An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                               NO. COA12-1109
                       NORTH CAROLINA COURT OF APPEALS

                             Filed: 4 February 2014


STATE OF NORTH CAROLINA

       v.                                     Edgecombe County
                                              No. 10 CRS 52611
                                              No. 10 CRS 52613
ROGER BENJOUR ARMSTRONG and
DOMINIQUE ANTWON RANDOLPH



       Appeal   by   defendants       from   judgments    entered     15    February

2012   by   Judge    Clifton     W.    Everett,    Jr.   in   Edgecombe       County

Superior Court.       Heard in the Court of Appeals 14 March 2013.


       Roy Cooper, Attorney General, by William                  P.     Hart,      Jr.,
       Assistant Attorney General, for the State.

       Staples Hughes, Appellate Defender, by Benjamin Dowling-
       Sendor,   Assistant  Appellate Defender, for   defendant-
       appellant Armstrong.

       W. Michael Spivey for defendant-appellant Randolph.


       STEELMAN, Judge.


       Defendants failed to show plain error with regard to the

trial court’s jury instructions.             The trial court’s questions to

witnesses during the presentation of evidence did not constitute

an   improper     expression     of    opinion    concerning      the      guilt    of
                                        -2-
defendants.       Where the record on appeal was insufficient for us

to    determine     whether     ineffective     assistance      of    counsel     had

occurred, defendant Randolph’s ineffective assistance of counsel

claim is dismissed without prejudice.

                   I. Factual and Procedural Background

      On   22   June    2010,    two   men    broke    into    the    residence    of

Haywood Gaines and Nicole Sheffield on Planter Street in Rocky

Mount.     Gaines and Sheffield identified the defendants in court

as being Roger Armstrong and Dominique Randolph (defendants).

Upon breaking into the residence, defendants assaulted Gaines

and   Sheffield,       and   robbed    them     of    $200    and    an   ATM   card.

Randolph touched Sheffield between her legs, and threatened to

rape her.       Photographs from an automatic teller machine showed

defendant Armstrong attempting to use Gaines’ ATM card about 45

minutes after the robbery.

      At   trial,      Armstrong’s     former    girlfriend,        Kenya   Tillery,

testified that on the date of the robbery, Armstrong was with

her in a motel room, but left.                When he returned, he told her

that he had gone to Planter Street, and had hit two people with

a gun.     He also stated that it was Randolph who had driven him

to Planter Street and then back to the motel.
                                          -3-
      Armstrong was       indicted for          one count of robbery with a

dangerous weapon, one count of first-degree burglary, one count

of financial transaction card theft, and one count of unlawfully

obtaining a credit card.            He was also indicted for two counts of

assault with a deadly weapon inflicting serious injury, one for

Gaines and one for Sheffield.                   Randolph was indicted for one

count of robbery with a dangerous weapon, one count of first-

degree burglary, and the sexual battery of Sheffield.

      On 13 February 2012, Armstrong pled guilty to one count of

unlawfully obtaining a credit card.                On 15 February 2012, a jury

found    Armstrong     guilty       of   robbery    with    a   dangerous     weapon,

first-degree burglary, financial transaction card theft, assault

with a deadly weapon inflicting serious injury (as to Gaines),

and assault with a deadly weapon (as to Sheffield).                         The jury

found Randolph guilty of robbery with a dangerous weapon and

first-degree burglary.            Randolph was found not guilty of sexual

battery.     As to Armstrong, the trial court arrested judgment on

the     conviction     for     financial        transaction      card    theft    and

unlawfully      obtaining     a     credit     card.    The     trial    court   then

imposed two consecutive active sentences upon Armstrong of 73-97

months    for   robbery      with    a   dangerous     weapon    and    first-degree

burglary.            Armstrong’s         two      assault       convictions      were
                                -4-
consolidated, and a third consecutive active sentence of 23-37

months was imposed.      The trial court imposed two consecutive

active sentences upon Randolph of 73-97 months for robbery with

a dangerous weapon and first-degree burglary.

    Defendants appeal.

              II. Separate Determinations of Guilt

    In their first argument, defendants contend that the trial

court committed plain error in failing to instruct the jurors to

determine the guilt or innocence of defendants Armstrong and

Randolph separately.   We disagree.

