An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1459
                        NORTH CAROLINA COURT OF APPEALS
                              Filed:     19 August 2014

STATE OF NORTH CAROLINA

                                               Durham County
      v.
                                               Nos. 11 CRS 55324, 55331

DEANDRE GRAHAM


      Appeal by defendant from judgments entered 24 July 2013 by

Judge Carl Fox in Durham County Superior Court.                     Heard in the

Court of Appeals 4 August 2014.


      Attorney General Roy Cooper, by Special Deputy                      Attorney
      General Aimee Escueta Margolis, for the State.

      Reece & Reece, by Michael J. Reece for defendant-appellant.


      ERVIN, Judge.


      Defendant Deandre Graham appeals from judgments imposing

active      sentences    of     imprisonment    upon    him     based   upon    his

convictions for assault with a deadly weapon inflicting serious

injury, robbery with a dangerous weapon, conspiracy to commit

robbery with a dangerous weapon, and possession of a firearm by

a convicted felon.        On appeal, Defendant contends that the trial

court      committed    plain    error    by   allowing       the   admission     of
                                                -2-
evidence     that      the     victim          had    heard     “on    the   street”     that

Defendant     was      one    of    the    individuals          who    had   assaulted     and

robbed      him   and        that    he    is        entitled    to     relief    from     his

convictions       on    ineffective            assistance       of    counsel    grounds    in

light of the failure of his trial counsel to object to the

admission of the victim’s testimony to the effect that he had

heard “on the street” that Defendant was the individual who had

robbed him, to request the trial court to deliver an appropriate

limiting instruction applicable to that testimony, and asking

the alleged victim additional questions about this subject on

cross-examination.             After careful consideration of Defendant’s

challenges to the trial court’s judgments in light of the record

and   the    applicable        law,       we    conclude      that     the   trial   court’s

judgments should remain undisturbed.

                                I. Factual Background

                                   A. Substantive Facts

      After working all day on 14 May 2011, Terence Clay stopped

by his girlfriend’s apartment before meeting some friends at a

bar at 1:00 a.m.              After leaving the bar at approximately 2:30

a.m., Mr. Clay drove to a McDonald’s restaurant to get something

to eat before returning to his girlfriend’s apartment.                                 As he

left the restaurant, he noticed a Jeep Cherokee                                 with tinted

windows following him.               The Jeep Cherokee was still behind him
                                    -3-
when he reached the parking lot associated with his girlfriend’s

apartment complex.

    As Mr. Clay backed his car into a parking space, the Jeep

Cherokee “rode in front of [him] and went out [of] the parking

lot and made a right onto the main road.”         Two men, both of whom

brandished    handguns,   emerged   from   the   Jeep   Cherokee   and   ran

toward him.     One of the men, whom Mr. Clay later identified as

Defendant, confronted Mr. Clay at his open car door while the

second man waited by the trunk.            As he stood “[d]irectly in

front of” Mr. Clay at a distance of about an arm’s length,

Defendant “kept saying, ‘we want this car, give us this car, we

want this car.’”      In light of this set of circumstances, Mr.

Clay surrendered his car keys, wallet, and phone.

    After obtaining control of Mr. Clay’s car keys, wallet, and

phone, Defendant struck Mr. Clay twice in the head with the gun

before shooting him as he lay on the ground.            As a result of the

fact that his assailant was having difficulty starting the car,

Mr. Clay had to tell him how to do that.         At about the time that

his assailant managed to get the car started, Mr. Clay saw the

second armed man “r[u]n back up the sidewalk and g[e]t in the

truck[,]” which drove away from the apartment complex along with

Mr. Clay’s vehicle.
                                         -4-
     Mr. Clay remained on the ground until the armed men left.

After    their     departure,      Mr.   Clay       walked    to   his     girlfriend’s

apartment and told her to call the police.                     At the time that he

talked with investigating officers, Mr. Clay did not appear to

be impaired.          Paramedics transported Mr. Clay to the hospital,

where he remained for two weeks.                     At the hospital, attending

physicians       removed    portions     of     Mr.    Clay’s      large     and    small

intestines and liver that had been damaged as the result of the

gunshot wound that had been inflicted upon him.

