STATE v. COX,

STATE OF NORTH CAROLINA

v. Wayne County
No. 04 CRS 50022
TELLY T. COX

Appeal by defendant from judgment entered 22 September 2006 by
Judge Russell J. Lanier, Jr. in Wayne County Superior Court. Heard
in the Court of Appeals 6 March 2008.

Attorney General Roy Cooper, by Special Deputy Attorney
General A. Danielle Marquis, for the State.

Richard E. Jester, for the defendant-appellant.

STEELMAN, Judge.

The trial court did not abuse its discretion in refusing
defendant’s request to dismiss a juror during the trial. Defendant
may not challenge the sufficiency of the evidence upon appeal when
he failed to move for dismissal at the close of all the evidence.
Because defendant cannot show prejudice under Strickland, his
ineffective assistance of counsel claim must fail.
Throughout the evening of 31 December 2003 and the early
morning hours of 1 January 2004, Chris Brown (Brown) and his
girlfriend, Alonza Bedell (Bedell), were cruising Wayne County,
consuming alcohol and illegal drugs at various residences. The
couple picked up Telly Cox (defendant) in the early morning hours
of 1 January 2004, and the three consumed alcohol and smoked“weed.” Brown, Bedell, and defendant paid a visit to the Maynard
residence, where Shawn Maynard was entertaining his father and his
girlfriend, Nicole Jones. Shawn’s two children were also present:
8-year-old daughter Bailey and 13-year-old stepson Chae, who
recognized Brown from previous visits to the Maynard residence. On
this particular visit, Brown stayed only a short time.
When Brown returned to the car, Bedell, Brown, and defendant
drove to a friend’s home where Brown and Bedell frequently drank
and socialized. Bedell lost track of the two men for approximately
30 minutes. Brown called her on her cellphone and told her to come
pick him up at Maynard’s residence. When Bedell arrived, the two
men ran out of the residence, jumped into her car, and told her to
drive away. Both men had guns.
Police responded to a 911 call to Shawn Maynard’s home and
found the bodies of Shawn Maynard and Nicole Jones in the master
bedroom. Jones was only partially dressed. Bailey told police
that “two bad men came in and shot and killed my dad and his
girlfriend[.]” The glass door of a gun cabinet in the bedroom
where the bodies were found had been removed and guns were missing.
The following day, police interviewed Shawn’s children. Chae,
age 13, gave them Brown’s name and identified Brown from a photo
line-up. Brown was arrested that same day in blood-spattered
clothing. At the time of his arrest, Brown’s head was closely
shaven.
Police arrested defendant late on the night of 1 January 2004.
At the time of his arrest, defendant wore his hair in cornrows.Defendant gave a detailed statement to investigators, in which he
admitted accompanying Brown into the Maynard home but claimed that
he only acted at Brown’s direction and at gunpoint.
On 7 February 2005, defendant was indicted for murder (2
counts), armed robbery, attempted rape, and first degree kidnapping
(2 counts). The cases were consolidated for trial. Although
defendant was tried non-capitally on the murder charge, he was
represented by two attorneys. The cases were tried at the 11
September 2006 criminal session of Wayne County Superior Court.
Bailey Maynard, then 10 years old and a witness to the
murders, testified at trial as to the events of 1 January 2004.
Bailey stated that she awoke to find “Nicki” (Jones) and a man with
cornrows (defendant) in the bedroom where she had been sleeping.
The man with cornrows had a gun, which he was pointing at Nicki,
and yelling at her to get up on the bed and to take off her shirt.
No one else was in the room, and Bailey could see the bald man
(Brown) in the living room. Bailey had never seen the man with
cornrows before but the bald man had been to the house before. The
man with the cornrows pointed the gun at Bailey and told her to get
in the closet. From the closet, Bailey heard the bald man and
Nicki yelling, then a gunshot, then Nicki yelling “No[,]” then
another gunshot. When Bailey heard the front door close, she left
the closet. She tried to wake her father. Then she dialed 911.
At the close of the State’s evidence, the trial court
dismissed both kidnapping charges. Defendant asserted a duress
defense as to the murder and robbery charges. Eight defensewitnesses testified to events occurring in the hours prior to and
following the time of the murders. As to the robbery charge, the
jury was charged on the theories that defendant acted as a
principal or in concert with Brown. As to the murders, the jury
was charged only as to felony murder, with the underlying felony
being either robbery with a dangerous weapon or attempted rape.
On 22 September 2006, the jury returned a verdict of guilty on
the remaining four charges: murder (2 counts), armed robbery, and
attempted rape. The trial court sentenced defendant to two
consecutive life sentences on the murder charges, and arrested
judgment on the robbery and attempted rape charges. Defendant
appeals.
In his first argument, defendant contends that the trial court
failed to protect his constitutional right to a jury of twelve
persons when it denied his request to excuse a juror whom he
asserts was sleeping during the trial. We disagree.
In North Carolina, trial by a jury of twelve persons in a
criminal case is an unwaivable right of the accused. State v.
Hudson, 280 N.C. 74, 79, 185 S.E.2d 189, 192 (1971). The question
of whether a juror shall be excused and replaced by an alternate is
left to the discretion of the trial court, whose actions are
reviewed under an abuse of discretion standard. State v. Nelson,
298 N.C. 573, 260 S.E.2d 629 (1979); see also State v. Lovin, 339
N.C. 695, 715-16, 454 S.E.2d 229, 241 (1995)(quoting State v.
Nelson, 298 N.C. 573, 593, 260 S.E.2d 629, 644 (1979) for the
premise that “decisions relating to the competency and service ofjurors are not reviewable on appeal absent a showing of abuse of
discretion, or some imputed legal error.”). In Lovin, our Supreme
Court found no abuse of discretion in the court’s refusal to
replace a juror despite testimony from two law enforcement
officials that the juror had appeared confused, required directions
to the courtroom on multiple occasions, slept a good part of the
time, and failed to review a photo exhibit that was published to
the jury. Lovin, 339 N.C. at 715-16, 454 S.E.2d at 240-41.
Following closing arguments, defense counsel raised concerns
to the trial court that two jurors, juror 5 and juror 8, had been
sleeping during parts of the trial. Because defendant brings
forward only his challenge to juror 8, we limit our review to that
juror. Defense counsel argued to the trial court that, during
closing arguments, he had closely observed juror 8, whom he
believed had fallen asleep and been inattentive. Outside of the
presence of the jury, the trial court heard from both the State and
defendant. Juror 8 was then brought into the court room and the
trial court conducted the following inquiry:
THE COURT: — the reason that I’ve asked you
to come in is that it has been brought to my
attention that at some point during the trial
you appeared to have dozed off, to somebody.
Did you doze off?

