1. Appeal and Error--no motion for post-conviction hearing or
appropriate relief--no further factual development
An assault defendant alleging inadequate representation
waived her opportunity to develop additional factual matters, and
the Court of Appeals was bound by the record on appeal, where she
did not file motions for a post-conviction hearing or for
appropriate relief with the court below prior to the appeal.
2. Constitutional Law--effective assistance of counsel--
acceptance of plea bargain--defendant advised by judge--no
prejudice
An assault defendant alleging inadequate representation
failed to show how the result of the proceedings would have been
any different absent the alleged deficient performance where
defendant contended that her failure to accept a plea bargain was
the result of inadequate information provided by counsel, but the
record clearly reflects that defendant was carefully advised by
the trial judge of both her possible sentence and the plea
bargain. Any alleged deficiency by the defense counsel was
corrected by the trial judge. Additionally, the evidence of
defendant's guilt is supported by the record.
3. Judges--active role in trial--alleged deficiencies by
counsel--no prejudice
There was no prejudicial error in an assault prosecution
where defendant contended that the trial court prejudiced
defendant in the eyes of the jury by taking an active role in
assisting defense counsel. All of the court's actions were taken
to protect defendant's rights and to ensure that she received a
fair trial. Defendant failed to show that the ultimate
resolution was not a fair trial with a reliable result.
4. Appeal and Error--unpublished opinions--not considered
A defendant's assignment of error concerning notice of
counsel's inability to represent criminal defendants was
dismissed where the alleged notice was contained in an
unpublished opinion in a another case. Unpublished opinions are
not considered by the Court. N.C. R. App. P. 30(e).
HUNTER, Judge.
Barbara Taylor (“defendant”) appeals from her jury conviction
of felonious assault with a deadly weapon with intent to kill
inflicting serious injury and misdemeanor injury to personal
property. This appeal encompasses one primary issue: whether
defendant was denied effective assistance of counsel as guaranteed
by the Sixth Amendment to the United States Constitution. After a
careful review of the records and briefs, we hold that defendant
was not denied effective assistance of counsel.
Premised on the effective assistance of counsel issue,
defendant asserts several assignments of error: (1) whether the
trial court committed prejudicial error by failing to declare a
mistrial and/or a continuance after having observed defense
counsel's alleged ineffective assistance of counsel, (2) whether
the trial court committed plain error by allowing defendant to be
represented by alleged inadequate, incompetent, ineffective
counsel, (3) whether the trial court committed prejudicial error in
taking an active role in the representation of defendant, and (4)
whether this Court committed prejudicial error by allowing
defendant to be represented by defense counsel after our decision
in an unpublished opinion involving the same attorney. We hereby
find no error as to defendant's first three assignments of error,
and as to the fourth, we dismiss the assignment. At trial, the State's evidence tended to show that after
midnight on 17 February 1997, Elvis Lilly (“victim”) drove to
defendant's home to speak with his wife, Marian Sabrina Lilly
(“Mrs. Lilly”), who was having an affair with defendant. An
argument ensued between the victim and Mrs. Lilly, and that
argument soon turned physically violent. Shortly thereafter,
defendant, who had been away from home, drove up and witnessed the
fight taking place in her front yard. Eventually, defendant joined
in the affray. Ultimately, defendant knocked out a window of the
victim's van with a baseball bat, and the fight ended when
defendant struck the victim on the side of the face with the bat.
Defendant was tried during the 31 March 1998 Criminal Session
of Superior Court of Anson County, the Honorable Gregory A. Weeks
presiding. The jury found defendant guilty of felonious assault
with a deadly weapon with intent to kill inflicting serious injury
and misdemeanor injury to personal property. Judge Weeks entered
judgments on the jury conviction on 2 April 1998, and defendant was
subsequently sentenced to a term of imprisonment.
In the instant action, the crux of defendant's claims involve
her trial and the performance of her defense counsel. At trial,
defendant was represented by her court-appointed attorney, A.
Milton Cornwell (“defense counsel”). Defendant did not object or
make a motion as to her counsel being ineffective at trial, and
furthermore, she failed to file a timely notice of appeal after
trial. Consequently, defendant had to file a petition for writ of
certiorari seeking belated appeal with this Court. Upon the grant
of her petition, a hearing was held in superior court and attorneyT. Lynn Clodfelter was appointed to represent defendant on this
appeal.