                       A. Standard of Review

         [T]he plain error rule ... is always to be
         applied   cautiously   and    only   in  the
         exceptional case where, after reviewing the
         entire record, it can be said the claimed
         error is a “fundamental error, something so
         basic, so prejudicial, so lacking in its
         elements that justice cannot have been
         done,” or “where [the error] is grave error
         which amounts to a denial of a fundamental
         right of the accused,” or the error has
         “’resulted in a miscarriage of justice or in
         the denial to appellant of a fair trial’” or
         where the error is such as to “seriously
         affect the fairness, integrity or public
         reputation of judicial proceedings” or where
         it can be fairly said “the instructional
         mistake had a probable impact on the jury's
         finding that the defendant was guilty.”
                                          -5-
    State v. Lawrence, 365 N.C. 506, 516-17, 723 S.E.2d 326,

333 (2012) (quoting State v. Odom, 307 N.C. 655, 660, 300 S.E.2d

375, 378 (1983)).

    “On appeal, this Court reviews a jury charge contextually

as a whole, ‘and when so considered if it presents the law of

the case in such manner as to leave no reasonable cause to

believe the jury was misled or misinformed, we will not sustain

an exception for that the instruction might have been better

stated.’”       Progress Energy Carolinas, Inc. v. Strickland, 200

N.C. App. 600, 602, 685 S.E.2d 521, 524 (2009) (quoting Jones v.

Satterfield Dev. Co., 16 N.C. App. 80, 86–87, 191 S.E.2d 435,

439–40, cert. denied, 282 N.C. 304, 192 S.E.2d 194 (1972)).

                                    B. Analysis

    In the instant case, the charges against defendants were

consolidated for trial.         Defendants contend that the trial court

impermissibly     implied      in   its    mandate     to     the   jury   that    one

defendant     could     not    be    found       guilty       unless   both      were.

Defendants contend that this was plain error.

    In    its    jury    instructions,          the   trial    court    listed    the

charges     against     each   defendant        individually.          However,     in

several instances, the court also referred to the defendants

collectively.     In the beginning of its jury instructions:
                               -6-
         In this case, the defendants, Mr. Armstrong
         and Mr. Randolph, have entered pleas of not
         guilty to these charges. The fact that they
         have been charged is no evidence of guilty.
         [sic]   Under our system of justice when a
         defendant pleads not guilty, he is not
         required to prove his innocence.     He is
         presumed to be innocent.    The state must
         prove to you that the defendants are guilty
         beyond a reasonable doubt.

    (Emphasis added)    With respect to its instructions on the

crimes common to both defendants:

         Now, with respect to the charges of robbery
         with a dangerous weapon and first-degree
         burglary on Mr. Armstrong in 10-CRS-52611
         and 10-CRS-52613 that’s Mr. Randolph guilty
         of robbery with a dangerous weapon or not
         guilty or guilty of first-degree burglary or
         not guilty.    I’m going to give you the
         instructions   on   both    –-   and   these
         instructions apply to both defendants on
         these two charges.  You all understand that
         now.

         The instructions I’m going to give you I’m
         going to give it to you one time.     It’s
         going to apply to both defendants.

    (Emphasis added)    With respect to its instructions on the

elements of robbery with a dangerous weapon:

         The   defendants,  Mr. Armstrong and Mr.
         Randolph, have been charged with robbery
         with a firearm . . .

         The first element [is] that the defendants
         took property . . .

         Secondly, that the defendants carried away
         the property. . . .
                               -7-


          Four, that the defendants knew they were not
          entitled to take the property. . . .

          Fifth, that at the time of the taking, the
          defendants intended to deprive the person of
          its use permanently. . . .

          Sixth, that the defendants had a firearm in
          their possession at the time they obtained
          the property. . . .

          And, seventh, that the defendants obtained
          the property by endangering or threatening
          the life of that person with the firearm.

     (Emphasis added)   Finally, with respect to its instructions

on the elements of first-degree burglary1:

          These instructions will apply equally to
          both   of  these   defendants. Now,   the
          defendants have been charged with first-
          degree burglary . . .

