{ "id": 8958827, "name": "STATE OF NORTH CAROLINA v. MONTAVIUS ANTOINE JOHNSON", "name_abbreviation": "State v. Johnson", "decision_date": "2003-12-02", "docket_number": "No. COA02-1383", "first_page": "504", "last_page": "510", "citations": [ { "type": "official", "cite": "161 N.C. App. 504" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "N.C. Gen. Stat. \u00a7 14-87", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "515 S.E.2d 80", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "82" } ], "opinion_index": 0 }, { "cite": "133 N.C. App. 326", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11219396 ], "year": 1999, "pin_cites": [ { "page": "328" } ], "opinion_index": 0, "case_paths": [ "/nc-app/133/0326-01" ] }, { "cite": "413 S.E.2d 590", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "592" } ], "opinion_index": 0 }, { "cite": "105 N.C. App. 370", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523228 ], "year": 1992, "pin_cites": [ { "page": "373-74" } ], "opinion_index": 0, "case_paths": [ "/nc-app/105/0370-01" ] }, { "cite": "485 S.E.2d 88", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "91" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 312", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11710305 ], "year": 1997, "pin_cites": [ { "page": "317" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0312-01" ] }, { "cite": "558 S.E.2d 463", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "488", "parenthetical": "holding that \"counsel's failure to object to these issues [admission of statements, jury instructions and the verdict sheets] at trial cannot be said to fall below an objective standard of reasonableness\"" } ], "opinion_index": 0 }, { "cite": "355 N.C. 73", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220002 ], "year": 2002, "pin_cites": [ { "page": "113", "parenthetical": "holding that \"counsel's failure to object to these issues [admission of statements, jury instructions and the verdict sheets] at trial cannot be said to fall below an objective standard of reasonableness\"" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0073-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "689" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] } ], "analysis": { "cardinality": 627, "char_count": 13122, "ocr_confidence": 0.781, "pagerank": { "raw": 7.044348983065606e-08, "percentile": 0.42487284007677667 }, "sha256": "eb5e9a455864f8a8854378dd5bcd225df5443e235fd5712bf8a4195f0f1fd87c", "simhash": "1:6e78e466763be3e3", "word_count": 2065 }, "last_updated": "2023-07-14T20:10:07.642184+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges TYSON and LEVINSON concur." ], "parties": [ "STATE OF NORTH CAROLINA v. MONTAVIUS ANTOINE JOHNSON" ], "opinions": [ { "text": "WYNN, Judge.\nFollowing his convictions on the charges of first-degree murder and armed robbery, Defendant, Montavius Johnson contends on appeal that (I) his defense counsel prejudicially failed to present an affirmative defense after promising to do so in the opening statement, and object to the improper questioning of Kimberly Pegues; (II) the trial court erroneously denied his motion to dismiss the charge of armed robbery; and (III) the trial court erroneously disallowed the testimony of witness Jimmy Darryl Lasko. After careful review, we hold that Defendant received a trial free from prejudicial error.\nThe State\u2019s evidence tended to show that on 2 July 1999 at approximately 2:30 a.m., Kimberly Pegues met her boyfriend Antonio Baker at a friend\u2019s apartment. When Pegues arrived, she noticed that Baker had a 10-millimeter Glock handgun in his pocket. Shortly thereafter, the couple left the apartment and Baker put the gun in his car. The couple then drove their separate cars to a fast food restaurant where Pegues got out of her vehicle to use the phone; Baker remained in his car. Upon returning to her car and backing out of the parking space, Pegues saw Defendant and another person approach Baker\u2019s car (later identified as C. J. Toney). Pegues heard someone yell \u201cGive me your shit\u201d and then \u201cI don\u2019t have anything, man.\u201d Pegues saw defendant rummaging through Baker\u2019s car, and observed him throw belongings from Baker\u2019s glove box and back seat into the street. Pegues heard a shot and saw Defendant run back to his vehicle. Shortly thereafter, defendant returned to Baker\u2019s car and Pegues heard another shot. Baker died from a gunshot wound to the head.\nA police investigation uncovered a 10-millimeter shell in Defendant\u2019s yard, with markings consistent with having been fired from a 10-millimeter Glock. Defendant was charged with first-degree murder and armed robbery.\nAt trial, Defendant\u2019s counsel made the following statements during his opening statement:\nC. J. Toney is the individual who shot both shots that night. That is our contention. And, he is the individual who shot and killed Baker.\nNow, what happens in between there is a question of whether Mr. Johnson was trying to prevent that or not. Now remember, whatever Ms. Pegues tells you, we\u2019re asking you to pay close attention to it and look at; because, the positioning of the people is very important; where they were; and, what they may or may not have been doing.