Opinion
No. COA 12–1444.
2013-08-6
STATE of North Carolina v. Napoleon Junior RANKINS.
Attorney General Roy Cooper, by Assistant Attorney General Catherine F. Jordan, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Mary Cook, for defendant-appellant.
Appeal by defendant from judgment entered 13 June 2012 by Judge R. Stuart Albright in Guilford County Superior Court. Heard in the Court of Appeals 23 April 2013. Attorney General Roy Cooper, by Assistant Attorney General Catherine F. Jordan, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Mary Cook, for defendant-appellant.
ROBERT N. HUNTER, JR., Judge.
Napoleon Junior Rankins (“Defendant”) appeals from judgment entered after a jury convicted him of attempted second-degree rape. On appeal, Defendant contends he received ineffective assistance of counsel because: (i) his trial attorney admitted his guilt without his consent; and (ii) his trial attorney elicited impermissible opinion testimony. Upon review, we find Defendant received a fair trial free of error.
I. Facts & Procedural History
On 31 May 2012, a jury convicted Defendant of attempted second-degree rape. The State's evidence at trial tended to show the following facts.
In August 2010, nineteen-year-old Elizabeth lived with her mother in Guilford County. On 29 August 2010, Elizabeth had an argument with her mother and left their house. At about 6:00 p.m., Elizabeth went to the two-bedroom home of her great-uncle, Defendant . Defendant was fifty-one at the time of trial. Elizabeth had been close friends with Defendant her whole life and regularly spent the night at his home. That night, Elizabeth and Defendant watched television, drank beer, and smoked cigarettes in Defendant's living room. Defendant's friend Melvin was with them until about 7:00 p.m.
“Elizabeth” is a pseudonym used to protect privacy.
Elizabeth testified she had stayed at Defendant's house intermittently for the two to three days prior to the events of the instant case.
At 7:00 p.m., Melvin left Defendant's home. On his way out of the neighborhood, Melvin dropped off Defendant at a nearby Food Lion to buy more beer and cigarettes. At 7:40 p.m., Defendant got a ride home from his friend Curtis. Curtis then stayed at Defendant's home to drink beer with Defendant and Elizabeth. Around 7:45 p.m., Defendant's female friend Lubie came over. After she arrived, Defendant and Lubie went to his bedroom for about fifteen minutes. Defendant testified he and Lubie got undressed and he put on a condom. Defendant testified that before they could have sex, however, they were interrupted because another one of Defendant's friends arrived at Defendant's home. Lubie left Defendant's home shortly thereafter.
Lubie returned around 9:00 p.m. Defendant testified he again went to his bedroom with Lubie and got undressed. Defendant testified he put on a second condom but he and Lubie were again interrupted before they could have sex. Lubie then again left Defendant's home at 9:30 p.m. Defendant testified he put one of the opened condoms in his trashcan on the street and put the other opened condom in his kitchen trash bag.
From 10:00 p.m. until 11:00 p.m., Defendant and Elizabeth played cards in his living room. By this point, Elizabeth had drunk four to six beers over the course of the night. Around 11:00 p.m., Elizabeth went to sleep in Defendant's spare bedroom. She was wearing shorts and a t-shirt but no underwear. Defendant fell asleep in his living room.
Elizabeth and Defendant gave conflicting testimony as to what happened later that night. Elizabeth testified that at about 4:00 a .m., she woke up in the spare bedroom to “a poke” in her vaginal area. From the light of the television, Elizabeth saw Defendant naked and on top of her wearing a condom. Elizabeth's shorts had been pulled down and her legs were spread open. She had blood on her legs and clothes. Elizabeth testified she felt Defendant's penis touch her “private area.” She later testified slight penetration may have occurred. Elizabeth quickly said, “[W]hat the f* * * [are you] doing, what the f* * * [are you] thinking.” Defendant then asked for a cigarette. Elizabeth responded, “You ain't coming to get no daggone cigarette over top of me,” and Defendant ran back to his room.
Elizabeth testified she was menstruating at the time.
However, Defendant testified he went into Elizabeth's bedroom around 4:00 a.m. fully-clothed to turn off the television and air conditioner. After he turned them off, he testified he kicked Elizabeth's bed and asked for a cigarette. He testified Elizabeth responded by saying, “You trying to mess with me.” Defendant said he wasn't “trying to mess” with her and left the room. Defendant testified he never touched Elizabeth in a sexual manner.
