Smith's Criminal Case Compendium
Smith's Criminal Case Compendium
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Smith's Criminal Case Compendium
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This compendium includes significant criminal cases by the U.S. Supreme Court & N.C. appellate courts, Nov. 2008 – Present. Selected 4th Circuit cases also are included.
Jessica Smith prepared case summaries Nov. 2008-June 4, 2019; later summaries are prepared by other School staff.
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Addressing the merits of an IAC claim raised in a MAR, the court rejected the defendant’s argument that attorney Warmack provided ineffective assistance of counsel at an evidentiary remand hearing because of a dual representation conflict arising from having previously represented codefendant Swain. With respect to issues involving successive or simultaneous representation of clients in related matters, a defendant who raises no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance. Here, the trial court’s unchallenged findings concluded, in part, that the defendant presented no evidence that Warmack’s representation of the defendant was in any way influenced by his prior representation of codefendant Swain.
The court affirmed per curiam that aspect of the decision below that generated a dissenting opinion. In the decision below, State v. Hunt, 221 N.C. App. 489 (July 17, 2012), the court of appeals held, over a dissent, that the trial court did not err by conducting a voir dire when an issue of attorney conflict of interest arose and denying the defendant’s mistrial motion. A dissenting judge believed that the trial court erred by failing to conduct an evidentiary hearing to determine whether defense counsel’s conflict of interest required a mistrial.
Although the trial court’s inquiry of the defendant was insufficient to assure that the defendant knowingly, intelligently, and voluntarily waived his right to conflict free counsel, because the defendant failed to show that counsel’s performance was adversely affected by the conflict, he is not entitled to relief. At the defendant’s noncapital first-degree murder trial, the prosecution informed the trial court that defense counsel had previously represented a State’s witness, Michelle Wahome, who was the defendant’s girlfriend at the time of the incident in question and with whom the defendant had a child. Specifically, defense counsel had represented Wahome with respect to charges arising out of an incident at a shopping mall. The charges were reduced to common law forgery and although the defendant had not been charged in the matter, both he and Wahome appeared in the video surveillance and the items in question were men’s clothing. Defense counsel indicated that the prior representation would not impair his ability to represent the defendant and that he did not plan to question Wahome about the earlier incident. The trial court then informed the defendant that defense counsel had previously represented Wahome, a witness for the State and asked the defendant if he had any concerns about counsel’s ability appropriately to represent him, if he was satisfied with counsel’s representation, and if he desired to have counsel continue his representation. The defendant said that he had no concerns about counsel’s representation and gave an affirmative answer to each remaining question. The defendant was convicted and appealed. In a split decision, the court of appeals found no error. State v. Choudhry, 206 N.C. App. 418, 430 (Aug. 17, 2010). The dissenting judge contended that the trial court erred by failing to fully inform the defendant of the consequences of the potential conflict and that a remand was required. The supreme court determined that because the prosecutor brought a potential conflict to the trial judge’s attention, the trial judge was obligated to make an inquiry. The court concluded that because the trial court did not specifically explain the limitations that the conflict imposed on defense counsel’s ability to question Wahome regarding her earlier criminal charges or indicate that he had given the defendant such an explanation, the trial judge failed to establish that the defendant had sufficient understanding of the implications of counsel’s prior representation of Wahome to ensure a knowing, intelligent, and voluntary waiver of the potential conflict of interest. However, it went on to conclude that in light of counsel’s effective cross-examination of Wahome, the defendant failed to demonstrate an actual conflict of interest adversely affecting performance and thus was not entitled to relief.
The trial court did not err by failing to inquire into defense counsel’s alleged conflict of interest and by failing to obtain a waiver from the defendant of the right to conflict-free counsel. According to the defendant, the conflict arose when it became apparent that counsel might have to testify as a witness. The court rejected the defendant’s argument that his claim should be assessed under the conflict of interest ineffective assistance of counsel standard rather than the standard two-prong Strickland analysis. It noted that the conflict of interest standard generally applies to conflicts that arise from multiple or successive representation and it deferred to defense counsel’s conclusion that no conflict existed in the case at hand. Applying Strickland, the court rejected the defendant’s claim, concluding that even if counsel’s conduct fell below an objective standard of reasonableness, no prejudice occurred.
In this Johnston County case, defendant appealed his convictions for assault with a deadly weapon and attempted robbery, arguing error in the denial of defense counsel’s motion to withdraw, and ineffective assistance of counsel. The Court of Appeals found no error and dismissed the ineffective assistance of counsel claim without prejudice.
In October of 2018, defendant went to a car lot in Garner with another man and a woman. While the woman discussed purchasing a car with the manager, defendant and his accomplice entered with handguns and asked for the manager’s money. The manager was subsequently shot through the neck, and the group fled the lot. When the matter came for trial, the woman testified for the State that defendant was the shooter. Prior to the witness’s testimony, defense counsel encountered her in the hallway crying, and had a conversation with her where she allegedly told him that she was not present at the scene of the crime. Defense counsel alerted the trial court, and an inquiry was held outside the presence of the jury. The State was also permitted to meet with the witness during lunch recess. After all these events, defense counsel made a motion to withdraw and a motion for a mistrial, arguing that he had a conflict of interest based upon the discussion with the witness, and he had become a necessary witness in defendant’s case. The trial court denied this motion, and defendant was subsequently convicted.
The Court of Appeals first looked at defendant’s argument that defense counsel became a necessary witness for defendant, depriving him of his Sixth Amendment right to conflict-free and effective counsel. The court explained that a trial court must conduct an adequate inquiry when it is aware of a possible conflict with defense counsel; to be adequate, the inquiry must determine whether the conflict will deprive the defendant of his constitutional rights. Here, the trial court discussed the conflict and its implications with the parties at length before denying defense counsel’s motion to withdraw. The court also noted that defendant made a voluntary, knowing, and intelligent waiver of any conflict, as he “explicitly stated, after witnessing the entirety of [the witness’s] testimony, including his counsel’s cross-examination of her, that he did not wish for his counsel to withdraw.” Slip Op. at 13. The court concluded that no error occurred based on the adequate inquiry and defendant’s waiver.
Taking up defendant’s ineffective assistance of counsel claim, the court explained that normally these issues are not taken up on direct appeal, and the appropriate remedy is a motion for appropriate relief (MAR) so that the trial court can conduct further investigation as necessary. Here, the court dismissed defendant’s claim without prejudice to allow him to file an MAR.
In this Edgecombe County case, two defendants, Defendant W and Defendant P, were jointly tried, and appealed their convictions for robbery with a dangerous weapon and felon in possession of a firearm. The Court of Appeals found no prejudicial error for either defendant and affirmed the convictions, but did identify a harmless error by the trial court when it delegated duties under N.C.G.S. § 15A-1213 to the prosecutor.
The defendants were convicted for a robbery that occurred outside a food mart in Rocky Mount. Evidence admitted at trial showed that Defendant W was wearing a GPS ankle bracelet that placed him at the scene of the robbery, his appearance that day matched eyewitness descriptions of the suspect and matched him with the suspect on surveillance footage. Defendant P was later apprehended based on the description of eyewitnesses and surveillance footage, and admitted to police he was present at the food mart the night the robbery took place. The Court of Appeals reviewed each defendant’s appeals separately in the opinion.
Considering Defendant P’s first grounds for appeal, the court examined whether the use of video showing Defendant P in shackles was prejudicial and a violation of his due process right to the presumption of innocence. After exploring the lack of binding precedent on using video of a shackled defendant, the court determined that, regardless of the applicable standard of review, Defendant P could not show prejudice based on the video. The court explained that the trial court gave an instruction to the jury immediately prior to playing the video not to draw any inference from the shackles, and overwhelming evidence of Defendant P’s guilt was present in the record even if the jury disregarded the trial court’s instructions. The court also held that N.C.G.S. § 15A-1031 was not applicable as this was not a physical restrain in the courtroom.
Defendant P also raised the issue of his habitual felon status being cruel and unusual punishment under the U.S. and North Carolina constitutions. However, the court found that Defendant P did not raise the issue at trial and thus did not preserve the objection for appellate review.
Examining Defendant W’s grounds for appeal, the court first looked at the argument that his counsel had an actual conflict of interest that effected counsel’s performance during the trial. The record showed that Defendant W’s attorney admitted he had represented one of the key eyewitnesses approximately seven years prior. The Court of Appeals applied the multi-step test from State v. Choudhry, 365 N.C. 215 (2011), to determine the nature of the conflict and whether it represented actual prejudice to the defendant. Slip Op. at ¶51. The court found that, although the trial court did not conduct an adequate inquiry into the conflict, Defendant W could not show any adverse effect on his counsel’s performance based on the conflict. After determining no adverse effect on Defendant W’s counsel, the court concluded that Defendant W could not show any actual prejudicial error as a result of the conflict.
On Defendant W’s second argument, the Court of Appeals found that the trial court violated N.C.G.S. § 15A-1213 by delegating to the prosecutor the duty of reading the charges, victims, and dates of offense to prospective jurors. Defendant W argued that the trial court intimated or expressed an opinion on the case in the presence of the jury, justifying a new trial. While the Court of Appeals agreed that N.C.G.S. § 15A-1213 was violated, the court did not agree that the violation rose to the level of prejudice justifying a new trial, instead finding harmless error. The court pointed out that the trial court read instructions to the jury regarding judicial impartiality, and stated “the jurors would not have gone into the jury room thinking the judge had implied any opinion by having the prosecutor give part of the case overview; the jury instructions explicitly told them not to make such inferences.” Slip Op. at ¶79. The court also noted that Defendant W was acquitted of more serious charges of attempted murder and assault with a deadly weapon, suggesting the jury considered all the charges separately.
In this Lincoln County case, the defendant’s trial counsel also represented the City of Lincolnton. Lincolnton police officers investigated and charged the defendant and testified at his trial. After the charge conference, the defendant expressed concerns about his attorney’s potential conflict of interest. Trial counsel responded that he had not communicated with the police department about the case and that he believed no conflict of interest existed. The defendant acknowledged he had been aware of this issue for at least one year. When asked by the trial court if he wished to question his attorney on the issue, the defendant declined. The trial court made no factual findings or legal conclusions on the matter. The jury returned guilty verdicts and the defendant appealed, alleging ineffective assistance of counsel based on his trial counsel’s conflict of interest.
The defendant’s right to counsel includes the right to conflict-free representation. Looking to the Rules of Professional Conduct for guidance, the court observed:
[A] conflict of interest that cannot be waived arises where law enforcement officers testify against a defendant and the defendant’s appointed counsel also advises the officers’ department or its members and, in effect, represents the officers who are prosecuting witnesses against the defendant. Slip op. at 8.
The trial court erred in failing to investigate the potential conflict of interest claim more thoroughly. While trial counsel represented to the court that he had no contact with the police department about this case, “the trial court failed to determine the extent to which [the defense attorney’s] role as city attorney required him to advise or represent the Lincolnton Police Department or its individual officers.” Id. This information was necessary to determine whether a conflict existed. The trial court also erred in placing the burden on the defendant to ask questions about the potential conflict:
[W]hen a trial court is made aware of a possible conflict of interest prior to the conclusion of a trial, ‘the trial court must ‘take control of the situation.’’ Where the trial court ‘knows or reasonably should know’ of ‘a particular conflict,’ that court must inquire ‘into the propriety of multiple representation.’ Id. at 5 (citations omitted).
The matter was therefore remanded for the trial court to conduct a proper inquiry into the potential conflict of interest. If the trial court determines that defense counsel actually represented or advised the police department or its officers “at any relevant time,” the defendant would be entitled to a new trial based on the non-waivable conflict of interest. If no conflict of interest is found to have existed, the defendant’s convictions will remain intact.
The trial court erred by ordering, under threat of contempt, that defense counsel’s legal assistant appear as a witness for the State. The State served the assistant with a subpoena directing her to appear to testify on the weeks of Friday, November 8, 2013, Monday, December 2, 2013, and Monday, January 13, 2014. However, the trial did not begin on any of the dates listed on the subpoena; rather, it began on Monday, November 18, 2013 and ended on Wednesday, November 20, 2013. Because the assistant had not been properly subpoenaed to appear on Tuesday, November 19th, the trial court erred by ordering, under threat of contempt, that she appear on that day as a witness for the State. The court went on to find the error prejudicial and ordered a new trial. The court held that if on re-trial the assistant again testifies for the State, the trial court must conduct a hearing to determine whether an actual conflict of interest exists that denies the defendant the right to effective assistance of counsel.
(1) Even if counsel provided deficient performance by informing the trial court, with the defendant’s consent, that the defendant wanted to go to trial and “take the chance that maybe lightning strikes, or I get lucky, or something,” no prejudice was shown. (2) The court declined the defendant’s invitation to consider his ineffective assistance claim a conflict of interest that was per se prejudicial, noting that the court has limited such claims to cases involving representation of adverse parties.
No error occurred when the trial court denied defense counsel’s request for an overnight recess after having to defend himself against the State’s motion for contempt based on an allegation that counsel violated the court’s order regarding the rape shield rule in connection with his examination of the victim in this child sexual abuse case. After the trial court denied the State’s motion, defense counsel requested an overnight recess to “calm down” about the contempt motion. The trial court denied this request but at 11:38 am called a recess until 2 pm that day. The court rejected the defendant’s arguments that there was a conflict of interest between the defendant and defense counsel and that the trial court’s denial of the overnight recess resulted in ineffective assistance of counsel.
The defendant was entitled to a new trial where the trial court proceeded to trial over the defendant’s objection to continued representation by appointed counsel who had previously represented one of the State’s witnesses. At a pretrial hearing the State informed the trial court that defense counsel had previously represented Mr. Slade, who the State intended to call as a trial witness. The defendant told the trial court that he was concerned about a conflict of interest and asked for another lawyer. Slade subsequently waived any conflict and the State Bar advised the trial court that since Slade had consented “the lawyer’s ability to represent the current client is not affected” and that the current client’s consent was not required. The trial court conducted no further inquiry. The court held that the trial court erred by failing to make any inquiry into the nature and extent of the potential conflict and whether the defendant wished to waive the conflict. It concluded:
[W]e believe that Defendant . . . was effectively forced to go to trial while still represented by his trial counsel, who had previously represented one of the State’s witnesses and who acknowledged being in the possession of confidential information which might be useful for purposes of cross-examining that witness, despite having clearly objected to continued representation by that attorney. As a result, given that prejudice is presumed under such circumstances, Defendant is entitled to a new trial.
The trial court did not err by removing the defendant’s retained counsel, Wayne Eads, based on the possibility that Eads might be called to testify as a witness at trial. The defendant was charged with attempted murder and felony assault. The defendant was having an affair with the victim’s wife and the victim’s wife had discussed with the defendant the possibility of leaving her husband. Prior to the incident at issue, the victim’s wife also communicated with Eads, who was the defendant’s best friend and attorney, about her relationship with the defendant and the consequences of a divorce. The trial court’s action was proper given “a serious potential for conflict” based on Eads’ relationship with the defendant and communication with the victim’s wife. The court stated:
Eads was aware of personal and sensitive information, including the nature of their affair, which was a major factor leading to the shooting. Had Eads remained as defendant’s counsel, he might have been called to testify, at which time he might have been asked to disclose confidential information regarding the relationship between defendant and [the victim’s wife], which information may have divulged defendant’s motive for shooting [the victim], which in turn could compromise his duty of loyalty to his client.
The court went on to conclude that competent evidence supported the trial court’s conclusion that Eads was likely to be a necessary witness at trial and that none of the exceptions to Rule 3.7 of the N.C. Revised Rules of Professional Conduct applied.
In this habeas corpus case, the Court reversed the Sixth Circuit, which had held that defense counsel provided per se ineffective assistance of counsel under United States v. Cronic, 466 U. S. 648 (1984), when he was briefly absent during testimony concerning other defendants. The Court determined that none of its decisions clearly establish that the defendant is entitled to relief under Cronic. The Court clarified: “We have never addressed whether the rule announced in Cronic applies to testimony regarding codefendants’ actions.” The Court was however careful to note that it expressed no view on the merits of the underlying Sixth Amendment principle.
(1) Addressing the merits of the defendant’s Strickland ineffective assistance of counsel claim in this direct appeal in a capital case, the court rejected the defendant’s argument that he received ineffective assistance of counsel when his lawyers disclosed to law enforcement where to look for the five-year-old child victim. Because the trial court heard evidence and made findings on this issue in a pretrial motion, the court determined that no further investigation was required and it could address the merits of the claim on direct appeal. After the defendant was charged with kidnapping, he engaged the services of attorney Rogers, who immediately associated with attorney Brewer to assist in the matter. When Rogers and Brewer undertook representation of the defendant on 13 November, the victim had been missing since the morning of 10 November and a massive search was underway, in hope that the child would be found alive. The defendant admitted to police that he had taken the victim to a hotel. Hotel cameras and witnesses confirmed this admission. By 12 November, law enforcement agencies and volunteers were searching the area around Highway 87, where the defendant’s cell phone data had placed him. Rogers had conversations with law enforcement and was aware of the evidence against the defendant and of the defendant’s admission to taking the victim to the hotel. Rogers was also aware of the defendant’s three felony convictions, which constituted aggravating circumstances that could be used at a capital sentencing proceeding. Rogers and Brewer met with the defendant and discussed the fact that the child had not been found and the possibility that capital charges could be forthcoming. The defendant denied hurting or killing the victim. Rogers asked the defendant if he had any information about the victim’s location, and the defendant told Rogers and Brewer that he did. Rogers and Brewer discussed the death penalty with the defendant, and the defendant agreed that it would be in his best interest to offer information that might be helpful as to the victim’s location. Rogers explained that providing this information could be helpful with respect to a possible plea agreement or with respect to mitigating circumstances and could avoid a sentence of death. The defendant agreed with Rogers and Brewer that they would tell law enforcement where to search for the victim, without specifically stating the defendant’s name or that he was the source of the information. According to Rogers, he was trying to give the defendant the best advice to save the defendant’s life, and the defendant understood the situation and agreed with the strategy. On 14 and 15 November Brewer told law enforcement where to look for the victim. On 16 November, the victim’s body was found in the specified area.
On appeal, the defendant argued that his lawyers’ conduct was deficient because they gave the State incriminating evidence against him without seeking any benefit or protection for the defendant in return. He asserted that his attorneys’ conduct was objectively unreasonable because they had a duty to seek or secure a benefit for him in exchange for the disclosure. The court disagreed. The court determined that to the extent counsel has a duty to seek a benefit in exchange for disclosing information, here the lawyers did so. The purpose of the disclosure was to show that the defendant could demonstrate cooperation and remorse, which would benefit the defendant in the form of achieving a plea agreement for a life sentence or as to mitigating circumstances and ultimately to avoid the death penalty. In fact, the State made a plea offer of life in prison, which the defendant rejected, and he later refused to present mitigating evidence at trial. Despite his agreement at the time of the disclosure, the defendant argued on appeal that a plea agreement for life in prison to avoid the death penalty was not a reasonable objective that could justify the disclosure of incriminating evidence at that stage because his attorneys were aware that he denied causing the victim harm and because, according to the defendant, “everything turned” on his innocence defense. The court found this contention difficult to square with the record, in light of the fact that defense counsel also were aware that the defendant had in essence confessed to kidnapping the child in the middle of the night and taking her to a remote hotel where he was the last and only person seen with her. Moreover, they knew he had information on her remote location, though he was unwilling to disclose how he acquired that information. They knew that this information directed law enforcement to search a more specific area in the vicinity in which an extensive search tracking the defendant’s cell phone data was already underway, suggesting an incriminating discovery would be imminent. Thus, while the disclosure certainly would be incriminating to the defendant and could lead to additional incriminating evidence against him, the disclosure must be viewed in light of the already heavily incriminating evidence against the defendant, and the likelihood that further incriminating evidence would be forthcoming.
The defendant further argued that his lawyers should have pushed harder for better concessions for him. Recognizing that in many situations it may make strategic sense for counsel to negotiate the best possible agreement before disclosing potentially incriminating information, the court noted that that is not necessarily true in situations such as this one, where time was a substantial factor. Had law enforcement located the victim’s body before the defendant’s disclosure, the opportunity to obtain any benefit in return for the information would have been irrevocably lost. Additionally, given that the defendant denied causing the victim harm, there was a possibility that the victim was still alive. In the end, the court disagreed with the defendant that his attorneys acted unreasonably by targeting a plea agreement for life imprisonment and avoiding the death penalty in exchange for making the disclosure. “[U]nder the unique and difficult circumstances here--with the already heavily incriminating evidence against defendant, as well as the apparent likelihood that the discovery of further incriminating evidence could be imminent” and the presumption of reasonableness of counsels’ conduct, the court held that the lawyers’ decision to disclose potentially incriminating information with the sought-after goal of avoiding imposition of the death penalty did not fall below an objective standard of reasonableness.
The court determined that it need not resolve the more difficult question of whether defense counsel erred by not first securing or attempting to secure a plea agreement for life in prison before making the disclosure. It explained: “we need not answer this question because, given that we have held that a plea agreement for life in prison and avoidance of the death penalty was a reasonable disposition in these circumstances, defendant cannot establish any prejudice when the State did offer defendant a plea agreement for life in prison.”
