{ "id": 8995924, "name": "STATE OF NORTH CAROLINA v. MAURICE LACATO PHIFER", "name_abbreviation": "State v. Phifer", "decision_date": "2004-07-06", "docket_number": "No. COA03-972", "first_page": "123", "last_page": "134", "citations": [ { "type": "official", "cite": "165 N.C. App. 123" } ], "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": "845 S.W.2d 323", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9998112 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "327" } ], "opinion_index": 0, "case_paths": [ "/sw2d/845/0323-01" ] }, { "cite": "178 S.E.2d 6", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "9" } ], "opinion_index": 0 }, { "cite": "10 N.C. App. 88", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551045 ], "year": 1970, "pin_cites": [ { "page": "92" } ], "opinion_index": 0, "case_paths": [ "/nc-app/10/0088-01" ] }, { "cite": "288 S.E.2d 804", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "304 N.C. 732", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572329, 8572303, 8572374, 8572407, 8572445 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/304/0732-02", "/nc/304/0732-01", "/nc/304/0732-03", "/nc/304/0732-04", "/nc/304/0732-05" ] }, { "cite": "283 S.E.2d 397", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "403" } ], "opinion_index": 0 }, { "cite": "54 N.C. App. 252", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521581 ], "year": 1982, "pin_cites": [ { "page": "261" } ], "opinion_index": 0, "case_paths": [ "/nc-app/54/0252-01" ] }, { "cite": "546 S.E.2d 386", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "parenthetical": "quoting State v. Pennell, 54 N.C. App. 252, 261, 283 S.E.2d 397, 403, disc. review denied and appeal dismissed, 304 N.C. 732, 288 S.E.2d 804 (1982)" } ], "opinion_index": 0 }, { "cite": "353 N.C. 275", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135906, 135979, 135916, 135988, 135962 ], "year": 2000, "pin_cites": [ { "parenthetical": "quoting State v. Pennell, 54 N.C. App. 252, 261, 283 S.E.2d 397, 403, disc. review denied and appeal dismissed, 304 N.C. 732, 288 S.E.2d 804 (1982)" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0275-03", "/nc/353/0275-05", "/nc/353/0275-01", "/nc/353/0275-04", "/nc/353/0275-02" ] }, { "cite": "529 S.E.2d 247", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "252", "parenthetical": "quoting State v. Pennell, 54 N.C. App. 252, 261, 283 S.E.2d 397, 403, disc. review denied and appeal dismissed, 304 N.C. 732, 288 S.E.2d 804 (1982)" } ], "opinion_index": 0 }, { "cite": "137 N.C. App. 495", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11094280 ], "year": 2000, "pin_cites": [ { "page": "502", "parenthetical": "quoting State v. Pennell, 54 N.C. App. 252, 261, 283 S.E.2d 397, 403, disc. review denied and appeal dismissed, 304 N.C. 732, 288 S.E.2d 804 (1982)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/137/0495-01" ] }, { "cite": "544 S.E.2d 236", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "352 N.C. 154", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 685090, 684998, 685002, 684911, 684977 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/352/0154-01", "/nc/352/0154-03", "/nc/352/0154-02", "/nc/352/0154-04", "/nc/352/0154-05" ] }, { "cite": "528 S.E.2d 37", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "45" } ], "opinion_index": 0 }, { "cite": "137 N.C. App. 234", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11092833 ], "year": 2000, "pin_cites": [ { "page": "246" } ], "opinion_index": 0, "case_paths": [ "/nc-app/137/0234-01" ] }, { "cite": "578 S.E.2d 589", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "356 N.C. 689", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511305, 1511529, 1511154, 1511318, 1511452 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/356/0689-01", "/nc/356/0689-05", "/nc/356/0689-03", "/nc/356/0689-02", "/nc/356/0689-04" ] }, { "cite": "563 S.E.2d 72", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "79" } ], "opinion_index": 0 }, { "cite": "150 N.C. App. 280", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9080874 ], "year": 2002, "pin_cites": [ { "page": "290" } ], "opinion_index": 0, "case_paths": [ "/nc-app/150/0280-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-51.