     Mr. Clay, who is six feet tall, told investigating officers

that the individual who shot him was “[s]horter than me” and had

“dark skin with a close cut”                  and    that he would         be able to

identify the person if he saw him again.                     Mr. Clay described the

second     armed      individual    as   “tall,       slender[ly]        buil[t],       and

[having] single plaits.”             Although Mr. Clay believed he would

also be able to identify the second armed individual if he saw

him again, he acknowledged that he “got a better look at” the

individual who shot him given that he had been closer to that

person.1

     After       “asking       around[,]”      Mr.    Clay      viewed      Defendant’s

photograph       on    Facebook    and   “immediately”          recognized        him   as

“[t]he guy that shot me.”            On 15 June 2011, Mr. Clay identified
     1
      Mr. Clay         later    identified      Marcus       Wilder   as    the    second
assailant.
                                         -5-
Defendant as the individual who had shot him after viewing                        a

photographic       array    prepared     by    investigating    officers.        In

addition, Mr. Clay positively identified Defendant in open court

as the man who had stolen his car and shot him on 15 May 2011.

                            B. Procedural History

    On 16 June 2011, a warrant for arrest charging Defendant

with possession of a firearm by a convicted felon, assault with

a deadly weapon, and conspiring with Mr. Wilder to rob Mr. Clay

using a dangerous weapon was issued.                    On 18 July 2011, the

Durham County grand jury returned bills of indictment charging

Defendant with robbery with a dangerous weapon, assault with a

deadly weapon with the intent to kill inflicting serious injury,

conspiring with Mr. Wilder to commit robbery with a dangerous

weapon, and possession of a firearm by a convicted felon.

    The charges against Defendant came on for trial before the

trial court and a jury at the 22 July 2013 criminal session of

the Durham County Superior Court.                On 22 July 2013, the trial

court allowed the State’s motions to amend the conspiracy to

commit    robbery    with    a   dangerous     weapon    and   possession   of   a

firearm   by   a    convicted    felon    indictments     to   correct   certain

errors.    On 24 July 2013, the jury returned verdicts convicting

Defendant of robbery with a dangerous weapon, assault with a

deadly weapon inflicting serious injury, conspiracy to commit
                                                  -6-
robbery with a dangerous weapon, and possession of a firearm by

a convicted felon.               At the conclusion of the ensuing sentencing

hearing, the trial court entered judgments sentencing Defendant

to   a    term      of    97    to    126   months      imprisonment         based   upon   his

consolidated convictions for robbery with a dangerous weapon and

conspiracy to commit robbery with a dangerous weapon and to a

consecutive term of 38 to 55 months imprisonment based upon his

consolidated         convictions            for    assault       with    a    deadly     weapon

inflicting       serious         injury      and    possession      of    a   firearm     by   a

convicted felon.                Defendant noted an appeal to this Court from

the trial court’s judgments.

                            II. Substantive Legal Analysis

                           A. “Word on the Street” Evidence

         In   his    first       challenge         to   the   trial      court’s     judgment,

Defendant contends that the trial court committed plain error by

allowing      Mr.        Clay    to   testify       that   the    “word      on   the   street”

indicated that one of his                     assailants was named “D-Block” or

“Deandre Graham.”                More specifically, Defendant contends that

the admission of evidence to the effect that “the ‘word on the

street’” indicated that Defendant had been one of Mr. Clay’s

assailants “was clearly hearsay.”                          We do not find Defendant’s

argument persuasive.
                                     -7-
      As Defendant candidly concedes, he did not object at trial

to the introduction of the evidence that he has challenged in

this portion of his brief before this Court.              As a result, we

are limited to reviewing Defendant’s challenge to the admission

of the challenged evidence for “plain error.”              N.C.R. App. P.

10(a)(4) (stating that, “[i]n criminal cases, an issue that was

not preserved by objection noted at trial and that is not deemed

preserved by rule or law without any such action nevertheless

may be made the basis of an issue presented on appeal when the

judicial   action    in   question   is    specifically   and   distinctly

contended to amount to plain error”).

           For error to constitute plain error, a
           defendant    must    demonstrate   that    a
           fundamental error occurred at trial.      To
           show that an error was fundamental, a
           defendant must establish prejudice — that,
           after examination of the entire record, the
           error had a probable impact on the jury’s
           finding that the defendant was guilty. . .
           .   In other words, the inquiry is whether
           the defendant has shown that, absent the
           error, the jury probably would have returned
           a different verdict.

State v. Carter, 366 N.C. 496, 500, 739 S.E.2d 548, 551 (2013)

(quotations omitted).      We do not believe that the admission of

the   challenged    evidence   constituted     error,   much    less   plain

error.

