Opinion
No. COA09-678.
January 5, 2010.
Beaufort County Nos. 08 CRS 50396, 08 CRS 50399, 08 CRS 50401.
Appeal by defendant from judgments signed 14 January 2009 by Judge William C. Griffin, Jr. in Beaufort County Superior Court. Heard in the Court of Appeals 16 November 2009.
Roy Cooper, Attorney General, by John G. Barnwell, Assistant Attorney General, for the State. Gray, Johnson, and Lawson, LLP, by Thomas Johnson, Jr. and Sharon M. Lawson-Davis, for defendant-appellant.
Defendant was charged with three counts of possession with intent to sell or deliver cocaine and three counts of sale or delivery of cocaine with the offenses alleged to have occurred on 4 May, 9 May and 5 June 2007. The cases were joined for trial. Defendant was found guilty by a jury on all charges. Upon finding that defendant had a prior record level of V, the trial court sentenced him to three consecutive terms of imprisonment each for a minimum of 21 and a maximum of 26 months. Defendant appeals.
The State's evidence tended to show that Corporal Jonathan Kuhn, then a narcotics detective with the Washington Police Department, used Albert Craig as an undercover agent to buy illegal drugs. On 4 and 9 May 2007, Craig was searched to make sure he had no money or drugs on his person and was given a hidden video camera and audio transmitter to record the transaction and forty dollars to purchase drugs. Craig purchased crack cocaine from defendant and gave it to police officers. At the time of the purchases, the officers were close enough to Craig to be able to listen to the transaction through the audio transmitter. Upon his return, Craig was searched again for other drugs or money.
On 5 June 2007, Craig made a larger purchase of cocaine. In addition to the video and audio surveillance, a team from the Sheriff's Office Drug Unit was able to observe the transaction through the use of binoculars from a van parked up the street. Once the purchase was made, Craig gave the drugs to the police and was searched again. The drugs were then transferred to the State Bureau of Investigation ("SBI") laboratory to be analyzed. At trial, Special Agent Jennifer West of the SBI testified that the substances tested were cocaine base.
Defendant contends that he had ineffective assistance of counsel at trial and alleges various shortcomings of his trial counsel. The North Carolina Supreme Court in State v. Braswell, 312 N.C. 553, 324 S.E.2d 241 (1985), expressly adopted the test for ineffective assistance of counsel set forth in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674 (1984). Braswell, 312 N.C. at 562-63, 324 S.E.2d at 248. The Strickland test has two prongs. "First, the defendant must show that counsel's performance was deficient. . . ." and 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. . . ." Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693. Counsel's performance is deficient if it "[falls] below an objective standard of reasonableness." Id. at 688, 80 L. Ed. 2d at 693. After the defendant has identified "the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment[,] [t]he court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Id. at 690, 80 L. Ed. 2d at 695. Even if the acts or omissions are found to be outside the range of competent assistance, a judgment still will not be overturned if the error had no effect on the judgment. Id. at 691, 80 L. Ed. 2d 696. Strickland also informs us that we may dispose of the ineffective assistance of counsel claim on the prejudice ground before determining if counsel's performance was, in fact, deficient. Id. at 697, 80 L. Ed. 2d 699.
This Court has stated, "[i]n general, claims of ineffective assistance of counsel should be considered through motions for appropriate relief and not on direct appeal." State v. Stroud, 147 N.C. App. 549, 553, 557 S.E.2d 544, 547 (2001), cert. denied, 356 N.C. 623, 575 S.E.2d 758 (2002). As the United State Supreme Court explained in Massaro v. United States, 538 U.S. 500, 155 L. Ed. 2d 714 (2003),
When an ineffective-assistance claim is brought on direct appeal, appellate counsel and the court must proceed on a trial record not developed precisely for the object of litigating or preserving the claim and thus often incomplete or inadequate for this purpose. . . . The evidence introduced at trial . . . will be devoted to issues of guilt or innocence, and the resulting record in many cases will not disclose the facts necessary to decide either prong of the Strickland analysis. If the alleged error is one of commission, the record may reflect the action taken by counsel but not the reasons for it. The appellate court may have no way of knowing whether a seemingly unusual or misguided action by counsel had a sound strategic motive or was taken because the counsel's alternatives were even worse. . . . Without additional factual development, moreover, an appellate court may not be able to ascertain whether the alleged error was prejudicial.
538 U.S. at 504-05, 155 L. Ed. 2d at 720-21. However, ineffective assistance of counsel "claims brought on direct review will 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, reconsideration denied, 354 N.C. 576, 558 S.E.2d 862 (2001), cert. denied, 535 U.S. 1114, 153 L. Ed. 2d 162 (2002). We have determined that the record in this case is sufficient to enable us to decide defendant's appeal on the merits.
Defendant first contends that he received ineffective assistance of counsel in that his trial counsel failed to put forth an affirmative defense of entrapment. We hold that there was no evidence of entrapment and therefore trial counsel was not ineffective in failing to pursue a meritless defense. The affirmative defense of entrapment has two elements. State v. Hageman, 307 N.C. 1, 28, 296 S.E.2d 433, 449 (1982). "The defense of entrapment is available when there are acts of persuasion, trickery or fraud carried out by law enforcement officers or their agents to induce a defendant to commit a crime and when the origin of the criminal intent lies with the law enforcement agencies." Id. We agree with the State that there was no evidence presented that Mr. Craig, the police agent, committed any acts of trickery or fraud except for failing to reveal that he was working for the police. In addition, defendant's quick and "ready compliance" with Mr. Craig's request for drugs in increasing amounts indicates defendant's predisposition to commit the crime. Hageman, 307 N.C. at 29, 31, 296 S.E.2d at 449-50 (holding that "the defense of entrapment is not available to a defendant who has a predisposition to commit the crime" and "[p]redisposition may be shown by a defendant's ready compliance, acquiescence in, or willingness to cooperate in the criminal plan where the police merely afford the defendant an opportunity to commit the crime"). Regardless of what a cross-examination of Corporal Kuhn could have uncovered, the defense of entrapment would not have been available to defendant because of the lack of trickery and fraud and defendant's predisposition to commit the crime.