Immediately after Defendant left Elizabeth's bedroom, Elizabeth called her mother and said “Napoleon was on top me, he tried to rape me, he tried to rape me.” Shortly thereafter, Elizabeth's other great-uncle, Ronnie Rankins, picked her up and took her home. By the time Elizabeth got home, her mother testified she was hysterical. Elizabeth's mother called the police and an ambulance.
At 5:47 a.m., Officer Matthew Johnson (“Officer Johnson”) was dispatched to Elizabeth's home. Officer Johnson saw Elizabeth was “very upset, visibly shaken” and “crying.” Elizabeth told Officer Johnson about her alleged rape. EMS took Elizabeth to Wesley Long Hospital that morning.
Shortly thereafter, police went to Defendant's home, arrested Defendant for rape, and took him to jail. At 8:47 a.m., Special Victims Unit Detective Frances Banks (“Detective Banks”) interviewed Defendant at jail. Defendant denied all the allegations. Defendant consented to a search of his residence and gave Detective Banks a key to his home.
Later that day, Detective Banks searched Defendant's home. Detective Banks saw two condom wrappers and one condom with a red stain in the kitchen trash bag. Detective Banks also saw bed sheets with a red stain laying on the floor outside the spare bedroom. Detective Banks sent the condom, bed sheets, and a pair of Defendant's boxers to the crime lab for further analysis.
At 6:31 a.m., Officer G.H. Wilde, Jr. (“Officer Wilde”) was dispatched to visit Elizabeth at Wesley Long Hospital. Officer Wilde saw Elizabeth “was visibly distraught, weeping, crying, still unable to formulate full sentences.” Elizabeth eventually told Officer Wilde about the alleged rape.
Around 8:30 a.m., Elizabeth met with registered nurse and sexual assault nurse examiner Jackie Perkins (“Nurse Perkins”) at Wesley Long Hospital for about three hours. Initially, Elizabeth refused examination, but she later consented. During the exam, Elizabeth told Nurse Perkins: “I couldn't believe he would do something like that. I know what I felt. He didn't get in me, because the minute I woke up from the pressure down there I jumped.” Nurse Perkins did not find Elizabeth had suffered any physical trauma. However, at trial Nurse Perkins testified Elizabeth's menstrual blood would lessen friction during sex, reducing the chance of tears, rips, or bruises to Elizabeth's vaginal area. During the exam, Nurse Perkins completed a sexual assault data form and took hair and blood samples for the sexual assault exam kit. After the exam, Elizabeth met with Detective Banks and gave another account of the alleged events. Nurse Perkins gave Detective Banks the sexual assault exam kit. Detective Banks sent the sexual assault exam kit to the crime lab for further analysis.
At the crime lab, forensic scientist Jessica Posto and Special Agent Timothy Baize performed tests on Elizabeth's sexual assault exam kit and the items taken from Defendant's home. Defendant's boxer shorts showed blood and sperm. The condom Detective Banks found in Defendant's kitchen trash bag also contained blood. The blood matched Elizabeth's DNA. The condom also contained Defendant's DNA.
On 29 November 2010, a Guilford County grand jury indicted Defendant for: (i) second-degree rape; and (ii) being a habitual felon . The case came on for jury trial during the 28 May 2012 Criminal Session of Guilford County Superior Court.
Defendant had previous convictions for the following felonies: (i) attempted burning of a building or boat (4 May 1987); (ii) assault by strangulation (30 May 2006); and (iii) possession of cocaine (2 April 2008).
At trial, the State called Nurse Perkins to testify as an expert on medical evaluation of rape victims. Defense counsel then cross-examined Nurse Perkins about the sexual assault data form:
[Defense Counsel]: Okay. And you've already testified to the brief account that—that we—we here kind of towards the beginning. And then if you go down to question Number 10, the question is, and it's got some boxes you can check, was there penetration of the vagina? And the box for attempted was checked but not for actual penetration; is that correct?
[Nurse Perkins]: Correct.
[Defense Counsel]: And that was based on talking with [Elizabeth]; is that—that fair to say?
