COA NO



COA NO. 05-1000 NINETEENTH DISTRICT

NORTH CAROLINA COURT OF APPEALS

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STATE OF NORTH CAROLINA )

)

V. ) From Moore

) 03CrS50551;

ROBERT ALEXANDER VERBAL ) 03CrS50674

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QUESTIONS PRESENTED

I. MR. VERBAL WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS ATTORNEY INFORMED THE JURY THAT THE STATE HAD PROVED THAT HE INTENDED TO COMMIT ARMED ROBBERY.

II. THE IMPOSITION OF LIFE WITHOUT PAROLE WHEN THE JURY DID NOT FIND AN INTENT TO KILL CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT CONTRARY TO THE STATE AND FEDERAL CONSTITUTIONS.

III. THE MANDATORY IMPOSITION OF A SENTENCE OF LIFE WITHOUT PAROLE WHEN THERE HAS BEEN NO INTENTIONAL KILLING IS AN IMPERMISSIBLE INTRUSION BY THE LEGISLATIVE BRANCH UPON THE AUTHORITY OF THE JUDICIAL BRANCH TO DETERMINE THE APPROPRIATE SENTENCE FOR THE CRIME AND THE OFFENDER.

STATEMENT OF THE CASE

The defendant pled not guilty to indictments charging him with first degree murder, conspiracy to commit armed robbery and assault with a deadly weapon with the intent to kill inflicting serious injury. He was tried by a jury during the August 9, 2004 session of Moore County Criminal Superior Court, the Honorable Ronald E. Spivey, Superior Court Judge Presiding. The jury acquitted him of the assault charge, found him guilty of felony murder and conspiracy to commit armed robbery and he was sentenced to life without parole.

On August 23, 2004, the defendant filed a motion for appropriate relief. The motion was denied on September 13, 2004, by the Honorable Ronald E. Spivey.

STATEMENT OF JURISDICTION

Pursuant to Appellate Rule 28(b)(4), jurisdiction for this appeal derives from N.C.G.S.15A-1442 and 1444 and N.C.G.S.7A-27(b). This appeal is from a final order.

INTRODUCTION

Trial counsel admitted the State proved the guilt of the underlying felony, giving the jury no option but to find him guilty of murder. The jury clearly had trouble with the “purchased” testimony of drug dealer Hammond and others, and clearly wanted to find that the shooting was accidental. The defense “admission” the State proved attempted robbery, coupled with erroneous instructions on the impact of evidence of accident, resulted in young Robert Verbal receiving a sentence of life without parole.

STATEMENT OF THE FACTS

Twenty-two year old Robert Verbal, the defendant, testified that he was drinking beer and smoking marijuana at his girlfriend’s house when Maurice Nealy told him that Roderick Hammond had money. Nealy wanted him to help him rob Hammond. Verbal told him he just got put on probation and did not want to do anything with him. Nealy went on to tell him he had gotten a new gun and he let Verbal borrow it. (Vol.III,Tpp.297-299)

The two then went to Nealy’s house to get some more marijuana. Nealy asked again if Verbal and Barkley would rob Hammond for him. When they said no, he called them cowards, using obscenities. As the evening wore on, Verbal and Chris Barkley decided to go to Hammond’s to buy some more marijuana. He knocked on the back door and David Blue let him in. Verbal knew Blue. Verbal spoke to Kim Fairley and she told him Hammond was in the middle room. Verbal told Hammond he needed a “dime bag.” When Verbal reached in his pocket to get the money, the gun fell out. He and Hammond both dove for the gun and wrestled over it. The gun discharged a couple of times, hitting a third person in the leg. (Vol.III,Tpp.299-303)

Hammond was yelling for his uncle, David Blue. Blue grabs Chris Barkley as Verbal continues struggling with Hammond over the gun. The gun discharged again and Verbal pulls on it so hard to get it out of Hammond’s hands that he fell backwards. He got up and ran out of the house, Barkley behind him. (Vol.III,Tpp.303-305)

About this time, Maurice Nealy and Eric Perkins drive close by. Verbal knocks on the van and Nealy stops. When asked what was wrong, Verbal said he did not know but he thought he may have shot somebody in the leg. He did not want to go home because he thought the man who was shot in the leg would take out a warrant. He went to his uncle’s home where Nealy found him and told him that he had done more than shoot someone in the leg. He was arrested that morning. (Vol.III,Tpp.305-307)