(2) The court rejected the defendant’s argument that his attorneys were deficient by failing to conduct an adequate investigation before disclosing to the police where to search for the victim, finding that the defendant’s assertions were not supported by the record. For example, the defendant argued that lawyer Rogers failed to look at any formal discovery materials before making the disclosure, yet Rogers testified that at that early stage of the case there was no discovery file to examine. Considering the defendant’s other assertions, the court found that the defendant was unable to identify anything Roger’s allegedly inadequate investigation failed to uncover and which would have had any effect on the reasonableness of his lawyers’ strategic decision to make the disclosure. Nor, the court noted, does the defendant suggest what other avenues the lawyers should have pursued.
(3) The court rejected the defendant’s assertion that his lawyers erroneously advised him that they would shield his identity as the source of the information but that their method of disclosure revealed him as the source. The defendant’s argument was premised on the fact that his agreement with his lawyers was conditioned on their implicit promise that they would prevent the disclosure from being attributed to the defendant, even by inference. The court found that this assertion was not supported by the record, noting that the entire purpose of the disclosure, to which the defendant agreed, was that it be attributable to the defendant to show cooperation. The court found that the fact that the defendant and his lawyers agreed not to explicitly name the defendant as the source of the disclosure cannot be read as an implicit understanding that his lawyers would shield him as the source but rather must be read in the context of their conversation, in which the defendant told his lawyers that he had information about the victim’s location but did not explain how he had acquired that information. The method of disclosure allowed an immediate inference of cooperation but avoided any inadvertent admission of guilt. The court explained:
Certainly, that the information came from defendant’s attorneys allowed an inference that defendant was the source, which, while demonstrating immediate cooperation on the part of defendant, was also potentially incriminating as it suggested an inference of guilt. But this trade-off goes to the heart of the agreed upon strategy—the mounting evidence against defendant was already highly incriminating, and providing this information to the police that could potentially be further incriminating was a strategic decision made to avoid imposition of the death penalty.
(4) The court rejected the defendant’s argument that by disclosing the location of the victim to the police without first securing any benefit in return, his lawyers were essentially working for the police and that the situation resulted in a complete breakdown of the adversarial process resulting in a denial of counsel. The court declined to consider this issue as a denial of counsel claim, finding that the defendant’s challenge is more properly brought as a Strickland attorney error claim, which the court had already rejected.
(1) Investigators did not violate the capital defendant’s constitutional right to counsel by continuing to question him after an attorney who had been appointed as provisional counsel arrived at the sheriff’s office and was denied access to the defendant. The interrogation began before the attorney arrived, the defendant waived his Miranda rights, and he never stated that he wanted the questioning to stop or that he wanted to speak with an attorney. (2) Office of Indigent Defense Services statutes and rules regarding an indigent’s entitlement to counsel did not make the defendant’s statement inadmissible. Although the relevant statutes create an entitlement to counsel and authorize provisional counsel to seek access to a potential capital defendant, they do not override a defendant’s waiver of the right to counsel, which occurred in this case.
Where appointed counsel was allowed to withdraw, on the sixth day of a bribery trial, pursuant to Comment 3 of Rule 1.16(a) of the N.C. Rules of Professional Conduct, the court rejected the defendant’s argument that private counsel retained after this incident was presumptively ineffective given the limited time he had to review the case. The defendant noted that new counsel entered the case on the seventh day of trial and requested only a four-hour recess to prepare. Given the status of the trial and the limited work to be done, the court rejected the defendant’s argument. The court also rejected the defendant’s argument that new counsel rendered deficient performance by failing to request a longer or an additional continuance.
The defendant was denied his constitutional right to counsel when the trial court held a resentencing hearing on the defendant’s pro se MAR while the defendant was unrepresented. The court vacated the judgment and remanded for a new sentencing hearing.
The trial court’s denial of a motion to continue in a murder case did not violate the defendant’s right to effective assistance of counsel. The defendant asserted that he did not realize that certain items of physical evidence were shell casings found in defendant’s room until the eve of trial and thus was unable to procure independent testing of the casings and the murder weapon. Even though the relevant forensic report was delivered to the defendant in 2008, the defendant did not file additional discovery requests until February 3, 2009, followed by Brady and Kyles motions on February 11, 2009. The trial court afforded the defendant an opportunity to have a forensic examination done during trial but the defendant declined to do so. The defendant was not entitled to a presumption of prejudice on grounds that denial of the motion created made it so that no lawyer could provide effective assistance. The defendant’s argument that had he been given additional time, an independent examination might have shown that the casings were not fired by the murder weapon was insufficient to establish the requisite prejudice.
Under the Sixth Amendment, a defendant has the right to insist that defense counsel refrain from admitting guilt, even when counsel’s experienced-based view is that confessing guilt offers the defendant the best chance to avoid the death penalty. The defendant was charged with three counts of first-degree murder in this capital case. Throughout the proceedings, the defendant insistently maintained that he was out of State at the time of the killings and that corrupt police killed the victims when a drug deal went wrong. The defendant’s lawyer concluded that the evidence against the defendant was overwhelming and that absent a concession at the guilt stage that the defendant was the killer, a death sentence would be impossible to avoid at the penalty phase. The defendant was furious when told about this strategy. The defendant told counsel not to make the concession, pressuring counsel to pursue acquittal. However, at the beginning of opening statements in the guilt phase, defense counsel told the jury there was “no way reasonably possible” that they could hear the prosecution’s evidence and reach “any other conclusion” than that the defendant was the cause of the victims’ death. Although the defendant protested in a hearing outside of the presence of the jury the trial court allowed defense counsel to continue with his strategy. Defense counsel then told the jury that the evidence was “unambiguous” that “my client committed three murders.” The defendant testified in his own defense, maintaining his innocence and pressing an alibi defense. In his closing argument, defense counsel reiterated that the defendant was the killer. The defendant was found guilty of all counts. At the penalty phase, defense counsel again conceded that the defendant committed the crimes but urged mercy. The jury returned three death verdicts.
The Supreme Court granted certiorari in light of a division of opinion among state courts of last resort on the question whether it is unconstitutional to allow defense counsel to concede guilt over the defendant’s intransigent and unambiguous objection. The Court held that the Sixth Amendment was violated. It stated: “When a client expressly asserts that the objective of 'his defence' is to maintain innocence of the charged criminal acts, his lawyer must abide by that objective and may not override it by conceding guilt.” The Court distinguished Florida v. Nixon, 543 U. S. 175 (2004), in which it had considered whether the Constitution bars defense counsel from conceding a capital defendant’s guilt at trial when the defendant, informed by counsel, neither consents nor objects. In that case, defense counsel had several times explained to the defendant a proposed guilt phase concession strategy, but the defendant was unresponsive. The Nixon Court held that when counsel confers with the defendant and the defendant remains silent, neither approving nor protesting counsel’s proposed concession strategy, no blanket rule demands the defendant’s explicit consent to implementation of that strategy. The Court distinguished Nixon on grounds that there the defendant never asserted his defense objective. Here however the defendant opposed counsel’s assertion of guilt at every opportunity, before and during trial and in conferences with his lawyer and in open court. The Court clarified: “If a client declines to participate in his defense, then an attorney may permissibly guide the defense pursuant to the strategy she believes to be in the defendant’s best interest. Presented with express statements of the client’s will to maintain innocence, however, counsel may not steer the ship the other way.” It held: “counsel may not admit her client’s guilt of a charged crime over the client’s intransigent objection to that admission.” The Court went on to hold that this type of claim required no showing of prejudice. Rather, the issue was one of structural error. Thus, the defendant must be afforded a new trial without any need to first show prejudice.
The rule of State v. Harbison, 315 N.C. 175 (1985) that a criminal defendant suffers a per se violation of the right to effective assistance of counsel when counsel concedes the defendant’s guilt to the jury without the defendant’s prior consent applies to situations involving an implied admission. The defendant was charged with habitual misdemeanor assault based on an underlying offense of assault on a female, assault by strangulation, second-degree sexual offense, and second-degree rape. During a recorded interview with police that was played for the jury, the defendant made inculpatory statements indicating that he had “pushed [the victim],” was in a “tussle” with her, had “backhanded” and “smacked” her, and that she was visibly injured as a result. During closing argument, defense counsel referenced these statements and referred to them as admissions while arguing that the jury should set aside its negative feelings about the defendant arising from that behavior to see that there was no basis for convicting him of rape, sexual offense, and assault by strangulation. The jury found the defendant guilty of assault on a female and not guilty of all other charged offenses. Following an extensive review of its precedent flowing from Harbison, the court explained that while this was not a case where defense counsel expressly asked the jury to find the defendant guilty of a specified offense, Harbison violations are not limited to such situations and also occur in situations where counsel “impliedly concedes his client’s guilt without prior authorization.” The court said that counsel’s argument to the jury in this case was “problematic for several reasons,” including his attestations to the accuracy of the defendant’s admissions, his reminder to the jury that the victim was “hurt,” and counsel’s own opinion that “God knows he did [wrong].” The court further noted that counsel specifically asked the jury to return a not guilty verdict for every charged offense except assault on a female, and characterized this conspicuous omission as implicitly conceding the defendant’s guilt on that charge in violation of Harbison. The court concluded by emphasizing “that a finding of Harbison error based on an implied concession of guilt should be a rare occurrence,” and remanded the case for a determination of whether the defendant knowingly consented in advance to the admission.
Justice Newby, joined by Justice Ervin, dissented, stating the view that the jury argument in this case did not constitute the functional equivalent of an explicit admission and that a finding of ineffective assistance of counsel in a case like this requires proof of prejudice in accordance with Strickland.
In this Wake County case, defendant appealed his convictions for forcible rape, sex offense, kidnapping, various assault charges, and interfering with emergency communication, arguing (1) he was deprived of his right to autonomy in the presentation of his defense, (2) he was deprived of effective assistance of counsel when his attorney admitted guilt during closing argument, and (3) the trial court lacked jurisdiction to sentence him for habitual misdemeanor assault due to a facially invalid indictment. The Court of Appeals majority disagreed, finding no error.
In April of 2020, defendant came to trial for assaulting and raping a woman he was dating at the time. During the trial, defense counsel informed the court that defendant would not testify or present evidence, and the trial court conducted a colloquy to ensure defendant was knowingly waiving this right. During the colloquy, defendant mentioned documentary evidence he wanted to admit, but that his attorney had not admitted. The trial court did not instruct defense counsel to introduce the evidence. During closing argument, defense counsel mentioned that defendant was not guilty of kidnapping, sexual offense, or rape, but did not mention assault. Defendant was subsequently convicted, and appealed.
In (1), defendant contended that he and defense counsel had reached an absolute impasse about the documentary evidence, and the trial court committed a structural error by failing to instruct defense counsel to comply with defendant’s wishes to admit the evidence. The Court of Appeals first noted the rule that “where the defendant and his defense counsel reach an absolute impasse and are unable come to an agreement on such tactical decisions, the defendant’s wishes must control.” Slip Op. at 5. However, here the court was “unable to determine from the cold record whether there was a true disagreement, which would amount to an absolute impasse.” Id. at 7-8. Additionally, the court explained that even if there was an error, it was not a type recognized as structural by the Supreme Court, referencing the list identified in State v. Minyard, 289 N.C. App. 436 (2023).
Moving to (2), defendant argued his defense counsel committed an error under State v. Harbison, 315 N.C. 175 (1985), which would represent ineffective assistance of counsel. However, the court did not see a Harbison error, noting “defense counsel here never implied or mentioned any misconduct [by defendant]” while giving closing argument. Slip Op. at 15. Instead, the court held that “[defense counsel’s] statements cannot logically be interpreted as an implied concession of Defendant’s guilt.” Id.
Finally, in (3) defendant argued that the indictment was flawed as it failed to state the assault caused “physical injury.” Id. at 17. The court explained that here, count VIII of the indictment alleged that defendant caused “serious injury” for the assault inflicting serious injury charge. Id. at 18. The court determined that the broader term was sufficient, as “it logically follows Defendant was noticed of his need to defend against an allegation that he caused physical injury as ‘serious injury’ is defined to include physical injury.” Id. at 21.
Judge Murphy concurred in part and dissented in part by separate opinion, and would have held that the indictment for habitual misdemeanor assault in (3) was insufficient as physical injury and serious injury were not synonymous.
In this Gates County case, defendant appealed his conviction for first-degree murder, arguing (1) ineffective assistance of counsel, and error in (2) jury instructions and (3) failing to intervene ex mero motu during the State’s closing argument. The Court of Appeals found no ineffective assistance and no error.
While entering a barbershop in December of 2018, defendant ran into an acquaintance (the victim) with whom he had a contentious relationship. The two exchanged words about defendant’s newborn daughter, where the acquaintance implied that defendant was not the father. Later that night after a series of phone calls, defendant and several friends went over to the acquaintance/victim’s house. After defendant arrived, he and the victim began arguing in the driveway, leading to a fistfight. After several minutes, defendant walked backwards down the driveway while the victim continued to come towards him with his hands up; defendant then shot the victim five times. Defendant fled the scene but was later apprehended walking on the side of the road. At trial, defendant’s counsel told the jury that if they found defendant used excessive force to defend himself in the situation, that would be voluntary manslaughter, not murder. Counsel also stated in closing arguments that defendant intentionally went to the victim’s house, while defendant had testified that he had fallen asleep in his friend’s car and ended up at the house unintentionally. During the State’s closing argument, the prosecutor alerted the jury to the fact that the minimum sentence for voluntary manslaughter was 38 months, suggesting the punishment would not be severe enough for the serious crime committed. When providing jury instructions, the trial court instructed the jury on the aggressor doctrine but did not provide an instruction on stand your ground laws; defendant did not object to the instructions.
Taking up (1), the Court of Appeals explained that defendant’s first argument regarding his counsel represented conceding guilt without prior consent, a prejudicial error under State v. Harbison, 315 N.C. 175 (1985). Defendant argued that his counsel’s statements regarding use of excessive force and voluntary manslaughter represented a concession or implication of defendant’s guilt. The court disagreed, explaining that defendant was charged with first-degree murder and “the transcript reveals his counsel advocating for the jury to find Defendant either not guilty, or guilty of voluntary manslaughter.” Slip Op. at 7-8. The court also disagreed with defendant that defense counsel contradicting his testimony represented ineffective assistance. The court explained that nothing else in the record supported defendant’s testimony that he fell asleep in the car and inadvertently ended up at the victim’s house. Additionally, the purpose of this contradiction was defense counsel’s attempt to convince the jury that defendant “lacked the requisite intent to be found guilty of first-degree murder.” Id. at 10.
Reaching (2), the court explained that it reviewed the jury instructions for plain error because defendant did not object during the trial; after review, the court concluded “that jury instructions regarding the aggressor doctrine were warranted, and instructions on stand your ground laws were not.” Id. at 11. Here, testimony in the record suggested that defendant may have initiated the fight with the victim through a phone call prior to his arrival, justifying the use of the aggressor doctrine instruction. In contrast, the court could not find justification for the stand your ground laws instruction, as there was a lack of evidence supporting defendant’s lawful right to be at the residence where the conflict took place.
Finding no error in (3), the court explained that the prosecutor’s arguments were not grounds for trial court intervention, as “[w]hile suggesting that the minimum sentence would not be severe enough punishment might run afoul of the unspoken rules of courtroom etiquette, it is not, in fact, against the law.” Id. at 13.
In this Guilford County case, defendant appealed his convictions for communicating threats and assault charges, arguing abuse of discretion in denying his motion for a mistrial based on the late disclosure of discoverable material, and ineffective assistance of counsel by implicitly conceding guilt. The Court of Appeals found no abuse of discretion or error.
Defendant came to trial in February of 2020 for charges related to a dispute with his girlfriend regarding access to her phone. On the Thursday before the trial, the state provided a set of body camera videos. On the first day of trial, the state provided additional photographs of the crime scene and injuries after they were mislabeled with the wrong case number. And on the second day of trial, the state provided a set of 29 phone call recordings from defendant while he was in jail. Defense counsel only raised a discovery objection to the phone call recordings produced on the second day of trial. The trial court denied the motion and allowed the state to play one of the recorded calls for the jury. At the close of state’s evidence, defendant moved for a mistrial based on the discovery violations. The trial court denied the motion.
On appeal, the Court of Appeals first noted that the right to a mistrial was not automatic, and that a mistrial was one of several sanctions permitted under G.S. 15A-910 for failure to comply with required disclosures, all of which are discretionary. Because defense counsel only objected to the phone call recordings, that was the only evidence considered by the court when reviewing the motion for mistrial. The court noted that defense counsel could not identify any element of the calls which would have been exculpatory for defendant. Additionally, the court noted that G.S. 15A-910 did not establish any other basis for granting the mistrial or finding an abuse of discretion.
Turning to defendant’s ineffective assistance of counsel claim, the court noted that the standards from State v. Harbison, 315 N.C. 175 (1985), applied to defendant’s claim regarding admission of guilt, and that State v. McAllister, 375 N.C. 455 (2020), showed implied concessions of guilt may rise to the level of a Harbison error. However, the court explained that implied concessions of guilt must be based on statements that “cannot logically be interpreted as anything other than an implied concession of guilt.” Slip Op. at 16-17, quoting McAllister. The court did not find that logical conclusion from either of the statements pointed to by defendant as indicative of error. Instead, the court distinguished the statements from the McAllister examples, finding no Harbison error.
In this Duplin County case, the Court of Appeals remanded the case to the trial court for an evidentiary hearing on whether defendant consented to defense counsel’s admissions of guilt.
Defendant was charged with breaking or entering, larceny, and possession of stolen goods after a series of break-ins in 2017 at a power plant that was not operational. At trial, defense counsel exhibited issues with hearing loss. Defendant also noted the issue of hearing loss before testifying in his own defense, although the trial court did not take any action on the information. During closing arguments, defense counsel said “Let me level with you. I agree it’s not good to be caught in the act while being in somebody else’s building without consent,” and mentioned “caught” and “in the act” several times, referring to defendant being on the power plant property. Slip Op. at 5.
Reviewing defendant’s arguments on appeal, the court agreed that defense counsel’s statements that defendant possessed stolen keys from the plant and entered the plant’s warehouse without permission amounted to admissions of guilt for lesser included misdemeanors of breaking or entering and possession of stolen goods. The court noted that under State v. Harbison, 315 N.C. 175 (1985), and subsequent precedent, a violation of the defendant’s constitutional right to counsel occurs whenever defense counsel expressly or impliedly admits guilt without the defendant’s consent, and this violation does not require a showing a prejudice to justify a new trial. Id. at 8-9. Here, defense counsel made admissions of guilt, but the record did not reflect any consent from defendant. As a result, the Court of Appeals remanded to the trial court for an evidentiary hearing on whether defendant consented in advance to these concessions of guilt.
In this Alamance County case, defendant appealed his conviction for first-degree murder, arguing ineffective assistance of counsel and error by the trial court admitting lay witness opinion testimony. The Court of Appeals found no ineffective assistance of counsel and no prejudicial error by the trial court.
In December of 2018, defendant sold drugs to the murder victim; the victim used a fake $100 bill to purchase the drugs from defendant. Defendant soon realized he had received a fake bill, and repeatedly contacted the victim, arguing that she owed him money. Eventually defendant and a friend went to the apartments where victim resided, and after a short exchange the victim was shot; she later died of her wounds. At trial, defendant’s counsel informed the trial court that defendant planned to concede that he fired the shot that killed the victim, and that he may argue defendant was guilty of lesser included offenses. Defendant indicated that he consented to this strategy during a colloquy with the trial court. Defendant’s counsel subsequently argued that defendant was struggling with the victim over a bag of drugs and he fired a shot that was not premeditated.
The court first examined defendant’s per se ineffective assistance of counsel argument, noting that defendant consented to the strategy of admitting a shot was fired, effectively admitting to defendant’s guilt for second-degree murder, and thus could not argue ineffective assistance on this point. Examining defendant’s alternative argument that he received prejudicially ineffective assistance of counsel, the court explained that (1) defendant consented to his counsel’s strategy of self-defense, but then decided to invoke his Fifth Amendment right not to testify, sabotaging the strategy, (2) defendant’s witness offered testimony useful for raising doubts about the processing of the crime scene, and (3) defense counsel’s closing argument was coherent and attempted to negate the elements of first-degree murder.
Reviewing the trial court’s admission of lay opinion testimony that it would be easier to lure the victim with promises instead of threats, the court could find no prejudicial error. Explaining that the State did not even refer to this testimony in closing arguments, instead simply referencing this concept as a commonsense notion, the court found that defendant failed to show any reasonable possibility that the jury would have reached a different verdict.
In this Onslow County case, defendant appealed the denial of his motion for appropriate relief (“MAR”) due to ineffective assistance of counsel. In July of 2015, defendant went to jury trial for sexual offenses with a minor and was convicted. After the trial, defendant sent a letter to the trial court requesting a mistrial due to his counsel making an admission of guilt during closing argument. In March of 2016, defendant’s MAR was rejected by the Court of Appeals because defendant’s counsel did not expressly admit guilt or admit each element of each offense during the closing statement in question. Defendant petitioned the Supreme Court for review, which was granted in September of 2017.
