State v. Moore, 2022-NCCOA-716, ___ N.C. App. ___ (Nov. 1, 2022)

In this Alamance County case, defendant appealed his conviction for first-degree murder, arguing ineffective assistance of counsel and error by the trial court admitting lay witness opinion testimony. The Court of Appeals found no ineffective assistance of counsel and no prejudicial error by the trial court. 

In December of 2018, defendant sold drugs to the murder victim; the victim used a fake $100 bill to purchase the drugs from defendant. Defendant soon realized he had received a fake bill, and repeatedly contacted the victim, arguing that she owed him money. Eventually defendant and a friend went to the apartments where victim resided, and after a short exchange the victim was shot; she later died of her wounds. At trial, defendant’s counsel informed the trial court that defendant planned to concede that he fired the shot that killed the victim, and that he may argue defendant was guilty of lesser included offenses. Defendant indicated that he consented to this strategy during a colloquy with the trial court. Defendant’s counsel subsequently argued that defendant was struggling with the victim over a bag of drugs and he fired a shot that was not premeditated. 

The court first examined defendant’s per se ineffective assistance of counsel argument, noting that defendant consented to the strategy of admitting a shot was fired, effectively admitting to defendant’s guilt for second-degree murder, and thus could not argue ineffective assistance on this point. Examining defendant’s alternative argument that he received prejudicially ineffective assistance of counsel, the court explained that (1) defendant consented to his counsel’s strategy of self-defense, but then decided to invoke his Fifth Amendment right not to testify, sabotaging the strategy, (2) defendant’s witness offered testimony useful for raising doubts about the processing of the crime scene, and (3) defense counsel’s closing argument was coherent and attempted to negate the elements of first-degree murder. 

Reviewing the trial court’s admission of lay opinion testimony that it would be easier to lure the victim with promises instead of threats, the court could find no prejudicial error. Explaining that the State did not even refer to this testimony in closing arguments, instead simply referencing this concept as a commonsense notion, the court found that defendant failed to show any reasonable possibility that the jury would have reached a different verdict.