Opinion
No. COA12–1319.
2013-04-16
STATE of North Carolina v. Theodus LINDSAY, Jr.
Attorney General Roy Cooper, by Assistant Attorney General Patrick S. Wooten, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Katherine Jane Allen, for defendant-appellant.
Appeal by defendant from judgment entered 10 May 2012 by Judge Richard D. Boner in Cabarrus County Superior Court. Heard in the Court of Appeals 13 March 2013. Attorney General Roy Cooper, by Assistant Attorney General Patrick S. Wooten, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Katherine Jane Allen, for defendant-appellant.
HUNTER, JR., ROBERT N., Judge.
Theodus Lindsay, Jr. (“Defendant”) appeals from judgment entered upon a jury verdict finding him guilty of breaking or entering and assault with a deadly weapon with the intent to kill inflicting serious injury. On appeal, Defendant argues (1) that he received ineffective assistance of counsel and (2) that the trial court committed plain error in admitting certain portions of his wife's testimony. For the following reasons, we dismiss Defendant's appeal in part and find no plain error.
I. Factual and Procedural History
The evidence presented at trial tended to show the following. Defendant and Karen Lindsay (“Ms.Lindsay”) were married in 1994. Defendant was employed by the postal service and had served in the U.S. Army. Ms. Lindsay worked at Pass & Seymour Electrical Wiring Devices and Supplies with Elliot Hunt (“Mr.Hunt”). Defendant and Ms. Lindsay eventually separated, and on 21 August 2009 Ms. Lindsay moved out of the marital home. Ms. Lindsay moved into a house near Mr. Hunt's residence.
In September 2009, Ms. Lindsay and Mr. Hunt engaged in a sexual relationship. After her home was burglarized, Ms. Lindsay began staying some nights at Mr. Hunt's home. During this time, Defendant hoped to save his marriage and reconcile with Ms. Lindsay. On the morning of 7 October 2009, Defendant and Ms. Lindsay discussed taking a trip to Las Vegas together. Ms. Lindsay told Defendant that she would need time to think about it and agreed to have lunch with Defendant later in the week.
On the afternoon of 7 October 2009, Ms. Lindsay and Mr. Hunt were at Mr. Hunt's residence. Mr. Hunt heard a sound and went to the front room of the house, where he found Defendant standing in the living room. Once inside, Defendant asked to speak with Ms. Lindsay. Ms. Lindsay heard the sound of her husband's voice and walked into the living room.
Defendant testified that he knocked on the door and heard a man's voice say “come in.”
Mr. Hunt testified that he decided to leave the room to allow Defendant and Ms. Lindsay an opportunity to speak, but before he could leave, Defendant attacked him with a sharp object. Mr. Hunt testified the men struggled and fought, ultimately ending up on the floor. The fight lasted approximately thirty seconds before Defendant ran out the door.
Defendant testified that he did not attack Mr. Hunt, but rather that Mr. Hunt began the fight by walking up to Defendant and punching him. Defendant claimed that he fell back and grabbed a nearby knife in the living room. Fearing for his life, Defendant swung the knife at Mr. Hunt to create space between the two men in order to escape.
A neighbor heard the altercation and called the police. After the fight, Mr. Hunt was taken to the emergency room where he was treated for lacerations across the left side of his face, ear, chest, and abdomen. Later that evening, Defendant was arrested for breaking or entering, assault with a deadly weapon with the intent to kill inflicting serious injury, and maiming. Defendant was indicted for these offenses on 2 November 2009.
On 10 May 2012, Defendant was found guilty of breaking or entering and assault with a deadly weapon with the intent to kill inflicting serious injury, and was sentenced to 72–96 months imprisonment. Defendant gave timely notice of appeal in open court.
II. Jurisdiction & Standard of Review
As Defendant appeals from the final judgment of a superior court, an appeal lies of right to this Court pursuant to N.C. Gen.Stat. § 7A–27(b) (2011).
The standard of review for alleged violations of constitutional rights, such as ineffective assistance of counsel, is de novo. State v. Graham, 200 N.C.App. 204, 214, 683 S.E.2d 437, 444 (2009).