The Supreme Court vacated the Court of Appeals decision on defendant’s MAR, and remanded with instructions for the trial court to hold an evidentiary hearing on defendant’s motion. The trial court held this hearing in May of 2019, received only an affidavit from defense counsel with no other evidence or testimony, and then denied defendant’s MAR.
After the trial court’s denial, defendant filed a petition for writ of certiorari with the Court of Appeals. In February of 2020, the Court of Appeals determined that the trial court’s evidentiary hearing was insufficient, vacated the trial court’s order, and remanded the case for an evidentiary hearing. The trial court held a second hearing in September of 2020, allowing testimony from defendant and his counsel, and several documentary exhibits. However, the trial court again denied the MAR on March 31, 2021. Defendant filed a second petition for writ of certiorari and the Court of Appeals granted the petition in July of 2021.
With the current opinion, the Court of Appeals considered whether defendant’s counsel made implied admissions of guilt by admitting that defendant engaged in a sexual act with the victim and that the victim was below the statutory age of consent. The defendant had denied making a statement to police admitting sexual conduct between himself and the victim, and the statement was the subject of a failed motion to suppress during the trial. However, defense counsel presented the disputed admission as truthful in the closing statement. The Court of Appeals found that this served as an implied admission of guilt under the framework of State v. Harbison, 315 N.C. 175 (1985). The court reversed and remanded to the trial court for an evidentiary hearing to determine if defendant consented to this admission of guilt in advance.
The defendant was indicted for seven crimes arising from a domestic violence incident. The defendant severely beat his wife, resulting in her being hospitalized for six days where she was treated for extensive swelling and bruising to face and neck, fractures to rib bones and bones around her eyes, strangulation, contusions, and kidney failure induced by toxins released from skeletal muscle destruction. Following trial, the defendant was convicted of six of the seven charges and was sentenced to four consecutive sentences totaling 578 to 730 months. The defendant appealed.
(1) On appeal, the defendant first argued that the trial court committed plain error in failing to instruct the jury on the lesser-included offense of attempted voluntary manslaughter because the evidence showed that the defendant lacked the requisite intent for attempted first-degree murder. The defendant contended that the State failed to conclusively prove he had the requisite intent of premeditation and deliberation to commit first-degree murder because evidence at trial showed that he assaulted his wife spontaneously in response to adequate provocation. In rejecting this argument, the Court of Appeals noted that there was overwhelming evidence at trial supporting premeditation and deliberation. Although the wife admitted during trial that she stabbed the defendant in the chest with a knife, the defendant’s testimony confirmed that the subsequent assault lasted multiple hours, and the defendant testified that he “knew what he was doing” and agreed that he “could have left at any time.” Slip op. at ¶ 27. The Court thus held that this the defendant’s testimony did not warrant an instruction on attempted voluntary manslaughter.
(2) The defendant next argued that the trial court did not ensure the defendant had knowingly consented before allowing defense counsel to concede the defendant’s guilt to multiple charges. The defendant contended that statements made by his defense counsel during opening and closing statements constituted an implied admission of his guilt because counsel (i) told the jury that the defendant “beat” his wife and (ii) argued only against the charge of first-degree murder and did not mention the defendant’s other charges in closing argument. The Court of Appeals held that defense counsel’s reference to the defendant having beaten his wife did not amount to a Harbison error because the defendant chose to testify on his own behalf, under oath, with full awareness that he did not have to testify. The defendant then repeatedly admitted that he beat his wife. The Court concluded that defense counsel repeated the defendant’s own testimony, then urged the jury to evaluate the truth in defendant’s words, and that defense counsel’s statements could logically be interpreted as a recitation of facts presented at trial.
(3) The defendant’s final argument was that the trial court erred by denying his motion to dismiss the charge of first-degree kidnapping because the State failed to introduce sufficient evidence of confinement separate from that which was inherent in the commission of the assaults on his wife. In rejecting this argument, the Court reasoned that the State presented evidence that the defendant confined his wife to her apartment through actions apart from confinement inherent in the many instances of assault, and the evidence allowed a reasonable inference that the defendant chose to wholly confine his wife to her apartment to prevent her from seeking aid.
Following defense counsel’s opening statements in a Possession with Intent to Sell or Deliver Heroin and Possession of Drug Paraphernalia case where the defendant was indicted as a habitual felon, the State expressed concern that defense counsel had made admissions necessitating a Harbison inquiry. Though defense counsel said “I don’t think we admitted anything,” the trial court held a colloquy where the defendant stated that the arguable admissions were made with his consent. While the transcript did not contain defense counsel’s opening statements, the Court of Appeals concluded there was enough information in the transcript to determine that defense counsel, although he admitted the defendant possessed a baggie of a substance that later would be identified as heroin, had not made a Harbison admission to PWISD Heroin because he did not admit the element that defendant had the intent to sell or deliver the substance. Nevertheless, the Court of Appeals went on to determine that the statements could have been admissions to the lesser included offense of heroin possession or admissions to Possession of Drug Paraphernalia and therefore “possibly trigger[ed] Harbison.” Assuming a Harbison inquiry was required, the trial court’s colloquy with the defendant was adequate to ascertain the defendant’s consent to the admissions. The Court also noted that the colloquy was adequate with respect to any admissions defense counsel may have made regarding habitual felon status, a status to which the defendant later pleaded guilty after a voluntariness inquiry.
The defendant was charged with first degree burglary after she was found inside the victims’ home in the early morning hours, having taken items from their cars and placed them inside a purse belonging to one of the homeowners. The defendant appeared to be impaired at the time she was arrested. She claimed during the encounter that, alternatively, she was an emergency medical worker, someone had chased her inside the house, and someone had invited her to the house.
(1) Before making an opening statement, defense counsel notified the court that he would be admitting all of the elements of the charged offense besides intent. The trial court asked the defendant whether she understood and agreed with this decision. She said she did. While defense counsel’s express or implied admission of the defendant’s guilt of a charged offense to the jury without the defendant’s consent is per se ineffective assistance of counsel, such an admission may be made with the defendant’s consent. Here, the trial court had an exchange with the defendant where she expressed her understanding and agreed to admit the elements of felony breaking and entering other than intent. Therefore, even assuming, without deciding, that defense counsel impliedly admitted that defendant was guilty of misdemeanor breaking and entering, that admission was consensual and did not constitute ineffective assistance of counsel.
(2) An expert in forensic psychology testified for the defendant that she had diagnosed the defendant with post-traumatic stress disorder, severe alcohol use disorder, severe amphetamine use disorder, and a personality disorder. The expert testified that the defendant admitted to using methamphetamine daily and that such use can result in a methamphetamine-associated psychosis which presents with delusions, paranoia, and hallucinations. The expert characterized the defendant’s symptoms as congruent with this condition.
During closing argument, the prosecutor attacked the expert’s credibility, stating that “‘psychosis is quite convenient as an excuse’” and that the defendant “‘had Dr. James come and testify . . . with the end in mind.’” Slip op. at 14. The prosecutor argued to the jury that the expert was “‘paid by the defense, for the defense, to give good stuff for the defense’” and that “‘[y]ou get what you put out. What you put in, you get out.’” Id. After questioning the utility of Dr. James’s diagnoses of the defendant, the prosecutor remarked to the jury, “‘So I ask you to take that for what it is. At the end of the day, hired by the defense, for the defense, to say good things for the defense . . . .’” Id. The defendant did not object to the remarks. The court of appeals held that the prosecutor’s remarks were improper because they went beyond arguing that the expert witness was potentially biased, which is permissible. Instead, the prosecution impermissibly suggested to the jury that the defendant’s expert was paid to fabricate an excuse for her conduct and acts, regardless of the truth. The court explained:
By arguing that psychosis was an “excuse,” Dr. James testified with an end in mind, Dr. James was paid “to give good stuff for the defense,” and Dr. James was hired “to say good things for the defense,” the prosecutor inappropriately suggested that Dr. James “should not be believed because [s]he would give untruthful or inaccurate testimony in exchange for pay.”
Slip op. at 14 (quoting, in last clause of last sentence, State v. Huey, 370 N.C. 174, 183 (2017)).
While these remarks were improper, the court of appeals held that in the absence of an objection by the defendant, they were not so grossly improper as to impede the defendant’s right to a fair trial. The court noted that similar remarks had been held not to amount to prejudicial error. Moreover, the court said it could not conclude that the remarks were so prejudicial as to merit a new trial considering the substantial amount of evidence tending to show that the defendant had the requisite intent for first-degree burglary.
(3) The Court vacated the civil judgment for attorney’s fees and remanded the matter to the trial court for a waiver by the defendant or a hearing on the issue. Although at trial the defendant stated she had no objection to the entry of a civil judgment, she did not know at that time the number of hours her appointed counsel planned to submit or what amount she would owe. She was, therefore, deprived of a meaningful opportunity to be heard before the judgment was entered.
In this sex offense case, the trial court did not abuse its discretion by denying the defendant’s motion for a mistrial and instead giving a curative instruction to the jury in response to the State’s objectionable questioning of a witness. Defense counsel did not admit the defendant’s guilt over his objection in violation of State v. Harbison or McCoy v. Louisiana by admitting an element of the charged offense in closing argument.
(1) Prior to trial in response to the defendant’s motion to exclude certain potential testimony, the State agreed to refrain from asking a detective about the victim’s grandmother allegedly pressuring the victim not to testify. At trial, the State asked the victim about the manner in which she had been pressured not to testify and the defendant objected. The trial court sustained the objection but denied the defendant’s motion for a mistrial, instead issuing a curative instruction striking the testimony from the record and from the jury’s consideration. The Court of Appeals determined that the trial court did not abuse its discretion in denying a mistrial and properly exercised its discretion and cured any potential prejudice by issuing the curative instruction and polling the jury.
(2) Even if defense counsel admitted an element of second-degree forcible sexual offense by saying in closing argument that the State would have had a “slam-dunk incest case” if the defendant and the victim were related to each other and referring to an issue of consent under the “dirty and unpalatable” facts of the case, counsel did not violate the defendant’s Sixth Amendment rights by admitting the defendant’s guilt without his consent. The court explained that defense counsel’s statements may have constituted admissions of the “sexual act with another person” element of the crime, but did not constitute an admission of guilt because counsel “vociferously argued” that the defendant did not perpetrate the sexual contact “by force and against the will” of the victim, another element of the crime. First addressing the issue through the lens of ineffective assistance of counsel, the court explained that an admission of an element does not constitute an admission of guilt and consequently counsel’s comments were not a Harbison violation. The court then distinguished defense counsel’s admission of “at most” an element of the offense from the situation in McCoy v. Louisiana, ___ U.S. ___, 138 S. Ct. 1500 (2018) where defense counsel admitted his client’s guilt and found that no Sixth Amendment structural error occurred.
This Pitt County case involved charges of attempted first-degree murder, assault with a deadly weapon with intent to kill inflicting serious injury (“AWDWIKISI”) and felony breaking or entering. Before trial, the defendant signed a document allowing his attorney to argue that he was guilty of assault with a deadly weapon inflicting serious injury (“AWDWISI”). This “Harbison acknowledgement” stated that the defendant understood his right to plead not guilty and have all issues in his case tried; that the defendant understood he was not required to concede guilt as to any offense; that he voluntarily admitted guilt to the assault while understanding the consequences of that admission; and that he authorized his attorney to argue his guilt of that offense to the jury. The trial court conducted a colloquy with the defendant where the defendant orally reaffirmed the terms of the document. At trial, defense counsel argued that the defendant was guilty of AWDWISI but lacked the intent to kill necessary to support the first-degree attempted murder (or AWDWIKISI). The jury convicted on all counts and the defendant appealed. He argued that his admission of guilt to the assault was not knowing or voluntary and that he therefore received ineffective assistance of counsel. He also claimed the trial court’s Harbison colloquy was deficient.
(1) Under State v. Harbison, 315 N.C. 175 (1985), it is per se ineffective assistance of counsel for defense counsel to admit a defendant’s guilt to an offense without the defendant’s consent. The defendant argued that his admission to the assault was effectively an admission to attempted murder. AWDWISI and attempted first-degree murder have different elements and AWDWISI is not a lesser-included offense of attempted first-degree murder. Thus, the admission to AWDWISI did not admit guilt to attempted murder. Further, the defendant knowingly and voluntarily admitted guilt to that assault, and his attorney never conceded guilt to attempted murder. The defendant therefore could not demonstrate ineffective assistance of counsel.
(2) Before accepting an admission of guilt at trial, the record should reflect the defendant’s knowing and informed consent to the admission. Here, it did:
The record demonstrates that Defendant fully understood that trial counsel was going to concede guilt to AWDWISI, and the Defendant expressly consented to the concession. Further, Defendant specifically acknowledged that he understood the consequences of such admission. Id. at 11.
Thus, the trial court’s Harbison colloquy with the defendant was proper. In addition to his appeal, the defendant filed a motion for appropriate relief (“MAR”) in the appellate division. Denying that motion, the court found that no Harbison violation occurred and that the defendant could not therefore show the existence of a ground for relief under the MAR statute. The convictions were thus unanimously affirmed.
(1) In this murder case, counsel’s statement in closing argument did not exceed the scope of consent given by the defendant during a Harbison inquiry. In light of the Harbison hearing, the defendant knowingly, intelligently and voluntarily, and with full knowledge of the awareness of the possible consequences agreed to counsel’s concession that he killed the victim and had culpability for some criminal conduct. The court noted that counsel’s trial strategy was to argue that the defendant lacked the mental capacity necessary for premeditation and deliberation and therefore was not guilty of first-degree murder. (2) The Harbison standard did not apply to counsel’s comments regarding the “dreadfulness” of the crimes because these comments were not concessions of guilt. Considering these statements under the Strickland standard, the court noted that counsel pointed out to the jury that while the defendant’s crimes were horrible, the central issue was whether the defendant had the necessary mental capacity for premeditation and deliberation. The defendant failed to rebut the strong presumption that counsel’s conduct was reasonable. Additionally no prejudice was established given the overwhelming evidence of guilt.
In this murder case, trial counsel did not render ineffective assistance by failing to produce evidence, as promised in counsel’s opening statement to the jury, that the shooting in question was justified or done in self-defense. After the trial court conducted a Harbison inquiry, defense counsel admitted to the jury that the defendant had a gun and shot the victim but argued that the evidence would show that the shooting was justified. The concession regarding the shooting did not pertain to a hotly disputed factual matter given that video surveillance footage of the events left no question as to whether the defendant shot the victim. The trial court’s Harbison inquiry was comprehensive, revealing that the defendant knowingly and voluntarily consented to counsel’s concession. The court also rejected the defendant’s argument that making unfulfilled promises to the jury in an opening statement constitutes per se ineffective assistance of counsel. And it found that because counsel elicited evidence supporting a defense of justification, counsel did not fail to fulfill a promise made in his opening statement. The court stated: “Defense counsel promised and delivered evidence, but it was for the jury to determine whether to believe that evidence.”
In an attempted murder case, counsel did not commit a Harbison error when he stated during closing argument: “You have heard my client basically admit that while pointing the gun at someone, he basically committed a crime: Assault by pointing a gun.” Because assault by pointing a gun is not a lesser-included of the charged offense, counsel’s statement fell outside of Harbison.
In a murder case, trial counsel did not impermissibly concede the defendant’s guilt under Harbison. Although defense counsel never explicitly conceded the defendant’s guilt during trial, she did make factual concessions, including admitting that the defendant was present at the shooting and that he believed that he was participating in a plan to commit a robbery. The court found that it did not need to decide whether the factual admissions constituted an admission of guilt to first degree felony-murder given that the defendant expressly consented to counsel’s admissions.
In an appeal from a conviction obtained in the Eve Carson murder case, the court held that counsel did not commit a Harbison error (unconsented to admission of guilt by counsel). Even taken out of context, the remark at issue did not even approach a concession of guilt.
The court rejected the defendant’s Harbison claim (it is ineffective assistance of counsel for a defense lawyer to concede guilt without the defendant’s consent) where defense counsel raised the admission with the trial court before it was made and the defendant consented to counsel’s strategy.
The court dismissed the defendant’s Harbison claim without prejudice to it being raised in a motion for appropriate relief. During closing argument, defense counsel stressed that the defendant was a drug user, not a drug dealer. With regard to a charge of possession of drug paraphernalia, counsel stated “finding him guilty of the drug paraphernalia I would agree is about as open and shut as we can get in this case, but finding him guilty of the selling, you don’t have the seller.” The court noted that this statement conceded guilt. However, because of the incomplete record as to consent by the defendant, the court dismissed without prejudice.
Although concluding that counsel admitted the defendant’s guilt to the jury, the court dismissed the defendant’s Harbison claim without prejudice to his right to file a motion for appropriate relief on that basis in the trial court. Counsel conceded guilt to resisting a public officer and eluding arrest when he stated, among other things, that the defendant “chose to get behind the wheel after drinking, and he chose to run from the police[,]” and “[the officer] was already out of the way and he just kept on going, kept running from the police.” However, the record did not indicate whether the defendant had consented to these admissions.
The court dismissed the defendant’s Harbison claim without prejudice in order for it to be raised by way of a motion for appropriate relief in the trial division. As to a charge of resisting an officer, defense counsel had argued to the jury that “[T]he elements are there. They were officers of the law. They were discharging a duty of their office. We are not contending they were doing anything unlawful at the time and he didn’t obey. He delayed them. He obstructed them, he resisted them[.]” The court concluded that such statements cannot be construed in any other light than admitting the defendant’s guilt. However, the court determined, based on the record on appeal, it was unclear whether the defendant consented to this admission of guilt.
(1) Defense counsel did not commit a Harbison error during the habitual felon proceeding by admitting that the defendant had pled guilty to three felonies. Although defense counsel admitted the defendant’s prior convictions, he never argued that the jury should find that the defendant had attained habitual felon status and in fact suggested that the jury take certain mitigating factors into account. (2) Even if such an admission occurred, the defendant would not be entitled to relief because Harbison does not apply to a habitual felon proceeding.
Because defense counsel admitted the defendant’s guilt to assault with a deadly weapon and involuntary manslaughter to the jury without obtaining the defendant’s express consent, counsel was per se ineffective under State v. Harbison, 315 N.C. 175 (1985). A majority of the panel distinguished the United States Supreme Court’s holding in Florida v. Nixon, 543 U.S. 175 (2004) (under federal law, when the defendant alleges ineffective assistance due to an admission of guilt, the claim should be analyzed under the Strickland attorney error standard), on grounds that Nixon was a capital case and the case before the court was non-capital. The majority further concluded that post-Nixon decisions by the North Carolina Supreme Court and the court of appeals required it to apply the Harbison rule.
No Harbison error occurred in this murder case where the defendant consented, on the record, to counsel’s strategy of admitting guilt.
Criminal Procedure > Counsel Issues > Ineffective Assistance of Counsel > Strickland Attorney Error Issues
In a per curiam decision, the Court determined that defense counsel’s performance in the punishment phase of a capital murder trial was deficient and remanded the case to the Texas Court of Criminal Appeals for that court to address the prejudice prong of a Strickland ineffective assistance of counsel analysis. Noting that under prevailing professional norms defense counsel had an obligation to conduct a thorough investigation of the defendant’s background, the Court found that defense counsel fell short of that obligation in multiple ways:
First, counsel performed almost no mitigation investigation, overlooking vast tranches of mitigating evidence. Second, due to counsel’s failure to investigate compelling mitigating evidence, what little evidence counsel did present backfired by bolstering the State’s aggravation case. Third, counsel failed adequately to investigate the State’s aggravating evidence, thereby forgoing critical opportunities to rebut the case in aggravation.
Calling defense counsel’s nominal case in mitigation “an empty exercise,” the court explained that counsel was “barely acquainted” with the witnesses he called during the punishment phase and did not prepare them to testify, that he “did not look into or present the myriad tragic circumstances that marked [the defendant’s] life,” and that he ignored avenues of investigation of which he should have been aware. The Court went on to explain that because of his failure to investigate the mitigation case, defense counsel essentially introduced aggravating evidence as he elicited witness testimony that did not accurately reflect the defendant’s life experience and presented the defendant in a poor light. Finally, the court noted that defense counsel’s failure to investigate the State’s case in aggravation resulted in a deficient failure to rebut critical aggravation evidence. Finding defense counsel’s performance deficient as a matter of law, the Court said that there was a “significant question” as to whether the Texas Court of Criminal Appeals had properly considered the prejudice prong of the Strickland analysis and remanded the case so that issue could be addressed.
Justice Alito, joined by Justices Thomas and Gorsuch, dissented, disagreeing with the majority’s view that the lower court had not properly considered the prejudice prong of the analysis.
The presumption of prejudice recognized in Roe v. Flores-Ortega, 528 U.S. 470 (2000), applies regardless of whether the defendant has signed an appeal waiver. Defendant Garza signed two plea agreements arising from charges brought by the State of Idaho. Each agreement included a provision stating that Garza waived his right to appeal. The trial court accepted the agreements and sentenced Garza. Shortly thereafter Garza told his trial counsel that he wanted to appeal. Although Garza continuously reminded his attorney of this directive, counsel did not file a notice of appeal informing Garza that appeal was problematic because of the waiver. About four months after sentencing Garza sought post-conviction relief in state court, alleging that trial counsel provided ineffective assistance by failing to file notices of appeal despite his requests. The trial court denied relief, and this ruling was affirmed by the state appellate courts. The U.S. Supreme Court granted certiorari to resolve a split of authority on this issue.
