              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA17-346

                              Filed: 21 November 2017

Lenoir County, Nos. 14 CRS 51687, 15 CRS 40

STATE OF NORTH CAROLINA, Plaintiff,

             v.

ED LEVAN HARRIS, Defendant.


      Appeal by defendant from judgment entered 23 April 2016 by Judge Charles

H. Henry in Lenoir County Superior Court.        Heard in the Court of Appeals 20

September 2017.


      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.
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                                   Opinion of the Court



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




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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




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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



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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



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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.




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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

living.

          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



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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

matters.

      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


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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


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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


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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

testimony:

             It is well established that the admission of evidence
             without objection waives prior or subsequent objection to


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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



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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



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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 second-
             guessing 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.

                                      Conclusion

      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


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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.

       NO ERROR.

       Judges CALABRIA and MURPHY concur.




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