State v. Smith

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NO. COA13-463 NORTH CAROLINA COURT OF APPEALS Filed: 5 November 2013 STATE OF NORTH CAROLINA v. PHILIP WARNEW SMITH1 Swain County No. 11 CRS 50503 Appeal by Defendant from judgment entered 18 October 2012 by Judge Zoro J. Guice, Jr., in Swain County Superior Court. Heard in the Court of Appeals 25 September 2013. Attorney General Roy Cooper, by Assistant Attorney General Creecy Johnson, for the State. John T. Barrett for Defendant. STEPHENS, Judge. Evidence and Procedural History 1 The indictment, transcript, and various other documents in the record show Defendant s name as Phillip Warren Smith. At trial, Defendant testified that his name is Phillip Warren Smith. However, per the custom of this Court, the caption of this opinion provides Defendant s name as it appears in the judgment from which he appeals, including different spellings of his first and middle names. -2Defendant Phillip Warren Smith was tried on two sets of charges: (1) attempted second-degree rape, second-degree sexual offense, and sexual battery for events occurring on 9 May 2011 and (2) obstruction of justice and attempted obstruction of justice for events occurring on 1 September 2011. The evidence at Defendant s trial tended to show the following: Defendant was manager of a trailer park on Stillhouse Branch Road in Swain County. On 9 May 2011, Easter Octavia Ramsey met Defendant outside her father s trailer in the park. Ramsey asked Defendant to replace her father s carpet. Ramsey assisted Defendant in measuring the unit s living room and hallway while her father watched cartoons in the living room. They then entered the bathroom together. Ramsey testified that inside the bathroom, Defendant shoved Ramsey against the counter and started kissing her. She further testified that Defendant pressed himself against her and proceeded to pull her breasts out of her shirt. Defendant then forced his hand up Ramsey s shorts and stuck his fingers inside her vagina. Defendant exposed his penis and forced Ramsey to touch it. After Ramsey warned Defendant that she thought her father was coming down the hallway, Defendant allowed her to leave the bathroom. -3Ramsey reported the incident to the Swain County Sheriff s Office immediately. After reviewing Ramsey s interview, Detective Sarah Miller Hofecker sought and secured a warrant for Defendant s arrest on charges of attempted second-degree rape, second-degree sexual assault, and sexual battery. Several charged months with attempted one following count obstruction of his arrest, of obstruction each justice. These Defendant of charges was justice stemmed also and from allegations made by Ramsey s mother, Dot Shuler, who testified that Defendant repeatedly asked Shuler to make her daughter drop the charges. Ramsey and Schuler reported Defendant s statements to the Swain County Sheriff s Department. The Sheriff s Department attempted to set up a recorded conversation between Ramsey or Schuler and Defendant; however, requests for adequate recording equipment took approximately a month to process. Due to the slow pace of the official investigation, Ramsey and Shuler decided to try to take action on their own. Ramsey and Shuler visited Defendant s attorney, Frank Lay. Although Shuler testified that Defendant set up the meeting a day in advance, Lay, who acted as Defendant s trial counsel, indicated during his cross-examination of Ramsey and Shuler that he had no -4prior knowledge of his client s actions and was not complicit in the scheme. At the meeting, Ramsey took the lead in the conversation. However, she was heavily sedated from a dental procedure earlier in the morning. Due to the procedure, her mouth was stuffed with cotton gauze, hindering her ability to speak clearly and causing her to mumble. Further, she was heavily medicated and the sedatives left her unable to recall most of the meeting. At the meeting, Ramsey offered to recant her accusations in exchange for $5,000 apiece for herself and her mother. She also requested that her mother be allowed to live in her trailer rent-free. instructions evening. Ramsey testified Defendant Schuler stated had she this given was in her believed keeping mother her the daughter with the previous was just curious to see what might be offered. Schuler further testified I knew he wasn t going to do it and she knew I wasn t going to do it, so we left and laughed about it and went on back, went on back home. Ramsey testified: [T]he only reason I even kept up the charade about money is because I wanted to catch him on tape trying to bribe me. I had no intentions of letting anything drop ever. I refuse. I ve been living with it for almost two years, and I mean there s no way, there s no way I could let it drop. -5At trial, Lay stipulated that the meeting took place but asserted that he had no prior knowledge of Ramsey and Shuler