State v. Armstrong

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA12-1109
NORTH CAROLINA COURT OF APPEALS
Filed: 4 February 2014
STATE OF NORTH CAROLINA
v. Edgecombe County
No. 10 CRS 52611
No. 10 CRS 52613
ROGER BENJOUR ARMSTRONG and
DOMINIQUE ANTWON RANDOLPH
Appeal by defendants from judgments entered 15 February
2012 by Judge Clifton W. Everett, Jr. in Edgecombe County
Superior Court. Heard in the Court of Appeals 14 March 2013.
Roy Cooper, Attorney General, by William P. Hart, Jr.,
Assistant Attorney General, for the State.
Staples Hughes, Appellate Defender, by Benjamin Dowling-
Sendor, Assistant Appellate Defender, for defendant-
appellant Armstrong.
W. Michael Spivey for defendant-appellant Randolph.
STEELMAN, Judge.
Defendants failed to show plain error with regard to the
trial court’s jury instructions. The trial court’s questions to
witnesses during the presentation of evidence did not constitute
an improper expression of opinion concerning the guilt of
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defendants. Where the record on appeal was insufficient for us
to determine whether ineffective assistance of counsel had
occurred, defendant Randolph’s ineffective assistance of counsel
claim is dismissed without prejudice.
I. Factual and Procedural Background
On 22 June 2010, two men broke into the residence of
Haywood Gaines and Nicole Sheffield on Planter Street in Rocky
Mount. Gaines and Sheffield identified the defendants in court
as being Roger Armstrong and Dominique Randolph (defendants).
Upon breaking into the residence, defendants assaulted Gaines
and Sheffield, and robbed them of $200 and an ATM card.
Randolph touched Sheffield between her legs, and threatened to
rape her. Photographs from an automatic teller machine showed
defendant Armstrong attempting to use Gaines’ ATM card about 45
minutes after the robbery.
At trial, Armstrong’s former girlfriend, Kenya Tillery,
testified that on the date of the robbery, Armstrong was with
her in a motel room, but left. When he returned, he told her
that he had gone to Planter Street, and had hit two people with
a gun. He also stated that it was Randolph who had driven him
to Planter Street and then back to the motel.
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Armstrong was indicted for one count of robbery with a
dangerous weapon, one count of first-degree burglary, one count
of financial transaction card theft, and one count of unlawfully
obtaining a credit card. He was also indicted for two counts of
assault with a deadly weapon inflicting serious injury, one for
Gaines and one for Sheffield. Randolph was indicted for one
count of robbery with a dangerous weapon, one count of first-
degree burglary, and the sexual battery of Sheffield.
On 13 February 2012, Armstrong pled guilty to one count of
unlawfully obtaining a credit card. On 15 February 2012, a jury
found Armstrong guilty of robbery with a dangerous weapon,
first-degree burglary, financial transaction card theft, assault
with a deadly weapon inflicting serious injury (as to Gaines),
and assault with a deadly weapon (as to Sheffield). The jury
found Randolph guilty of robbery with a dangerous weapon and
first-degree burglary. Randolph was found not guilty of sexual
battery. As to Armstrong, the trial court arrested judgment on
the conviction for financial transaction card theft and
unlawfully obtaining a credit card. The trial court then
imposed two consecutive active sentences upon Armstrong of 73-97
months for robbery with a dangerous weapon and first-degree
burglary. Armstrong’s two assault convictions were
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consolidated, and a third consecutive active sentence of 23-37
months was imposed. The trial court imposed two consecutive
active sentences upon Randolph of 73-97 months for robbery with
a dangerous weapon and first-degree burglary.
Defendants appeal.
II. Separate Determinations of Guilt
In their first argument, defendants contend that the trial
court committed plain error in failing to instruct the jurors to
determine the guilt or innocence of defendants Armstrong and
Randolph separately. We disagree.
A. Standard of Review
[T]he plain error rule ... is always to be
applied cautiously and only in the
exceptional case where, after reviewing the
entire record, it can be said the claimed
error is a “fundamental error, something so
basic, so prejudicial, so lacking in its
elements that justice cannot have been
done,” or “where [the error] is grave error
which amounts to a denial of a fundamental
right of the accused,” or the error has
“’resulted in a miscarriage of justice or in
the denial to appellant of a fair trial’” or
where the error is such as to “seriously
affect the fairness, integrity or public
reputation of judicial proceedings” or where
it can be fairly said “the instructional
mistake had a probable impact on the jury's
finding that the defendant was guilty.”
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State v. Lawrence, 365 N.C. 506, 516-17, 723 S.E.2d 326,
333 (2012) (quoting State v. Odom, 307 N.C. 655, 660, 300 S.E.2d
375, 378 (1983)).