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2003, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "447 S.E.2d 720", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "724" } ], "opinion_index": 0 }, { "cite": "337 N.C. 615", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2551800 ], "year": 1994, "pin_cites": [ { "page": "623" } ], "opinion_index": 0, "case_paths": [ "/nc/337/0615-01" ] }, { "cite": "450 S.E.2d 471", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "476", "parenthetical": "quoting State v. Terry, 337 N.C. 615, 623, 447 S.E.2d 720, 724 (1994)" } ], "opinion_index": 0 }, { "cite": "338 N.C. 457", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2521426 ], "year": 1994, "pin_cites": [ { "page": "466", "parenthetical": "quoting State v. Terry, 337 N.C. 615, 623, 447 S.E.2d 720, 724 (1994)" } ], "opinion_index": 0, "case_paths": [ "/nc/338/0457-01" ] }, { "cite": "481 S.E.2d 907", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "919" } ], "opinion_index": 0 }, { "cite": "345 N.C. 497", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53988 ], "year": 1997, "pin_cites": [ { "page": "518" } ], "opinion_index": 0, "case_paths": [ "/nc/345/0497-01" ] }, { "cite": "324 S.E.2d 241", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1985, "pin_cites": [ { "page": "248" }, { "page": "248" } ], "opinion_index": 0 }, { "cite": "312 N.C. 553", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4753359 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "561-62" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0553-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "535 U.S. 1114", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 354625, 353731, 354760, 353448, 352172, 354576, 355188, 353749, 351828, 354680, 354745, 352827, 353947, 354297 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/us/535/1114-11", "/us/535/1114-05", "/us/535/1114-06", "/us/535/1114-02", "/us/535/1114-09", "/us/535/1114-03", "/us/535/1114-10", "/us/535/1114-08", "/us/535/1114-07", "/us/535/1114-13", "/us/535/1114-04", "/us/535/1114-14", "/us/535/1114-12", "/us/535/1114-01" ] }, { "cite": "557 S.E.2d 500", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "524" } ], "opinion_index": 0 }, { "cite": "354 N.C. 131", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138455 ], "year": 2001, "pin_cites": [ { "page": "166" } ], "opinion_index": 0, "case_paths": [ "/nc/354/0131-01" ] } ], "analysis": { "cardinality": 999, "char_count": 24796, "ocr_confidence": 0.721, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.21320567338095772 }, "sha256": "40d17dbae32f31647a6ccd429bb453054d2e528310290e7128f4db1ee6c6c9cb", "simhash": "1:8b64e36a5a6f907d", "word_count": 3992 }, "last_updated": "2023-07-14T17:46:04.930387+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and TYSON concur." ], "parties": [ "STATE OF NORTH CAROLINA v. MAURICE LACATO PHIFER" ], "opinions": [ { "text": "TIMMONS-GOODSON, Judge.\nMaurice Lacato Phifer (\u201cdefendant\u201d) appeals his conviction of assault with a deadly weapon with intent to kill inflicting serious injury. For the reasons stated herein, we hold defendant received a trial free of prejudicial error.\nThe State\u2019s evidence presented at trial tends to show the following: Sometime before June of 1996, defendant\u2019s wife, Cassandra Phifer (\u201cCassandra\u201d), began a sexual relationship with a former high school friend, John Lewis Southerland (\u201cSoutherland\u201d). Defendant was unaware of Cassandara\u2019s relationship with Southerland. In June of 1996, defendant and Cassandra separated, and defendant moved into a different apartment. In October of 1996, defendant and Cassandra reconciled. Defendant returned to the apartment he had previously shared with Cassandara. However, unbeknownst to defendant, Cassandra continued her sexual relationship with Southerland.\nOn 25 June 1997, Cassandra and Southerland were spending the afternoon together at the home Cassandra shared with defendant. Shortly after Cassandra and Southerland had sexual intercourse, defendant returned home with a friend, Chris Young (\u201cYoung\u201d). Cassandra instructed Southerland to hide in the bedroom closet while she talked to defendant. She then went to the front of the house and laid down on a couch. When defendant expressed his surprise at Cassandra\u2019s presence at the home, Cassandra told defendant she felt sick and thought she might be pregnant. She then asked defendant to go to the grocery store to buy her a pregnancy test and some ginger ale. Defendant and Young walked out the front door, and Cassandra locked it behind them.\nA moment later, defendant returned and knocked on the front door. Cassandra let defendant inside, and asked him if he had forgotten something. Defendant asked Cassandra where their daughter was, and Cassandra told defendant the child was in her sister\u2019s care. When defendant noticed Cassandra was nervous and was continually looking over her shoulder, defendant asked Cassandra, \u201cyou ain\u2019t got no other ****** up in here, do you?