           The North Carolina Rules of Evidence define
           hearsay as “a statement, other than one made
           by the declarant while testifying at the
                                       -8-
            trial or hearing, offered in evidence to
            prove the truth of the matter asserted.”
            However, out-of-court statements offered for
            purposes other than to prove the truth of
            the matter asserted are not considered
            hearsay.      This   Court  has    held that
            statements of one person to another to
            explain subsequent actions taken by the
            person to whom the statement was made are
            admissible as nonhearsay evidence.

State v. Call, 349 N.C. 382, 409, 508 S.E.2d 496, 513 (1998)

(quoting N.C. Gen. Stat. § 8C-1, Rule 801(c) (1988)).             According

to Mr. Clay, “[o]nce I got a name, I tried to put a name with

the face.        . . .    I got, I guess, [the shooter’s] government

name, and I went on [F]acebook and tried to look him up.”                 As

soon   as   he    saw    Defendant’s   picture   on   Facebook,   Mr.    Clay

“immediately” recognized him as “[t]he guy that shot me” and

communicated that information to investigating officers.                Thus,

when considered in context, Mr. Clay’s testimony to the effect

that the “word on the street” indicated that Defendant had been

one of his assailants was admissible, not for the purpose of

showing the truth of the matter asserted, but to explain his

decision to look at Defendant’s photograph on Facebook.                 As a

result, the trial court did not err by allowing the admission of

Mr. Clay’s testimony to the effect that “word on the street”

indicated that Defendant had been one of his assailants.

                   B. Ineffective Assistance of Counsel
                                        -9-
    Secondly,          Defendant        contends         that      he        received

constitutionally       deficient        representation          from       his     trial

counsel.    More specifically, Defendant contends that the failure

of his trial counsel to object to the admission of Mr. Clay’s

testimony that the “word on the street” indicated that Defendant

was one of his assailants, to request an appropriate limiting

instruction applicable to that testimony, and to ask Mr. Clay

additional questions concerning this subject deprived him of his

right to the effective assistance of counsel.                    Defendant is not

entitled to relief on the basis of these contentions.

    In     reviewing     allegations      of     ineffective       assistance         of

counsel,   this    Court   employs      the    two-part    test    enunciated         in

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.

Ed. 2d 674 (1984), and adopted for state constitutional purposes

in State v. Braswell, 312 N.C. 553, 562-63, 324 S.E.2d 241, 248

(1985).       As   a   result,     in    order     to    assert        a   successful

ineffective    assistance    of    counsel      claim,    Defendant         must    show

that (1) his counsel’s performance fell “‘below an objective

standard of reasonableness[,]’” and (2) “there is ‘a reasonable

probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.’”                        State v.

Waring, 364 N.C. 443, 502, 701 S.E.2d 615, 652 (2010) (quoting

Strickland, 466 U.S. at 688, 694, 104 S. Ct. at 2064, 2068, 80
                                           -10-
L. Ed. 2d at 693, 698), cert denied, __ U.S. __, 132 S. Ct. 132,

181 L. Ed. 2d 53 (2011).            We “need not determine whether counsel

made errors if the record does not show a reasonable probability

that a different verdict would have been reached in the absence

of counsel’s deficient performance.”                  State v. Banks, 163 N.C.

App. 31, 36, 591 S.E.2d 917, 921 (citing Braswell, 312 N.C. at

563, 324 S.E.2d at 248-49), disc. review denied, 358 N.C. 377,

597 S.E.2d 767 (2004).

      An   ineffective       assistance       of    counsel    claim    asserted     on

direct appeal, such as the claim at issue here, may “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 ancillary procedures as the appointment

of investigators or an evidentiary hearing.”                    State v. Fair, 354

N.C. 131, 166, 557 S.E.2d 500, 524 (2001), cert. denied, 535

U.S. 1114, 122 S. Ct. 2332, 153 L. Ed. 2d 162 (2002).                              As a

result     of   our     inability     to      see    how      further   evidentiary

development     would    in    any    way    affect    our     evaluation     of    the

validity of the ineffective assistance of counsel claim that

Defendant has advanced in this case, we will proceed to address

Defendant’s ineffectiveness claim on the merits.

