State v. Foye, No. COA04-299 (NC 6/21/2005)
| Decision Date | 21 June 2005 |
| Docket Number | No. COA04-299,COA04-299 |
| Parties | STATE OF NORTH CAROLINA v. ALTON RAY FOYE |
| Court | North Carolina Supreme Court |
McAfee Law, P.A., by Robert J. McAfee, for defendant.
Alton Ray Foye (defendant) was convicted on 5 November 2003 of assault with a deadly weapon inflicting serious injury. Defendant was sentenced to fifty-three to seventy-three months in prison. Defendant appeals.
The State's evidence at trial tended to show that on 11 April 2003, defendant visited his twin sister, Dorothy Smith (Ms. Smith), at her home in Kinston, North Carolina. Defendant and Ms. Smith argued and she asked defendant to leave. He left, but returned ten minutes later and a second argument ensued. During this argument, defendant stabbed Ms. Smith in her arm, breast, and knee. As a result of her injuries, Ms. Smith received stitches in her leg and arm and had to wear a leg brace. Ms. Smith was unable to walk or care for herself while she was recuperating and relied on her mother and boyfriend for her care. Ms. Smith testified that she was in pain for seven days following her injuries and took pain medication. At the time of trial, Ms. Smith had scars on her arm, breast, and leg where defendant had stabbed her.
Defendant's first assignment of error alleges that defendant received ineffective assistance of counsel during the trial. Specifically, defendant argues that his trial counsel failed to pursue pretrial motions, failed to object to various evidence introduced at trial, failed to move to strike certain portions of trial testimony, failed to inquire into Ms. Smith's use of alcohol, prescription drugs, and illegal drugs, and failed to object to the submission of the case to the jury when the evidence varied from the charged conduct and the jury instructions.
To effectively assert ineffective assistance of counsel, a defendant must show "both that `counsel's performance was so deficient as to deprive [the defendant] of his right to be represented and that absent the deficient performance by defense counsel, there would have been a different result at trial.'" State v. Rogers, 355 N.C. 420, 449-50, 562 S.E.2d 859, 878 (2002) (); see also Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674 (1984). Our Supreme Court has held that "because of the nature of [ineffective assistance of counsel] claims, defendants likely will not be in a position to adequately develop many [ineffective assistance of counsel] claims on direct appeal." State v. Fair, 354 N.C. 131, 167, 557 S.E.2d 500, 525 (2001), cert. denied, 535 U.S. 1114, 153 L. Ed. 2d 162 (2002). However, "N.C. Gen. Stat. § 15A-1419 (a)(3) (2003) `requires a defendant to raise on direct appeal "those [ineffective assistance of counsel] claims on direct review that are apparent from the record."'" State v. Jackson, 165 N.C. App. 763, 776, 600 S.E.2d 16, 25, disc. review denied, 359 N.C. 72, 604 S.E.2d 923 (2004) (alteration in original) (citations omitted). As a result, "it is likely that [defense] counsel will err on the side of bringing claims for ineffective assistance of counsel on direct review even when they cannot be accurately determined at such a stage." State v. Lawson, 159 N.C. App. 534, 544, 583 S.E.2d 354, 361 (2003). Therefore, "[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." Fair, 354 N.C. at 166, 557 S.E.2d at 524.
In the case before us, we cannot determine from the cold record whether defendant's ineffective assistance of counsel claim has merit. More evidence is needed before this Court can provide a meaningful review of defendant's claims of ineffective assistance of counsel. As a result, we overrule this assignment of error without prejudice so that defendant may raise this issue in a postconviction motion for appropriate relief. See State v. Long, 354 N.C. 534, 540, 557 S.E.2d 89, 93 (2001); State v. Blizzard, ___ N.C. App. ___, ___, 610 S.E.2d 245, 255 (2005); Jackson, 165 N.C. App. at 777, 600 S.E.2d at 25.
Defendant assigns error to the admission of the testimony of Kinston Police Officer William Murphy (Officer Murphy). Defendant argues that it was error to allow Officer Murphy to testify that Ms. Smith was suffering from "excruciating pain" after Ms. Smith was stabbed. Defendant argues that this testimony constituted an improper lay opinion.
