Opinion
No. COA10-1036
Filed 17 May 2011 This case not for publication
Appeal by defendant from judgment entered 29 January 2010 by Judge Michael R. Morgan in Wake County Superior Court. Heard in the Court of Appeals 9 March 2011.
Attorney General Roy Cooper, by Assistant Attorney General Nancy E. Scott, for the State. Gilda C. Rodriguez, for defendant-appellant.
Wake County No. 08 CRS 80028.
David Scott Hodge ("defendant") appeals from a judgment entered upon a jury verdict finding him guilty of assault on a female. We find no error in part and dismiss in part.
I. Background
In October 2008, defendant began a relationship with Laura Daehlin ("Ms. Daehlin"), and the two began living together. On 11 November 2008, defendant and Ms. Daehlin drank strawberry vodka together until they both became intoxicated. At some point, defendant and Ms. Daehlin began arguing about defendant's brother, who Ms. Daehlin had previously dated. Defendant pushed Ms. Daehlin against a cinder block wall, causing Ms. Daehlin's head to strike the corner of a cinder block. Ms. Daehlin's head then began bleeding.
Ms. Daehlin exited defendant's home and attempted to walk to her mother's home, which was located around the corner. Defendant followed Ms. Daehlin and began to assault her. Defendant slapped Ms. Daehlin in the face, pushed her to the ground, and banged her head against the ground. Defendant's neighbor, James Konrad ("Konrad"), witnessed the assault and called the Knightdale Police Department ("KPD") to report it.
Officer Ron Fullerton ("Officer Fullerton") of the KPD responded to Konrad's call. When Officer Fullerton arrived at defendant's home, he observed that both defendant and Ms. Daehlin were intoxicated. Although Ms. Daehlin told Officer Fullerton that nothing had happened, he observed a laceration on the back of her head and blood in her hair. Konrad reported to Officer Fullerton that he had witnessed defendant striking Ms. Daehlin.
Defendant was arrested for assault on a female. On 7 May 2009, after a trial in Wake County District Court, defendant was convicted of assault on a female. Defendant appealed his conviction to superior court.
Beginning 27 January 2010, defendant was tried by a jury de novo in Wake County Superior Court. Prior to trial, the State informed the trial court that it had received a report from Wake County Mental Health indicating that Ms. Daehlin needed to be evaluated to determine if she was competent to stand trial on unrelated criminal charges. Defendant objected to Ms. Daehlin's competency to testify, but this objection was overruled by the trial court. Defendant failed to renew his objection when Ms. Daehlin testified at trial, but on cross-examination defendant's counsel did question Ms. Daehlin regarding her competency.
On 29 January 2010, the jury returned a verdict finding defendant guilty of assault on a female. Defendant was sentenced to 144 days in the North Carolina Department of Correction. Defendant appeals.
II. Competency of Ms. Daehlin
Defendant argues that the trial court erred by allowing Ms. Daehlin to testify after the State raised an issue regarding her competency. Specifically, defendant contends that the trial court should have conducted a voir dire hearing to determine whether Ms. Daehlin was competent to testify. We disagree.
Initially, we address the appropriate standard of review for defendant's argument. The parties agree that defendant objected to Ms. Daehlin's competency prior to trial and that defendant did not renew his objection when Ms. Daehlin testified at trial. Consequently, both parties contend that our review of this issue should be for plain error.
However,
[u]nder N.C.G.S. § 15A-1446(d)(9), the subsequent admission of evidence from a witness when there has been an improperly overruled objection to the admission of evidence on the ground that the witness is incompetent may be asserted as error on appeal notwithstanding the lack of an objection to or motion to strike the testimony at trial.
State v. Gordon, 316 N.C. 497, 501, 342 S.E.2d 509, 511 (1986). Since defendant objected to Ms. Daehlin testifying prior to trial on the grounds that she was incompetent, it was unnecessary to renew this objection during her testimony at trial to preserve the issue for appeal. Thus, we review defendant's argument not under the plain error standard, but rather under the established appellate standard of review for this issue.
"The competency of a witness is a matter which rests in the sound discretion of the trial judge. Absent a showing that the ruling as to competency could not have been the result of a reasoned decision, the ruling must stand on appeal." State v. Meadows, 158 N.C. App. 390, 394, 581 S.E.2d 472, 474 (2003) (internal quotations and citation omitted).