When the police arrived, he was scared. He told them where the gun was located because he did not want them to think he was going for a gun. He told them he had the .25 caliber and Barkley had the .380 caliber gun. Verbal told the jury he never intended to rob anyone.(Vol.III,Tp. 307-309)

Verbal told the prosecutor that he had smoked a great deal of marijuana that day and had drunk a couple of beers. He said he never told anyone he was going to rob anyone. During the evening, he only left Nealy’s house by the front door and did not go out the back door to see if anyone was at Hammond’s house. (Vol.III,Tpp.310-316)

Verbal had sixteen dollars that he was going to use to buy the marijuana. The money did not come from Nealy. He did not call the police to tell them he accidentally shot someone because he was scared. (Tpp.316-324)

Roderick Hammond’s testimony was similar to Robert Verbal’s, except he portrayed himself the victim of an attempted robbery, not a drug dealer struggling over a gun during a drug buy. He said Verbal and another man came in the house, Verbal pulled a gun and the two of them struggled over it. During the struggle the gun discharged. Hammond pushed Verbal down and ran outside. Barkley and Blue were also struggling. As Hammond ran away, he heard a shot. (Criste;Tpp.70-96)

Hammond returned to the residence with the police. He kept coming in to the room, hugging his Uncle, even when police told him to leave the crime scene. After one embrace, he stood up with money in his hand and the officer was unable to detain him.(Criste Tp. 190, 191) Hammond later testified that he realized he could not help David so he decided to get the $1,000.00 hidden under the television stand and leave. (Criste Tp.79, 87)

Hammond said he had drugs in the house that night and that he had been selling drugs. Customers would come to the house to make their purchase. Hammond had three prior drug offenses and after the shooting, was charged with two counts of maintaining a dwelling to keep controlled substances and possession with intent to sell and deliver cocaine and possession with intent to sell and deliver marijuana. He had made a deal with the State that all felony charges would be dismissed and he will receive a probationary sentence, in exchange for his testimony. (Criste Tpp.86-89) Hammond had known Verbal all his life. When Verbal came in he did not try to conceal his identity. Verbal did not say anything to him. (Criste p. 91)

Maurice Nealy and Eric Perkins testified for the State. Nealy said he told Verbal that Hammond was getting money and Verbal said they should rob him. Nealy told him that Barkley would do it with him and gave Verbal his 380 gun. Nealy said Barkley had the .25 caliber that Verbal gave him. Barkley and Verbal left and Nealy went outside to sit in the van with Eric Perkins. Barkley and Verbal came running back to the van and got in. Verbal said he got in a struggle and that he had shot someone. (Criste Tpp.97-109) Nealy’s deal with the State was that seven charges would be dismissed in return for his testimony and that he would plead guilty to a cocaine charge and conspiracy to commit armed robbery. Nealy had five prior convictions.(Criste Tp. 114,115,125)

Eric Perkins is Barkley’s cousin. He was originally charged with first degree murder and conspiracy to commit armed robbery. In exchange for his testimony, he will plead guilty to the conspiracy charge and get a probationary sentence. Perkins said when Verbal got in the van he said, “I shot him in the leg.” Verbal told Barkley he did not do what he was supposed to do. Barkley said he tried to shoot but the gun was on safety. Verbal was holding the silver gun. (Criste Tpp. 126-145)

Kimyatta Fairley, Hammond’s girlfriend, was in the house that night. She heard someone say “give it up” but she did not know who it was. She saw all four men, Barkley, Verbal, Blue and Hammond, in the hall and saw the guns. Barkley told her to get back in her room and she did. She heard four to six shots. (Criste Tp.163-181).

