State v. Sloan

• Decision Date: 15 July 2014
• Docket Number: No. COA13–1469.,COA13–1469.
• Citation: 763 S.E.2d 340 (Table)
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Tyrone Devon SLOAN.

763 S.E.2d 340 (Table)

STATE of North Carolina

v.Tyrone Devon SLOAN.

No. COA13–1469.

Court of Appeals of North Carolina.

July 15, 2014.

Attorney General Roy Cooper, by Special Deputy Attorney General Ryan F. Haigh, for the State.

Tin Fulton Walker & Owen, PLLC, by Noell P. Tin, for defendant-appellant.

STEELMAN, Judge.

Where defendant cannot demonstrate based upon the evidence at trial, that he would have been entitled to a jury instruction based upon voluntary intoxication, he cannot show the prejudice necessary to support his argument of ineffective assistance of counsel. The trial court did not err in denying defendant's motion to dismiss the charges of first-degree kidnapping and felony conspiracy.

I. Factual and Procedural Background

On 20 June 2010, Jonathan Fincher (Fincher) and Tyrone Sloan (Defendant) had an altercation after a night of drinking which resulted in Fincher striking Sloan on the head several times with a level. These cases arise out of an incident five days later, on 25 June 2010, at the residence of defendant's sister.

Defendant met with Steven Barbour (Barbour), Michael Ivey (Ivey), and Johan Sloan (Sloan). They discussed how to lure Fincher to the residence of defendant's sister. Barbour was to pick up Fincher and drive him there. Ivey and Sloan were responsible for making sure Fincher did not have a weapon. Defendant would then assault Fincher with a baseball bat. Barbour brought Fincher to the residence. Defendant struck Fincher with the baseball bat, bringing him to the ground. Sloan checked Fincher for weapons, and then ran away. Ivey held Fincher while defendant beat him with a baseball bat. Fincher was unable to escape because Ivey was blocking the gate leading from the yard and was holding him. When defendant inadvertently struck Ivey with the bat, Ivey left. Defendant continued to pummel Fincher with the bat, and then attacked and cut him with a box cutter. Eventually, defendant also left.

Fincher suffered a broken collarbone, lost five units of blood, and required multiple stitches and staples about his head and back. He almost died in the hospital during surgery.

Defendant was indicted for attempted first-degree murder, first-degree kidnapping, robbery with a dangerous weapon, felony conspiracy, and assault with a deadly weapon with the intent to kill, inflicting serious injury. The jury found defendant not guilty of robbery with a dangerous weapon, but guilty of attempted first-degree murder, first-degree kidnapping, felony conspiracy, and assault with a deadly weapon with intent to kill, inflicting serious injury. The trial court consolidated the four charges for judgment, and imposed an active sentence of 144–182 months.

Defendant appeals.

II. Ineffective Assistance of Counsel

In his first argument, defendant contends that his trial counsel was ineffective in failing to request a jury instruction on diminished capacity based on voluntary intoxication. We disagree.

A. Standard of Review

To prevail on a claim of ineffective assistance of counsel, a defendant must first show that his counsel's performance was deficient and then that counsel's deficient performance prejudiced his defense. Deficient performance may be established by showing that counsel's representation fell below an objective standard of reasonableness. Generally, to establish prejudice, a defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

State v. Allen,360 N.C. 297, 316, 626 S.E.2d 271, 286 (citations and quotation marks omitted), cert. denied, 549 U.S. 867, 166 L.Ed.2d 116 (2006).

B. Analysis

Whether defense counsel was ineffective is analyzed under a two-part test. Strickland v. Washington,466 U.S. 668, 687, 80 L .Ed.2d 674, 693 (1984). Defendant must first show that counsel's performance was deficient. Id.Second, the defendant must show that the deficient performance prejudiced his defense. Id.In order to establish prejudice, the defendant must show that there was a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. 466 U.S. at 694, 80 L.Ed.2d at 698.

In order to have been entitled to a jury instruction on diminished capacity based upon voluntary intoxication there must be evidence that at the time of the crime, “the defendant's mind and reason were so completely intoxicated and overthrown” that he could not form the specific intent required of the relevant offense. State v. Gerald,304 N.C. 511, 521, 284 S.E.2d 312, 318–19 (1981).