The case cited by defendant, State v. Stanley, 288 N.C. 19, 215 S.E.2d 589 (1975), is clearly distinguishable. In Stanley, the undercover narcotics officer formed a relationship with and was seen as a "big brother" by the defendant. Id. at 24, 215 S.E.2d at 592. The defendant in Stanley testified, "[t]he only reason that I was trying to get these drugs was as a favor for Mr. Lee" who had told the defendant he wanted the drugs. Id. at 24, 215 S.E.2d at 593. The North Carolina Supreme Court thus held "the State's uncontradicted evidence shows that the criminal design and intent to commit this offense originated in the mind of [the officer] and that he, by fraud and persuasion, induced defendant to commit the criminal act" and there was "not a scintilla of evidence to show any predisposition on the part of the defendant." Id. at 32-33, 215 S.E.2d at 598. The focus of the Court was clearly on the relationship and affection that the young defendant had for the undercover officer which was used by the officer to manipulate the defendant who was not predisposed to commit the crime. Id. In the case sub judice, there was no such relationship between the police agent and defendant, and there was ample evidence of defendant's predisposition. This assignment of error is, therefore, overruled.
Defendant's next assignments of error center around his trial counsel's failure to cross-examine Corporal Kuhn, especially about the events on the DVD recordings of the drug sale transactions. Defendant argues that this failure violated his right to confront witnesses against him and "eliminated any chance for the defense to develop inconsistent statements, creditability [sic] issues, and/or . . ." the possible entrapment defense. However, defendant fails to allege any particular testimony that could have been elicited that would have impeached or contradicted Corporal Kuhn or benefitted defendant in any way. Defendant's claim is much weaker than that of the defendant in State v. Montford, 137 N.C. App. 495, 529 S.E.2d 247, cert. denied, 353 N.C. 275, 546 S.E.2d 386 (2000), where this Court held that defense counsel's failure to cross-examine a detective about a defective wire was not enough to show ineffective assistance of counsel. 137 N.C. at 503, 529 S.E.2d at 253. In Montford, there was at least some indication of a deficiency in the police department's performance which may have helped the defendant's case. Id.
With regard to the evidence about what was recorded on the DVDs and transmitted via the audio transmitter, defendant alleges that cross-examination of Corporal Kuhn could have brought out what defendant calls "factual discrepancies" between Kuhn's testimony and the videos of the drug sale. During his testimony, Corporal Kuhn testified to what he heard through the audio transmitter. He testified to the conversations that took place on 4 May, 9 May and 5 June 2007 and identified the person talking to Mr. Craig about drugs or payment for drugs as "Joey." The "factual discrepancies" to which defendant refers are that Kuhn identified the person selling the drugs as defendant when there are other people present in the video. With regard to the 9 May 2007 transaction, defendant makes the additional arguments that Corporal Kuhn testified to some parts of the transaction which cannot be seen on the video and that there was "no clear identification of defendant on the audio and video." Defendant also argues the videos contain no evidence of a hand-to-hand drug sale. Defendant has failed to establish how trial counsel's failure to cross-examine Corporal Kuhn prejudiced him, as all of the "discrepancies" in Corporal Kuhn's testimony are explained by the previous testimony of Mr. Craig. Mr. Craig testified that he bought drugs from defendant, that defendant was present at the scene, and that it was defendant's voice when discussing payment for the drugs. Corporal Kuhn has not testified that there was a hand-to-hand sale and defendant has produced no legal argument that the State must show one. Mr. Craig testified that he gave defendant money (or placed money in a location as directed by defendant) in exchange for drugs that were either placed on a bench by defendant, spit out of defendant's mouth onto the ground, or given by defendant to another individual who brought it to Mr. Craig. Thus, we overrule these assignments of error.
Defendant also contends his trial counsel failed to investigate and find defense witnesses and present them at trial. Defendant suggests as possible witnesses the other people present at the drug sale transactions. However, an evaluation of this contention would require an evidentiary hearing and is a proper subject for a motion for appropriate relief rather than an issue for direct appeal. State v. al-Bayyinah, 359 N.C. 741, 752-53, 616 S.E.2d. 500, 509-10 (2005) (dismissing defendant's claim without prejudice to his ability to file a motion for appropriate relief when "[t]rial counsel's strategy and the reasons therefor [were] not readily apparent from the record, and more information must be developed to determine if defendant's claim satisfies the Strickland test"), cert. denied, 547 U.S. 1076, 164 L. Ed. 2d 528 (2006).
Defendant also assigns error to his trial counsel's failure to "conduct an appropriate investigation of prior bad acts of" the prosecution witnesses. Likewise, as an issue of trial counsel's strategy, this contention would be more appropriately reviewed as a motion for appropriate relief. Id. Thus, we find no error in defendant's convictions, but dismiss his final two arguments without prejudice to his ability to file a motion for appropriate relief. State v. Campbell, 359 N.C. 644, 705, 617 S.E.2d 1, 38 (2005) (finding no error in defendant's conviction even when two of defendant's ineffective assistance of counsel claims were dismissed without prejudice), cert. denied, 547 U.S. 1073, 164 L. Ed. 2d 523 (2006).
No error.
Judges ELMORE and GEER concur.
Report per Rule 30(e).