“On appeal, this Court reviews a jury charge contextually
as a whole, ‘and when so considered if it presents the law of
the case in such manner as to leave no reasonable cause to
believe the jury was misled or misinformed, we will not sustain
an exception for that the instruction might have been better
stated.’” Progress Energy Carolinas, Inc. v. Strickland, 200
N.C. App. 600, 602, 685 S.E.2d 521, 524 (2009) (quoting Jones v.
Satterfield Dev. Co., 16 N.C. App. 80, 86–87, 191 S.E.2d 435,
439–40, cert. denied, 282 N.C. 304, 192 S.E.2d 194 (1972)).
B. Analysis
In the instant case, the charges against defendants were
consolidated for trial. Defendants contend that the trial court
impermissibly implied in its mandate to the jury that one
defendant could not be found guilty unless both were.
Defendants contend that this was plain error.
In its jury instructions, the trial court listed the
charges against each defendant individually. However, in
several instances, the court also referred to the defendants
collectively. In the beginning of its jury instructions:
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In this case, the defendants, Mr. Armstrong
and Mr. Randolph, have entered pleas of not
guilty to these charges. The fact that they
have been charged is no evidence of guilty.
[sic] Under our system of justice when a
defendant pleads not guilty, he is not
required to prove his innocence. He is
presumed to be innocent. The state must
prove to you that the defendants are guilty
beyond a reasonable doubt.
(Emphasis added) With respect to its instructions on the
crimes common to both defendants:
Now, with respect to the charges of robbery
with a dangerous weapon and first-degree
burglary on Mr. Armstrong in 10-CRS-52611
and 10-CRS-52613 that’s Mr. Randolph guilty
of robbery with a dangerous weapon or not
guilty or guilty of first-degree burglary or
not guilty. I’m going to give you the
instructions on both –- and these
instructions apply to both defendants on
these two charges. You all understand that
now.
The instructions I’m going to give you I’m
going to give it to you one time. It’s
going to apply to both defendants.
(Emphasis added) With respect to its instructions on the
elements of robbery with a dangerous weapon:
The defendants, Mr. Armstrong and Mr.
Randolph, have been charged with robbery
with a firearm . . .
The first element [is] that the defendants
took property . . .
Secondly, that the defendants carried away
the property. . . .
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Four, that the defendants knew they were not
entitled to take the property. . . .
Fifth, that at the time of the taking, the
defendants intended to deprive the person of
its use permanently. . . .
Sixth, that the defendants had a firearm in
their possession at the time they obtained
the property. . . .
And, seventh, that the defendants obtained
the property by endangering or threatening
the life of that person with the firearm.
(Emphasis added) Finally, with respect to its instructions
on the elements of first-degree burglary1:
These instructions will apply equally to
both of these defendants. Now, the
defendants have been charged with first-
degree burglary . . .
Now, for you to find the defendants guilty
of this charge, the state must prove six
things . . .
First, that there was a breaking and
entering by the defendants or someone with
whom they were acting in concert. . . .
And, sixth, that at the time of the breaking
and entering, the defendants or someone with
whom they were acting in concert intended to
commit armed robbery.
1
We note that the trial court made reference to the doctrine of
acting in concert in its instructions. The doctrine of acting
in concert, however, is designed to impose principal liability
on a secondary actor in a crime. In the instant case, both
defendants were charged as principal actors; as such, the acting
in concert doctrine was not appropriately applied.
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(Emphasis added) At one point during the jury
instructions, counsel for defendant Randolph observed that,
during the instructions on assault, the trial court made
reference to “they” when only one defendant was charged with
that crime. The court corrected this instruction to the jury.
The jury returned separate verdict sheets against each
defendant.
Defendants contend that the court repeatedly referred to
defendants collectively, thus improperly influencing the jury to
require that both be found guilty. Defendants cite to our
decision in State v. Adams in support of this argument. In
Adams, two defendants were found guilty of two counts each of
attempted first-degree murder and assault with a deadly weapon
with intent to kill inflicting serious injury. State v. Adams,
212 N.C. App. 413, 414, 711 S.E.2d 770, 771 (2011). The trial
court, in its instructions to the jury, repeatedly referred to
the defendants collectively, with statements like “to find the
defendants guilty[,]” “each of the defendants had this
intent[,]” and “the defendants did not act in self-defense[.]”
