In The Matter Of: C.J.L
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 A p p e l l a t e P r o c e d u r e . NO. COA12-234 NORTH CAROLINA COURT OF APPEALS Filed: 18 September 2012 IN THE MATTER OF: C.J.L. Alexander County No. 11 JB 37 Appeal by juvenile from order entered 31 August 2011 by Judge H. Thomas Church, and from orders entered 30 September 2011 and 6 October 2011 by Judge Alexander County District Court. Christine Underwood in Heard in the Court of Appeals 27 August 2012. Roy Cooper, Attorney General, by Tawanda N. Foster Williams, Assistant Attorney General, for the State. Heather L. Rattelade, for juvenile appellant. MARTIN, Chief Judge. Juvenile adjudicating C.J.L. him ( Charlie 1) delinquent for the appeals misdemeanor from orders offenses of simple assault, communicating threats, and sexual battery, and 1 We use the pseudonym Charlie to refer to juvenile C.J.L. -2sentencing him to supervised probation, community service, and intensive counseling. We affirm. On 13 December 2010, Jane2 was sitting in her assigned seat on the school bus on her way home from East Alexander Middle School in Alexander County, North Carolina, when Charlie, a fellow seventh-grader who was sitting next to her, asked Jane for her cell phone number. After Jane refused to give Charlie her phone number, Charlie told [Jane] that he would rape [her] if [she] didn t give him [her] phone number, and then laughed and gave [Jane] a creepy smile. A few minutes later, Charlie reached out his hand and, with a smile on his face, proceeded to run his hand all up [Jane s] body, starting at her mid-thigh, then to her groin, up her stomach, and continuing across her breasts. In response, Jane slapped Charlie s hand away from her body, asked him to leave her alone, and moved to the other side of the bus, after which Charlie just giggled. Moments later, as Jane was talking with her friend, Charlie furtively took a picture of Jane s chest with his cell phone, and set the picture as the wallpaper or background image on the screen of his phone. Then, a few days later, although Jane had refused to give Charlie her cell phone number, Jane received a 2 text message from Charlie that read, I will rape you. We use the pseudonym Jane to refer to the State s witness J.D.H. -3Because Charlie continued to constantly send text messages to her, Jane changed her cell phone number shortly thereafter. Jane did not report the December 2010 incident to anyone until April 2011, when she and Charlie were both in in-school suspension and the teacher monitoring the classroom quietly instructed Jane to move her seat because the teacher observed that Charlie was staring at her. teacher Upon that Charlie hearing allegations resource to this 2010 previously information, school officer 13 December had a threatened the teacher and Jane officials written bus Jane then confided in the statement incident and of of the rape reported gave her to the account text her. Jane s school s of the messages she received from Charlie threatening to rape her. In May 2011, juvenile petitions were filed against Charlie alleging that he committed three incidents of the offense of sexual battery and one incident of the offense of communicating threats against Jane, and further alleging that he committed one incident of the offense of simple assault against another female classmate, who accused Charlie of coming up behind her rubbing down [the full length of] her arm with his hand. prosecutor later consolidated the petitions alleging and The sexual battery, and the entire matter was noticed for an adjudication hearing calendared for 6 July 2011. -4At the July 2011 hearing, the State began its case by presenting Jane s testimony describing her account of the bus incident on 13 December 2010. When asked whether she believed that Charlie might carry out the threat of raping [her], Jane testified that she believed his threat because one of her friends told her that Charlie had sex with his [own] sister at a church camp. Upon further questioning by the prosecutor, Jane testified that, a couple days after the incident on the bus, she confronted Charlie to ask him whether the story about him having a sexual encounter with his sister was true, and Charlie admitted to Jane that it was true. was elicited from Jane, but before she After this testimony could answer the prosecutor s next question as to whether there were any other reason[s] that [she] believed that [Charlie] would carry out the threat to rape her, the court interrupted the proceeding and stated the following: Approach. Step down, please. The time periods that the witness has testified to, I think that that statement is inadmissible; and at this point I think it s prejudicial to the point that I will have to declare a mistrial, but by declaring a mistrial, it doesn t mean the case is over. It just means that I can t hear it. Certainly got [sic] another judge that is scheduled in here soon that can hear the case. I feel that s necessary under the circumstances. All right. What date might we reschedule that for hearing? -5After the court