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State v. Harris

Court of Appeals of North Carolina

November 21, 2017

STATE OF NORTH CAROLINA, Plaintiff,
v.
ED LEVAN HARRIS, Defendant.

          Heard in the Court of Appeals 20 September 2017.

         Appeal by defendant from judgment entered 23 April 2016 by Judge Charles H. Henry in Lenoir County Superior Court, Nos. 14 CRS 51687, 15 CRS 40

          Attorney General Joshua H. Stein, by Special Deputy Attorney General Brian D. Rabinovitz, for the State.

          Paul F. Herzog for defendant-appellant.

          ZACHARY, JUDGE.

         Ed Levan Harris (defendant) appeals from the judgment entered upon his convictions of attempted first-degree murder, assault with a deadly weapon intending to kill inflicting serious injury, and possession of a firearm by a convicted felon. On appeal, defendant argues that the trial court committed plain error by allowing the State to offer testimony related to gang activity in Kinston, North Carolina in July of 2014. In the alternative, defendant argues that he received ineffective assistance of counsel, based upon his trial counsel's failure to object to the challenged testimony. After careful consideration of defendant's arguments, we conclude that defendant is not entitled to relief based on either of these arguments.

         Factual and Procedural Background

         On 3 July 2014, Keith Williams sustained a gunshot wound to the back of his neck. On 2 February 2015, defendant was indicted for attempted first-degree murder, assault with a deadly weapon intending to kill inflicting serious injury, and possession of a firearm by a convicted felon, with all of these charges arising from the incident in which Mr. Williams was shot.

         The charges against defendant were tried beginning on 18 April 2016. The State's evidence tended to show, in relevant part, the following: Sergeant Roland Davis of the Kinston Police Department testified that shortly after midnight on 3 July 2014, he was dispatched to a convenience store on Martin Luther King Jr. Boulevard in response to a reported shooting incident. Mr. Williams was sitting in front of the store, and Sergeant Davis saw a bullet hole in the back of Mr. Williams's neck. Mr. Williams indicated that he had been shot at a location several blocks away, and Sergeant Davis found a .25 caliber shell near a small pool of blood on Fields Street.

         Keith Williams testified that between sixth and tenth grades he attended Sampson School. Defendant was a student at the same school, and Mr. Williams and defendant spent time together. During the time that defendant and Mr. Williams attended the same school, they had no fights or disagreements. After Mr. Williams transferred to a different school, they did not see each other often.

         Shortly after midnight on the night of 3 July 2014, Mr. Williams was walking in Kinston when defendant called to him and they greeted each other. Defendant was riding a bicycle which Mr. Williams described as a BMX "trick bike." As defendant and Mr. Williams walked along, defendant asked Mr. Williams if he wanted to smoke marijuana, and Mr. Williams agreed. When a law enforcement officer passed them, defendant suggested that they move to a side street, and they turned onto Fields Street. After they left the main street, defendant passed Mr. Williams the marijuana cigarette and then, with no warning, he shot Mr. Williams in the neck.

         After he was shot, Mr. Williams turned around and saw defendant riding away on his bike. Mr. Williams ran to Martin Luther King Jr. Boulevard and asked someone at a convenience store to call 911. Mr. Williams testified that when he spoke with law enforcement officers shortly after he was shot and while he was in the hospital, he did not reveal who had shot him because he feared for his personal safety. When Mr. Williams returned home from the hospital, he spoke with his family and decided to share information with law enforcement officers. Accordingly, Mr. Williams met with Kinston Police Officer Eubanks and provided a recorded interview during which Mr. Williams told Officer Eubanks that defendant was the person who had shot him.

         Mr. Williams believed that defendant was "associated with" members of the Bloods, a street gang, but did not know if defendant was a member of the gang. Several weeks prior to Mr. Williams's meeting with defendant, a "high ranking" member of the Bloods had been killed. Mr. Williams "associated" or socialized with members of the Crips, a rival street gang, but was not a member of the gang. Mr. Williams spoke with law enforcement officers several times before he admitted his association with the Crips. Mr. Williams had previous criminal convictions for various offenses, including felony larceny and assault on a female, and he was on probation at the time of trial. On cross-examination, Mr. Williams testified that he was shot a second time on 10 August 2014, while defendant was incarcerated, that Mr. Williams's cousin, Shakeel Stanley, was in the Crips gang, and that Mr. Stanley lived in an apartment on Morningside Drive.

         Officer Douglas Connor of the Kinston Police Department testified that on 15 July 2014, he participated in a search of Apartment C on Morningside Drive. Law enforcement officers seized an Astra Firecat handgun in a bedroom. Forensic testing showed that the Astra Firecat had fired the bullet whose shell casing was found on Fields Street. Kinston Police Officer Travis Moore testified that several weeks prior to the incident in which Mr. Williams was shot, the officer had arrested defendant for misdemeanor possession of marijuana and trespassing at the Morningside Drive address. At that time, defendant told Officer Moore that he was visiting someone who lived in Apartment C. On 16 July 2014, Officer Connor assisted with the search of a home on South Adkin Street, where defendant lived with his parents. In a bedroom, officers found a cell phone that had a photo of defendant on the lock screen, as well as .25 caliber bullets. Officers also seized a BMX bicycle, which was the brand of bicycle ...


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