Opinion
No. COA13–49.
2013-07-16
STATE of North Carolina v. Doniesha Elouise CORE.
Attorney General Roy Cooper, by Assistant Attorney General Teresa M. Postell, for the State. Kevin P. Bradley for Defendant.
Appeal by Defendant from judgment entered 14 August 2012 by Judge Marvin K. Blount in Wayne County Superior Court. Heard in the Court of Appeals 5 June 2013. Attorney General Roy Cooper, by Assistant Attorney General Teresa M. Postell, for the State. Kevin P. Bradley for Defendant.
STEPHENS, Judge.
Defendant Doniesha Elouise Core was indicted for felony child abuse resulting in the death of her infant daughter, Diamond Nicole Smith. Diamond was born 20 March 2009 to Defendant and Ronald “Chris” Smith. Diamond resided with her parents in a home where domestic violence occurred regularly. Defendant had sought and been granted a protective order against Smith after reporting that he had assaulted Defendant and Diamond. Defendant reported witnessing Smith nearly drop Diamond at least once, shake Diamond very hard on several occasions, and place his hand over Diamond's mouth repeatedly. Defendant told the district court that she was “afraid to leave [Diamond] alone with [Smith] because of his anger issues.” As a result of Defendant's testimony, the district court ordered Smith to stay away from Defendant's residence and place of work until after 13 July 2010.
On 13 July 2009, Smith was convicted of assaulting Defendant, placed on supervised probation, required to participate in anger management classes, and ordered not to assault, threaten, or harass Defendant. However, later that month, Smith's probation officer reported that Defendant and Diamond were at Smith's home and that Defendant had inquired about living with Smith. The probation officer reminded Defendant that she could not live with Smith unless she went to court to alter the protective order. In September 2009, Smith, Diamond, and Defendant (who was now pregnant by Smith again) all moved into a trailer together despite the fact that the protective order was still in effect.
On the evening of 13 October 2009, Diamond, who had been sick for weeks, was congested and feverish with vomiting and diarrhea. Although Defendant had told the district court that Smith was easily upset by Diamond's crying, Defendant left Diamond alone with Smith for more than ten hours. When Diamond cried and “whined,” Smith “got mad” and became “frustrated.” Smith gave different accounts of what occurred next, including that he shook Diamond, suffocated her, slammed her onto the bed, and punched her. At some point Diamond fell onto some tools on the floor, and Smith then “fell on her[.]” Smith reported that Diamond stopped breathing just before Defendant returned home. When Defendant reached Diamond, the baby “felt like rubber to the touch[,]” but Defendant did not call 911 or take Diamond to a rescue unit that was within 100 yards of the home. Instead, after trying CPR, she and Smith took Diamond to Wayne County Hospital. Because of her condition, Diamond was quickly airlifted to Pitt Memorial Hospital.
Diamond had extensive bleeding in her brain and neck, hemorrhages in her eyes, bruising across her body, and spinal cord damage among other injuries. Diamond, then about six months of age, died two days later. Smith later pled guilty to murdering Diamond.
Defendant's first trial in April and May 2012 resulted in a deadlocked jury, and the trial court declared a mistrial on 2 May 2012. Defendant's retrial took place in August 2012. She did not present any evidence on her own behalf and moved to dismiss for insufficiency of the evidence at the close of all evidence. The trial court denied that motion, and the jury returned a guilty verdict. The trial court imposed a sentence in the presumptive range. From the judgment entered 14 August 2012 upon her conviction, Defendant appeals.
Discussion
Defendant makes three arguments: that (1) the trial court erred in denying her motion to dismiss, (2) the trial court committed plain error in instructing the jury, and (3) Defendant received ineffective assistance of counsel. We find no error in Defendant's trial and conclude that she has failed to establish any prejudice from her trial counsel's performance. I. Motion to Dismiss
Defendant first argues that the trial court erred in denying her motion to dismiss because the State failed to present sufficient evidence of gross negligence resulting in serious bodily injury. We disagree.
