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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA, Plaintiff, v. IAN AULDEN CAMPBELL,
Filed: 16 May 2006
1. Constitutional Law--effective assistance of counsel--trial strategy--telling jury
defendant repeatedly lied to his attorneys
Defendant did not receive ineffective assistance of counsel in a first-degree murder case
based on his attorney telling the jury that defendant had repeatedly lied to his attorneys, because:
(1) counsel's decision to address defendant's repeated lies was a prudent step in pulling the sting
from damaging evidence; (2) any prosecution of defendant would include his lies as
incriminating evidence, including their use as evidence against his truthfulness; (3) defense
counsel was attempting to turn defendant's lies into a favorable fact by showing that he was
merely guilty of a lesser-included crime without premeditation or deliberation; (4) when
defendant took the stand and admitted, in both direct and cross-examination, that he had lied to
his attorneys, defendant himself participated in this defense strategy and thus cannot complain
that defense counsel utilized the strategy in closing argument; and (5) although it is possible
other counsel may have proceeded with a different strategy, it cannot be concluded that the
strategy employed by defendant's counsel was unreasonable or deficient.
2. Evidence--privileged communications--attorney-client privilege--waiver
Although defendant contends defense counsel breached the attorney-client privilege in a
first-degree murder case by telling the jury that defendant had lied to his attorneys, he waived any
such privilege because he admitted he lied to his attorneys in both his direct and cross-
examination at trial.
3. Criminal Law--prosecutor's argument-_alleged improper shift of burden of proof to
The trial court did not abuse its discretion in a first-degree murder case by concluding that
the prosecutor did not improperly shift the burden of proof to defendant during closing
arguments, because: (1) the determination of whether the remarks were improper during closing
arguments is not reached if the trial court's correct jury instructions on the law cured any
mistakes made in the prosecutor's closing argument; and (2) when instructing the jury on first-
degree murder, second-degree murder, and voluntary manslaughter, the trial court repeatedly told
the jury that the State bore the burden of proof to prove each element necessary for conviction of
the crime charged and each lesser offense.
Appeal by defendant from judgment entered 13 June 2003 by
Judge W. Osmond Smith in Wake County Superior Court. Heard in the
Court of Appeals 10 April 2006.
Roy Cooper, Attorney General, by Amy C. Kunstling, Assistant
Attorney General, for the State.
Glover & Petersen, P.A., by Ann B. Petersen, for
MARTIN, Chief Judge.
Ian Aulden Campbell (defendant) appeals from a judgment
entered on a jury verdict finding him guilty of first degree
murder. Defendant was sentenced to life imprisonment without
parole. On appeal, defendant makes two arguments. First,
defendant claims he received ineffective assistance of counsel at
trial because his attorney informed the jury that defendant had
initially lied to everyone, including his attorneys, regarding his
involvement in the victim's death. Second, defendant argues the
prosecution impermissibly shifted the burden of proof to defendant
during closing arguments. We find no error.
The facts of this case are not in dispute, and we provide only
those facts pertinent to resolution of the issues on appeal.
Defendant killed his fiancée, Heather Domenie, on the night of 25
July 2002. Defendant had been having an affair with another woman,
and he argued with Domenie about his affair on the night of her
death. The fight escalated, and defendant grabbed the towel around
her neck and strangled her. According to the medical examiners,
Domenie died from asphyxia due to strangulation.
After some time passed, defendant called the 911 emergency
center, claiming his fiancée had choked herself with a tea towel
and was not breathing. When the first responders arrived, he told
them Domenie apparently had choked while he had been on an errandto the store. Shortly thereafter, defendant called two friends,
and when they arrived, he told them Domenie had choked herself with
a tea towel.
