State v. Barnes
| Decision Date | 18 September 2018 |
| Docket Number | No. COA18-134,COA18-134 |
| Citation | 817 S.E.2d 920 (Table) |
| Parties | STATE of North Carolina v. Keeandus Rashad BARNES, Defendant. |
| Court | North Carolina Court of Appeals |
Attorney General Joshua H. Stein, by Special Deputy Attorney General Teresa Townsend, for the State.
The Law Office of Sterling Rozear, PLLC, by Sterling Rozear, for Defendant-Appellant.
Keeandus Rashad Barnes ("Defendant") appeals his conviction of possession of a mobile phone by a prison inmate in violation of N.C. Gen. Stat. § 14-258.1(g). Defendant argues that (1) the State failed to present sufficient evidence for the matter to be presented to the jury for deliberation; (2) he was denied effective assistance of counsel; and (3) the trial court erred and committed plain error in instructing the jury. After careful review of the record and applicable law, we hold that Defendant has failed to demonstrate error.
The evidence at trial tended to show:
On 28 February 2015, at or around 9:30pm, Defendant was awakened from his sleep in his single-person cell—Cell 46—in the Bertie County Correctional Institution and taken by correctional officers to another location to be searched. Correctional Officer John Weisser ("Officer Weisser") and another officer searched Cell 46 outside of Defendant's presence. Officer Weisser removed the sheet covering Defendant's mattress and found an incision on the mattress top. Inside the mattress he discovered a mobile phone and a battery pack attached to a black wire. The phone was "really hot" and "when [Officer Weisser] flipped open the phone the screen would light up." The battery pack was homemade from AA batteries, rubber gloves, and other items.
Because Officer Weisser worked in a different unit, he was unfamiliar with "how they [had] their layout set up" in Defendant's cell unit. Inmates generally "come and go freely [from their cells] during the day." When prisoners do leave their cells, they must lock the doors to ensure that others do not enter. When the doors are locked, as required, prisoners must disclose their cell cards for the officers to open the locked cell doors for the prisoner. The cell cards let the officers know that the prisoner sleeps in that particular cell. But prisoners routinely close the cell doors without locking them, merely giving the impression that they are locked.
The prison requires prisoners to bring their own mattresses when they change cells within the same unit. Officer Weisser has "never seen" a prisoner change cells within the same unit without his mattress. Defendant testified that, two days before the search, he had moved from Cell 20 to Cell 46. Defendant requested the move because the door of Cell 20 was malfunctioning. Defendant testified that he "was not allowed" to bring his mattress from Cell 20 because Cell 46 already had a mattress.
Defendant also testified that, in the two days prior to the search, up to four other inmates gathered in his cell "cooking meals together"—against the Institution's policy—and that Defendant occasionally left other inmates unattended in his cell. Defendant denied having seen the cell phone or knowing that any contraband was located in the mattress.
Defendant moved to dismiss the charge for insufficiency of the evidence at the close of the State's evidence, which the court denied. Defendant failed to renew the motion at the close of all the evidence.
During the jury charge conference, Defendant's trial counsel voiced two objections to the following instruction:
And if you find beyond a reasonable doubt that an article was found in certain premises and the defendant exercised control over those premises this would be a circumstance from which you may infer the defendant was aware of the presence of the article and had the power and intent to control its disposition or use.
Defense counsel first argued that, because the mobile phone was discovered in close proximity to Defendant, the instruction was improper. Defense counsel also argued that the instruction was inconsistent with the immediately preceding instruction, which described possession through close physical proximity coupled with other circumstances. The trial court overruled the objections.
The jury found Defendant guilty and Defendant timely appealed.
We review appeals on grounds of ineffective assistance of counsel and improper jury instructions de novo . See State v. Graham , 200 N.C. App 204, 214, 683, S.E.2d 437, 444 (2009) (); State v. Pender , 218 N.C. App. 233, 243, 720 S.E.2d 836, 842 (2012) (). When employing de novo review, the appellate court "freely substitutes its own judgment" for that of the lower court. State v. Williams , 362 N.C. 628, 632, 669 S.E.2d 290, 294 (2008). Unpreserved challenges to jury instructions are reviewed for plain error. State v. Lawrence , 365 N.C. 506, 512, 723 S.E.2d 326, 330 (2012) ; N.C. R. App. P. 10(a)(4) (2018).