\u201d Cassandra responded that she did not. Defendant then picked up a bag of chips and began walking through the other rooms of the house. Cassandra followed defendant to the bedroom where Southerland was hiding. Cassandra implored that defendant \u201cjust go to the store and get the stuff.\u201d Defendant stated that if no one else was in the home, he would look in the closet. Cassandra told defendant that he did not need to look in the closet. Defendant then told Cassandra he was going to get his gun.\nCassandra followed defendant to the bathroom, where defendant\u2019s gun was located. Cassandra tried to prevent defendant from entering the bathroom, telling him that he did not need a gun. A straggle ensued, and Cassandra\u2019s bracelet fell off and her shirt was torn. Defendant managed to locate and pick up his 9mm handgun. Defendant and Cassandra then returned to the bedroom. After Southerland heard defendant state \u201cI\u2019m about to shoot up the closet,\u201d Southerland decided to exit the closet. Just as Southerland emerged from the closet, defendant reached for the closet door. Southerland and defendant bumped into one another, and defendant\u2019s gun went off. Southerland was shot in the right side of his neck. As a result of his injuries, Southerland is now quadriplegic.\nImmediately after the shooting, defendant walked past Cassandra and told her, \u201cyou\u2019re a whore, you\u2019re next.\u201d At trial, defendant testified that he then fled the scene in his vehicle and dropped Young off \u201cbecause at that time I didn\u2019t know where I was going or what was going on.\u201d After dropping off Young, defendant drove his vehicle until it ran out of gas. The next day, defendant turned himself in to the Charlotte-Mecklenburg Police Department. Defendant does not remember what happened to the gun after the shooting.\nDefendant was indicted and tried for assault with a deadly weapon with intent to kill inflicting serious injury. On 20 August 1999, the jury returned a guilty verdict, on 23 August 1999, the trial court sentenced defendant to 100 months to 129 months incarceration. On 24 August 1999, the trial court ordered the exhibits from the trial destroyed, pending notice of appeal within thirty days. Defendant did not thereafter file an appeal. However, on 28 June 2002, this Court granted defendant\u2019s \u201cPetition for a Writ of Certiorari,\u201d thereby allowing the instant appeal to proceed.\nAs an initial matter, we note that defendant\u2019s brief contains arguments supporting only five of his original thirteen assignments of error. Pursuant to North- Carolina Rule of Appellate Procedure 28(b)(6) (2004), the eight omitted assignments of error are deemed abandoned. Therefore, we limit our present review to those assignments of error properly preserved by defendant for appeal.\nDefendant first argues that he received ineffective assistance of counsel at trial because his counsel failed to request a jury instruction on self-defense, defense of a third party, and defense of habitation. Defendant asserts that his trial counsel\u2019s performance was deficient and resulted in prejudice to defendant. We disagree.\nWe note initially that although the preferred method for raising ineffective assistance of counsel is by motion for appropriate relief made in the trial court, a defendant may bring his ineffective assistance of counsel claim on direct appeal. On direct appeal, defendant\u2019s ineffective assistance of counsel claim \u201cwill be decided on the merits when the cold record reveals that no further investigation is required, i.e., claims that may be developed and argued without such ancillary procedures as the appointment of investigators or an evidentiary hearing.\u201d State v. Fair, 354 N.C. 131, 166, 557 S.E.2d 500, 524 (2001), cert. denied, 535 U.S. 1114 (2002).\nA successful ineffective assistance of counsel claim requires satisfaction of the familiar two-prong test established in Strickland v. Washington, 466 U.S. 668 (1984) and adopted by our Supreme Court in State v. Braswell, 312 N.C. 553, 324 S.E.2d 241 (1985). First, defendant must establish that his counsel\u2019s performance was deficient in that it fell below an \u201cobjective standard of reasonableness.\u201d Braswell, 312 N.C. at 561-62, 324 S.E.2d at 248. Second, defendant must establish that a reasonable probability exists that but for the error, the result of defendant\u2019s trial would have been different. Id. at 563, 324 S.E.2d at 248.\nDuring the charge conference in the instant case, the following exchange occurred between the trial court and defendant\u2019s counsel:\nThe Court: Now at this point the Court also will be making inquiry of the State and the defendant in regard to the evidence and whether or not, particularly the defendant, whether he contends the Court based upon this evidence should instruct as to self-defense, there being some evidence from the defendant\u2019s wife that he pushed or attempted to push or whatever the evidence reflects or shows.