State v Byrd
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA11-101 NORTH CAROLINA COURT OF APPEALS Filed: 20 September 2011 STATE OF NORTH CAROLINA v. Sampson County Nos. 10 CRS 50300-01 JAMIE BYRD Appeal by defendant from judgment entered 5 October 2010 by Judge Russell J. Lanier, Jr. in Sampson County Superior Court. Heard in the Court of Appeals 29 August 2011. Attorney General Roy Cooper, by Special General Anne J. Brown, for the State. Deputy Attorney Richard Croutharmel, for defendant-appellant. CALABRIA, Judge. Jamie Byrd ( defendant ) appeals from a judgment entered upon jury verdicts finding him guilty of attempting to obtain property by false pretenses, second degree attaining the status of an habitual felon. part and dismiss without prejudice in part. I. Background trespass, and We find no error in -2On 14 February 2010, defendant entered a Walmart store in Clinton, North Carolina, carrying two receipts. Defendant placed a hair relaxer, an electric drill, and a container of antifreeze ( the items ) in a shopping cart then returned to the front of the store, where he obtained return stickers for the items. After Defendant proceeded to the customer service department. presenting antifreeze to receipts Walmart listing employee the Doris hair relaxer Brownley defendant asked to return those items for cash. and ( Brownley ), Defendant did not have a receipt which included the electric drill; therefore, he requested a gift card rather than cash in exchange for it. Brownley became suspicious because one of defendant s receipts indicated that an employee discount had been used on the transaction. When Brownley questioned defendant regarding the whereabouts of this employee, defendant stated that he did not know that information. Brownley notified her supervisor about her suspicions, and her supervisor in turn notified the store s asset ( Fuller ). protection While waiting coordinator, for Fuller Cyrus to Edward arrive, Fuller Brownley indicated to defendant that the transaction for his return would take a few minutes. While he initially stated that he would -3wait, defendant eventually walked off and left the items at the customer service department. After receiving a description of defendant, Fuller exited the store and located defendant in the parking lot. recognized defendant from a previous encounter when informed defendant that he was not welcome at the store. Fuller he had Fuller contacted law enforcement. Detective Alpha Clowney ( Det. Clowney ) of Police Department arrived and arrested defendant. took defendant to the Sampson County the Det. Clowney Detention advised defendant of his Miranda rights. Clinton Center and Defendant executed a waiver of these rights and told Det. Clowney that he had removed the items from the Walmart shelves and had planned to exchange them at customer service obtained from a friend. using the receipts, which he had Defendant also stated that he changed his mind and left the store without the receipts or the items. Defendant was subsequently indicted for attempting to obtain property by false pretenses and second degree trespass. Beginning 4 October 2010, defendant Sampson County Superior Court. was tried by a jury in At trial, defendant s counsel admitted he was guilty of second degree trespass during her closing argument. After closing arguments concluded, the trial -4court instructed the jury on the applicable law. instructions on unanimity, the trial court During its committed the following lapsus linguae: Now a verdict is not a verdict until all 12 jurors agree unanimously. unanimous vote. Now when This means you can t do it by you have agreed upon a unanimous finding defendant verdict . . . . (Emphasis added). The jury returned unanimous verdicts guilty of attempting to obtain property by false pretenses and second degree trespass. The case then proceeded to the habitual felon phase. When instructing the jury during this phase, the trial did court not repeat an instruction on unanimity. However, the trial court did tell the jury that [a]ll of the rules I gave you earlier on in the first phase apply to this. The jury then returned a unanimous verdict finding defendant guilty of attaining the status of an habitual felon. The trial court consolidated the convictions and sentenced defendant to a minimum of 101 months to a maximum of 131 months in the North Carolina Department of Correction. II. Defendant appeals. Jury Instructions Defendant argues that the trial court erred when it (1) instructed the jury on unanimity during the predicate felony -5phase of his trial; and (2) failed to give a specific unanimity instruction during the habitual felon phase. We disagree. [W]e review jury instructions contextually and in their entirety. The charge will be held to be sufficient if it presents the law of the case in such a manner as to leave no reasonable cause to believe the jury was misled or misinformed. State v. Bivens, ___ N.C. App. ___, ___, 693 S.E.2d 378, 380 (2010)(internal quotations, citation and brackets omitted). Under such a standard of review, it is not enough for the appealing party to show that error occurred in the jury instructions; rather, it must be demonstrated that such error was likely, in light of the entire charge, to mislead the jury. State v. Blizzard, 169 N.C. App. 285, 297, 610 S.E.2d 245, 253 (2005). Additionally, [t]his Court has repeatedly held that a lapsus linguae not called to the attention of the trial court when made will not constitute prejudicial error when it is apparent from a contextual reading of the charge that the jury could not have been misled by the instruction. State v. Baker, 338 N.C. 526, 565, 451 S.E.2d 574, 597 (1994). Defendant did not object to the trial court s instructions at trial. Therefore, our review is limited to plain error. N.C.R. App. P. 10(a)(4) (2011). See Under the plain error rule, a -6new trial will be granted for an error to which no objection was made at trial only if a defendant meets a heavy burden of convincing the Court that, absent the error, the