      As noted above, the challenged testimony was admissible to

explain Mr. Clay’s decision to look at Defendant’s picture on
                                        -11-
Facebook and did not, for that reason, constitute inadmissible

hearsay.    Call, 349 N.C. at 409, 508 S.E.2d at 513.                        As a result

of the fact that the failure to raise a futile objection does

not reflect the provision of deficient representation and could

not have prejudiced Defendant, Defendant cannot show that the

failure of his trial counsel to object to the admission of Mr.

Clay’s testimony to the effect that the “word on the street”

indicated      that    Defendant      had     been       one    of     his     assailants

satisfies either prong of the Strickland test.

      Assuming,       without    in   any    way    deciding,        that    Defendant’s

trial counsel should have requested that the trial court deliver

a   limiting      instruction      directing       the    jury       to    refrain     from

considering Mr. Clay’s testimony that “the word on the street”

indicated      that    Defendant      had    been    involved         in     robbing    and

assaulting him for the truth of the matter asserted, we do not

believe    that    there    is    any       reasonable     probability          that    the

delivery of such an instruction would have had any impact on the

jury’s decision to return guilty verdicts in this case.                              As we

have already noted, Mr. Clay positively identified Defendant as

one   of   his    assailants     when   he     looked      at    his       photograph   on

Defendant’s Facebook page, when he examined a photographic array

presented to him by investigating officers, and in open court at

trial.     Although the record establishes that Mr. Clay had worked
                                         -12-
for eleven hours during the day before the assault and robbery

occurred, that he had consumed marijuana and alcoholic beverages

earlier in the evening, that there were inconsistences in Mr.

Clay’s descriptions of the vehicle driven by his assailants in

his pretrial statements to investigating officers and his trial

testimony, and that Mr. Clay’s description of his assailant’s

height    differed     from     Defendant’s       actual      height    by     several

inches, we do not believe that the existence of these latent

questions about the credibility of Mr. Clay’s testimony suffices

to   substantially      undercut      the    strength    of     the    State’s      case

against    Defendant     given    the    consistency       and    clarity      of    his

identification testimony.             As a result, we do not believe that

there     is   any    reasonable       probability      that     the    outcome       at

Defendant’s trial would have been more favorable to Defendant

had his trial counsel requested the delivery of an instruction

precluding     the    jury     from     considering      Defendant’s         testimony

concerning     what    he     heard    “on      the   street”    for    substantive

purposes.

      Finally, we are not persuaded that the decision made by

Defendant’s trial counsel to question Mr. Clay about what he

heard    “on   the    street”    about      Defendant’s     involvement        in    the

assault and robbery prejudiced Defendant.                  On cross-examination,

Mr. Clay testified that he talked to a lot of people as part of
                                              -13-
his effort to ascertain the identity of his assailants, that the

information that Defendant was one of his assailants came from

people     that    he    trusted,       and    that       he    was      not    satisfied       that

Defendant was one of his assailants until he saw Defendant’s

photograph on Facebook.                  The apparent purpose of the                        cross-

examination questions of which Defendant now complains was to

suggest that, instead of having identified Defendant as one of

the perpetrators of the robbery and assault, Mr. Clay was merely

reciting what he heard “on the street.”                             We are at something of

a   loss    to    determine       how    the       decision         of     Defendant’s       trial

counsel     to     ask     this    line       of      questions            materially      harmed

Defendant’s chances for a more favorable outcome at trial.                                      At a

minimum, given that the jury properly heard Mr. Clay testify

concerning what he heard about Defendant’s involvement in the

robbery and assault “on the street” and given the fact that Mr.

Clay     identified       Defendant       as       one         of    the       individuals       who

assaulted        and    robbed    him     at       the     time       that       he    looked     at

Defendant’s       Facebook       page,    when       he    examined           the     photographic

array presented to him by investigating officers, and in open

court,     we     cannot     conclude          that       there          is    any     reasonable

probability that the jury would have returned verdicts that were

more favorable to Defendant had his trial counsel refrained from

asking Mr. Clay additional questions about what he had heard “on
                                     -14-
the street.”       As a result, Defendant is not entitled to any

relief from the trial court’s judgments on the basis of any

aspect of the ineffective assistance of counsel claim that he

has asserted in this case.

                                III. Conclusion

       Thus, for the reasons set forth above, we conclude that

none of Defendant’s challenges to the trial court’s judgments

have   any   merit.    As   a    result,    the   trial   court’s   judgments

should, and hereby are, allowed to remain undisturbed.

       NO ERROR.

       Judges Robert C. HUNTER and STEPHENS concur.

       Report per Rule 30(e).
