State v. Richardson, 725 S.E.2d 474 (NC Ct. App. 2012)

Court of Appeals of North Carolina

December 13, 2011, Heard in the Court of Appeals; May 1, 2012, Filed

NO. COA11-640

2012 N.C. App. LEXIS 569; 220 N.C. App. 418; 725 S.E.2d 474; 2012 WL 1514899


Attorney General Roy Cooper, by Assistant Attorney General M. Lynne Weaver, for the State.
Cheshire, Parker, Schneider, & Bryan, P.L.L.C., by Maitri “Mike” Klinkosum, for Defendant.

McGEE, Judge. Judges STEELMAN and McCULLOUGH concur.

Opinion by: McGEE


Appeal by Defendant from judgment entered 16 November 2009 by Judge Quentin T. Sumner in Superior Court, Nash County. Heard in the Court of Appeals 13 December 2011.

McGEE, Judge.

Quinton Dematrus Richardson (Defendant) was indicted on 17 March 2008 on charges of assault by strangulation, felonious breaking and entering, and assault on a female. The indictments list the date of these offenses as 22 January 2008. Defendant was also indicted on 17 March 2008 for having attained habitual felon status for offenses that occurred before 22 January 2008.

Prior to trial, Defendant entered a guilty plea to the charge of assault on a female. A jury trial was held 16 November 2009 on the remaining charges of felonious breaking and entering, assault by strangulation, and of having attained the status of habitual felon.

At trial, Talita Threat (Ms. Threat), testified to the following. Defendant lived with her in her home for approximately four months, until November 2007. Ms. Threat arrived home on 22 January 2008 to find Defendant in the hallway of her home. Defendant did not have a key to Ms. Threat’s home. Defendant hit Ms. Threat in her face, pulled braids out of her hair, and strangled her. Defendant heard Ms. Threat’s children’s bus outside, and told Ms. Threat to “go in [her] room and lock the door and shut [her] mouth” or Defendant would “take his foot and stomp [her] in [her] face.” Ms. Threat refused, and Defendant “proceeded to take his foot and constantly stomp [her] in [her] face twice.” Ms. Threat was eventually able to get away from Defendant and run outside with her children. Ms. Threat drove to the police station, where police called for an ambulance to take her to the hospital.

The jury was shown photographs of Ms. Threat that were taken at the hospital on 22 January 2010, the day of the attack, along with photographs taken three days later. The photographs showed that Ms. Threat’s braids were pulled from her hair and were red, the color of blood. The photographs also showed bruising along Ms. Threat’s jawline and neck.

On cross-examination, Ms. Threat testified that she did not know why Defendant hit her. When Defendant’s counsel asked Ms. Threat detailed questions regarding difficulties in Ms. Threat’s relationship with Defendant, specifically a question regarding a medical condition, the trial court sustained the State’s objection to that question. Ms. Threat testified that she did not hit or bite Defendant on 22 January 2008, but that there had been a prior incident when she did bite Defendant.

Defendant testified to the following at trial. Defendant still had belongings in Ms. Threat’s house on 22 January 2008, and he went there to retrieve his belongings. Ms. Threat came home and found Defendant in the hallway. After finding Defendant in her home, Ms. Threat asked Defendant if he would sign an affidavit dismissing charges of assault that he had previously taken out against her. Defendant refused Ms. Threat’s request “because he had found some disturbing papers once [he] had entered [Ms. Threat’s] house . . . that caused [him] not to want to help her along the way anymore . . . because [Ms. Threat] had mislead [sic]” Defendant. Defendant said Ms. Threat had misled him about “a child that [they were] supposed to be having.” Defendant said the “papers that [he] found showed that [Ms. Threat] had an abortion[,]” when she had told Defendant she had a miscarriage. The trial court sustained the State’s objection and motion to strike Defendant’s comment regarding the miscarriage and abortion.

