State v. Hairston

• Decision Date: 20 May 2008
• Docket Number: No. COA07-1119.,COA07-1119.
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Bobby Donnell HAIRSTON, Jr.

661 S.E.2d 39

STATE of North Carolina v. Bobby Donnell HAIRSTON, Jr.

No. COA07-1119.

Court of Appeals of North Carolina.

May 20, 2008.

Appeal by defendant from judgments entered 8 June 2007 by Judge Charles H. Henry in Onslow County Superior Court. Heard in the Court of Appeals 5 March 2008.

Attorney General Roy A. Cooper, III, by Assistant Attorney General Marc X. Sneed, for the State.

Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Barbara S. Blackman, for defendant-appellant.

HUNTER, Judge.

Bobby Donnell Hairston, Jr. ("defendant") appeals from judgments entered on 8 June 2007 pursuant to jury verdicts finding him guilty of assault with a deadly weapon with intent to kill inflicting serious injury, robbery with a dangerous weapon, first degree kidnapping, three counts of financial credit card theft, and two counts of second degree kidnapping. Judgments were arrested on the three counts of financial credit card theft, the one count of first degree kidnapping, and both counts of second degree kidnapping. Defendant was sentenced to between 116 months' imprisonment and 149 months' imprisonment for assault with a deadly weapon with intent to kill inflicting serious injury and to between eighty-one months' imprisonment and 115 months' imprisonment for robbery with a firearm. After careful consideration, we find that defendant's trial was free from error.

The State presented evidence tending to show that Gene Moore ("Moore"), the proprietor of Private Pleasures and other businesses adjoining that property, walked from Private Pleasures along a back hallway that connected to his other businesses on 21 May 2006 at approximately 3:00 a.m. While walking, Moore was confronted by two men that informed him that "`this is a hold up'" and demanded that Moore hand over whatever money he possessed. The two men told Moore not to move. Moore began to back up and was shot in the stomach.

Thereafter, the men put a gun to Moore's head and demanded money from him and the keys to his safe. The men informed Moore that if he did not comply, they would kill him. Diana Moody, Moore's employee, approached the scene, removed money from Moore's shirt pocket, and gave the money to the men. The two men also took Moore's wallet and a moneybag.

Detective Joseph Frandsen of the Onslow County Sheriff's Office was assigned to investigate the robbery. Ferondo Moore, Moore's son, told Detective Frandsen that according to Moore's credit card statement, the credit cards stolen from his father had been used in Havelock, North Carolina. Upon contacting the Havelock Police Department, Detective Frandsen spoke with Detective Mike Stuart. Detective Stuart was thereafter able to identify Demario Brown ("Brown") as a suspect in the Moore robbery. Detective Stuart then issued a search warrant against Brown's home, where he found stolen items reported from another robbery, Moore's credit cards, and several items that had been purchased on Moore's cards after they were stolen.

During the course of executing the search warrant, defendant pulled up to Brown's home. Detective Stuart requested to pat down defendant. Defendant asked to retrieve some shoes for the children that had been in his car. Detective Stuart allowed defendant to do so and upon returning to the car, defendant reached for a handgun. Detective Stuart then handcuffed defendant. Defendant told the officers he had another gun in his back pocket. The police recovered this gun off defendant's person, a silver .22-caliber handgun, in addition to a stun gun.

When questioned about the robbery, defendant confessed to both shooting Moore and to robbing him. Later, however, defendant sent Detective Frandsen a note denying his participation in the robbery and shooting of Moore. Defendant explained in the note that the only reason he admitted to the robbery and shooting was to gain "street credit for doing . . . the shooting[.]"

Kendy Hairston, defendant's wife, testified that defendant was with her the entire time in which the State alleged that the crimes occurred. Specifically, Mrs. Hairston testified that she and defendant watched a movie on the evening of 20 May 2006 and went to bed around 1:00 or 2:00 a.m. on the morning of 21 May 2006. She also stated that she and defendant went to church later that same morning.

Defendant presents two issues for this Court's review: (1) whether he received ineffective assistance of counsel; and (2) whether the trial court erred in sustaining the State's objection to a question posed by defendant's counsel on the ground that the answer would elicit inadmissible hearsay.

I.

Defendant first argues that he received ineffective assistance of counsel because his trial counsel elicited an identification of defendant by Moore. We disagree.

In order to assert an ineffective assistance of counsel claim, defendant must: (1) show that his counsel's performance "fell below an objective standard of reasonableness[;]" and (2) establish that "the error committed was so serious that a reasonable probability exists that the trial result would have been different" but for the error. State v. Gainey, 355 N.C. 73, 112, 558 S.E.2d 463, 488 (2002).

In this case, the State did not elicit an identification of defendant from Moore while Moore was testifying. On cross-examination, however, the following exchange took place between defendant's counsel and Moore:

Q. Did you get a good look at their faces?

A. It was real dark that night in the hallway, real dark. Couldn't hardly see nothing back there. I was looking and showed [sic] the guy, one was darker than the other one.

Q. Do you recognize [defendant]?

A. Yeah. I remember seeing him.

Q. Okay. You think you saw him that night?

A. Yeah. There was two head of them [sic]. Another one, the other guy was a little bit lighter than him, best of my remember [sic]. The other guy was a little lighter than him.

Q. But you are not real sure about that, are you?

A. Yeah. I know one was lighter.

"Our Supreme Court has stated, `this court engages in a presumption that trial counsel's representation is within the boundaries of acceptable professional conduct' when reviewing ineffective assistance of counsel claims." State v. Medina, 174 N.C.App. 723, 729, 622 S.E.2d 176, 179 (2005) (quoting State v. Roache, 358 N.C. 243, 280, 595 S.E.2d 381, 406 (2004)). It is not the role of the appellate court "`to second-guess counsel's tactical decisions.'" Id. at 729, 622 S.E.2d 176, 622 S.E.2d at 179-80 (citation omitted).

When unfavorable information is inadvertently elicited, a trial counsel's performance will not fall below the boundaries of acceptable professional conduct where counsel was attempting to elicit favorable information. State v. Pretty, 134 N.C.App. 379, 390, 517 S.E.2d 677, 685 (1999) (Greene, J., concurring) (concluding that where evidence presented supports the inquiry, there will be no finding of ineffective assistance of counsel). Here, defendant's counsel was attempting to elicit a favorable non-identification by Moore. Defense counsel had ample reason to pursue such a course: During the State's direct examination of Moore, Moore had testified that he had not previously...