove character and also placed before the jury an issue it was not to consider — future dangerousness.
The habitual felon indictment set forth six prior convictions (each for breaking and entering and larceny) which spanned nearly twenty years, from 1976 through 1995, when defendant was convicted for the underlying offense against Justice. Defendant pled guilty to three of those crimes, and the prosecutor stressed those three convictions during the habitual felon proceeding. These convictions were duly entered into evidence during the habitual felon proceeding. Thus, the prosecutor's reference to defendant's twenty-year criminal history was based on facts in the record. We also note that the prosecutor did not mention that defendant could be dangerous in the future; rather, that was an inference which the jury may or may not have made, based on the evidence before it.
Next, although the prosecutor made reference to probation and past parole, we do not believe this was an interjection of personal knowledge. It could reasonably be inferred from defendant's prior convictions that, each time he was released by the Department of Corrections, he was placed on some type of probation or parole. In fact, defendant stipulated during sentencing that he was on parole at the time he committed the crime against Justice.
(2) Sentencing implications and parole eligibility
Defendant also maintains the prosecutor engaged in gross misconduct by making improper statements about the potential sentence he faced and his eligibility for parole if he was not found to be an habitual felon. Specifically, defendant points out that the prosecutor told the jury that he could receive fifty years in prison, when in reality he could have received a life sentence. The prosecutor then told the jury he had to serve at least seven years of his fifty-year sentence, and also said that if defendant was not found to be an habitual felon, "he's not even going to look at seven years. That's the bottom line here."
Defendant makes several arguments regarding the impropriety of the prosecutor's statements. We will examine each one in turn.
First, defendant argues the statements amounted to an improper attempt to thwart the parole process because the prosecutor convinced the jury that it had to determine defendant was an habitual felon in order to keep him in prison for a reasonable amount of time. Parole eligibility is not a proper consideration for the judge or the jury, except where life without parole is a possibility. See State v. Conaway, 339 N.C. 487, 519-20, 453 S.E.2d 824, 844-45, cert. denied, 516 U.S. 884, 133 L.Ed.2d 153 (1995), cert. denied, 349 N.C. 367, 525 S.E.2d 181 (1998), cert. denied, 355 N.C. 752, 565 S.E.2d 673 (2002); and State v. Snowden, 26 N.C. App. 45, 215 S.E.2d 157, cert. denied, 288 N.C. 251, 217 S.E.2d 675 (1975). Defendant also argues the prosecutor diminished the jury's role by suggesting that he would be paroled no matter what the jury's verdict was. See State v. Jones, 296 N.C. 495, 251 S.E.2d 425 (1979).
Second, defendant contends the prosecutor's argument constituted a gross mischaracterization of North Carolina's sentencing scheme because she incorrectly told the jury that the maximum sentence defendant faced was fifty years, when in fact it was life imprisonment. See N.C. Gen. Stat. §§ 14-1.1, 14-7.6 (1993) (repealed effective 1 January 1995). Defendant's underlying conviction was a Class H felony, which carried a sentence of up to ten years. See N.C. Gen. Stat. § 14-32(b) (1993) (repealed effective 1 January 1995) and N.C. Gen. Stat. § 14-1.1(a)(8). A conviction for being an habitual felon required sentencing as a Class C felon and carried a minimum active sentence of fourteen years' imprisonment. See N.C. Gen. Stat. § 14-7.6. Thus, defendant argues, he would not be eligible for parole for twenty years if he received the maximum sentence of life imprisonment. See N.C. Gen. Stat. § 15A-1371(a)(1) (1993) (repealed effective 1 January 1995). Because a determination of parole eligibility is a complex matter within the exclusive judgment of the parole commission, defendant contends the prosecutor should not have mentioned it and the jury should not have considered it. See Goble v. Bounds, 281 N.C. 307, 310, 188 S.E.2d 347, 349 (1972).
Third, defendant contends the prosecutor's arguments were an improper expression of her personal knowledge of matters outside the record, because no evidence had been presented at any stage of the proceedings on the subject of sentencing implications or defendant's eligibility for parole. Defendant maintains the prosecutor violated both N.C. Gen. Stat. § 15A-1230 and North Carolina Rule of Professional Conduct 7.6 (injection of personal knowledge of facts in issue).
Finally, defendant notes that he had no opportunity for cross- examination with regard to the prosecutor's statements, which constituted a violation of his constitutional right to confront his accusers. See U.S. Const. Amend. VI, XIV and N.C. Const. Art. I, § 23.
Despite the aforementioned arguments presented by defendant, we note that none of the information about parole was relevant to the issue of whether defendant had three prior felony convictions and was thus eligible, upon conviction of his fourth felony, to be convicted as an habitual felon. The State entered defendant's prior convictions into evidence, and the jury could clearly determine that defendant had at least three prior felony convictions and that they could find him to be an habitual felon. Thus, the trial court's failure to intervene ex mero motu was not reversible error.