III. Analysis
A. Ineffective Assistance of Counsel
Defendant first argues that he did not receive effective assistance of counsel as guaranteed by the Sixth Amendment. Specifically, Defendant contends that his trial attorney made a crucial mistake when he asked on direct examination if Defendant had “any criminal record,” thereby opening the door to an otherwise impermissible series of cross-examination questions regarding Defendant's criminal history. Defendant further argues that his counsel was ineffective because he elicited testimony regarding Defendant's decision to invoke his right to remain silent.
“A defendant's right to counsel includes the right to the effective assistance of counsel.” State v. Braswell, 312 N.C. 553, 561, 324 S.E.2d 241, 247 (1985). “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 [;] ... [i]n order to meet this burden [a] defendant must satisfy a two part test.” Id. at 561–62, 324 S.E.2d at 248(citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).
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.
Strickland, 466 U.S. at 687. “The fact that counsel made an error, even an unreasonable error, does not warrant reversal of a conviction unless there is a reasonable probability that, but for counsel's errors, there would have been a different result in the proceedings.” Braswell, 312 N.C. at 563, 324 S.E.2d at 249.
Here, Defendant argues that his attorney failed to provide effective assistance by opening the door to questioning about Defendant's criminal history. During direction examination, defense counsel asked Defendant “[d]o you have any criminal record?” Defendant answered “[n]o, sir.” Later, on cross-examination, the State questioned Defendant about a prior conviction:
Q. Mr. Lindsay, you said you've never been in any trouble before, don't have any criminal history?
A. I don't have a criminal history.
Q. So you've never been convicted of any offenses for which you could serve 60 days or more in jail?
A. No, ma‘am. The military is very strict. No ma‘am, no criminal record.
Q. And what's your date of birth, sir?
A. June 10, 1965.
Q. And you were not convicted of injury to personal property back on May 27 of 1986?
A. If you talking about a scenario that happened with my sister, and my sister was at this time under
Q. Sir, I asked you a yes or no question. Were you convicted of injury to personal property on May 27th, 1986?
A. I plead guilty to that.
Q. Okay. So you do have a conviction?
A. I pled guilty to a conviction that involved family issues.
Normally, evidence of a conviction is not admissible to impeach a witness where the conviction is more than ten years old. See N.C. R. Evid. 609(b) (2011). However, a witness' inaccurate statement may be contradicted on cross-examination. See State v. Albert, 303 N.C. 173, 177, 277 S.E.2d 439, 441 (1981) (“Where one party introduces evidence as to a particular fact or transaction, the other party is entitled to introduce evidence in explanation or rebuttal thereof, even though such latter evidence would be incompetent or irrelevant had it been offered initially.”). Accordingly, defense counsel should not have asked Defendant if he had “ any criminal record,” rather, counsel should have inquired as to whether Defendant had any convictions in the past ten years. Defendant contends this error constitutes ineffective assistance of counsel.
However, a mere lapsus linguae—a slip of the tongue—that opens the door for damaging evidence is simply insufficient to establish that an attorney's performance fell below an objective standard of reasonableness. See State v. Goss, 361 N.C. 610, 625, 651 S.E.2d 867, 876 (2007) (holding that a trial counsel's lapsus linguae not amounting to a concession of the defendant's guilt failed to fall below an objective standard of reasonableness). In addition, Defendant's counsel took steps to remedy any prejudice resulting from his mistake when he asked for and was granted a limiting instruction on the jury's use of Defendant's prior conviction. Moreover, Defendant was provided with an opportunity to explain the factual background behind the conviction in question.