Defendant continued to give this account of Domenie's death to
everyone with whom he spoke about the matter, including the
emergency room doctor, the police, his life insurance agent, his
family, the woman with whom he was having an affair, and his
The police arrested defendant on 16 August 2002. He was
indicted for first degree murder, and the charge was prosecuted
In April 2003, defendant admitted to his attorneys that he had
strangled Domenie. At the start of the trial, on 19 May 2003,
defendant filed a declaration with the court admitting he
assaulted Heather Anne Domenie on July 25, 2002 and that his
assault upon her proximately caused her death. The declaration
indicated a defense strategy claiming defendant was not guilty of
first degree murder, but rather a lesser-included homicide with a
correspondingly less culpable mens rea:
The Defendant consents to his trial counsel pursuing, at
trial, a course of defense which admits his assault upon
Heather Anne Domenie, and plans to present evidence,
including testifying in his own defense, and offering
other evidence which he and his trial counsel contend
will dispute the State's contention that he is guilty of
First Degree Murder, but which will establish that he is
guilty of a lesser-included offense of homicide other
than First Degree Murder.
At trial, the defendant's counsel began his opening statement
by acknowledging defendant had killed Domenie. Counsel then laidout the central issue in the case, claiming defendant did not kill
Domenie with malice or premeditation or deliberation as the State
contended, but instead had killed her as a situational crime
without planning in advance. The defense theory of the case argued
the killing was a situational crime which resulted from a domestic
situation which Ian had created, and that, as it evolved, it
happened so swiftly and with such unexpected and explosive
suddenness that all of his reason was suspended when he killed
her. According to defense counsel, defendant's alibi was so
unbelievable it demonstrated defendant had not premeditated or
deliberated the killing:
Well, Ian Campbell -- and I'll give you the litany in a
minute -- the evidence is going to show that what he
constructed to avoid getting caught and avoid getting
detected and to avoid responsibility for what he had done
will be, we're convinced, in your opinion, the most
pathetic, miserable construct of an alibi in the history
of criminal law.
Counsel then explained defendant's alibi that Domenie had gone and
choked herself with a tea towel while he was running an errand,
and told the jury that as it considered the evidence in the case
they should keep in mind how miserable it is, and pathetic, and
consider that when you're deciding whether this thing was
premeditated and deliberated upon, whether this killing was thought
out in advance and planned.
Next, defense counsel previewed the evidence showing defendant
lied to the first responders, to the police, and to his brother.
Defendant kept telling the same lie, and he was lying to
everybody. Everybody. Well, it goes on for months, months andmonths. Everybody included his attorneys. Five weeks before
the trial started, however, defendant broke down under enormous
pressure from his family and from his lawyers and everybody else
that cares anything about him, and finally [told] us what he did
and what happened. The pathetic lie defendant kept telling
pertained to whether defendant had the mental state for first
And you'll be able to judge his credibility and make
a decision about whether you think that this was all the
work of a planning, determined, master-mind or someone
who was covering for something that -- something terrible
had happened to him and the pathetic efforts he made to
cover it up. That will be your decision.
And based on your determination of that will be a
lead-in into your consideration of what offense of
homicide Ian Campbell's guilty of.
According to the defense theory, defendant's pathetic lie
indicated his killing of Domenie was not premeditated or
deliberated, and therefore defendant was guilty of a lesser crime
than first degree murder.
During the trial, defendant testified in his own defense.
During direct examination, defendant admitted he had repeatedly
Q: Well, Ian, can you tell the Court and jury how
you began to and why you began to pursue the matter of
the correspondence and discussions with the life
insurance company about Heather's policy?
A: I was telling everybody the same lie, and my
family and lawyers and people around me were believing
me, . . . .
On cross examination, defendant again admitted lying to his
attorneys: Q: You lied to all the folks from the Cary Police
Department that you have talked to, right?
A: Yes, sir, I lied to everybody that night and
every time after that fact that I was questioned about
A: I lied to my family, my lawyers and everybody.
