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Date: 11-21-2017

Case Style:


North Carolina Court of Appeals

Case Number: COA17-346

Judge: Valerie Johnson Zachary


Plaintiff's Attorney: Special Deputy Attorney General Brian D. Rabinovitz

Defendant's Attorney:

Paul F. Herzog

Description: 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

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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

Opinion of the Court

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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

Opinion of the Court

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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 described by Mr. Williams. Officer Connor took the bicycle to the law
enforcement center, and as he was taking the bike to the evidence storage area,
defendant appeared in the company of other officers and said, “That’s my bike, boy”
in an agitated manner.
Defendant offered the testimony of Sergeant Chad Rouse of the Kinston Police
Department. On 15 July 2014, Sergeant Rouse was dispatched to the Morningside
Drive apartments to investigate a report that Mr. Stanley had been shot. The
apartment smelled of marijuana, and drug paraphernalia was observed inside.
Thereafter, Sergeant Rouse obtained a search warrant, pursuant to which the Astra
Firecat handgun was seized. Mr. Stanley was arrested for a narcotics charge. Kinston
Police Sergeant Stephen Reavis testified that when Mr. Stanley was arrested he was
in possession of pills that appeared to be narcotics.
On 23 April 2016, the jury returned verdicts finding defendant guilty of
attempted first-degree murder, assault with a deadly weapon intending to kill

Opinion of the Court

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inflicting serious injury, and possession of a firearm by a convicted felon. The trial
court consolidated the offenses for purposes of sentencing and imposed a sentence of
162 to 207 months’ imprisonment. Defendant noted a timely appeal to this Court.
Admission of Testimony Related to Street Gangs
Prior to trial, defendant filed a motion in limine addressing the potential
admission of evidence or testimony concerning street gangs. In his motion, defendant
alleged that the Kinston Police Department had a unit that was commonly referred
to as the Gang Unit; that defendant believed that the State might try to introduce
evidence of defendant’s membership in a gang; that the weapon associated with the
shooting was seized from an apartment where a gang member lived, and; that Mr.
Williams had made a statement in which he speculated that the shooting was gang
related. Defendant also made two contradictory assertions: first, that Mr. Williams’s
“mere suppositions do not show that gang membership is relevant in this case”, but
also that “the shooting of the victim may have been gang related” although defendant
was not involved. In his prayer for relief, defendant asked that the trial court:
1. Not allow any use of the word “gang” including in the context of the law enforcement “Gang Unit.”

2. In the alternative, if the Court does allow the use of the term “gang” to be used as an admission or fact against the defendant, that it be fair game as to the examination and cross-examination of all witnesses.


Opinion of the Court

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Following a hearing on defendant’s motion in limine, the trial court ruled that
the State and law enforcement officers would not be allowed to refer to the “Gang
Unit” in the Kinston Police Department, but that Mr. Williams would be allowed “to
testify to the fact that he had -- associated with gang members and hung around with
certain gang members, and be able to testify from his personal knowledge as to the
defendant’s similar association with a particular gang.” Defendant did not note an
objection to the trial court’s ruling, or object at trial to Mr. Williams’s testimony that
(1) he socialized or associated with members of the Crips gang; (2) defendant
socialized with members of the Bloods gang; and (3) a few weeks before Mr. Williams
was shot, a “high-ranking” member of the Bloods had been shot. In addition,
defendant was permitted to cross-examine witnesses concerning gang-related issues.
For example, defendant’s counsel obtained admissions from Mr. Williams that he did
not know whether defendant was a gang member, and that the firearm used to shoot
him had been found in an apartment where his cousin, a member of the Crips, was
On appeal, defendant concedes that he did not object to the introduction of this
testimony at trial, and asks that we review it for plain error. However, as discussed
above, defendant’s motion in limine requested that the trial court either bar any
reference to the word “gang”, or in the alternative, if witnesses were permitted to
testify about gangs, that the term “gang” would be “fair game as to the examination

Opinion of the Court

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and cross-examination of all witnesses.” The trial court allowed defendant’s
“alternative” request that he be allowed to cross-examine witnesses on gang-related
We have reviewed the transcript of this trial, and observe that on direct
examination, Mr. Williams testified that he “associated with” members of the Crips,
but was not a member of the gang, that defendant similarly associated with members
of the Bloods, and that a high-ranking member of the Bloods had been shot a few
weeks earlier. Defendant’s counsel cross-examined Mr. Williams extensively about
gang-related matters. Mr. Williams admitted that he did not initially admit to law
enforcement officers that he associated with the Crips, that his cousin, Shakeel
Stanley, was a Crip, that Mr. Williams had prior convictions for weapons offenses,
that Mr. Williams typically drank and smoked marijuana with the Crips, that he
possessed marijuana when he was shot, and that he was shot on a later occasion while
defendant was in jail.
In addition, in their closing arguments both the prosecutor and defense counsel
urged the jury to consider gang-related issues. The prosecutor speculated that
defendant may have shot Mr. Williams in an attempt to curry favor with the Bloods:
PROSECUTOR: Keith [(Mr. Williams)] tells you that Ed [(defendant)] associates with Bloods. Well, I submit to you what’s going on here - in the old mobster movies, sometimes you hear them talk about their “made” guys and -- and there are guys who are lower level, hadn’t gotten made yet. I submit to you we have a similar circumstance

Opinion of the Court

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here. There’s been, as Keith testified, a higher-ranking Blood that’s been killed recently. Ed’s a younger guy, just 17. He knows Keith associates with the Crips. The young guy wants to make a name for himself, move up the ladder.