JUROR NUMBER 8: If I did, it was, yeah, for a
second. I mean, it’s…

THE COURT: Well, the question is: Did you
hear enough of the trial to be able to perform
your duty as a juror? Because, you know, if
you did doze off and miss something, you know,
it may be unfair to one side or the other if
you happened to have missed something at that
particular time.
JUROR NUMBER 8: I don’t remember doing it. I
know I jerk. I have bad hands, and I sit here
and pull on them and I jerk. But I __ I don’t
remember a time after when we were selected in
the jury __ and it was really hot in here. I
don’t remember a time after that. I won’t
tell, you know…

THE COURT: The question that I really have:
Do you __ do you feel like __ that you have a
command of the testimony sufficient to perform
your duty as a juror?

JUROR NUMBER 8: I feel like I have, you know,
heard everything.

THE COURT: Okay. Well, I mean, you know __

JUROR NUMBER 8: Pin me down. I mean, give me
a person I might have done that __

THE COURT: I can’t because I don’t know,
because, you know, it’s entirely possible for
people to listen with their eyes closed, you
know, and frequently people do that. I just
want to make certain that __ you know, that
the decision-makers, which is the jurors
[sic], heard the facts.

JUROR NUMBER 8: (Affirmative nod.) Well, I
think I did. But, it’s okay.

The trial court concluded:
[T]he Court has inquired of jurors number 5
and 8 whether they were sufficiently alert to
fully participate in the accumulation of the
knowledge disclosed by the facts that were
testified to in open court to perform their
duties as a juror. Each has assured the Court
that they have done so. Therefore, I’m going
to deny the defense motion to replace the
jurors.