          Now, for you to find the defendants guilty
          of this charge, the state must prove six
          things . . .

          First, that there was a breaking and
          entering by the defendants or someone with
          whom they were acting in concert. . . .

          And, sixth, that at the time of the breaking
          and entering, the defendants or someone with
          whom they were acting in concert intended to
          commit armed robbery.

1
  We note that the trial court made reference to the doctrine of
acting in concert in its instructions.    The doctrine of acting
in concert, however, is designed to impose principal liability
on a secondary actor in a crime.      In the instant case, both
defendants were charged as principal actors; as such, the acting
in concert doctrine was not appropriately applied.
                                               -8-


      (Emphasis       added)            At      one    point       during      the        jury

instructions,       counsel       for     defendant       Randolph     observed       that,

during     the     instructions         on     assault,     the     trial     court       made

reference to “they” when only one defendant was charged with

that crime.        The court corrected this instruction to the jury.

The   jury       returned        separate        verdict     sheets      against          each

defendant.

      Defendants contend that the court repeatedly referred to

defendants collectively, thus improperly influencing the jury to

require    that     both    be    found      guilty.        Defendants      cite     to    our

decision in State v. Adams in support of this argument.                                     In

Adams, two defendants were found guilty of two counts each of

attempted first-degree murder and assault with a deadly weapon

with intent to kill inflicting serious injury.                        State v. Adams,

212 N.C. App. 413, 414, 711 S.E.2d 770, 771 (2011).                            The trial

court, in its instructions to the jury, repeatedly referred to

the defendants collectively, with statements like “to find the

defendants       guilty[,]”        “each        of    the    defendants        had        this

intent[,]” and “the defendants did not act in self-defense[.]”

Id.   at    416,     711    S.E.2d        at     772-73.          Reviewing    the        jury

instructions for plain error, we concluded that:

             The     jury        instructions         reproduced       above
                                              -9-
              impermissibly grouped defendants together in
              presenting the charges, the issues, and
              defendants   to   the    jury.   Given    that
              conflicting evidence was presented as to the
              order in which weapons were drawn and what
              role generally each defendant played in the
              incident, this confusion likely had an
              effect   on  the   jury's   verdict.   As   in
              McCollum, “we are unable to say here, as we
              have said in other cases, that we are
              ‘convinced that the jurors were not misled
              by the portion of the charge to which
              defendants except.’” 321 N.C. at 560, 364
              S.E.2d at 113.

Id.   at    418,    711    S.E.2d      at   773.      We     therefore    reversed      and

remanded for a new trial as to both defendants.

      In the instant case, any such error was ameliorated by the

trial court’s further instructions.                     Although the trial court

referred     to    defendants       collectively        in    some    places,    it    also

referred to them separately.                 For example, in its charge to the

jury, the trial court listed the charges against each defendant

separately.         Further,      in    its    subsequent      instructions       to    the

jury,      although   it     defined        each    charge    as     applying   to     both

defendants, the trial court reminded the jury that each offense

was   a    separate       count   on    a    separate      verdict     sheet    for    each

defendant.         Additionally, when counsel for defendant Randolph

indicated that the trial court had erroneously instructed the

jury that both defendants were subject to the assault with a

deadly weapon charge, the trial court corrected itself in its
                                            -10-
instructions.           Where     a    trial       court     issues       an    erroneous

instruction,       this   error       may   be     ameliorated      by    a    corrective

instruction.

      Viewing the jury instructions contextually, as a whole, we

hold that each of the two defendants has failed to demonstrate

that any error upon the part of the trial court had a probable

impact on the jury’s determination of guilt.

      This argument is without merit.

        III. Alleged Breach of Impartiality by the Trial Court

      In their second argument, defendants contend that the trial

court      erred   in     making       repeated      statements          and    questions

conveying to the jury an opinion that defendants were guilty of

the crimes with which they were charged.                    We disagree.