In his closing argument, defense counsel returned to the theme
of defendant's implausible lie. Counsel argued:
And while we're talking about that and your determination
of whether this was a premeditated and deliberated
killing with motive, consider this, from a guy who is
supposed to be smart and a planner and all that: If you
were going to do something and plan on doing it very
carefully, all the way back to buying insurance and
everything else, why in the world would you put yourself
in the house with your intended victim, screen every call
that came in, admit no one to the house and then set
yourself up as the only possible suspect? And then after
all that careful planning and execution of this careful
plan to eliminate this person in a premeditated and a
deliberate way, then the best you could do after thinking
on it all the way back to June with Ron Keever and
everything else, come up with that 9-1-1 call. And the
-- I think we've just used the word before -- pathetic
explanation for what happened and the persistence
afterwards, all the way up to almost the beginning of the
trial, in denying that you had anything to do with this
or trying to create evidence to show that you just
couldn't have done it, if it was so well planned.
Counsel summarized this theme: If it had been premeditated, don't
you know the story would have been better?
The jury found defendant guilty of first degree murder on 13
June 2003, and he was sentenced to life imprisonment without
parole. Defendant appealed.
I. Ineffective assistance of counsel
 Defendant argues he received ineffective assistance of
counsel because his attorney told the jury that defendant had
repeatedly lied to his attorneys. Our review of ineffective
assistance of counsel claims will be decided on the merits 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. Fair, 354 N.C. 131, 166, 557 S.E.2d
500, 524 (2001), cert. denied, 535 U.S. 1114, 153 L. Ed. 2d 162
(2002). Here, the cold record from the trial transcript shows no
further investigation is required for our review.
When making an ineffective assistance of counsel claim,
defendant must show (1) counsel's performance was deficient, with
errors so serious that the attorney was not functioning as
counsel guaranteed the defendant by the Sixth Amendment, and
(2) the deficient performance prejudiced the defense to the extent
there is a reasonable probability that, but for counsel's errors,
the result of the proceeding would have been different and
defendant was deprived of a fair trial. Strickland v. Washington,
466 U.S. 668, 687, 694, 80 L. Ed. 2d 674, 693, 698 (1984); State v.
Braswell, 312 N.C. 553, 561_63, 324 S.E.2d 241, 247_48 (1985)
(expressly adopting the Strickland v. Washington test). 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; accord Braswell, 312 N.C. at 563, 324 S.E.2d
at 248. Unless a defendant makes both showings, it cannot be saidthat the conviction . . . resulted from a breakdown in the
adversary process that renders the result unreliable. Id. at 687,
80 L. Ed. 2d at 693; see also Braswell, 312 N.C. at 563, 324 S.E.2d
The United States Supreme Court requires our restraint in
second-guessing strategic decisions made by attorneys:
Judicial scrutiny of counsel's performance must be highly
deferential. It is all too tempting for a defendant to
second-guess counsel's assistance after conviction or
adverse sentence, and it is all too easy for a court,
examining counsel's defense after it has proved
unsuccessful, to conclude that a particular act or
omission of counsel was unreasonable. 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;
that is, the defendant must overcome the presumption
that, under the circumstances, the challenged action
might be considered sound trial strategy. There are
countless ways to provide effective assistance in any
given case. Even the best criminal defense attorneys
would not defend a particular client in the same way.
Strickland, 466 U.S. at 689_90, 80 L. Ed. 2d at 694_95 (citations
omitted). Thus, a court deciding an actual ineffectiveness claim
must judge the reasonableness of counsel's challenged conduct on
the facts of the particular case, viewed as of the time of
counsel's conduct. Id. at 690, 80 L. Ed. 2d at 695.
Defendant argues his counsel was deficient because his
attorney shared with the jury the fact he lied to his defense
counsel. He claims no possible trial strategy could be served by
telling the jury he lied to his attorneys, and there was simply notactical reason that would justify an attorney affirmatively
putting before a jury in a criminal case evidence that a client had
lied to the attorney repeatedly about his guilt or about his
version of the events. We disagree.
