State v. James ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-36
NORTH CAROLINA COURT OF APPEALS
Filed: 15 July 2014
STATE OF NORTH CAROLINA
v. Forsyth County
No. 09CRS061925
TONY MAURICE JAMES,
Defendant.
Appeal by defendant from Judgments entered on or about 30
April 2013 by Judge William Z. Wood in Superior Court, Forsyth
County. Heard in the Court of Appeals 21 May 2014.
Attorney General Roy A. Cooper III, by Assistant Attorney
General Kenneth A. Sack, for the State.
Kevin P. Bradley, for defendant-appellant.
STROUD, Judge.
Tony James (“defendant”) appeals from judgments entered
after a Forsyth County jury found him guilty of second degree
burglary and larceny after breaking or entering. We dismiss the
appeal without prejudice to defendant’s ability to bring his
claim through a motion for appropriate relief.
I. Background
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On 21 February 2011, defendant was indicted for second
degree burglary and larceny after breaking or entering. The
indictment alleged that on 1 November 2009, defendant broke and
entered the dwelling of Chelsea Davis with intent to commit a
larceny therein. It further alleged that defendant stole
approximately $2,000 worth of items belonging to Ms. Davis.
Defendant pled not guilty and proceeded to jury trial.
At trial, the State’s evidence tended to show that on the
evening of 1 November 2009, Ms. Davis and Michael DiConzo, Ms.
Davis’ boyfriend, returned to the parking lot in front of their
apartment to find four men carrying a variety of items across
the bridge from their apartment. The items included a
television, Xbox, various electronic cords, DVDs, and video
games. Ms. Davis said to Mr. Diconzo, “That’s all your stuff.”
Ms. Davis asked the four men, “Can I help you?” When Mr. DiConzo
got out of the car, the four men started running. Mr. DiConzo
began chasing the men along the sidewalk and down a slight hill.
During the chase, one of the perpetrators dropped the Xbox, had
a brief altercation with Mr. DiConzo and dropped the remaining
items he was carrying. Mr. DiConzo briefly returned to the
apartment to change shoes, then went back out to look for the
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four men. He found his DVDs and video game cases strewn along
the sidewalk and in some nearby bushes.
Around that same time, Sergeant Peterson, of the Winston-
Salem Police Department, was patrolling the area. He noticed
four men run out of the woods from the direction of Ms. Davis
and Mr. DiConzo’s apartment complex. One of them slowed to a
walk and began traveling along the sidewalk; the other three
began walking once they reached a parking lot. Sgt. Peterson
thought the three men might have been chasing the first man, so
he approached and asked the man who was walking alone if he
needed assistance. The man declined Sgt. Peterson’s assistance
and said that he did not know the other three. At that point,
the other three men took off running toward a nearby soccer
field. Sgt. Peterson initially drove off to follow them, but he
then received a call notifying him that there had been a break-
in at one of the nearby apartment complexes with four suspects
involved.
After receiving the call, Sgt. Peterson pulled back around
to where the first man—later identified as defendant—was walking
down the sidewalk and detained him with handcuffs. Once Sgt.
Peterson secured the man, he noticed Mr. DiConzo pacing back and
forth, breathing heavily. Mr. DiConzo told Sgt. Peterson that
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his girlfriend’s house had been broken into and that he was
chasing the suspects. Mr. DiConzo, referring to the man in
handcuffs, said, “That’s one of them. That’s one of the guys I
chased down here.”1 Another officer detained two individuals
walking back from the adjacent apartment complex. One of their
phones had been located behind the apartment.
When police examined Ms. Davis’ apartment, they found that
the screen of the apartment’s screened-in porch had been cut and
that one pane of a double-pane glass door had been broken. They
also noted that the top pane of a nearby window had been broken
and the window had been opened. One of the forensic technicians
collected fingerprints from the scene, two of which were
sufficient for later testing. One fingerprint was found on the
outside of the porch railing and another was found on one of the
recovered video game cases. Masayo Ballard, latent print
examiner for the Winston-Salem Police Department, compared the
collected prints to defendant’s. The first print was matched to
defendant, but defendant was excluded as the source for the
second print.
1
At trial, the State never asked Mr. DiConzo to identify
defendant as one of the men he chased from his apartment that
night. Defendant’s trial counsel did not move to exclude Mr.
DiConzo’s evidence as hearsay.
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After the State rested, defendant moved to dismiss the
charges against him. The trial court denied the motion.
Defendant then elected to present evidence and testify on his
own behalf. Defendant first called Officer Bryan Byerly of the
Winston-Salem Police Department. Officer Byerly testified that
he had assisted another officer in detaining two men2 and doing a
show-up with Ms. Davis. Ms. Davis identified them as two of the
perpetrators. Neither was formally charged.
