Opinion
No. COA02-546
Filed 4 March 2003 This case not for publication.
Appeal by defendant from judgments entered 28 November 2001 by Judge W. Osmond Smith in Durham County Superior Court. Heard in the Court of Appeals 24 February 2003.
Attorney General Roy Cooper, by Assistant Attorney General Thomas M. Woodard, for the State. Michael J. Reece for defendant-appellant.
Durham County Nos. 01 CRS 13647-48.
I. Background
On 2 July 2001, the Durham County grand jury indicted Torry LaShawn Reid ("defendant") on charges of possession with intent to sell and deliver a Schedule I controlled substance, sale of a Schedule I controlled substance, delivery of a Schedule I controlled substance, and with being an habitual felon. The jury found defendant guilty of the substantive offenses, and defendant pled guilty to having attained the status of an habitual felon. The trial court arrested judgment on the conviction for delivery of a Schedule I controlled substance, and consolidated the two remaining offenses for judgment and sentenced defendant as a habitual felon to a term of 120 to 153 months imprisonment. Defendant appeals.
The State presented evidence at trial tending to show the following: Corporal Robbie Davis of the Durham Police Department met with F.B.I. Special Agent Sergio Sanz and informant Jerond Best prior to 15 February 2001. Corporal Davis testified he interviewed Mr. Best "in the presence of Agent Sanz and debriefed Jerond Best as far as — Mr. Best's knowledge of the drug distribution activities of [defendant]." Mr. Best was documented as an accomplice informant as a result of the interview, and a subsequent debriefing occurred. On 15 February 2001, Mr. Best placed a recorded telephone call to an individual whose voice Corporal Davis identified as being that of defendant. Mr. Best made arrangements to buy $200 worth of heroin from the individual. After the telephone conversation, officers placed a recording device, commonly referred to as a "wire", on Mr. Best and gave him $200 to purchase the heroin. Officers videotaped the subsequent drug transaction between Mr. Best and defendant at a Fast Fare store. After completing the transaction, Mr. Best returned to the officers with seventeen bundles of heroin (having a value of $170) and $30 in currency. A forensic chemist with the S.B.I. testified the seventeen bundles contained 0.6 gram of heroin.
Agent Sanz testified that he headed a drug task force and concentrated efforts on "[p]rimarily the mid level, like Mr. Reid. Mr. Reid is considered a mid level drug dealer." Agent Sanz first learned of defendant after he initially debriefed Mr. Best. When Agent Sanz asked Corporal Davis about defendant, Corporal Davis "told [him] that Mr. Reid was a very worthy heroin dealer in Durham who had been selling heroin for some time and should be targeted." Mr. Best testified as to the recorded telephone call and transaction. Best stated that defendant passed the heroin to him when they shook hands at the Fast Fare. After the State rested its case, defendant offered no evidence.
II. Assignments of Error Abandoned
Defendant has neither stated any argument nor cited any authority in his brief in support of the eight assignments of error found in the record on appeal. Those assignments of error are therefore deemed abandoned. N.C.R. App. P. 28(b)(6). Approximately three months after the record on appeal was settled, defendant filed a motion to add three new assignments of error. We note that
the essential function of [assignments of error] is to identify for the appellee's benefit all the errors possibly to be urged on appeal, hence the total scope of review, so that the appellee may properly assess the sufficiency of the proposed record on appeal to protect his position on all these points.
See Commentary, Drafting Committee Note, N.C.R. App. R. 10(c), reprinted in 287 N.C. 671, 703 (1975). Adding additional assignments of error after settlement of the record on appeal could create deficiencies in the record on appeal and disadvantage an appellee. Id. Because the record on appeal here is adequate to address the proposed assignments of error, we allow the motion to amend the record on appeal in the interest of justice.
III. Issues
Defendant contends he received ineffective assistance of trial counsel because his attorney failed to object to three comments about him made by witnesses.
IV. Ineffective Assistance of Counsel
Defendant argues the three comments were damaging characterizations of him and were not competent evidence. Defendant's argument is not persuasive. "A defendant's [constitutional] right to counsel includes the right to effective assistance of counsel." State v. Braswell, 312 N.C. 553, 561, 324 S.E.2d 241, 247 (1985). The test for determining whether a defendant in a criminal case has received effective assistance of counsel is the same under both the federal and state constitutions. Braswell, 312 N.C. at 562, 324 S.E.2d at 248.
To establish ineffective assistance of counsel, a defendant must meet a two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 80 L.Ed.2d 674 (1984). Id.
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.
State v. Lewis, 321 N.C. 42, 48-49, 361 S.E.2d 728, 732 (1987) ( quoting Strickland, 466 U.S. at 687, 80 L.Ed.2d at 693).
"[I]f 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." Braswell, 312 N.C. at 563, 324 S.E.2d at 249. "The fact that counsel made an error, even an unreasonable error, does not warrant reversal of a conviction unless there is a reasonable probability that, but for counsel's errors, there would have been a different result in the proceedings." Braswell, 312 N.C. at 563, 324 S.E.2d at 248. "The question becomes whether a reasonable probability exists that, absent counsel's deficient performance, the result of the proceeding would have been different." State v. Moorman, 320 N.C. 387, 399, 358 S.E.2d 502, 510 (1987).
Defendant first complains of Corporal Davis' statement that he debriefed the informant as to the informant's "knowledge of the drug distribution activities of" defendant. This testimony explained why law enforcement officers subsequently decided to investigate defendant, and was not objectionable. "[S]tatements of one person to another to explain subsequent actions taken by the person to whom the statement was made are admissible as nonhearsay evidence." State v. Thomas, 350 N.C. 315, 339, 514 S.E.2d 486, 501, cert. denied, 528 U.S. 1006, 145 L.Ed.2d 388 (1999).
Similarly, Agent Sanz's statement that "Mr. Davis told me that Mr. Reid was a very worthy heroin dealer in Durham who had been selling heroin for some time and should be targeted[,]" was admissible to show why Agent Sanz got involved in the investigation of defendant. Finally, Agent Sanz's testimony that he concentrated his efforts on "[p]rimarily the mid level, like Mr. Reid. Mr. Reid is considered a mid level drug dealer[,]" while improper opinion testimony was not so serious as to deprive defendant of a fair trial. See State v. Owen, 130 N.C. App. 505, 515, 503 S.E.2d 426, 432, appeal dismissed and disc. review denied, 349 N.C. 372, 525 S.E.2d 188 (1998).
V. Conclusion
Defendant has not shown that his trial counsel's failure to object to this opinion testimony prejudiced his defense or that his proceeding would have been different but for this lapse. We find no error.
No error.
Judges TIMMONS-GOODSON and BRYANT concur.
Report per Rule 30(e).