[Nurse Perkins]: Yes, she told me he got at her—at the vagina which tells me that he parted the labia majora.
In his closing statement, defense counsel focused on Nurse Perkins' examination of Elizabeth:
[Defense Counsel]: [I][a]sk you to consider when you go back and deliberate Ms. Perkins' testimony and talking about what boxes she decided to check. She said that she wrote down, you know, word for word what [Elizabeth] had said in describing the assault. She said, He didn't get it in me because the minute I woke up from the pressure down there I jumped up. She talked about that sexual assault data form where there's specific little boxes to check off and she testified about that yesterday.
And she spent three hours talking to [Elizabeth] and she had a choice. There was a question that I asked her about specifically, Was the penetration of the vagina attempted or actual? Ms. Perkins is the one who spent all that time with her. She apparently knows the female anatomy very well, and she had a choice. Was it actual penetration or attempted? She checked attempted. And [the State] asked her about that, What—what do you mean by that when you checked off that box and she gave an explanation. But she made that choice and she testified to it. And I'm going to ask y'all to consider that during your deliberations.
Defense counsel concluded his closing statement with the following discussion:
[Defense Counsel]: And altogether, ladies and gentlemen, that's the case that you have to make the decision of whether or not you've been fully satisfied or entirely convinced of this allegation in this case and whether or not this was rape or attempted second—excuse me—second-degree rape or attempted second-degree rape.
...
You will hear that proof beyond a reasonable doubt is proof that fully satisfies or entirely convinces you of a person's guilt. I would ask you to hold the State to that very high burden in this case. Decisions are unanimous. All 12 of you must agree to reach a verdict in this case. I'd ask you to use your best judgment. This case is not about which attorney could get the loudest or the most emotional. I'd ask you to look at the evidence and based on all the evidence in this case I would ask you to find Mr. Rankins not guilty of second-degree rape.
Defense counsel also summarily stated, “And I'd ask you to remember on the attempted versus not attempted, [Nurse Perkins'] testimony, ladies and gentlemen.”
On 31 May 2012, the jury found Defendant guilty of attempted second-degree rape. On 1 June 2012, Defendant pled guilty to attaining habitual felon status. The trial court sentenced Defendant to 144 to 182 months imprisonment. Defendant gave oral notice of appeal in open court.
II. Jurisdiction and Standard of Review
This Court has jurisdiction to hear the instant case pursuant to N.C. Gen.Stat. § 7A–27(b) (2011).
“A criminal defendant has a constitutional right to the effective assistance of counsel.” State v. Redman, ––– N.C.App. ––––, ––––, 736 S.E.2d 545, 550 (2012) (citing State v. Braswell, 312 N.C. 553, 561, 324 S.E.2d 241, 247 (1985)). “The standard of review for alleged violations of constitutional rights is de novo.” State v. Graham, 200 N.C.App. 204, 214, 683 S .E.2d 437, 444 (2009), appeal dismissed and disc. rev. denied,363 N.C. 857, 694 S.E.2d 766 (2010); see also Piedmont Triad Reg'l Water Auth. v. Sumner Hills Inc., 353 N.C. 343, 348, 543 S.E.2d 844, 848 (2001) (“[D]e novo review is ordinarily appropriate in cases where constitutional rights are implicated.”). “ ‘Under a de novo review, the court considers the matter anew and freely substitutes its own judgment’ for that of the lower tribunal.” State v. Williams, 362 N.C. 628, 632–33, 669 S.E.2d 290, 294 (2008) (quoting In re Greens of Pine Glen Ltd., 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003)).
III. Analysis
On appeal, Defendant argues he received ineffective assistance of counsel because: (i) his trial attorney admitted his guilt to attempted second-degree rape without his consent; and (ii) his trial attorney elicited impermissible opinion testimony from Nurse Perkins. Upon review, we find no error.
A. No Admission of Guilt
Defendant first argues he received per se ineffective assistance of counsel when his trial attorney admitted his guilt for attempted second-degree rape without his permission. Upon review, we find no error.
In North Carolina, defense counsels' admission of a defendant's guilt without the defendant's consent per se constitutes ineffective assistance of counsel:
[T]he gravity of the consequences demands that the decision to plead guilty remain in the defendant's hands. When 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.