A person is disqualified to testify as a witness when the court determines that he is (1) incapable of expressing himself concerning the matter as to be understood, either directly or through interpretation by one who can understand him, or (2) incapable of understanding the duty of a witness to tell the truth.
N.C. Gen. Stat. § 8C-1, Rule 601(b) (2009). Our Supreme Court has refused to require the trial court to conduct a voir dire hearing when a witness' competency is questioned. See State v. Spaugh, 321 N.C. 550, 555, 364 S.E.2d 368, 372 (1988) (When evidence at trial "clearly supports a conclusion that the witness is competent, the trial court's failure to conduct a voir dire inquiry and make specific findings and conclusions concerning the witness's competency is, at worst, harmless error.").
In the instant case, Ms. Daehlin was sworn to tell the truth without incident. Moreover, she had no trouble during her testimony expressing herself about the incident with defendant. On cross-examination, when questioned about her competency, Ms. Daehlin testified:
Q. Okay. Now, has your state of mind, your competency come into question lately?
A. Yes. I have been — there was another incident with the Defendant where I was extremely — had went through head trauma, have not been to court for that yet. I suffered severe head trauma, a broken leg. And since then I have had numerous flashbacks, crying spells and have been entered into Holly Hill more than once. So, I'm actually in treatment for post traumatic stress disorder right now and alcohol addiction.
Q. But I'm talking about specifically recently —
A. That is why my competency is being questioned, because I had flashbacks, numerous flashbacks, anxiety, fear of death. And it's been really hard for me to make, decisions, sometimes I have dizzy spells.
Q. Okay. And the doctor has referred you to a psychiatrist, so that your competency — . . . can be looked into?
A. Yes. . . . I have been diagnosed with post traumatic stress disorder.
Q. Okay. And are you on any medicines right now?
A. Yes, I am. . . . I am on an antidepressant, I'm also on an anxiety drug.
Nothing in Ms. Daehlin's testimony demonstrated that she could not express herself clearly or was unable to tell the truth. Thus, the trial court did not abuse its discretion by allowing her to testify. This argument is overruled.
III. Ineffective Assistance of Counsel
Defendant argues that he received ineffective assistance of counsel at trial. Specifically, defendant contends that his counsel was deficient because (1) she failed to sufficiently inquire into Ms. Daehlin's competency to testify; (2) she failed to subpoena a defense witness for trial; and (3) she failed to address defendant's previous assault conviction on direct examination.
"To prevail on an ineffective assistance of counsel claim, a defendant must show that (1) defense counsel's 'performance was deficient,' and (2) 'the deficient performance prejudiced the defense.'" State v. Wilkerson, 363 N.C. 382, 413, 683 S.E.2d 174, 193 (2009) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674, 693 (1984)). "Our Supreme Court has held that an ineffective assistance claim brought on direct review will be decided on the merits only 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. Fraley, ___ N.C. App. ___, ___, 688 S.E.2d 778, 786 (2010) (internal quotations and citation omitted). "However, when it appears to the appellate court further development of the facts would be required . . . the proper course is for the Court to dismiss the defendant's assignments of error without prejudice." State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271, 286 (2006).
In the instant case, we have already held that, based upon Ms. Daehlin's testimony at trial, the trial court did not abuse its discretion by determining that Ms. Daehlin was competent to testify. As a result, defendant cannot show that his counsel's failure to further investigate Ms. Daehlin's competency constituted deficient performance. However, we believe further factual inquiry is required into defendant's remaining allegations of ineffective assistance of counsel. Therefore, we do not address the merits of these allegations, but rather dismiss these arguments without prejudice to defendant's right to raise these issues in a subsequent motion for appropriate relief.
IV. Conclusion
The trial court did not abuse its discretion in determining that Ms. Daehlin was competent to testify, as her testimony at trial demonstrated that Ms. Daehlin could express herself clearly and was able to tell the truth. Since the trial court did not err in allowing Ms. Daehlin to testify, defendant did not receive ineffective assistance of counsel when his counsel failed to further investigate her competency. However, we cannot adequately review, based on the cold record before this Court, defendant's remaining claims that he received ineffective assistance of counsel. Accordingly, these claims are dismissed without prejudice to defendant's right to raise them in a motion for appropriate relief.
No error in part and dismissed in part.
Judges STEELMAN and BEASLEY concur.
Report per Rule 30(e).