Defendant then testified on his own behalf. He explained
that he was living in a nearby apartment complex with his
parents. He testified that he went to a nearby gas station to
buy a cigar and then began walking home. He was on his way home
when Sgt. Peterson stopped him. Defendant could not explain how
his fingerprint got on the porch railing, though he offered that
perhaps the police had planted it. At the close of all the
evidence, defendant again moved to dismiss the charges. The
trial court again denied the motion.
The jury found defendant guilty of second degree burglary
and larceny after breaking or entering. The trial court
sentenced defendant to 10-12 months imprisonment for the
2
These two men were not the same as the two Sgt. Peterson had
mentioned.
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burglary charge, suspended for 36 months of supervised
probation, and a consecutive term of 5-6 months imprisonment,
also suspended for 36 months of supervised probation. Defendant
filed timely written notice of appeal to this Court.
II. Ineffective Assistance of Counsel
In his only argument on appeal, defendant contends that he
received ineffective assistance of counsel when his trial
counsel failed to object to Mr. DiConzo’s out-of-court
identification as hearsay. We conclude that there is an issue
of fact that we cannot resolve on direct appeal and must dismiss
defendant’s claim without prejudice.
In general, claims of ineffective assistance
of counsel should be considered through
motions for appropriate relief and not on
direct appeal. . . . [Nevertheless,]
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. Allen, ___ N.C. App. ___, ___, 756 S.E.2d 852, 856
(2014) (citations and quotation marks omitted).
Criminal defendants are entitled to the
effective assistance of counsel. When a
defendant attacks his conviction on the
basis that counsel was ineffective, he must
show that his counsel’s conduct fell below
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an objective standard of reasonableness. In
order to meet this burden defendant must
satisfy a two part test. 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. Boozer, 210 N.C. App. 371, 382, 707 S.E.2d 756, 765
(2011) (citation, quotation marks, and emphasis omitted), disc.
rev. denied, ___ N.C. ___, 720 S.E.2d 667 (2012).
If the exclusion of the contested evidence would probably
not have changed the outcome, then it would be immaterial
whether the evidence was admissible. See id. So, we will first
address whether “there is a reasonable probability that, but for
[introduction of the contested evidence], there would have been
a different result in the proceedings.” State v. Braswell, 312
N.C. 553, 563, 324 S.E.2d 241, 248 (1985). We conclude that it
is reasonably probable that but for introduction of Mr.
DiConzo’s out-of-court identification the jury would have
reached a different result.
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Here, the evidence without the challenged identification
was extremely weak. The evidence showed that when Ms. Davis and
Mr. DiConzo returned to their apartment they saw four males
walking across the bridge from the apartment building. The four
men were carrying various items belonging to Ms. Davis and Mr.
DiConzo. When Mr. DiConzo began chasing them, all four took off
running. He then lost sight of them.
Sgt. Peterson testified that he was driving by when he saw
four males running out of the tree line by Mr. DiConzo and Ms.
Davis’ apartment complex. He pulled up to one of them—
defendant—and asked if he needed help. The man declined any
assistance and said he did not know the other three. That same
night, the police had detained four other individuals suspected
of being the perpetrators. The first two included one man whose
phone was discovered behind the apartment. The other two were
identified by Ms. Davis as two of the perpetrators, but never
charged.
The police examined the apartment and found that the screen
to the back deck of the apartment had been cut. One pane of a
double-pane glass door had been broken. Additionally, they found
one broken window, the apparent point of entry. The front door
was open. Defendant’s fingerprint was found on the outside
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railing of the porch, near where the perpetrators entered the
apartment. But the State points to no evidence that this
fingerprint could only have been impressed at the time of the
burglary. Cf. State v. Irick, 291 N.C. 480, 491-92, 231 S.E.2d
833, 841 (1977) (“Fingerprint evidence, standing alone, is
sufficient to withstand a motion for nonsuit only if there is
substantial evidence of circumstances from which the jury can
find that the fingerprints could only have been impressed at the
time the crime was committed.” (citation, quotation marks, and
emphasis omitted)). The fingerprint was on a railing outside of
the apartment and defendant lived in a nearby apartment complex.3
The police recovered another fingerprint from one of the stolen
video game cases, but defendant was excluded as a possible
source for that print. Thus, without the challenged evidence
identifying defendant as one of the four men who broke into the
3
Defendant testified that he thought the police may have
“planted” his fingerprint at the scene. While we recognize that
his explanation is highly unlikely, it is still true that the
State had the burden of proof and failed to present any
evidence, much less “substantial evidence[,] of circumstances
from which the jury can find that the fingerprints could only
have been impressed at the time the crime was committed.” Irick,
291 N.C. at 491-92, 231 S.E.2d at 841. The print was on the
exterior of the apartment and the evidence does not indicate
that it was in a location which would probably not be touched by
anyone except a person breaking into the apartment.
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apartment, the trial court should have granted defendant’s
motion to dismiss at the close of the State’s evidence.