s intention to visit. Lay had attempted to record the conversation but later realized discovered the ethical his attempt had ramifications of failed. the As soon as conversation, he Lay asked Shuler and Ramsey to leave and then informed the District Attorney s office via email about what had happened. At trial, Lay thoroughly cross-examined Ramsey, Shuler, and the investigating officers about the meeting itself and the broader investigation of Defendant s alleged attempts to obstruct justice. Lay did not testify. Defendant was tried by jury before the Honorable Zoro J. Guice, Jr., Superior Court judge presiding, at the 15 October 2012 session of superior court in Swain County. The obstruction of justice and attempted obstruction of justice charges were dismissed at the close of the State s evidence. Defendant was acquitted on attempted second-degree rape and second-degree sexual offense, but convicted of sexual battery. Judgment on the sexual battery guilty verdict was entered on 18 October 2012. Defendant was placed on probation and required to register as a sex offender. Defendant appeals. We find no error in his trial or sentence. -6Discussion On appeal, Defendant argues that (1) he received ineffective assistance of counsel and (2) the trial court erred in concluding that Defendant has a reportable conviction which subjects him to the Sex Offender and Public Protection Registration Program. We disagree. I. Ineffective Assistance of Counsel Defendant first argues that he received ineffective assistance ( IAC ) from his trial counsel. We disagree. To prevail in a claim for IAC, a defendant must show that his (1) counsel s performance was deficient, meaning it fell below an objective standard of reasonableness, and (2) the deficient performance prejudiced the defense, meaning counsel s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. State v. Garcell, 363 N.C. 10, 51, 678 S.E.2d 618, 644 (2009) (citations and internal quotation marks omitted). As to the first prong of the IAC test, [a] strong presumption exists that a counsel s conduct falls within the range of reasonable professional assistance. State v. Frazier, 142 N.C. App. 361, 367, 542 S.E.2d 682, 687 (2001). Further, if there is no reasonable probability that in the absence of counsel s alleged errors the result of the proceeding -7would have been different, then the court need not determine whether counsel s performance was actually deficient. State v. Braswell, 312 N.C. 553, 563, 324 S.E.2d 241, 249 (1985). Defendant urges that, here, he is relieved of the burden to establish prejudice, citing State v. Choudry, 365 N.C. 215, 717 S.E.2d 348 (2011), and State v. James, 111 N.C. App. 785, 433 S.E.2d 755 (1993). However, we find James and Choudry inapposite as the IAC claims in both cases were based on a narrow and specific circumstance conflicts of representation James, counsel not interest of present arising multiple represented adverse both here, from to defense parties. the wit, For defendant alleged counsel s example, and a in key prosecution witness. 111 N.C. App. at 790, 433 S.E.2d at 758. We observed that representation of the defendant as well as a prosecution witness (albeit in another matter) creates several avenues of possible conflict for an attorney. Confidential communications from either or both of a revealing nature which might otherwise prove to be quite helpful in the preparation of a case might be suppressed. Extensive crossexamination, particularly of an impeaching nature, may be held in check. Duties of loyalty and care might be compromised if the attorney tries to perform a balancing act between two adverse interests. Id. Because of these risks to the defendant s constitutional -8rights, we held that the trial court must take control of the situation[and conduct a hearing] Id. at 791, 433 S.E.2d at 75859 (citation and internal quotation marks omitted). [Thus] the failure of the trial judge to conduct an inquiry, in and of itself, constitutes reversible error. Id. at 791, 433 S.E.2d at 759 (citation and internal quotation marks omitted); see also Choudry, 365 N.C. at 226, 717 S.E.2d at 356 (noting the same presumption of prejudice in the absence of a hearing, but upholding the defendant s conviction because the trial court had conducted a conflict inquiry). Here, there was no conflict of interest based on multiple or prior representations. Defendant s counsel never represented Ramsey or Shuler. Further, their testimony indicates they never considered Lay their attorney or contemplated retaining his services. Therefore, Defendant s argument that he is entitled to a presumption of prejudice is without merit. Accordingly, to prevail in his IAC claim, Defendant must show both deficient performance by his trial counsel and prejudice therefrom. Defendant claims deficient in that he trial such that his that his counsel s performance was a necessary witness