An unpublished opinion of the North Carolina Court of Appeals does not constitute 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

v.

Durham County

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 
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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 
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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.
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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 

 

1Mr. Clay later identified Marcus Wilder as the second 

assailant.
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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 
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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.
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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 
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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
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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 
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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 
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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 
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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 
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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 crossexamination 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 
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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).