State v. Givens, 030116 NCCA, COA15-710

Docket NºCOA15-710
Opinion JudgeBRYANT, JUDGE.
Party NameSTATE OF NORTH CAROLINA v. ARTHUR LEE GIVENS
AttorneyAttorney General Roy Cooper, by Special Deputy Attorney General I. Faison Hicks, for the State. Michael E. Casterline, for defendant-appellant.
Judge PanelJudges DILLON and ZACHARY concur.
Case DateMarch 01, 2016
CourtCourt of Appeals of North Carolina

STATE OF NORTH CAROLINA

v.

ARTHUR LEE GIVENS

No. COA15-710

Court of Appeals of North Carolina

March 1, 2016

Heard in the Court of Appeals 12 January 2016.

Appeal by defendant from order entered 11 November 2014 by Judge Eric L. Levinson in Mecklenburg County Superior Court. No. 13 CRS 248513–14

Attorney General Roy Cooper, by Special Deputy Attorney General I. Faison Hicks, for the State.

Michael E. Casterline, for defendant-appellant.

BRYANT, JUDGE.

Where defendant has not met his burden to show that defense counsel was deficient by not fulfilling a promise made to the jury in his opening statement, defendant was not prejudiced and is not entitled to a new trial.

Arthur Lee Givens, defendant, and Donald Everette Gist, the victim, became acquainted in the fall of 2014 while they both stayed at Schameka Earl's home for a few weeks. At first, Gist got along well with both Earl and defendant. After a few weeks, however, both Earl and defendant began having issues with Gist. Defendant, who testified at trial, said Gist began threatening him, and other people in the house had to intervene to keep peace between them, as he and Gist "had each other's throat." On one occasion, defendant saw Gist carrying a handgun tucked into his pants as he walked around Earl's house. A few days after Thanksgiving, on or about 4 December 2013, after suspecting that Gist had a gun in her house, Earl testified that she told Gist to move out.

On 6 December 2013, the day of Gist's murder, Earl, defendant, and Tonya McCaster were at Earl's house. McCaster testified that defendant received a telephone call and, after he hung up, defendant said he "was gonna murder him." Defendant left and returned less than ten minutes later. Upon his return to Earl's house, he said, "I did it." McCaster testified that she heard sirens and the sound of an ambulance and police cars. Defendant then left Earl's house quickly.

Also on 6 December 2013, Jason Dobie, who was staying in a home near Earl's house, left to walk to the Queens Mini Mart. As he was walking there, he heard several gunshots. After he heard the gunshots, defendant ran past him in the direction of Earl's house. As defendant passed Dobie, Dobie heard defendant say "he shouldn't have crossed me." Dobie arrived at the Queens Mini Mart to see Gist lying dead on the pavement.

The Queens Mini Mart operated a surveillance camera at the time of the shooting. This camera's footage depicted the scene before and during the shooting. The video footage showed, inter alia, the following: (1) defendant at the Mini Mart; (2) that Gist had no weapon in his hand; (3) that Gist did not walk towards or otherwise approach defendant; (4) before Gist was shot, he started walking away from defendant; (5) defendant pulled out a gun as Gist continued to walk away from defendant; (6) defendant shot Gist a total of five times, killing him; and (7) even after defendant shot Gist and Gist was on the ground, defendant continued to shoot him. Defendant testified that he believed Gist had a gun, based on a bulge he saw on Gist's person. Defendant also testified that he "felt eminent [sic] danger at the time." Four days later, defendant was arrested.

Forensic evidence revealed that Gist had gunshot wounds to the head, torso, back, and hands, and that the cause of death was from gunshot wounds to the head and chest, each one of which was independently lethal. The police found no weapons on Gist after his death, but the medical examiner found a crack pipe in Gist's clothing.

Defendant was indicted on charges of first-degree murder and possession of a firearm by a felon on 16 December 2013. Defendant was tried on 17–21 November 2014 in the Criminal Superior Court of Mecklenburg County, before the Honorable Eric L. Levinson.

