Opinion
No. COA11-135
Filed 21 June 2011 This case not for publication
Appeal by defendant from judgments entered 7 January 1992 by Judge Charles C. Lamm, Jr., in Haywood County Superior Court. Heard in the Court of Appeals 24 May 2011.
Attorney General Roy Cooper, by Assistant Attorney General Anne M. Middleton, for the State. Glover Petersen, P.A., by Ann B. Petersen, for defendant appellant.
Haywood County Nos. 90 CRS 1218, 1221.
David Randall Newman ("defendant") appeals from his convictions of first-degree rape and first-degree kidnapping. Defendant received a life sentence for the first-degree rape charge and the trial court arrested judgment on his first-degree kidnapping charge, sentencing defendant to thirty years for the lesser included offense of second-degree kidnapping to run upon expiration of the life sentence.
Defendant gave notice of appeal in open court and was appointed an appellate defender. On 29 January 1992, the appellate defender declined appointment. The superior court made appellate entries again on 26 April 2010 and appointed another appellate defender. On 30 December 2010, the State filed a motion to dismiss arguing the appeal was untimely, and the Court dismissed the appeal on 14 January 2011. Defendant filed an alternative petition for writ of certiorari which was granted 25 January 2011.
I. Background
On 28 October 2009, defendant and his brother, Stephen Newman, escaped from the Tennessee Department of Corrections in Knoxville. Around 3:00 p.m. that day, defendant and Stephen knocked on the door of Dorothy Harper, the seventy-three-year-old victim. They asked if they could rake her yard, but she told them that the leaves had not finished falling and she did not believe that she was ready to have her yard raked. Defendant and Stephen proceeded to ask if they could use Mrs. Harper's phone to call a friend for a ride. They pretended to call a friend and told Mrs. Harper that he was not available, to which she responded, "I'm sorry I can't help you."
Defendant then came up behind Mrs. Harper, put his arm around her with a hand over her mouth, told her he had a gun, and demanded all her money. Defendant told Stephen to go inside to get the money, a knife, and something to tie Mrs. Harper up with. Defendant also told her to hand over her car keys. He told her that if she would get them out of Tennessee, they would let her go.
Defendant drove first, heading east on Interstate 40 with Stephen and Mrs. Harper in the backseat. After driving for about an hour or so, defendant switched places with Stephen and proceeded to rape Mrs. Harper while Stephen drove. At this point they were in North Carolina and it was still daylight. The defendant got back in the driver's seat following the rape.
The three drove a while longer until the men became hungry. They stopped at a Kmart store to get some food using Mrs. Harper's Kmart check-cashing card. They also stopped at a gas station where they again used Mrs. Harper's money to buy some gas. Afterwards they pulled over in a secluded spot where Mrs. Harper asked if they would let her go since they were out of Tennessee. Defendant said, "No," and threatened to put her in the trunk.
Defendant began driving again, but sometime after dark he pulled over and returned to the backseat with Mrs. Harper. Defendant threatened Mrs. Harper with a knife and proceeded to rape her for a second time. Following the second rape, defendant returned to driving. They stopped at another gas station where Mrs. Harper heard defendant and Stephen asking for directions to Jacksonville, Florida. Mrs. Harper managed to alert a gas station attendant to her abduction and asked him to please take down the license plate number to get help. Upon leaving the filling station, defendant drove while Stephen slept.
Defendant was drinking while driving, causing him to drive dangerously. Mrs. Harper told him that he should pull over and let Stephen drive or they were going to get killed. Defendant acquiesced and let Stephen drive. After a while, Stephen needed to use the restroom, so they stopped at a gas station in Bradenton, Georgia. Stephen tried to wake defendant, but he was passed out. Mrs. Harper told Stephen that she also needed to go. A uniformed officer happened to be in the gas station, so Mrs. Harper acted as if she was going to the bathroom and as soon as she saw Stephen enter the men's bathroom she ran to alert the officer. The officer ran to cover defendant in the car and told an employee to tell Stephen to stay in the bathroom until back-up arrived. Defendant and Stephen were subsequently arrested.
