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State v. Allen

Court of Appeals of North Carolina

April 15, 2014

STATE OF NORTH CAROLINA
v.
HUBERT ALLEN, Defendant

Heard in the Court of Appeals March 5, 2014.

Page 853

[Copyrighted Material Omitted]

Page 854

Person County. Nos. 12 CRS 51030-32, 13 CRS 361-362. Michael R. Morgan, Judge.

Attorney General Roy Cooper, by Assistant Attorney General Laura Edwards Parker, for the State.

Appellate Defender Staples Hughes, by Assistant Appellate Defender Charlesena Elliott Walker, for defendant-appellant.

BRYANT, Judge. Judges STEPHENS and DILLON concur.

OPINION

Page 855

Appeal by defendant from judgments entered 18 April 2013 by Judge Michael R. Morgan in Person County Superior Court.Heard in the Court of Appeals 5 March 2014.

BRYANT, Judge.

A claim of ineffective assistance of counsel will be denied where defendant cannot show how his counsel's error prejudiced him. Where the trial court gave jury instructions as to self-defense on four out of five charges and where defendant agreed that he was satisfied with the jury instructions, defendant cannot show plain error.

At 7:00 p.m. on 15 June 2012, the Roxboro Police Department received a call about a shooting on Highway 501. When officers arrived at the scene, they saw a car with shattered front and back windows on the passenger's side and multiple bullet holes in the front driver's and passenger's doors, in the head rest on the front passenger side, and inside the car. The driver of the car, Crystal Barker, had a bullet graze wound to her shoulder. Barker's boyfriend, Bryant Richardson, had also been in the car at the time of the shooting but was not hurt. Barker told Officer Mills that a red SUV pulled alongside her while she was driving and the SUV's driver fired multiple shots into her car before speeding away. Police searched Barker and Richardson, then searched Barker's car where they found bullets and bullet fragments but no weapons.

After receiving information from a confidential informant regarding the shooting, the Roxboro police responded to a residence on Holeman Ashley Road. A burgundy SUV was found parked behind the residence. Upon entering the residence, the police encountered defendant Hubert Allen. Defendant was taken into custody, and a loaded handgun was recovered from a table next to him.

At the police station, defendant waived his Miranda rights and gave a statement to Detective Shull in which he admitted to shooting at Barker's car. Defendant stated that while driving down Highway 501, he received threatening messages, then saw a man leaning out of a car making a hand gesture towards him in imitation of a gun. Defendant told Detective Shull that this man, later identified as Richardson, then fired shots towards defendant. Defendant stated that he returned fire at Barker's car because he felt threatened.

On 15 June 2012, a Person County grand jury indicted defendant on one count each of assaulting Richardson with a deadly weapon with intent to kill, assaulting Barker with a deadly weapon with intent to kill and inflicting serious injury, discharging a firearm into an occupied vehicle, attempted first-degree murder of Barker, and attempted first-degree murder of Richardson. On 18 April 2013, a jury convicted defendant on all charges. The jury also found the existence of an aggravating factor, that " defendant ...


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