As a general rule, a defendant claiming ineffective assistance of counsel must prove that counsel’s representation fell below an objective standard of reasonableness and that prejudice occurred. In certain circumstances however prejudice is presumed, such as where the defendant is denied counsel at a critical stage or where counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing. Additionally, in Flores-Ortega, 528 U.S. 470 (2000), the Court held that when an attorney’s deficient performance costs a defendant an appeal that the defendant would have otherwise pursued, prejudice is presumed. The question presented in this case was: whether that rule applies even when the defendant has, in the course of pleading guilty, signed an “appeal waiver”—that is, an agreement forgoing certain, but not all, possible appellate claims. The Court held that it does.
The Court first determined that Garza’s lawyer provided deficient performance: “Where, as here, a defendant has expressly requested an appeal, counsel performs deficiently by disregarding the defendant’s instructions.” Turning to the crux of the case, the Court held that the Flores-Ortega presumption of prejudice applied despite the appeal waiver. The Court reasoned that because there is no dispute that Garza wished to appeal, a direct application of that case resolves this one. It held: When counsel’s constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken, the defendant has made out a successful ineffective assistance of counsel claim entitling him to an appeal, with no need for a further showing of the merit of his claim, regardless of whether an appeal waiver was signed.
Under the Sixth Amendment, a defendant has the right to insist that defense counsel refrain from admitting guilt, even when counsel’s experienced-based view is that confessing guilt offers the defendant the best chance to avoid the death penalty. The defendant was charged with three counts of first-degree murder in this capital case. Throughout the proceedings, the defendant insistently maintained that he was out of State at the time of the killings and that corrupt police killed the victims when a drug deal went wrong. The defendant’s lawyer concluded that the evidence against the defendant was overwhelming and that absent a concession at the guilt stage that the defendant was the killer, a death sentence would be impossible to avoid at the penalty phase. The defendant was furious when told about this strategy. The defendant told counsel not to make the concession, pressuring counsel to pursue acquittal. However, at the beginning of opening statements in the guilt phase, defense counsel told the jury there was “no way reasonably possible” that they could hear the prosecution’s evidence and reach “any other conclusion” than that the defendant was the cause of the victims’ death. Although the defendant protested in a hearing outside of the presence of the jury the trial court allowed defense counsel to continue with his strategy. Defense counsel then told the jury that the evidence was “unambiguous” that “my client committed three murders.” The defendant testified in his own defense, maintaining his innocence and pressing an alibi defense. In his closing argument, defense counsel reiterated that the defendant was the killer. The defendant was found guilty of all counts. At the penalty phase, defense counsel again conceded that the defendant committed the crimes but urged mercy. The jury returned three death verdicts.
The Supreme Court granted certiorari in light of a division of opinion among state courts of last resort on the question whether it is unconstitutional to allow defense counsel to concede guilt over the defendant’s intransigent and unambiguous objection. The Court held that the Sixth Amendment was violated. It stated: “When a client expressly asserts that the objective of 'his defence' is to maintain innocence of the charged criminal acts, his lawyer must abide by that objective and may not override it by conceding guilt.” The Court distinguished Florida v. Nixon, 543 U. S. 175 (2004), in which it had considered whether the Constitution bars defense counsel from conceding a capital defendant’s guilt at trial when the defendant, informed by counsel, neither consents nor objects. In that case, defense counsel had several times explained to the defendant a proposed guilt phase concession strategy, but the defendant was unresponsive. The Nixon Court held that when counsel confers with the defendant and the defendant remains silent, neither approving nor protesting counsel’s proposed concession strategy, no blanket rule demands the defendant’s explicit consent to implementation of that strategy. The Court distinguished Nixon on grounds that there the defendant never asserted his defense objective. Here however the defendant opposed counsel’s assertion of guilt at every opportunity, before and during trial and in conferences with his lawyer and in open court. The Court clarified: “If a client declines to participate in his defense, then an attorney may permissibly guide the defense pursuant to the strategy she believes to be in the defendant’s best interest. Presented with express statements of the client’s will to maintain innocence, however, counsel may not steer the ship the other way.” It held: “counsel may not admit her client’s guilt of a charged crime over the client’s intransigent objection to that admission.” The Court went on to hold that this type of claim required no showing of prejudice. Rather, the issue was one of structural error. Thus, the defendant must be afforded a new trial without any need to first show prejudice.
By wrongly advising the defendant that a guilty plea to a drug charge would not result in deportation, counsel rendered ineffective assistance of counsel (IAC) in connection with the defendant’s plea. After he was charged with possessing ecstasy with intent to distribute, the defendant feared that a criminal conviction might affect his status as a lawful permanent resident. His attorney assured him that the Government would not deport him if he pleaded guilty. As a result the defendant, who had no real defense to the charge, accepted a plea that carried a lesser prison sentence than he would have faced at trial. The defendant’s attorney was wrong: The conviction meant that the defendant was subject to mandatory deportation. Before the Court, the Government conceded that the defendant received objectively unreasonable representation when counsel assured him that he would not be deported if he pleaded guilty. The question before the Court was whether the defendant could show prejudice as a result. The Court noted that when an IAC claim involves a claim of attorney error during the course of a legal proceeding—for example, that counsel failed to raise an objection at trial or to present an argument on appeal—a defendant raising such a claim can demonstrate prejudice by showing a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. This case, however was different. The Court explained:
But in this case counsel’s “deficient performance arguably led not to a judicial proceeding of disputed reliability, but rather to the forfeiture of a proceeding itself.” When a defendant alleges his counsel’s deficient performance led him to accept a guilty plea rather than go to trial, we do not ask whether, had he gone to trial, the result of that trial “would have been different” than the result of the plea bargain. That is because, while we ordinarily “apply a strong presumption of reliability to judicial proceedings,” “we cannot accord” any such presumption “to judicial proceedings that never took place.”
We instead consider whether the defendant was prejudiced by the “denial of the entire judicial proceeding . . . to which he had a right.” As we held in Hill v. Lockhart, when a defendant claims that his counsel’s deficient performance deprived him of a trial by causing him to accept a plea, the defendant can show prejudice by demonstrating a “reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” (citations omitted).
The Court rejected the dissent’s argument that the defendant must also show that he would have been better off going to trial. It conceded “[t]hat is true when the defendant’s decision about going to trial turns on his prospects of success and those are affected by the attorney’s error—for instance, where a defendant alleges that his lawyer should have but did not seek to suppress an improperly obtained confession.” The Court found that the error at issue was different. Here, the defendant “knew, correctly, that his prospects of acquittal at trial were grim, and his attorney’s error had nothing to do with that. The error was instead one that affected [the defendant’s] understanding of the consequences of pleading guilty.” And here, the defendant argues that he never would have accepted a guilty plea had he known that he would be deported as a result; the defendant insists he would have gambled on trial, risking more jail time for whatever small chance there might be of an acquittal that would let him remain in the United States. Considering this claim, the Court rejected the Government’s request for a per se rule that a defendant with no viable defense cannot show prejudice from the denial of his right to trial. Instead it held: “In the unusual circumstances of this case, we conclude that [the defendant] has adequately demonstrated a reasonable probability that he would have rejected the plea had he known that it would lead to mandatory deportation.”
In a case where the defendant failed to preserve a claim of structural error with respect to improper closure of the courtroom and raised it later in the context of an ineffective assistance claim, the Court held that the defendant was not relieved of his burden of establishing prejudice, which he failed to do. During the defendant’s state criminal trial, the courtroom was occupied by potential jurors and closed to the public for two days of jury selection. Defense counsel neither objected to the closure at trial nor raised the issue on direct review. The case came to the Court in the context of an ineffective assistance of counsel claims. On the facts presented, the Court held that the defendant had not established prejudice. It explained:
In the criminal justice system, the constant, indeed unending, duty of the judiciary is to seek and to find the proper balance between the necessity for fair and just trials and the importance of finality of judgments. When a structural error is preserved and raised on direct review, the balance is in the defendant’s favor, and a new trial generally will be granted as a matter of right. When a structural error is raised in the context of an ineffective assistance claim, however, finality concerns are far more pronounced. For this reason, and in light of the other circumstances present in this case, petitioner must show prejudice in order to obtain a new trial. As explained above, he has not made the required showing.
In this Texas capital murder case, the defendant’s Sixth Amendment right to effective assistance of counsel was violated when his lawyer introduced evidence from a psychologist that the defendant was statistically more likely to act violently because he is black. A Texas jury convicted the defendant of capital murder. Under state law, the jury could impose a death sentence only if it found that the defendant was likely to commit acts of violence in the future. The defendant’s attorney called a psychologist to offer his opinion on that issue. The psychologist testified that the defendant probably would not engage in violent conduct. But he also stated that one of the factors pertinent in assessing a person’s propensity for violence was his race, and that the defendant was statistically more likely to act violently because he is black. The jury sentenced the defendant to death. With respect to first prong of the Strickland attorney error standard, the Court held that counsel’s performance fell outside the bounds of competent representation. Counsel knew that the expert’s report reflected the view that the defendant’s race disproportionately predisposed him to violent conduct; he also knew that the principal point of dispute during the trial’s penalty phase was whether the defendant was likely to act violently in the future. Counsel nevertheless called the expert to the stand and specifically elicited testimony about the connection between the defendant’s race and the likelihood of future violence. Additionally counsel put into evidence the expert’s report stating that the defendant’s race, “Black,” suggested an “[i]ncreased probability” as to future dangerousness. This report “said, in effect, that the color of [the defendant’s] skin made him more deserving of execution. It would be patently unconstitutional for a state to argue that a defendant is liable to be a future danger because of his race.” The Court went on to hold that the second prong of the Strickland test—prejudice--also was satisfied, finding that it was reasonably probable that the proceeding would have ended differently had counsel rendered competent representation. It noted that the evidence at issue was “potent” and “appealed to a powerful racial stereotype—that of black men as ‘violence prone.’” The expert’s opinion “coincided precisely with a particularly noxious strain of racial prejudice, which itself coincided precisely with the central question at sentencing.” The court concluded: “the effect of this unusual confluence of factors was to provide support for making a decision on life or death on the basis of race.” This effect was heightened because the witness took the stand as a medical expert, “bearing the court’s imprimatur.” The Court rejected the notion that any mention of race was de minimis, concluding “Some toxins can be deadly in small doses.” [This case also addresses a number of procedural issues that apply in federal court; because they are not relevant to state court proceedings they are not summarized here.]
The Court reversed the state decision below which had held that the defendant’s lawyers were ineffective under Strickland. At the defendant’s 1995 murder trial, the State offered FBI Agent Peele as an expert witness on Comparative Bullet Lead Analysis (CBLA). Peele’s testimony linked a bullet fragment removed from the victim’s brain to the defendant’s gun. In 2006, the defendant asserted a post-conviction claim that his defense attorneys were ineffective for failing to question the legitimacy of CBLA. At this point—eleven years after his conviction--CBLA had fallen out of favor. In fact, in 2006, the Court of Appeals of Maryland held that CBLA evidence was not generally accepted by the scientific community and was therefore inadmissible. Although the defendant’s post-conviction claim failed in the trial court, he appealed and the Maryland appellate court reversed. According to the Maryland court, defendant’s lawyers were deficient because they failed to unearth a report co-authored by Peele in 1991 and containing a single finding which could have been used to undermine the CBLA analysis. The Supreme Court reversed, noting at the time of the defendant’s trial “the validity of CBLA was widely accepted, and courts regularly admitted CBLA evidence.” And in fact, the 1991 report at issue “did not question the validity of CBLA, concluding that it was a valid and useful forensic tool to match suspect to victim.” The Court held: “Counsel did not perform deficiently by dedicating their time and focus to elements of the defense that did not involve poking methodological holes in a then-uncontroversial mode of ballistics analysis.” Furthermore the Court noted, it is unclear that counsel would have been able to uncover the report, if a diligent search was made.
Defense counsel in a capital case rendered deficient performance when he made an “inexcusable mistake of law” causing him to employ an expert “that he himself deemed inadequate.” Counsel believed that he could only obtain $1,000 for expert assistance when in fact he could have sought court approval for “any expenses reasonably incurred.” The Court clarified:
We wish to be clear that the inadequate assistance of counsel we find in this case does not consist of the hiring of an expert who, though qualified, was not qualified enough. The selection of an expert witness is a paradigmatic example of the type of “strategic choic[e]” that, when made “after thorough investigation of [the] law and facts,” is “virtually unchallengeable.” We do not today launch federal courts into examination of the relative qualifications of experts hired and experts that might have been hired. The only inadequate assistance of counsel here was the inexcusable mistake of law—the unreasonable failure to understand the resources that state law made available to him—that caused counsel to employ an expert that he himself deemed inadequate.
Slip Op. at 12 (citation omitted). The court remanded for a determination of whether counsel’s deficient performance was prejudicial.
The Court held that a defense lawyer rendered ineffective assistance by allowing a plea offer by the prosecution to expire without advising the defendant of the offer or allowing him to consider it. The defendant was charged with felony driving with a revoked license, an offense carrying a maximum term of imprisonment of four years. On November 15, the prosecutor sent a letter to defense counsel offering a choice of two plea bargains. First, the prosecutor offered to recommend a 3-year sentence for a guilty plea to the felony charge, without a recommendation regarding probation but with a recommendation for 10 days in jail as so called “shock” time. Second, to reduce the charge to a misdemeanor and, if the defendant pleaded guilty, to recommend a 90-day sentence. The misdemeanor charge would have carried a maximum term of imprisonment of one year. The letter stated both that offers would expire on December 28. The defendant’s attorney did not tell the defendant of the offers and they expired. Before this charge was resolved, the defendant was again arrested for driving with a revoked license. The defendant subsequently plead guilty to the initial charge. There was no plea agreement. The trial court accepted the guilty plea and sentenced the defendant to three years in prison. The defendant challenged his conviction, arguing that counsel’s failure to inform him of the plea offer constituted ineffective assistance of counsel.
The Court began its analysis by concluding that the constitutional right to counsel extends to the negotiation and consideration of plea offers that lapse or are rejected. It stated: “In today’s criminal justice system . . . the negotiation of a plea bargain . . . is almost always the critical point for a defendant.” Having determined that there is a right to effective assistance with respect to plea offers, the Court turned to the question of whether defense counsel has the duty to communicate the terms of a formal offer to accept a plea on terms and conditions that may result in a lesser sentence, a conviction on lesser charges, or both. On this issue it held:
[A]s a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused. Any exceptions to that rule need not be explored here, for the offer was a formal one with a fixed expiration date. When defense counsel allowed the offer to expire without advising the defendant or allowing him to consider it, defense counsel did not render the effective assistance the Constitution requires.
The Court then turned to the issue of prejudice and laid out the following standards:
To show prejudice from ineffective assistance of counsel where a plea offer has lapsed or been rejected because of counsel’s deficient performance, defendants must demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel. Defendants must also demonstrate a reasonable probability the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it, if they had the authority to exercise that discretion under state law. To establish prejudice in this instance, it is necessary to show a reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time.
Applying these standards to the case before it, the Court concluded that because defense counsel made no meaningful attempt to inform the defendant of the written plea offer, counsel’s representation fell below an objective standard of reasonableness. As to prejudice, the Court found that the state court applied the wrong standard. Specifically, it did not require the defendant to show that the first plea offer, if accepted, would have been adhered to by the prosecution and accepted by the trial court, particularly given the defendant’s subsequent arrest for the same offense. The Court remanded on this issue.
The Court held that defense counsel rendered ineffective assistance by advising a defendant to reject a plea offer and it specified the appropriate remedy for the constitutional violation. The defendant was charged with assault with intent to murder, possession of a firearm by a felon, possession of a firearm in the commission of a felony, misdemeanor possession of marijuana, and being a habitual offender. The prosecution twice offered to dismiss two of the charges and to recommend a sentence of 51-85 months for the other two, in exchange for a guilty plea. The defendant rejected both offers, allegedly after his attorney convinced him that the prosecution would be unable to establish intent to murder. On the first day of trial the prosecution offered a significantly less favorable plea deal, which the defendant rejected. The defendant was convicted on all counts and received a mandatory minimum sentence of 185-360 months’ imprisonment. He then challenged the conviction, arguing that his attorney’s advice to reject the plea constituted ineffective assistance.
On appeal the parties agreed that counsel rendered deficient performance when he advised the defendant to reject the plea offer. Thus, the only issue before the Court was how to apply Strickland’s prejudice prong. The court held that when ineffective assistance results in a rejection of the plea offer and the defendant is convicted at the later trial
a defendant must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the judgment and sentence that in fact were imposed.
The Court then addressed the issue of the appropriate remedy, noting that the injury suffered by defendants who decline a plea offer as a result of ineffectiveness and then receive a greater sentence at a trial can come in at least one of two forms. Sometimes, the Court explained, the sole advantage a defendant would have received under the plea is a lesser sentence. In this situation, the trial court may conduct an evidentiary hearing to determine whether the defendant has shown a reasonable probability that but for counsel’s errors he or she would have accepted the plea. “If the showing is made,” the Court elaborated, “the court may exercise discretion in determining whether the defendant should receive the term of imprisonment the government offered in the plea, the sentence he received at trial, or something in between.” In some situations, however, the Court noted “resentencing alone will not be full redress for the constitutional injury,” such as when an offer was for a guilty plea to a less serious crime than the one the defendant ends up getting convicted for at trial, or if a mandatory sentence limits a judge’s sentencing discretion. In these situations, the Court explained, “the proper exercise of discretion to remedy the constitutional injury may be to require the prosecution to reoffer the plea proposal. Once this has occurred, the judge can then exercise discretion in deciding whether to vacate the conviction from trial and accept the plea or leave the conviction undisturbed.” The Court noted that when implementing a remedy in both situations, the trial court must weigh various factors. Although it determined that the “boundaries of proper discretion need not be defined here” the Court noted two relevant considerations:
First, a court may take account of a defendant’s earlier expressed willingness, or unwillingness, to accept responsibility for his or her actions. Second, it is not necessary here to decide as a constitutional rule that a judge is required to prescind (that is to say disregard) any information concerning the crime that was discovered after the plea offer was made. The time continuum makes it difficult to restore the defendant and the prosecution to the precise positions they occupied prior to the rejection of the plea offer, but that baseline can be consulted in finding a remedy that does not require the prosecution to incur the expense of conducting a new trial.
Applying the relevant test to the case at hand, the Court found that the defendant met Strickland’s two-part test for ineffective assistance. The fact of deficient performance had been conceded and the defendant showed that but for counsel’s deficient performance there is a reasonable probability that both he and the trial court would have accepted the guilty plea. Additionally, as a result of not accepting the plea and being convicted at trial, respondent received a minimum sentence 3½ times greater than he would have received under the plea. The Court found that the correct remedy is to order the State to reoffer the plea agreement. It continued: “Presuming [the defendant] accepts the offer, the state trial court can then exercise its discretion in determining whether to vacate the convictions and resentence respondent pursuant to the plea agreement, to vacate only some of the convictions and resentence respondent accordingly, or to leave the convictions and sentence from trial undisturbed.”
In a capital case, the Ninth Circuit Court of Appeals improperly granted the defendant habeas relief on his claim of penalty-phase ineffective assistance of counsel. The defendant and two accomplices broke into a house at night, killing two men who interrupted the burglary. A jury convicted the defendant of first-degree murder, and he was sentenced to death. After the California Supreme Court twice denied the defendant habeas relief, a federal district court held an evidentiary hearing and granted the defendant relief under 28 U.S.C. § 2254 on grounds of “inadequacy of counsel by failure to investigate and present mitigation evidence at the penalty hearing.” Sitting en banc, the Ninth Circuit affirmed, holding that the California Supreme Court unreasonably applied Strickland v. Washington, 466 U. S. 668 (1984), in denying the defendant’s claim of penalty-phase ineffective assistance of counsel. The U.S. Supreme Court reversed, concluding that the defendant failed to show that the state court unreasonably concluded that defense counsel’s penalty phase “family sympathy” strategy (that consisted principally of the testimony of the defendant’s mother) was appropriate. Likewise, the defendant failed to show that the state court unreasonably concluded and that even if counsel’s conduct was deficient, no prejudice occurred, given that the new evidence largely duplicated the mitigation evidence presented at trial and the extensive aggravating evidence.
The Court reversed the Ninth Circuit, which had held that the state court unreasonably applied existing law when rejecting the defendant’s claim that his counsel was deficient by failing to present expert testimony on serology, pathology, and blood spatter patterns; the defendant had asserted that this testimony would have confirmed his version of how the events in question occurred. The Court concluded that it was at least arguable that a reasonable attorney could decide to forgo inquiry into the blood evidence under the circumstances, which included, among other things, the fact that counsel had reason to question the truth of the defendant’s version of the events. The Court also rejected the Ninth Circuit’s conclusion that counsel was deficient because he had not expected the prosecution to offer expert testimony and therefore was unable to offer expert testimony of his own in response. The Court concluded that although counsel was mistaken in thinking the prosecution would not present forensic testimony, the prosecution itself did not expect to make that presentation and had made no preparations for doing so on the eve of trial. For this reason alone, the Court concluded, it is at least debatable whether counsel’s error was so fundamental as to call the fairness of the trial into doubt. Finally, the Court concluded that it would not have been unreasonable for the state court to conclude that the defendant failed to establish prejudice. Justice Kagan did not participate in the consideration or decision of the case.
