State v. Jacobs, No. COA06-1652 (N.C. App. 1/15/2008)
| Decision Date | 15 January 2008 |
| Docket Number | No. COA06-1652,COA06-1652 |
| Parties | STATE OF NORTH CAROLINA v. FANTA FALANDA JACOBS, OVARIAS VERDAD CRIEGO, Defendants. |
| Court | North Carolina Court of Appeals |
Crumpler Freedman Parker & Witt, by Vincent F. Rabil, for defendant Jacobs.
Stubbs, Cole, Breedlove, Prentis & Biggs, PLLC, by C. Scott Holmes, for defendant Criego.
Fanta Falanda Jacobs and Ovarias Verdad Criego (defendants) appeal from judgments entered 25 April 2006 consistent with guilty verdicts convicting Jacobs of felony possession of a firearm and second degree murder and Criego of second degree murder. For the reasons stated herein, as to Jacobs' appeal we find no error in part; dismiss in part; and dismiss in part without prejudice. We find no error as to Criego's appeal.
At trial, the State offered evidence tending to show that on 18 September 2004, defendant Jacobs, her girlfriend, MariaBonsignore, defendant Criego, and others were drinking together at a house in Wilmington. Karena Spivey, also present, heard defendant Jacobs mention having a gun. At some point in the late afternoon or early evening, Bonsignore and Spivey went to the local convenience store where they saw David Tyrone Bunting. Bunting engaged Bonsignore in conversation, but nothing more transpired between them.
Upon returning to the house and intending to make defendant Jacobs angry, Bonsignore lied and said Bunting had grabbed her arm and shirt. Co-defendant Criego overheard Bonsignore, went outside and angrily began kicking garbage cans. Criego said Bunting's conduct had disrespected Jacobs and "it wasn't going down like that." Criego retrieved Jacobs who became "worked up" based on hearing Bonsignore's story. When Jacobs asked where Bunting was, Bonsignore replied she had last seen Bunting at the store. Jacobs and Criego said Bunting "was going to get f***ed up for disrespecting" and left to look for Bunting. Spivey picked up defendants and told them she would take them to where Bunting lived. Defendants saw Bunting and told Spivey to stop and they got out of the car. Defendants approached Bunting and began yelling expletives at him. Jacobs punched Bunting. Defendants and Bunting began fighting. Jacobs pulled a gun, fired it and then dropped it. Criego picked up the gun and shot Bunting. Defendants then jumped a fence and ran. Criego carried Jacobs' gun away from the scene of the shooting and gave it to another individual, who later delivered the gun to police. Bunting died as a result of shots fired from Jacobs' gun.
Jacobs offered no evidence at trial. Criego offered evidence that he did not know Jacobs would attack Bunting and that shooting Bunting was done in self-defense. Jacobs was convicted of second-degree murder and possession of a firearm by a felon and sentenced to 237 to 294 months imprisonment for second degree murder and nineteen to twenty-three months imprisonment for possession of a firearm by a felon. Criego was convicted of second degree murder and sentenced to 220 months to 273 months imprisonment. Defendants appeal.
On appeal, defendant Jacobs asserts: (I) the trial court erred by not intervening ex mero motu during the State's closing argument; (II) defense counsel rendered ineffective assistance of counsel; (III) the trial court erred by denying defendant's motion to dismiss; and (IV) the trial court erred in instructing the jury on acting in concert or aiding and abetting.
Defendant Criego appeals, asserting the trial court erred by: (I) failing to instruct the jury for each defendant separately; (II) allowing Jacobs' girlfriend to testify to a statement Jacobs made to her; (III) denying him the right to a speedy trial; (IV) failing to instruct the jury on self defense regarding Criego in the court's final mandate to the jury; and (V) failing to intervene ex mero motu during the prosecutor's closing argument.
Jacobs argues the prosecutor improperly commented on her failure to testify and attempted to shift the burden of proof to defendants. Because no objection was made to the prosecutor's comment, Jacobs argues the trial court should have intervened ex mero motu to strike the comment and instruct the jury regarding both the burden of proof and defendant's right not to testify.