When Verbal was arrested, he told the Sheriff he was not afraid because he did not shoot anybody, but he knew he should not have gone with “that crazy fool.” He told him he was carrying the .25 and Barkley had the 380. Criste Tp. 224)

Agent Morin testified that three shell casings from the scene were compared to the test firing. Two were similar enough to say they could have been fired from the 380. The third could not have been fired from the 380. (Criste Tp. 237-260)

Blue sustained two gunshot wounds to the chest and one to the left upper buttock. The wounds were not contact or close range wounds. (Criste Tpp.265-282)

During deliberations, the jury asked for a clarification of accidental discharge and if an accidental killing still fall under felony murder. The jury rejected premeditation and deliberation and found the defendant guilty of felony murder and conspiracy to commit armed robbery. After they were discharged, several jurors contacted defense counsel, outraged at the severity of the sentence. A motion for appropriate relief was filed and an evidentiary hearing was held. At the conclusion of the hearing the motion was denied.

I. TRIAL COUNSEL TOLD THE JURY THE STATE PRESENTED SUFFICIENT EVIDENCE OF THE ATTEMPTED ARMED ROBBERY, THEREBY DEPRIVING THE DEFENDANT OF HIS DEFENSE AND CONTRARY TO HIS RIGHT TO EFFECTIVE REPRESENTATION OF COUNSEL.

Assignment of Error Number 10, Record page 85

STANDARD OF REVIEW

A criminal defendant’s right to counsel includes the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, rehearing denied, 467 U.S. 1267 (1984). In a claim on ineffective assistance of counsel, the defendant bears the burden of demonstrating that defense counsel’s conduct falls below an objective standard of reasonableness. State v. Braswell, 312 N.C. 553 (1985).

Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Strickland, 466 U.S. at 687.

United States v. Cronic, 466 U.S. 648 (1984) established that certain failings of counsel justify a per se presumption of ineffectiveness, notwithstanding the general rule to demonstrate ineffectiveness.

DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL

The State’s theory was that Verbal and Barkley planned to rob Hammond and the shooting of Blue happened during a botched robbery. The Defendant told the jury that he never intended to rob Hammond, and that the shooting happened during a consensual drug exchange. If there was a struggle during this drug buy, it would not be felony murder under the theory presented by the State. Unfortunately, during closing argument, trial counsel said the following:

Kimyatta Fairley belatedly comes up with might

have heard something, don’t know who said it. We

certainly give that enough weight to be convinced

beyond a reasonable doubt that there was an attempt

at a robbery. (Vol. III,Tp.370, lines 17-19)(emphasis

added)(entire argument of defense attached hereto)

With one sentence, trial counsel admitted the State proved the attempted armed robbery, the only basis for the felony murder. The jury rejected premeditation and deliberation and struggled mightily with the nexus between the accidental discharge and the alleged felony. Although he argued the contrary position later, the jury heard him say that Kimyatta Fairley, who testified she heard someone yell “give it up” was enough to prove attempted robbery.

To worsen the situation, counsel later said that “Nobody in this courtroom knows what was going on when the shot was fired that killed David Blue. Nobody knows that.” (T.p. 376; attached hereto). This was especially a problem since his client had taken the stand and told the jury what was going on when the shot was fired; he was struggling over a gun with Hammonds. Once again, it appears as though Verbal is not to be believed by his own attorney.

"When counsel admits his client's guilt without first

obtaining the client's consent, the client's rights to a

fair trial and to put the State to the burden of proof

are completely swept away. The practical effect is the

same as if counsel had entered a plea of guilty without

the client's consent." State v. Harbison, 315 N.C. 175, 180,337 S.E.2d 504, 507(1985), cert. denied, 476 U.S. 1123,90 L.Ed.2d 672 (1986). Under such circumstances, "[an]

admission of the defendant's guilt during the closing

arguments to the jury is per se prejudicial error.” Id.at 177, 337 S.E.2d at 505.

Specifically, in Harbison, our Supreme Court ruled that the defendant received ineffective assistance of counsel where he presented evidence that he had killed in self-defense, and to defendant's surprise, his attorney expressed an opinion during his closing argument that the jury should return a verdict of guilty of voluntary manslaughter as opposed to first-degree murder. Id. at 177, 178, 337 S.E.2d at 506.

The State Supreme Court has distinguished Harbison

from a case in which a defense attorney admitted that

there was evidence of malice to support a verdict of

second-degree murder but did not admit guilt. State v. Fisher, 318 N.C. 512, 533, 350 S.E.2d 334, 346(1986). In such a situation, a constitutional violation is not presumed and the defendant must meet the Strickland test and show: that his trial counsel made errors so serious as to support a finding that he was not functioning as the counsel guaranteed by the Sixth Amendment; and there is a reasonable probability that, but for counsel's errors, there would have been a different result at trial. Strickland v. Washington, 466 U.S. 668, 687(1984).