The Court reversed the Ninth Circuit, which had held that the state court unreasonably applied existing law when rejecting the defendant’s claim that counsel was ineffective by failing to file a motion to suppress the defendant’s confession to police before advising him to accept a plea offer. Counsel had explained that he discussed the plea bargain with the defendant without first challenging the confession to the police because suppression would serve little purpose given that the defendant had made full and admissible confessions to two other private individuals, both of whom could testify. The state court would not have been unreasonable to accept this explanation. Furthermore, the Court held, the state court reasonably could have determined that the defendant would have accepted the plea agreement even if his confession had been ruled inadmissible. Justice Kagan did not participate in the consideration or decision of the case.
After the defendant was sentenced to death in state court, a state post-conviction court found that the defendant’s lawyer conducted a constitutionally inadequate penalty phase investigation that failed to uncover evidence of the defendant’s significant mental and psychological impairments. However, the state court found itself unable to assess whether counsel’s conduct prejudiced the defendant; because counsel presented some mitigating evidence, the state court concluded that it could not speculate as to the effect of the new evidence. It thus denied the defendant’s claim of ineffective assistance. The United State Supreme Court held that although the state court articulated the correct prejudice standard (whether there was a reasonable likelihood that the outcome of the trial would have been different if counsel had done more investigation), it failed to properly apply that standard. First, the state court put undue reliance on the assumed reasonableness of counsel’s mitigation theory, given that counsel conducted a constitutionally unreasonable mitigation investigation and that the defendant still might have been prejudiced by counsel’s failures even if his theory was reasonable. More fundamentally, the Court continued, in assessing prejudice, the state court failed to consider the totality of mitigation evidence (both that adduced at trial and the newly uncovered evidence). The prejudice inquiry, the Court explained, requires the state court to speculate as to the effect of the new evidence. A proper prejudice inquiry, it explained, requires the court to consider the newly discovered evidence along with that introduced at trial and assess whether there is a significant probability that the defendant would have received a different sentence after a constitutionally sufficient mitigation investigation.
After pleading guilty to a charge of transportation of a large amount of marijuana, the defendant, a lawful permanent resident of the United States for more than 40 years, faced deportation. He challenged his plea, arguing that his counsel rendered ineffective assistance by failing to inform him that the plea would result in mandatory deportation and by incorrectly informing him that he did not have to worry about his immigration status because he had been in the country so long. The Court concluded that when, as in the present case, “the deportation consequence [of a plea] is truly clear,” counsel must correctly inform the defendant of this consequence. However, the Court continued, where deportation consequences of a plea are “unclear or uncertain[] [t]he duty of the private practitioner . . . is more limited.” It continued: “When the law is not succinct and straightforward . . . , a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.” The Court declined to rule whether the defendant was prejudiced by his lawyer’s deficient conduct.
The state court’s conclusion that the defendant’s counsel made a strategic decision not to pursue or present evidence of his mental deficiencies was not an unreasonable determination of the facts. The Court did not reach the question of whether the strategic decision itself was a reasonable exercise of professional judgment under Strickland.
Even if counsel’s closing argument at the sentencing phase of a capital trial fell below an objective standard of reasonableness, the defendant could not show that he was prejudiced by this conduct.
A capital defendant’s trial counsel’s conduct fell below an objective standard of reasonableness when counsel failed to investigate and present mitigating evidence, including evidence of the defendant’s mental health, family background, and military service. The state court’s holding that the defendant was not prejudiced by counsel’s deficient representation was unreasonable. To establish prejudice, the defendant need not show that counsel’s deficient conduct more likely than not altered the outcome; the defendant need only establish a probability sufficient to undermine the confidence in the outcome, as he did in this case.
Even if counsel’s performance was deficient with regard to mitigating evidence in a capital trial, the defendant could not establish prejudice. Trial counsel testified that he presented a limited mitigating case in order to avoid opening the door for the prosecution to admit damaging evidence regarding a prior murder to which the defendant admitted but for which the defendant could not be tried. The defendant did not establish a reasonable probability that the jury would have rejected a capital sentence after it weighed the entire body of mitigating evidence (including the additional testimony counsel could have presented, some of which was cumulative) against the entire body of aggravating evidence (including evidence of the prior murder, which would have be admitted had counsel made a broader case for mitigation).
Although restatements of professional conduct, such as ABA Guidelines, can be useful guides to whether an attorney’s conduct was reasonable, they are relevant only when they describe the professional norms prevailing at the time that the representation occurred. In this case, the lower court erred by applying 2003 ABA standards to a trial that occurred eighteen years earlier. Moreover, the lower court erred by treating the ABA Guidelines “as inexorable commands with which all capital defense counsel must comply.” Such standards are merely guides to what is reasonable; they do not define reasonableness. The Court went on to reject the defendant’s arguments that counsel was ineffective under prevailing norms; the defendant had argued that his lawyers began their mitigation investigation too late and that the scope of their mitigation investigation was unreasonable. The Court held that even if the defendant’s counsel had performed deficiently, the defendant suffered no prejudice.
Counsel was not ineffective by recommending that the defendant withdraw his insanity defense. The defendant entered pleas of not guilty and not guilty by reason of insanity (NGI) at his first-degree murder trial in state court. State procedure required a bifurcated trial consisting of a guilt phase followed by a NGI phase. During the guilt phase, the defendant sought, through medical testimony, to show that he was insane and thus incapable of premeditation and deliberation. The jury nevertheless convicted him of first-degree murder. For the NGI phase, the defendant had the burden of showing insanity. Counsel had planned to meet that burden presenting medical testimony similar to that offered in the guilt phase. Although counsel had planned to offer additional testimony of the defendant’s parents, counsel learned that the parents were refusing to testify. At this point, counsel advised the defendant to withdraw his NGI plea and the defendant complied. Defense counsel was not ineffective by recommending withdrawal of a defense that counsel reasonably believed was doomed to fail. The defendant’s medical testimony already had been rejected in the guilt phase and the defendant’s parents’ expected testimony, which counsel believed to be the strongest evidence, was no longer available. Counsel is not required to raise claims that are almost certain to lose. Additionally, the defendant did now show prejudice; it was highly improbable that jury that had just rejected testimony about the defendant’s mental state when the state bore the burden of proof would have reached a different result when the defendant presented similar evidence at the NFI phase.
In this Stokes County case, the defendant was an undocumented Mexican citizen living in North Carolina. In 2010, he was charged with felony drug offenses and pled guilty. Defense counsel advised the defendant that there “may” be immigration consequences as a result. In 2017, he was arrested by immigration authorities and filed a motion for appropriate relief (“MAR”), alleging ineffective assistance of plea counsel under Padilla v. Kentucky, 559 U.S. 356 (2010) (holding that when immigration consequences stemming from a criminal conviction are clear, defense counsel must correctly advise the defendant of those consequences as a matter of effective assistance of counsel). The defendant argued that his drug conviction clearly made him ineligible for cancellation of removal proceedings, subject to mandatory detention, and permanently inadmissible to the United States under federal law. He asserted that he would have not pled guilty but for the erroneous advice of counsel.
The trial court initially denied the MAR without hearing. The Court of Appeals granted certiorari and unanimously reversed, directing the trial court to conduct a hearing and determine whether the defendant’s plea was knowing and voluntary and whether the defendant received ineffective assistance of counsel. On remand, the trial court again denied the MAR following an evidentiary hearing. It determined that while trial counsel’s advice was objectively unreasonable, the defendant (as a person eligible for deportation with or without a criminal conviction) could not demonstrate prejudice. The trial court did not address whether the plea was knowing and voluntary. The defendant again sought appellate review, and the Court of Appeals again reversed.
Regarding deportability based on the drug conviction, the relevant federal statute (8 U.S.C. § 1227(a)(2)(B)(i)) did not apply to the defendant. That statute covers people lawfully admitted into the county who are convicted of a drug crime, and the defendant was never lawfully admitted. As such, there could be no deficient performance by trial counsel in failing to advise on the impact of this statute, and the trial court correctly determined that the defendant could not show prejudice.
The defendant also pointed to the federal statute imposing mandatory detention for aliens convicted of a drug offense (U.S.C. § 1226(c)(1)(A)) as basis for the ineffective assistance claim. That argument was not raised on appeal and was deemed abandoned.
However, the federal statute rendering one convicted of a drug offense ineligible for cancellation of removal (U.S.C. § 1229b(b)(1)) may have applied to the defendant. The matter was remanded to the trial court for it to consider the potential availability of cancellation of removal for the defendant. If the defendant can demonstrate that he would have qualified for cancellation of removal absent the conviction, then the application of that statute was “truly clear,” and trial counsel would have had a duty to correctly advise on its operation. If the trial court finds that such deficient performance occurred, it would then need to determine prejudice by analyzing whether the defendant would have refused to plead guilty and gone to trial but for the erroneous advice.
The drug conviction also clearly made the defendant permanently inadmissible to the county under 8 U.S.C. § 1182(a)(2)(A)(i)(II), and trial counsel’s failure to advise on this point was deficient. On remand, the trial court was instructed to consider prejudice by examining the impact of this erroneous advice on the defendant’s decision to plead guilty.
(2) The earlier remand by the Court of Appeals had directed the trial court to consider both whether the defendant’s plea was knowing and voluntary, and whether the defendant received ineffective assistance of counsel. The trial court failed to consider the voluntariness of the plea and was again directed to make findings and resolve that claim on remand.
On discretionary review of a unanimous decision below, 259 N.C. App. 127 (2018), the court reversed the Court of Appeals and held that appellate counsel was not ineffective for failing to cite a particular line of cases because the facts of this case were distinguishable from those in the line of cases the Court of Appeals would have had appellate counsel cite. The Court of Appeals had held that appellate counsel was ineffective for failing to make the argument under State v. Pakulski, 319 N.C. 562 (1987) that a trial court commits plain error when it instructs a jury on disjunctive theories of a crime, one of which is erroneous, and it cannot be discerned from the record the theory upon which the jury relied. Noting that its opinion in Pakulski “lacks clarity” with respect to the standard of review applied there, the court explained that Pakulski applied the harmless error rather than plain error standard, as evidenced by subsequent precedent. Because the defendant in this case did not object to the trial court’s jury instructions, the court explained that Pakulski “would have had little precedential value in the instant case, and appellate counsel’s failure to cite it was not objectively unreasonable.” The court went on to explain that the arguments made by appellate counsel were appropriate for plain error review as counsel argued that the jury was presented with multiple theories of guilt, one of which was erroneous, and the error had a probable impact on the jury’s verdict.
Justice Ervin, joined by Justice Newby, concurred, agreeing with the court’s interpretation of Pakulski and its determination that appellate counsel was not ineffective, but writing separately to clarify the general matter that a defendant may be convicted of possession of a firearm by a felon under an acting in concert theory. Noting that neither the North Carolina Supreme Court nor the Court of Appeals has ever directly held that a defendant can be convicted of that offense on the basis of an acting in concert theory, Justice Ervin described the “general availability of the acting in concert doctrine in possession-related cases” and stated that he was not persuaded that the theory is inapplicable to the offense of possession of a firearm by a felon.
Justice Earls, joined by Justice Davis, dissented, expressing the view that the majority opinion’s explanations of Pakulski and appellate counsel’s arguments were inaccurate. In Justice Earls’ view, Pakulski applied the plain error standard of review and appellate counsel did not meet the obligation to argue to the Court of Appeals that the defendant could not be convicted of possession of a firearm by a felon based on someone else’s possession.
In this Moore County case, the defendant was convicted of first-degree rape and sex offense, crime against nature, possession of firearm by felon, communicating threats and various assaults stemming from attacks on his estranged then-wife. On appeal, the defendant argued that the trial court plainly erred by permitting multiple witnesses for the State to refer to the woman as the “victim,” that his trial counsel was ineffective for failing to object to those references, and that the trial court plainly erred by using “victim” to describe the woman in its jury instructions.
(1) A total of eight witnesses for the State used the term “victim” in reference to the woman, five of whom were law enforcement officers and four of whom were expert witnesses. The defendant contended this amounted to improper vouching for the accuser’s credibility and argued the trial court should have intervened ex mero motu. The court found that the defendant could not show prejudice and therefore could not establish plain error. “…[T]he strength of the State’s evidence against defendant . . . outweighed any potential subliminal effect of the witnesses’ occasional references to [the woman] as the victim.” Slip. op. at 13.
(2) For the same reasons, the defendant’s ineffective assistance of counsel claim failed. The defendant could not demonstrate a reasonable possibility of a different result at trial had his counsel objected to the uses of the word “victim” and therefore could not establish prejudice under Strickland v. Washington, 466 U.S. 668 (1984).
(3) According to the defendant, the trial court’s use of the word “victim” in its jury instruction violated the statutory mandate against expression of judicial opinion. Rejecting this argument, the court observed:
Our Supreme Court has consistently rejected a defendant’s attempt to couch the trial court’s use of the term “victim” in its jury instructions as an improper expression of judicial opinion in violation of N.C.G.S. §§ 15A-1222 and 1232. . . Likewise, our Supreme Court has rejected arguments that the trial court’s use of the term “victim” in its charge to the jury amounts to plain error . . . Id. at 17.
Any constitutional challenge to the jury instructions on this point was not raised in the trial court and therefore waived on appeal. The convictions were thus unanimously affirmed.
In this Duplin County case, the defendant was convicted by a jury of financial card fraud, obtaining property by false pretenses, identity theft, and habitual felon. She appealed, arguing that her motion to dismiss for insufficiency of the evidence should have been granted as to the identity theft and that she received ineffective assistance of counsel. The Court of Appeals unanimously affirmed.
(1) The evidence showed that the defendant used the credit cards of two other people to make purchases for herself, representing herself as the owner of the cards. The defendant eventually admitted to police that she used the credit cards and provided a full written confession. At the close of evidence, the defendant asked the trial court to dismiss two (of six) counts of identity theft regarding Victim #1 based on a lack of proof that the defendant acted without that victim’s permission. On appeal, the defendant challenged all six identity theft convictions, contending that there was no evidence she meant to represent herself as the two victims. This was a different argument than the one made to the trial court and was not preserved under State v. Walker, 252 N.C. App. 409 (2017) (holding that, without a “global” motion to dismiss, sufficiency arguments not raised in the trial court are waived on appeal).
Defendant failed to preserve any argument as to the four charges of identity theft pertaining to [Victim #2]. Likewise, the defendant failed to preserve the specific argument—that there was insufficient evidence that Defendant intended to represent that she was [Victim #1]. We thus decline to reach the merits of her argument.
The court declined to invoke its discretionary authority under Rule 2 of the Appellate Rules of Procedure to consider the unpreserved arguments.
(2) The defendant argued that she received ineffective assistance of counsel based on her trial lawyer’s failure to preserve the above issues, arguing that the motion to dismiss for insufficiency would have been granted if had her trial lawyer made the argument. While ineffective assistance claims should normally be litigated through a motion for appropriate relief, here, the “cold record” was sufficient to allow appellate review of the claim. The defendant’s argument that the State failed to present evidence that she represented herself as the victims was meritless under State v. Jones, 367 N.C. 299, 304 (2014) (rejecting interpretation of identity theft statute to require use of the victim’s name, which would cause “absurd” results). The defendant’s use of the victims’ credit card numbers was sufficient “identifying information” under the statute and it was not error for defense counsel to fail to make this argument. The defendant did not therefore receive ineffective assistance of counsel.
(3) The trial court instructed the jury on false or conflicting statements of the defendant under N.C. P. I.—Crim. 105.21. The defendant originally told police that an ex-boyfriend was responsible for the fraud before later admitting to the conduct. On appeal, she argued that this instruction to the jury prejudiced her trial by impugning her character. The court disagreed.
[This] instruction is proper not only where defendant’s own statements contradict each other but also where the defendant’s statements flatly contradict relevant evidence. The instruction is in appropriate if it fails to make clear to the jury that the falsehood does not create a presumption of guilt.
The statements of the defendant to law enforcement were contradictory and conflicting, “tending to reflect the mental processes of a person possessed of a guilty conscience seeking to divert suspicion and to exculpate [her]self.” The instruction was given in accordance with the considerable warnings in the commentary to that pattern instruction, was supported by the evidence, and was therefore proper under these facts.
The defendant was convicted by a jury of two counts of statutory sexual offense with a child by an adult and one count of first-degree kidnapping based on his repeated sexual assaults of his seven-year-old niece. The trial court sentenced the defendant to prison and ordered him to enroll in satellite-based monitoring (SBM) for life. (1) Based on the defendant’s failure to file a written notice of appeal as required by Rule 3 of the Rules of Appellate Procedure, the court of appeals concluded that it lacked jurisdiction to hear his SBM appeal. The defendant also failed to argue in the trial court that SBM was an unconstitutional search under the Fourth Amendment. The court of appeals declined grant his petition for writ of certiorari and, in the absence of evidence of a manifest injustice, to invoke Appellate Rule 2 to address his unpreserved constitutional argument. (2) A pediatrician that the State tendered as an expert testified without objection that children don’t tend to make up stories about sexual abuse, and that the victim “gave excellent detail” and that her story was “very consistent.” The court of appeals found no error, noting that while it would be improper for an expert witness to opine based on an interview with a victim as to whether the child had been sexually abused, statements regarding the child’s consistency in recounting the alleged abuse are nevertheless admissible. (3) The court rejected the defendant’s argument that witnesses’ repeated use of the words “disclose” and “disclosure” to describe what the victim told them in private amounted to impermissible vouching. Citing State v. Betts, ___ N.C. App. ___, ___ S.E.2d ___ (Sept. 3, 2019), and declining to follow unpublished State v. Jamison, ___ N.C. App. ___, 821 S.E.2d 665 (2018) (unpublished), the court agreed that nothing about the term “disclose” conveys believability or credibility. (4) Some statements admitted by a marriage and family therapist who treated the victim were improper vouching. Her general statement about “this incident that happened” was not improper, but her statement that the victim would need therapy “because of the sexual abuse that she experienced” and “I believe [the victim]” were improper as an opinion of the victim’s veracity. However, in the absence of an objection at trial and in light of the substantial evidence against the defendant (medical evidence and testimony from corroborating witnesses), the court concluded that the admission of the improper evidence did not rise to the level of plain error warranting a new trial. (5) Finally, defense counsel’s failure to object to the improper vouching evidence was not ineffective assistance of counsel where there was no reasonable probability that the errors prejudiced the defendant.
After a hung jury and mistrial in 2009, the defendant was convicted of first-degree murder and robbery with a dangerous weapon in 2010 and sentenced to death. Defendant appealed, but the case was remanded to the trial court to resolve the defendant’s post-conviction motions, including a motion for appropriate relief (“MAR”) alleging ineffective assistance of counsel. After conducting a hearing on the MAR, the trial court found that the defendant received ineffective assistance of counsel and ordered the convictions vacated. In its written order, the trial court found that the state’s DNA expert “failed to follow scientific protocol and included scientifically invalid interpretations of DNA samples,” and defendant’s counsel was deficient for failing to obtain an expert to assist him in cross-examining the state’s expert and presenting a contrary interpretation. Additionally, the trial court found that defendant’s counsel was deficient for failing to call three witnesses who could have testified in support of defendant’s alibi or impeached other witnesses. The defense witnesses also could have testified that they were “threatened…with criminal charges if they testified in criminal court in accordance with their out of court statements,” a fact that “should have been brought to the attention of the trial court and the jury.” The state appealed the order granting the MAR, and argued that the trial court: (i) made findings in its order that were not supported by the evidence developed at the hearing; (ii) overstated the significance of the flawed DNA evidence in light of other evidence of the defendant’s guilt; and (iii) misapplied the standard for evaluating ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), which requires showing that counsel’s performance “fell below an objective standard of reasonableness” as well as “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”
In a per curiam decision, three justices voted to affirm the order granting the MAR and three justices voted to reverse it. (Justice Ervin did not participate in the decision.) As a result, the superior court’s order granting the MAR and vacating the defendant’s conviction is undisturbed, but stands without precedential value. [Note: the per curiam opinion does not include a factual summary or legal analysis. To review the parties’ arguments, see Appellant’s Brief (12/21/18), Appellee’s Brief (2/22/19), and Appellant’s Reply Brief(3/11/19).]
