Appeal by defendant from judgment entered 30 August 2006 by
Judge James F. Ammons, Jr. in Harnett County Superior Court. Heard
in the Court of Appeals 11 September 2007.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Chris Z. Sinha, for the State.
M. Alexander Charns for defendant-appellant.
HUNTER, Judge.
James Earl Thomas (“defendant”) appeals from a judgment
entered 30 August 2006 pursuant to a jury verdict finding him
guilty of first degree rape in violation of N.C. Gen. Stat. § 14-
27.2(a)(1) (2005). Defendant was sentenced to a minimum of 384
months' and a maximum of 470 months' imprisonment. After careful
consideration, we find that defendant's trial was free from error.
The State presented evidence that tended to show that the
victim, referred to as “BH” in this opinion, was spending the night
at a friend's house. BH was sleeping on the floor next to her
friend, TD, when defendant, who is TD's stepfather, entered the
room. BH testified that after defendant entered the room, he
dragged her to the door, took off her clothes, and “put his stuffinto” hers. BH told defendant to stop. The only other person in
the house was TD, and BH called to her, but TD did not wake up.
After defendant left, BH testified that she was bleeding from her
vagina.
Approximately one month later, BH told her mother about the
incident. Her mother called the police. Deputy S.M. Currin
testified that BH told him that defendant “tried to make me have
sex with [him].” He also stated that BH told him that defendant
“was having sex with me when I didn't want to.”
Dr. Vivian D. Everett examined BH and found nothing during
that physical examination that would indicate that BH had been
sexually abused. Dr. Everett also testified that, based on her
examination of BH, a single act of intercourse could have occurred.
Defendant's expert, Dr. Christopher Chao, had reviewed BH's
medical records and testified that there was no evidence of trauma
or injury to BH's genitals. Dr. Chao testified that if the trauma
had occurred two months earlier, there would be no evidence of that
trauma, and lack of trauma did not indicate lack of penetration.
Vincent Harris (“Harris” or “witness Harris”) also testified
at trial. Three years before the trial, defendant's counsel had
represented Harris in an unrelated matter. At the time of the
trial, Harris was in jail on a charge of breaking and entering and
had been indicted as an habitual felon. According to Harris,
defendant told him that he had dragged BH out of the bedroom,
pulled her pants down, and had sex with her. Harris also said that
defendant admitted to there being blood on the floor where theincident occurred and that defendant cleaned up afterward.
Defendant did not testify.
Defendant presents the following issues for this Court's
review: (1) whether the trial court erred in denying defense
counsel's motion to withdraw; (2) whether the trial court committed
plain error by not instructing the jury on the lesser charge of
attempted first degree rape; and (3) whether defendant's trial
counsel was inadequate by not making certain requests, thereby
depriving defendant of a full and adequate appeal of trial errors.
I.
Defendant's trial attorney filed a motion to withdraw as
counsel because the State intended to call as a witness against
defendant one of the attorney's former clients, Harris. The
attorney had represented Harris three years earlier in an unrelated
matter. The trial court conducted an inquiry and made a ruling to
deny this motion. Thus, defendant's argument that the denial of
his counsel's motion to withdraw was made without a hearing is
rejected. Defendant also argues that the ruling denied his right
to counsel. We disagree.
“An accused's right to counsel in a criminal prosecution is
guaranteed by the Sixth Amendment of the United States Constitution
and is applicable to the states through the Fourteenth Amendment,
Sections 19 and 23 of the North Carolina Constitution.”
State v.
Shores, 102 N.C. App. 473, 474, 402 S.E.2d 162, 163 (1991). It
thus follows that defendants in criminal cases have “a
constitutional right to effective assistance of counsel.”
State v.Bruton, 344 N.C. 381, 391, 474 S.E.2d 336, 343 (1996) (citing
Strickland v. Washington, 466 U.S. 668, 686, 80 L. Ed. 2d 674, 692
(1984);
State v. Braswell, 312 N.C. 553, 561, 324 S.E.2d 241, 247
(1985)). Included within that right is the “'right to
representation that is free from conflicts of interest.'”
Id.
(quoting
Wood v. Georgia, 450 U.S. 261, 271, 67 L. Ed. 2d 220, 230
(1981)).