The Fisher case is factually distinguishable from this case because even with the admission of malice, the attorney did not admit premeditation and deliberation, and thus did not prevent the jury from finding second degree murder. The jury in fact found Fisher guilty of premeditated and deliberate murder. In Mr. Verbal’s case, the concession of a felony prevented the jury from finding any of the lesser included offenses and precluded the jury from it’s obvious preference for a finding of accident.

In the instant case, counsel did not say “you can find him guilty” but did say that Fairley’s testimony had enough weight to be convinced beyond a reasonable doubt that there was an attempted robbery.

In any event, the attorney’s performance satisfied Strickland. Counsel certainly was not serving Verbal’s interest when he said the State had proved attempted robbery. Without the attempted robbery, first degree murder would have been off of the table, as evidenced by the jury’s rejection of premeditation and deliberation. Further, the juror affidavits, and their questions submitted during trial, show that there is a possibility they would have found him not guilty because they believed the shooting was accidental. Aside from their post-conviction statements, their acquittal of Mr. Verbal of the intentional assault on Hammond shows that the jury favored an accidental discharge of the weapon. Absent acquiescence by counsel that the State proved an intent to try to rob, the jury may well have voted for acquittal, or manslaughter.

In the beginning of the trial, counsel litigated the case with vigor. The right to effective assistance of counsel extends to closing argument. Bell v. Cone, 535 U.S. 685, 701-702(2002). Ineffectiveness may be found on a single issue even though the overall performance of any given attorney has been otherwise exemplary. Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639(1996);(See Grady v. Artuz, 931 F.Supp. 1048(S.D.N.Y. 1996) wherein a single error, failure to raise on the appeal the issue of the duplicity of Grady’s indictment, was found to be sufficiently prejudicial to warrant relief.) Regardless of counsel’s performance during the majority of the trial, this error was on such a pivotal issue that the effect was as if Verbal had no counsel at all, on this point.

Despite Strickland and its progeny, there are “circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified." United States v. Cronic, 466 U.S. 648, 658,104 S.Ct. 2039, 2047, 80 L.Ed.2d 657, 667 (1984), Geders v. U.S., 425 U.S. 80, 96 S.Ct. 1330(1975) (defense counsel was not allowed to make closing argument); Cuyler v.Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980)(prejudice presumed when counsel affected by actual conflict of interest). Likewise, when counsel to the surprise of his client admits his client's guilt, the harm is so likely and so apparent that the issue of prejudice need not be addressed. Harbison, supra.

In the case at bar, the concession was on a critical point; the issue of Kimyatta’s testimony that she heard someone utter the classic robbery line:“give it up.” No one else had testified to any such language. This showed more than being in the wrong place at the wrong time, it showed an attempted robbery. Further, Kimyatta was not a player, she was only a bystander. Therefore, her credibility was in better shape than either Hammond’s, Perkins’s or Nealy’s.

The Defendant submits that his case is governed by Cronic and not by Florida v. Nixon, 543 U.S. 175, 125 S.Ct. 551(2004). Mr. Nixon’s attorney conceded guilt in order to maintain credibility during the sentencing phase, intending to rely on significant mental health evidence to achieve a sentence of life instead of death. The Nixon Court held that the failure to obtain express consent to a strategy of conceding guilt in a capital trial does not automatically render counsel’s performance deficient. Capital trials are unlike other “run-of-the-mine” trials. The Court noted that the gravity of the death sentence and the two phase structure of the trial affect counsel’s strategic decisions. Avoiding a finding of guilt may not be possible; avoiding execution may be the only realistic result possible.

This case presents no such quandary or justification. Mr. Verbal testified, in no uncertain terms, that he never entered into a conspiracy to commit armed robbery, nor did he intend to commit robbery. Any concession that he intended to rob Hammonds would not allow the jury to find him guilty of any of the lesser included offenses submitted to the jury. To the contrary, it guaranteed that the jury had no choice but to find that there was an agreement to attempt a robbery. As instructed, they then had no choice but to find felony murder. In this circumstance, the error was prejudicial per se.