“The denial of a motion to dismiss for insufficient evidence is a question of law which this Court reviews de novo.” State v.. Bagley, 183 N.C.App. 514, 523, 644 S.E.2d 615, 621 (2007) (citations omitted).
Where the sufficiency of the evidence is challenged, we consider the evidence in the light most favorable to the State, with all favorable inferences. We disregard [the] defendant's evidence except to the extent it favors or clarifies the State's case. When a defendant moves for dismissal, the trial court must determine only whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense. Substantial evidence is that evidence which a reasonable mind might accept as adequate to support a conclusion.
State v. Cole, 209 N.C.App. 84, 90, 703 S.E.2d 842, 847,appeal dismissed and disc. review denied,365 N.C. 197, 709 S.E.2d 922 (2011) (citations, brackets, and ellipses omitted). To convict a defendant of felony child abuse, the State must prove (1) that the defendant is the parent or caretaker of a child under the age of 16; (2) that the defendant's “willful act or grossly negligent omission in the care of the child shows a reckless disregard for human life[;]” and (3) that the act or omission “results in serious bodily injury to the child.” N.C. Gen.Stat. § 14–318.4(a4) (2011). Serious bodily injury is “that [which] creates a substantial risk of death or that causes serious permanent disfigurement, coma, a permanent or protracted condition that causes extreme pain, or permanent or protracted loss or impairment of the function of any bodily member or organ, or that results in prolonged hospitalization.” N.C. Gen.Stat. § 14–318.4(d)(1).
Here, Defendant challenges the sufficiency of the evidence of the second element, to wit, that her decision to leave Diamond with Smith was a willful act or grossly negligent omission in the care of Diamond that demonstrated a reckless disregard for human life. Defendant specifically argues that she “reported what she witnessed to law enforcement” and that “[n]othing put [Defendant] on notice of any substantial risk [that] Smith would cause physical injury to [Diamond] while [Defendant] went to work on the night of 13–14 October 2009.” However, it is precisely Defendant's report to law enforcement of Smith's violence and her assertion in court that she was “afraid to leave [Diamond] alone with him because of his anger issues” that shows Defendant was very much on notice of the risk Smith presented to Diamond. In addition to Defendant's stated fear of leaving Diamond in Smith's care, the evidence also showed that she: (1) had sought and been granted a protective order against Smith after he assaulted her and Diamond; (2) reported witnessing Smith nearly drop Diamond at least once, shake Diamond very hard on several occasions, and place his hand over Diamond's mouth repeatedly; (3) knew that Smith was easily upset by Diamond's crying and fussiness; (4) knew that Diamond was sick when she left her with Smith; and (5) still chose to leave Diamond alone with Defendant for more than ten hours.
The uncontradicted evidence at trial showed that Defendant was the parent of Diamond and that Diamond suffered bodily injuries so serious that they led to her death two days after the abuse occurred.
In light of these circumstances, if such knowledge and observations were insufficient to put Defendant on notice of “any substantial risk [that] Smith would cause physical injury to [Diamond] while [Defendant] went to work on the night of 13–14 October 2009,” we can scarcely conceive of any circumstances that would be sufficient. Because the State presented substantial evidence of each element of felony child abuse and of Defendant being the perpetrator of the offense, the trial court properly denied Defendant's motion to dismiss. Accordingly, this argument is overruled. II. Jury Instructions
Defendant next argues that the trial court committed plain error in failing to instruct the jury on the lesser-included offense of misdemeanor child abuse. Defendant argues plain error because, at trial, she repeatedly agreed to the instructions as proposed by the trial court and made no request for a lesser-included instruction or any objection to the instructions as given. We find no error.