While we do not condone the prosecutor's arguing outside the record, defendant is not entitled to relief because he has not demonstrated that the prosecutor's comments "'so infected the trial with unfairness that they rendered the conviction fundamentally unfair.'" State v. Gell, 351 N.C. 192, 211, 524 S.E.2d 332, 345, cert. denied, 531 U.S. 867, 148 L.Ed.2d 110 (2000) (quoting State v. Davis, 349 N.C. 1, 45, 506 S.E.2d 455, 467 (1998), cert. denied, 526 U.S. 1161, 144 L.Ed.2d 219 (1999)). Defendant cannot show that the outcome would have been different had the trial court intervened to stop the prosecutor's comments. The record indicates that the trial court properly instructed the jury on the elements of being an habitual felon, and defendant cannot show that the jury found defendant to be an habitual felon based on anything other than those elements. Accordingly, his first assignment of error is overruled.
Motion to Dismiss Habitual Felon Indictment
By his second assignment of error, defendant contends the trial court erred when it denied him an evidentiary hearing on selective prosecution and when it subsequently denied his motion to dismiss the habitual felon indictment. We do not agree.
Defendant's motion to dismiss the habitual felon indictment was predicated upon his belief that he had been the victim of selective prosecution. Defendant subpoenaed District Attorney Jeff Hunt and called him to testify at the hearing on his motion to dismiss. The State consulted the Attorney General's Office and moved to quash the subpoena because District Attorney Hunt's testimony would create a conflict of interest requiring the prosecutor to withdraw from the case. Upon consideration of the arguments, the trial court granted the State's motion to quash the subpoena, denied defendant's request for a continuance to obtain other evidence, and summarily denied defendant's motion to dismiss the habitual felon indictment because the motion was not supported by any evidence.
In order to sustain a claim of selective prosecution, a defendant must establish that the District Attorney abused his prosecutorial prerogative by deliberately selecting a case for prosecution based upon an unjustifiable standard. State v. Wilson, 139 N.C. App. 544, 550-51, 533 S.E.2d 865, 869-70, appeal dismissed, disc. review denied, 353 N.C. 279, 546 S.E.2d 394 (2000). "Unjustifiable standards" include race, religion, or some other arbitrary classification. State v. Cherry, 298 N.C. 86, 103, 257 S.E.2d 551, 562 (1979), cert. denied, 446 U.S. 941, 64 L.Ed.2d 796 (1980).
Defendant maintains the trial court foreclosed his attorney from providing effective assistance of counsel when it quashed the subpoena, when it denied his request for a continuance to obtain other evidence in support of his selective prosecution claim, and when it prevented defendant from presenting relevant evidence in support of his written motion to dismiss. He maintains the testimony of the District Attorney was necessary to his motion and that such questioning has been permitted in the past. See Wilson, 139 N.C. App. 544, 533 S.E.2d 856; State v. King, 311 N.C. 603, 320 S.E.2d 1 (1984); and State v. Creech, 37 N.C. App. 261, 245 S.E.2d 817, cert. denied, 295 N.C. 554, 248 S.E.2d 731 (1978).
Upon review of defendant's 25 February 1995 written motion, we discern no selective prosecution based on any discriminatory purpose. Although defendant referenced "an arbitrary, capricious, and unjustifiable standard," he did not present documents, affidavits, or any other form of evidence to back up that allegation. Even though he filed his motion in February, defendant inexplicably waited until the end of July or early August to issue the subpoena to District Attorney Hunt. During his argument before the trial court, defendant attempted to present six purported examples of similarly situated individuals who did not face prosecution. He did not present any evidence of intentional discrimination; rather, his evidence simply showed that the District Attorney had exercised his discretion. Defendant's motion lacked substantial evidence to back his allegations. Prior cases have held that, without substantial evidence of intentional discrimination, an evidentiary hearing will not be allowed. See State v. Spicer, 299 N.C. 309, 313-14, 261 S.E.2d 893, 896-97 (1980). Because defendant's motion contained mere allegations without evidence to support them, and because there was an untimely subpoena upon District Attorney Hunt, we believe the trial court properly quashed the subpoena, properly denied a continuance, and properly denied an evidentiary hearing on this matter. We have considered defendant's additional arguments on this subject and conclude they are meritless. Defendant had an opportunity to make arguments before the trial court; thus we hold he was not deprived of his due process rights. Accordingly, his second assignment of error is overruled.
Jurisdiction to Impose Judgment
By his next assignment of error, defendant contends the trial court lacked jurisdiction to enter its judgment because it erroneously imposed a judgment against him for the crime of habitual felon. We disagree.