Id. at 416, 711 S.E.2d at 772-73. Reviewing the jury
instructions for plain error, we concluded that:
The jury instructions reproduced above
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impermissibly grouped defendants together in
presenting the charges, the issues, and
defendants to the jury. Given that
conflicting evidence was presented as to the
order in which weapons were drawn and what
role generally each defendant played in the
incident, this confusion likely had an
effect on the jury's verdict. As in
McCollum, “we are unable to say here, as we
have said in other cases, that we are
‘convinced that the jurors were not misled
by the portion of the charge to which
defendants except.’” 321 N.C. at 560, 364
S.E.2d at 113.
Id. at 418, 711 S.E.2d at 773. We therefore reversed and
remanded for a new trial as to both defendants.
In the instant case, any such error was ameliorated by the
trial court’s further instructions. Although the trial court
referred to defendants collectively in some places, it also
referred to them separately. For example, in its charge to the
jury, the trial court listed the charges against each defendant
separately. Further, in its subsequent instructions to the
jury, although it defined each charge as applying to both
defendants, the trial court reminded the jury that each offense
was a separate count on a separate verdict sheet for each
defendant. Additionally, when counsel for defendant Randolph
indicated that the trial court had erroneously instructed the
jury that both defendants were subject to the assault with a
deadly weapon charge, the trial court corrected itself in its
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instructions. Where a trial court issues an erroneous
instruction, this error may be ameliorated by a corrective
instruction.
Viewing the jury instructions contextually, as a whole, we
hold that each of the two defendants has failed to demonstrate
that any error upon the part of the trial court had a probable
impact on the jury’s determination of guilt.
This argument is without merit.
III. Alleged Breach of Impartiality by the Trial Court
In their second argument, defendants contend that the trial
court erred in making repeated statements and questions
conveying to the jury an opinion that defendants were guilty of
the crimes with which they were charged. We disagree.
A. Standard of Review
The question of whether statements by a trial court during
a trial violate the court’s duty of impartiality is preserved as
a matter of law, regardless of whether a defendant objects
during the trial. State v. Duke, 360 N.C. 110, 123, 623 S.E.2d
11, 20 (2005), cert. denied, 549 U.S. 855, 166 L. Ed. 2d 96
(2006); State v. Young, 324 N.C. 489, 494, 380 S.E.2d 94, 97
(1989). Whether the statements deprive the defendant of a fair
trial is “determined by what is said and its probable impact
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upon the jury in light of all attendant circumstances.” State
v. Burke, 342 N.C. 113, 122-23, 463 S.E.2d 212, 218 (1995).
B. Analysis
Defendants contend that the trial court erred in its
questions and statements to witnesses and in its instructions to
the jury, which defendants allege implied that defendants were
guilty of the offenses charged. We disagree.
At several points during the examination of witnesses, the
court asked questions of witnesses, or made statements, in order
to clarify testimony. Such questions are within the discretion
of the trial court. See State v. Smarr, 146 N.C. App. 44, 49,
551 S.E.2d 881, 884 (2001), disc. review denied, 355 N.C. 291,
561 S.E.2d 500 (2002). During the State’s examination of
Gaines, the following exchange took place:
THE COURT: What date was this?
Q. Do you recall it being in June of 2010,
Mr. Gaines?
A. Yes.
Q. Do you remember the specific date?
A. No, I don't.
THE COURT: June what?
THE STATE: Judge, the indictment reads 6-22
of 2010.
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THE COURT: Well, he said June, okay. June
of 2010.
A. The 22nd.
THE COURT: Go ahead.
. . .
THE COURT: Roger what's his name? Roger
who?
MR. WIGGINS: Objection to the use of the
name, your Honor, without any further
description.
THE COURT: Sir.
A. He the one there.
MR. WIGGINS: Objection to the use of the
defendant's name without any further
description or foundation.
THE COURT: All right. Well, what's Roger's
name?
A. Roger Benjour Armstrong.
THE COURT: Roger Armstrong, okay. Go ahead.
A. He came in, pistol whipped me about ten
to fifteen times.
THE COURT: How do -- wait a minute. How do
you know him?
A. I don't know.
THE COURT: You don't know him.
A. I don't know him.
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THE COURT: You've never seen him before.
A. Never seen him before. But come to find
out, he has a cousin that stays directly
behind me.
MR. WIGGINS: Well, objection to what he
found out, your Honor.
THE COURT: No, no, no, no, don't get into
that.
A. I never seen the guy before.
THE COURT: All right, Mr. Wolfe, you need to
flush that out.
. . .
THE COURT: Which one is the fellow you refer
to as Roger Armstrong?
A. The light-skin one.
THE COURT: Where is he? Is he here today?
A. Right there. (pointing.)
THE COURT: Where is he seated?
A. Right beside his lawyer.
THE COURT: What's he got on?
