{ "id": 4181670, "name": "STATE OF NORTH CAROLINA v. CLYDE MILTON BOYD, Defendant", "name_abbreviation": "State v. Boyd", "decision_date": "2011-02-01", "docket_number": "No. COA09-1666", "first_page": "418", "last_page": "430", "citations": [ { "type": "official", "cite": "209 N.C. App. 418" } ], "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": "653 S.E.2d 160", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639886, 12639887 ], "weight": 2, "year": 2007, "opinion_index": 0, "case_paths": [ "/se2d/653/0160-01", "/se2d/653/0160-02" ] }, { "cite": "648 S.E.2d 865", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639154 ], "pin_cites": [ { "page": "874" } ], "opinion_index": 0, "case_paths": [ "/se2d/648/0865-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "689" }, { "page": "694" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "595 S.E.2d 381", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "406" } ], "opinion_index": 0 }, { "cite": "358 N.C. 243", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2987693 ], "year": 2004, "pin_cites": [ { "page": "280" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0243-01" ] }, { "cite": "570 S.E.2d 440", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "472" } ], "opinion_index": 0 }, { "cite": "356 N.C. 178", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511396 ], "year": 2002, "pin_cites": [ { "page": "236" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0178-01" ] }, { "cite": "557 S.E.2d 500", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 2001, "pin_cites": [ { "page": "525", "parenthetical": "citations omitted" }, { "page": "525" }, { "page": "526" }, { "page": "525" } ], "opinion_index": 0 }, { "cite": "354 N.C. 131", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138455 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "167", "parenthetical": "citations omitted" }, { "page": "167" } ], "opinion_index": 0, "case_paths": [ "/nc/354/0131-01" ] }, { "cite": "361 N.C. 703", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3735905, 3743043, 3746508, 3743410, 3738611, 3744404, 3735988, 3737112, 3740671 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/nc/361/0703-04", "/nc/361/0703-05", "/nc/361/0703-03", "/nc/361/0703-06", "/nc/361/0703-07", "/nc/361/0703-09", "/nc/361/0703-01", "/nc/361/0703-02", "/nc/361/0703-08" ] }, { "cite": "185 N.C. 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Gen. Stat. \u00a7 14-87", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "opinion_index": 0 } ], "analysis": { "cardinality": 1077, "char_count": 27856, "ocr_confidence": 0.753, "pagerank": { "raw": 4.89950402824256e-08, "percentile": 0.3081588926613096 }, "sha256": "7b6c01ceffde48e1c4d1040cc964fb4197098d2b3fd550e6639e4b14bad3eaef", "simhash": "1:03bf50a257b7d4df", "word_count": 4568 }, "last_updated": "2023-07-14T17:06:47.704823+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and ERVIN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. CLYDE MILTON BOYD, Defendant" ], "opinions": [ { "text": "STROUD, Judge.\nClyde Milton Boyd (\u201cdefendant\u201d) appeals from his convictions for robbery with a dangerous weapon and conspiracy to commit robbery with a dangerous weapon. Defendant contends that the trial court erred in improperly admitting the video of defendant\u2019s interrogation by police; by not dismissing the case because there was insufficient evidence as a matter of law; and because he was deprived of his Sixth Amendment Right to Counsel by trial counsel\u2019s ineffective assistance in failing to object to the admission of defendant\u2019s recorded video statement. For the following reasons, we deny defendant\u2019s request for a new trial.\nI. BACKGROUND\nOn 11 August 2008, defendant was indicted on one count of robbery with a dangerous weapon in violation of N.C. Gen. Stat. \u00a7 14-87 and one count of common law conspiracy to commit robbery with a dangerous weapon. Defendant was tried on these charges on 31 August 2009. The State\u2019s evidence showed that, on 5 June 2008, Michael Eugene Taylor was robbed at gunpoint in the parking lot of his place of business when he returned from cashing payroll checks for his employees. Mr. Taylor pulled into the parking lot of his business and was blocked in by two men driving a green colored Lincoln automobile. The passenger, who was wearing a ski mask and carrying a gun, got out of the vehicle and confronted Mr. Taylor. The armed assailant told Mr. Taylor to give \u201chim his F\u2019ing money.