When, as in this case, a trial court is made aware of a
potential conflict of interest, it must hold a hearing “'“to
determine whether there exists such a conflict of interest that the
defendant will be prevented from receiving advice and assistance
sufficient to afford him the quality of representation guaranteed
by the [S]ixth Amendment.”'”
State v. Mims, ___ N.C. App. ___,
___, 637 S.E.2d 244, 248 (2006) (citations omitted in original)
(failure to hold a hearing after being made aware of it is
reversible error). Here, the trial court held such a hearing.
While hearings are required, “[t]he trial court must be given
substantial latitude in granting or denying a motion for attorney
disqualification.”
Shores, 102 N.C. App. at 475, 402 S.E.2d at
163.
In the instant case, we hold that defendant was not prevented
from receiving the quality of representation guaranteed by the
Sixth Amendment. Here, there was no concurrent conflict of
interest. Defense counsel had represented witness Harris three
years prior to defendant's trial and was no longer representing
him.
See Rev. R. Prof. Conduct N.C. St. B. 1.7(a), 2007 Ann. R.N.C. 746 (stating that “a lawyer shall not represent a client if
the representation involves a concurrent conflict of interest”)
(cited with approval by
Mims, ___ N.C. App. at ___, 637 S.E.2d at
249). Moreover, defense counsel had no recollection as to
specifics of witness Harris's case aside from the bare fact that
witness Harris had been convicted on assault charges. Indeed,
defense counsel told the trial court that she would review witness
Harris's file, which she had in her office, to see if she could use
any information in that file to help her current client.
(See footnote 1)
That
statement establishes that defense counsel was committed to her
current client's case and would not hesitate to use any information
at her disposal to aid defendant.
Although defense counsel's cross-examination as to witness
Harris's past convictions may not have been as robust as it could
have been,
(See footnote 2)
the transcript reveals that defense counsel did make
significant inroads to undermine witness Harris's credibility. She
asked him about the fight defendant had with witness Harris in
jail, in which witness Harris was knocked unconscious; how afterthat incident, witness Harris decided to cooperate with the police;
and about what witness Harris expected to receive in terms of a
deal on his own pending felony charges for informing on defendant.
Accordingly, we hold that defendant's Sixth Amendment rights under
the United States Constitution and his rights under Sections 19 and
23 of the North Carolina Constitution were not violated.
Defendant's assignments of error as to this issue are rejected.
II.
Defendant next argues that the trial erred by not instructing
the jury, upon its own motion, on attempted first degree rape. We
disagree.
“Instructions on the lesser included offenses of first degree
rape are warranted only when there is some doubt or conflict
concerning the crucial element of penetration.”
State v. Wright,
304 N.C. 349, 353, 283 S.E.2d 502, 505 (1981). In
Wright, our
Supreme Court held that where there was only conflict as to how the
penetration occurred (whether defendant inserted his penis or
whether the victim assisted him), an instruction on attempted rape
was not warranted.
Id. at 355, 283 S.E.2d at 505-06. Similarly,
in
State v. Davis, 291 N.C. 1, 229 S.E.2d 285 (1976), our Supreme
Court held that submitting the charge of second degree attempted
rape would have been inappropriate because all the evidence in that
case tended “to show a completed act of intercourse and the only
issue [was] whether the act was with the prosecuting witness's
consent or by force and against her will[.]”
Id. at 13, 229 S.E.2d
at 293. Instructions on attempted rape have been required where there
is conflicting evidence as to penetration or when, from the
evidence presented, the jury may draw conflicting inferences.
State v. Johnson, 317 N.C. 417, 436, 347 S.E.2d 7, 18 (1986),
superseded by statute as stated in,
State v. Moore, 335 N.C. 567,
440 S.E.2d 797 (1994). In
Johnson, the victim testified that
penetration had occurred.
Id. On cross-examination, however, the
victim “testified that on the morning she was raped, she gave to
the police a written statement in which she said, regarding the
assailant's first attack, that the man 'tried to push it in but
couldn't' and that '[h]e tried for maybe fifteen seconds.'”
Id.
As to the second attack, the victim told the police that “'he tried
to penetrate me again' and '[h]e told me to put it in, and I said
“I have.” He tried to get it in but couldn't.'”
Id.
In addition to that testimony, her treating physician
testified that the victim had told him that “she 'felt pressure but
not penetration' and she was uncertain whether there had been
penetration or not.”
