Opinion
No. COA02-1692
Filed 3 February 2004 This case not for publication
Appeal by defendant from judgment entered 29 August 2002 by Judge Judson D. Deramus, Jr. in the Superior Court in Forsyth County. Heard in the Court of Appeals 17 September 2003.
Attorney General Roy Cooper, by Assistant Attorney General David N. Kirkman, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Charlesena Elliot Walker, for defendant-appellant.
Forsyth County No. 01 CRS 61002.
On 24 June 2002, defendant, Lavern Lamont Underwood, was indicted on the charge of assault with a deadly weapon with intent to kill inflicting serious injury. Defendant was tried before a jury and convicted as charged during the 26 August 2002 criminal session of the superior court in Forsyth County. The court sentenced him to prison for a term of 210 to 261 months. Defendant appeals.
The State presented evidence indicating that on the night of 28-29 October 2001, John Charles Leake heard a loud commotion in the apartment of his next door neighbor, Alyssa Long. Ms. Long was arguing loudly with her boyfriend, the defendant. Mr. Leake heardMs. Long say, "I didn't do that," to which defendant replied, "Yes, you do." Mr. Leake also heard Ms. Long say, "Don't hit me no more," and "You done broke that bat on me." Mr. Leake also heard loud thumping noises and saw defendant come and go from Ms. Long's apartment several times that evening.
Another of Ms. Long's neighbors, Gale Ridgell, also testified about what she heard that evening. Ms. Ridgell's apartment was immediately above Ms. Long's, and she heard the loud thumping noises as well as defendant asking in a loud voice, "Well, b----, what you go'n to say now?" and "B----, what you go'n to do now?"
Yet another of Ms. Long's neighbors, Pearley Dean, saw defendant come and go from Ms. Long's apartment several times throughout the evening.
The following morning, Ms. Long's friend and neighbor Jo Evelyn Leach spoke with Ms. Long on the telephone between 8:30 and 9:00. When Ms. Long told Ms. Leach that her leg was hurt and that she could not walk, Ms. Leach went to the apartment to check on her. Ms. Long was on the sofa in the living room and was unable to get up to open the door, so Ms. Leach entered through the back door. In the living room, Ms. Leach found Ms. Long on the sofa, bruised and bloodied, with patches of hair missing.
Ms. Long told Ms. Leach that defendant beat her with a baseball bat, and that she didn't call the police because she was afraid of what defendant would do to her if he found out. Ms. Leach then phoned 911 and Ms. Long's parents.
Winston-Salem Police Detective Matthew Mulgrew arrived at Ms.Long's apartment shortly after the 911 call. He found blood throughout the apartment and found a bloody bat in the bedroom, broken in two. Det. Mulgrew also noted that Ms. Long was covered with blood and bruises and was fading in and out of consciousness as she explained what happened. Ms. Long told Det. Mulgrew that defendant had beaten her with a bat.
Ms. Long was taken to the North Carolina Baptist Medical Center where doctors determined that she had lost six to eight units of blood, and that she would have died of blood loss without medical attention. She was listed in critical condition, with bleeding from her head and hip, and with heavy bruising over her body. Ms. Long told her treating physicians that defendant beat her with a baseball bat.
After she was initially treated and released from the hospital, Ms. Long continued to see Dr. Amber Reeves-Daniel, an internal medicine resident. Dr. Reeves-Daniel testified that Ms. Long told her that her "husband" had beaten her with a baseball bat, but that the statements about what happened were consistent with what Ms. Long told other doctors, as recorded in her medical charts.
Carol Poe, a social worker with the Forsyth County Department of Social Services Adult Protective Service, testified that she interviewed Ms. Long at a battered woman's shelter. Ms. Long told her that defendant beat her with a baseball bat and that she was fearful of testifying against him.
Detective Lynn Key of the Winston-Salem Police Department'sDomestic Violence Response Unit interviewed Ms. Long at the hospital. Ms. Long told her then that she and the defendant began arguing shortly after her parents dropped her off at her apartment on the night of 28 October. Ms. Long told Det. Key that defendant was in the bedroom smoking crack cocaine, and then suddenly became extremely angry. He accused Ms. Long of having other men in the apartment, which Ms. Long denied. He then grabbed the baseball bat and began hitting her with it, eventually breaking the bat while beating her.