\u201d After a verbal altercation, the assailant threatened to shoot Mr. Taylor. The assailant hesitated when Mr. Taylor told him he would have to shoot him to get the money. At the assailant\u2019s hesitation, a second man, the driver, hit Mr. Taylor and took the money from him. Both men then sped away in the Lincoln. Mr. Taylor attempted to chase the men in his pickup truck but was unable to catch up with them. In his statements both to the police and to his father on the day of the attack, Mr. Taylor identified defendant as his assailant, saying he recognized his voice. On 16 July 2008, Mr. Taylor was presented with a photographic lineup from which he picked out defendant, saying he was \u201c95% sure\u201d that defendant was the one who robbed him.\nMr. Taylor testified that he had known defendant for between twelve and fifteen years; that, during that time, he had conversed with defendant and become familiar with his voice; that he recognized defendant\u2019s voice as that of his assailant; and that he could see that the assailant was black, as was defendant, and had a lazy eye, as did defendant. According to Mr. Taylor\u2019s father, Mr. Taylor had not wavered in his certainty of his identification of defendant from the day of the attack until trial.\nDefendant took the stand, denied any involvement in the robbery, and testified regarding his prior convictions as well as his interrogation by police. In addition, defendant presented evidence supporting any alibi. In rebuttal, the State introduced a digital video disk (DVD) of defendant\u2019s interrogation by police. Though defendant\u2019s trial counsel made objections to the questions being asked of one of the police officers who was present as the video played, she made no objection to the introduction of the DVD itself.\nOn 1 September 2009, defendant was convicted of both counts with which he was charged. Defendant was sentenced by the trial court to a consolidated term of 84-110 months imprisonment.\nDefendant appeals.\nA. The Video Statement\nII. ANALYSIS\nDefendant first contends that his video statement should not have been admitted because it was prejudicial in that it contained testimony by one detective who was unavailable for trial; improper questioning of defendant regarding arrests and convictions more than ten years old; mischaracterizations of defendant\u2019s alibi witnesses and of their statements; and improper expressions of the detectives personal opinions. Defendant further asserts both that trial counsel objected to the introduction of the video statement and, alternately, that the admission of the video constitutes plain error. As to both assertions, we disagree and find no error in the video\u2019s admission.\n1. Objection to the Video Statement\nObjections to the admission of evidence must generally be preserved by an objection by counsel at the time of their admission. N.C. Gen. Stat. \u00a7 8C-1, Rule 103; N.C.R. App. P. 10(a)(1). Failure to object constitutes a waiver of any assignment of error on appeal related to the admission of evidence. State v. Reid, 322 N.C. 309, 312, 367 S.E.2d 672, 674 (1988). Though there are no particular requirements as to form under Rule 8C-1, there is a requirement that an objection must, \u201cbe timely and clearly present the objection or error to the trial court.\u201d Id. at 312, 367 S.E.2d at 674.\nWe note that three exchanges are relevant to the consideration of whether defendant registered an appropriate objection to the introduction of the video in question. The first exchange occurred between Ms. Macon, for the State, Ms. Tosi, for defendant, and the Court before the introduction of the video:\nMS. MACON: Okay. Otherwise I would like to just play the whole thing and stop and start at certain points.\nTHE COURT: How long does it take?\nMS. MACON: The tape is forty minutes long.\nTHE COURT: Ms. Tosi.\nMS. TOSI: Your honor, I mean I guess I would agree that there are certain parts that I don\u2019t think are relevant that need to come out.\nTHE COURT: Has it already been adjusted? How does that work, do you have a transcript and you know ahead of time?\nMS. MACON: Your Honor, there is not a transcript. I have gone through and taken note of the time exactly where to start and stop.