The court per curiam affirmed an unpublished decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 813 S.E.2d 478 (2018) holding that the trial court erred by denying the defendant’s motion for appropriate relief (MAR) alleging ineffective assistance of appellate counsel with respect to admission of 404(b) evidence of the defendant’s prior sexual acts. The Court of Appeals concluded that the defendant made a sufficient showing of both deficient performance by appellate counsel and actual prejudice. The defendant was charged with statutory sexual offense, sex offense by a substitute parent, indecent liberties with a minor, and sexual battery. The defendant filed two motions in limine to preclude testimony of Melissa and Tony (the defendant’s adult niece and nephew) regarding sexual encounters with the defendant that allegedly occurred while the defendant was a teenager. The trial court denied the defendant’s motions and allowed the witnesses to testify under Rule 404(b). Without any contemporaneous objection by defense counsel, the witnesses testified at trial. The defendant was found guilty and was sentenced to prison. Appellate counsel argued that the trial court erred by admitting testimony by Melissa and Tony. However counsel’s brief ignored the fact that trial counsel failed to object to the testimony when it was offered and did not seek plain error review. After reviewing the brief, a member of the Office of Appellate Defender contacted appellate counsel by email and suggested that he either file a substitute brief requesting plain error review or submit a reply brief explaining how the issue had, in fact, been preserved. Appellate counsel responded stating, in part, that it was not necessary to allege plain error. Subsequently the Court of Appeals held that the defendant failed to preserve the issue for review because trial counsel failed to object to the 404(b) evidence at trial. It further stated that it would not review an appeal for plain error where that issue had not been alleged. The defendant subsequently filed a MAR arguing that appellate counsel’s failure to assert plain error deprived him of his right to effective assistance of appellate counsel. At a hearing on the MAR, appellate counsel acknowledged that his representation was deficient. The trial court however denied the MAR, finding that appellate counsel’s performance did not prejudice the defendant because even if appellate counsel had argued plain error, there was no reasonable probability that the Court of Appeals would have found plain error and reversed the conviction. The defendant filed a petition for writ of certiorari seeking review of the MAR order. The Court of Appeals reversed. It began by considering whether the 404(b) evidence was properly admitted at trial as proof of common plan or scheme. It concluded that assuming arguendo that the acts described were sufficiently similar to the instances alleged by the child victim, the temporal proximity requirement of the 404(b) analysis was not met. Each of the acts in question occurred over 20 years before the first incident described by the child victim in this case. Additionally, there was no evidence of recurring sexual acts, nor did the State establish that the defendant’s lack of access to children explained the lack of allegations of sexual contact between the defendant and minors during the intervening decades. The court went on to reject the State’s alternative argument that the trial court properly admitted the evidence to establish the defendant’s motive. In this respect, the court concluded: “Testimony suggesting that a defendant committed a sexual act with a minor in the past is simply not enough by itself to warrant the admission of such evidence under the ‘motive’ prong of Rule 404(b).”
Having found that the trial court erred by admitting the 404(b) evidence, the court found that the defendant met his burden of showing a reasonable probability that, had the issue been properly raised on appeal, the Court of Appeals would have found plain error and reversed the conviction. Specifically, the court evaluated the evidence in conjunction with the jury’s assessment of the victim’s credibility and the weaknesses in the State’s case, as discussed in the court’s opinion.
Finally, the court determined that appellate counsel performed below an objective standard of reasonableness, satisfying the first prong of the Strickland ineffective assistance of counsel analysis. The court noted, in part, that appellate counsel ignored the fact that trial counsel had failed to object to the evidence at trial, meaning that the issue was not properly preserved for appeal. Although a request for the court of appeals to conduct plain error review was the only recourse available under the circumstances, appellate counsel failed to invoke the plain error doctrine in his appellate brief. This issue was immediately flagged by a member of the Office of Appellate Defender.
In this child sexual assault case, the court reversed the trial court’s order denying the defendant’s Motion for Appropriate Relief (MAR) seeking a new trial for ineffective assistance of counsel related to opinion testimony by the State’s expert. The defendant was convicted of sexual offenses against Kim. On appeal the defendant argued that the trial court should have granted his MAR based on ineffective assistance of both trial and appellate counsel regarding expert opinion testimony that the victim had in fact been sexually abused.
(1) The court began by concluding that the testimony offered by the State’s expert that Kim had, in fact, been sexually abused was inadmissible. The court reiterated the rule that where there is no physical evidence of abuse, an expert may not opine that sexual abuse has in fact occurred. In this case the State offered no physical evidence that Kim had been sexually abused. On direct examination the State’s expert testified consistent with governing law. On cross-examination, however, the expert expressed the opinion that Kim “had been sexually abused.” And on redirect the State’s expert again opined that Kim had been sexually abused. In the absence of physical evidence of sexual abuse, the expert’s testimony was inadmissible.
(2) The court went on to hold, however, that because the defendant failed to raise the issue on direct appeal, his claim that trial counsel was ineffective by failing to move to strike the expert’s opinion that victim Kim had in fact been sexually abused was procedurally defaulted. The record from the direct appeal was sufficient for the court to determine in that proceeding that trial counsel provided ineffective assistance of counsel. Defense counsel failed to object to testimony that was “clearly inadmissible” and the court could not “fathom any trial strategy or tactic which would involve allowing such opinion testimony to remain unchallenged.” And in fact, the trial transcript reveals that allowing the testimony to remain unchallenged was not part of any trial strategy. Moreover trial counsel’s failure to object to the opinion testimony was prejudicial. Because the “cold record” on direct appeal was sufficient for the court to rule on the ineffective assistance of counsel claim, the MAR claim was procedurally barred under G.S. 15A-1419(a)(3).
(3) The court continued, however, by holding that the defendant was denied effective assistance of appellate counsel in his first appeal when appellate counsel failed to argue that it was error to allow the expert’s testimony that Kim had, in fact, been sexually abused. The court noted that the ineffective assistance of appellate counsel claim was not procedurally barred. And, applying the Strickland attorney error standard, the court held that appellate counsel’s failure to raise the issue on direct appeal constituted ineffective assistance of counsel. The court thus reversed and remanded for entry of an order granting the defendant’s MAR.
One judge on the panel concurred with the majority “that appellate counsel was ineffective”; concurred in result only with the majority’s conclusion that the claim regarding trial counsel’s ineffectiveness was procedurally barred; but, concluding that the defendant was not prejudiced by the expert’s testimony, dissented from the remainder of the opinion.
The court reversed the trial court’s order granting the defendant’s motion for reconsideration and motion for appropriate relief (MAR), holding that the requirement that counsel advise the defendant of the immigration consequences of a plea agreement established by Padilla does not apply retroactively. The defendant pled no contest to a drug charge in 1997. In 2015 the defendant asserted a MAR claim under Padilla v. Kentucky, 559 U.S. 356 (2010), that he was not informed of the impact his conviction would have on his immigration status, particularly the risk of deportation. The trial court initially denied the MAR but subsequently granted a motion to reconsider and entered an order granting the MAR. Reversing, the court noted that it had previously decided, in State v. Alshaif, 219 N.C. App. 162 (2012), that Padilla does not apply retroactively.
In this drug trafficking case, the trial court erred by denying the defendant’s motion for appropriate relief (MAR) which asserted ineffective assistance of appellate counsel. Drug were discovered after a vehicle stop. The defendant lost his motion to suppress and after being convicted appealed. On appeal appellate counsel did not challenge the trial court’s findings of fact in connection with the suppression motion, and thus they were binding on appeal. After the Court of Appeals affirmed, the defendant filed a MAR alleging ineffective assistance of appellate counsel. Specifically he asserted that there was no evidence to support the finding of fact that the officer was aware of an inspection violation at the time of the stop. The defendant asserted that if appellate counsel had properly challenged this finding of fact, the court would have reversed the trial court’s denial of the motion to suppress and vacated the convictions. The trial court denied the defendant’s MAR, concluding that to rule favorably would require the court to reverse the order denying the motion to suppress and thus violate the rule that one Superior Court Judge cannot overrule another. The defendant filed a petition for writ of certiorari, which the Court of Appeals granted.
The court began by finding that the rule that one Superior Court Judge cannot overrule another “is generally inapplicable where a judge is tasked with deciding the merits of a defendant’s motion for appropriate relief.” The court noted that such action is authorized by the MAR statute. Thus, the trial court acted under a misapprehension of the law when it denied the defendant’s MAR on grounds that it would impermissibly require the MAR court to overrule another Superior Court Judge.
The court went on to find that the defendant was denied effective assistance of appellate counsel. Appellate counsel’s failure to challenge the trial court’s findings of fact regarding the inspection violation was not a reasonable strategic decision but rather an oversight. In fact, appellate counsel’s affidavit stated that counsel had “missed” the issue. Thus, the defendant satisfied the first prong of his ineffective assistance of counsel claim: deficient performance. The court went on to conclude that the defendant was prejudiced by counsel’s deficient performance. Here, had appellate counsel challenged the trial court’s findings of fact, there is a reasonable probability that the Court of Appeals would have concluded that the trial court’s finding that the stop was initiated because of an inspection violation was not supported by competent evidence and thus could not support the trial court’s conclusion as to the stop’s validity. Specifically, the DMV printout at issue contained no information concerning the vehicle’s inspection status and the officers did not claim any other knowledge of the vehicle’s inspection violation. In light of the actual DMV information presented, the officers could not have known that the vehicle’s inspection was expired at the time of the stop. Given the reasonable probability that the inspection status would not have been found to support the validity of the stop, this court would have proceeded to examine the defendant’s arguments pertaining to the two other grounds upon which the trial court based its denial of his motion to suppress, and it likely would have found for the defendant on both.
(1) Addressing the merits of the defendant’s Strickland ineffective assistance of counsel claim in this direct appeal in a capital case, the court rejected the defendant’s argument that he received ineffective assistance of counsel when his lawyers disclosed to law enforcement where to look for the five-year-old child victim. Because the trial court heard evidence and made findings on this issue in a pretrial motion, the court determined that no further investigation was required and it could address the merits of the claim on direct appeal. After the defendant was charged with kidnapping, he engaged the services of attorney Rogers, who immediately associated with attorney Brewer to assist in the matter. When Rogers and Brewer undertook representation of the defendant on 13 November, the victim had been missing since the morning of 10 November and a massive search was underway, in hope that the child would be found alive. The defendant admitted to police that he had taken the victim to a hotel. Hotel cameras and witnesses confirmed this admission. By 12 November, law enforcement agencies and volunteers were searching the area around Highway 87, where the defendant’s cell phone data had placed him. Rogers had conversations with law enforcement and was aware of the evidence against the defendant and of the defendant’s admission to taking the victim to the hotel. Rogers was also aware of the defendant’s three felony convictions, which constituted aggravating circumstances that could be used at a capital sentencing proceeding. Rogers and Brewer met with the defendant and discussed the fact that the child had not been found and the possibility that capital charges could be forthcoming. The defendant denied hurting or killing the victim. Rogers asked the defendant if he had any information about the victim’s location, and the defendant told Rogers and Brewer that he did. Rogers and Brewer discussed the death penalty with the defendant, and the defendant agreed that it would be in his best interest to offer information that might be helpful as to the victim’s location. Rogers explained that providing this information could be helpful with respect to a possible plea agreement or with respect to mitigating circumstances and could avoid a sentence of death. The defendant agreed with Rogers and Brewer that they would tell law enforcement where to search for the victim, without specifically stating the defendant’s name or that he was the source of the information. According to Rogers, he was trying to give the defendant the best advice to save the defendant’s life, and the defendant understood the situation and agreed with the strategy. On 14 and 15 November Brewer told law enforcement where to look for the victim. On 16 November, the victim’s body was found in the specified area.
On appeal, the defendant argued that his lawyers’ conduct was deficient because they gave the State incriminating evidence against him without seeking any benefit or protection for the defendant in return. He asserted that his attorneys’ conduct was objectively unreasonable because they had a duty to seek or secure a benefit for him in exchange for the disclosure. The court disagreed. The court determined that to the extent counsel has a duty to seek a benefit in exchange for disclosing information, here the lawyers did so. The purpose of the disclosure was to show that the defendant could demonstrate cooperation and remorse, which would benefit the defendant in the form of achieving a plea agreement for a life sentence or as to mitigating circumstances and ultimately to avoid the death penalty. In fact, the State made a plea offer of life in prison, which the defendant rejected, and he later refused to present mitigating evidence at trial. Despite his agreement at the time of the disclosure, the defendant argued on appeal that a plea agreement for life in prison to avoid the death penalty was not a reasonable objective that could justify the disclosure of incriminating evidence at that stage because his attorneys were aware that he denied causing the victim harm and because, according to the defendant, “everything turned” on his innocence defense. The court found this contention difficult to square with the record, in light of the fact that defense counsel also were aware that the defendant had in essence confessed to kidnapping the child in the middle of the night and taking her to a remote hotel where he was the last and only person seen with her. Moreover, they knew he had information on her remote location, though he was unwilling to disclose how he acquired that information. They knew that this information directed law enforcement to search a more specific area in the vicinity in which an extensive search tracking the defendant’s cell phone data was already underway, suggesting an incriminating discovery would be imminent. Thus, while the disclosure certainly would be incriminating to the defendant and could lead to additional incriminating evidence against him, the disclosure must be viewed in light of the already heavily incriminating evidence against the defendant, and the likelihood that further incriminating evidence would be forthcoming.
The defendant further argued that his lawyers should have pushed harder for better concessions for him. Recognizing that in many situations it may make strategic sense for counsel to negotiate the best possible agreement before disclosing potentially incriminating information, the court noted that that is not necessarily true in situations such as this one, where time was a substantial factor. Had law enforcement located the victim’s body before the defendant’s disclosure, the opportunity to obtain any benefit in return for the information would have been irrevocably lost. Additionally, given that the defendant denied causing the victim harm, there was a possibility that the victim was still alive. In the end, the court disagreed with the defendant that his attorneys acted unreasonably by targeting a plea agreement for life imprisonment and avoiding the death penalty in exchange for making the disclosure. “[U]nder the unique and difficult circumstances here--with the already heavily incriminating evidence against defendant, as well as the apparent likelihood that the discovery of further incriminating evidence could be imminent” and the presumption of reasonableness of counsels’ conduct, the court held that the lawyers’ decision to disclose potentially incriminating information with the sought-after goal of avoiding imposition of the death penalty did not fall below an objective standard of reasonableness.
The court determined that it need not resolve the more difficult question of whether defense counsel erred by not first securing or attempting to secure a plea agreement for life in prison before making the disclosure. It explained: “we need not answer this question because, given that we have held that a plea agreement for life in prison and avoidance of the death penalty was a reasonable disposition in these circumstances, defendant cannot establish any prejudice when the State did offer defendant a plea agreement for life in prison.”
(2) The court rejected the defendant’s argument that his attorneys were deficient by failing to conduct an adequate investigation before disclosing to the police where to search for the victim, finding that the defendant’s assertions were not supported by the record. For example, the defendant argued that lawyer Rogers failed to look at any formal discovery materials before making the disclosure, yet Rogers testified that at that early stage of the case there was no discovery file to examine. Considering the defendant’s other assertions, the court found that the defendant was unable to identify anything Roger’s allegedly inadequate investigation failed to uncover and which would have had any effect on the reasonableness of his lawyers’ strategic decision to make the disclosure. Nor, the court noted, does the defendant suggest what other avenues the lawyers should have pursued.
(3) The court rejected the defendant’s assertion that his lawyers erroneously advised him that they would shield his identity as the source of the information but that their method of disclosure revealed him as the source. The defendant’s argument was premised on the fact that his agreement with his lawyers was conditioned on their implicit promise that they would prevent the disclosure from being attributed to the defendant, even by inference. The court found that this assertion was not supported by the record, noting that the entire purpose of the disclosure, to which the defendant agreed, was that it be attributable to the defendant to show cooperation. The court found that the fact that the defendant and his lawyers agreed not to explicitly name the defendant as the source of the disclosure cannot be read as an implicit understanding that his lawyers would shield him as the source but rather must be read in the context of their conversation, in which the defendant told his lawyers that he had information about the victim’s location but did not explain how he had acquired that information. The method of disclosure allowed an immediate inference of cooperation but avoided any inadvertent admission of guilt. The court explained:
Certainly, that the information came from defendant’s attorneys allowed an inference that defendant was the source, which, while demonstrating immediate cooperation on the part of defendant, was also potentially incriminating as it suggested an inference of guilt. But this trade-off goes to the heart of the agreed upon strategy—the mounting evidence against defendant was already highly incriminating, and providing this information to the police that could potentially be further incriminating was a strategic decision made to avoid imposition of the death penalty.
(4) The court rejected the defendant’s argument that by disclosing the location of the victim to the police without first securing any benefit in return, his lawyers were essentially working for the police and that the situation resulted in a complete breakdown of the adversarial process resulting in a denial of counsel. The court declined to consider this issue as a denial of counsel claim, finding that the defendant’s challenge is more properly brought as a Strickland attorney error claim, which the court had already rejected.
The Court of Appeals erred by holding that the defendant received ineffective assistance of counsel when appellate counsel failed to challenge the sufficiency of the evidence supporting the defendant’s armed robbery conviction. Before the Supreme Court, the State argued that appellate counsel made a strategic decision not to challenge the sufficiency of the evidence. However, because the lower courts did not determine whether there was a strategic reason for counsel to refrain from addressing the sufficiency of the evidence, the record was insufficient to determine the merits of the ineffective assistance claim. The court reversed and remanded so that the trial court could fully address whether counsel made a strategic decision not to raise the sufficiency of the evidence argument, if such a decision was reasonable and whether the defendant suffered prejudice.
In this Ashe County case, defendant appealed of his convictions for rape of a child and sex offense with a child, arguing (1) ineffective assistance of counsel by failing to move to suppress evidence obtained from defendant’s cell phone, and (2) structural constitutional error by allowing four disqualified jurors to serve on defendant’s trial. The Court of Appeals found no error.
This opinion represents the second time the Court of Appeals considered defendant’s appeal; in the first instance, State v. Reber, 289 N.C. App. 66 (2023), the court found error in admitting certain prejudicial testimony, ordering a new trial. The Supreme Court then took up the State’s appeal, and reversed and remanded in State v. Reber, 386 N.C. 153 (2024). The current opinion represents the remaining issues not disposed of by the Supreme Court’s opinion.
For (1), defendant argued that he received ineffective assistance of counsel because his attorney did not move to suppress the results of a search of his phone. The court noted the applicable two-part test under Strickland v. Washington, 466 U.S. 668 (1984), and determined defendant could not establish the second prong, prejudice from counsel’s deficient performance. The basis for defendant’s argument was the search warrant application, specifically that it lacked identifying details about the timeline of his communications with the victim and how the police came to possess the phone and connect it to his interactions with the victim. The court noted that a magistrate may draw reasonable inferences when considering an application for a search warrant, and after reviewing the application and affidavit in support of the warrant, concluded “the affidavit set out the underlying circumstances from which the issuing judge could find that probable cause existed” and “the issuance of the warrant was proper.” Slip Op. at 13.
Moving to (2), defendant argued that it was structural constitutional error for the trial judge to allow six jurors who had already served on a case that day to participate in voir dire for defendant’s case because they were disqualified under G.S. 9-3. One of the qualifications for jurors in G.S. 9-3 is that the person “has not served as a juror during the preceding two years,” which defendant argued was violated here by the jurors participating in an earlier trial that day. Id. at 15. Defendant’s case was called to trial on August 3, 2021; earlier that day the jurors in question had served on a misdemeanor stalking case, finding the defendant in that matter not guilty. Afterwards, the judge asked jurors to stay and participate in defendant’s trial. Defense counsel was aware these jurors had served earlier in the day, and four of the six jurors were empaneled for defendant’s jury. Defense counsel did not object to the inclusion of the jurors and used only two of his six peremptory strikes. The court first noted that defendant could not demonstrate prejudice in the jury selection process because “[t]o establish prejudice in jury selection, the defendant must have exhausted all peremptory challenges.” Id. at 17. The court then noted that defendant did not preserve the error for appeal, and this issue did not fall under the structural error framework identified by the U.S. Supreme Court. Regardless of whether defendant successfully preserved his error on appeal, defendant was “unable to show that he was prejudiced by the alleged error or that it deprived him of a fair trial.” Id. at 19.
In this Robeson County case, defendant appealed his conviction for driving while impaired (DWI), arguing error in denying his motion to dismiss and ineffective assistance of counsel. The Court of Appeals dismissed defendant’s argument regarding the motion to dismiss, and found no ineffective assistance of counsel.
In April of 2019, a trooper from the State Highway Patrol arrested defendant after responding to a collision. The trooper observed signs of intoxication and administered field sobriety tests, determining defendant showed signs of intoxication. During the trial at superior court, defendant moved to dismiss the DWI charge for insufficient evidence prior to putting on evidence, but did not renew his motion to dismiss at the close of all evidence.
The Court of Appeals first established that under Rule of Appellate Procedure 10(a)(3), defendant’s failure to renew his motion after putting on evidence waived his argument regarding denial of the motion to dismiss. The court dismissed that portion of defendant’s appeal, and moved to the ineffective assistance of counsel claim, which was predicated on defense counsel failing to renew the motion to dismiss.
To show ineffective assistance of counsel, defendant had to satisfy the two-part test from Strickland v. Washington, 466 U.S. 668 (1984), showing deficient performance and that the deficient performance prejudiced defendant. Here, the court explained that “to prevail on an ineffective assistance of counsel claim in which the defendant argues that his counsel failed to renew his motion to dismiss, the defendant must show that there is a reasonable probability that the trial court would have allowed the renewed motion.” Slip Op. at 7. The court did not find that in the current case, as “when viewing the evidence in the light most favorable to the State, there was substantial evidence that Defendant was driving while impaired.” Id. at 9.
In this Wake County Case, defendant appealed the denial of his motion for appropriate relief (MAR), arguing ineffective assistance of appellate counsel. The Court of Appeals affirmed the denial of his MAR.