The proper "standard of review is whether the prosecutor's arguments were so grossly improper that the trial court erred in failing to intervene ex mero motu." State v. Barden, 356 N.C. 316, 358, 572 S.E.2d 108, 135 (2002), cert. denied, 538 U.S. 1040, 155 L. Ed. 2d 1074 (2003). Our Supreme Court has consistently held:
counsel must be allowed wide latitude in the argument of hotly contested cases. He may argue to the jury the facts in evidence and all reasonable inferences to be drawn therefrom together with the relevant law so as to present his side of the case. Whether counsel abuses this privilege is a matter ordinarily left to the sound discretion of the trial judge, and we will not review the exercise of this discretion unless there be such gross impropriety in the argument as would be likely to influence the verdict of the jury.
State v. Covington, 290 N.C. 313, 327-28, 226 S.E.2d 629, 640 (1976) (citations omitted).
"A criminal defendant cannot be compelled to testify, and any reference by the State regarding his failure to do so violates an accused's constitutional right to remain silent."State v. Randolph, 312 N.C. 198, 205, 321 S.E.2d 864, 869 (1984). However, a prosecutor does not violate this prohibition unless "the language used [was] manifestly intended to be, or was ... of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify." State v. Miller, 357 N.C. 583, 589, 588 S.E.2d 857, 862 (2003), cert. denied, 542 U.S. 941, 159 L. Ed. 2d 819 (2004) (citation and quotation omitted).
In the instant case, the prosecutor stated:
Aiding and abetting, incidently, means you are counseling, encouraging, hiring someone to help you. It means that one person can do some of the acts of the offense and the other person completes the acts and you are both responsible for the overall thing.... And because these facts can get so confused and it's so hard to figure out and sort out who did what, the law says, you know what, we're not going to hold the State to the burden of proving who fired which bullet or which order they came, they are both responsible for everything that happened here. And that has a ring of common sense to it, doesn't it? [] If you can't figure out who did what exactly, who should that fall upon? The two defendants that joined in a plan, a common purpose to effectuate this fight or should it fall upon the State where it is mission impossible to figure out the details of everything that happened? Remember, we can't tell you that. There is doubt all over the place about who fired which bullet or which order the fatal bullet struck the victim's body. But is there any doubt that they both acted together? One brought the gun, one took the gun away, they both used it during the incident. No doubt at all. And if you don't take my word for that, take Ovarias Criego's. Even he acknowledges that fact.
The prosecutor argued that, under the theory of acting in concert, the State's burden of proof did not extend to proving who fired which shots, but only extended to showing that one of the twoco-defendants fired the shots and that they were acting in concert with one another. Based on the evidence, the prosecutor argued the guilt should fall upon both co-defendants equally because they were acting in concert. Unlike the State's closing argument in cases such as State v. Reid, 334 N.C. 551, 554, 434 S.E.2d 193, 196 (1993) ) and State v. Monk, 286 N.C. 509, 516, 212 S.E.2d 125, 131 (1975) (), where such statements were held to violate the prohibition against commenting on failure of the defendant to testify, the prosecutor's comments in the instant case were not improper. Therefore, defendant has failed to show that "the prosecutor's arguments were so grossly improper that the trial court erred in failing to intervene ex mero motu." Barden, 356 N.C. at 358, 572 S.E.2d at 135. This assignment of error is overruled.
Jacobs argues she received ineffective assistance of counsel because she contends defense counsel conceded she was guilty of possession of a firearm by a felon. She states the record does not disclose that she consented to this concession, and that absent her consent, she was denied her right to a trial by jury on that charge. Concession of a client's guilt absent a consent by defendant to do so constitutes ineffective assistance of counsel per se. State v. Harbison, 315 N.C. 175, 337 S.E.2d 504 (1985), cert. denied, 476 U.S. 1123, 90 L. Ed. 2d 672 (1986). We first determine whether a concession was made by counsel and, if so, whether the record discloses the defendant's consent or lack thereof. If it is determined that consent was given for any concession, we review for ineffective assistance of counsel. Id. To support a claim for ineffective assistance of counsel, defendant must show that counsel's performance was so deficient that he was not functioning as the constitutionally-guaranteed "counsel" and that the deficient performance prejudiced the defense....
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