Opinion
COA21-725
12-20-2022
STATE OF NORTH CAROLINA v. GEORGE MICHAEL STEEN
Attorney General Joshua H. Stein, by Special Deputy Attorney General Sherri Horner Lawrence, for the State. N.C. Prisoner Legal Services, Inc., by Mary E. McNeill, for defendant-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Heard in the Court of Appeals 24 May 2022.
Appeal by defendant by writ of certiorari from order entered 8 January 2020 by Judge Forrest D. Bridges in Lincoln County, Nos. 10 CRS 50368-70 Superior Court.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Sherri Horner Lawrence, for the State.
N.C. Prisoner Legal Services, Inc., by Mary E. McNeill, for defendant-appellant.
ZACHARY, JUDGE.
¶ 1 Defendant George Michael Steen appeals from an order denying his motion for appropriate relief ("MAR") predicated upon alleged ineffective assistance of counsel. After careful review, we affirm.
Background
¶ 2 The full background of this appeal is set forth in a prior opinion of this Court: State v. Steen, 226 N.C.App. 568, 739 S.E.2d 869 (2013). We recite here the facts relevant to the appeal currently before us.
¶ 3 The evidence presented at Defendant's trial tended to show that M.S. "was placed into the custody of the Lincoln County Department of Social Services ('DSS') on 2 November 2004, after he and his sisters were removed from his mother's home upon allegations that the children were neglected; M.S. was four years old." 226 N.C.App. at 569, 739 S.E.2d at 871. DSS placed M.S. with Defendant and his wife immediately after removing M.S. from his mother's home. Id. This first placement period with Defendant lasted twenty-one days. Id.
We use initials to protect the identity of the alleged victim, who was a minor at the time of Defendant's trial. See N.C. R. App. P. 42(b).
¶ 4 In an effort to reunite M.S. with his two sisters, DSS removed M.S. From Defendant's home and placed him "in another foster care home with his sisters, where M.S. remained for less than three months before the family determined that it could not 'handle' all three children." Id. DSS returned M.S. to Defendant's home, where he stayed for approximately two-and-a-half years, from February 2005 to August 2007. Id. In an attempt at family reunification, DSS again removed M.S. from Defendant's home and returned him to his biological mother for two months. Id. "M.S. underwent a series of placements for the next two months, and was then placed for a third time in [D]efendant's home in December 2007, where M.S. lived until he left for the last time in February 2009, when M.S. was eight years old." Id. at 569, 739 S.E.2d at 871-72.
¶ 5 After a few months of moving between different foster care placements, M.S. was placed in the home of Debra and Mickey Ledford, from July 2009 to April 2010. Id. at 569, 739 S.E.2d at 872. In January 2010, M.S. disclosed to Ms. Ledford that Defendant sexually abused him while he resided in Defendant's home. Id. at 570, 739 S.E.2d at 872. The Ledfords reported the allegations of abuse to DSS, and DSS initiated an investigation. Id. at 571, 739 S.E.2d at 872-73.
¶ 6 On 15 March and 26 March 2010, "Defendant was indicted on two counts of first-degree sexual offense with a child and charged upon an information on one count of sexual offense with a child." Id. at 573, 739 S.E.2d at 874.
¶ 7 The matter came on for trial on 26 March 2012 in Lincoln County Superior Court. At trial, M.S. testified regarding his sexual abuse by Defendant:
According to M.S., while [D]efendant was in the shower with him, [D]efendant would have M.S. "get down on his knees" and [D]efendant would move back and forth and "make M.S. suck his penis," which M.S. said felt "weird and gooey" and "like soft" in M.S.'s mouth. M.S. also testified that [D]efendant put his mouth on M.S.'s penis, and that "it just didn't feel right." M.S. further testified that [D]efendant "sticked [sic] his penis in M.S.'s butt," and described that [D]efendant would put his penis "in between M.S.'s butt crack," so that [D]efendant's penis touched the part of M.S.'s bottom where the food comes out. M.S. also
said that when [D]efendant would stand behind him and put his penis in M.S.'s bottom, M.S. would stand on the sides of the tub and hold onto both the wall and the rod that holds up the shower curtain so that he would not slip and fall in the shower. While [D]efendant was showering with M.S., M.S. said that [D]efendant's wife would be out of the house or "somewhere in the house," and said that "she would open the blinds to see what we were doing but we would always stop then. He would tell me to stop." Finally, M.S. testified that [D]efendant told M.S. that he would "do something to M.S. if he told" about what happened in the shower, "said he would hurt M.S. or get M.S. in trouble," and that M.S. "thought really [D]efendant was going to hurt him." Additionally, M.S. said that [D]efendant "told M.S. he would tell [D]efendant's wife or someone else that M.S. was lying about what M.S. said and who believes little kids?" M.S. said he did not tell [D]efendant's wife because, "I don't want her to not think I'm telling the truth, which I was telling the truth. They are married, so I don't want to break them apart and he go to jail."Id. at 570-71, 739 S.E.2d at 872.