This matter has a complicated procedural history, outlined by the court in pages 2-8 of the current opinion. Defendant first came to trial for robbery in 2012. The day before trial was set to commence, the State provided a copy of fingerprints found at the scene to defense counsel, although the State had previously provided a report stating that defendant’s fingerprints were found at the scene. Defense counsel moved for a continuance, but the motion was denied. Defense counsel cross-examined the State’s fingerprint expert during trial, but did not call a fingerprint expert and did not offer any other evidence during the trial. Defendant was convicted and appealed. The matter reached the Court of Appeals for the first time with this direct appeal, where his appellate counsel argued error in denying the motion for continuance and ineffective assistance of trial counsel, but the Court of Appeals found no error.
After defendant’s first appeal was unsuccessful, he filed a MAR for ineffective assistance of appellate counsel, arguing his counsel should have raised the issue of dismissal for lack of evidence based on State v. Irick, 291 N.C. 480 (1977), and related precedent. The reviewing court denied defendant’s MAR. The defendant appealed this denial, reaching the Court of Appeals a second time in State v. Todd, 249 N.C. App. 170 (2016), where the court reversed the MAR denial. This decision was appealed by the State, leading to the Supreme Court’s decision in State v. Todd, 369 N.C. 707 (2017), where the Court determined that the record was insufficient to evaluate the ineffective assistance of counsel claim. After the Supreme Court’s decision, the matter was remanded to the MAR court, but the court failed to act from 2017 until 2021. After finally holding a hearing in February of 2021 and receiving testimony from defendant’s appellate counsel, the MAR court determined it could not establish that counsel was unreasonable by failing to raise an Irick argument on appeal. Defendant again appealed, leading to the current case.
The Court of Appeals took up defendant’s current appeal and applied the two-prong analysis from Strickland v. Washington, 466 U.S. 668 (1984), looking for deficient performance of counsel and prejudice from that deficiency. Turning first to performance, the court explained that the proper analysis was whether appellate counsel failed to raise a claim on appeal that was “plainly stronger” than the ones presented in the appeal at the time the appellate brief was submitted. Slip Op. at 11, quoting State v. Casey, 263 N.C. App. 510, 521 (2019). The court first determined that because the fingerprint evidence was not the sole evidence of defendant’s guilt, Irick’s rule requiring proof the fingerprint evidence was impressed at the time the crime was committed did not apply. Having established that Irick’s rule did not apply, the court shifted back to a normal sufficiency of the evidence analysis, determining that sufficient evidence in the record showed defendant as guilty, and the Irick claim (1) would have failed on appeal, and (2) was not “plainly stronger” than the arguments actually advanced by appellate counsel. Id. at 20. This determination meant that the court did not need to reach the prejudice prong of the analysis, but the court briefly noted that since sufficient evidence was in the record to show defendant’s guilt, he could not show prejudice either.
The defendant was indicted for stalking, violating a domestic violence protective order, and making a false report to law enforcement. The state gave notice of two statutory aggravating factors under G.S. 15A-1340.16(d)(5) (disrupting enforcement of laws) and 1340.16(d)(15) (taking advantage of position of trust), and notice that the state would seek to prove the existence of an additional prior record level point under G.S. 15A-1340.14(b)(7) (defendant was on probation at the time of the offense) for sentencing purposes. The state filed superseding indictments alleging additional offenses, and the defendant was ultimately convicted at trial of one count of perjury and one count of violating a DVPO. At sentencing, the state asked to proceed only on an “aggravating factor” for the defendant being on probation at the time of the offense, and defense counsel admitted that the defendant was on probation. The trial judge found it as an aggravating factor under the catch-all provision in G.S. 15A-1340.16(d)(20) for “any other aggravating factor reasonably related to the purposes of sentencing” and entered an aggravated judgment.
On appeal, the defendant argued he received ineffective assistance of counsel based on his attorney’s failure to object to the aggravating factor, and the appellate court agreed. To pursue one of the enumerated aggravating factors listed in G.S. 15A-1340.16(d), the state must give notice of its intent, but the factor does not have to be pleaded in the indictment. However, aggravating factors under the catch-all provision in section (d)(20) must be “included in an indictment or other charging instrument.” G.S. 15A-1340.16(a4). Defense counsel erred by failing to object to the factor used at sentencing since it was not alleged in any of the indictments, and the defendant suffered prejudice because he otherwise could not have received an aggravated sentence. Even if the state had offered the factor as originally indicated in its notice to add 1 point to defendant’s prior record under G.S. 15A-1340.14(b)(7), it would not have changed his record level and therefore did not expose him to a higher sentence. The appellate court vacated the judgment and remanded for resentencing.
Judge Tyson concurred with the majority opinion, but wrote separately because he also would have found that the trial court erred by accepting a stipulation from defense counsel, instead of addressing the defendant personally to ensure that it was a knowing and voluntary waiver of his right to have the factor proved beyond a reasonable doubt.
In this sex offense case, the trial court did not abuse its discretion by denying the defendant’s motion for a mistrial and instead giving a curative instruction to the jury in response to the State’s objectionable questioning of a witness. Defense counsel did not admit the defendant’s guilt over his objection in violation of State v. Harbison or McCoy v. Louisiana by admitting an element of the charged offense in closing argument.
(1) Prior to trial in response to the defendant’s motion to exclude certain potential testimony, the State agreed to refrain from asking a detective about the victim’s grandmother allegedly pressuring the victim not to testify. At trial, the State asked the victim about the manner in which she had been pressured not to testify and the defendant objected. The trial court sustained the objection but denied the defendant’s motion for a mistrial, instead issuing a curative instruction striking the testimony from the record and from the jury’s consideration. The Court of Appeals determined that the trial court did not abuse its discretion in denying a mistrial and properly exercised its discretion and cured any potential prejudice by issuing the curative instruction and polling the jury.
(2) Even if defense counsel admitted an element of second-degree forcible sexual offense by saying in closing argument that the State would have had a “slam-dunk incest case” if the defendant and the victim were related to each other and referring to an issue of consent under the “dirty and unpalatable” facts of the case, counsel did not violate the defendant’s Sixth Amendment rights by admitting the defendant’s guilt without his consent. The court explained that defense counsel’s statements may have constituted admissions of the “sexual act with another person” element of the crime, but did not constitute an admission of guilt because counsel “vociferously argued” that the defendant did not perpetrate the sexual contact “by force and against the will” of the victim, another element of the crime. First addressing the issue through the lens of ineffective assistance of counsel, the court explained that an admission of an element does not constitute an admission of guilt and consequently counsel’s comments were not a Harbison violation. The court then distinguished defense counsel’s admission of “at most” an element of the offense from the situation in McCoy v. Louisiana, ___ U.S. ___, 138 S. Ct. 1500 (2018) where defense counsel admitted his client’s guilt and found that no Sixth Amendment structural error occurred.
Defendant was convicted in December 2016 of trafficking in opium or heroin and related offenses He appealed, arguing that the trial court erred by failing to instruct the jury that possession pursuant to a valid prescription was a defense to trafficking by possession. The Court of Appeals in State v. Lane, 257 N.C. App. 262 (2017) (unpublished), held the trial court did not commit plain error because defendant could not show that he was prejudiced by the lack of such an instruction. The defendant subsequently filed a motion for relief alleging ineffective assistance of counsel claim based on his trial counsel’s failure to request a jury instruction on the definition of “unlawful” in the context of trafficking by possession or an instruction that possession pursuant to a valid prescription was a defense to trafficking in possession.
The trial court denied relief, concluding that because the defendant was not prejudiced under the plain error standard, his ineffective assistance of counsel claim must also fail. The defendant sought certiorari review, which the Court of Appeals granted.
(1) The Court of Appeals held that the plain error standard and ineffective assistance of counsel test are not so similar that a finding of no plain error precludes a finding of ineffective assistance of counsel. Noting that neither the Court of Appeals nor the North Carolina Supreme Court has thoroughly examined and compared the two standards, the Court of Appeals took the opportunity to do so in Lane II.
Prejudice under plain error requires that the trial court’s error have had a probable impact on the jury’s finding of guilt. The plain error rule requires a defendant to show that the error in question tilted the scales and caused the jury to convict the defendant.
In contrast, prejudice under the ineffective assistance of counsel test requires a showing of 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. Under the reasonable probability standard, a defendant does not have to show that counsel’s deficient conduct more likely than not altered the outcome in the case. The defendant does need to demonstrate, however, that at least one juror would have struck a different balance. While under the reasonable probability standard the likelihood of a different result must be substantial, not just conceivable, it is something less than that required under plain error.
There are other significant differences between the standards. Plain error is applied to trial court errors. Ineffective assistance of counsel applies to counsel errors and takes into account the objective reasonableness of counsel’s performance. Plain error relief requires there be settled precedent at the time of appellate review; the ineffective assistance standard considers available authority at the time of the allegedly deficient representation and may require that counsel raise material issues even absent decisive precedent.
Thus, the court concluded that when deficient performance by counsel creates a fundamentally unfair trial whose results are unreliable, an ineffective assistance of counsel claim will be successful despite the absence of plain error.
(2) Under the facts of the case, the Court of Appeals determined that trial counsel’s failure to request that the jury be instructed on the definition of “unlawful” and on the defense of possession pursuant to a valid prescription did not undermine confidence in the result and did not create a reasonable probability that the result of the proceeding would have been different.
This Mecklenburg County case involved charges of attempted first-degree murder, conspiracy to commit first-degree murder, and assault with a deadly weapon with intent to kill inflicting serious injury. The defendant and two other men (one of whom was unidentified) entered the victim’s home and attacked him with a machete and hammer. The victim’s girlfriend escaped with an infant and called police. The defendant and his named co-conspirator apprehended the girlfriend outside of the home, where the defendant instructed the other man to kill her. He refused, and the defendant fled; the other man stayed with the woman until police arrived (and became the named co-conspirator in the indictment). The defendant was convicted of all charges at trial and sentenced to a minimum term of 336 months.
The defendant failed to preserve his challenge to the sufficiency of the evidence supporting the conspiracy charge. At the motion to dismiss, defense counsel conceded that the state had sufficient evidence for conspiracy. The court declined to invoke Rule 2 of the Appellate Rules of Procedure to reach the issue, finding the case did not present the type of “exceptional circumstances” justifying Rule 2 review. The defendant maintained in the alternative that his trial counsel’s failure to move for dismissal constituted ineffective assistance of counsel (“IAC”). IAC claims are typically reviewed via a motion for appropriate relief, where facts may be developed at an evidentiary hearing. Here, though, the cold record was sufficient for the court to determine the IAC claim. “An attorney’s failure to move to dismiss a charge is not ineffective assistance of counsel when the evidence is sufficient to defeat the motion.” Slip op. at 6. The conspiracy charge here was amply supported by the evidence—it showed three men attacked the victim in the victims in the victims’ bedroom and that the attack was “simultaneous [and] coordinated.” This was substantial evidence of an agreement between the attackers to murder the victim, and the motion to dismiss was properly denied. The defendant thus could not demonstrate prejudice for an IAC claim, and the claim was rejected.
The defendant, a lawful permanent resident, was charged with various drug offenses and pled guilty under Alford to the charges of possession of heroin and maintaining a vehicle or dwelling, for which the trial judge imposed a two-year suspended sentence. About one year into his sentence, the defendant was seized by Immigration and Customs Enforcement (ICE) and placed into detention and removal proceedings. He filed a motion for appropriate relief (MAR), arguing that had he known the plea would affect his immigration status and result in deportation, he would not have taken it. The trial judge denied the MAR. The Court of Appeals granted certiorari and ordered the trial judge to review whether the defendant’s Alford plea was induced by misadvice of counsel and whether the misadvice resulted in prejudice. The trial judge again denied the MAR. He found that the defendant had been advised that he might be deported if he pled guilty and that he should speak to an immigration attorney. The Court of Appeals granted certiorari a second time. Relying on Padilla v. Kentucky, 559 U.S. 356 (2010), and State v. Nkiam, 243 N.C. App. 777 (2015), the Court recognized that it is not sufficient for an attorney to advise a client that there is a risk of deportation where, as here, deportation is presumptively mandatory. The Court stated: “Waffling language suggesting a mere possibility of deportation does not adequately inform the client of the risk before him or her, and does not permit a defendant to make a reasoned and informed decision.” The Court remanded the case to the trial judge to determine prejudice—that is, whether there is a reasonable probability that but for counsel’s ineffective assistance, the result of the proceeding would have been different. The Court specifically directed the trial court to consider the impact of other charges against the defendant. The Court recognized that a defendant cannot show a different outcome, as required by the prejudice standard, if deportation would still result from other charges. The Court found the record insufficient on this issue. The defendant had a prior drug paraphernalia conviction, but that offense does not render him presumptively deportable, and other pending charges, but the record did not contain findings as to whether any other convictions made the defendant deportable.
In this second-degree murder and armed robbery case, the court rejected the defendant’s argument that trial counsel was ineffective by failing to ensure the jury knew that the State’s key witness, Damon Bell, could have been but was not charged with first-degree murder in the case. The defendant’s argument hinged on the notion that Bell’s testimony was the result of a deal or immunity agreement with the State that the jury should have been informed about. The defendant argued that he suffered prejudice because the jury did not know that Bell was receiving something of value in exchange for his testimony which might bear on his credibility. However, counsel repeatedly attempted to elicit that information on cross-examination of both Bell and a Detective. Moreover, during the charge conference counsel requested that the trial court instruct the jury on the testimony of a witness with immunity or quasi-immunity. The prosecutor adamantly maintained that there had been no discussions with Bell or his lawyer related to testifying in exchange for immunity, a reduction in sentencing, or any other concession that might undermine his credibility. The trial court denied the request for the instruction but went on to state that it would instruct the jury on the testimony of interested witnesses and accomplice testimony. The record reveals that no deal or immunity agreement with the State existed. On these facts the court rejected the ineffective assistance of counsel claim.
In this assault case tried as a bench trial, the court rejected the defendant’s argument that he received ineffective assistance of counsel (IAC) when his lawyer failed to assert and argue self-defense. The defendant filed a MAR with his direct appeal, asserting the IAC claim. Finding that it could resolve the issue on direct appeal, the court considered the IAC claim on the merits. The defendant argued that counsel did not give pretrial notice of his intention to present a defense of self-defense and that he failed to mention self-defense in his opening statement, failed to ask the court at the close of the evidence to consider self-defense, and failed to argue self-defense in closing argument. However evidence of self-defense was admitted at trial and the defendant did not argue or allege that he had additional evidence of self-defense that he could have presented at trial or that he was prevented from presenting any evidence supporting his defense. In light of the evidence presented, the issue of self-defense was obvious. Although opening and closing arguments by both the State and the defendant were very brief, this is not unusual in a bench trial. Additionally, counsel did refer to self-defense in his closing argument. The court reasoned:
Defendant argues that his counsel’s failure to give notice of his defense of self-defense prior to trial somehow eliminated the trial court’s ability or authority to consider this defense, but he cites no authority for this assertion. Bench trials differ from jury trials since there are no jury instructions and no verdict sheet to show exactly what the trial court considered, but we also presume that the trial court knows and follows the applicable law unless an appellant shows otherwise
The court continued, noting that if the case had involved a jury trial and counsel had failed to request a jury instruction on self-defense, that could likely be IAC, “since we could not presume the jury knows the law of self-defense.” Similarly, if the case involved a jury trial and the State objected to evidence of self-defense and the trial court had sustained this objection because counsel failed to give proper notice of the defense, that might be IAC. But here, from the evidence and arguments at this bench trial, the defendant’s claim of self-defense was “obvious, and [the] defendant has not shown any indication the trial judge failed to consider that defense.” The court concluded: “Defendant has offered no evidence that the trial court did not consider self-defense during its evaluation, so he has not shown a ‘reasonable probability’ that the ‘result of the proceeding would have been different’ if his counsel had given notice prior to trial of his intent to present a defense of self-defense.”
Considering the merits of the defendant’s ineffective assistance of counsel claim on direct appeal from his conviction of felony assault, the court held that the defendant did not receive ineffective assistance of counsel when trial counsel consented to a mistrial at the first trial. Analyzing the claim under the Strickland attorney error standard, the court held that the defendant failed to show prejudice because the trial court did not abuse its discretion in declaring a mistrial due to manifest necessity. Thus, counsel’s failure to object “was not of any consequence.”
On an appeal from an adverse ruling on the defendant’s motion for appropriate relief (MAR) in this murder case, the court held that because the defendant’s attorney made an objectively reasonable determination that the defendant’s uncle would qualify as his “guardian” under G.S. 7B-2101(b) and therefore did not seek suppression of the defendant’s statements on grounds of a violation of that statute, counsel did not provide ineffective assistance. When he was 13 year old, the defendant a signed statement, during an interrogation, that he “shot the lady as she was sleeping on the couch in the head.” The defendant’s uncle, with whom the defendant had been living, was present during the interrogation. Two weeks later, the trial court sua sponte entered an order appointing the director of the County Department of Social Services as guardian of the person for the defendant pursuant to G.S. 7B-2001. The district court found that “the juvenile appeared in court with no parent, guardian or custodian but he lived with an uncle who did not have legal custody of him” and “[t]hat the mother of the juvenile resides in El Salvador and the father of the juvenile is nowhere to be found and based on information and belief lives in El Salvador.” The defendant was prosecuted as an adult for murder. The defendant unsuccessfully moved to suppress his statement and was convicted. He filed a MAR arguing that his lawyer rendered ineffective assistance by failing to challenge the admission of his confession on grounds that his uncle was not his “parent, guardian, custodian, or attorney[,]” and therefore that his rights under G.S. 7B-2101(b) were violated as no appropriate adult was present during his custodial interrogation. The trial court denied the MAR and it came before the court of appeals. Noting that the statute does not define the term “guardian,” the court viewed state Supreme Court law as establishing that guardianship requires a relationship “established by legal process.” The requirement of “legal process” means that the individual’s authority is “established in a court proceeding.” But, the court concluded, it need not precisely determine what the high court meant by “legal process,” because at a minimum the statute “requires authority gained through some legal proceeding.” Here, the defendant’s uncle did not obtain legal authority over the defendant pursuant to any legal proceeding. Thus, there was a violation of the statute when the defendant was interrogated with only his uncle present. However, to establish ineffective assistance, the defendant must establish that his counsel’s conduct fell below an objective standard of reasonableness. Here, the trial court found--based on the lawyer’s actions and in the absence of any expert or opinion testimony that his performance fell below an objective standard of reasonableness--that defense counsel appropriately researched the issue and acted accordingly. Although the defendant’s counsel made a legal error, it was not an objectively unreasonable one. In the course of its holding, the court noted that expert evidence “is not necessarily required for every claim of [ineffective assistance of counsel],” though “some evidence from practicing attorneys as to the standards of practice is often helpful, particularly in cases such as this where the issue is the interpretation of case law rather than a more blatant error such as a failure to prepare for a hearing at all.” Because the court held the counsel’s conduct did not fall below an objective standard of reasonableness, it did not address the prejudice prong of the ineffective assistance of counsel claim.
In this attempted murder and assault case, the court rejected the defendant’s claim that his lawyer rendered ineffective assistance by failing to object to the introduction of testimony about street gangs. The court rejected the assertion that there was no strategic reason for trial counsel to fail to object to the evidence. The record clearly established that trial counsel’s strategy was to show that the shooting may have been gang related. Counsel’s strategy focused on the victim’s own criminal record and gang connections, the fact that he was shot again when the defendant was incarcerated, and the connection between where the gun was found and the gang with which the victim was associated. Counsel further asserted in jury argument that the prosecution reflected law enforcement tunnel vision and a failure to explore other possible culprits. The court rejected the defendant’s argument that this trial strategy constituted ineffective assistance of counsel.
(1) The court rejected the defendant’s assertion that counsel was ineffective by failing to state for the record details of an absolute impasse between himself and counsel. Although the defendant initially wanted counsel to make certain admissions in opening statements to the jury, after discussing the issue with counsel he informed the court that he would follow counsel’s advice. The court noted there was neither disagreement regarding tactical decisions nor anything in the record suggesting any conflict between the defendant and defense counsel. Although counsel made statements to the trial court indicating that he was having difficulty believing things that the defendant told him, the court noted: “Defendant points to no authority which would require a finding of an impasse where defense counsel did not believe what a criminal-defendant client told him.” (2) Trial counsel did not provide ineffective assistance when he failed to cross-examine witness Tarold Ratlif for a third time about who shot the victim. The defendant asserted that additional questioning would have supported his theory that someone else killed the victim. The court concluded that even assuming arguendo that the defendant satisfied the first prong of the Strickland ineffective assistance of counsel test, he could not--in light of the evidence presented--satisfy the second prong, which requires a showing of prejudice.
(1) In this drug case, the court rejected the defendant’s argument that she received ineffective assistance of counsel when defense counsel elicited damaging testimony from a law enforcement officer that a witness was “honest.” Declining to address whether counsel’s conduct constituted deficient performance, the court concluded that the ineffective assistance of counsel claim failed on the prejudice prong: there was no reasonable probability that in the absence of trial counsel’s alleged errors the results of the proceeding would have been different.