\nTHE COURT: Let me say this, I probably will say something to the jury to help explain in my own way I think, you know, subject to your concerns. But I\u2019ll probably say something to the jury about why there are portions that are missing. But during that forty minutes I may step out. If it\u2019s, you know, if I need to be here-well I\u2019ll need to hear it too. If you both stipulate that the court reporter need not take it down-are you fine with that?\nMS. TOSI: Yes, as long as she is actually introducing it; yes, sir.\nTHE COURT: Is that correct?\nMS. MACON: Yes, sir.\nTHE COURT: We will mark it as an exhibit. You\u2019re on Number 7, is that correct?\nMS. MACON: So we will mark it later as Number 7. That way the court reporter doesn\u2019t need to take down that portion if you stipulate for the record what was played and what was not played.\nDefendant did not make any objection when the video was entered into evidence and actually agreed that it should be so admitted.\nDefendant also claims that the two following exchanges register objections to the video. Both occurred while the video was being played during the State\u2019s rebuttal evidence, in response to the trial testimony of defendant regarding his interrogation. Detective Wilson, one of the detectives who had initially interrogated defendant, was testifying about the interrogation. In the first instance, defendant objected to the State\u2019s questioning regarding defendant\u2019s statements to the detective regarding defendant\u2019s whereabouts on the day of the crime and the detective\u2019s motivation for this line of questioning:\nQ: Do you recall what he told you about where he was at and who he was with?\nA: He said he was at work. I believe that I asked him at some point if he knew the address of the house that he was at. He was not able to provide that to me. My thoughts were to go out if he gave me a specific location and see if the homeowner was there, if they were working on a house and they remembered him being there. I was never given or provided that information.\nMS. TOSI: Your Honor, I\u2019m going to OBJECT to this. We covered all this topic yesterday.\nLikewise, in the second instance, defendant registered an objection to questions put to Detective Wilson regarding whether defendant had mentioned Shamika Smith, a witness for the defense, during his initial interrogation:\nQ: Detective Wilson, at any point during the interview did the defendant mention to you a female by the name of Shamika Smith?\nMS. TOSI: OBJECTION, Your Honor, to this; we covered this yesterday.\nBoth objections were made in response to specific questions to Detective Wilson during the playing of the DVD. Defendant proposes that defendant\u2019s counsel\u2019s objections are to the \u201cway the detectives impeached Mr. Boyd rather than playing Mr. Boyd\u2019s statement\u201d and \u201cpreserved this error for review for prejudicial error.\u201d But both objections included a specific basis for the objection, which was that the subject matter had already been \u201ccovered\u201d the previous day. Neither objection addressed the supposed impeachment of defendant nor did they put the trial court on notice that defendant was attempting to object to the contents of the video. In fact, the objections were made to questions posed to Detective Wilson during his testimony, not to any of the statements on the video. Such objections do not \u201cclearly present the objection or error to the trial court.\u201d Reid, 322 N.C. at 312, 367 S.E.2d at 674. Defendant\u2019s counsel made specific objections to particular questions regarding the examination of Detective Wilson and not to the video itself. Such objections do not inform the trial court that counsel is objecting to the presentation of the DVD and do not substitute for such objections. This interpretation of defendants objections is also consistent with defense counsel\u2019s later lack of objection to jury instructions regarding the consideration of the video as substantive evidence and reference to the video in order to illustrate defendant\u2019s demeanor during questioning. Accordingly, we find that no objection was entered to the introduction of the video evidence sufficient to preserve defendant\u2019s assignments of error.\n2. Plain Error in Admission of Video Statement\nDefendant proposes that the admission of defendant\u2019s video statement constitutes plain error. A review of the entire record convinces us that this is not so.