\nDoes the defendant contend and request self-defense?\nTrial Counsel: May I have a moment to confer?\n(Pause in Proceedings)\nTrial Counsel: We will not be asking for that charge.\nThe Court: You\u2019re saying then and telling the Court you\u2019re not requesting that, contending that is not a part of his defense and the Court should not instruct, is that correct?\nTrial Counsel: That is correct.\nThe Court: Now the same, the Court will be asking as to the defense of habitation of one\u2019s residence. Is there any request for that instruction?\nTrial Counsel: Let me confer.\n(Pause in Proceedings)\nTrial Counsel: We will not be requesting that, Your Honor.\nThe Court: You\u2019re indicating that you do not desire that to be ' instructed to the jury as being a part of the evidence and a part of the defense in the case?\nTrial Counsel: That is correct.\nThe Court: The Court will make further inquiry of the defendant whether or not he desires a defense of lawful defense of a third person?\nTrial Counsel: If I might have just a moment.\n(Pause in Proceedings)\nTrial Counsel: We will not be. Thank you.\nThe Court: Are you asking the Court not to instruct based upon the possible evidence in the case and the strategy of the defense?\nTrial Counsel: That is correct.\nThe trial court then instructed the jury only as to defendant\u2019s requested defense of accident.\nThe elements of self-defense are:\n(1) it appeared to defendant and he believed it to be necessary to kill the [victim] in order to save himself from death or great bodily harm; and\n(2) defendant\u2019s belief was reasonable in that the circumstances as they appeared to him at that time were sufficient to create such a belief in the mind of a person of ordinary firmness; and\n(3) defendant was not the aggressor in bringing on the affray, i.e., he did not aggressively and willingly enter into the fight without legal excuse or provocation; and\n(4) defendant did not use excessive force, i.e., did not use more force than was necessary or reasonably appeared to him to be necessary under the circumstances to protect himself from death or great bodily harm.\nState v. Larry, 345 N.C. 497, 518, 481 S.E.2d 907, 919 (1997).\nThe elements of self-defense are applicable to the defense of others. In general, one may use defensive force to protect another if that person \u201cbelieves it to be necessary to prevent death or great bodily harm to the other \u2018and has a reasonable ground for such belief, the reasonableness of this belief or apprehension to be judged by the jury in light of the facts and circumstances as they appeared to the defender -at the time of the [use of defensive force].\u2019 \u201d State v. Perry, 338 N.C. 457, 466, 450 S.E.2d 471, 476 (1994) (quoting State v. Terry, 337 N.C. 615, 623, 447 S.E.2d 720, 724 (1994)). \u201c \u2018The right to kill in defense of another cannot exceed such other\u2019s right to kill in his own defense as that other\u2019s right reasonably appeared to the defendant.\u2019 \u201d Id.\nThe elements of defense of habitation are also similar to those governing self-defense. N.C. Gen. Stat. \u00a7 14-51.1(a) (2003) provides as follows:\nA lawful occupant within a home or other place of residence is justified in using any degree of force that the occupant reasonably believes is necessary, including deadly force, against an intruder to prevent a forcible entry into the home or residence or to terminate the intruder\u2019s unlawful entry (i) if the occupant reasonably apprehends that the intruder may kill or inflict serious bodily harm to the occupant or others in the home or residence, or (ii) if the occupant reasonably believes that the intruder intends to commit a felony in the home or residence.\nDefendant contends that his trial counsel\u2019s performance was deficient because each of the above-detailed defenses was supported by the evidence, and therefore no reasonable attorney would withhold consideration of a valid legal defense from the jury. However, given the great amount of evidence challenging the credibility of defendant\u2019s claim that he was acting in defense of himself, his estranged wife, and her home, we conclude that the decision by defendant\u2019s trial counsel to decline the trial court\u2019s offer to instruct the jury on the pertinent defenses was reasonable.\nDefendant testified that he searched the house \u201cpretty much for [his] own personal security,\u201d and that his first thought when Southerland exited the closet was that Southerland \u201cwas in my house to do my family harm.