A. Multi-colored shirt, Levi jeans, shoes.
THE COURT: All right. Let the record reflect
that he's identified the defendant, Roger
Armstrong. Go ahead.
. . .
THE COURT: What did he say?
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A. He didn't say anything. He just went
straight to the back room, just ransacking
the place. As Roger was asking –
THE COURT: Where is he? Is he in the
courtroom today?
A. Yes, he is.
THE COURT: Where is he?
A. To the far room, white tie.
THE COURT: Wearing a white tie, sitting next
to Mr. Wiggins.
A. Yes.
THE COURT: That's Dominique who?
A. Randolph.
THE COURT: Okay.
Q. Does that mean, then, Mr. Gaines, that
the defendant, Roger Armstrong, began
hitting you and the defendant, Dominique
Randolph, went to another part of the house.
A. Right.
THE COURT: Let the record reflect he's
identified the defendant, Dominique
Randolph, as the other individual. Go ahead.
We find this interaction illustrative of those to which
defendants object. Defendants contend that this excerpt, taken
alongside the others, constituted the trial court improperly
conveying an opinion that defendants were guilty of the offenses
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charged. Viewing the record under the totality of the
circumstances, we do not agree. The trial court’s exercise of
its discretionary power to clarify the testimony of witnesses
was proper.
Defendants further contend that the trial court’s jury
instructions, in implying that defendants acted together,
similarly constituted an improper expression of opinion.
Defendants’ contentions are based upon their first argument,
that the trial court conflated the defendants. We hold that the
trial court’s conflation of defendants was not plain error,
under the totality of the circumstances. We further hold that
the trial court’s charge to the jury did not express any opinion
as to the guilt of either defendant.
This argument is without merit.
IV. Ineffective Assistance of Counsel
In his third argument, defendant Randolph contends that he
was deprived of his Sixth Amendment right to effective
assistance of counsel. We dismiss this argument without
prejudice to defendant’s filing of a motion for appropriate
relief with the trial court.
A. Standard of Review
Our Supreme Court has instructed that
“should the reviewing court determine the
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IAC claims have been prematurely asserted on
direct appeal, it shall dismiss those claims
without prejudice to the defendant's rights
to reassert them during a subsequent MAR
proceeding.” Fair at 167, 557 S.E.2d at 525.
In order to determine whether a defendant is
in a position to adequately raise an
ineffective assistance of counsel claim, we
stress this Court is limited to reviewing
this assignment of error only on the record
before us, without the benefit of
“information provided by defendant to trial
counsel, as well as defendant's thoughts,
concerns, and demeanor[,]” Buckner at 412,
527 S.E.2d at 314, that could be provided in
a full evidentiary hearing on a motion for
appropriate relief.
State v. Stroud, 147 N.C. App. 549, 554-55, 557 S.E.2d 544, 547
(2001).
To prevail on a claim of ineffective
assistance of counsel, a defendant must
first show that his counsel’s performance
was deficient and then that counsel’s
deficient performance prejudiced his
defense. Deficient performance may be
established by showing that counsel’s
representation fell below an objective
standard of reasonableness. Generally, to
establish prejudice, a defendant must show
that there is a reasonable probability that,
but for counsel’s unprofessional errors, the
result of the proceeding would have been
different. A reasonable probability is a
probability sufficient to undermine
confidence in the outcome.
State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271, 286
(citations and quotation marks omitted), cert. denied, 549 U.S.
867, 166 L. Ed. 2d 116 (2006).
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B. Analysis
Defendant Randolph contends that he received ineffective
assistance of counsel (IAC) in violation of his Sixth Amendment
rights.
When an IAC claim is brought on direct appeal, our
preliminary inquiry is whether this Court has sufficient
information to determine the claim, or whether that claim should
be dismissed without prejudice so that the appellant may file it
as a Motion for Appropriate Relief with the trial court. Stroud
at 554-55, 557 S.E.2d at 547.
In the instant case, defendant Randolph contends that the
trial court’s denial of his attorney’s motion to suppress
evidence, coupled with his attorney’s alleged elicitation of
evidence linking defendant to the crime scene, constituted
ineffective assistance of counsel. We hold, however, that there
is insufficient evidence in the record before us to determine
IAC. Accordingly, we dismiss this portion of Randolph’s appeal
without prejudice.
V. Conclusion
The trial court did not commit plain error in its
instructions to the jury with regard to the two defendants. The
trial court did not violate its duty of impartiality with regard
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to the guilt of the two defendants. Defendant Randolph’s IAC
argument is dismissed without prejudice.
NO ERROR.
Judges ELMORE and STROUD concur.
Report per Rule 30(e).