While the trial court must consider all evidence in the light most favorable to the defendant, “a person may be excited, intoxicated and emotionally upset, and still have the capability to formulate the necessary plan, design, or intention.” State v. Mash,323 N.C. 339, 347, 372 S.E.2d 532, 537 (1988) (quoting State v. Hamby,276 N.C. 674, 678, 174 S.E.2d 385, 387 (1970) ). Our appellate courts have held on numerous occasions that despite the ingestion of a large amount of alcohol or drugs by the defendant, a jury instruction on voluntary intoxication was not warranted. See State v. Cheek,351 N.C. 48, 74–76, 520 S.E.2d 545, 560–61 (1999) (holding that defendant was not entitled to voluntary intoxication instruction when he had taken two hits of acid prior to the murder but was able to recall events both before and after the murder); State v. Herring,338 N.C. 271, 274–76, 449 S.E.2d 183, 185–87 (1994) (holding that defendant was not entitled to voluntary intoxication instruction when he consumed forty to sixty ounces of fortified wine, forty-eight ounces of malt liquor beers, and smoked three marijuana joints and testified he was intoxicated at the time of the shooting but was able to recall the event); State v. Long,354 N.C. 534, 538–39, 557 S.E.2d 89, 92 (2001) (holding that defendant was not entitled to a voluntary intoxication instruction because actions taken after the murder to clean up and hide evidence demonstrate that the defendant could plan and think rationally).

The North Carolina Supreme Court has held that “[e]vidence tending to show only that defendant drank some unknown quantity of alcohol over an indefinite period of time before the murder does not satisfy the defendant's burden of production.” State v. Long,354 N.C. 534, 538, 557 S.E.2d 89, 92 (2001) (quoting State v. Geddie,345 N.C. 73, 95, 478 S.E.2d 146, 157 (1996) ). In the instant case, the only evidence presented at trial regarding defendant's intoxication on the night in question was his sister's testimony that she gave him some “red liquor” when he arrived at her house and that he drank “some beer” with his nephews prior to the assault. There was no evidence of the number of beers defendant drank, the amount of red liquor defendant drank, or the alcohol content of the red liquor.

On 25 June 2010, defendant devised an elaborate plan to assault Fincher and assigned roles to Barbour, Ivey, and Sloan. The luring of Fincher to the residence of defendant's sister and the assault of Fincher was substantially carried out in accordance with the plan. Defendant was also able to recall detail of the events of 25 June 2010 when he testified at trial. These are not the actions of someone so intoxicated that they could not form the specific intent required of the relevant offenses.

We hold that the evidence at trial would not have supported a jury instruction on voluntary intoxication. Therefore, defendant cannot show prejudice arising from his counsel's failure to request such a jury instruction.

This argument is without merit.

III. Motion to Dismiss Kidnapping Charge

In his second argument, defendant contends that the trial court erred in denying his motion to dismiss the charge of first-degree kidnapping. We disagree.

A. Standard of Review

“This Court reviews the trial court's denial of a motion to dismiss de novo.” State v. Smith,186 N.C.App. 57, 62, 650 S.E.2d 29, 33 (2007) (citing State v. McKinnon,306 N.C. 288, 298, 293 S.E.2d 118, 125 (1982) ). “ ‘Upon defendant's motion for dismissal, the question for the Court is 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. If so, the motion is properly denied.’ “ State v. Fritsch,351 N.C. 373, 378, 526 S.E.2d 451, 455 (quoting State v. Barnes,334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993) ), cert. denied,531 U.S. 890, 148 L.Ed.2d 150 (2000).

B. Analysis

While constitutional protections against double jeopardy do not preclude convictions for both kidnapping and another felony committed after such restraint, the restraint constituting the kidnapping must be “a separate, complete act, independent of and apart from the other felony.” State v. Fulcher,294 N.C. 503, 524, 243 S.E.2d 338, 352 (1978). “[T]he key question is whether the kidnapping charge is supported by evidence from which a jury could reasonably find that the necessary restraint for kidnapping exposed the victim to greater danger than that inherent in the underlying felony itself.” State v. Muhammad,146 N.C.App. 292, 295, 552 S.E.2d 236, 237 (2001).

In the instant case, the indictment for first-degree kidnapping alleged that Fincher was unlawfully confined or restrained or removed from one place to another without his consent for the purpose of doing serious bodily injury to him. The trial court instructed the jury on first-degree kidnapping based upon restraint for “the purpose of doing serious bodily injury.” The jury was further instructed that the restraint had to be “a separate, complete act independent of and apart from the injury.” Finally to first-degree kidnapping, the jury was instructed as to the theory of acting in concert.

Defendant contends that any restraint was inherent in the assault of Fincher, and that the alleged...