We first note that defendant did not object to this testimony at trial. Therefore, we grant defendant's request that we review this assignment of error for plain error. Plain error is error "so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached." State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244, 251 (1987), cert. denied, 485 U.S. 1036, 99 L. Ed. 2d 912 (1988). Plain error review places "the burden . . . on the defendant to show that `absent the error the jury probably would have reached a different verdict.'" State v. Bellamy, 159 N.C. App. 143, 147, 582 S.E.2d 663, 667, cert. denied, 357 N.C. 579, 589 S.E.2d 130 (2003) (citations omitted).
Lay opinion testimony is governed by Rule 701 of the N.C. Rules of Evidence: If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.
N.C. Gen. Stat. § 8C-1, Rule 701 (2003). Admissible lay opinion testimony includes "shorthand statements of fact." State v. Eason, 336 N.C. 730, 747, 445 S.E.2d 917, 927 (1994), cert. denied, 513 U.S. 1096, 130 L. Ed. 2d 661 (1995); State v. Williams, 319 N.C. 73, 78, 352 S.E.2d 428, 432 (1987); see also Official Commentary to N.C. Gen. Stat. § 8C-1, Rule 701 (). Shorthand statements of fact have been defined by our Supreme Court as "`instantaneous conclusions of the mind as to the appearance, condition, or mental or physical state of persons, animals, and things, derived from observation of a variety of facts presented to the senses at one and the same time.'" State v. Spaulding, 288 N.C. 397, 411, 310 S.E.2d 178, 187 (1975) (citations omitted), vacated in part on other grounds by 428 U.S. 904, 49 L. Ed. 2d 1210 (1976); see also Williams, 319 N.C. at 78, 352 S.E.2d at 432.
At trial, Officer Murphy testified on direct examination:
Q. Now shortly after [arriving at the scene], [Officer] Murphy, you went to Lenoir Memorial Hospital?
A. Yes, I did.
Q. And again you had occasion to see Ms. . . . Smith?
A. Yes, I did. Q. Describe her condition, what she looked like when you got there at the hospital and saw her.
A. She was in disarray. She was in — she was crying, she was in excruciating pain. . . .
Officer Murphy's testimony was an Ms. Smith, and was based on Officer Murphy's observation of Ms. Smith while Ms. Smith was at the hospital receiving treatment for her injuries. Spaulding, 288 N.C. at 411, 319 S.E.2d at 187. As a result, we hold that Officer Murphy's testimony was proper lay opinion testimony, and defendant has failed to show that the admission of the testimony was plain error.
Defendant assigns error to the trial court's denial of his motions to dismiss at the close of the State's evidence and again at the close of all of the evidence on the grounds of insufficiency of the evidence. A defendant's motion to dismiss should be denied when "there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense." State v. Ocasio, 344 N.C. 568, 574, 476 S.E.2d 281, 284 (1996). The evidence must be considered "in the light most favorable to the [S]tate, giving the [S]tate the benefit of every reasonable inference that the evidence permits." State v. White, 322 N.C. 770, 779, 370 S.E.2d 390, 395-96, cert. denied, 488 U.S. 958, 102 L. Ed. 2d 387 (1988). When substantial evidence exists, a motion to dismiss is improper, even when evidence is present tending to show the defendant's innocence. State v. Butler, 356 N.C. 141, 145, 567 S.E.2d 137, 140 (2002).
The elements of the offense of assault with a deadly weapon inflicting serious injury are: "(1) an assault (2) with a deadly weapon (3) inflicting serious injury (4) not resulting in death." State v. Aytche, 98 N.C. App. 358, 366, 391 S.E.2d 43, 47 (1990); see also N.C. Gen. Stat. § 14-32(b) (2003). On appeal, defendant only argues that the State presented insufficient evidence that Ms. Smith suffered a "serious injury."
Our Supreme Court has held that:
Whether a serious injury has been inflicted depends upon the facts of each case and is generally for the jury to decide under appropriate instructions. A jury may consider such pertinent factors as hospitalization, pain, loss of blood, and time lost at work in determining whether an injury is serious. Evidence that the victim was hospitalized, however, is not necessary...
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