An unpublished opinion of the North Carolina Court of Appeals does not constitute 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. COA13-967

NORTH CAROLINA COURT OF APPEALS

Filed: 18 February 2014

STATE OF NORTH CAROLINA

v. Alamance County

Nos. 12 CRS 53844

DERRICK LAMONT LEATH 13 CRS 610

Appeal by Defendant from judgment entered 11 April 2013 by 

Judge James E. Hardin, Jr., in Alamance County Superior Court. 

Heard in the Court of Appeals 27 January 2014.

Attorney General Roy Cooper, by Assistant Attorney General 

Robert K. Smith, for the State.

Todd A. Smith for Defendant.

DILLON, Judge.

Derrick Lamont Leath (“Defendant”) appeals from a judgment 

entered upon his conviction for assault with a deadly weapon 

inflicting serious injury (“AWDWISI”) and his guilty plea to

habitual felon status. Because we find substantial evidence of 

Defendant’s use of a deadly weapon to assault his victim and 

further find no constitutionally deficient performance by 
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defense counsel, we hold that Defendant received a fair trial,

free from prejudicial error.

The State’s evidence tended to show that, on the night of 

24 June 2012, Abjul Shields and Quixote Clark were working as 

members of the security team at Club 778 on Graham-Hopedale Road 

in Burlington, North Carolina. Shortly after midnight, Shields

walked to the rear of the club and observed Defendant cursing 

and threatening Clark. When Defendant ignored his request to 

leave, Shields moved between Defendant and Clark and told 

Defendant, “[T]his is not what you want to do.” Defendant threw 

a punch at Shields, striking him on the side of the face. 

Despite landing with “[n]ot too much” force, the blow opened a 

five-inch laceration on Shield’s cheek requiring twenty-nine 

sutures to close. As Defendant ran, Shields entered a restroom 

to examine his face, which “looked like a fish.” Shields was 

transported by ambulance to the emergency room, where staff 

treated the cut to his face and smaller laceration on his left 

wrist.

Within minutes of the foregoing encounter, Clark saw 

Defendant in front of the club “[t]rying to leave.” When he 

attempted to subdue Defendant, Clark observed a razor blade in 

Defendant’s right hand “between his thumb and his forefinger.” 
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Defendant swung at Clark twice with the blade before leaving 

with an associate in a burgundy truck.

The jury found Defendant guilty of AWDWISI upon Shields but 

not guilty of assault with a deadly weapon upon Clark, who 

accused Defendant of striking him with a beer bottle prior to 

the assault on Shields. After Defendant pled guilty to being an 

habitual felon, the trial court sentenced him to an active 

prison term of 90 to 120 months. Defendant gave notice of 

appeal in open court.

Defendant first claims that the trial court erred in 

denying his motion to dismiss the AWDWISI charge based on the 

lack of evidence that he employed a deadly weapon in assaulting

Shields. We do not agree.

The trial court’s denial of a motion to dismiss for

insufficient evidence is reviewed de novo. State v. Lowery, __ 

N.C. App. __, __, 743 S.E.2d 696, 698-99, disc. review denied, 

__ N.C. __, 749 S.E.2d 858 (2013). In conducting our review, 

“this Court determines whether the State presented substantial 

evidence in support of each element of the charged offense. 

Substantial evidence is relevant evidence that a reasonable 

person might accept as adequate, or would consider necessary to 

support a particular conclusion.” State v. Abshire, 363 N.C. 
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322, 327-28, 677 S.E.2d 444, 449 (2009) (citations and quotation

marks omitted).

Defendant does not challenge the evidence that he assaulted 

or inflicted a serious injury upon Shields. Accordingly, we 

need only determine whether the State adduced “substantial 

evidence – whether direct, circumstantial, or both – to support 

a finding” that Defendant committed the assault with a deadly 

weapon. Id. at 328, 677 S.E.2d at 449 (quotation omitted); see 

also State v. Jones, 353 N.C. 159, 164, 538 S.E.2d 917, 922 

(2000) (listing elements of AWDWISI). “An instrument which is 

likely to produce death or great bodily harm under the 

circumstances of its use is properly denominated a deadly 

weapon.” State v. Joyner, 295 N.C. 55, 64, 243 S.E.2d 367, 373 

(1978).

While it is true that no witness saw Defendant use a weapon

to cut Shields, Clark testified that he saw a razor blade in 

Defendant’s right hand moments after Defendant opened a fiveinch laceration on Shields’ face by means of a single punch 

delivered with little force. The treating physician described 

the wound as a “clean” cut, “almost surgical” in nature, and 

“obviously” produced by “a very sharp blade, a very straight 
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blade, a knife, a razor blade, a box cutter.”1 We believe a

reasonable juror could find this circumstantial evidence more 

than sufficient to establish Defendant’s use of a razor blade in 

a manner rendering it a deadly weapon. See State v. Gilliland, 

66 N.C. App. 372, 373, 311 S.E.2d 40, 41 (1984); see also State 

v. Torain, 316 N.C. 111, 121, 340 S.E.2d 465, 471, cert. denied, 

479 U.S. 836, 93 L. Ed. 2d 77 (1986).

Defendant next asserts that his trial attorney violated his 

constitutional right to effective assistance of counsel by 

allowing Burlington Police Officer Neal Doss to testify 

regarding prior out-of-court statements made by Shields and 

Clark on the night of the assault which were inconsistent with 

their sworn testimony at trial. Noting Shields’ testimony that 

he never saw Defendant with a weapon, Defendant faults counsel 

for allowing Officer Doss to recount Shields’ statement that he 

had been “cut” by Defendant while attempting to break up a 

“fight” between Defendant and another party. Similarly, Officer 

Doss testified that Shields and Clark both claimed to have seen

a female hand Defendant a razor blade before he struck Shields.