\nPlain error serves as an exception to the aforementioned general requirement that a timely objection at trial is required to preserve an assignment of error for appeal. N.C.R. App. P. 10(a)(4). However, absent a timely objection at trial, the- burden that an appellant faces in asserting the improper admission of evidence under the plain error standard is higher than that faced by an appellant who has preserved the issue by a proper objection. State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986). The North Carolina Supreme Court has admonished that the plain error rule is to be \u201capplied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done ....\u201d State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (citations and internal quotation marks omitted). For an appellate court to find plain error, it must first be convinced that, \u201cabsent the error, the jury would have reached a different verdict.\u201d Reid, 322 N.C. at 313, 367 S.E.2d. at 674. The burden of proving plain error falls on defendant. State v. Bishop, 346 N.C. 365, 385, 488 S,E.2d 769, 779 (1997). However, plain error does not exist where even otherwise inadmissible evidence is admitted by the State in order to answer the previous testimony of defendant. State v. Wilkerson, 363 N.C. 382, 407, 683 S.E.2d 174, 190 (2009), cert. denied, - U.S. -, 176 L. Ed. 2d 734 (2010).\nCertainly some of the evidence which was contained in defendant\u2019s interrogation video would normally be inadmissible. However, defendant opened the door to this evidence by his own testimony regarding his interrogation.\nUnder such circumstances, the law wisely permits evidence not otherwise admissible to be offered to explain or rebut evidence elicited by the defendant himself. Where one party introduces evidence as to a particular fact or transaction, the other party is entitled to introduce evidence in explanation or rebuttal thereof, even though such latter evidence would be incompetent or irrelevant had it been offered initially. State v. Patterson, 284 N.C. 190, 200 S.E.2d 16 (1973); State v. Black, 230 N.C. 448, 53 S.E.2d 443 (1949).\nState v. Albert, 303 N.C. 173, 177, 277 S.E.2d 439, 441 (1981). Defendant\u2019s own testimony addressed the subject matter of the video. In defendant\u2019s testimony, he opened the door to the introduction of the video by making reference to the content of his interview of 21 July 2008, his alibi, and his arrest. Even setting aside the substantive questions relating to the arrest and his earlier convictions, which passed without objection during his cross-examination, the questions by defendant\u2019s counsel on redirect regarding the demeanor of the officers and the circumstances of his statement opened the door to the admission of the tape. Defendant made copious use of the video to illustrate his case, even referring to the video in closing arguments to illustrate his demeanor during questioning. In this situation, we find no error, and therefore no plain error, in the video\u2019s admission.\nB. Motion to Dismiss\nDefendant also contends that it was error for the trial court to deny his motion to dismiss either at the end of the State\u2019s case or at the end of the trial because the evidence presented was insufficient to warrant a conviction on either charge as a matter of law. We disagree.\nUpon review of the trial court\u2019s denial of a defendant\u2019s motion to dismiss:\nthe question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant\u2019s being the perpetrator of such offense. If so, the motion is properly denied .... In reviewing challenges to the sufficiency of evidence, we must view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences. Contradictions and discrepancies do not warrant dismissal of the case but are for the jury to resolve. The test for sufficiency of the evidence is the same whether the evidence is direct or circumstantial or both .... Once the court decides that a reasonable inference of guilt may be drawn from the circumstances, then, it is for the jury to decide whether the facts, taken singly or in combination, satisfy it beyond a reasonable doubt that the defendant is actually guilty.