Before trial, defendant's attorney filed notice of intent to assert self-defense and also requested a Harbison hearing. During the Harbison hearing, defendant acknowledged that he had reviewed the discovery in his case; he had a basic understanding of the concept of self-defense; it was his decision as to whether or not his attorney could ask the jury to convict him of voluntary manslaughter; and he understood he could assert self-defense without making any concessions. Defendant specifically acknowledged that he agreed with his attorney's plan to concede to the jury that defendant had possessed a gun and that he had killed Gist by shooting him. The trial court concluded that defendant made these decisions knowingly, voluntarily, and intelligently. Thereafter, defendant pled guilty to the charge of possession of a firearm by a felon, with no plea agreement or other representation from the State. The trial court continued judgment upon sentencing.

At trial, during defense counsel's opening statement, he told the jurors that the evidence would show that defendant's conduct had been justified:

[Defendant] did kill Mr. Gist. There is no question about that. . . . The question is was the conduct justified. When you hear all of the evidence you're going to find that his conduct was justified based on everything that had happened in the weeks before and what finally led up to this event. . . . I believe the evidence that you will hear and in the end everything will say he was justified.

At the charge conference following the presentation of all the evidence, defense counsel requested an instruction on voluntary manslaughter, saying that imperfect self-defense supported the instruction. The trial court denied that request. Defense counsel also requested an instruction on second-degree murder, which the trial court granted. After the trial court explained that it would instruct the jury only on first- degree and second-degree murder, defense counsel made a motion for a mistrial based on his own ineffective assistance of counsel. The motion for a mistrial was denied.

Defendant was found guilty of first-degree murder. The trial court consolidated the conviction for possession of a firearm with the first-degree murder conviction and sentenced defendant to life in prison without parole. Defendant appeals.

On appeal, defendant argues that trial counsel's failure to produce promised evidence amounts to ineffective assistance of counsel. Specifically, defendant contends that because defense counsel specifically promised that the evidence would show the jury that defendant's conduct was justified, but none of the evidence presented suggested that defendant's shooting the victim was justified or done in self-defense, defense counsel's failure to deliver on his promise to the jury amounted to ineffective assistance of counsel. We disagree.

"[I]neffective 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. Thompson, 359 N.C. 77, 122–23, 604 S.E.2d 850, 881 (2004) (citation omitted) (quoting State v. Fair, 354 N.C. 131, 166, 577 S.E.2d 500, 524 (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 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 (2006) (internal citations and quotation marks omitted). Further, when a court undertakes to engage in this analysis,

every effort [must] be made to eliminate the distorting effects of hindsight . . . . Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."

Strickland v. Washington, 466 U.S. 668, 689, 80 L.Ed.2d 674, 694–95 (1984) (citation omitted).

Defendant argues that if defense counsel had not relied on a strategy of self-defense, defendant would not, at his attorney's suggestion, have conceded essential elements of the crime. Defendant further contends that defense counsel should have been aware that the evidence was legally insufficient to support any type of defensive force instruction and that defense counsel's deficient performance was exacerbated by the promise made to the jury that there would be evidence of justification for the shooting.

In support of his argument, defendant relies on two cases, State v. Moorman, 320 N.C. 387, 358 S.E.2d 502 (1987), and Anderson v. Butler, 858 F.2d 16 (1st Cir. 1988), contending that each stands for the proposition that a promise made by defense counsel in an opening statement which counsel does not ultimately fulfill amounts to a per se instance of ineffective assistance of counsel, requiring a new trial. However, these cases are either highly distinguishable (Moorman), or not controlling authority (Anderson).

In Moorman, the N.C. Supreme Court noted that defense counsel's "promised defense severely undercut the credibility of the actual evidence offered at trial . . . ." 320 N.C. at 401, 358 S.E.2d at 511. Including his failing to deliver on a promised defense, the defendant's trial counsel in Moorman committed, inter alia, a wide array of incredibly egregious acts of misconduct: (1) he told the jury in his opening statement that he would produce "one...

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