Given “the lack of evidence that [he] had a razor blade on that 

evening,” Defendant faults his counsel for (1) failing to object 

 

1Defendant conceded at trial that Shields’ wounds would support a 

finding of “serious injury.”
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when Officer Doss testified about these statements on direct 

examination, and (2) calling additional attention to these prior 

statements in cross-examining Officer Doss.

In reviewing claims of ineffective assistance of counsel, 

we apply the two-part test established in Strickland v. 

Washington, 466 U.S. 668, 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). 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, 80 L. Ed. 2d at 693, 698), 

cert. denied, __ U.S. __, 181 L. Ed. 2d 53 (2011) (quotation 

marks omitted).

Typically, claims of ineffective assistance of counsel are

more appropriately addressed in a collateral proceeding, which

allow for the development of additional evidence outside the 

trial record. See State v. Lawson, 159 N.C. App. 534, 545, 583 

S.E.2d 354, 361 (2003). However, such “claims brought on direct 

review will be decided on the merits when the cold record 
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reveals that no further investigation is required[.]” State v. 

Phillips, 365 N.C. 103, 144, 711 S.E.2d 122, 151 (2011) 

(quotation omitted), cert. denied, __ U.S. __, 182 L. Ed. 2d 176 

(2012). Moreover, under Strickland and its progeny, 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, disc. review denied, 358 N.C. 377, 597 S.E.2d 767

(2004) (citing Braswell, 312 N.C. at 563, 324 S.E.2d at 248-49).

The record before this Court shows that, throughout 

Defendant’s trial, his counsel pursued the strategy of 

discrediting Shields and Clark in the eyes of the jury. 

Highlighting the multiple inconsistencies between the in-court 

and out-of-court statements of the complainants was an obvious

tactic in furtherance of this strategy. See generally State v. 

Bishop, 346 N.C. 365, 387, 488 S.E.2d 769, 780 (1997) (stating 

that “[p]rior statements of a witness which are inconsistent 

with his present testimony are not admissible as substantive 

evidence because of their hearsay nature[;] [e]ven so, such 

prior inconsistent statements are admissible for the purpose of 

impeachment”) (quotation omitted). Prior to Officer Doss’s
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testimony, counsel had vigorously cross-examined Shields and 

Clark about the discrepancies between their testimony and their 

statements to investigators. Counsel elicited an admission from 

Shields that he told the prosecutor that he knew Defendant “in 

the community” and “had seen him at the club two times 

before[,]” contradicting his testimony that he did not know and 

had never seen Defendant prior to 24 June 2012. Shields further 

conceded having told Officer Doss that Defendant “cut [him] with 

a blade given to him by some unknown black female[,]” despite 

the fact that he had not seen Defendant possess a weapon or 

interact with a woman. Likewise, Clark admitted on crossexamination that he “lie[d]” when he told police that he saw a 

woman hand Defendant a razor. We believe that counsel’s use of

Officer Doss’s testimony as another opportunity to impeach the 

complainants’ credibility was a sound tactical decision well 

within the broad discretion granted to defense counsel under the 

Sixth Amendment. See State v. Milano, 297 N.C. 485, 495, 256 

S.E.2d 154, 160 (1979) (noting that “whether and how to conduct 

cross-examination” is the “exclusive province of the lawyer 

after consultation with his client”), overruled on other grounds 

by State v. Grier, 307 N.C. 628, 300 S.E.2d 351 (1983). Indeed, 
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the jury acquitted Defendant of assaulting Clark with a beer 

bottle.

Assuming arguendo counsel’s handling of Officer Doss’s 

testimony was objectively unreasonable, we find no probability 

that it impacted the verdict in this cause. The trial court 

instructed the jury that it “must not consider [witnesses’]

earlier statements as evidence of the truth of what was said at 

that earlier time because it was not made under oath at this 

trial[,]” but could consider the consistency or inconsistency of 

a prior statement “in deciding whether you will believe or 

disbelieve the witness’s testimony.” Inasmuch as “[t]he law 

presumes that the jury follows the judge’s instructions[,]”

State v. Hopper, 292 N.C. 580, 589, 234 S.E.2d 580, 585 (1977), 

we deem this instruction sufficient to foreclose any showing of 

prejudice from counsel’s supposed error, particularly under the 

heightened Strickland standard. Defendant’s argument is 

overruled.

NO ERROR.

Chief Judge MARTIN and Judge HUNTER, JR., concur.

Report per Rule 30(e).