                            A. Standard of Review

      The question of whether statements by a trial court during

a trial violate the court’s duty of impartiality is preserved as

a   matter    of   law,   regardless         of    whether    a   defendant       objects

during the trial.         State v. Duke, 360 N.C. 110, 123, 623 S.E.2d

11,   20    (2005),     cert.   denied,       549    U.S.    855,     166      L.Ed.2d   96

(2006); State v. Young, 324 N.C. 489, 494, 380 S.E.2d 94, 97

(1989).      Whether the statements deprive the defendant of a fair

trial is “determined by what is said and its probable impact
                                      -11-
upon the jury in light of all attendant circumstances.”                   State

v. Burke, 342 N.C. 113, 122-23, 463 S.E.2d 212, 218 (1995).

                                B. Analysis

      Defendants     contend   that    the   trial   court   erred   in    its

questions and statements to witnesses and in its instructions to

the jury, which defendants allege implied that defendants were

guilty of the offenses charged.         We disagree.

      At several points during the examination of witnesses, the

court asked questions of witnesses, or made statements, in order

to clarify testimony.      Such questions are within the discretion

of the trial court.       See State v. Smarr, 146 N.C. App. 44, 49,

551 S.E.2d 881, 884 (2001), disc. review denied, 355 N.C. 291,

561   S.E.2d   500   (2002).     During      the   State’s   examination    of

Gaines, the following exchange took place:

           THE COURT: What date was this?

           Q. Do you recall it being in June of 2010,
           Mr. Gaines?

           A. Yes.

           Q. Do you remember the specific date?

           A. No, I don't.

           THE COURT: June what?

           THE STATE: Judge, the indictment reads 6-22
           of 2010.
                        -12-


THE COURT: Well, he said June, okay.          June
of 2010.

A. The 22nd.

THE COURT: Go ahead.

. . .

THE COURT:     Roger   what's   his   name?   Roger
who?

MR. WIGGINS: Objection to the use of the
name,   your Honor,  without any  further
description.

THE COURT: Sir.

A. He the one there.

MR. WIGGINS: Objection to the use of the
defendant's   name   without any  further
description or foundation.

THE COURT: All right. Well, what's Roger's
name?

A. Roger Benjour Armstrong.

THE COURT: Roger Armstrong, okay. Go ahead.

A. He came in, pistol whipped me about ten
to fifteen times.

THE COURT: How do -- wait a minute. How do
you know him?

A. I don't know.

THE COURT: You don't know him.

A. I don't know him.
                    -13-
THE COURT: You've never seen him before.


A. Never seen him before. But come to find
out, he has a cousin that stays directly
behind me.

MR. WIGGINS: Well, objection      to   what   he
found out, your Honor.

THE COURT: No, no, no, no, don't get into
that.

A. I never seen the guy before.

THE COURT: All right, Mr. Wolfe, you need to
flush that out.

. . .

THE COURT: Which one is the fellow you refer
to as Roger Armstrong?

A. The light-skin one.

THE COURT: Where is he? Is he here today?

A. Right there. (pointing.)

THE COURT: Where is he seated?

A. Right beside his lawyer.

THE COURT: What's he got on?

A. Multi-colored shirt, Levi jeans, shoes.

THE COURT: All right. Let the record reflect
that he's identified the defendant, Roger
Armstrong. Go ahead.

. . .

THE COURT: What did he say?
                                   -14-


            A. He didn't say anything. He just went
            straight to the back room, just ransacking
            the place. As Roger was asking –

            THE COURT: Where       is   he?   Is   he    in   the
            courtroom today?

            A. Yes, he is.

            THE COURT: Where is he?

            A. To the far room, white tie.

            THE COURT: Wearing a white tie, sitting next
            to Mr. Wiggins.

            A. Yes.

            THE COURT: That's Dominique who?

            A. Randolph.

            THE COURT: Okay.

            Q. Does that mean, then, Mr. Gaines, that
            the   defendant,   Roger   Armstrong,   began
            hitting you and the defendant, Dominique
            Randolph, went to another part of the house.

            A. Right.

            THE COURT: Let the record reflect he's
            identified    the     defendant,    Dominique
            Randolph, as the other individual. Go ahead.

    We find this interaction illustrative of those to which

defendants object.      Defendants contend that this excerpt, taken

alongside   the   others,    constituted   the   trial   court      improperly

conveying an opinion that defendants were guilty of the offenses
                                           -15-
charged.       Viewing    the     record          under        the     totality          of   the

circumstances, we do not agree.                   The trial court’s exercise of

its discretionary power to clarify the testimony of witnesses

was proper.