\u201d However, defendant also testified that while searching the home, \u201cme being hungry I reached in the kitchen [and] got me a bag of chips.\u201d He further testified that he \u201cdidn\u2019t suspect there was still someone in the bedroom area\u201d when he returned to the home, and that the gun went off after he and Southerland \u201cbumped into each other.\u201d Cassandra testified that she responded \u201cno\u201d after defendant asked her, \u201cyou ain\u2019t got no other ****** up in here, do you?\u201d Cassandra also testified that while in the bedroom, she told defendant, \u201cyou don\u2019t have to look in the closet, just go to the store,\u201d to which defendant replied, \u201cwell, I\u2019m going to get my gun.\u201d Cassandra further testified that on the way back to the bedroom after retrieving the gun, defendant looked \u201cconfused and upset,\u201d and pushed her out of the way after she struggled with defendant and said, \u201cMaurice, you don\u2019t need no gun.\u201d Finally, Cassandra testified that after shooting Southerland, defendant walked past her and said, \u201cyou\u2019re a whore, you\u2019re next.\u201d Southerland testified that before he exited the closet, he heard defendant say, \u201cI\u2019m about to shoot up the closet.\u201d\nAs defendant correctly notes, strategic and tactical decisions such as whether to request an instruction or submit a defense are \u201cwithin the \u2018exclusive province\u2019 of the attorney.\u201d State v. Rhue, 150 N.C. App. 280, 290, 563 S.E.2d 72, 79 (2002), appeal dismissed and disc. review denied, 356 N.C. 689, 578 S.E.2d 589 (2003). Trial counsel are thereby given wide latitude in their decisions to develop a defense, and \u201c[s]uch decisions are generally not second-guessed by our courts.\u201d State v. Lesane, 137 N.C. App. 234, 246, 528 S.E.2d 37, 45, appeal dismissed and disc. review denied, 352 N.C. 154, 544 S.E.2d 236 (2000). In the instant case, defendant\u2019s trial counsel chose not to request that the trial court instruct the jury on defenses that were contradicted by the great weight of the evidence as well as the testimony of all witnesses but defendant. We conclude that the trial counsel\u2019s decision was not so objectively unreasonable that \u201c \u2018the trial [became] a farce and mockery of justice.\u2019 \u201d State v. Montford, 137 N.C. App. 495, 502, 529 S.E.2d 247, 252, cert. denied, 353 N.C. 275, 546 S.E.2d 386 (2000) (quoting State v. Pennell, 54 N.C. App. 252, 261, 283 S.E.2d 397, 403, disc. review denied and appeal dismissed, 304 N.C. 732, 288 S.E.2d 804 (1982)). Thus, we overrule defendant\u2019s argument that he received ineffective assistance of counsel when his counsel failed to request jury instructions on self-defense, defense of habitation, and defense of others.\nDefendant next assigns error to his trial counsel\u2019s failure to file a notice of appeal on behalf of defendant. Defendant argues that his trial counsel\u2019s failure to file an appeal constituted deficient performance that resulted in prejudice to defendant.\nWe note initially that in a footnote contained within his brief, defendant requests this Court take judicial notice of the fact that trial counsel did not consult defendant regarding his right to an appeal. Defendant\u2019s trial counsel denied this allegation in an affidavit attached to the State\u2019s response to defendant\u2019s petition for writ of cer-tiorari. This Court\u2019s review of matters before it is based \u201csolely upon the record on appeal and the verbatim transcript[.]\u201d N.C.R. App. P. 9 (2004). It is the appellant\u2019s responsibility to ensure that the record before this Court is complete and in proper form. State v. Thigpen, 10 N.C. App. 88, 92, 178 S.E.2d 6, 9 (1970). Beyond defendant\u2019s bald assertion that his trial counsel \u201cneglected even to consult with [defendant] about his right to an appeal,\u201d the record before us contains no evidence pertaining to conversations between defendant and his trial counsel concerning defendant\u2019s decision to appeal. Therefore, we refuse to take judicial notice of this fact.\nAssuming arguendo that defendant requested his trial counsel to file notice of appeal and that trial counsel neglected to do so, defendant has nevertheless failed to convince this Court that he was prejudiced by the alleged deficient performance. As defendant correctly states, \u201c[t]he usual remedy for a failure to file notice of appeal is to reinstate the appeal.\u201d This Court reinstated defendant\u2019s appeal in the 28 June 2002 Order granting defendant\u2019s \u201cPetition for a Writ of Certiorari.