State v. Boyd (Lawyers Weekly No. 11-07-0120, 17 pp.) (Donna S. Stroud, J.) Appealed from Mecklenburg County Superior Court. (Eric L. Levinson, J.) N.C. App. Click here to read the full text of the opinion.
Holding: Even though the victim’s assailant was wearing a ski mask, the victim had known defendant for 12 to 15 years and recognized his voice and could see that his assailant had a lazy eye, as does defendant. The state presented sufficient evidence that defendant was the assailant.
No error in defendant’s conviction of robbery with a dangerous weapon and conspiracy to commit robbery with a dangerous weapon.
Motion to Dismiss
The state presented evidence that the victim had money stolen at gunpoint and that, during the interaction, his assailant threatened to shoot him, satisfying the essential elements of the crime of armed robbery. However, defendant contends the state failed to submit substantial evidence as to defendant’s identity as the perpetrator of the offense.
The victim identified the voice of his assailant as that of defendant. The victim was familiar with defendant’s voice because he had known defendant for 12 to 15 years. The victim told his father immediately following the attack that he recognized the voice of defendant as that of his assailant.
The victim identified his assailant as being a black male with a lazy eye like that of defendant. In all of the victim’s statements to police and interactions with his family, he exhibited a consistently high level of certainty regarding his identification of defendant as his assailant.
Given the longstanding relationship between the victim and defendant as well as the steadfastness and consistency of the victim’s identification of defendant, a reasonable mind might accept as adequate, the victim’s identification of defendant as his assailant. Because the state satisfied the legal standard for the presentation of substantial evidence that defendant was the perpetrator of the crime, defendant’s motion to dismiss as to the charge of robbery with a dangerous weapon was properly denied.
The state also presented sufficient evidence of a conspiracy to commit armed robbery. The state’s evidence tended to show that defendant was driven by a second man to intercept the victim. Defendant was wearing a ski mask and in possession of a gun. The second individual assaulted the victim and took the money from the victim when defendant hesitated in the commission of the robbery. The two men then got into the same car and drove away. The victim’s testimony regarding defendant and the driver of the car acting together to rob him in this way is evidence tending to establish a mutual, implied understanding between defendant and the driver to rob the victim and did, therefore, properly suffice to withstand defendant’s motion to dismiss.
On the witness stand, defendant referred to his interrogation by police. In rebuttal, the state introduced the video of defendant’s interrogation.
Defense counsel made specific objections to particular questions regarding the examination of Detective Wilson and not to the video itself. Such objections do not inform the trial court that counsel is objecting to the presentation of the DVD and do not substitute for such objections. We find that no objection was entered to the introduction of the video evidence sufficient to preserve for review defendant’s assignments of error regarding introduction of the video.
Although the video contained some evidence that would normally be inadmissible, defendant opened the door to this evidence by his own testimony regarding his interrogation.
In defendant’s testimony, he opened the door to the introduction of the video by making reference to the content of his interview of July 21, 2008, his alibi, and his arrest. Even setting aside the substantive questions relating to the arrest and his earlier convictions, which passed without objection during his cross-examination, the questions by defense counsel on redirect regarding the demeanor of the officers and the circumstances of his statement opened the door to the admission of the tape. Defendant made copious use of the video to illustrate his case, even referring to the video in closing arguments to illustrate his demeanor during questioning. In this situation, we find no error, and therefore no plain error, in the video’s admission.
Even if defendant’s counsel had objected to admission of the video or to the various portions of testimony within the video which defendant argues should not have been admitted, the trial court would have properly overruled the objections because defendant had opened the door to this evidence by his testimony. Thus, defendant has not demonstrated that the trial would have had a different outcome in the absence of such assistance.
The record also demonstrates that the matters of which defendant complains were matters of trial strategy.
Defendant’s decision to testify, the defenses he asserted, and the manner in which he asserted them were matters of trial strategy, and decisions concerning which defenses to pursue are matters of trial strategy and are not generally second-guessed by this court.
Defendant’s reason for his decision to testify was to establish his alibi defense; defendant claimed that he was at work on the day when the robbery occurred, and defendant’s counsel “brought in everyone that I thought that you would need to walk [defendant] though his day and to explain where he was.”
Defense counsel also stressed the fact that defendant had emphatically denied robbing the victim ever since he was first questioned, including references to defendant’s videotaped interview. As the jury did not believe defendant’s alibi evidence, defendant may in hindsight now question this trial strategy, but he has not challenged it on appeal and he has failed to overcome the presumption that his counsel’s trial strategy was “within the boundaries of acceptable professional conduct.”
Therefore, defendant has failed to demonstrate ineffective assistance of counsel.
Based upon defendant’s asserted grounds for his claim of ineffective assistance of counsel, we see no need for additional proceedings before the trial court.