\nBoth competent and incompetent evidence must be considered. In addition, the defendant\u2019s evidence should be disregarded unless it is favorable to the State or does not conflict with the State\u2019s evidence. The defendant\u2019s evidence that does not conflict may be used to explain or clarify the evidence offered by the State. When ruling on a motion to dismiss, the trial court should be concerned only about whether the evidence is sufficient for jury consideration, not about the weight of the evidence.\nState v. Fritsch, 351 N.C. 373, 378-79, 526 S.E.2d 451, 455-56 (citations, quotation marks, and brackets omitted), cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150 (2000). \u201cSubstantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.\u201d State v. Turnage, 362 N.C. 491, 493, 666 S.E.2d 753, 755 (2008). We consider each of the charges against defendant in turn.\n1. Robbery with a Dangerous Weapon\nOn appeal, defendant does not challenge that a robbery with a dangerous weapon occurred. Robbery with a dangerous weapon under N.C. Gen. Stat. \u00a7 14-87 is committed by:\n[a]ny 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 . . .\nN.C. Gen. Stat. \u00a7 14-87 (2007). Our Supreme Court has identified the essential elements of this crime as, \u201c(1) an unlawful taking or an attempt to take personal property from the person or in the presence of another, (2) by use or threatened use of a firearm or other dangerous weapon, (3) whereby the life of a person is endangered or threatened.\u201d State v. Haselden, 357 N.C. 1, 17, 577 S.E.2d 594, 605. The State presented evidence that Mr. Taylor had money stolen at gunpoint and that, during that interaction, his assailant threatened to shoot him, satisfying the essential elements of the crime.\nDefendant challenges whether the State submitted substantial evidence as to defendant\u2019s identity as the perpetrator of the offense. We therefore examine the evidence as to defendant\u2019s identity. The evidence at trial showed, inter alia that: Mr. Taylor identified the voice of his assailant as that of defendant. Mr. Taylor was familiar with defendant\u2019s voice because he had known defendant for twelve to fifteen years. Mr. Taylor told his father immediately following the attack that he recognized the voice of defendant as that of his assailant. Mr. Taylor identified his assailant as being a black male with a lazy eye like that of defendant. In all of Mr. Taylor\u2019s statements to police and interactions with his family, he exhibited a consistently high level of certainty regarding his identification of defendant as his assailant.\nGiven the longstanding relationship between Mr. Taylor and defendant as well as the steadfastness and consistency of Mr. Taylor\u2019s identification of defendant, a \u201creasonable mind might accept as adequate,\u201d Turnage, 362 N.C. at 493, 666 S.E.2d at 755, Mr. Taylor\u2019s identification of defendant as Mr. Taylor\u2019s assailant. Because the State satisfied the legal standard for the presentation of substantial evidence that defendant was the perpetrator of the crime, defendant\u2019s motion to dismiss as to the charge of robbery with a dangerous weapon was properly denied.\n2. Conspiracy to Commit Robbery with a Dangerous Weapon\nDefendant likewise argues that the charge of conspiracy should have been dismissed. The State\u2019s successful assertion of a charge of criminal conspiracy requires proof of \u201can agreement between two or more people to do an unlawful act or to do a lawful act in an unlawful manner. The State need not prove an express agreement. Evidence tending to establish a mutual, implied understanding will suffice to withstand a defendant\u2019s motion to dismiss.\u201d State v. Wiggins, 185 N.C. App. 376, 389, 648 S.E.2d 865, 874 (citations omitted), disc. review denied, 361 N.C. 703, 653 S.E.2d 160 (2007).\nTaking all evidence in the light most favorable to the State, the State\u2019s evidence tended to show that defendant was driven by a second man to intercept Mr. Taylor. Defendant was wearing a ski mask and in possession of a gun. The second individual assaulted Mr. Taylor and took the money from Mr. Taylor when defendant hesitated in the commission of the robbery. The two men then got into the same car and drove away. Mr. Taylor\u2019s testimony regarding defendant and the driver of the Lincoln acting together to rob him in this way is \u201cevidence tending to establish a mutual, implied understanding\u201d between defendant and the driver to rob Mr. Taylor and did, therefore, properly \u201csuffice to withstand [this] defendant\u2019s motion to dismiss.