In the Matter of C.W.N., Jr., 227 N.C. App. 63 (2013)

Counsel’s failure to present a closing argument in a nonjury juvenile delinquency hearing is not per se ineffective assistance of counsel because such a rule would create a presumption that silence is always prejudicial. The juvenile, who was 15 years old, and three other boys were engaged in horseplay in the boys’ bathroom at their school when the 13-year-old victim entered the bathroom and entered a stall. When the victim exited the bathroom stall, the juvenile approached him and said, “watch this,” swung his arm, and struck the victim in the groin area. The victim fell to the ground. Following the presentation of evidence at the adjudication hearing, the juvenile’s counsel declined to give a closing argument, although the prosecutor did give one. The trial court adjudicated the juvenile delinquent for misdemeanor assault. The court held that counsel’s failure to present a closing argument was not per se ineffective assistance of counsel. Further, counsel’s representation was not deficient because counsel’s cross-examination of the State’s witnesses clarified evidence that was favorable to the juvenile and revealed inconsistencies between a witness’s trial testimony and prior statement to law enforcement; and on direct examination, counsel presented evidence through the juvenile that the incident was an accident. The juvenile also failed to establish a reasonable probability that had counsel asserted on closing argument that the assault was an accident the result of the proceeding would have been different because three witnesses testified that the assault was not an accident.