It is well settled that "[b]eing an habitual felon is not a crime but is a status the attaining of which subjects a person thereafter convicted of a crime to an increased punishment for that crime. The status itself, standing alone, will not support a criminal sentence." State v. Allen, 292 N.C. 431, 435, 233 S.E.2d 585, 588 (1977). Here, the trial court erroneously entered judgment against defendant as an habitual felon. However, we believe this was a clerical error rather than reversible error. The transcript indicates that when the trial court considered aggravating and mitigating factors, it noted that defendant was on parole when he committed the underlying offense against Justice, but never found defendant guilty of the crime of habitual felon. Thus, we agree with the State that the transcript differs from the judgment, which itself does demonstrate a clerical error. Upon careful review, we discern no prejudice suffered by defendant, and he is therefore not entitled to relief. See Gell, 351 N.C. at 218, 524 S.E.2d at 349. This assignment of error is overruled.
Use of Deadly Weapon as Aggravating Factor
By his fourth assignment of error, defendant contends the trial court committed reversible error because it aggravated his sentence based on a finding that he used a deadly weapon in the commission of the underlying offense. Defendant correctly notes that use of a deadly weapon is an element of the offense of assault with a deadly weapon inflicting serious injury. See N.C. Gen. Stat. § 14-32(b) (2001); and State v. Jones, 353 N.C. 159, 164, 538 S.E.2d 917, 922 (2000). Evidence necessary to prove an element of the offense may not be used to aggravate a sentence for that offense. N.C. Gen. Stat. § 15A-1340.16(d) (2001); State v. Beamer, 339 N.C. 477, 485, 451 S.E.2d 190, 195 (1994).
When considering the aggravating and mitigating factors in defendant's case, the trial court stated:
The Court has considered all the aggr[a]vating factors and mitigating factors set forth in 15A and find the aggr[a]vating factor that the defendant has numerous prior convictions that carry more than sixty days in prison and the aggr[a]vating factor that the defendant was on parol[e] at the time the assault in this case for which he has been convicted was committed. That these two aggr[a]vating factors have been proven by a preponderance of the evidence. That none of the mitigating factors set forth in the statute have been proved by the preponderance of the evidence and that the aggr[a]vating factors outweigh any mitigating factors.
This statement indicates the trial court found two aggravating factors for use in sentencing, and that use of a deadly weapon was not considered. Thus, we believe the checking of box 9b on the "Felony Judgment Findings of Factors in Aggravation and Mitigation of Punishment" was merely a clerical error and did not prejudice defendant in any way. See Gell, 351 N.C. at 218, 524 S.E.2d at 349. As such, defendant is not entitled to a new sentencing hearing, and this assignment of error is overruled.
Defense of Another
By his next assignment of error, defendant contends the trial court erred by failing to instruct the jury on the defense of another. At trial, defendant presented evidence that he shot Justice in self-defense, and the trial court duly gave an instruction on self-defense. Defendant maintains the evidence also supported an instruction on defense of another because he also presented evidence that he shot Justice in order to protect Ms. Martin and their baby daughter, and the trial court's failure to give that instruction amounted to plain error. We do not agree.
First, we recognize that we must review this assignment of error for plain error, as defendant did not object to the lack of a defense of another instruction at trial. See N.C.R. App. P. 10(b)(1) (2003). "Under a plain error analysis, defendant is entitled to a new trial only if the error was so fundamental that, absent the error, the jury probably would have reached a different result." State v. Jones, 355 N.C. 117, 125, 558 S.E.2d 97, 103 (2002). "'[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.'" State v. Odom, 307 N.C. 655, 661, 300 S.E.2d 375, 378 (1983) (quoting Henderson v. Kibbe, 431 U.S. 145, 154, 52 L.Ed.2d 203, 212 (1977)).
"A trial court is required to comprehensively instruct the jury on a defense to the charged crime when the evidence viewed in the light most favorable to the defendant reveals substantial evidence of each element of the defense." State v. Hayes, 130 N.C. App. 154, 178, 502 S.E.2d 853, 869-70 (1998), aff'd in part, modified in part, disc. review denied in part, 350 N.C. 79, 511 S.E.2d 302 (1999). "Substantial evidence" is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980).
To establish self-defense or defense of another, the evidence must
show that it appeared to defendant and he believed it to be necessary to kill the deceased in order to save himself or another from death or great bodily harm. It must also appear that the defendant's belief was reasonable in that the circumstances as they appeared to him at the time were sufficient to create such a belief in the mind of a person of ordinary firmness.
State v. McKoy, 332 N.C. 639, 644, 422 S.E.2d 713, 716 (1992).
