State v Leftdwrige
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA11-152 NORTH CAROLINA COURT OF APPEALS Filed: 1 November 2011 STATE OF NORTH CAROLINA v. Wayne County Nos. 08 CRS 58229 09 CRS 50320 ANGELA CHANELLE LEFTDWRIGE Appeal by Defendant from judgments entered 22 July 2010 by Judge J. Carlton Cole in Wayne County Superior Court. Heard in the Court of Appeals 31 August 2011. Attorney General Roy Cooper, by Assistant Attorney General Kimberly W. Duffley, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Kristen L. Todd, for Defendant. BEASLEY, Judge. Angela Chanelle Leftdwrige (Defendant) appeals from judgments entered on her convictions of attempted first-degree murder and trafficking in cocaine by possession. For the reasons stated below, we conclude there was no error. On 3 August 2009, Defendant was indicted on charges of attempted first-degree murder, assault with a deadly weapon with - 2 intent to kill inflicting serious injury, and possession of a stolen firearm. On 8 September 2009, Defendant was indicted on charges of trafficking in cocaine by possession, keeping and maintaining a dwelling for the use of controlled substances, and a second count of possession of a stolen firearm. Prior to trial, the State dismissed both counts of possession of a stolen firearm. The case was heard at the 19 July 2010 Criminal Session of Wayne County Superior Court before the Honorable J. Carlton Cole. On 22 July 2010, the jury returned guilty verdicts for the charges of attempted first-degree murder, assault with a deadly weapon with the intent to kill inflicting serious injury, trafficking in cocaine by possession, and maintaining a dwelling for the use of controlled substances. Defendant was sentenced to 125 to 159 months imprisonment for the attempted first-degree murder charge, 35 to 42 months imprisonment for the charge of trafficking in cocaine by possession, and 4 to 5 months imprisonment for the charge of maintaining a dwelling for the use of controlled substances. The first two sentences were ordered to run consecutively. Defendant rejected probation and accepted an active sentence for the third conviction, which the court concurrently with the first conviction. notice of appeal. ordered to run Defendant gave timely - 3 - I. Defendant argues that the trial court erred in its instructions to the jury on the charge of attempted first-degree murder. While instructing the jury on this charge, the trial court misspoke in two instances. First, the court stated that [t]he defendant would be guilty of attempted first-degree murder on the ground of selfdefense if, first, it appeared that the defendant -- appeared to the defendant and she believed it to be necessary to use potential deadly force against the victim in order to save herself from death or great bodily harm. This instruction was flawed because the defendant would be not guilty of the charged offense by reason of self-defense if she believed it necessary to use deadly force to save herself from death or great bodily harm. The trial court also gave a flawed instruction regarding the elements of the crime, stating that [i]f you find from the evidence beyond a reasonable doubt that on or about the alleged date the defendant intentionally and not in self-defense attempted to kill the victim with a deadly weapon, and performed an act designed to bring this about, and that in performing this act the defendant acted without malice, without premeditation, and without deliberation, it would be your duty to return a verdict of guilty of attempted first-degree murder. The trial court mistakenly indicated that a charge of firstdegree murder requires an act performed without malice, - 4 premeditation, and deliberation. true. In fact just the opposite is Defense counsel informed the court of a flaw in the jury instructions and the jury was called back into the courtroom. The court explained that the instructions contained an omission important to their deliberations and re-read the entirety of the instructions as to the attempted first-degree murder charge. The second reading of the jury instructions contained no flaws. The parties disagree as to whether Defendant properly preserved her objection to the jury instructions, and on the proper standard of review for this issue. However assuming arguendo that Defendant did properly preserve the objection for appeal, she has failed to establish she suffered any prejudice even under the more lenient standard of review for prejudicial error, let alone under the plain error standard. the initial jury instructions was cured Any error in promptly and sufficiently by the trial court. Defendant cites several cases for the proposition that when conflicting instructions are given on applicable law, there must be a new trial since the jury is not supposed to be able to distinguish between a correct and incorrect charge. State v. Carver, 286 N.C. 179, 183, 209 S.E.2d 785, 788 (1974); see also State v. Allison, 256 N.C. 240, 243, 123 S.E.2d 465, 467 (1962) ( [C]onflicting instructions upon a material aspect of the case must be held for prejudicial error . . . since it cannot be - 5 known which instruction was followed by the jury. ). Such cases are distinguishable from the instant case because here the court did not simply give the jury conflicting instructions. Instead, the court gave one erroneous instruction and then clearly and unambiguously told the jury to disregard that instruction, and gave a second, assuming that instruction proper the instruction. jury here, may because instruction to follow. have it There relied was is on no basis the explicitly for incorrect told which Accordingly, this argument is overruled. II. Defendant next argues that she was denied effective assistance of counsel in violation of her rights under both the United States and North Carolina Constitutions. See, e.g., State v. Baker, 109 N.C. App. 643, 644, 428 S.E.2d 476, 477 (1993). In support of this claim, Defendant asserts that her counsel mistakenly informed the judge that her sentences for the attempted first-degree murder charge and for the trafficking in cocaine charge had to run consecutively. During sentencing, defense counsel made the following statement to the court: I understand that one count and another count would have run at the expiration of the other, but I would ask if the Court would allow the class I to go with the -- with one of the two counts concurrently, Judge, at this time. - 6 To establish a claim for ineffective assistance of counsel, a defendant deficient, must show meaning it that (1) fell counsel s below an performance objective was standard of reasonableness, and (2) the deficient performance prejudiced the defense. State v. Garcell, 363 N.C. 10, 51, 678 S.E.2d 618, 644 (2009) (quoting Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984)). Deficient performance prejudices the defense when there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. is a probability outcome. sufficient to A reasonable probability undermine confidence in the Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698. The burden of proof for both prongs of the claim is on the defendant, absent special circumstances. 352 N.C. 119, defendant 125, ordinarily 529 S.E.2d bears the 671, burden See State v. Rogers, 675 of (2000) showing ( While a ineffective assistance of counsel, prejudice is presumed . . . when the likelihood that any lawyer, even a fully competent one, could provide effective marks omitted)). burden remains assistance No on such Defendant is remote. (internal circumstances to establish ineffective assistance of counsel. burden. exist that quotation here, she so the received Defendant has not met this Defendant admits that the trial court never stated its sentencing decision was required by statute. The mere - 7 suggestion that Defendant raises is not enough to establish a reasonable probability sentencing would have that been but for different. argument is also overruled. No Error. Judges STEPHENS and ERVIN concur. Report per Rule 30(e). counsel s statement Accordingly, her this
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