State v. Harbison, 315 N.C. 175, 180, 337 S.E.2d 504, 507 (1985). This Court has further elaborated that a defense counsel's admission of a defendant's guilt to a lesser included offense still constitutes a per se Sixth Amendment violation. See State v. Alvarez, 168 N.C.App. 487, 501, 608 S.E.2d 371, 380 (2005) (“ Harbison applies when defense counsel concedes defendant's guilt to either the charged offense or a lesser included offense.”).
However, our Supreme Court has clarified that “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. Thompson, 359 N.C. 77, 110, 604 S.E.2d 850, 873 (2004) (quoting State v. Greene, 336 N.C. 142, 188, 443 S.E.2d 14, 41 (1994)). Thus, we must consider closing statements in the larger context of overall trial strategy. See id.
For instance, our Supreme Court has held that:
[A]n argument that the defendant is innocent of all charges, but if he is found guilty of any of the charges it should be of a lesser crime because the evidence came closer to proving that crime than any of the greater crimes charged, is not an admission that the defendant is guilty of anything, and the rule of Harbison does not apply.
State v. Harvell, 334 N.C. 356, 361, 432 S.E.2d 125, 128 (1993). In Harvell, defense counsel in a murder case argued in closing arguments that if his client was guilty of any offense, he was only guilty of voluntary manslaughter, not murder. Specifically, the defense counsel stated, “based upon the evidence presented in terms of a criminal offense, that the one that most closely—or the one that is most closely kind [sic] to this is the offense of voluntary manslaughter, that being there was provocation.” Id. at 361, 432 S.E.2d at 127 (alteration in original). There, our Supreme Court held the defendant did not receive ineffective assistance of counsel because:
[T]he defendant's counsel never conceded that the defendant was guilty of any crime. He merely noted that if the evidence tended to establish the commission of any crime, that crime was voluntary manslaughter. This was not the equivalent of admitting that the defendant was guilty of any crime. Accordingly, this assignment of error is without merit.
Id. at 361, 432 S.E.2d at 128.
In the present case, Defendant argues his trial attorney's closing statement constitutes per se ineffective assistance of counsel because it concedes Defendant's guilt of attempted second-degree rape. We disagree.
Significantly, defense counsel never explicitly admitted Defendant's guilt of attempted second-degree rape. Instead, he merely asked the jury to consider that Nurse Perkins selected the “attempted penetration” box on the sexual assault data form, rather than indicating that penetration in fact occurred. As in Harvell, we believe defense counsel simply referenced Nurse Perkins' testimony to argue that if Defendant was guilty of any offense, the evidence only supported conviction for the lesser included offense of attempted rape. See id.
Furthermore, the overall context of defendant's closing argument supports our determination. See Thompson, 359 N.C. at 110, 604 S.E.2d at 873. Throughout Defendant's closing argument, he: (i) made extensive references to inconsistencies in Elizabeth's statements to police officers; and (ii) contended Elizabeth did not sufficiently remember the events due to intoxication. Based on this overall context, we believe defense counsel referenced Nurse Perkins' testimony to further cast doubt on Elizabeth's allegation that Defendant actually penetrated her.
Consequently, we determine Defendant did not receive ineffective assistance of counsel since his trial attorney did not admit Defendant's guilt to attempted second-degree rape.
B. Opinion Testimony
Next, Defendant argues his trial attorney provided ineffective assistance of counsel by eliciting impermissible opinion testimony from Nurse Perkins. He further argues this error was prejudicial. We disagree.
To show ineffective assistance of counsel, defendants must satisfy a two-part test:
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.
Strickland v. Washington, 466 U.S. 668, 687 (1984).
To satisfy the first prong of the Strickland test, defendants must show their lawyers' conduct “fell below an objective standard of reasonableness.” State v. Braswell, 312 N.C. 553, 561–62, 324 S.E.2d 241, 248 (1985). The U.S. Supreme Court has elaborated that:
Judicial scrutiny of counsel's performance must be highly deferential.... Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.”
Strickland, 466 U.S. at 689 (citation omitted).