\nBecause, there may have been other reasons why Mr. Johnson was in between Mr. Toney and Mr. Baker. And, we will ask you to consider those reasons, at the appropriate time.\nSo, listen carefully to this eyewitness testimony and weigh what could have been seen and what could not be seen.\nFrom his convictions on the charged offenses, and sentence to life in prison, Defendant first argues that his counsel\u2019s failure to bring forth the affirmative defense that he forecast in his opening statement constituted ineffective assistance of counsel per se, in violation of the Sixth and Fourteenth Amendments of the Constitution of the United States. We disagree.\n\u201cA convicted defendant\u2019s claim that counsel\u2019s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel\u2019s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the \u2018counsel\u2019 guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel\u2019s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the- conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.\u201d Strickland v. Washington, 466 U.S. 668, 689 (1984).\nDefendant argues his counsel\u2019s statements in opening were promises to offer evidence that Defendant tried to prevent the shooting for which he was charged. Specifically, Defendant points to the following statement made by his counsel during opening but never developed during trial: \u201c[T]here may have been other reasons why Mr. Johnson was in between Mr. Toney and Mr. Baker. And we will ask you to consider those reasons, at the appropriate time.\u201d To augment his ineffective assistance of counsel claim, Defendant offered the following quote from the prosecutor\u2019s closing argument:\nThe defense also made an opening statement. And, in that opening statement, the defense offered to show you that the defendant, Montavius Johnson, tried to prevent the murder of Baker. But what did the evidence show you? I would contend that the evidence showed you that Montavius Johnson did everything but attempt to prevent the murder of Baker.\nWe disagree with Defendant\u2019s characterization of his counsel\u2019s opening statements as \u201cpromises\u201d to put on an affirmative defense. Rather, defense counsel admonished the jury to listen carefully to the witnesses and weigh their testimony against other facts. Moreover, even if defense counsel\u2019s statements were unkept promises, Defendant offers no evidence that defense counsel\u2019s opening statements prejudiced the outcome of the trial. Absent evidence establishing to a reasonable probability that the trial outcome would have been different had defense counsel offered the evidence \u201cpromised\u201d in the opening, Defendant has failed to satisfy the prejudice prong of his ineffective assistance of counsel claim.\nDefendant further argues that defense counsel was ineffective in failing to object to improper questioning of Kimberly Pegues regarding whether Antonio Baker had a 10-millimeter gun. Defendant argues that his counsel should have objected when the prosecutor asked eye witness Pegues the following question: \u201cWhile you were there, were you aware that Antonio had his 10-millimeter Glock handgun with him?\u201d Defendant contends this question assumed three facts not in evidence: (1) Baker had a gun; (2) the gun was manufactured by Glock and (3) the caliber was 10 millimeters. Defendant further argues that had his counsel objected, the objection would have been sustained and the Motion to Dismiss the armed robbery charge would have been granted. We disagree.\nAs stated earlier, an ineffective assistance of counsel claim can only succeed if defense counsel\u2019s behavior falls below an objective standard of reasonableness and such behavior prejudiced Defendant. Id. However, failure to make an evidentiary objection does not necessarily place defense counsel\u2019s behavior below an objective standard of reasonableness. See State v. Gainey, 355 N.C. 73, 113, 558 S.E.2d 463, 488 (2002) (holding that \u201ccounsel\u2019s failure to object to these issues [admission of statements, jury instructions and the verdict sheets] at trial cannot be said to fall below an objective standard of reasonableness\u201d). In this case, defense counsel\u2019s failure to object to the testimony of Pegues did not fall below an objective standard of reasonableness. Accordingly, Defendant\u2019s claim of ineffective assistance of counsel is without merit.\nDefendant next argues that the trial court erred in denying his motion to dismiss the armed robbery charge for insufficiency of the evidence. We disagree.\n\u201cIn ruling on a motion to dismiss for insufficient evidence, the trial court must consider the evidence in the light most favorable to the State, which is entitled to every reasonable inference which can be drawn from that evidence.\u201d State v. Dick, 126 N.C. App. 312, 317, 485 S.E.2d 88, 91 (1997). \u201c[T]he question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged . . . and (2) of defendant\u2019s being the perpetrator of such offense.\u201d State v. Brayboy, 105 N.C. App. 370, 373-74, 413 S.E.2d 590, 592 (1992). \u201cSubstantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d State v. Williams, 133 N.C. App. 326, 328, 515 S.E.2d 80, 82 (1999).