Defendant further testified that Ms. Threat “attempt[ed] to grab the paper” and while doing so, “grabbed [Defendant’s] arm and proceeded to bite [him] on [his] arm.” Defendant stated that he then “threw [Ms. Threat] on the floor[,]” and that she then “grabbed [Defendant’s] hair and [he] grabbed her hair back and [he] hit her maybe three times[.]” Defendant stated that he pulled Ms. Threat’s hair “until she finally let [his] go.” Defendant stated that once he and Ms. Threat let go of each other’s hair, there was a “calm moment” when Ms. Threat tried to “explain to [Defendant] basically what happened” regarding the paper. Defendant testified that when the children arrived home, they were “emotionally disturbed” because they saw blood on Ms. Threat’s face.

Defendant stated that he initially went to Ms. Threat’s house so that he could get his belongings and because he wanted to talk to Ms. Threat about an issue between them. Defendant testified that he did not strangle Ms. Threat.

On cross-examination, Defendant stated that on 22 January 2008, he did not have a key to Ms. Threat’s home. Defendant said he was still living in Ms. Threat’s home but was away for one night in January. Defendant stated the door was unlocked and he went inside, and that Ms. Threat arrived while he was there.

Defendant did not request a jury instruction on self-defense, nor did the trial court instruct the jury on self-defense. The jury found Defendant guilty of assault inflicting physical injury by strangulation and misdemeanor breaking and/or entering. The jury also found Defendant had attained habitual felon status. Defendant appeals.

I. Issues on Appeal

Defendant raises the following issues on appeal: (1) whether the trial court committed reversible error when it did not instruct the jury on self-defense; (2) whether Defendant was denied effective assistance of counsel due to defense counsel’s failure to request a jury instruction on self-defense; and (3) whether the trial court erred when it sustained the State’s objection to defense counsel’s cross-examination questions that related to prior difficulties between Defendant and Ms. Threat.

II. Self-Defense Instruction

Defendant argues that the trial court erred when it failed to instruct the jury on self-defense, even though Defendant did not request the instruction. The State argues that the trial court did not err because the evidence presented at trial did not support a self-defense instruction.

As our Supreme Court has stated, the trial court “must charge the jury on all substantial and essential features of a case which arise upon the evidence, even when . . . there is no special request for the instruction.” State v. Marsh 293 N.C. 353, 354, 237 S.E.2d 745, 747 (1977). When there is evidence presented at trial such that a juror might infer a defendant acted in self-defense, the defendant is entitled to have the evidence considered by a jury upon instruction from the trial court. Id. “In determining whether there was any evidence of self-defense presented, the evidence must be interpreted in the light most favorable to defendant.” State v. Webster, 324 N.C. 385, 391, 378 S.E.2d 748, 752 (1989).

A defendant is not entitled to an instruction on self-defense when he denies performing the act that gave rise to the charge, rather than admitting the act and then claiming legal justification for the act. This Court discussed the issue in State v. Harding, 22 N.C. App. 66, 205 S.E.2d 544 (1974), as follows:

As a witness for himself, defendant testified in pertinent part: He was in his home when he heard some people approach. He heard the people talking but he remained in his house. He heard a gun fire. Although he owned a rifle and had it with him at the time, he did not fire the rifle. He flatly denied shooting anyone. By denying the shooting, defendant rendered it unnecessary for the court to instruct the jury on self-defense. In fact, instructions on self-defense would have been prejudicial to defendant as the court would have been suggesting, in effect, that defendant admits the shooting but contends it was justified. His defense was a denial of, not a justification for, the shooting.