In our highly deferential review of defense counsel's
conduct in this case, Strickland, 466 U.S. at 689_90, 80 L. Ed. 2d
at 694_95, we view counsel's decision to address defendant's
repeated lies as a prudent step in pulling the sting from damaging
evidence. Defendant had lied to everyone, including family,
friends, the police, and medical personnel. His claim that the
victim had strangled herself was suspicious from the start. Such
a lie, repeated to everyone, indicated defendant sought to protect
himself from liability, and therefore his lies about the
circumstances of her death further incriminated him in the murder
of Domenie. Any prosecution of defendant would include his lies as
incriminating evidence, including their use as evidence against his
Since defense counsel knew defendant's lies would be an issue
at trial, counsel attempted to turn defendant's lies into a
favorable fact. Defense counsel was seeking to have defendant
acquitted of first degree murder, and instead have defendant found
guilty of a lesser-included crime such as second degree murder or
voluntary manslaughter. Their hope of doing so relied on showing
defendant had a less culpable mental state than premeditation or
deliberation, a strategy apparent as early as defendant's 19 May
2003 declaration before trial admitting he had killed Domenie. Hence, defense counsel argued that if defendant had premeditated or
deliberated Domenie's murder, he would have produced a more
credible alibi than the pathetic one he continually provided. As
counsel summarized in closing argument, If it had been
premeditated, don't you know the story would have been better?
Even the State acknowledges on appeal these arguments by defense
counsel reflected a reasonable and shrewd defense strategy.
Although defense counsel noted in opening argument that
defendant had lied to his attorneys, just as he had lied to
everyone else, under the facts of this case we do not hold such an
admission to be deficient performance by counsel. The theme
counsel was arguing indicated defendant had a pattern of lying to
everyone about the circumstances of Domenie's death, and
acknowledging that everyone included his attorneys did not
exacerbate the incriminating aspect of defendant seeking to escape
liability via his lies. Defense counsel's mention in the opening
statement that defendant had lied to his attorneys was incidental
to this theme; if anything, it merely served to further illustrate
counsel's intended theme. When defendant took the stand and
admitted, in both direct and cross-examination, he had lied to his
attorneys, defendant himself explicitly participated in this
defense strategy, and thereafter cannot complain that defense
counsel utilized the strategy in closing argument.
Though it is possible other counsel may have proceeded with a
different strategy, we cannot conclude the strategy employed by
defendant's counsel was unreasonable nor, in our highly deferentialreview, deficient. Because we hold defense counsel's performance
was not deficient, we need not address whether such performance
prejudiced the defense and deprived defendant of a fair trial. Id.
at 687, 80 L. Ed. 2d at 693; see also Braswell, 312 N.C. at 563,
324 S.E.2d at 248_49. Accordingly, we hold defendant did not
receive ineffective assistance of counsel.
 Defendant also argues defense counsel breached
attorney-client privilege by telling the jury he had lied to his
attorneys. According to defendant, the lies defendant told his
counsel were confidential communications, and those communications
were privileged and may not be disclosed. In re Investigation of
the Death of Miller, 357 N.C. 316, 328, 584 S.E.2d 772, 782 (2003).
But the privilege belongs to the defendant, and may be waived by
him. State v. Bronson, 333 N.C. 67, 76, 423 S.E.2d 772, 777
(1992). Since defendant admitted he lied to his attorneys in both
his direct examination and cross-examination at trial, he therefore
waived this privilege.
II. Burden of proof
 Defendant claims
a portion of the prosecutor's closing
argument improperly shifted the burden of proof to defendant. At
the end of the argument, the prosecutor said:
The defendant has tried real hard when he testified
to make his story -- to make what he offered to you to
fit the State's evidence that he knew we would present.
He had months to do that. He is an engineer.
He knows what the State reports are. He knows what
those are. He has months to do that and to come in here
and be able to tell you the little things that he thinks
will make his story fit.
But he wants to tell you a couple of other things,
and that is that he actually did administer CPR on her.