Following the arrest, Mrs. Harper was briefly questioned by police and then taken to a nearby hospital for examination. At trial, Special Agent Richard Rem of the Federal Bureau of Investigation ("FBI") testified as an expert in forensic serology. In analyzing forensic samples from defendant, Stephen, and Mrs. Harper, Special Agent Rem determined that all three samples were blood type O. Special Agent Rem transferred the samples to a DNA analyst, Special Agent Keith Howland, who also testified at trial. Special Agent Howland testified that he was able to positively exclude Stephen as the rapist, but could not exclude defendant. He could not specifically pinpoint defendant as the rapist either.
Also at trial, the State called Philip Cagle, a fireman with the Hendersonville Fire Department, to testify. Mr. Cagle testified that he and his son were traveling in Haywood County around 4:15 p.m. when they saw Mrs. Harper's vehicle. Mr. Cagle noticed an elderly woman in the backseat with a young man, which appeared to be like a grandmother-grandson relationship. He thought the woman was sick because her head kept bobbing around. Mr. Cagle testified that he saw the woman go out of view and then the young man lifted up her leg and placed it across the front seat. He then noticed the man rise up and pull down his pants. The man's front was quite visible. Mr. Cagle pulled alongside Mrs. Harper's car and saw the man between the elderly woman's legs. Mr. Cagle emphatically testified that they were in Haywood County while the alleged rape occurred.
Mrs. Harper testified at trial that she looked at her watch after the first rape and it was between 6:00 and 6:30 p.m. She also testified that she recalled seeing a sign for Ridgecrest, North Carolina, and that the first rape took place just after passing the sign. When this information came out on cross-examination, defense counsel immediately made an objection to jurisdiction, arguing that the charges should have been brought in Buncombe or McDowell County and not Haywood County.
II. Analysis
Defendant raises a single issue on appeal of whether or not he received ineffective assistance of counsel by way of defense counsel for failing to seek dismissal of the first-degree rape charge on the ground that it occurred outside of Haywood County. Defendant contends that trial counsel should have filed a pretrial motion based on improper venue. For the following reasons, we disagree.
In reviewing a claim for ineffective assistance of counsel in violation of the Sixth Amendment, our Court applies the two-prong test as laid out in Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984). Under the Strickland test
[a] convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. 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. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.
Id.
Moreover, deficient performance occurs when it falls "below an objective standard of reasonableness" and it prejudices the defendant when there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 688, 694, 80 L. Ed. 2d at 693, 698.
Defendant cites to case law from other jurisdictions for the contention that trial counsel bears a duty to be knowledgeable about the law to provide effective representation. See Patton v. State, 537 N.E.2d 513, 518 (Ind. Ct. App. 1989). Defendant argues that trial counsel did not understand the law relating to the procedural requirements for a defense that the rape possibly occurred outside of Haywood County. The applicable law changed in 1985 and defendant believes that trial counsel was not aware of this change at the time of trial in 1992.
The law, pre-1985, was that a grand jury could only return an indictment for a crime committed within that county and any indictment charging an offense which occurred in another county was void for lack of jurisdiction. See State v. Randolph, 312 N.C 198, 207, 321 S.E.2d 864, 870 (1984). In Randolph, the defendants abducted the victim in Fayetteville, North Carolina, and took her to Wake County, North Carolina, where she was raped, sexually assaulted, and forced to withdraw money from an ATM. Randolph, 312 N.C. at 200-02, 321 S.E.2d at 866-67. The defendants were charged and convicted in Wake County of first-degree rape, first-degree sex offense, first-degree kidnapping, armed robbery, and felonious larceny. Id. at 199, 321 S.E.2d at 865. Our Supreme Court held that the kidnapping and felonious larceny charges must be dismissed because the crimes occurred in Fayetteville. Id. at 207-09, 321 S.E.2d 870-71. In holding so, the Supreme Court determined that the issue was one of jurisdiction and not venue, meaning that N.C. Gen. Stat. § 15A-952(d) applied, in that a challenge to jurisdiction could be raised at any time, rather than N.C. Gen. Stat. § 15A-135, which provided that a venue issue could only be raised in a pretrial motion. Id; see N.C. Gen. Stat. §§ 15A-952(d),-135 (2009).
