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State v. Doyle11/18/2003
s assignment of error is overruled.
V. Short-Form Indictment
Defendant was tried and convicted for first-degree murder under a "short-form" indictment allowed by N.C. Gen. Stat. § 15-144 (2002). Defendant contends that the trial court erred by allowing trial and entering judgment against defendant since the "short-form" indictment only alleged the elements of second-degree murder.
Defendant concedes that our Supreme Court ruled against his position in State v. Wallace, 351 N.C. 481, 528 S.E.2d 326, cert. denied, 531 U.S. 1018, 148 L.Ed. 2d 498 (2000). Further, this Court has "reviewed over fifty additional decisions in which this issue has been raised and rejected by our Supreme Court and this Court in the last three years. These decisions consistently hold that the short form murder indictment is constitutional." State v. Amerson, __ N.C. App. __, __ S.E.2d __ (June 17, 2003) (No. COA02-375) (citing State v. Braxton, 352 N.C. 158, 173-175, 531 S.E.2d 428, 437-438 (2000), cert. denied, 531 U.S. 1130, 148 L.Ed. 2d 797 (2001); Wallace, 351 N.C. at 504-508, 528 S.E.2d at 341-343). Defendant's assignment of error is overruled.
VI. Ineffective Assistance of Counsel
Defendant contends that his trial counsel provided defendant with ineffective assistance of counsel by not renewing a pretrial motion to continue.
State v. Braswell sets out a two-part test to resolve issues of ineffective assistance of counsel. 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985).
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.
Id. (quoting Strickland v. Washington, 466 U.S. 668, 687, 80 L.Ed. 2d 674, 693 (1984)). The defendant must show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id.
When a motion for continuance is denied, a defendant must show that "he did not have ample time to confer with counsel and to investigate, prepare and present his defense." State v. Tunstall, 334 N.C. 320, 329, 432 S.E.2d 331, 337 (1993). The defendant must show "how his case would have been better prepared had the continuance been granted or that he was materially prejudiced by the denial of his motion." State v. Covington, 317 N.C. 127, 130, 343 S.E.2d 524, 526 (1986). Ineffective assistance of counsel claims are "not intended to promote judicial second-guessing on questions of strategy . . . ." State v. Adams, 156 N.C. App. 318, 325-326, 576 S.E.2d 377, 383 (2003) (quoting Sallie v. North Carolina, 587 F.2d 636, 640 (4th Cir. 1978)).
No evidence shows that counsel's failure to renew this motion or that the lack of additional time prejudiced defendant's case. The record reflects that defendant's counsel was prepared to cross examine the State's witnesses and conduct direct examination of the defendant's witnesses. Defense counsel successfully challenged the introduction of several statements made by defendant while in police custody. The record further shows that defendant was initially charged with twelve crimes and that defense counsel successfully secured dismissal of seven of the twelve charges. Defense counsel also successfully argued to the jury that defendant was not guilty of assault with a deadly weapon inflicting serious injury to Cocke. The
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