State v. Jones, ___ N.C. App. ___, 816 S.E.2d 921 (Jun. 19, 2018)

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.”