¶ 8 The jury returned verdicts finding Defendant guilty on each of the charged offenses, and the trial court sentenced Defendant to a term of 300 to 369 months in the custody of the North Carolina Division of Adult Correction. Id. at 573, 739 S.E.2d at 874.
¶ 9 On direct appeal, this Court found no error in Defendant's trial in an opinion filed on 16 April 2013. Id. at 569, 739 S.E.2d at 871.
¶ 10 Thereafter, on 14 March 2014, Defendant filed an MAR in Lincoln County Superior Court. In his MAR, Defendant maintained that his trial counsel "provided ineffective assistance of counsel by failing to properly investigate [his] case[,]" in that counsel (1) "did not request an in camera review of records about [M.S.] and his sisters[,] including DSS records and medical records"; and (2) "failed to seek the court's permission to interview" one of M.S.'s therapists, Teresa Grigg, "who was treating [M.S.] and his sisters at the time of the alleged abuse."
¶ 11 The additional DSS records at issue contained allegations of sexual abuse of M.S.'s sisters by adult family members while the girls resided in their mother's home prior to entering into DSS custody, as well as sexual behavior by M.S.'s sisters after leaving their mother's home. Ms. Grigg's counseling notes documented that M.S.'s older sister sexually abused M.S. and his younger sister. Defendant argued in his MAR that his trial counsel's failure to acquire these documents led to the omission of "exculpatory and impeachment evidence that would have greatly aided [his] defense." He further argued that "[b]ut for these deficiencies of performance, there is a reasonable probability that the result of the trial would have been different[.]"
¶ 12 Defendant's MAR came on for hearing on 6 September 2019. At the hearing, Defendant presented the testimony of two expert witnesses, one an expert in criminal defense of high-level felonies and the other in clinical and forensic psychology. Both experts testified that the investigation of the additional records and notes would have strengthened Defendant's defense.
¶ 13 On 8 January 2020, the trial court entered an order denying Defendant's MAR. The court found that "[c]onsidering the testimony and opinions of both experts who testified in the hearing on [D]efendant's Motion for Appropriate Relief, the consensus was that in effect, doing more would have been better." But the court ultimately determined that the finding of "doing more would have been better" could "be said with regard to every case in which a movant is dissatisfied with the outcome[,]" and did not compel the conclusion that defense counsel's performance was deficient as a matter of law. The court also found that Defendant failed to demonstrate that he was prejudiced by his counsel's actions. Accordingly, the trial court denied Defendant's MAR.
¶ 14 Defendant did not give notice of appeal from the trial court's order. However, on 9 August 2021, he petitioned this Court to issue a writ of certiorari to review the order. This Court allowed Defendant's petition for writ of certiorari on 9 September 2021.
Discussion
¶ 15 On appeal, Defendant argues that the trial court erred by denying his MAR because he sufficiently demonstrated that his "Sixth Amendment right to effective counsel was violated."
I. Standard of Review
¶ 16 We review a trial court's ruling on a defendant's MAR for "whether the findings of fact are supported by evidence, whether the findings of fact support the conclusions of law, and whether the conclusions of law support the order entered by the trial court." State v. Stevens, 305 N.C. 712, 720, 291 S.E.2d 585, 591 (1982). "When a trial court's findings on a motion for appropriate relief are reviewed, these findings are binding if they are supported by competent evidence and may be disturbed only upon a showing of manifest abuse of discretion. However, the trial court's conclusions are fully reviewable on appeal." State v. Lane, 271 N.C.App. 307, 311, 844 S.E.2d 32, 37 (citation omitted), disc. review denied and cert. dismissed, 376 N.C. 540, 851 S.E.2d 624 (2020).