. . .

In the initial statement what you heard from Officer Eubanks, [Mr. Williams] put it this way: I think Ed was a Blood. He was looking for somebody to shoot.

Defense counsel also referred to street gangs in his closing argument:
DEFENSE COUNSEL: Keith says he associates with the Crips. I don’t know what the semantics of “associate,” “affiliate,” but apparently it seemed to be an important distinction to him. And he says he believes that Ed associates with some other group, the Bloods. Now, why does Keith know a high-ranking member of the Bloods? You may ask yourself, why does he have that inside knowledge of high-ranking? I mean, what’s going on here?

. . .

Why would somebody who was associated with the Crips make up something about being shot? Why would somebody get shot again a few weeks later?

. . .

So, the logical inference that you jurors are allowed to make, based on the evidence that you have seen and heard -- throughout this case, I’ve been agog at the idea that that makes sense, that it makes sense that it’s his. [(that the Astra Firecat is defendant’s.)] Ask Keith who does Shakeel associate with? Crips. Everybody in this whole thing is associated, affiliated something - something - something. Blue bandannas, red stuff there. Keith’s certainly not citizen of the year either. Why are guys out there getting shot up? It’s not because they spend all of their time at the

Opinion of the Court

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soup kitchen volunteering. It’s not because they are at church all the time. Why does Keith get shot up twice? ‘Cause he’s out being a nice fellow? Is he honest? Keith a felon? Do you believe a guy with that kind of record?

The record thus establishes that defense counsel and the prosecutor were each
permitted to advance theories as to the relationship between gang-related issues in
Kinston in 2014 and the identity of the person who shot Mr. Williams. The prosecutor
argued that defendant may have shot Mr. Williams as a form of revenge for the recent
shooting of a member of the Bloods, or in order to advance his status with that gang.
Defense counsel pointed out that Mr. Williams was involved with the Crips, that the
weapon with which he was shot was found in an apartment where a member of the
Crips lived, and that Mr. Williams was shot by someone else several weeks later, after
defendant had been incarcerated.
On appeal, defendant does not dispute that in his motion in limine he posited
that although defendant had not shot Mr. Williams, the shooting was, in fact, gang
related. It is undisputed that defendant was granted the alternative relief sought in
his motion in limine, that he be permitted to cross-examine witnesses concerning
gang-related matters. Moreover, it is clear from the contents of defendant’s motion
in limine, his cross-examination of Mr. Williams, and his closing argument, that
defense counsel pursued a deliberate trial strategy of attempting to persuade the jury
that there was a reasonable doubt as to defendant’s guilt, based upon (1) Mr.
Williams’s affiliation with a street gang and his prior criminal record; (2) the fact that

Opinion of the Court

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even after defendant was in jail Mr. Williams was shot by someone else; and (3) the
fact that the weapon with which Mr. Williams was shot had been located in an
apartment with which defendant had only a tangential association but where Mr.
Williams’s cousin, a Crip, was known to live. We conclude that the testimony that
was elicited concerning street gangs was admitted in accordance with the relief
sought by defendant -- that if the trial court allowed testimony about street gangs,
defendant should be allowed to cross-examine witnesses on gang-related issues.
We further conclude that the error, if any, in allowing the admission of such
testimony is a textbook example of invited error. Invited error has been defined as
“a legal error that is not a cause for complaint because the error occurred through the
fault of the party now complaining.” Sain v. Adams Auto Grp., Inc., __ N.C. App. __,
__, 781 S.E.2d 655, 663 (2016) (internal quotation omitted). This principle is codified
in N.C. Gen. Stat. § 15A-1443(c) (2016), which provides that “[a] defendant is not
prejudiced by the granting of relief which he has sought or by error resulting from his
own conduct.” In addition, defendant not only failed to object to the prosecutor’s
questioning of Mr. Williams about gang-related matters, but elicited testimony on
this subject on cross-examination. Thus, even in the absence of his motion in limine,
we would hold that he was not entitled to relief on the basis of the admission of this
It is well established that the admission of evidence without objection waives prior or subsequent objection to

Opinion of the Court

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the admission of evidence of a similar character. Additionally, “[s]tatements elicited by a defendant on cross-examination are, even if error, invited error, by which a defendant cannot be prejudiced as a matter of law,” and a defendant who invites error has waived his right to all appellate review concerning the invited error, including plain error review.