jury probably would have returned a different verdict. State v. Bronson, 333 N.C. 67, 75, 423 S.E.2d 772, 777 (1992). A. Predicate Felony Phase In the instant case, the trial court, during the predicate felony phase of defendant s trial, instructed the jury on unanimity as follows: Now a verdict is not a verdict until all 12 jurors agree unanimously. This means you can't do it by unanimous vote. Now when you have agreed upon a unanimous verdict, your foreperson should properly mark the spaces on the verdict form, sign it, date it, knock on the door, and you will be returned to the courtroom to announce your verdict. (Emphasis portion of added). the Defendant jury contends instruction was that confusing the and emphasized may have misled the jury into believing its verdict was not required to be unanimous. In support of his argument, defendant cites State v. Parker, in which this Court held it was prejudicial error to instruct the jury that [y]ou cannot return a verdict without a majority vote. (1976). 29 N.C. App. 413, 414, 224 S.E.2d 280, 281 -7However, Parker is distinguishable from the instant case. First, the defendant in Parker was not required to meet the heavy court s burden of plain instruction in error the review. instant Moreover, case only the trial referenced a unanimous verdict, and thus, unlike Parker, the jurors could not have been misled by its lapsus linguae into believing that they could reach a verdict by majority vote, as majority vote was never mentioned. In the instant case, the verdict sheets returned by the jury clearly indicated on their face that the verdicts were unanimous for both charges: We the jury, by unanimous verdict, find the defendant, Jamie Byrd, [g]uilty . . . . Furthermore, when they were polled, as a group, by the clerk of court, the jurors affirmatively verdicts, unanimous. which responded further that demonstrated they had that agreed their to the verdict was Under these circumstances, defendant has failed to meet his burden of establishing plain error. This argument is overruled. B. Habitual Felon Phase Defendant also argues that the trial court erred by failing to instruct the jury on unanimity during the habitual felon phase of defendant s trial. Prior to deliberations, the trial -8court did not specifically instruct the jury on unanimity, but rather instructed the jury in a truncated fashion, referencing the instructions given during the predicate felony phase: All of the rules I gave you earlier on in the first phase apply to this. Assuming, arguendo, that the trial court erred by instructing the jury in this fashion, defendant has once again failed to meet his burden for establishing plain error. As during the predicate felony phase, the jury returned a verdict that stated on its face that it was unanimous: We the jury, by unanimous verdict, find the defendant, Jamie Byrd, [g]uilty of [attaining the status of an] habitual felon. In addition, the jury affirmatively approved the verdict when polled by the clerk of court. This argument is overruled. III. Ineffective Assistance of Counsel Defendant argues that he received ineffective assistance of counsel ( IAC ) when his counsel admitted that he was guilty of second degree trespassing during her closing argument. We dismiss this argument without prejudice. Ordinarily, counsel claim, to a prevail defendant on an must ineffective show that assistance (1) of counsel's performance was deficient and (2) the deficient performance -9prejudiced the defense. State v. Phillips, 365 N.C. 103, 118, 711 S.E.2d 122, 135 (2011)(quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984)). 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. Campbell, 359 N.C. 644, 691, 617 S.E.2d 1, 30 (2005)(internal quotations, citation, However, it to when appears the and brackets appellate omitted). court further development of the facts would be required . . . the proper course without is for the Court to dismiss the defendant's prejudice. State v. Allen, 360 N.C. 297, [claim] 316, 626 S.E.2d 271, 286 (2006). In the instant case, defendant s counsel admitted that he was guilty argument. of second degree trespass during her closing Defendant s counsel told the jury, I would submit to the jury as it relates to the issue of second-degree trespass, [defendant is] guilty of that. Over the course of her remaining argument, defendant s counsel stated to the jury on three additional occasions that defendant was guilty of second -10degree trespass. Our Supreme Court has held that IAC, per se, exists in every criminal case in which the defendant's counsel admits the defendant's guilt to the jury without the defendant's consent. State v. Harbison, 315 N.C. 175, 180, 337 S.E.2d 504, 507-08 (1985). this principle. This Court has recently reaffirmed State v. Maready, ___ N.C. App. ___, ___, 695 S.E.2d 771, 778, disc. rev. denied, 364 N.C. 329, 701 S.E.2d 247 (2010)( Because our Supreme Court has not overruled Harbison . . . we are bound by this precedent. ). However, it cannot be determined from the record whether or not defendant gave his counsel permission to admit he was guilty of second Therefore, degree we must trespass dismiss during defendant s closing IAC arguments. claim without prejudice to his ability to file a motion for appropriate relief in superior court, where a full evidentiary hearing can be conducted in order to ascertain if defendant consented to his counsel s actions. IV. Conclusion Defendant failed to meet his burden of establishing that the trial court s instruction to the jury on unanimity was plain error, as there is sufficient evidence in the record to conclude that the jury reached unanimous verdicts on all charges. Based -11on the record before this Court, we cannot adequately review defendant's IAC claim. Accordingly, this claim is dismissed without prejudice to defendant's right to raise it in a motion for appropriate relief. No error in part and dismissed in part. Chief Judge MARTIN and Judge BRYANT concur. Report per Rule 30(e).
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