In response to Randolph, the North Carolina Legislature enacted N.C. Gen. Stat. § 15A-631 in 1985, which changed grand juries' ability to indict for crimes occurring in another county from an issue of jurisdiction to one of venue. In doing so, N.C. Gen. Stat. § 15A-135 began to apply, meaning that any challenge on the ground that the crime committed in a county other than the one where the indictment was returned was an issue of venue and not jurisdiction, and must be raised in a pretrial motion. See N.C. Gen. Stat. §§ 15A-631,-135 (2009); State v. Spencer, 187 N.C. App. 605, 611, 654 S.E.2d 69, 72-73 (2007).
Defendant contends that trial counsel must have assumed that the issue of where the rape occurred was one of jurisdiction because trial counsel only raised his objection at the close of all evidence and by doing so must not have been aware that the law had changed to make the issue one of venue and not jurisdiction. Defendant would then argue that trial counsel was ineffective by failing to make a pretrial motion challenging the proper venue.
The State on the other hand argues that trial counsel was not made aware of a potential venue issue until the end of the State's evidence and at that point trial counsel did as much as it could by making an objection to jurisdiction immediately upon becoming aware of the issue. In attempting to elicit the value of Mrs. Harper's car on cross-examination, Mrs. Harper happened to state that she saw the Ridgecrest sign just before the first attack occurred. This could potentially be evidence that the first rape occurred in Buncombe or McDowell County, as Ridgecrest is a community on Hwy. I-40 at the eastern end of Buncombe County. Defense counsel did not appear to be aware of this information and the only other evidence concerning the location of the rape came from Mr. Cagle, who twice unequivocally testified that the rape occurred in Haywood County.
Even further, the one comment made by Mrs. Harper is rather weak to support a change of venue. The record does not show the nature, location, or contents of the Ridgecrest sign. The State only needed to prove that the rape began in Haywood County, as "[a]n offense occurs in a county if any act or omission constituting part of the offense occurs within the territorial limits of the county." N.C. Gen. Stat. § 15A-131(e) (2009). The mere transportation of Mrs. Harper in Haywood County, with the intent to rape her, is enough for venue as N.C. Gen. Stat. § 15A-136 (2009), covering venue for sexual offenses, states:
If a person is transported by any means, with the intent to violate any of the provisions of Article 7A of Chapter 14 (§ 14-27.1 et seq.) of the General Statutes and the intent is followed by actual violation thereof, the defendant may be tried in the county where transportation was offered, solicited, begun, continued, or ended.
There is sufficient evidence to infer that defendant intended to rape Mrs. Harper when he got in the backseat and told his brother to drive. Mrs. Harper testified that defendant got in the backseat with her within about an hour or so of driving, which would most likely put them in or near Haywood County. Under the circumstances, Haywood County would at least have concurrent venue with Buncombe County because where "acts or omissions constituting part of the commission of the charged offense occurred in more than one county, each county has concurrent venue" and "[w]hen counties have concurrent venue, the first county in which a criminal process is issued in the case becomes the county with exclusive venue." N.C. Gen. Stat. § 15A-132(a), (c) (2009). Therefore, Haywood County could at least have concurrent venue even if the actual rape occurred in Buncombe County.
The fact that trial counsel was not aware of Mrs. Harper's having seen the Ridgecrest sign does not amount to deficient performance on trial counsel's behalf. As soon as trial counsel became aware of the venue issue, he properly moved for the court to dismiss the case based on improper jurisdiction, the only remaining option he had. Furthermore, defendant did not present sufficient evidence to show prejudice by having his case in Haywood County over Buncombe or McDowell County. Consequently, we find that trial counsel's assistance was sufficient to function as the "counsel" guaranteed by the Sixth Amendment. See Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693.
III. Conclusion
Considering the evidence presented at trial, it is most likely that the rape occurred in Haywood County, but even if it did not, there is sufficient evidence for Haywood County to have concurrent venue with Buncombe or McDowell County. Defendant failed to prove that, had trial counsel made a pretrial motion, the motion would have been granted. Even if Haywood County was not the proper venue, the State would have just brought the charges against defendant in a different venue. Based on the foregoing reasons, trial counsel was not ineffective in his assistance at trial.
No error.
Judges McGEE and ERVIN concur.
Report per Rule 30(e).