Ms. Long, the victim, testified for the defense. She claimed that her parents dropped her off at her apartment on the night of 27 October 2001, not 28 October 2001, the night of the assault. She claimed defendant was at her apartment on the night of 28 October, but that she called a cab for him around 10:30 p.m. and he left. She testified that three men beat her, though she did not remember who they were, but that it was not defendant, and identified an affidavit she signed saying the same. She testified that defendant had never hit her and claimed that the reason she told the police and others that defendant had hit her was because she was on medication and confused.
On cross-examination, when asked if she had tried to convey $50 from the defendant to Jo Evelyn Leach to encourage her not to testify against defendant, Ms. Long replied, "She said she was not going to take the money, okay."
Kerry Smith, a paralegal working with a Winston-Salem law firm, testified that he was incarcerated with the defendant beforebeginning his current job. He stated that Ms. Long had recently come to his law firm claiming that three men beat her with a baseball bat and that people were pressing her to identify the defendant as the assailant.
Margaret Johnson, the defendant's sister, testified that defendant came to her house with a woman named Deitra around midnight on the evening of 28 October 2001 and left at approximately 3:30 a.m. the following morning.
Aileen Underwood, the defendant's mother, testified that at around 4:00 a.m. on the morning of 29 October 2001, defendant and a woman named Deitra arrived at her house and asked to spend the night, which she allowed them to do. She did not notice any blood on the defendant when he arrived.
Ms. Long's friend, Michelle Mickens, testified that she wrote letters to the defendant for Ms. Long while he was in jail awaiting trial on the current charges. She stated that Ms. Long told her that three men attacked her, not the defendant. However, on cross-examination, Ms. Mickens testified that Ms. Long originally told her that defendant beat her up, and only later did she claim that three men attacked her. She also said that Ms. Long said she claimed three men had attacked her because she did not want the defendant to go to prison.
The defendant also testified on his behalf. He stated that he lived with Ms. Long on and off after he got out of prison in March 2001. He stayed at Ms. Long's apartment the night of 27 October 2001, but was only there a short time on 28 October 2001. Hefurther stated that Ms. Long called a cab for him that night, and he left around 10:30 p.m. to meet a friend named Deitra. He then described his whereabouts on the night of 28 October 2001 in a manner consistent with the descriptions given by other defense witnesses.
Defendant further testified that Ms. Long told him that three men she identified as Nicholby, Red, and Fred as her assailants. He said that Red was Ms. Long's neighbor and that the men had come to her apartment to obtain sex and money from her.
In his first argument, defendant contends that he was denied the effective assistance of counsel for trial counsel's failure (1) to seek pre-trial rulings on the admissibility of evidence, (2) to object to the testimony when introduced at trial, and (3) to request limiting instructions as to the testimony. We disagree.
"Attorney conduct that falls below an objective standard of reasonableness and prejudices the defense denies the defendant the right to effective assistance of counsel." State v. Fair, 354 N.C. 131, 167, 557 S.E.2d 500, 525 (2001), cert. denied, 535 U.S. 1114, 153 L.Ed.2d 162, (2002) (citing Strickland v. Washington, 466 U.S. 668, 80 L.Ed.2d 674 (1984)). A claim of ineffective assistance of counsel "must establish both that the professional assistance defendant received was unreasonable and that the trial would have had a different outcome in the absence of such assistance." Id.
Ineffective assistance of counsel claims are ordinarily raised in post-conviction proceedings by way of a motion for appropriaterelief and not on direct appeal. Such claims may, however, be raised on direct appeal when the cold record reveals that no further factual development is necessary to resolve the issue. Id. at 166, 557 S.E.2d at 524.
Assuming arguendo that defendant could surmount the stringent standard of proof necessary to establish that counsel's performance was deficient, here he is unable to satisfy the second prong of an ineffective assistance of counsel claim that the trial would have had a different outcome absent counsel's deficient performance. First, we do not believe there is a reasonable likelihood that even if counsel had objected, all of the statements would have been excluded, since, as defendant points out in his brief, all of them were admissible to impeach Ms. Long.