At bar, defendant contends that defense counsel at trial was
so lacking in the ability to represent a defendant charged with a
criminal offense that the transcript reflects a total absence of
knowledge of the law, preparation, understanding, strategy, or
courtroom skill on defense counsel's behalf. This claim in essence
encompasses an ineffective assistance of counsel challenge.
[1]Before considering defendant's allegation of ineffective
assistance of counsel, we note that defendant did not file motions
for a post-conviction hearing or for appropriate relief with the
court below prior to taking this appeal. When an ineffective
representation claim is made “before an appellate court on direct
review of a criminal conviction . . . that court is necessarily
bound by the record of the trial proceedings below.” State v.
Milano, 297 N.C. 485, 496, 256 S.E.2d 154, 160 (1979), overruled on
other grounds, State v. Grier, 307 N.C. 628, 645, 300 S.E.2d 351,
361 (1983); see also State v. Goforth, 130 N.C. App. 603, 605, 503
S.E.2d 676, 678-79 (1998). Therefore, defendant has foregone her
opportunity to develop any additional factual matters, and our
review is bound by the record on appeal.
[2]In State v. Braswell, 312 N.C. 553, 324 S.E.2d 241 (1985),
our North Carolina Supreme Court adopted the two-part test for
determining whether a defendant received effective assistance of
counsel as set out in Strickland v. Washington, 466 U.S. 668, 80 L.
Ed. 2d 674 (1984). This test entails: “First, the defendant mu
st 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. (Emphasis added.)”
Braswell, 312 N.C. at 562, 324 S.E.2d at 248 (quoting Strickland,
466 U.S. at 687, 80 L. Ed. 2d at 693).
Under this analysis
“[a] fair assessment of attorney performance
requires that every effort be made to
eliminate the distorting effects of hindsight,
to reconstruct the circumstances of counsel's
challenged conduct, and to evaluate the
conduct from counsel's perspective at the
time. 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.”
State v. Mason, 337 N.C. 165, 177-78, 446 S.E.2d 58, 65 (1994)
(quoting Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694).
Importantly, “if a reviewing court can determine at the outset
that there is no reasonable probability that in the absence of
counsel's alleged errors the result of the proceeding would have
been different, then the court need not determine whether counsel's
performance was actually deficient.” Braswell, 312 N.C. at 563,
324 S.E.2d at 249. Thus, rather than determining if defense
counsel's performance was deficient in this action, we instead
analyze defendant's claims to determine whether absent defense
counsel's alleged errors the result would have been different. “The fact that counsel made an error, even an un
reasonable
error, does not warrant reversal of a conviction unless there is a
reasonable probability that, but for counsel's errors, there would
have been a different result in the proceedings.” Braswell, 312
N.C. at 563, 324 S.E.2d at 248. Moreover, “[t]he question becomes
whether a reasonable probability exists that, absent counsel's
deficient performance, the result of the proceeding would have been
different.” State v. Moorman, 320 N.C. 387, 399, 358 S.E.2d 502,
510 (1987).
Defendant has failed to show this Court how the result of the
proceedings would have been any different absent defense counsel's
alleged deficient performance. In fact, the only two claims drawn
out of defendant's arguments that allege a different result are
that (1) defense counsel's failure to review the possible sentences
with defendant limited defendant's ability to make an educated and
informed decision on whether to proceed with trial, and (2)
defendant's failure to take a plea bargain is the result of the
deficient information provided to defendant by defense counsel.
However, defendant's assertions are not supported by the record.
In actuality, both alleged deficiencies of defense counsel at
trial were clarified for defendant on the record by the trial
judge. At trial, the following dialogue between defendant and the
trial judge transpired with regards to sentencing:
COURT: . . . You have the absolute right
to try your case before a jury. . . . Do you
understand what I'm saying?
DEFENDANT: Yes, sir.
. . .
COURT: . . . If you are convicted of a
Class C felony and if you in fact fall under
record level two the mandatory minimum
sentence that I could impose could be 80
months in prison.
DEFENDANT: I know, sir.
COURT: . . . There is no discretion on
my part. I have to send you to prison for at
least 80 months to 105, as much as 100 months
to 129. Do you understand that?