Defendant challenges the denial only as to juror 8.
A review of the record reveals that defense counsel first
raised concerns regarding juror 8 during jury selection.
Nonetheless, defense counsel neither challenged her for cause normoved to strike her. Instead, defense accepted her as a juror.
Defendant now argues before this Court that the trial court abused
its discretion in allowing juror 8 to deliberate when it was
sufficiently aware of the issue to closely monitor her during the
trial. Characterizing the juror’s responses as “equivocal at
best[,]” he contends that these facts are distinguishable from
Lovin because defense counsel personally observed the sleeping
juror. We find these arguments unpersuasive. We hold that
Lovin controls these facts, and, as in Lovin, we can find no abuse
of discretion in the court’s inquiry and determination that juror
8 was sufficiently alert to perform her duties as a juror. This
argument is without merit.
In his second argument, defendant contends that, because the
State failed to prove beyond a reasonable doubt that he
participated in a “joint enterprise” with Brown, his motion to
dismiss at the close of the State’s evidence should have been
granted. We disagree.
Rule 10(b)(3) of the North Carolina Rules of Appellate
Procedure state, in relevant part:
[I]f a defendant fails to move to dismiss the
action or for judgment as in case of nonsuit
at the close of all the evidence, he may not
challenge on appeal the sufficiency of the
evidence to prove the crime charged.

N.C. R. App. P. 10(b)(3)(2007). The record shows that defendant
moved to dismiss all of the charges at the close of the State’s
evidence. However, following his presentation of evidence,
defendant failed to move to dismiss the charges or to renew hischallenge to the sufficiency of the evidence. Consequently, he has
waived his right to appellate review of the denial of his motion to
dismiss the action at the close of the State’s evidence. N.C. R.
App. P. 10(b)(3). This argument is dismissed.
In his third argument, defendant contends that his two
attorneys rendered ineffective assistance of counsel by failing to
move for dismissal of all charges at the close of all the evidence.
We disagree.
In a three-part argument, defendant contends that the
attorney’s failure to make a routine motion to dismiss at the close
of all the evidence violated his right to have the sufficiency of
the evidence weighed before submission of the charge to the jury.
He further contends that his attorney’s failure to preserve these
arguments constituted ineffective counsel and that the deficient
performance prejudiced his appeal by waiving his right to appellate
review.
A criminal defendant’s Sixth Amendment right to counsel has
been interpreted as the right to effective assistance of counsel.
United States v. Cronic, 466 U.S. 648, 654, 80 L. Ed. 2d 657, 664
(1984). To establish a claim of ineffective assistance of counsel,
a defendant must demonstrate that counsel’s performance was
deficient and that the deficiency prejudiced his defense.
Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693
(1984). To establish prejudice, “[t]he defendant must show that
there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have beendifferent. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Strickland, 466 U.S. at 694,
80 L. Ed. at 698. In the matter sub judice, defendant fails to
show a reasonable probability that counsel’s failure to move for
dismissal of the charges would have resulted in a different
outcome.
In weighing the sufficiency of the evidence, the trial court
considers all evidence admitted at trial, whether competent or
incompetent:
. . . in the light most favorable to the
State, giving the State the benefit of every
reasonable inference that might be drawn
therefrom. Any contradictions or
discrepancies in the evidence are for
resolution by the jury. State v. Witherspoon,
293 N.C. 321, 237 S.E.2d 822 (1977). The trial
judge must decide whether there is substantial
evidence of each element of the offense
charged. Substantial evidence is such
relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.
State v. Smith, 300 N.C. 71, 78, 265 S.E.2d
164, 169 (1980).