\u201d However, defendant contends that because the alleged deficient performance precipitated \u201cfurther injury\u201d to defendant, namely the destruction of exhibits, \u201cthe remedy should be a new trial or at least a hearing on a Motion for Appropriate Relief.\u201d We find no authority to support this contention, and for the reasons discussed below, we fail to see how defendant was injured by the destruction of the exhibits. Thus, we overrule defendant\u2019s argument that he received ineffective assistance of counsel because his counsel failed to file appeal on his behalf.\nDefendant argues alternatively that if his trial counsel\u2019s failure to appeal was not ineffective assistance of counsel, the destruction of evidence as a result of the failure to file an appeal was prejudicial to him. Defendant argues that the trial court committed reversible error by issuing the order to destroy exhibits #1-47 because the destruction of the evidence \u201cdeprived defendant of his rights to, inter alia, due process and fair appellate review of his conviction and sentence.\u201d\nRule 14 of the General Rules of Practice For the Superior and District Courts of North Carolina (2003) provides:\nOnce any item of evidence has been introduced, the clerk (not the court reporter) is the official custodian thereof and is responsible for its safekeeping and availability for use as needed at all adjourned sessions of the court and for appeal.\nWhenever any models, diagrams, exhibits, or materials have been offered into evidence and received by the clerk, they shall be removed by the party offering them, except as otherwise directed by the court, within 30 days after final judgment in the trial court if no appeal is taken; if the case is appealed, within 60 days after certification of a final decision from the appellate division. At the time of removal a detailed receipt shall be given to the clerk and filed in the case file.\nIf the party offering an exhibit which has been placed in the custody of the clerk fails to remove such article as provided herein, the clerk shall write the attorney of record (or the party offering the evidence if he has no counsel) calling attention to the provisions of this rule. If the articles are not removed within 30 days after the mailing of such notice, they may be disposed of by the clerk.\nIn the instant case, the trial court issued an Order of Disposition of Physical Evidence requiring destruction of forty-seven of the \u201carticles introduced into evidence,\u201d including the videotape defendant asserts is \u201ccrucial\u201d to the instant appeal. Although the order was entered 24 August 1999, the day after defendant was sentenced, defendant does not contend nor do we conclude the evidence was destroyed or removed prior to the thirty-day period required by Rule 14. In fact, the bottom of the order reads:\nNOTE***THIS EVIDENCE TO BE HELD THIRTY DAYS PENDING NOTICE OF APPEAL\n(emphasis in original). Nevertheless, assuming arguendo that defendant and/or his trial counsel failed to receive written notification of the destruction of the exhibits, for the reasons discussed below, we conclude any such error by the trial court was harmless.\nDefendant contends that this Court should adopt the rule of Adams v. Transportation Ins. Co., 845 S.W.2d 323 (1992). In Adams, the Texas Court of Appeals reversed and remanded a worker\u2019s compensation claim, holding that the loss of exhibits used during the trial made it impossible for the court to make a proper determination of whether the trial court\u2019s finding was against the weight and preponderance of the evidence. Id. at 327. However, we remind defendant that the decisions of the Texas Court of Appeals are not binding upon this Court or other courts in this state. Furthermore, in the instant case, defendant is not challenging a finding of fact made by the trial court or the trial court\u2019s decision to allow the introduction of the destroyed exhibits, nor is defendant challenging his trial counsel\u2019s decision not to object to the introduction of the destroyed exhibits. Instead, defendant asserts that the exhibits, specifically his videotaped statement, \u201ccould well have determined whether [defendant\u2019s] appellate arguments carried the day.\u201d Specifically, defendant contends that if this Court could review the videotape, his ineffective assistance of counsel argument might be strengthened.