(2) The defendant did not receive ineffective assistance of counsel when counsel failed to object to a law enforcement officer’s testimony that he felt that the defendant should be charged because she was as guilty as her husband. The court noted that because law enforcement officers may not express an opinion that they believe a defendant to be guilty, admission of the statement was error. However, the defendant failed to show prejudice and thus her ineffective assistance of counsel claim failed.
The court rejected the defendant’s argument that trial counsel was deficient by failing to give notice to the State of the defendant’s intention to offer an alibi witness. The defendant had argued that trial counsel’s failure was a violation of the discovery rules and resulted in the trial court declining to give an alibi jury instruction. The court found however that the trial court’s decision declining to give an alibi instruction was not due to ineffective assistance but rather to the trial court’s error. A defendant only is required to give notice of an alibi witness after being ordered to do so by the trial court. Here, no such order was entered. Therefore, counsel was not deficient in failing to disclose the defendant’s intent to offer an alibi witness. The court went on to conclude that even if it were to find that counsel’s performance was deficient, the defendant failed to show prejudice. Although the trial court declined to give an instruction on alibi, the alibi evidence--the defendant’s own testimony that he was elsewhere with his girlfriend at the time of the offense--was heard and considered by the jury.
Counsel was not ineffective by failing to allege a Fourth Amendment violation in a motion to suppress a warrantless blood draw. Here, no prejudice occurred under the Strickland test because there was sufficient evidence for a conviction based driving while under the influence of an impairing substance prong of DWI such that BAC evidence for the .08 prong was not required.
(1) Counsel did not render ineffective assistance by failing to object to a witness’s expert testimony. The expert testified that the fire was intentionally set with the use of an accelerant. The defendant’s trial defense did not challenge this issue but rather focused on whether the State had proved that the defendant was the perpetrator. In light of this, counsel made a reasonable, strategic decision not to object to the witness’s testimony. (2) Counsel did not render ineffective assistance by failing to renew a motion to dismiss at the close of all of the evidence. The defendant could not show prejudice where such a motion, had it been made, would have been denied.
In this attempted felony breaking or entering and habitual felon case, the court rejected the defendant’s argument that he received ineffective assistance of counsel because his trial counsel did not attempt to introduce certain items into evidence. The defendant failed to show that counsel’s performance was deficient or that he was prejudiced by counsel’s action.
In this sex offense case, the court rejected the defendant’s argument that he received ineffective assistance of counsel when counsel failed to object to 404(b) evidence that was properly admitted.
The Harbison standard did not apply to counsel’s comments regarding the “dreadfulness” of the crimes because these comments were not concessions of guilt. Considering these statements under the Strickland standard, the court noted that counsel pointed out to the jury that while the defendant’s crimes were horrible, the central issue was whether the defendant had the necessary mental capacity for premeditation and deliberation. The defendant failed to rebut the strong presumption that counsel’s conduct was reasonable. Additionally no prejudice was established given the overwhelming evidence of guilt.
In this murder case, trial counsel did not render ineffective assistance by failing to produce evidence, as promised in counsel’s opening statement to the jury, that the shooting in question was justified or done in self-defense. After the trial court conducted a Harbison inquiry, defense counsel admitted to the jury that the defendant had a gun and shot the victim but argued that the evidence would show that the shooting was justified. The concession regarding the shooting did not pertain to a hotly disputed factual matter given that video surveillance footage of the events left no question as to whether the defendant shot the victim. The trial court’s Harbison inquiry was comprehensive, revealing that the defendant knowingly and voluntarily consented to counsel’s concession. The court also rejected the defendant’s argument that making unfulfilled promises to the jury in an opening statement constitutes per se ineffective assistance of counsel. And it found that because counsel elicited evidence supporting a defense of justification, counsel did not fail to fulfill a promise made in his opening statement. The court stated: “Defense counsel promised and delivered evidence, but it was for the jury to determine whether to believe that evidence.”
In this appeal from a motion for appropriate relief (MAR), the court held that advice provided by the defendant’s counsel in connection with his plea did not comply with Padilla v. Kentucky, 559 U.S. 356 (2010) (incorrect advice regarding the immigration consequences of a guilty plea may constitute ineffective assistance). The defendant was a permanent resident of the United States. After he pled guilty to aiding and abetting robbery and conspiracy to commit robbery, the federal government initiated deportation proceedings against him. The defendant then filed a MAR asserting ineffective assistance of counsel. At issue was counsel’s advice regarding the immigration consequences of the defendant’s guilty plea. It was undisputed that defense counsel informed the defendant that his plea carried a “risk” of deportation. The court noted that “[t]his case is the first in which our appellate courts have been called upon to interpret and apply Padilla’s holding.” The court interpreted Padilla as holding: “when the consequence of deportation is unclear or uncertain, counsel need only advise the client of the risk of deportation, but when the consequence of deportation is truly clear, counsel must advise the client in more certain terms.” In this case, “there was no need for counsel to do anything but read the statute,” to understand that the deportation consequences for the defendant were truly clear. Thus, counsel was required, under Padilla, “’to give correct advice’ and not just advise defendant that his ‘pending criminal charges may carry a risk of adverse immigration consequences.’” The court remanded for determination of whether the defendant was prejudiced by counsel’s deficient performance.
Without addressing the deficient performance prong of the Strickland test, the court held that the defendant did not receive ineffective assistance of counsel where he was not prejudiced by counsel’s conduct. The defendant had complained of counsel’s failure to object to a law enforcement officer’s testimony about the victim’s demeanor and counsel’s failure to object to the striking of a defense witness’s testimony.
No error occurred when the trial court denied defense counsel’s request for an overnight recess after having to defend himself against the State’s motion for contempt based on an allegation that counsel violated the court’s order regarding the rape shield rule in connection with his examination of the victim in this child sexual abuse case. After the trial court denied the State’s motion, defense counsel requested an overnight recess to “calm down” about the contempt motion. The trial court denied this request but at 11:38 am called a recess until 2 pm that day. The court rejected the defendant’s arguments that there was a conflict of interest between the defendant and defense counsel and that the trial court’s denial of the overnight recess resulted in ineffective assistance of counsel.
Considering the defendant’s ineffective assistance of counsel claim on appeal the court rejected his contention that counsel was ineffective by eliciting hearsay evidence that conflicted with his claim of self-defense, concluding that the evidence did not contradict this defense. It also rejected his contention that counsel was ineffective by failing to object to evidence that the defendant sold drugs on a prior occasion, concluding that even if this constituted deficient representation, there was no reasonable possibility that the error affected the outcome of the case. Finally, the court rejected the defendant’s contention that counsel was ineffective by failing to move to dismiss the charges at the close of the evidence, concluding that given the evidence there was no likelihood that the trial court would have granted the motion.
The defendant was not denied effective assistance of counsel in a case where defense counsel had a meeting with the State’s witnesses in which they offered to drop the charges against the defendant in exchange for compensation. Defense counsel cross-examined the witnesses extensively about their visit to his office and the resulting discussion, including that defense counsel did not give them any money or otherwise cooperate with their demands. Through cross-examination and closing argument, counsel called issues with the witnesses’ credibility to the attention of the jury. Counsel was able to make the required points without serving as a witness in the defendant’s trial.
(1) On direct appeal, the court rejected the juvenile’s assertion that counsel’s failure to make a closing argument in a delinquency proceeding was per se ineffective assistance. (2) In a delinquency case in which the juvenile was alleged to have assaulted another child, the court rejected the juvenile’s argument that he received ineffective assistance of counsel when defense counsel failed argue that the incident was an accident that occurred during horseplay. Given counsel’s cross-examination of the victim and other witnesses and direct examination of the juvenile, counsel’s conduct did not fall below an objective standard of reasonableness. Nor was prejudice established.
Counsel was ineffective by failing move to suppress evidence obtained by a “patently unconstitutional seizure.” The State conceded that the evidence was obtained illegally but argued that counsel’s failure to move to suppress could have been the result of trial strategy. The court rejected this argument, noting in part trial counsel’s affidavit stating that he had no strategic reason for his failure. Trial counsel’s conduct fell below an objective standard of reasonableness and the defendant suffered prejudice as a result.
Counsel rendered ineffective assistance by failing to file what would have been a meritorious motion to suppress.
Citing Lafler v. Cooper, 566 U.S. 156 (2012) (defense counsel rendered ineffective assistance by advising a defendant to reject a plea offer), the court dismissed without prejudice the defendant’s claim that defense counsel rendered ineffective assistance by advising him to reject a favorable plea offer. The court noted that the defendant may reassert his claim in a MAR.
Although counsel provided deficient performance in this sexual assault case, the defendant was not prejudiced by this conduct and thus the defendant’s claim of ineffective assistance of counsel must fail. The defendant argued that counsel was ineffective when he asked the defendant on direct examination if he had “ever done such a thing before,” despite knowing that other sexual offense charges were pending against the defendant. When the defendant responded in the negative, this opened the door to the State calling another witness to testify about the defendant’s alleged sexual abuse of her. Counsel’s performance fell below an objective standard of reasonableness because there was no strategic benefit in opening the door to this testimony. However, because the evidence about the other pending charges did not likely affect the verdict, no prejudice resulted.
In a sex offense case, the defendant received ineffective assistance of counsel when counsel failed to object to the prosecutor’s motion in limine to exclude specific reference to a prior DSS hearing and/or to clarify the evidence regarding that hearing. At the prior hearing the district court considered a DSS petition for abuse, neglect, and dependency of the defendant’s children and concluded that the children were not sexually abused but were neglected. At the criminal trial, the trial court granted the State’s motion in limine to exclude specific references to the outcome of the DSS hearing. Defense counsel did not object to this motion. A DSS social worker then testified to the victim’s allegations of sexual abuse and stated that DSS removed the defendant’s children from the home. Because of this testimony, the jury would have thought that the children were removed due to the sexual abuse allegations when in fact they were removed due to neglect.
In a child sexual assault case, defense counsel’s failure to move to strike testimony of a forensic interviewer that the fact that a young child had extensive sexual knowledge suggested that “something happened,” did not constitute deficient performance.
(1) The defendant’s claim that trial counsel was ineffective by failing to object to a videotape of the defendant’s interrogation fails because even if counsel had objected, the objection would have been overruled when the defendant opened the door to the evidence through his own trial testimony. (2) The defendant failed to demonstrate that counsel’s performance was deficient. As noted, the defendant’s own testimony opened the door to admission of the videotape. Trial counsel made a strategic decision to have the defendant testify to offer an alibi. On appeal, the defendant did not challenge this strategy, which the jury rejected, and thus did not overcome the presumption that counsel’s trial strategy was reasonable.
When a defendant discharges counsel and proceeds pro se, he or she may not assert a claim of ineffective assistance of counsel with regard to his or her own representation.
In this indecent liberties case, the defendant waived any right of appellate review with respect to his arguments challenging admission of his inculpatory statements (he had asserted a Miranda violation and that the statements were involuntary). The defendant has the burden of establishing that a motion to suppress is made both timely and in proper form. Here, the defendant failed to meet that burden and thus waved appellate review of these issues. The court continued, however, holding that the record was insufficient to consider the defendant’s related ineffective assistance of counsel claim, and dismissed that claim without prejudice to the defendant’s right to file a motion for appropriate relief in superior court.
In this child sexual assault case, the court reversed the trial court’s order denying the defendant’s Motion for Appropriate Relief (MAR) seeking a new trial for ineffective assistance of counsel related to opinion testimony by the State’s expert. The defendant was convicted of sexual offenses against Kim. On appeal the defendant argued that the trial court should have granted his MAR based on ineffective assistance of both trial and appellate counsel regarding expert opinion testimony that the victim had in fact been sexually abused.
(1) The court began by concluding that the testimony offered by the State’s expert that Kim had, in fact, been sexually abused was inadmissible. The court reiterated the rule that where there is no physical evidence of abuse, an expert may not opine that sexual abuse has in fact occurred. In this case the State offered no physical evidence that Kim had been sexually abused. On direct examination the State’s expert testified consistent with governing law. On cross-examination, however, the expert expressed the opinion that Kim “had been sexually abused.” And on redirect the State’s expert again opined that Kim had been sexually abused. In the absence of physical evidence of sexual abuse, the expert’s testimony was inadmissible.
(2) The court went on to hold, however, that because the defendant failed to raise the issue on direct appeal, his claim that trial counsel was ineffective by failing to move to strike the expert’s opinion that victim Kim had in fact been sexually abused was procedurally defaulted. The record from the direct appeal was sufficient for the court to determine in that proceeding that trial counsel provided ineffective assistance of counsel. Defense counsel failed to object to testimony that was “clearly inadmissible” and the court could not “fathom any trial strategy or tactic which would involve allowing such opinion testimony to remain unchallenged.” And in fact, the trial transcript reveals that allowing the testimony to remain unchallenged was not part of any trial strategy. Moreover trial counsel’s failure to object to the opinion testimony was prejudicial. Because the “cold record” on direct appeal was sufficient for the court to rule on the ineffective assistance of counsel claim, the MAR claim was procedurally barred under G.S. 15A-1419(a)(3).
(3) The court continued, however, by holding that the defendant was denied effective assistance of appellate counsel in his first appeal when appellate counsel failed to argue that it was error to allow the expert’s testimony that Kim had, in fact, been sexually abused. The court noted that the ineffective assistance of appellate counsel claim was not procedurally barred. And, applying the Strickland attorney error standard, the court held that appellate counsel’s failure to raise the issue on direct appeal constituted ineffective assistance of counsel. The court thus reversed and remanded for entry of an order granting the defendant’s MAR.
One judge on the panel concurred with the majority “that appellate counsel was ineffective”; concurred in result only with the majority’s conclusion that the claim regarding trial counsel’s ineffectiveness was procedurally barred; but, concluding that the defendant was not prejudiced by the expert’s testimony, dissented from the remainder of the opinion.
In this Wayne County case, defendant appealed judgments for possession of heroin and cocaine and resisting a public officer, arguing error in failing to order a competency hearing sua sponte and ineffective assistance of counsel. Defendant’s appellate counsel also filed a brief under Anders v. California, 386 U.S. 738 (1967), requesting the Court of Appeals conduct an independent review of the record. After review, the court found no error with the lack of a competency hearing, dismissed the ineffective assistance of counsel argument without prejudice, and remanded the matter to the trial court for review of whether defendant validly waived indictment.
Defendant’s convictions arose from separate incidents in December 2018 and April 2021, where defendant was found with heroin and cocaine, respectively. In May of 2022 defendant pleaded guilty to the charges. Defendant’s appellate counsel then filed an Anders brief and defendant filed arguments on his own.
Examining defendant’s first argument, the Court of Appeals disagreed that the trial court committed error by failing to order a competency hearing. The court noted that no party raised the issue of defendant’s capacity, and “the trial court extensively inquired as to Defendant’s mental capacity and understanding of the proceedings.” Slip Op. at 4. The applicable standard from State v. Heptinstall, 309 N.C. 231 (1983), only requires a trial court to order a hearing sua sponte if substantial evidence before the court indicates the defendant is incompetent. Because there was no substantial evidence of defendant’s lack of capacity before the trial court here, there was no error.
Considering the ineffective assistance of counsel argument, the court explained that generally these claims “should be considered through motions for appropriate relief and not on direct appeal.” Slip Op. at 7. Because the record here was not fully developed to consider defendant’s argument regarding his representation, the court dismissed the claim without prejudice so that defendant could file a motion for appropriate relief with the trial court.
Conducting the independent review requested by defense counsel’s Anders brief, the court identified one possible error with the information related to the April 2021 charges. On the last page of the information, a file number was crossed out and replaced with a partially illegible handwritten number. The court explained “[w]hile this may be a scrivener’s error, our independent review of the Record at least reveals this potential issue of whether Defendant validly waived his right to indictment by a grand jury specifically in file number 18 CRS 55019.” Id. at 9. Based on this issue, the court remanded to the trial court to ensure the waiver of indictment was valid.
In this Haywood County case, defendant appealed his convictions for multiple felony and misdemeanor child abuse offenses, arguing a range of issues related to sentencing and errors by the trial court, as well as possible ineffective assistance of counsel. The Court of Appeals agreed with defendant’s sentencing arguments and remanded for resentencing, but found no prejudicial or plain error. The court dismissed defendant’s ineffective assistance of counsel claim without prejudice to allow him to file a motion for appropriate relief with the trial court.
Defendant came to trial in October of 2017 for abusing the children of his wife over the course of several years. Abuse included paddling one child victim so hard she suffered permanent injuries and required medical treatment. At trial, the jury found defendant guilty of all charges against him except for rape, and also found an aggravating factor that defendant took advantage of a position of trust or confidence. The trial court sentenced defendant to higher classifications of intentional child abuse inflicting serious bodily injury (“ICAISBI”) and intentional child abuse inflicting serious physical injury (“ICAISPI”) due to the aggravating factor.
The Court of Appeals first identified defendant’s meritorious issues, explaining that under applicable law, the evidence necessary to prove an element of the offense cannot be used as an aggravating factor. Here, “both misdemeanor and felony child abuse require showing the defendant is a ‘parent . . . or . . . other person providing care to or supervision of [a] child,’” meaning the aggravating factor could not be applied to defendant. Slip Op. at 10, quoting GS §§ 14-318.2 & -318.4. The state conceded this error, and the court remanded all convictions for resentencing.
The court next considered defendant’s argument that his ICAISPI and ICAISBI convictions were ambiguous due to a change in the felony classifications on December 1, 2013. Because the abuse in question occurred between January 2009 and March 2014, and the jury did not perform a specific finding of the date of the offenses, the court found that the verdict was ambiguous. Noting that this seemed to be a matter of first impression, the court explained:
[W]e have not found, and the parties have not provided, a published case resolving whether a general verdict is rendered ambiguous by evidence showing the completed offense may have been committed on either temporal side of a statutory reclassification of the crime. . . . [W]e hold that the general verdict is ambiguous under these circumstances and a defendant, absent a determination by the jury by special verdict form as to the specific date of or date range of offense sufficient to determine which sentencing regime is applicable, must be sentenced under whichever statutory classification is lower.
Id. at 12. The court remanded for resentencing the ICAISPI and ICAISBI offenses at their lower pre-elevation levels because the court could not engage in speculation about which dates supported the jury’s decision to convict defendant.
The court did not find merit in defendant’s argument that the scarring one victim suffered from paddling could not support a finding of serious bodily injury. Instead, the court drew a distinction between cases with “superficial” or “aesthetic” injuries with the more serious, permanent injuries suffered by the victim in this matter. Likewise, the court rejected defendant’s argument that the jury verdict sheet for ICAISBI represented error, as it asked the jury to determine if defendant was guilty of “inflicting permanent scarring to the buttocks and/or legs” of the victim. Id. at 23. The court explained that the indictment and jury instructions given by the trial court adequately explained all elements of the offense.
The court also rejected defendant’s arguments regarding lesser included offenses. The court considered and rejected defendant’s argument regarding lawful corporal punishment, explaining that overwhelming evidence showed the acts were not within the bounds of lawful punishment. Finally, the court rejected defendant’s argument the trial court erred by preventing the disclosure of juvenile records.
For defendant’s ineffective assistance of counsel claim, the court explained that the record was insufficient to determine whether defense counsel made certain strategic decisions, and “[w]hen the record is silent on that question of fact—as in this case—the appropriate action is to allow an evidentiary hearing by MAR.” Id. at 35.
In this child sex offense case, because the record was insufficient to allow review of the defendant’s claim that he received ineffective assistance of counsel at trial, the court dismissed the appeal without prejudice to the defendant’s right to pursue the claim in a motion for appropriate relief in the trial court.
The court declined to address the defendant’s claim that he received ineffective assistance of counsel when his lawyer failed to object to and agreed to the admission of a hearsay statement and failed to request a jury instruction on the ultimate user exception to the Control Substances Act. The court noted that the record was insufficient to determine whether trial counsel was ineffective or whether there was a reasonable, strategic reason for counsel’s actions, and dismissed the claim without prejudice to the defendant’s right to assert it in a motion for appropriate relief.
Finding the record in this child sexual assault case insufficient to rule on the defendant’s ineffective assistance of counsel claim, the court denied the claim without prejudice to the defendant’s right to assert it in a MAR proceeding. The defendant argued that he received ineffective assistance of counsel when his lawyer elicited evidence of guilt that the State had not introduced. Specifically, he argued that while the State only elicited testimony from the victim about one instance of sexual intercourse with the defendant, defense counsel asked the victim a leading question implying that she had sex with the defendant on two occasions.
Considering the merits of the defendant’s ineffective assistance of counsel claim on direct appeal from his conviction of felony assault, the court held that the defendant did not receive ineffective assistance of counsel when trial counsel consented to a mistrial at the first trial. Analyzing the claim under the Strickland attorney error standard, the court held that the defendant failed to show prejudice because the trial court did not abuse its discretion in declaring a mistrial due to manifest necessity. Thus, counsel’s failure to object “was not of any consequence.”
The court dismissed the defendant’s claim that counsel’s trial strategy constituted ineffectiveness under Strickland. This claim was dismissed without prejudice to the defendant’s right to assert the claim in a Motion for Appropriate Relief.
The defendant’s claim that trial counsel was ineffective by failing to object to a videotape of the defendant’s interrogation was properly considered on appeal. Although the defendant asked the court to dismiss his claim without prejudice to raise it in a motion for appropriate relief, he failed to identify how the record on appeal was insufficient to resolve the claim.