State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984). The
role of the trial judge is merely to establish that substantial
evidence exists of each element of the offense. Id. The jury
resolves any conflicts in the evidence. Id.
Before discussing each of defendant’s arguments, we first note
that defendant argues the evidence in the light most favorable to
his version of the events of 1 January 2004. This is not the
appropriate standard of review, Brown, 310 N.C. at 566, 313 S.E.2d
at 587, and we decline to so view the evidence. In the first part of his argument, defendant contends that the
State’s evidence was that “[o]nly Chris Brown was armed when the
men arrived [at the Maynard residence].” Two witnesses for the
State testified that, before visiting the Maynard residence,
defendant accompanied Brown to another drug house, where the two
men spent 30-60 minutes in a back room with Brown’s drug dealer,
and emerged with Brown toting a shotgun. During the time that the
two men were in the back room, defendant watched as Brown loaded
the gun. This evidence raises a reasonable inference that the two
men acted together to obtain a gun, then went to the Maynard
residence with the intent to rob Maynard of his firearms. We
conclude that this testimony is substantial evidence supporting the
trial court’s charge on armed robbery.
In the second part of his argument, defendant contends that
his version of events and the evidence of duress are not rebutted
by evidence, only by conjecture and speculative testimony by a
child who was in a closet during the alleged crimes. As discussed
supra, Bailey testified that defendant had a gun and ordered Jones
at gunpoint to take off her shirt. Although he does not directly
challenge Bailey’s competency as a witness, defendant contends that
Bailey’s failure to testify to any breaking into the gun cabinet
establishes that the breaking “could only have occurred while she
was in the closet” and he thus could not have ordered Jones to take
off her shirt at gunpoint. He argues that, as Brown was the only
armed man and “Bailey did not hear two voices commanding Nicole toremove her clothes[,]” defendant cannot be guilty of the crimes
charged.
In his statement to police, defendant gave this version of
events at the Maynard residence leading up to the murders:
Chris came back to the bedroom with the white
lady, Shawn’s friend, and Shawn. He was
pointing the shotgun at them. When they got
into the bedroom, Chris told the white female
to take her clothes off. I think he was going
to rape her. She took her shirt off. I’m not
sure if she had a blouse or a pullover on.
She took it off and was naked from the waist
up. He, Chris, told her, the lady, to take
her pants off. She started to take her pants
off. Shawn was telling Chris to, quote, chill
out, end quote. This is nonsense, end quote.
Shawn started to walk toward the door, headed
to the bathroom in the hallway near the master
bedroom. Shawn was still hollering at Chris,
and that is when Chris shot him.

Defendant’s version of these events was directly contradicted by
Bailey’s testimony that he pointed a gun at Jones and yelled at her
to take off her shirt and get up on the bed. Bailey’s testimony is
substantial evidence that defendant was armed and threatening both
Jones and Bailey with a gun. Any inferences concerning whether
defendant was armed or told Jones to disrobe were for the jury to
determine. Brown, 310 N.C. at 566, 313 S.E.2d at 587.
In the remainder of his argument, defendant challenges the
sufficiency of the evidence to show that he committed any crime.
Assuming arguendo that defendant had preserved this argument, it is
without merit. When viewed in the light most favorable to the
State, the evidence showed that both Brown and defendant
participated in the robbery and attempted rape of Jones. Bailey
testified that defendant pointed a gun at Jones and yelled at herto take off her shirt and get up on the bed. Jones’ body was only
partially clothed; she had no shirt or bra on and her pants were
unsnapped and unzipped. This physical evidence, coupled with
defendant’s statement to police, supported the State’s theory that
the murders occurred when Maynard tried to stop the intruders from
raping Jones, which occurred in the course of the armed robbery.
With respect to the robbery, defendant’s thumbprint was found
on the gun cabinet where the stolen guns were locked, and the
stolen firearms, shotgun shells, and crossbow were found in a car
outside defendant’s home. Defendant admitted to investigators that
he broke into the cabinet and removed the guns. The State
introduced evidence that defendant was armed with a gun, which he
used to control and threaten the female victim and the child during
the course of the robbery. This evidence was more than sufficient
to meet the State’s burden of presenting substantial evidence of
each element of the robbery and that defendant was the perpetrator
or acted in concert with Brown.
It is well-established that proof of the elements of the
underlying felony suffices to establish the necessary intent for
felony murder. See, e.g., State v. Moore, 284 N.C. 485, 494, 202
S.E.2d 169, 175 (1974) (“’A murder which is committed in the
perpetration or attempted perpetration of robbery, rape, arson,
[etc.], is murder in the first degree, irrespective of
premeditation or deliberation or malice.’”)(quoting 4 N.C. Index
2d, Homicide, Sec. 4, 1947 Ed.). Because the State met its burden
of producing evidence that the murders occurred in the course ofthe robbery or an attempted rape, the felony murder charge was
properly submitted to the jury.
We hold that the defendant was not prejudiced by counsel’s
failure to move to dismiss the charges at the close of all the
evidence. This argument is without merit.
Defendant’s brief fails to address the remaining assignments
of error. Pursuant to N.C. R. App. P. 28(b)(6) (2007), these are
deemed abandoned.
NO ERROR.
Judges McCULLOUGH and ARROWOOD concur.

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