Id. Our Supreme Court held that “[t]his
evidence creates a conflict as to whether penetration occurred
which should have been resolved by the jury under appropriate
instructions [on attempt].”
Id. The error was reversible because,
according to the
Johnson Court, the fact that “the jury convicted
defendant of first degree rape which required it to find
penetration does not render the error harmless.”
Id. at 436-37,
347 S.E.2d at 18-19. In the instant case, defendant relies on BH's testimony that
“[defendant] tried to make me have sex with [him,]” as evidence
permitting a jury to draw a conflicting inference as to
penetration. Defendant also relies on the lack of medical evidence
of penetration in making this argument. We disagree that this
evidence created a conflict that would necessitate an instruction
on first degree attempted rape.
The crucial element in establishing first degree rape is that
there was some penetration.
Wright, 304 N.C. at 353, 283 S.E.2d at
505. Although defendant presented evidence that BH's genitals
showed no evidence of trauma, the expert witness also testified
that lack of trauma does not indicate lack of penetration.
Moreover, penetration does not require “'that the vagina be entered
or that the hymen be ruptured. The entering of the vulva or labia
is sufficient.'”
State v. Fletcher, 322 N.C. 415, 424, 368 S.E.2d
633, 638 (1988). The State put on evidence from BH that defendant
had inserted his penis into her vagina, which was corroborated by
Deputy Currin who confirmed that BH had told him that defendant
inserted his penis into her vagina, as well as evidence from
Harris, who testified that defendant told him that he had sex with
BH. Merely presenting evidence that no trauma occurred to BH is
not sufficient to establish a conflict of evidence as to
penetration.
We find defendant's additional argument that BH's testimony
that defendant “tried to . . . have sex” with her equally
unpersuasive. At the outset, this evidence falls far short of thestandard set in
Johnson where the alleged victim told both the
police and her doctor that no penetration had occurred. Moreover,
the testimony does not create doubt as to whether the penetration
actually occurred. The statement is consistent with penetration
occurring as, according to BH's testimony, defendant did try to
penetrate her and eventually was able to do so. Accordingly,
defendant's arguments as to this issue are rejected.
III.
Defendant next argues that he received ineffective assistance
of counsel because his trial counsel did not request recordation of
opening/closing arguments, jury selection, and rulings from the
trial court on matters of law. Defendant acknowledges that he
cannot show prejudice as to this issue and has made the argument
for preservation purposes only.
“To prevail on a claim of ineffective assistance of counsel,
a defendant must first show that his counsel's performance was
deficient and then that counsel's deficient performance prejudiced
his defense.”
State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271,
286 (2006). Deficient performance may be shown by establishing
“that 'counsel's representation “fell below an objective standard
of reasonableness.”'”
Id. (citations omitted). In order “'to
establish prejudice, 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. A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.”'”
Id. (citations omitted). N.C. Gen. Stat. § 15A-1241(a) (2005) excludes from mandatory
recording: “(1) [s]election of the jury in noncapital cases; (2)
[o]pening statements and final arguments of counsel to the jury;
and (3) [a]rguments of counsel on questions of law.” Under
subsection (b) of that statute, all of the above may be recorded
upon request of any party. N.C. Gen. Stat. § 15A-1241(b). In the
instant case, no such request was made.
In
State v. Hardison, 326 N.C. 646, 661-62, 392 S.E.2d 364,
373 (1990), our Supreme Court held that a defendant cannot
establish ineffective assistance of counsel for failure to request
recordation of the jury selection and bench conferences where no
specific allegations of error were made and no attempts were made
to reconstruct the transcript. Moreover, this Court has held that
a defendant cannot establish prejudice as a result of defense
counsel's failure to request recordation of those items
specifically exempted from the recording statute.
State v. Price,
170 N.C. App. 57, 67, 611 S.E.2d 891, 898 (2005). Thus, defendant
is unable to establish ineffective assistance of counsel or any
prejudice as a result of failure to record. Accordingly, his
assignment of error as to this issue is rejected.
IV.
In summary, we hold that the trial court did not err in
denying defense counsel's motion to withdraw. We also find that
the trial court did not err when instructing the jury. Finally,
defendant cannot establish ineffective assistance of counsel bytrial counsel for not requesting recordation of the complete trial
proceedings. Defendant's trial was free from error.
No error.
Judges WYNN and JACKSON concur.
Footnote: 1