representation of was at Defendant s Defendant at trial violated Rule 3.7(a) of the North Carolina Rules of Professional -9Conduct. We are not persuaded. Rule 3.7(a) provides: A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless:(1) the testimony relates to an uncontested issue; (2) the testimony relates to the nature and value of legal services rendered in the case; or (3) disqualification of the lawyer would work substantial hardship on the client. N.C.R. of Prof l Conduct Rule 3.7(a). A witness s testimony is necessary within the meaning of the rule when it is relevant, material, and unobtainable by other means. State v. Rogers, __ N.C. App. __, __, 725 S.E.2d 342, 348 (citing N.C. St. Bar, 2011 Formal Ethics Opinion 1), disc. review denied, 366 N.C. 232, 731 S.E.2d 171 (2012). In Rogers, this Court found no error in a trial court s decision to disqualify the defendant s chosen counsel based on his significant relationship with the defendant s girlfriend, who was also a key prosecution witness in the defendant s trial for the attempted murder of her husband: By virtue of his relationships with both parties, [defense counsel] was aware of personal and sensitive information, including the nature of their affair, which was a major factor leading to the shooting. Had [defense counsel] remained as [the] defendant s counsel, he might have been called to testify, at which time he might have been asked to disclose confidential -10information regarding the relationship between [the] defendant and [the defendant s girlfriend/victim s wife], which information may have divulged [the] defendant s motive for shooting [the victim], which in turn could compromise his duty of loyalty to his client. Id. at __, 725 S.E.2d at 347. Here, the testimony from Lay which Defendant claims was necessary concerned Defendant contends Lay s this meeting testimony with could Ramsey have and Shuler. potentially (1) cast doubt on Ramsey s motives and character so as to undercut her credibility and (2) shown that Defendant s trial counsel was not corrupt. As to the second contention, we fail to see how Lay s character was at all relevant or material to the charges Defendant faced. We further observe that, to the extent Lay s testimony on either point was relevant and material, it most certainly was not unobtainable by other means. Id. at __, 725 S.E.2d at 348. As Defendant notes in his brief, Lay cross- examined Ramsey and Shuler extensively about their visit to his office and the resulting discussion. Both women admitted that Lay did not give them any money or otherwise cooperate with their demands. Ramsey admitted that she was heavily medicated during the meeting and retained little memory of it. Her mother likewise testified to having fluid on the brain which affected -11her memory and thinking. The women agreed that they met with Lay because the police investigation into the obstruction was too slow. They testified that they went to Lay s office and agreed to what Defendant had told them he wanted. They further testified that they knew Defendant would not actually follow through with the alleged scheme. A police detective testified that Lay told law enforcement officers about the meeting. In sum, Defendant s through cross-examination and closing arguments, counsel amply called issues with the women s credibility to the jury s attention, and their testimony along with that character of and the police suggested no officer reflected corruption on well his on part. Lay s Because Defendant s counsel was able to make the same points through his vigorous cross-examination as he would have made as a witness, there is no reasonable probability that in the absence of the counsel s alleged errors the result of the proceeding would have been different. Ultimately, the obstruction of justice and attempted obstruction of justice charges were dismissed at the close of the State s evidence and Defendant was acquitted of all but one of the sexual misconduct charges. Defendant cannot show prejudice, and therefore cannot establish IAC. Accordingly, this argument is overruled. -12II. Sex Offender Registration Defendant next argues that he was wrongfully forced to register as a sex offender prematurely because his conviction is not yet final insofar as his right to direct appeal under N.C. R. App. P. 4(a)(2) had not yet expired. We disagree. This issue is a matter of statutory construction, raising only questions of law, and thus we review de novo. In re Borden, __ N.C. App. __, __, 718 S.E.2d 683, 685 (2011) (citations omitted). When the language of a statute is clear and without ambiguity, it is the duty of this Court to give effect to the plain meaning of the statute, and judicial construction of legislative intent is not required. However, when the language of a statute is ambiguous, this Court will determine the purpose of the statute and the intent of the legislature