\u201d Id. Therefore, we find no error in the trial court\u2019s denial of defendant\u2019s motion to dismiss on the charge of conspiracy.\nC. Ineffective Assistance of Counsel\nFinally, defendant argues that he was deprived of his Sixth Amendment right to counsel by virtue of his trial attorney\u2019s failure to object to the admission of his video statement. A claim of ineffective assistance of counsel, to be successful, requires proof: (1) \u201cthat the professional assistance that defendant received was unreasonable\u201d and (2) \u201cthe trial would have had a different outcome in the absence of such assistance.\u201d State v. Fair, 354 N.C. 131, 167, 557 S.E.2d 500, 525 (2001) (citations omitted).\nClaims for ineffective assistance of counsel \u201cbrought on direct review will be decided on the merits when the cold record reveals that no further investigation is required, i.e., claims that may be brought without such ancillary procedures as the appointment of investigators or an evidentiary hearing.\u201d Id. at 166, 557 S.E.2d at 525. Claims which are not properly asserted on direct appeal are properly dismissed without prejudice to defendant\u2019s right to reassert them during a subsequent proceeding on a motion for appropriate relief. Id. at 167, 557 S.E.2d at 526.\nIn the present case, the video statement in question was introduced in rebuttal because of the testimony of defendant. As discussed above, even if defendant\u2019s counsel had objected to admission of the video or to the various portions of testimony within the video which defendant argues should not have been admitted, the trial court would have properly overruled the objections because defendant had opened the door to this evidence by his testimony. Thus, defendant has not demonstrated that \u201cthe trial would have had a different outcome in the absence of such assistance.\u201d Id.\nThe record also demonstrates that the matters of which defendant complains were matters of trial strategy. Defendant\u2019s decision to testify and the content of that testimony led to the admission of the evidence which is the subject of defendant\u2019s arguments for ineffective assistance of counsel. Defendant has not argued that his counsel, failed to advise him properly regarding his right to remain silent, that he did not understand the ramifications of his decision to testify, or that his trial counsel improperly presented his defense. Defendant\u2019s decision to testify, the defenses he asserted, and the manner in which he asserted them were matters of trial strategy, and \u201c[decisions concerning which defenses to pursue are matters of trial strategy and are not generally second-guessed by this Court.\u201d State v. Prevatte, 356 N.C. 178, 236, 570 S.E.2d 440, 472 (2002). Defendant\u2019s counsel\u2019s trial strategy is clearly outlined in her closing argument. Defendant\u2019s reason for his decision to testify was to establish his alibi defense; defendant claimed that he was at work on the day when the robbery occurred, and defendant\u2019s counsel \u201cbrought in everyone that I thought that you would need to walk [defendant] though his day and to explain where he was.\u201d Defendant\u2019s counsel also stressed the fact that defendant had emphatically denied robbing Mr. Taylor ever since he was first questioned, including references to defendant\u2019s videotaped interview. As the jury did not believe defendant\u2019s alibi evidence, defendant may in hindsight now question this trial strategy, but he has not challenged it on appeal and he has failed to overcome the presumption that his counsel\u2019s trial strategy was \u201cwithin the boundaries of acceptable professional conduct.\u201d State v. Roache, 358 N.C. 243, 280, 595 S.E.2d 381, 406 (2004) (\u201cMoreover, this Court engages in a presumption that trial counsel\u2019s representation is within the boundaries of acceptable professional conduct.\u201d As the United States Supreme Court has stated,\nA fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel\u2019s challenged conduct, and to evaluate the conduct from counsel\u2019s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel\u2019s conduct falls within the wide range of reasonable professional assistance....\nStrickland v. Washington, 466 U.S. 668, 689, 80 L. Ed. 2d 674, 694 (1984). Therefore, defendant has failed to demonstrate ineffective assistance of counsel based upon the record before us.