To this effect, “[d]ecisions concerning which defenses to pursue are matters of trial strategy and are not generally second-guessed by this Court.” State v. Prevatte, 356 N.C. 178, 236, 570 S.E.2d 440, 472 (2002); see also State v. Milano, 297 N.C. 485, 495, 256 S.E.2d 154, 160 (1979), overruled on other grounds by State v. Grier, 307 N.C. 628, 300 S.E.2d 351 (1983) (“[D]ecisions on ... whether and how to conduct cross-examination ... and all other strategic and tactical decisions are the exclusive province of the lawyer after consultation with his client.” (quotation marks and citation omitted)).
Since Defendant's argument depends on the evidentiary rules about expert opinion testimony, we now discuss those rules. Generally, “[i]f scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert ... may testify thereto in the form of an opinion.” N.C. R. Evid. 702(a). This testimony must be “based upon sufficient facts or data.” N.C. R. Evid. 702(a)(1). However, “in the absence of physical evidence to [show a sexual assault actually occurred], expert testimony that sexual [assault] has in fact occurred is not admissible because it is an impermissible opinion regarding the victim's credibility.” State v. Dixon, 150 N.C.App. 46, 52, 563 S.E.2d 594, 598 (2002).
In the present case, Defendant argues his trial attorney provided ineffective assistance of counsel by eliciting impermissible opinion testimony from Nurse Perkins. Upon review, we find no error for two reasons: (i) Nurse Perkins did not provide impermissible opinion testimony; and (ii) her testimony was part of defense counsel's overall trial strategy.
Preliminarily, we discuss the testimony at issue. On cross-examination, Nurse Perkins testified Elizabeth did not have signs of trauma to her vaginal area. The following dialogue then occurred:
[Defense Counsel]: And then if you go down to question Number 10, the question is, and it's got some boxes you can check, was there penetration of the vagina? And the box for attempted was checked but not for actual penetration; is that correct?
[Nurse Perkins]: Correct.
[Defense Counsel]: And that was based on talking with [Elizabeth]; is that—that fair to say?
[Nurse Perkins]: Yes, she told me he got at her—at the vagina which tells me that he parted the labia majora.
First, we do not believe this dialogue constitutes impermissible opinion testimony that attempted rape occurred. Instead, Nurse Perkins gave a permissible expert opinion about a fact at issue: whether Defendant penetrated Elizabeth. SeeN.C. R. Evid. 702(a). Here, Nurse Perkins completed a sexual assault evaluation form asking whether attempted or actual vaginal penetration occurred. Nurse Perkins testified that after evaluating her patient, she selected “attempted penetration.” Nurse Perkins based this decision on several facts: (i) she observed no visible tears, rips or bruises in Elizabeth's vaginal area; and (ii) Elizabeth's description of the alleged events to Nurse Perkins did not suggest actual penetration occurred. Consequently, we determine defense counsel's cross-examination of Nurse Perkins did not constitute ineffective assistance of counsel because she provided permissible opinion testimony about a fact at issue.
Second, defense counsel's cross-examination of Nurse Perkins' testimony was not ineffective assistance of counsel because it served a strategic purpose for Defendant. See Prevatte, 356 N.C. at 236, 570 S.E.2d at 472;Milano, 297 N.C. at 495, 256 S.E.2d at 160 (“[D]ecisions on ... whether and how to conduct cross-examination ... and all other strategic and tactical decisions are the exclusive province of the lawyer.”). As discussed previously, defense counsel elicited Nurse Perkins' testimony to show that if Defendant is guilty of any crime, he is only guilty of attempted rape, not actual rape.
Additionally, Nurse Perkins' testimony aided Defendant's case by highlighting inconsistencies in Elizabeth's testimony. At varying points at trial, Elizabeth suggested slight penetration may have occurred. However, she indicated to Nurse Perkins that penetration did not occur. Defendant reiterated these inconsistencies in his closing argument. As discussed earlier, we conclude this served a permissible trial strategy.
Based on these arguments, we conclude defense counsel's conduct does not “f [a]ll below an objective standard of reasonableness.” Braswell, 312 N.C. at 561–62, 324 S.E.2d at 248. Consequently, we need not address whether Defendant would have obtained a different result but for his defense counsel's conduct.
IV. Conclusion
For the foregoing reasons, we conclude Defendant did not receive ineffective assistance of counsel. Consequently, we find
NO ERROR.
Report per Rule 30(e).