II. Analysis
¶ 17 Defendant argues that the trial court erred by denying his MAR because he received ineffective assistance of counsel: "trial counsel unreasonably failed to request an in camera review of additional DSS records . . . that were relevant to [his] defense[,]" and Defendant was "prejudiced by trial counsel's inadequate investigation." We disagree.
¶ 18 To successfully assert an ineffective assistance of counsel claim, a defendant must show: (1) "that counsel's performance was deficient" and (2) "that the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687, 80 L.Ed.2d 674, 693, reh'g denied, 467 U.S. 1267, 82 L.Ed.2d 864 (1984).
¶ 19 An inadequate investigation by counsel may constitute deficient performance where counsel's "failure to investigate thoroughly resulted from inattention, not reasoned strategic judgment." Wiggins v. Smith, 539 U.S. 510, 526, 156 L.Ed.2d 471, 487 (2003). "In assessing the reasonableness of an attorney's investigation, . . . a court must consider not only the quantum of evidence already known to counsel, but also whether the known evidence would lead a reasonable attorney to investigate further." Id. at 527, 156 L.Ed.2d at 488.
¶ 20 However, "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Strickland, 466 U.S. at 691, 80 L.Ed.2d at 696. "In order for counsel's inadequate performance to constitute a Sixth Amendment violation, [the defendant] must show that counsel's failures prejudiced his defense." Wiggins, 539 U.S. at 534, 156 L.Ed.2d at 493. The test for prejudice requires "[t]he defendant [to] show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 80 L.Ed.2d at 698.
¶ 21 Here, assuming, arguendo, that defense counsel's failure to acquire additional DSS records and Ms. Grigg's therapy notes constituted an inadequate investigation and therefore deficient performance, Defendant's ineffective assistance of counsel claim nevertheless fails because Defendant has failed to "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. Therefore, for the reasons explained below, we conclude that the trial court appropriately denied Defendant's MAR.
¶ 22 Defendant maintains that "the information contained in the DSS records and Griggs records would be considered material in a Brady [v. Maryland, 373 U.S. 83, 10 L.Ed.2d 215 (1963)] claim and therefore, the attorney's failure to request them would be prejudicial under the Strickland test."
¶ 23 However, Brady's materiality standard is inapposite in the instant case. Although the prejudice test for an ineffective assistance of counsel claim does indeed "find[ ] its roots in the test for materiality of exculpatory information not disclosed to the defense by the prosecution, and in the test for materiality of testimony made unavailable to the defense by Government deportation of a witness," in order to successfully assert prejudice pursuant to Strickland, a "defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 80 L.Ed.2d at 698 (emphasis added) (citations omitted).
¶ 24 Thus, defense counsel's failure to acquire additional DSS records and Ms. Grigg's notes must be evaluated under the standard of whether, absent these allegedly unprofessional errors, there is a reasonable probability that the jury would have reached a different verdict in Defendant's trial. Id. Under this standard, Defendant's ineffective assistance of counsel claim fails.
¶ 25 Defendant contends that he was prejudiced by his trial counsel's failure to procure the additional records and notes because "the State's case relied on the jury believing M.S.[,]" as well as the State's contention that "a child M.S.'[s] age could not have made up this allegation." According to Defendant, the records and notes "could have [been] used . . . to impeach M.S.'s testimony" and "would have provided an alternative explanation for how M.S. gained [his] knowledge" about oral and anal sex. However, a review of the record reveals that the jury heard ample other evidence pertaining to these issues, and therefore, the jury likely would have reached the same verdict had the additional evidence been obtained by defense counsel and admitted at trial.
