Smith's Criminal Case Compendium

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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E.g., 12/05/2021
E.g., 12/05/2021

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.” 

Weaver v. Massachusetts, 582 U.S. ___, 137 S. Ct. 1899 (June 22, 2017)

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.

Missouri v. Frye, 566 U.S. 133 (Mar. 21, 2012)

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. 

Lafler v. Cooper, 566 U.S. 156 (Mar. 21, 2012)

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.

Premo v. Moore, 562 U.S. 115 (Jan. 19, 2011)

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.

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.

Sears v. Upton, 561 U.S. 945 (June 29, 2010)

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.

Wood v. Allen, 558 U.S. 290 (Jan. 20, 2010)

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.

Smith v. Spisak, 558 U.S. 139 (Jan. 12, 2010)

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.

Porter v. McCollum, 558 U.S. 30 (Nov. 30, 2009)

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.

Wong v. Belmontes, 558 U.S. 15 (Nov. 16, 2009)

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). 

Bobby v. Van Hook, 558 U.S. 4 (Nov. 9, 2009)

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.

Knowles v. Mirzayance, 556 U.S. 111 (Mar. 24, 2009)

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. 

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.

State v. Ryan, 371 N.C. 445 (Sept. 27, 2019)

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.

(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.

 

State v. Todd, 369 N.C. 707 (June 9, 2017)

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 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.

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.

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.

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.

State v. Chavez, ___ N.C. App. ___, ___ S.E.2d ___ (Apr. 7, 2020) rev’d in part on other grounds, ___ N.C. ___, 2021-NCSC-86 (Aug 13 2021)

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.

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, 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.

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.

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 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 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.

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.

State v. Meadows, , ___ N.C. App. ___, 806 S.E.2d 682 (Oct. 17, 2017) modified and affirmed on other grounds, ___ N.C. ___, ___ S.E.2d ___ (Dec 7 2018)

(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.

 

(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.

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.

State v. Cook, 246 N.C. App. 266 (Mar. 15, 2016)

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.

State v. King, 235 N.C. App. 187 (July 15, 2014)

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. 

In Re C.W.N., 227 N.C. App. 63 (May. 7, 2013)

(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.

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.

State v Canty, 224 N.C. App. 514 (Dec. 18, 2012)

Counsel rendered ineffective assistance by failing to file what would have been a meritorious motion to suppress.

State v. Hunt, 221 N.C. App. 489 (July 17, 2012) aff’d per curiam, 367 N.C. 700 (Dec 19 2014)

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.

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