Due process requires that a jury in a capital case be given instructions on lesser-included, non-capital offenses when the evidence warrants such instructions.... If the evidence before the trial court in the defendant's non-capital trial in the present case tended to show that the defendant might be guilty of lesser-included offenses, the trial court was required under N.C. [Gen.Stat.] §§ 15–169 and –170 to instruct the jury as to those lesser-included crimes.
State v. Collins, 334 N.C. 54, 57–58, 431 S.E.2d 188, 190–91 (1993). If the State has presented substantial evidence of every element of the offense charged, there is no error in declining to instruct on the lesser-included offense. State v. Snead, 295 N.C. 615, 622, 247 S.E.2d 893, 898 (1978). “Where a defendant tells the trial court that he has no objection to an instruction, he will not be heard to complain on appeal.” State v. White, 349 N.C. 535, 570, 508 S.E.2d 253, 275 (1998), cert. denied,527 U.S. 1026, 144 L.Ed.2d 779 (1999). Further, on appeal, we will not consider constitutional arguments not raised in the trial court. State v. Wilkinson, 344 N.C. 198, 213, 474 S.E.2d 375, 396 (1996) (citation omitted).
Where a defendant fails to request an instruction on the lesser-included offense or to object to the instructions as given, she may argue only plain error. Collins, 334 N.C. at 62, 431 S.E.2d at 193. “[T]o reach the level of plain error ..., the error in the trial court's jury instructions must be so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached.” Id. (citations and quotation marks omitted). “The plain error rule ... is always to be applied cautiously, and it is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court[.]” Wilkinson, 344 N.C. at 213, 474 S.E.2d at 396 (citation and brackets omitted). Finally, “a defendant who invites error has waived h[er] right to all appellate review concerning the invited error, including plain error review.” State v. Barber, 147 N.C.App. 69, 74, 554 S.E.2d 413, 416 (2001), disc. review denied, 355 N.C. 216, 560 S.E.2d 141 (2002).
Here, the trial court asked Defendant five times whether she objected to the proposed instructions or requested any further or different instructions. On each occasion, Defendant responded that she did not. Accordingly, any error in the jury instructions was invited and not reviewable on appeal. Further, Defendant could not prevail even on plain error review.
Our General Statutes provide:
A parent or any other person providing care to or supervision of a child less than 16 years of age whose willful act or grossly negligent omission in the care of the child shows a reckless disregard for human life is guilty of a Class E felony if the act or omission results in serious bodily injury to the child.
N.C. Gen.Stat. § 14–318.4(a4). Defendant testified, only three months before Diamond's death, that Smith was easily upset and angered by Diamond's crying, had nearly dropped Diamond, had repeatedly shaken Diamond very hard when she was crying, and had repeatedly placed his hand over Diamond's mouth, such that Defendant was “afraid to leave [Diamond] alone with [Smith] because of his anger issues.” Defendant had explicitly stated her fear of Smith harming Diamond in order to obtain the protective order against Smith which was in effect at the time of Diamond's death. Despite Defendant's knowledge of Smith's anger and irritability with crying babies, all of the evidence showed that Defendant left a sick and fussy Diamond alone with Smith for more than ten hours. We conclude that it was not probable that the jury would have convicted Defendant on the lesser-included offense of misdemeanor child abuse. This argument is overruled.
III. Ineffective Assistance of Counsel
In her final argument, Defendant contends that she received ineffective assistance of counsel (“IAC”) when her trial attorney chose not to object to the admission of out-of-court statements made by Smith and to testimony that Smith pled guilty to murder in connection with Diamond's death. We disagree.
Criminal defendants are entitled to the effective assistance of counsel. 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. In order to meet this burden[, the] defendant must satisfy a two[-]part test.
First, the defendant must 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.
In considering IAC claims, 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.