in its enactment. Moreover, when confronted with a clear and unambiguous statute, courts are without power to interpolate, or superimpose, provisions and limitations not contained therein. The best indicia of the legislature s intent are the language of the statute or ordinance, the spirit of the act and what the act seeks to accomplish. Moreover, in discerning the intent of the General Assembly, statutes in pari materia should be construed together and harmonized whenever possible. In pari materia is defined as upon the same matter or subject. Id. (citations and internal quotation marks omitted). -13North Carolina s General Assembly has declared that protection of the public from sex offenders is of paramount governmental interest. N.C. Gen. Stat. § 14-208.5 (2011). The General Assembly enacted legislation requiring sex offenders to register with government agencies in order to assist law enforcement in its effort to protect the public at large. Id. Section 14-208.6 (4)(a) defines reportable convictions to include a final conviction for an offense against a minor, a sexually violent offense, or an attempt to commit any of those offenses unless the conviction is for aiding and abetting. N.C. Gen. Stat. sexually § 14-208.6 violent (4)(a) offense (2011). provided by The definition section of a 14-208.6(5) includes any convictions for sexual battery in violation of N.C. Gen. Stat. § 14-27.5A. At trial, the jury found Defendant guilty of sexual battery pursuant to section 14-27.5A. Therefore, Defendant has a reportable conviction and it was proper for the trial court to instruct him to register as a sex offender. Defendant, however, contends that his conviction is not yet final because his right to appeal under N.C. R. App. 4(a)(2) had not expired. In support of this argument, Defendant relies primarily on this court s recent decision in Walters v. Cooper, __ N.C. App. __, -14739 S.E.2d 185, stay granted, __ N.C. __, 739 S.E.2d 838 (2013). However, the General Assembly s intent and the holding of Walters make clear that Defendant s reliance is misplaced. In Walters, this Court confronted the question of whether a Prayer for Judgment Continued ( PJC ) entered upon a conviction makes that conviction a final conviction, and therefore a reportable conviction for the purposes of the [sex offender] registration statute. Id. at __, 739 S.E.2d at 186-87. This Court noted that the term final conviction has no ordinary meaning and is not otherwise defined by the [sex offender registration] statute. Id. This Court ultimately concluded that a PJC does not qualify as a final conviction due to the specific nature of a PJC sentence. Id. at __, 739 S.E.2d at 188. In terms of criminal sentencing, a PJC is a unique remedial measure: After a defendant has been found guilty or entered a guilty plea, a trial court may (1) pronounce judgment and place it into immediate execution; (2) pronounce judgment and suspend or stay its execution; or (3) enter a PJC. A prayer for judgment continued upon payment of costs, without more, does not typically constitute an entry of judgment. However, our Supreme Court has acknowledged that a continuation of entry of judgment may lose its character as [a] true PJC and is converted into a judgment when it includes conditions amounting to punishment. -15Id. at __, 739 S.E.2d at 187 (citations and internal quotation marks omitted). In Walters, we presume[d] that the legislature was aware of our prior case law, albeit in another context, interpreting the term final conviction as excluding convictions which are followed by true PJCs. Id. at __, 739 S.E.2d at 188. The fact that PJCs are excluded from the court s interpretation of the term final conviction implies they are an exception from the general rule under section 14-208.6(5) that everyone convicted of a sexually violent offense must register as a sex offender. Because Defendant did not receive a PJC, Walters does not provide him relief. Further, undermine common sense the argument. Defendant s and By General Assembly s Defendant s intent reasoning, no conviction for a sexually violent offense would be final until all appeals are Assembly s exhausted. purpose in This enacting would the frustrate law and the make General it more difficult for law enforcement to monitor dangerous sex offenders and protect public safety. Extending the registration requirement deadline to the expiration of the appeals process is unnecessary, conviction as and a defendant obtains a who reversal successfully is entitled appeals to relief his by -16having his Protecting name public removed safety from and the sex facilitating offender law registry. enforcement by requiring registration during the appeals process outweighs the stigma the accused may suffer from his registration during the appeals process. NO ERROR. Judges CALABRIA and ELMORE concur.

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