North Carolina Rule of Appellate Procedure 10(a)(3) provides that, "[i]f a defendant makes such a motion after the State has presented all its evidence ... and the defendant then introduces evidence, defendant's motion for dismissal ... is waived." While Defendant moved to dismiss at the close of the State's evidence, he waived the issue by failing to renew the motion after he presented his own evidence.
Defendant requests that, if we determine that the appeal of this issue is barred by Rule 10(a)(3), we exercise our discretion under Rule 2 to hear the appeal, notwithstanding Defendant's waiver. Rule 2 provides:
To prevent manifest injustice to a party, or to expedite decision in the public interest, either court of the appellate division may, except as otherwise expressly provided by these rules, suspend or vary the requirements or provisions of any of these rules in a case pending before it upon application of a party or upon its own initiative, and may order proceedings in accordance with its directions.
N.C. R. App. P. 2. The North Carolina Supreme Court has curtailed this discretion by recognizing that "this residual power to vary the default provisions of the appellate procedure rules should only be invoked rarely and in ‘exceptional circumstances.’ " State v. Gayton-Barbosa , 197 N.C. App. 129, 134, 676 S.E.2d 586, 589 (2009) (quoting State v. Hart , 361 N.C. 309, 316-17, 644 S.E.2d 201, 205-06 (2007) ). When reviewing matters concerning a conviction lacking evidentiary support, we have historically invoked Rule 2. See id. at 135, 676 S.E.2d at 590 (); State v. Batchelor , 190 N.C. App. 369, 378, 660 S.E.2d 158, 164 (2008) (). However, as explained below, the State did produce sufficient evidence. As such, we decline to invoke Rule 2 and will not review this issue.
In the alternative to his appeal from the trial court's denial of his motion to dismiss, Defendant argues that he was denied effective assistance of counsel by his trial counsel's failure to renew the motion to dismiss at the close of all the evidence. We reject this argument because, presuming, without deciding, defense counsel performed deficiently, Defendant has failed to demonstrate that the result of his trial would have been different had defense counsel renewed its motion to dismiss.
A defendant has a Sixth Amendment right to effective assistance of counsel. Strickland v. Washington , 466 U.S. 668, 686, 80 L.Ed.2d 674, 692 (1984). To prevail on a claim for ineffective assistance of counsel, Defendant must satisfy a two-part test. First, Defendant must prove that defense counsel's performance was deficient. Deficient performance is defined as "errors so serious that counsel was functioning" below an objective standard of reasonableness "under prevailing professional norms." Id. at 687-88, 80 L.Ed.2d at 693.
Second, the deficient performance must prejudice Defendant. Prejudice is a " ‘reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.’ " State v. Allen , 360 N.C. 297, 316, 626 S.E.2d 271, 286 (2006) (quoting Strickland , 466 U.S. at 694, 80 L.Ed.2d at 698 ); see State v. Blackmon , 208 N.C. App. 397, 403, 702 S.E.2d 833, 836 (2010) (). If the "reviewing court can determine at the outset" that there was no prejudice, "the court need not determine whether counsel's performance was actually deficient." State v. Braswell , 312 N.C. 553, 563, 324 S.E.2d 241, 249 (1985).
When reviewing a trial court's denial of a motion to dismiss for sufficiency of the evidence, we must determine whether there is substantial evidence "(1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense." State v. Fritsch , 351 N.C. 373, 378, 526 S.E.2d 451, 455 (2000) (citation omitted). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Smith , 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). Evidence raising only "suspicion or conjecture" is insufficient, allowing the motion to dismiss to be granted. State v. Cutler , 271 N.C. 379, 383, 156 S.E.2d 679, 682 (1967). Evidence is viewed in the light most favorable to the State, including every reasonable inference most favorable to the State that may arise from the evidence. State v. Curry , 203 N.C. App. 375, 391-92, 692 S.E.2d 129, 141 (2010). Any contradictions and discrepancies are for the jury to resolve and are irrelevant upon review....
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