However, the State introduced compelling evidence of defendant's guilt in its case in chief, even without the testimony of any of the statements Ms. Long made to her neighbors, friends, detectives, medical personnel and others following the attack. Her neighbors — Mr. Leake and Ms. Dean — witnessed the defendant enter and exit Ms. Long's apartment several times throughout the evening. Ms. Long's parents heard her engaged in a fight with the defendant while they spoke with her by phone that evening. Additionally, Ms. Long's next door neighbor, Mr. Leake, heard the attack through the apartments' common wall, and specifically heard Ms. Long say "Don't hit me no more," and "You done broke that bat on me," interspersed with loud thumping noises. Ms. Long's upstairs neighbor, Ms. Ridgell, also heard the attack andspecifically heard the defendant say "Well, b----, what you go'n to say now?" and "B----, what you go'n to do now?"
We believe that this evidence was more than sufficient to establish that the defendant was the perpetrator of the assault. In his brief, defendant does not address this testimony in arguing that without the hearsay statements of Ms. Long, he would probably not have been convicted. Thus, defendant is unable to show how, if at all, his trial counsel's performance prejudiced him. This assignment of error is overruled.
Defendant next argues that the trial court erred by denying his motion to dismiss the charges against him based upon a sufficiency of the evidence. We disagree.
In ruling on a defendant's motion to dismiss, "the trial court is to determine whether there is substantial evidence (a) of each essential element of the offense charged, or of a lesser offense included therein, and (b) of defendant's being the perpetrator of the offense." State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651 (1982). The issue of whether the evidence presented constitutes substantial evidence is a question of law for the court. Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. at 66, 296 S.E.2d at 652; see also, State v. Mercer, 317 N.C. 87, 343 S.E.2d 885 (1986). Our Courts have repeatedly noted that "[t]he evidence is to be considered in the light most favorable to the State; the State is entitled to every reasonable intendment and every reasonable inference to be drawn therefrom; contradictionsand discrepancies are for the jury to resolve and do not warrant dismissal. . . ." State v. Vause, 328 N.C. 231, 237, 400 S.E.2d 57, 61 (1991) (citations omitted); see also, State v. Patterson, 335 N.C. 437, 449-50, 439 S.E.2d 578, 585-86 (1994). "If all the evidence, taken together and viewed in the light most favorable to the State, amounts to substantial evidence of each and every element of the offense and of defendant's being the perpetrator of such offense, a motion to dismiss is properly denied." Mercer, 317 N.C. at 98, 343 S.E.2d at 892 (citations omitted).
Here, viewed in the light most favorable to the State, the neighbors' testimony about the defendant's presence at Ms. Long's apartment, and about statements made by both of them during the attack, together with Ms. Long's parents' testimony about what they overheard while on the telephone with Ms. Long, in addition to the hearsay statements which were admitted without objection, constitute substantial evidence from which a jury could conclude that all of the necessary elements of the charge had been proven. This assignment of error is overruled.
Finally, defendant argues that the state failed to prove his prior record level in accordance with G.S. § 15A-1340.14(f). We disagree.
Pursuant to G.S. § 15A-1340.14(f), prior convictions may be proved by any of the following methods:
(1) Stipulation of the parties.
(2) An original or copy of the court record of the prior conviction.
(3) A copy of records maintained by the Division of Criminal Information, the Division of Motor Vehicles, or of the Administrative Office of the Courts.
(4) Any other method found by the court to be reliable.
G.S. § 15A-1340.14(f) (2001). The "State bears the burden of proving, by a preponderance of the evidence, that a prior conviction exists and that the offender before the court is the same person as the offender named in the prior conviction." Id.
Here, the State submitted a prepared worksheet listing the purported prior convictions of defendant. By itself, the worksheet would have been insufficient evidence to establish defendant's criminal history as a prior record level II. See State v. Eubanks, 151 N.C. App. 499, 504-05, 565 S.E.2d 738, 742 (2002). In response to the worksheet tendered by the State, defense counsel stated, "the ones that are listed on the worksheet are convicted against this defendant." We believe this to be, in effect, a stipulation to the record, and overrule this assignment of error. See, Eubanks, 151 N.C. App. at 505, 565 S.E.2d at 742.
For the reasons discussed above, we find no error in defendant's trial.
No error.
Judges TIMMONS-GOODSON and ELMORE concur.