Regardless of which test is used, Strickland or Cronic, Mr. Verbal is entitled to a new trial wherein his Sixth Amendment rights are not compromised, wherein the jury has the full benefit of his defense and he has the full benefit of counsel.

II. THE IMPOSITION OF LIFE WITHOUT PAROLE WHEN THE JURY DID NOT FIND AN INTENT TO KILL CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT CONTRARY TO THE STATE AND FEDERAL CONSTITUTIONS.

Assignment of Error Number 11, Rp. 86

Assignment of Error Number 13, Rp. 86

Assignment of Error Number 15, Rp. 86

INTRODUCTION AND FACTS

Mr. Verbal testified that the gun discharged accidentally as he and Hammonds struggled. The jury thought the gun discharged accidentally, as evidenced by their questions and their affidavits submitted post-trial. Because of the defense attorney’s argument conceding the State had sufficient evidence to show a robbery attempt, the jury was left with no other alternative but to find felony murder. Of course the mandatory sentence, regardless of the defendant, the circumstances, or the trial court’s inclinations, is life without the possibility of parole. The defendant submits that a life sentence without the possibility of parole is cruel and unusual punishment in his case.

STANDARD OF REVIEW

The Eighth Amendment’s prohibition against cruel and unusual punishments must be interpreted according to its text, by considering history, tradition and precedent. To work within this framework, the Court must refer to "the evolving standards of decency that mark the progress of a maturing society" to determine which punishments are so

disproportionate as to be "cruel and unusual." Trop v. Dulles, 356 U.S. 86, 100-101 (1958), Roper v. Simmons, 543 U.S. , 125 S.Ct. 1129(2005).

In the context of non-capital offenses, the Eighth Amendment contains a proportionality component. Sentences which are grossly disproportionate to the offense committed violate the Eighth Amendment. Ewing v. California, 538 U.S. 11(2003).

DISCUSSION

Mr. Verbal is aware that this Court, and our State Supreme Court, has held that the felony murder rule was promulgated to deter even accidental killings from occurring during the commission of a dangerous felony. State v. Richardson, 341 N.C. 658, 462 S.E.2d 492(1995). The homicide statute and the sentencing statute provide for the mandatory sentence. N.C.G.S.14-17; 15A-1340.17(c).

Our courts have also upheld the mandatory life sentence for felony murder in the face of challenges that it constitutes cruel and unusual punishment, on the grounds that the punishment does not exceed the statutory limit. "North Carolina courts have consistently held that when a

punishment does not exceed the limits fixed by statute, the

punishment cannot be classified as cruel and unusual in a

constitutional sense." State v.Stinnett,129 N.C.App. 192, 200, 497 S.E.2d 696, 701(1998) (citing State v. Rogers, 275 N.C. 411, 421, 168 S.E.2d 345, 350(1969) and State v. Sweezy,291 N.C. 366, 385, 230 S.E.2d 524, 536(1976).

Analysis under the Eighth Amendment however is not constrained by the statutes or the legislature. If such were the case, the Eighth Amendment would be pointless. Legislation is looked at to determine whether there is a national consensus that a particular punishment is consistent with contemporary values. Stanford v. Kentucky, 492 U.S. 361(1989). The courts may review a particular statutory punishment and determine whether it reflects contemporary values. (See e.g. Roper v. Simmons, supra, holding that it is cruel and unusual punishment to execute persons who were under age 18 at the time they committed the capital offense.).

The amicus brief submitted in this case shows that North Carolina has the harshest use of felony murder, allowing a broad range of felonies to be used to reach first degree murder. The same draconian sentence is imposed, regardless of the underlying circumstances. A review of the other states shows that contemporary values include flexibility in the use of felony murder, a flexibility not found in the North Carolina sentencing scheme.

Acknowledging prior holdings are contrary to his position, Mr. Verbal requests that this Court apply a proportionality analysis and hold that this sentence is grossly disproportionate to the offense committed; a homicide without homicidal intent. Therefore, the sentence is contrary to the protections of the Eighth and Fourteenth Amendments to the United States Constitution.