s pronouncement declaring a mistrial, and without objection from either the prosecutor or defense counsel, the court calendared the matter for hearing by another judge on 17 August 2011. also signed On the same day of the July hearing, the court and filed a Juvenile Order with the following handwritten findings: This matter came on for trial before the undersigned judge. During the hearing certain testimony was illicited [sic] from the prosecuting witness. Later, this court determined that some of that testimony was inadmissible and highly prejudicial. Based on the findings of the court[,] the Court, on its own motion, declared and does declare a mistrial. A new court date was set. At the August 2011 hearing, the court heard testimony from four witnesses for the State, including Jane. Defense counsel moved of to dismiss the charges at the close the State s evidence and at the close of all of the evidence, which the trial court denied. After finding that the juvenile committed each of the charged offenses, the court adjudicated the juvenile as delinquent and, on 30 September 2011, the court entered a Juvenile Level 1 Disposition Order sentencing the juvenile to twelve months of supervised probation, forty hours of community service, and ordering him to cooperate with intensive counseling to address his obsession with sexualized behavior. -6The juvenile appeals. _________________________ The juvenile because she declaring failed a improperly first contends to object mistrial. declared adjudication The a hearing his to began, the juvenile mistrial counsel trial asserts shortly and was ineffective court s that order the court after suggests the July 2011 that his counsel s failure to object to the mistrial failed to protect his right to be free from the double jeopardy to which he was purportedly subjected by his subsequent conviction. We disagree. When a defendant attacks his conviction on the basis that counsel was ineffective, he must show that his counsel s conduct fell below an objective standard of reasonableness. Braswell, (citing 312 N.C. 553, Strickland v. 561 62, 324 S.E.2d Washington, 241, 466 U.S. State v. 248 668, (1985) 687 88, 80 L. Ed. 2d 674, 693, reh g denied, 467 U.S. 1267, 82 L. Ed. 2d 864 (1984)). satisfy a two In part order to test. meet Id. this at burden 562, defendant 324 S.E.2d at must 248. First, the defendant must show that counsel s performance was deficient, which requires showing that counsel made errors so serious that counsel was not functioning as guaranteed the defendant by the Sixth Amendment. the counsel Id. (quoting Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693). Second, -7the defendant prejudiced must the show that defense, the which deficient requires performance showing that counsel s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Id. (emphasis omitted) (quoting Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693). [I]f 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, counsel s then the performance court was need actually not determine deficient. Id. whether at 563, 324 S.E.2d at 249. In the present case, at the July 2011 hearing, the State s witness Jane recounted the 13 December 2010 incident when Charlie told her that he would rape her, stroked her body from her thigh to her breasts, and surreptitiously photographed her chest with his cell phone. Then, after hearing Jane s further testimony that Charlie had had sex with his [own] sister at a church camp, and that Jane had confronted Charlie to ascertain the veracity of the story, the court abruptly stopped the proceeding and declared that Jane s testimony was inadmissible and prejudicial to the point that the court felt that it ha[d] to declare a mistrial. (Emphasis added.) Thus, even though [i]t is well-settled in this jurisdiction that when the court -8withdraws incompetent evidence and instructs the jury not to consider it, any prejudice is ordinarily cured, State v. Smith, 301 N.C. 695, 697, 272 S.E.2d 852, 855 (1981), it appears that the trial court, sitting as the fact-finder in the case below, determined that Jane s testimony had irreparably prejudiced the juvenile and that such pronouncement that the evidence. prejudice court would could not disregard be the cured by a incompetent In other words, the trial court determined that the highly prejudicial testimony from Jane render[ed] impossible a fair and impartial trial [for the juvenile] under the law, see State v. Crocker, 239 N.C. 446, 450, 80 S.E.2d 243, 246 (1954), and, in its discretion and with the parties consent, the court decided that the matter should be heard anew by another judge in order for the juvenile to receive a fair trial. Since it is well within the trial judge s discretion [to declare a mistrial] when faced with the occurrence of some incident of a nature that would render impossible a fair and impartial trial under the law, State v. Shuler, 293 N.C. 34, 45, 235 S.E.2d 226, 233 (1977) (internal quotation marks omitted), and because the overriding interest in the evenhanded administration of justice requires that we accord the