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., 10/21/2021
E.g., 10/21/2021

The Ninth Circuit erred by concluding that the California “Dixon bar”--providing that a defendant procedurally defaults a claim raised for the first time on state collateral review if he could have raised it earlier on direct appeal—was inadequate to bar federal habeas review. Federal habeas courts generally refuse to hear claims defaulted in state court pursuant to an independent and adequate state procedural rule. State rules are “adequate” if they are firmly established and regularly followed. California’s Dixon bar meets this standard.

Beard v. Kindler, 558 U.S. 53 (Dec. 8, 2009)

A federal habeas court will not review a claim rejected by a state court if the state court decision rests on an adequate and independent state law ground. The Court held that a state rule is not inadequate for purposes of this analysis just because it is a discretionary rule.

(1) On review of a divided panel of the Court of Appeals, ___ N.C. App. ___, 797 S.E.2d 308 (2017), in this murder case, the court affirmed the holding of the Court of Appeals that the defendant’s ineffective assistance of counsel (IAC) claim was not procedurally barred under G.S. 15A-1419(a)(3) (a claim asserted in a MAR must be denied if, upon a previous appeal, the defendant was in a position to adequately raise the ground or issue underlying the present motion but did not do so). To be subject to the G.S. 15A-1419(a)(3) procedural default bar, the direct appeal record must contain sufficient information to permit the reviewing court to make all the factual and legal determinations necessary to allow a proper resolution of the claim. Here, the defendant was not in a position to adequately raise the IAC claim on direct appeal. A Strickland IAC claim requires a defendant to show both deficient performance and prejudice. The nature of the defendant’s claim would have required him to establish that his attorney was in a position to provide favorable testimony on his behalf, that her failure to withdraw from representing the defendant in order to testify on his behalf constituted deficient performance, and if she had acted as he asserts she should have, there is a reasonable probability that he would not have been found guilty of murder. Here, the defendant would have been unable to make a viable showing based on the evidentiary record developed at trial.

(2) Reversing the Court of Appeals, the court found that the record contains adequate evidentiary support for the trial court’s findings that the factual basis for the defendant’s IAC claim did not exist. The defendant’s IAC claim alleged that his lawyer should have withdrawn from representing him at trial and testified on his behalf with respect to a conversation that she had with a witness. The trial court found as a fact that the defendant presented no credible evidence during the MAR hearing that the alleged conversation between defense counsel and the witness ever took place. After reviewing the evidence presented before the trial court, the court found that the record contains sufficient evidence to support the trial court’s finding of fact that the alleged conversation never occurred.

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.

(1) On remand from the state Supreme Court, the court rejected the defendant’s argument that the trial court erred by concluding that he was procedurally barred from reasserting in his MAR a dual representation conflict of interest ineffective assistance of counsel claim with respect to attorney Smallwood. Because this court on direct appeal addressed the merits and rejected this claim, the trial court properly concluded that it was procedurally defaulted under G.S. 15A-1419(a)(2) (claim previously determined on the merits).

(2) The court then turned to the defendant’s claim that he received ineffective assistance of counsel from attorney Warmack at the evidentiary remand hearing because Warmack had a dual representation conflict arising from having previously represented codefendant Swain. The court held that the trial court erred by finding that this claim was procedurally barred under G.S. 15A-1419(a)(3) (failure to raise on appeal), reasoning that the defendant was not in a position to adequately raise the claim on direct appeal. The court further found that the record was insufficient to establish that the defendant knowingly, intelligently, and voluntarily waived Warmack’s potential conflict and that the trial court erred by concluding otherwise.

The trial court erred by summarily denying the defendant’s motion for appropriate relief (MAR) and accompanying discovery motion. In the original proceeding, the trial court denied the defendant’s motion to suppress in part because it was not filed with the required affidavit. After he was convicted, the defendant filed a MAR asserting that trial counsel was ineffective in failing to file the required affidavit. The trial court denied the MAR and the court of appeals granted certiorari. The court rejected the State’s argument that because the defendant failed to raise the ineffectiveness claim on direct appeal, he was procedurally defaulted from raising it in the MAR. The court reasoned that the record did not provide appellate counsel with sufficient information to establish the prejudice prong of the ineffectiveness test. Specifically, proof of this prong would have required appellate counsel to show that the defendant had standing to challenge the search at issue. 

The court suggested in dicta that on a motion for appropriate relief (as on appellate review) a defendant may be deemed to have waived errors in jury instructions by failing to raise the issue at trial. However, the court did not decide the issue since it concluded that even when considered on the merits, the defendant’s alleged instructional error lacked merit.

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