Since we have determined that the evidence now challenged
by defendant was of such importance that its exclusion would
have likely changed the outcome of the case, we must address
whether the evidence was actually inadmissible. If so, the
failure of defendant’s trial counsel to object to the
identification may have rendered his assistance constitutionally
ineffective. We conclude that we lack sufficient evidence to
make a determination as to this prong.
A witness’ prior out-of-court statements may be used to
either corroborate or impeach the witness’ trial testimony, but
may not be used as substantive evidence. State v. Gell, 351 N.C.
192, 204, 524 S.E.2d 332, 340, cert. denied, 531 U.S. 867, 148
L.Ed. 2d 110 (2000); State v. Batchelor, 190 N.C. App. 369, 373,
660 S.E.2d 158, 161 (2008). Defendant correctly notes that,
unlike the federal rule, North Carolina’s Rule 801 does not
exempt out-of-court identifications from this rule. N.C. Gen.
Stat. § 8C-1, Rule 801, commentary (2011). So, while an out-of-
court identification may be admissible as a prior consistent
statement to corroborate a witness’ testimony, or as a prior
inconsistent statement to impeach the witness, it is not
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admissible as substantive evidence. State v. Murphy, 100 N.C.
App. 33, 39, 394 S.E.2d 300, 303-04 (1990) (holding that the
victim’s out-of-court statements that the defendant committed
fellatio were hearsay where the victim did not testify at trial
that he committed fellatio).
Here, the out-of-court statement was not offered to either
corroborate or impeach any witness’ testimony. Mr. DiConzo
testified that he identified the man Sgt. Peterson had detained
as one of the men whom he had been chasing. Sgt. Peterson
testified to the same. At trial, the State did not ask Mr.
DiConzo to identify defendant as the person he saw running from
the apartment. Mr. DiConzo’s testimony is hearsay because it is
an out-of-court statement admitted for the truth of the matter
asserted. N.C. Gen. Stat. § 8C-1, Rule 801 (2011). Because there
was no in-court statement to corroborate or contradict, its only
relevance here is a hearsay purpose—to show that defendant was,
in fact, the person Mr. DiConzo saw in front of his apartment.
There is no applicable exception to the general rule that
hearsay is inadmissible. See N.C. Gen. Stat. § 8C-1, Rule 802
(2011); N.C. Gen. Stat. § 8C-1, Rule 803 (2011). Indeed, the
State does not even argue that the out-of-court identification
was admissible as substantive evidence. Therefore, had
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defendant’s trial counsel objected to this evidence, the trial
court would have been required to sustain the objection and
exclude the evidence.
Nevertheless, “[w]here the strategy of trial counsel is
well within the range of professionally reasonable judgments,
the action of counsel is not constitutionally ineffective.”
State v. Canty, ___ N.C. App. ___, ___, 736 S.E.2d 532, 535
(2012) (citation and quotation marks omitted), disc. rev.
denied, ___ N.C. ___, 739 S.E.2d 850 (2013). Here, there is an
issue of fact about whether defendant’s trial counsel made a
strategic decision not to object to this evidence.
The evidence was introduced twice at trial—once through Mr.
DiConzo himself and once through Sgt. Peterson. Mr. DiConzo’s
testimony was somewhat vague on this point. The prosecutor
asked, “Did you identify the individual that the officer had
detained at that point in time? On that day, did you identify
that individual as being one of the individuals that broke into
your apartment?” Mr. DiConzo responded, “I certainly did.” The
State did not then clarify whether Mr. DiConzo recognized
defendant as the person whom he had identified or ask Mr.
DiConzo to identify defendant as the person he had seen in front
of the apartment. It is possible that trial counsel decided not
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to object to this hearsay evidence for fear of bringing that
omission to the attention of the State. But it is also possible
that trial counsel simply failed to object without such a
strategic reason, and it is possible that Mr. DiConzo would have
been unable to identify defendant as the man he had identified
on the night of the break-in. We cannot resolve this issue based
on the “cold record” before us. So, we must dismiss defendant’s
ineffective assistance claim without prejudice to his ability to
raise this issue through a motion for appropriate relief. See
Allen, ___ N.C. App. at ___, 756 S.E.2d at 856.
If the trial court determines that defendant’s trial
counsel made a strategic decision not to object to the out-of-
court identification by Mr. Diconzo, then defendant received no
ineffective assistance of counsel. Once the out-of-court
identification was in evidence through Mr. DiConzo’s testimony,
any error in failing to object to the same evidence being later
introduced through Sgt. Peterson would not be prejudicial.
III. Conclusion
For the foregoing reasons, we dismiss defendant’s claim of
ineffective assistance of counsel without prejudice to his
ability to bring the claim through a motion for appropriate
relief.
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DISMISSED.
Judge STEPHENS and MCCULLOUGH concur.
Report per Rule 30(e).