highest degree of respect to the trial judge s evaluation [of whether a mistrial is necessary], State v. Malone, 65 N.C. App. 782, 785 -986, 310 S.E.2d quotation 385, marks 387 (alteration omitted), disc. in original) review denied (internal and appeal dismissed, 311 N.C. 405, 319 S.E.2d 277 (1984), we conclude that the trial court did not abuse its discretion when it declared a mistrial during the July 2011 adjudication hearing. Moreover, since an order of mistrial which is declared . . . to serve the ends of public justice will not ordinarily cause a subsequent conviction after retrial to be susceptible to a double jeopardy challenge, State v. Simpson, 303 N.C. 439, 447, 279 S.E.2d 542, 547 (1981); see also Crocker, 239 N.C. at 450, 80 S.E.2d at 246 ( [T]he necessity occurrence of of some doing incident justice of a . . . nature [relates that to] would the render impossible a fair and impartial trial under the law. (internal quotation marks omitted)), we further conclude that the juvenile was not subjected conviction at to the double jeopardy August 2011 by his adjudication subsequent hearing. Accordingly, because the only basis brought forward on appeal for the juvenile s claim of ineffective assistance of counsel is his assertion that his counsel subjected him to double jeopardy by failing to object to the court s purportedly improper ex mero motu order declaring a mistrial, we overrule this issue on appeal. The juvenile next contends the State violated his -10constitutional right to due process by knowingly soliciting or failing to correct false testimony from Jane during the August 2011 hearing, and by relying upon this testimony to find him guilty of communicating threats in violation of N.C.G.S. § 14-277.1.3 The juvenile suggests that Jane s testimony at the August 2011 hearing had [c]onveniently . . . changed from her testimony differences at in the July 2011 her hearing, testimony and demonstrate that that the the alleged prosecutor abdicat[ed] his duties in contravention of the constitutional obligations imposed upon the State. record indicates that the However, our review of the juvenile did not raise any such constitutional challenge on appeal and, thus, this issue is not properly before us. See State v. Hunter, 305 N.C. 106, 112, 286 S.E.2d 535, 539 (1982) ( [A] constitutional question which is not raised and passed upon in the trial court will not has failed to ordinarily be considered on appeal. ). Additionally, 3 we note that the juvenile Although the juvenile suggests in his brief that Jane s purportedly false testimony affected the court s adjudication of guilt on all of the charged offenses against him, the juvenile argues only that the challenged testimony affected whether the court could properly determine that Jane believe[d] that [Charlie s] threat [to rape her] will be carried out. See N.C. Gen. Stat. § 14-277.1(a)(4) (2011). Thus, to the extent that this issue on appeal is properly before us, we consider only whether the State knowingly solicited or failed to correct false testimony from Jane to secure the juvenile s conviction on the offense of communicating threats in violation of N.C.G.S. § 14-277.1. -11provide support for his serious accusation that the prosecutor acted in dereliction soliciting or of failing State s witness. his to responsibilities correct false by knowingly testimony from the The testimony excerpted by the juvenile from the July 2011 hearing shows that Jane testified that she heard a story from a friend about Charlie, and that a couple days after Charlie threatened her on the bus, Jane confronted him about the story. The testimony excerpted by the juvenile from the August 2011 hearing shows that Jane testified that she heard things about Charlie that gave [her] some concern during the weeks or months before the [bus] incident. In other words, contrary to the juvenile s supposition that her later testimony changed, a close review of Jane s testimony from the July 2011 hearing reveals that Jane only testified to confronting Charlie a couple days after the bus incident to confirm the veracity of the story she heard about him, but did not specifically testify as to when she first heard the story about Charlie. This is also examination at consistent the with August 2011 Jane s testimony hearing, during on which crossJane unequivocally stated that she consistently maintained that she had heard the story about Charlie before 13 December 2010, i.e., before Charlie first threatened Jane that he would rape her. Because the juvenile has not brought forward any evidence to -12support his serious accusation that the prosecutor solicited or failed to correct any false testimony from Jane with respect to the timing of when she heard stories about Charlie, we decline to address this issue on appeal further. All remaining assertions in support of which the juvenile has failed to present any relevant legal authority are deemed abandoned. See N.C.R. App. P. 28(a), (b)(6). Affirmed. Judges GEER and STROUD concur. Report per Rule 30(e).
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