\nThe videotaped statement defendant refers to was taken by Charlotte-Mecklenburg Police Department Officer Robert Buening (\u201cOfficer Buening\u201d) on 26 June 1999, the day after the shooting. Officer Buening testified at trial that during his taped interview with defendant, defendant admitted being in the bedroom when Southerland was shot but did not admit or deny shooting Southerland. Officer Buening also testified that defendant stated that he had handled a BB or pellet gun sometime before Southerland was shot, but that he did not have the BB or pellet gun when Southerland was shot. Although the videotape was played for the jury, when questioned at trial about the statements he made on the videotape, defendant could not recall discussing a BB or pellet gun. However, he did recall being \u201cstill upset, nervous\u201d when he made the statement to Buening. On cross-examination, defendant testified that:\nThe statement I gave them was \u2014 I don\u2019t want to say true or false or accurate. I was telling them how I felt that things had went the day before.\nOn re-direct examination, defendant admitted that the videotaped statement was \u201cincomplete,\u201d and that the story he related to the jury on direct examination was the \u201ccomplete story.\u201d\nWhen considered in light of the testimony at trial regarding the videotape, we conclude defendant\u2019s videotaped statement further contradicts a potential claim of self-defense, defense of others, or defense of habitation. As such, the videotape only supports our conclusion that defendant\u2019s trial counsel was not objectively unreasonable in withholding the undeveloped and potentially futile defenses from the jury. Thus, we conclude the videotaped statement is unnecessary to our present review of whether defendant received ineffective assistance of counsel. Therefore, defendant\u2019s final assignment of error is overruled.\nNo error.\nJudges McGEE and TYSON concur.", "type": "majority", "author": "TIMMONS-GOODSON, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General G. Norman Young, Jr., for the State.", "Rudolf Maher Widenhouse & Fialko, by Andrew G. Schopler, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. MAURICE LACATO PHIFER\nNo. COA03-972\n(Filed 6 July 2004)\n1. Constitutional Law\u2014 effective assistance of counsel \u2014 failure to request jury instructions\nDefendant did not receive ineffective assistance of counsel in an assault with a deadly weapon with intent to kill inflicting serious injury case based on his counsel\u2019s failure to request jury instructions on self-defense, defense of a third party, and defense of habitation because given the great amount of evidence challenging the credibility of defendant\u2019s claim that he was acting in defense of himself, his estranged wife, and her home, the decision by defendant\u2019s trial counsel to decline the trial court\u2019s offer to instruct the jury on the pertinent defenses was reasonable.\n2. Constitutional Law\u2014 effective assistance of counsel \u2014 failure to file notice of appeal\nDefendant did not receive ineffective assistance of counsel in an assault with a deadly weapon with intent to kill inflicting serious injury case based on his counsel\u2019s failure to file a notice of appeal on behalf of defendant, because assuming arguendo that defendant requested his trial counsel to file notice of appeal and that trial counsel neglected to do so, defendant has failed to convince the Court of Appeals that he was prejudiced by the alleged negligent deficient performance.\n3. Evidence\u2014 destruction \u2014 videotape\nDefendant was not prejudiced in an assault with a deadly weapon with intent to kill inflicting serious injury case by the destruction of evidence as a result of his trial counsel\u2019s failure to file an appeal, because: (1) although an order was entered to destroy evidence, the day after defendant was sentenced defendant does not contend that the evidence was destroyed or removed prior to the thirty-day period required by Rule 14 of the General Rules of Practice for the Superior and District Courts of North Carolina; (2) assuming arguendo that defendant and/or his trial counsel failed to receive written notification of the destruction of the exhibits, any error was harmless; and (3) although defendant specifically contends review of his videotaped statement to police might strengthen his ineffective assistance of counsel claim, defendant\u2019s videotaped statement further contradicts a potential claim of self-defense, defense of others, or defense of habitation when considered in light of the testimony at trial regarding the videotape.\nAppeal by defendant from judgment entered 24 August 1999 by Judge Claude S. Sitton in Mecklenburg County Superior Court. Heard in the Court of Appeals 28 April 2004.\nAttorney General Roy Cooper, by Assistant Attorney General G. Norman Young, Jr., for the State.\nRudolf Maher Widenhouse & Fialko, by Andrew G. Schopler, for defendant-appellant." }, "file_name": "0123-01", "first_page_order": 155, "last_page_order": 166 }