Id. at 67-68, 205 S.E.2d at 545 (emphasis added). Our Court has consistently held in accordance with this principle. See State v. Meadows, 158 N.C. App. 390, 400, 581 S.E.2d 472, 478 (2003) (“Since here, defendant testified he did not fire the gun at [the victim], did not intend to shoot [the victim], and did not know she had been shot until later, defendant would not be entitled to an instruction on self-defense for the murder of [the victim].”); State v. Gullie, 96 N.C. App. 366, 368, 385 S.E.2d 556, 558 (1989) (“Rather, defendant’s case was entirely grounded upon his denial that he had a gun in his possession during the confrontation. This defense obviated the necessity for the court to instruct the jury on the issue of legal justification, i.e., self-defense.”); and State v. Wells, 59 N.C. App. 682, 684, 298 S.E.2d 73, 75 (1982) (“[The defendant] contends the jury should have been instructed on the defendant’s right to resist an illegal arrest and right to self-defense. We do not agree. [The] [d]efendant denied ever striking the police officer and therefore raised no issue of self-defense.”).

In the present case, Defendant testified to the following during his direct examination:

Q. Did you attempt to strangle Ms. Threat?
A. No, I didn’t.
The following exchange occurred during the State’s cross-examination of Defendant:
Q. And when she was there, you got in a fight with her and you split her eyebrow, split her face open and you pulled out her braids, correct?
A. Yes.
Q. And you also strangled her.
A. No.

Thus, while Defendant admitted there was a physical confrontation, his defense included consistent denials that he ever strangled Ms. Threat. The issue submitted to the jury was whether Defendant was guilty of “assault inflicting physical injury by strangulation[.]” Rather than admitting strangulation and claiming that it was justified in his self-defense, Defendant denied strangulation occurred. Therefore, Defendant’s theory of the case obviates the need for an instruction on self-defense. See, e.g. Gullie, 96 N.C. App. at 368, 385 S.E.2d at 558. We therefore conclude the trial court did not err by failing to instruct the jury on self-defense.

III. Ineffective Assistance of Counsel

Defendant argues that his attorney’s performance at trial was deficient because she failed to request a jury instruction on self-defense. As we have concluded Defendant was not entitled to a self-defense instruction, we likewise conclude that trial counsel was not deficient in failing to request such an instruction.

IV. Cross-Examination

Defendant argues that the trial court erred when it “sustained the [State’s] objection to [Defendant’s] cross-examination questions related to the difficulties between . . . Defendant and [Ms. Threat], thereby depriving . . . Defendant of the right to confront and cross-examine [Ms. Threat] pursuant to the United States Constitution and the North Carolina Constitution.”

We first note that Defendant did not raise this constitutional argument before the trial court. This Court will not address constitutional arguments raised for the first time on appeal. State v. Brown, 148 N.C. App. 683, 684, 560 S.E.2d 170, 172 (2002). Further, after the trial court sustained each of the State’s challenged objections, Defendant never made an offer of proof to show what evidence would have been revealed. “‘To prevail on a contention that evidence was improperly excluded, either a defendant must make an offer of proof as to what the evidence would have shown or the relevance and content of the answer must be obvious from the context of the questioning.'” State v. Stiller, 162 N.C. App. 138, 142, 590 S.E.2d 305, 307 (2004) (citation omitted).

Defendant makes no argument on appeal that “‘the relevance and content of the answer [are] obvious from the context of the questioning.'” Id. Rather, Defendant contends that “[i]n order to understand why defense counsel sought to question Ms. Threat regarding the [prior] assault and the medical paper, the Court must look to the testimony of [Defendant].” Defendant argues in his brief that Ms. Threat was biased against him because of a prior assault in which Ms. Threat was the aggressor. However, the circumstances of the prior incident are not apparent from the record and, without an offer of proof, we conclude Defendant has not preserved this issue for appellate review. See also State v. Braxton, 352 N.C. 158, 184, 531 S.E.2d 428, 443 (2000) (“[The] [d]efendant did not make an offer of proof to show what the witness’ response to the question would have been. Accordingly, defendant has failed to preserve this issue for appellate review under the standard set forth in N.C.G.S. § 8C-1, Rule 103(a)(2). The substance of the excluded testimony was not necessarily apparent from the context within which the question was asked; therefore, an offer of proof was necessary to preserve this issue for appeal.”) (citations omitted).

No error.

Judges STEELMAN and McCULLOUGH concur.

Report per Rule 30(e).

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