DEFENDANT: Yes, sir.
Then, with regards to the plea bargain, the following dialogue
between defendant and the trial judge occurred:
COURT: I'm informed that the State has
offered you a Class E plea and willing to
stipulate to intermediate punishment.
. . .
COURT: It is your absolute right to say
I understand that plea; I don't want that
plea; I want my case tried by a jury. But I
want you to understand, ma'am, if this jury
convicts I have to send you to prison.
DEFENDANT: And if I plea bargain I'll
still be sentenced to prison.
COURT: No. That's up to me. . . .
MR. CORNWELL: May I clarify one thing
for her, Your Honor, because she's still
confused.
COURT: That's what I wanted to make
sure, that she understood the plea
arrangement.
COURT: If it's an intermediate level
punishment which is what I understand they're
offering you, if it's record level two the
range involved is 23 months and 29 months
minimum which translates into 37 to 44
maximum, but I have the discretion to impose
probation, special probation which would
include a split sentence, or an active
sentence. I could do any one of those three
things. Do you understand what I'm saying?
DEFENDANT: I understand what you're
saying.
COURT: . . . Now it's your right to go
forward with this jury trial if that's what
you want to do. I simply want to make sure
you understand what the plea offer is . . . .
Do you understand what I'm saying?
DEFENDANT: I understand.
COURT: Do you understand you have an
absolute right to go forward?
DEFENDANT: I'm going to try it.
. . .
MR. CORNWELL: Your Honor, I would like
the record to reflect she is doing so against
my advice.
. . .
DEFENDANT: . . . I'd really just rather
take my chances . . . .
. . .
DEFENDANT: I'd rather go to try this.
The record clearly reflects that defendant was carefully advised by
the trial judge of both her possible sentence and the plea bargain.
Any alleged deficiency that defense counsel may have had in
explaining either was corrected by the trial judge's clear,
deliberate steps to explain the sentence and plea to defendant.
Based on the trial judge's explanation, defendant made an educated
and informed decision to proceed (against the advice of defense
counsel) with the jury trial and to reject the State's offered plea
bargain. Defendant cannot now object and claim that she was
prejudiced, when she made the educated, informed decision to
proceed on her own accord.
Furthermore, we have reviewed each of defendant's otherallegations of defense counsel's alleged deficient actions,
and we
find that none of them present any prejudice to defendant's case or
would affect the prior resolution of this matter. Additionally,
the evidence of defendant's guilt is supported by the record.
While defendant does bring forward on appeal evidence at trial that
raises doubt as to defendant being the perpetrator of these
offenses, the credibility and weight of that evidence was properly
taken into account by the jury, which found defendant guilty.
Hence, after a review of the record, we do not find anything
in defense counsel's performance which overcomes the strong
presumption that his conduct fell within the wide range of
reasonable professional assistance. Nevertheless, even assuming
defense counsel committed errors at trial, those alleged errors
were not so serious as to deprive defendant of a fair trial which
result was reliable. Therefore, we hold that defendant was not
denied effective assistance of counsel.
Having made that determination, we proceed to an analysis of
defendant's specific assignments of error sub judice. First, we
combine two of defendant's assignments of error as they are both
based on the ineffective assistance of counsel claim. In her
arguments, defendant contends that the trial court committed (1)
prejudicial error by failing to declare a mistrial and/or a
continuance, and (2) plain error by allowing her to be represented
by an alleged inadequate, incompetent, ineffective counsel after
the court observed defense counsel's performance at trial. As we
have held supra, defendant's claim of ineffective assistance of
counsel has failed, and defense counsel did not prejudice theoutcome of the trial. Therefore, defendant's arguments are moot
and we need not address them here. Thus, we overrule these
assignments of error and hold that the trial court committed no
error.
[3]Defendant next assigns error and argues that the trial
court committed prejudicial error by taking an active role in the
representation of defendant. Again, we disagree with defendant's
contentions and reject this assignment of error.