¶ 26 Numerous witnesses testified as to M.S.'s propensity to lie, rendering the additional records and notes unlikely to affect the outcome. M.S. admitted at trial that he has "been lying all [his] life[,]" and that he learned to tell the truth "way after" his placement with the Ledfords, to whom he disclosed Defendant's abuse. Mr. Ledford testified that M.S. lied "[q]uite a bit" during his stay in their home, and Ms. Ledford stated that M.S. "was untruthful" on almost "a daily basis[.]" Ms. Ledford also noted that the details of M.S.'s allegations of abuse against Defendant changed over time, although the core elements of the allegations remained the same.
¶ 27 Furthermore, Colden Quick, one of M.S.'s therapists, testified that M.S.'s untruthfulness was an issue that he addressed with M.S. in therapy until approximately April 2010, after M.S. had disclosed Defendant's abuse. In addition, one of M.S.'s foster parents, Debbie Kennedy, testified that M.S. would frequently lie to get what he wanted; she further testified that although M.S. alleged that he had a sexual encounter with another child in her home, she did not believe him. Finally, Defendant's wife testified that M.S. "was a liar."
¶ 28 Also, several possible sources of M.S.'s sexual knowledge and behavior were offered at trial, making it unlikely that the additional records and notes would have changed the jury's verdict. One possible explanation was that M.S. witnessed or experienced sexual behavior when residing with his biological family. Kelly Holland, one of M.S.'s therapists, testified on cross-examination that a child of M.S.'s age could acquire sexual knowledge and subsequently exhibit sexual behaviors after "watching other people" or "watching an x-rated video and seeing the same type of behavior exhibited[.]" Mr. Quick testified similarly.
¶ 29 Additionally, Defendant testified that during M.S.'s first placement with him at age 4, M.S. already exhibited sexual knowledge and behavior uncommon in a child his age: less than a week into his first placement with Defendant, M.S. approached Defendant, took off his pants, and showing Defendant his penis, told Defendant to "suck it." Shortly thereafter, Defendant reported this behavior to M.S.'s social worker at the time, April Gullatte. Defendant further testified that during M.S.'s second stay in his home-a few months after M.S. had resided with his sisters in a different foster home-Defendant observed M.S. "humping a pillow[.]" M.S. told Defendant that he "was having sex[,]" and when Defendant "asked him where he learned that[,]" M.S. replied that "he just knew it." Defendant also reported this incident to Ms. Gullatte.
¶ 30 Another explanation presented to the jury regarding M.S.'s sexual knowledge and behavior was the possibility that Defendant's brother, Richard, abused M.S. during M.S.'s final placement with Defendant. Ms. Gullatte testified that DSS removed M.S. from Defendant's home after M.S. "was accused of acting out sexually at school[.]" She explained that Defendant suggested that M.S.'s inappropriate behavior may have stemmed from his recent overnight stay with Richard; M.S. had previously told Defendant that he and Richard slept in the same bed "just in their underwear[,] and they touched all over." Defendant explained at trial that although he knew that Richard had previously "been accused of molesting a child" in Texas, he did not report M.S.'s allegations concerning Richard's behavior until the school incident because he "truly did not believe that anything had happened" and "he didn't want anybody to get in trouble."
¶ 31 Lastly, the jury heard testimony involving a sexual encounter between M.S. and two older boys. Mr. Quick and Ms. Gullatte both testified that in June 2009- after M.S. had left Defendant's home for the final time but before his placement with the Ledfords-"two older males . . . convinced [M.S.] to have anal sex" when M.S. was approximately 8 years old and in foster care. This experience, which occurred well before M.S. made any allegation to the Ledfords that he had been sexually abused by Defendant, could also have served as an alternative source for M.S.'s sexual knowledge.
¶ 32 In sum, because the jury heard a significant amount of testimony from multiple witnesses calling into question M.S.'s veracity and offering several potential alternative sources for M.S.'s sexual knowledge and behavior, Defendant cannot show that there is a reasonable probability that the jury would have reached a different verdict had his trial counsel obtained the additional DSS records and Ms. Grigg's notes. Defendant therefore cannot establish prejudice, and his ineffective assistance of counsel claim must fail. See id.
Conclusion
¶ 33 For the foregoing reasons, we affirm the trial court's order denying Defendant's motion for appropriate relief.
AFFIRMED.
Judges INMAN and JACKSON concur.
Report per Rule 30(e).