\nDefendant requests in the alternative that we dismiss his claims for ineffective assistance of counsel without prejudice to defendant\u2019s right to reassert this claim in a motion for appropriate relief because the record on appeal is insufficient for us to make this determination. See State v. Fair, 354 N.C. 131, 167, 557 S.E.2d 500, 525 (2001). However, defendant has failed to make any argument as to what sort of evidentiary record may be needed to make this determination or how the record before us is deficient. All of defendant\u2019s arguments as to ineffective assistance of counsel are based upon his counsel\u2019s failure to object to the videotape of his interview or to particular evidence in the interview; all of the information is in the record before us. Based upon defendant\u2019s asserted grounds for his claim of ineffective assistance of counsel, we see no need for additional proceedings before the trial court. Therefore, defendant\u2019s claim for ineffective assistance of counsel is without merit.\nIII. CONCLUSION\nFor the foregoing reasons, we hold that the trial court committed no error as to the admission of the video evidence complained of and no error as to the denial of defendant\u2019s motions to dismiss. Defendant\u2019s claim for ineffective assistance of counsel is without merit and is dismissed.\nNO ERROR.\nJudges McGEE and ERVIN concur.\n. We note that on, 9 June 2010, defendant filed a \u201cMotion to Order the Clerk of Mecklenburg County to Transmit State\u2019s Exhibit 7 to the Court of Appeals.\u201d Since State\u2019s Exhibit 7 has been transmitted to this Court, we dismiss defendant\u2019s motion as moot.", "type": "majority", "author": "STROUD, Judge." } ], "attorneys": [ "Attorney General Roy A. Cooper, III, by Assistant Attorney General Dahr Joseph Tanoury, for the State.", "Brock, Payne & Meece, PA. by C. Scott Holmes, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. CLYDE MILTON BOYD, Defendant\nNo. COA09-1666\n(Filed 1 February 2011)\n1. Appeal and Error\u2014 preservation of. issues \u2014 failure to object \u2014 waiver of assignment of error\nDefendant waived his assignment of error related to the admission of defendant\u2019s recorded video statement in a robbery with a dangerous weapon and conspiracy to commit robbery with a dangerous weapon case. Defendant failed to register an appropriate objection at trial to the introduction of the evidence.\n2. Evidence\u2014 admission of video \u2014 opened door to introduction \u2014 no plain error\nThe admission of defendant\u2019s recorded video statement in a robbery with a dangerous weapon and conspiracy to commit robbery with a dangerous weapon case did not amount to plain error where defendant opened the door to the introduction of the video.\n3. Robbery\u2014 dangerous weapon \u2014 conspiracy\u2014sufficient evidence\nThe trial court did not err in denying defendant\u2019s motion to dismiss the charges of robbery with a dangerous weapon and conspiracy to commit robbery with a dangerous weapon because the State presented sufficient evidence of all elements of the crimes and of defendant\u2019s identity as the perpetrator.\n4. Constitutional Law\u2014 effective assistance of counsel \u2014 failure to object to evidence\nDefendant was not deprived of his Sixth Amendment right to counsel in a robbery with a dangerous weapon and conspiracy to commit robbery with a dangerous weapon case by virtue of his trial attorney\u2019s failure to object to the admission of defendant\u2019s recorded video statement. Defendant opened the door to the admission of this evidence by his testimony and the record demonstrated that the matters of which defendant complained were matters of trial strategy. Defendant\u2019s request that the trial court dismiss his claims for ineffective assistance of counsel without prejudice to defendant\u2019s right to reassert this claim in a motion for appropriate relief was denied.\nAppeal by defendant from judgment entered 2 September 2009 by Judge Eric L. Levinson in Superior Court, Mecklenburg County. Heard in the Court of Appeals 18 August 2010.\nAttorney General Roy A. Cooper, III, by Assistant Attorney General Dahr Joseph Tanoury, for the State.\nBrock, Payne & Meece, PA. by C. Scott Holmes, for defendant-appellant." }, "file_name": "0418-01", "first_page_order": 428, "last_page_order": 440 }