State v. Steen, 226 N.C. App. 568, 575-76, 739 S.E.2d 869, 875 (2013) (quoting State
v. Gobal, 186 N.C. App. 308, 319, 651 S.E.2d 279, 287 (2007)) (other quotations
omitted). We conclude that because defendant expressly requested that the trial
court either exclude all evidence pertaining to gangs, or in the alternative, allow
cross-examination on the subject, that any error in the admission of such evidence
was invited. Consequently, defendant is not entitled to relief based on this argument.
Ineffective Assistance of Counsel
Defendant also argues that he received ineffective assistance of counsel, on the
grounds that his trial counsel’s failure to object to the introduction of testimony about
street gangs was an error establishing that his counsel’s performance was below the
objective standard of reasonableness, and that there is a reasonable probability that,
absent this error, defendant would not have been convicted. We conclude that
defendant has failed to establish that he received ineffective assistance of counsel,
and that he is not entitled to relief on this basis.
We address a defendant’s claim of ineffective assistance of counsel by applying
the standards set out in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674

Opinion of the Court

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(1984). To successfully assert an ineffective assistance of counsel claim, a defendant
must satisfy a two-prong test:
“First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. 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.”

State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985) (emphasis omitted)
(quoting Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693). “To demonstrate prejudice
when raising an ineffective assistance of counsel claim, defendant must show that
based on the totality of the evidence there is ‘a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.’ ” State v. Phillips, 365 N.C. 103, 144-45, 711 S.E.2d 122, 151 (2011)
(quoting Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698).
“On appeal, this Court reviews whether a defendant was denied effective
assistance of counsel de novo.” State v. Wilson, 236 N.C. App. 472, 475, 762 S.E.2d
894, 896 (2014) (citation omitted). The determination of whether a claim of ineffective
assistance of counsel may be addressed on direct appeal is analyzed as follows:
“[Ineffective assistance of counsel] claims brought on direct review will be decided on the merits when the cold record reveals that no further investigation is required, i.e., claims that may be developed and argued without such

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ancillary procedures as the appointment of investigators or an evidentiary hearing.” Therefore, on direct appeal we must determine if these ineffective assistance of counsel claims have been prematurely brought. If so, we must “dismiss those claims without prejudice to the defendant’s right to reassert them during a subsequent [motion for appropriate relief] proceeding.”

State v. al-Bayyinah, 359 N.C. 741, 752, 616 S.E.2d 500, 509 (2005) (quoting State v.
Fair, 354 N.C. 131, 166, 557 S.E.2d 500, 524 (2001)) (other citations omitted). In the
present case, defendant’s appellate counsel “respectfully maintains that the record is
more than adequately developed for this Court to decide the case on this issue.” We
agree with defendant and will next proceed to evaluate defendant’s claim of
ineffective assistance of counsel.
Defendant’s claim that he received ineffective assistance of counsel is based
solely upon his trial counsel’s failure to object to the introduction of evidence related
to street gangs. Defendant’s appellate counsel contends that “there could be no
strategic reason” for defense counsel’s choice not to object, and that counsel “can think
of no reason why” defendant’s trial counsel would not have objected to the prosecutor’s
questioning of Mr. Williams on gang-related issues. However, the record clearly
establishes that defendant’s trial counsel “posit[ed] that the shooting of the victim
Keith Williams may have been gang related,” and that counsel was willing to accede
to the prosecutor’s introduction of evidence about gangs, provided that the defendant
could cross-examine witnesses on the same subject. As discussed above, defendant’s

Opinion of the Court

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trial counsel pursued a trial strategy focused on Mr. Williams’s own criminal record
and gang connections, the fact that Mr. Williams was shot a second time when
defendant was incarcerated, and the connection between the location where the gun
was found and the gang with which Mr. Williams was associated. Defense counsel
argued in closing that the State’s prosecution of defendant reflected law enforcement
officers’ “tunnel vision” and the State’s failure to explore other possible culprits. We
conclude that defendant’s trial counsel’s decisions regarding the admission of
evidence about street gangs were part of an intentional trial strategy. Thus:
The defendant’s complaint about counsel’s [failure to object to testimony about street gangs] is in effect a request to this Court to second-guess his counsel’s trial strategy. This we decline to do. . . . Trial counsel are necessarily given wide latitude in these matters. Ineffective assistance of counsel claims are not intended to promote judicial secondguessing on questions of strategy as basic as the handling of a witness. We ordinarily do not consider it to be the function of an appellate court to second-guess counsel’s tactical decisions[.]

State v. Lowery, 318 N.C. 54, 68, 347 S.E.2d 729, 739 (1986) (internal quotation
omitted)). We conclude that defendant has failed to establish that his trial counsel’s
pursuit of a trial strategy that included consideration of the role of street gangs in
Mr. Williams’s shooting constituted ineffective assistance of counsel.

Outcome: For the reasons discussed above, we conclude that defendant has failed to
establish that the trial court erred by allowing the introduction of evidence pertaining to gangs, or that defendant’s trial counsel’s treatment of this issue constituted ineffective assistance of counsel. We further conclude that defendant had a fair trial, free of reversible error.

Plaintiff's Experts:

Defendant's Experts:


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