in the Court of Appeals 20 September 2017.
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.
F. Herzog for defendant-appellant.
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.
and Procedural Background
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
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
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.
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.
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.
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.
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