State v. McQueen
| Decision Date | 02 October 2018 |
| Docket Number | No. COA17-1415,COA17-1415 |
| Citation | 821 S.E.2d 272,261 N.C.App. 703 |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina v. Bertie Delvon Latez MCQUEEN |
Attorney General Joshua H. Stein, by Special Deputy Attorney General Ann W. Matthews, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Anne M. Gomez, for defendant.
Defendant Bertie Delvon Latez McQueen appeals from judgment entered upon jury verdicts finding him guilty of second degree murder and armed robbery. On appeal, defendant argues his trial counsel was ineffective by failing to ensure the jury knew that the State’s key witness could have been charged with first degree murder in the case, but was not. Defendant further contends he was denied a fair trial when the prosecutor failed to correct incorrect testimony, actively elicited incorrect testimony, and recited the law incorrectly in her closing argument.
For the reasons stated herein, we conclude that defendant received effective assistance of counsel as well as a fair trial, free from error.
On 18 November 2013, a grand jury indicted defendant for the 2 July 2013 shooting death and robbery of Derrick Rogers ("the victim"). Defendant presented no evidence at trial, while the State’s evidence relevant to the issues on appeal tended to show the following.
Damon Bell testified that on 2 July 2013, defendant called him to buy a quarter pound of marijuana. With the marijuana in tow, Bell drove a white Cadillac to pick defendant up from his apartment, and the two proceeded to drive to a different apartment complex at defendant’s instruction. Defendant told Bell where to park upon arriving at the complex, and the victim entered the back passenger side of the vehicle and sat behind defendant, who then handed the victim the marijuana.
The victim examined the marijuana, said he liked its quality, requested a half pound instead of a quarter pound, and handed it back to defendant. According to Bell, defendant then pulled out a gun; said, "Look at my new rack"; and shot the victim once in the chest. Bell had never seen the gun before and said to defendant, Defendant responded by pointing the gun at Bell and instructing him to drive to another apartment complex.
When they arrived at that complex, Bell stayed in the vehicle while defendant pulled the victim out of the back seat and onto the ground. Defendant then re-entered the vehicle and told Bell to drop him off at a nearby housing development. Bell testified that when defendant eventually exited the vehicle, he was holding the victim’s chain necklace. Bell went home and did not call the police.
In November 2013, Bell was arrested for accessory after the fact to first degree murder and given a secured bond. Two months later, his bond was changed to $275,000.00 unsecured. Bell testified that he did not consider the lack of a murder charge against him or being released on house arrest for the three years prior to defendant’s trial to be a "deal" with the State. On direct examination, the prosecutor specifically asked Bell, "What if anything have you been offered in exchange for your testimony?," to which Bell responded, "Nothing." Defense counsel nevertheless pursued the issue on cross-examination:
Detective Mike Matthews of the Greensboro Police Department testified to interviewing Bell prior to his arrest for accessory after the fact. While Bell had initially denied knowing defendant or recognizing the victim, he ultimately gave Detective Matthews a version of events consistent with Bell’s testimony at defendant’s trial.
On cross-examination by defense counsel, Detective Matthews testified to his understanding that Bell was not "eligible for the felony murder rule" and could not be arrested for first degree murder because Bell "did not know there was going to be somebody lose [sic] their life to do this narcotics transaction." Detective Matthews went on to state, "And I may be wrong, not a lawyer, but my knowledge of the felony murder rule would not include selling drugs." The issue was addressed again on redirect examination by the prosecutor:
The prosecutor then returned her argument to defendant, stating to the jury that "if you believe, based on the evidence that the defendant wanted to rob [the victim], or did rob [the victim], and [the victim] got killed as a result of that robbery with the gun, then the defendant is guilty of felony murder."
The jury returned verdicts finding defendant guilty of second degree murder and armed robbery. Defendant appeals.
On appeal, defendant first contends his trial counsel was ineffective by failing to ensure the jury was informed that Bell could have been charged with first degree murder based on the felony murder rule, but was not.
Defendant also argues that he was denied a fair trial when the prosecutor failed to correct incorrect testimony, actively elicited incorrect testimony, and recited the law incorrectly in her closing argument.
As an initial matter, we note that defendant concedes he did not enter timely notice of appeal and has therefore petitioned this Court for a writ of certiorari. Because the infirmity is technical in nature, and because the State does not oppose the petition, we exercise our discretion to issue a writ of certiorari and address the merits of defendant’s appeal.
According to defendant, his trial counsel "was ineffective for failing to make sure the jury knew that Damon Bell could have been charged with first[ ]degree murder." He specifically contends that counsel "did not come to court armed with pertinent case law that could have been used to correct inaccuracies [about the felony murder rule] in Detective Matthews’ testimony and the prosecutor’s closing argument."
Id. at 562, 324 S.E.2d at 248 (quoting Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984) ). "The question becomes whether a reasonable probability exists that, absent counsel’s deficient performance, the result of the proceeding would have been different." State v. Moorman , 320 N.C. 387, 398, 358 S.E.2d 502, 510 (1987) (citing Strickland , 466 U.S. at 695, 104 S.Ct. at 2068 ).
The only act or omission raised by defendant as evidence of ineffective assistance of counsel is his trial counsel’s failure to ensure that the jury knew Bell could have been charged with first degree murder in the case, but was not. Defendant specifically identifies four instances in which counsel failed to correct inaccuracies about the felony murder rule in Detective Matthews’s testimony as well as the prosecutor’s closing argument, and he remains seemingly convinced that Bell’s testimony was the result of a deal or immunity agreement with the State that the jury should have been informed about. We disagree.
Prior to the testimony of a witness under a grant of immunity by the State, the trial court "must inform the jury of the grant of immunity and the order to testify[.]" N.C. Gen. Stat. § 15A-1052(c) (2017) (emphasis added). Additionally, "the judge must instruct the jury as in the case of interested witnesses" during the jury charge. Id. (emphasis added). In considering the mandate of N.C. Gen. Stat. § 15A-1052(c), our Supreme Court has noted that "[o]bviously, the legislature intended for the jury to know the witness was receiving something of value in exchange for his testimony which might bear on his credibility." State v. Hardy , 293 N.C. 105, 120, 235 S.E.2d 828, 837 (1977).
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