      Defendants     further     contend          that       the    trial    court’s          jury

instructions,       in   implying         that     defendants           acted         together,

similarly     constituted       an        improper           expression          of    opinion.

Defendants’    contentions      are       based     upon       their       first      argument,

that the trial court conflated the defendants.                          We hold that the

trial    court’s    conflation       of    defendants          was     not       plain    error,

under the totality of the circumstances.                           We further hold that

the trial court’s charge to the jury did not express any opinion

as to the guilt of either defendant.

      This argument is without merit.

                   IV. Ineffective Assistance of Counsel

      In his third argument, defendant Randolph contends that he

was     deprived    of   his    Sixth        Amendment             right     to       effective

assistance    of     counsel.         We     dismiss          this     argument          without

prejudice    to    defendant’s       filing       of     a    motion       for    appropriate

relief with the trial court.

                           A. Standard of Review

            Our   Supreme Court  has  instructed that
            “should the reviewing court determine the
                                      -16-
               IAC claims have been prematurely asserted on
               direct appeal, it shall dismiss those claims
               without prejudice to the defendant's rights
               to reassert them during a subsequent MAR
               proceeding.” Fair at 167, 557 S.E.2d at 525.
               In order to determine whether a defendant is
               in a position to adequately raise an
               ineffective assistance of counsel claim, we
               stress this Court is limited to reviewing
               this assignment of error only on the record
               before   us,    without   the   benefit   of
               “information provided by defendant to trial
               counsel, as well as defendant's thoughts,
               concerns, and demeanor[,]” Buckner at 412,
               527 S.E.2d at 314, that could be provided in
               a full evidentiary hearing on a motion for
               appropriate relief.

State v. Stroud, 147 N.C. App. 549, 554-55, 557 S.E.2d 544, 547

(2001).

               To prevail on a claim of ineffective
               assistance of counsel, a defendant must
               first show that his counsel’s performance
               was   deficient   and   then   that  counsel’s
               deficient    performance     prejudiced    his
               defense.   Deficient    performance   may   be
               established   by    showing    that  counsel’s
               representation   fell    below    an objective
               standard of reasonableness. Generally, to
               establish prejudice, a defendant must show
               that there is a reasonable probability that,
               but for counsel’s unprofessional errors, the
               result of the proceeding would have been
               different. A reasonable probability is a
               probability     sufficient      to   undermine
               confidence in the outcome.

State     v.    Allen,   360   N.C.   297,   316,   626   S.E.2d   271,   286

(citations and quotation marks omitted), cert. denied, 549 U.S.

867, 166 L. Ed. 2d 116 (2006).
                                              -17-
                                        B. Analysis

       Defendant Randolph contends that                       he received         ineffective

assistance of counsel (IAC) in violation of his Sixth Amendment

rights.

       When    an     IAC     claim      is      brought      on    direct       appeal,   our

preliminary         inquiry     is      whether        this    Court       has     sufficient

information to determine the claim, or whether that claim should

be dismissed without prejudice so that the appellant may file it

as a Motion for Appropriate Relief with the trial court.                                Stroud

at 554-55, 557 S.E.2d at 547.

       In the instant case, defendant Randolph contends that the

trial   court’s       denial       of      his      attorney’s      motion       to   suppress

evidence,     coupled       with     his      attorney’s       alleged     elicitation      of

evidence      linking       defendant         to     the   crime     scene,       constituted

ineffective assistance of counsel.                     We hold, however, that there

is insufficient evidence in the record before us to determine

IAC.    Accordingly, we dismiss this portion of Randolph’s appeal

without prejudice.

                                        V. Conclusion

       The    trial     court        did      not     commit       plain   error      in   its

instructions to the jury with regard to the two defendants.                                The

trial court did not violate its duty of impartiality with regard
                              -18-
to the guilt of the two defendants.        Defendant Randolph’s IAC

argument is dismissed without prejudice.

    NO ERROR.

    Judges ELMORE and STROUD concur.

    Report per Rule 30(e).
