Opinion
No. COA09-795
Filed 18 May 2010 This case not for publication
Appeal by defendant from judgments entered 6 October 2008 by Judge Robert H. Hobgood in Durham County Superior Court. Heard in the Court of Appeals 19 April 2010.
Attorney General Roy Cooper, by Special Deputy Attorney General Kay Linn Miller Hobart, for the State. Jarvis John Edgerton, IV, for defendant appellant.
Durham County Nos. 07 CRS 50074, 51557, 07 CRS 13547.
Defendant appeals from judgments consistent with jury verdicts finding him guilty of second-degree rape, second-degree kidnapping, assault inflicting serious bodily injury, assault by strangulation and simple assault. In his sole assignment of error, defendant contends that he received ineffective assistance of counsel. For the following reasons, we dismiss the appeal without prejudice for defendant to file a motion for appropriate relief.
FACTUAL BACKGROUND
The State's evidence tended to show that defendant and S.T. lived together in Durham between June and August of 2007. On the morning of 4 August 2007, as S.T. was leaving for work, defendant came home after staying out all night with his friends. When S.T. returned home from work later that day, defendant accused her of not being at work. Defendant came up behind S.T. and punched her, breaking her dentures and knocking out a tooth. Defendant then grabbed S.T. and dragged her to the bathroom. Defendant stated, "I'm going to kill you, bitch, and then I'm going to kill myself." Defendant knocked S.T. to the floor, hit her in the ribs, kneed her in the ribs, and choked her. S.T. escaped from the bathroom into the living room.
Defendant followed S.T. and accused her of having sex with someone else, which S.T. denied. Defendant told S.T., "You didn't have sex with somebody but you going to have sex with me." S.T. told defendant that she did not want to have sex with him because he had stayed out the night before. Defendant made S.T. get on the couch and raped her. Defendant then had S.T. lie down with him. S.T. did not leave the apartment until the next morning when she went to work. The manager at work asked S.T. about her injuries. S.T. told her manager that her boyfriend, defendant, had beaten her up. The manager called the police and S.T. was transported to the hospital where she was examined by a sexual assault nurse. S.T. told the sexual assault nurse that defendant hit her in the mouth, dragged her around the house, choked her and sexually assaulted her.
At trial, the nurse testified that she "remembered [S.T.'s] case because there were so many injuries. And typically in sexual assault cases there really aren't that many injuries on a patient." On cross-examination, defense counsel asked the nurse if it was true that "there is no evidence contained in that report, other than the assertions made by [S.T.], that [defendant] is responsible for any of the injuries that are expressed in the report?" The nurse answered, "Yes." S.T. testified that her injuries included a black eye, bruised arm, bruised ribs, broken dentures, and a dislodged tooth.
A jury found defendant guilty of second-degree rape, second-degree kidnapping, assault inflicting serious bodily injury, assault by strangulation and simple assault. Defendant subsequently pled guilty to attaining habitual felon status. After arresting judgment for the second-degree kidnapping conviction, the trial court sentenced defendant to three consecutive terms of 167 to 210 months for the felony rape and two assault convictions, and 120 days for the simple assault conviction, to run concurrently. Defendant appeals arguing that he received ineffective assistance of counsel.
ARGUMENT ON APPEAL
The preferred method for raising ineffective assistance of counsel is by a motion for appropriate relief made in the trial court. A defendant's ineffective assistance of counsel claim "brought on direct review will be decided on the merits when the cold record reveals that no further investigation is required, i.e., claims that may be developed and argued without such ancillary procedures as the appointment of investigators or an evidentiary hearing." State v. Fair, 354 N.C. 131, 166, 557 S.E.2d 500, 524 (2001).
The test for ineffective assistance of counsel is the same under both State and Federal Constitutions. State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985). When a defendant attacks his representation by counsel on the basis that counsel was ineffective, he must show that his counsel's conduct fell below an objective standard of reasonableness. Id. To meet this burden defendant must satisfy a two-part test set out in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674 (1984).
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Id. at 687, 80 L. Ed. 2d at 693.
Defendant argues that he received per se ineffective assistance of counsel because his trial attorney commented during closing argument that there was evidence of serious injury. Defendant argues that the challenged comments were tantamount to an admission of guilt which he did not authorize his attorney to make.
In State v. Harbison, 315 N.C. 175, 337 S.E.2d 504 (1985), our Supreme Court held that
[w]hen counsel admits his client's guilt without first obtaining the client's consent, the client's rights to a fair trial and to put the State to the burden of proof are completely swept away. The practical effect is the same as if counsel had entered a plea of guilty without the client's consent. Counsel in such situations denies the client's right to have the issue of guilt or innocence decided by a jury.
Id. at 180, 337 S.E.2d at 507. Under such circumstances, "[an] admission of the defendant's guilt during the closing arguments to the jury is per se prejudicial error." Id. at 177, 337 S.E.2d at 505. Moreover, "statements contained in closing arguments to the jury are not to be placed in isolation or taken out of context on appeal. Instead, on appeal we must give consideration to the context in which the remarks were made and the overall factual circumstances to which they referred." State v. Green, 336 N.C. 142, 188, 443 S.E.2d 14, 41 (1994). Specifically, in Harbison, our Supreme Court ruled that the defendant received ineffective assistance of counsel where he presented evidence that he had killed in self-defense, and to defendant's surprise, his attorney expressed an opinion during his closing argument that the jury should return a verdict of guilty of voluntary manslaughter as opposed to first-degree murder. Harbison, 315 N.C. at 177-78, 337 S.E.2d at 506.
Here, when viewed in context, we have an insufficient record to determine whether counsel's statements during closing arguments constituted ineffective assistance of counsel per se under Harbison. Counsel made the following argument:
The State's case is because. And if this — that's a child's argument. That's a child's argument. "Why'd you do that?" "Because."
That's not an argument that puts a man in jail for who knows how long. That is not an argument that could be — that could stand in this court.
. . . .
I want to — I'll tell you, there was no test of objective proof of any of the facts alleged by the State. And there wasn't.
And I said that the State's evidence would be insufficient because of that. And it is.
But the most significant piece of the puzzle that [the State] didn't present to you was any objective testing, any objective data. That was not presented.
. . .
There was no CSI moments in this trial. There was no objective data testing, none.
There is no doubt that however [S.T.] was injured was horrific. I mean — well, certainly, she sustained serious injuries. Uh-huh, there's no question about that.
While defense counsel made no express admission of guilt as he told the jury that the State did not prove its case, counsel did state S.T. sustained serious injuries.
The State argues correctly that there is no evidence before the court as to whether defendant consented to defense counsel's alleged concession of serious bodily injury. The present record fails to reveal whether the statement was tactical or strategic, or the result of some deficiency on the part of trial counsel.
Accordingly, we dismiss the appeal without prejudice for defendant to move for appropriate relief to enable defendant to assert his claim therein.
No error.
Judges McGEE and GEER concur.
Report per Rule 30(e).