State v. Boozer, 210 N.C.App. 371, 382–83, 707 S.E.2d 756, 765 (2011) (citations, quotation marks, and emphasis omitted), disc. review denied, ––– N.C. ––––, 720 S.E.2d 667 (2012). “Trial counsel are necessarily given wide latitude in these matters [of trial strategy]. Ineffective assistance of counsel claims are not intended to promote judicial second-guessing on questions of strategy as basic as the handling of a witness.” State v. Milano, 297 N.C. 485, 495, 256 S.E.2d 154, 160 (1979) (citation and quotation marks omitted).
Here, Defendant contends that her trial counsel provided ineffective assistance by failing to object to the admission of out-of-court statements made by Smith and to testimony that Smith pled guilty to murder in connection with Diamond's death. The testimony was provided by LeeAnn Rabun, an investigator with the Goldsboro Police Department (“GPD”); Paige Leonard, a GPD sergeant; and Danika Harris, a social worker with Wayne County Department of Social Services. Their testimony concerned Smith's varying accounts of how Diamond sustained her injuries, Smith's demeanor during various interactions with investigators, and the fact that Smith pled guilty to murder in connection with Diamond's death. Defendant contends that counsel's failure to object to this testimony was prejudicial because (1) the State relied upon it to prove the result element of felony child abuse, to wit, that Defendant's “act or omission result[ed] in serious bodily injury” and (2) the “chilling testimony” about Smith's actions and demeanor “had to influence the jury in considering whether [Defendant's] leaving [Diamond] with Smith amounted to the ‘reckless disregard for human life’ required for guilt of felony child abuse as charged.”
We first observe that other evidence before the jury established that Diamond was admitted to the hospital with bleeding on the brain, extensive bruising, and other serious injuries that caused her death two days later. This uncontradicted evidence established the result that Diamond suffered “serious bodily injury[.]” N.C. Gen.Stat. § 14–318.4(a4). Thus, even assuming arguendo that the admission of testimony about Smith's actions and statements was erroneous, we see no reasonable probability that the outcome of Defendant's trial would have been different in its absence. Boozer, 210 N.C.App. at 382–83, 707 S.E.2d at 765.
As for the “chilling testimony” about Smith's actions and demeanor, the failure to object to such testimony appears to have been a strategic decision by Defendant's trial counsel. Our careful review of the record reveals that defense counsel sought to shift the ultimate “blame” for Diamond's death to Smith by portraying him as violent and heartless. Defendant's trial counsel not only did not object to testimony by witnesses which suggested Smith was uncaring and violent, but actually elicited such testimony and explicitly argued to the jury that Smith was “the real defendant,” who had already been sent to “prison for murder.” As noted supra, IAC claims are not intended as vehicles for the appellate courts to second-guess such strategic decisions by trial counsel. Milano, 297 N.C. at 495, 256 S.E.2d at 160.
Further, even if the failure to object to the evidence of Smith's “chilling” actions and demeanor rose to the level of IAC, Defendant cannot establish prejudice. As for whether Defendant's decision to leave Diamond with Smith amounted to a “reckless disregard for human life,” the undisputed evidence showed that Defendant: (1) had sought and been granted a protective order against Smith after he assaulted her and Diamond; (2) reported witnessing Smith nearly drop Diamond at least once, shake Diamond very hard on several occasions, and place his hand over Diamond's mouth repeatedly; (3) was “afraid to leave [Diamond] alone with [Smith] because of his anger issues[;]” (4) knew that Smith was easily upset by Diamond's crying and fussiness; (5) knew that Diamond was sick when she left her with Smith; and (6) still chose to leave Diamond alone with Smith for more than ten hours. In light of such testimony, the jury was fully aware of Smith's character and behavior, and we see no likelihood the jury would have reached a different verdict in the absence of the testimony now challenged by Defendant.
In sum, we conclude that Defendant has failed to establish that her trial counsel's “performance was deficient” such that it altered the outcome of her trial. Boozer, 210 N.C.App. at 382, 707 S.E.2d at 765. Accordingly, her IAC claim fails and this argument is overruled.
NO ERROR. Judges BRYANT and DILLON concur.
Report per Rule 30(e).