The evidence, viewed in the light most favorable to defendant, indicates that Justice was angry with defendant and was possibly under the influence of medication. Defendant testified Justice hit him on the back of the head with his fist, cursed at him, chased him to his car, challenged him to a fight, brandished a knife, and threatened to kill defendant, his girlfriend, and their baby daughter. Both defendant and Ms. Martin stated that Justice was four to five feet away from them when they were in the car, that the car's windows were rolled down, and that they feared for their lives and for the safety of their child, who was in the backseat.
Defendant maintains the self-defense instruction was inadequate because it erroneously caused the jury to believe that his actions could only be justified if he acted to protect himself. He maintains he feared not only for his own life, but also for the lives of his girlfriend and daughter. We believe the jury accepted the self-defense instruction, used it to negate the "intent to kill" element in the charged offense, and found defendant guilty of the lesser charge of assault with a deadly weapon inflicting serious injury. Defendant has presented no evidence that the jury's verdict would have been different had the trial court included an instruction on defense of others. In the absence of such evidence, we conclude the trial court did not commit plain error, and this assignment of error is overruled.
Ineffective Assistance of Counsel
In his sixth assignment of error, defendant contends he was denied effective assistance of counsel because his attorney failed to properly preserve issues for appellate review, failed to make timely evidentiary objections, and failed to request appropriate jury instructions. In his brief, defendant lists ten additional instances in which he believes his trial attorney failed to adequately perform his duties. Defendant contends the cumulative effect of these deficiencies establishes that he was denied effective assistance of counsel and that, but for his counsel's deficient performance, there is a reasonable probability that the outcome of his trial would have been different.
To establish ineffective assistance of counsel, defendant must demonstrate "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). To do so, defendant must show two things:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Strickland v. Washington, 466 U.S. 668, 687, 80 L.Ed.2d 674, 693, reh'g denied, 467 U.S. 1267, 82 L.Ed.2d 864 (1984). In keeping with Strickland and its progeny, the appellate courts of this State do not second-guess trial counsel's decisions regarding trial tactics and strategy, including decisions regarding whether to present particular witnesses. State v. Lowery, 318 N.C. 54, 67-69, 347 S.E.2d 729, 738-39 (1986).
In the present case, defendant lists a number of perceived errors which he believes demonstrates ineffective assistance of counsel. We note that several of these alleged errors have already been addressed in his other assignments of error, and therefore do not need to be revisited. In support of his other alleged errors, we note that defendant has presented no argument or citation of authority. "Assignments of error not set out in the appellant's brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned." N.C.R. App. P. 28(b)(6) (2003). To the extent that defendant has cited no reasonable authority in support of these alleged errors, we deem them abandoned and decline to address them. See State v. Bonney, 329 N.C. 61, 82, 405 S.E.2d 145, 157 (1991).
Constitutionality of the Habitual Felon Act
In his final assignment of error, defendant contends the Habitual Felon Act, N.C. Gen. Stat. § 14-7.1 to -7.6 (2001), as applied in his case, violates the separation of powers clause of the North Carolina Constitution. Specifically, defendant contends there is a separation of powers problem because "[t]he granting, withholding or frustration of the parole power is not and has never been a responsibility of the judicial branch of government." Snowden, 26 N.C. App. at 47, 215 S.E.2d at 158. Thus, defendant maintains that the Habitual Felon Act may not be employed "to thwart the parole process[.]" Snowden, 26 N.C. App. at 48, 215 S.E.2d at 159. In his case, he believes that the jury was improperly allowed to consider his parole eligibility, a subject resting in the exclusive discretion of another branch of government. Defendant further believes the remedy for this error is vacation of his habitual felon conviction. We do not agree.
The procedures set forth in the Habitual Felon Act have been held to comport with a criminal defendant's federal and state constitutional rights. See Wilson, 139 N.C. App. at 550, 533 S.E.2d at 870; State v. Hairston, 137 N.C. App. 352, 354, 528 S.E.2d 29, 31 (2000); and State v. Hodge, 112 N.C. App. 462, 468, 436 S.E.2d 251, 255 (1993). Defendant has cited no authority in support of his contention that the Habitual Felon Act is unconstitutional. Moreover, as defendant did not raise this constitutional objection before the trial court, we will not consider it on appeal. See State v. Anthony, 354 N.C. 372, 389, 555 S.E.2d 557, 571, cert. denied, 354 N.C. 575, 559 S.E.2d 184 (2001), cert. denied, 536 U.S. 930, 153 L.Ed.2d 791 (2002).
Upon careful review of the record, the transcript, and the arguments presented by the parties, we conclude defendant received a fair trial, free from error.
No error.
Judges McGEE and CALABRIA concur.
Report per Rule 30(e).