In her brief, defendant sets out approximately eleven
instances in which the trial court allegedly committed error by
taking an active role in assisting defense counsel, prejudicing
defendant in the eyes of the jury, and failing to set aside the
verdict or declare a mistrial or continuance. Chief among
defendant's claims are instances where the trial judge allegedly
(1) reminded defense counsel to renew his motion to dismiss, (2)
asked witnesses questions, (3) independently inquired of defendant
whether she wanted to publish pictures to the jury, (4) explained
the charges, sentencing, and plea bargain to both defendant and
defense counsel, (5) interfered in the presentation of defendant's
witnesses, in particular Mrs. Lilly, which misled defense counsel
into believing the he was prevented from allowing her to testify,
(6) explained “leading questions,” “limiting instructions,” and
“cross-examination” to defense counsel in the presence of the jury,
and (7) failed to set aside the verdict or declare a mistrial or
continuance after having observed the alleged deficient performance
of defense counsel.
A trial judge has the “inherent authority to control the courtproceedings and to assist the jury in hearing an
d comprehending the
evidence.” State v. Harrill, 35 N.C. App. 222, 225, 241 S.E.2d 94,
97 (1978). With this authority comes, “the duty of the trial court
to supervise and control the course of the trial, including the
examination and cross-examination of witnesses, so as to insure
justice for all parties.” State v. Agnew, 294 N.C. 382, 395, 241
S.E.2d 684, 692 (1978). Furthermore, a trial judge has the
additional duty to question a witness to clarify the witness's
testimony or to elicit neglected pertinent facts. State v.
Fleming, 350 N.C. 109, 126, 512 S.E.2d 720, 732, cert. denied, 528
U.S. 941, 145 L. Ed. 2d 274 (1999).
Most important for our purposes here, “the remarks of a judge
during the trial will not entitle a defendant to a new trial unless
the defendant can establish prejudice arising therefrom; a bare
possibility that they were prejudicial is insufficient.” Harrill,
35 N.C. App. at 225, 241 S.E.2d at 97.
We reiterate that after reviewing each of defendant's claims,
we find no prejudice nor any likelihood that the result of the
trial would have been any different absent these alleged errors.
Here, defendant has failed to show how any of the trial judge's
comments or actions prejudiced defendant before the jury.
Furthermore, the trial judge's inquiry of Mrs. Lilly prior to
testifying was not prejudicial. The hearing with Mrs. Lilly was
done outside the presence of the jury and was for the express
purpose of advising her of her Fifth Amendment right against self-
incrimination. Nevertheless, this hearing served to protect therights and interests of the witness, and was clearly within the
trial judge's authority to supervise and control the trial pursuant
to Harrill, Agnew and Fleming. Additionally, defendant's argument
is rendered moot as Mrs. Lilly did in fact testify later in the
trial.
All of the trial court's actions sub judice were undertaken to
protect defendant's rights and to ensure that she received a fair
trial. In those instances in which defense counsel's performance
was arguably lacking, the trial court ensured that defendant's case
was not prejudiced. For example, the trial court on the record
informed defendant of her possible sentencing, her plea bargain,
and asked her directly whether she wished to proceed to trial with
the case or to take the plea bargain. At bar, defendant has failed
to show any prejudice or that the ultimate resolution was not a
fair trial whose result was reliable. Thus, we find no error.
[4]Finally, we consider defendant's last assignment of error:
whether this Court committed prejudicial error by allowing
defendant to be represented by defense counsel after our decision
in an unpublished opinion involving the same attorney, which
allegedly informed this Court and the trial court of defense
counsel's inability to represent a criminal defendant. We dismiss
defendant's assignment of error.
Defendant's only authority for this assignment of error is an
aforementioned unpublished opinion. This Court declines to
consider unpublished opinions cited by a party. Harris v. Duke
Power Co., 83 N.C. App. 195, 199, 349 S.E.2d 394, 397 (1986). Hence, we remind counsel of our North Carolina Appellate Rules,
specifically N.C.R. App. P. 30(e), which prohibit the citation of
unpublished opinions and use thereof as precedent. Long v. Harris,
137 N.C. App. 461, 470-71, 528 S.E.2d 633, 638-39 (2000). For this
reason, defendant's assignment of error is dismissed.
Thus, after reviewing the record in this case, we hold that it
is not reasonably probable that the jury would have reached a
different result had none of the alleged errors of counsel
occurred. Therefore, defendant was not denied effective assistance
of counsel, and she received a fair trial free from prejudicial
error. Moreover, the trial court did not commit error in assisting
defense counsel and defendant below.
No error.
Judges LEWIS and WYNN concur.
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