Think about whether or not that is the truth and compare
that to the rest of everything that he said. Think about
whether when he says when he is standing face to face to
her, face to face, toe to toe, and that he doesn't
remember what happened after he pulled that towel tight,
that he doesn't remember that. Is that the truth? Is
that really the truth? Because Dr. Radisch said that it
would take more, in this case was not a four-minute
thing. It was hands and a towel. The evidence shows you
that it could be from behind because of the way the hairs
were found on the towel and because of the way the marks
are on her body and the lack of marks on his.
You will have four options: First-degree murder,
second-degree murder, voluntary manslaughter and the
verdict form as perhaps required by law has to have not
guilty on the bottom of it.
In order for you to find the defendant guilty of
voluntary manslaughter, you have to say that the emotions
that were going on were so high.
In order for you to find him guilty of second-degree
murder, you have to say that he did not premeditate and
What I say to you this afternoon is that for you to
find him guilty of anything less than first-degree
murder, you will have to have decided for yourself
individually and collectively that he has been telling
the truth about what happened.
Defendant objected, which the trial court overruled.
The jury was
excused for lunch, and defendant renewed his objection, contending
the prosecutor's argument was improper and impermissibly shifted
the burden of proof from the State onto the defendant.
asked the trial court to instruct the jury to that effect when they
returned from lunch.
The trial court declined to do so, stating it
would instruct the jury regarding the burden of proof pursuant to
the proposed jury instructions.
During the jury instructions, the trial court instructed the
The defendant in this case has entered a plea of not
guilty. The fact that he has been charged is no evidence
of guilt. Under our system of justice, when a defendant
pleads not guilty he is not required to prove his
innocence. He is presumed to be innocent.
The State must prove to you that the defendant is
guilty beyond a reasonable doubt.
When instructing the jury on first degree murder, second degree
murder, and voluntary manslaughter, the trial court repeatedly told
the jury that the State bore the burden of proof to prove each
element necessary for conviction of this crime charged and each
lesser offense about which the jury was instructed.
When counsel makes a timely objection at trial, the standard
of review for improper closing arguments is whether the trial court
abused its discretion by failing to sustain the objection. State
, 355 N.C. 117, 131, 558 S.E.2d 97, 106 (2002). We should
reverse a trial court and find an abuse of discretion, however,
only upon a showing that its ruling could not have been the result
of a reasoned decision. State v. Burrus
, 344 N.C. 79, 90, 472
S.E.2d 867, 875 (1996) (citing State v. Riddick
, 315 N.C. 749, 756,
340 S.E.2d 55, 59 (1986)). When applying the abuse of discretion
standard to closing arguments, we first determine whether the
remarks were improper, and if so, whether the remarks were of
such a magnitude that their inclusion prejudiced defendant.
, 355 N.C. at 131, 558 S.E.2d at 106.
We need not make this determination, however, if the trial
court's correct jury instructions on the law cured any mistakesmade in the prosecutor's closing argument. If the alleged
misstatement of law was made, it was cured by the trial court's
correct jury instructions on the relevant law. State v. Price
344 N.C. 583, 594, 476 S.E.2d 317, 323_24 (1996) (citing State v.
, 322 N.C. 22, 38, 366 S.E.2d 459, 468 (1988)); see also
State v. Rose
, 339 N.C. 172, 197, 451 S.E.2d 211, 225_26 (1994)
(prosecutor's error in defining the term reasonable doubt was
cured because the trial court's instruction, which followed the
complained-of statement by the prosecutor, remedied the error, if
any, in the prosecutor's closing argument), cert. denied
, 515 U.S.
1135, 132 L. Ed. 2d 818 (1995); State v. Gladden
, 315 N.C. 398,
426, 340 S.E.2d 673, 690_91 (1986) (Subsequently, the trial judge
properly instructed the jury concerning the weight to be accorded
prior inconsistent statements and cured any possible prejudice to
the defendant which may have been caused by the prosecutor's
misstatement of the law.), cert. denied
, 479 U.S. 871, 93
L. Ed. 2d 166 (1986).
Judges HUDSON and BRYANT concur.
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