State v. Steele, No. COA05-506 (NC 1/3/2006)
| Decision Date | 03 January 2006 |
| Docket Number | No. COA05-506,COA05-506 |
| Parties | STATE OF NORTH CAROLINA v. STEVELIN STEELE, Defendant |
| Court | North Carolina Supreme Court |
D. Tucker Charns for defendant-appellant.
Stevelin Steele (defendant) appeals a judgment dated 3 September 2004 entered consistent with jury verdicts finding him guilty of possession with intent to sell or deliver cocaine, felonious sale of cocaine, and felonious delivery of cocaine. For the reasons below, we find no error.
In early November 2003, an informant contacted Detective Lawrence Lentz of the Concord Police Department, wanting to provide assistance to the narcotics unit in exchange for some "help" on a pending charge. The informant identified, by name, eight individuals from whom the informant believed he could purchase narcotics. On 5 November 2003, Lentz, another officer, the informant, and Lieutenant Thomas Thompson of the Mooresville Police Department met to arrange an operation to have the informant buy illegal drugs in the Logan community that night.
Thompson accompanied the informant as they drove around buying drugs. At one point, a man later identified as defendant approached the informant and Thompson and sold Thompson two rocks of cocaine for thirty dollars. Only the informant, Thompson and the seller were present at the sale. Thompson and the informant then went to a pre-arranged spot to turn over the cocaine to Lentz and make an identification of the seller.
Lentz presented Thompson with a notebook of photographs of about 100 to 150 young African-Americans, male and female, from the local community. Thompson reviewed several pages in the notebook and identified defendant as the man from whom he had bought the cocaine. On 16 February 2004, defendant was arrested on charges that he had possessed with the intent to sell and deliver two rocks of crack cocaine, and did both sell and deliver that cocaine.
On 23 February 2004, the Grand Jury of Cabarrus County issued an indictment charging defendant with: (I) possession with intent to sell or deliver cocaine; (II) felonious sale of cocaine; and (III) felonious delivery of cocaine. On 30 August 2004, at the Criminal Session for Cabarrus County Superior Court, the Honorable Larry G. Ford presiding, defendant was convicted by a jury of all charges. The trial court arrested judgment in the charge of delivery of cocaine and on 3 September 2004 imposed a sentence often to twelve months imprisonment, but suspended that sentence for thirty months, placing defendant on supervised probation for thirty months, with the special condition of Electronic House Arrest for sixty days. Defendant appeals.
Defendant raises the issues of: (I) whether defendant's trial counsel's failure to request recordation of jury voir dire, opening statements and closing arguments constitutes ineffective assistance of counsel; (II) whether the trial court erred in failing to, sua sponte, order recordation of jury voir dire, opening statements and closing arguments; (III) whether the trial court erred in allowing testimony concerning the pre-trial identification of defendant; and (IV) whether the trial court erred in failing to grant defendant's motion to reveal the confidential informant. For the following reasons, we find no error.
Defendant first argues his trial counsel's failure to request recordation of jury voir dire, opening statements and closing arguments constitutes ineffective assistance of counsel (IAC). We disagree.
To prevail on his IAC claim defendant must show that his counsel's conduct fell below an objective standard of reasonableness. State v. Braswell, 312 N.C. 553, 561-62, 324 S.E.2d 241, 248 (1985) (citing Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674 (1984)). Defendant must satisfy the following two-prong test: First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Braswell at 562, 324 S.E.2d at 248 (quotation omitted); see also, State v. Fair, 354 N.C. 131, 167, 557 S.E.2d 500, 525 (2001) (). "[E]ven an unreasonable error[] does not warrant reversal of a conviction unless there is a reasonable probability that, but for counsel's errors, there would have been a different result in the proceedings." Braswell at 563, 324 S.E.2d at 248.
Defendant does not show his trial counsel's performance was deficient nor that he was prejudiced by the lack of recordation. Defendant merely provides an opinion that trial counsel lacked any legitimate justification for declining to request that jury voir dire, opening statements and closing arguments be recorded. This Court has held that trial counsel's failure to request the recording of jury voir dire does not constitute ineffective assistance of counsel. State v. Crawford, 163 N.C. App. 122, 128-29, 592 S.E.2d 719, 724 (2004). As defendant does not cite to any specific legal authority or precedent to support his contention nor to any error that occurred during the unrecorded portions of the trial, this assignment of error is overruled.
In his second assignment of error, defendant argues the trial court erred by failing to order, sua sponte, recordation of jury voir dire, opening statements and closing arguments, depriving him of meaningful appellate review and the effective assistance of appellate counsel. We disagree.
This Court recently held it was not error where trial court did not ensure "there was a complete recordation of jury selection, the verbatim jury instructions from the court, bench conferences and arguments of counsel." State v. Price, __ N.C. App. __, __, 611 S.E.2d 891, 898 (2005). Pursuant to section 15A-1241 of the North Carolina General Statutes:
The trial judge must require that the reporter make a true, complete, and accurate record of all statements from the bench and all other proceedings except:
(1) Selection of the jury in noncapital cases;
(2) Opening statements and final arguments of counsel to the jury; and
(3) Arguments of counsel on questions of law.
N.C. Gen. Stat. § 15A-1241(a) (2003) (emphasis added). Upon its own motion, a trial court may order recordation of the selection of the jury in noncapital cases and the opening and final arguments to the jury. N.C. Gen. Stat. § 15A-1241(b) (2003). Furthermore, "[w]hen a party makes an objection to unrecorded statements or other conduct in the presence of the jury, upon motion of either party the judge must reconstruct for the record, as accurately as possible, the matter to which objection was made." N.C. Gen. Stat. § 15A-1241(c) (2003).
Section 15A-1241 provides defendant with adequate means to protect his rights and preserve his objections for appellate review should an error occur during an unrecorded portion of his trial. Again, defendant cites no authority for his argument that the trial court was required to order the recordation of jury voir dire, opening statements and closing arguments. Nor does defendant point to any error that occurred during the unrecorded portions of the trial. This assignment of error is overruled.
Defendant next argues the trial court erred in allowing testimony regarding the pre-trial, photographic line-up identification of defendant. Defendant contends the photographic line-up was constitutionally unreliable because there was no effort to put together persons of similar physical characteristics. We disagree.
"[T]he introduction of testimony concerning an out-of-court photographic identification must be excluded where . . . the procedure used is impermissibly suggestive, even though that suggestiveness does not require exclusion of the in-court identification itself under the Simmons test." State v. Knight, 282 N.C. 220, 227, 192 S.E.2d 283, 288 (1972). Under Simmons:
[E]ach case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.
Simmons v. United States, 390 U.S. 377, 384, 19 L. Ed. 2d 1247, 1253 (1968); see also, State v. Rogers, 355 N.C. 420, 432, 562...
To continue reading
Request your trial