III. THE MANDATORY IMPOSITION OF A SENTENCE OF LIFE WITHOUT PAROLE WHEN THERE HAS BEEN NO INTENTIONAL KILLING IS AN IMPERMISSIBLE INTRUSION BY THE LEGISLATIVE BRANCH UPON THE AUTHORITY OF THE JUDICIAL BRANCH TO DETERMINE THE APPROPRIATE SENTENCE FOR THE CRIME AND THE OFFENDER.

Assignment of Error Number 12, Rp. 86

Assignment of Error Number 14, Rp. 86

Assignment of Error Number 15, Rp. 86

INTRODUCTION AND FACTS

The Motion for Appropriate Relief (MAR) filed after trial argued that the mandatory imposition of a sentence of life without parole violated Article I, Section 3 of the North Carolina Constitution. That section provides that the legislative, executive and judicial branch are distinct and separate. Following the hearing on the MAR the trial court determined that there was no intrusion by the legislative branch on the role and duty of the judicial branch.

DISCUSSION

Mr. Verbal acknowledges that decisions of our appellate courts are contrary to this assertion. It has been held that the General Assembly alone prescribes the maximum and minimum punishments which can be imposed on those found guilty of crimes. State v. Perry, 316 N.C. 87, 101, 340 S.E.2d 450, 459(1986); State v. Jernigan,279 N.C. 556, 184 S.E.2d 259(1971). Mr. Verbal raises this argument on constitutional grounds for preservation purposes.

CONCLUSION

Mr. Verbal requests that this Court set aside his conviction on the grounds that his trial attorney conceded guilt on a significant issue, without his consent.

Alternatively, Mr. Verbal requests that this Court hold that life imprisonment without parole constitutes cruel and unusual punishment for a murder that occurs without homicidal intent.

Alternatively, Mr. Verbal requests that this Court hold that the mandatory imposition of a life sentence without the possibility of parole constitutes an unconstitutional violation of the separation of powers of the judiciary and the legislative branches.

Respectfully submitted, this the 17th day of October, 2005.

____________________________

Nora Henry Hargrove

Attorney for Appellant

616 Market Street

Wilmington, NC 28401

910-254-1004

postconvict@ec.

CERTIFICATE OF FILING AND SERVICE

I hereby certify that I have this day filed the foregoing Brief by U.S. Mail, postage prepaid, properly addressed to John H. Connell, Clerk, North Carolina Court of Appeals, P.O. Box 2779, Raleigh, North Carolina.

I further certify that I have this day served a copy of the foregoing Brief by U.S. Mail, postage prepaid, properly addressed to Special Deputy Attorney General Danielle Marquise, by U.S. Mail, postage prepaid, properly addressed to her at 9001 Mail Service Center, Raleigh, NC 27699-9001.

This the 17th day of October, 2005.

____________________________

Nora Henry Hargrove

Attorney for Appellant

APPENDIX INDEX

CLOSING ARGUMENT OF DEFENSE COUNSEL .............A1

Cases

Bell v. Cone, 535 U.S. 685, 701-702(2002) 14

Cuyler v.Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980 15

Ewing v. California, 538 U.S. 11(2003). 18

Florida v. Nixon, 543 U.S. 175, 125 S.Ct. 551(2004) 16

Geders v. U.S., 425 U.S. 80, 96 S.Ct. 1330(1975) 15

Grady v. Artuz, 931 F.Supp. 1048(S.D.N.Y. 1996) 14

Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639(1996) 14

Roper v. Simmons, 543 U.S. , 125 S.Ct. 1129(2005). 18

State v. Braswell, 312 N.C. 553 (1985). 9

State v. Fisher, 318 N.C. 512, 533, 350 S.E.2d 334,346 (1986). 12

State v. Harbison, 315 N.C. 175, 180,337 S.E.2d 504, 507 (1985), cert. denied, 476 U.S. 1123,90 L.Ed.2d 672 (1986) 11

State v. Perry, 316 N.C. 87, 101, 340 S.E.2d 450, 459(1986) 22

State v. Richardson, 341 N.C. 658, 462 S.E.2d 492(1995). 19

Strickland v. Washington, 466 U.S. 668, rehearing denied, 467 U.S. 1267 (1984). 9

Trop v. Dulles, 356 U.S. 86, 100-101 (1958) 18

United States v. Cronic, 466 U.S. 648 (1984) 9

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