\nN.C. Gen. Stat. \u00a7 14-87 provides that:\nAny person or persons who, having in possession or with the use or threatened use of any firearms or other dangerous weapon, implement or means, whereby the life of a person is endangered or threatened, unlawfully takes or attempts to take personal property from another or from any place of business, residence or banking institution or any other place where there is a person or persons in attendance, at any time, either day or night, or who aids or abets any such person or persons in the commission of such crime, shall be guilty of a Class D felony.\nContrary to Defendant\u2019s argument, facts in the record on appeal support a reasonable inference that Defendant perpetrated each element of armed robbery. In particular, Pegues testified that she heard someone yell \u201cGive me your shit\u201d and \u201cI don\u2019t have anything, man.\u201d She also testified that defendant rummaged through the victim\u2019s car; the victim\u2019s wallet and other personal items were ultimately found strewn outside his car. Prior to the shooting, Pegues said she saw Baker put a Glock handgun in his car. These facts could lead a jury to reasonably conclude that by using a dangerous weapon, Defendant took possession of the victim\u2019s property and, without his permission, threw some of the victim\u2019s possessions out of the car. This evidence is sufficient to support Defendant\u2019s conviction. Accordingly, we uphold the trial court\u2019s denial of Defendant\u2019s motion to dismiss.\nLastly, Defendant asserts that the trial court erred by excluding testimony from defense witness Jimmy Darryl Lasko, who claimed to have seen the prosecution\u2019s sole eye witness, Pegues, assist a prisoner escape from jail. Defendant sought to introduce Lasko\u2019s testimony to cast doubt on Pegues\u2019 credibility, but the trial court found the evidence irrelevant and proscribed Lasko\u2019s testimony.\nWhile Defendant could have used cross-examination to challenge Pegues\u2019s credibility, North Carolina statute prohibits the use of extrinsic evidence, i.e., the testimony of another witness, to attack a witness\u2019 credibility. N.C. Gen. Stat. \u00a7 8C-1, Rule 608(b). Therefore, we uphold the trial court\u2019s exclusion of Lasko\u2019s testimony.\nNo error.\nJudges TYSON and LEVINSON concur.", "type": "majority", "author": "WYNN, Judge." } ], "attorneys": [ "Bruce T. Cunningham, Jr., for the defendant-appellant.", "Attorney General Roy Cooper, by Special Deputy Attorney General Ralf F. Haskell, for the State." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. MONTAVIUS ANTOINE JOHNSON\nNo. COA02-1383\n(Filed 2 December 2003)\n1. Constitutional Law\u2014 effective assistance of counsel \u2014 failure to bring forth affirmative defense\nDefendant did not receive ineffective assistance of counsel in a first-degree murder and armed robbery case even though his counsel failed to bring forth the affirmative defense that he allegedly forecast during opening statements, because: (1) defense counsel did not promise to put on an affirmative defense, but merely admonished the jury to listen carefully to the witnesses and weigh their testimony against other facts; and (2) even if defense counsel\u2019s statements were unkept promises, defendant offers no evidence that the opening statements prejudiced the outcome of the trial.\n2. Constitutional Law\u2014 effective assistance of counsel \u2014 failure to object\nDefendant did not receive ineffective assistance of counsel in a first-degree murder and armed robbery case even though his counsel failed to object to alleged improper questioning of a witness regarding the fact that the victim had a 10-millimeter gun, because: (1) failure to make an evidentiary objection does not necessarily place defense counsel\u2019s behavior below an objective standard of reasonableness; and (2) defense counsel\u2019s failure to object to the testimony in this case did not fall below an objective standard of reasonableness.\n3. Robbery\u2014 armed \u2014 motion to dismiss \u2014 sufficiency of evidence\nThe trial court did not err by denying defendant\u2019s motion to dismiss the charge of armed robbery, because: (1) facts in the record on appeal support a reasonable inference that defendant perpetrated each element of armed robbery; and (2) the facts could lead a jury to reasonably conclude that by using a dangerous weapon, defendant took possession of the victim\u2019s property and, without his permission, threw some of the victim\u2019s possessions out of the car.\n4. Evidence\u2014 testimony \u2014 extrinsic evidence \u2014 witness credibility\nThe trial court did not err in a first-degree murder and armed robbery case by disallowing the testimony of a witness who claimed to have seen the prosecution\u2019s sole eyewitness assist a prisoner escape from jail because while defendant could have used cross-examination to challenge the eyewitness\u2019s credibility, N.C.G.S. \u00a7 8C-1, Rule 608(b) prohibits the use of extrinsic evidence, such as the testimony of another witness, to attack a witness\u2019s credibility.\nAppeal by Defendant from judgment entered 8 February 2002 by Judge Robert P. Johnston in Superior Court, Mecklenburg County. Heard in the Court of Appeals 9 September 2003.\nBruce T. Cunningham, Jr., for the defendant-appellant.\nAttorney General Roy Cooper, by Special Deputy Attorney General Ralf F. Haskell, for the State." }, "file_name": "0504-01", "first_page_order": 534, "last_page_order": 540 }