Defendant explained that the “incident with my sister ... happened when I was about 17 years old.... My sister was in the house beating my mother down, which is our mother. I was totally upset with why my sister is doing that. This is our mom. You know, what's going through your head? So I dragged my sister off of my mother. Her drug boyfriend outside in the car—which is my sister car—I went out there to have a discussion, and might have got physical. He locks the door. I kicked the side of the door. And that's the damage to property. I went to court—which court was in Kannapolis at this time—and I said, ‘Yes, Your Honor, I protected my mom and I'd do it again, because she beat my mom down.’ “
Defendant analogizes his case to State v. Baker, in which this Court found ineffective assistance where defense counsel's mistake led to the introduction of evidence which otherwise would have been inadmissible. 109 N.C.App. 643, 428 S.E.2d 476 (1993). However, Baker is easily distinguishable from the instant case. In Baker, the defendant's counsel incorrectly claimed that the defendant did not have a criminal record in his opening statement and during examination of witnesses. Id. at 645–46, 428 S.E.2d at 478. Moreover, the defense counsel in Baker failed to request a limiting instruction or object to unsatisfactory jury instructions. Id. at 648, 428 S.E.2d at 479. Here, defense counsel merely asked Defendant a poorly worded question on direct examination that opened the door to previously inadmissible evidence. Defendant's attorney also requested and was granted a limiting instruction on the jury's permissible use of the prior conviction. Accordingly, we cannot conclude that defense counsel's inartful question deprived Defendant of the effective assistance of counsel.
Defendant next argues that he was denied the effective assistance of counsel when his attorney “elicited testimony from the State's witness that [Defendant] invoked his right to remain silent”—evidence that would have otherwise been inadmissible.
“A defendant's silence after receiving Miranda warnings cannot be used against him as evidence of guilt.” State v. Best, 342 N.C. 502, 519, 467 S.E.2d 45, 55 (1996) (citing Doyle v. Ohio, 426 U.S. 610 (1976)).
While cross-examining the arresting officer about Defendant's arrest, defense counsel asked:
Q. And there at the sheriff's department, someone advised [Defendant] of his rights, to make a statement or not; is that correct?
A. When he got there, we'd asked him if he wanted to speak with us and he said he preferred to talk to an attorney. And we inquired if he had an attorney and he said yes. And we asked if he'd like for us to call them and he gave us the name; and we, in turn, called the attorney for him. Yes, sir.
Q. And then on the advice of counsel, [Defendant] did not make any statement that evening?
A. Correct. We had provided him and his attorney a conference room to speak with each other and then the attorney came out and said he didn't wish to speak with us at that time.
Later, the State attempted to question Defendant on cross-examination regarding his decision to remain silent.
As a general matter, “[t]he decisions on ... whether and how to conduct cross-examination, ... and all other strategic and tactical decisions are the exclusive province of the lawyer after consultation with his client.” State v. Quick, 152 N.C.App. 220, 222, 566 S.E.2d 735, 737 (2002) (quotation marks and citation omitted) (second alteration in original). Nevertheless, Defendant contends that defense counsel's question about Defendant's silence was clearly an error, and could not have possibly benefitted Defendant's case.
However, when the State later pressed Defendant to explain his decision to remain silent after his arrest, defense counsel objected strenuously, saying “[o]bjection, Your Honor. He doesn't have to explain that.” This indicates that defense counsel was at minimum aware of the inherent prejudice in having Defendant explain why he chose to remain silent after his arrest. Why defense counsel would broach the topic of silence at all is therefore unclear.
Resolving this sort of ambiguity is problematic on direct appeal. “In general, claims of ineffective assistance of counsel should be considered through motions for appropriate relief and not on direct appeal.” State v. Stroud, 147 N.C.App. 549, 553, 557 S.E.2d 544, 547 (2001). “Our Supreme Court has instructed that should the reviewing court determine [that ineffective assistance of counsel] claims have been prematurely asserted on direct appeal, it shall dismiss those claims without prejudice to the defendant's rights to reassert them during a subsequent MAR proceeding.” Id. at 554, 557 S.E.2d at 547 (quotation marks and citation omitted).
In the instant case, we are limited to the record before us to determine whether trial counsel's decision to elicit testimony from Defendant regarding invocation of his right to remain silent constituted part of a trial strategy. The record does not disclose facts sufficient for this panel to address the question. We therefore dismiss this claim to allow Defendant to file a motion for appropriate relief pursuing the issue if he so chooses. B. Ms. Lindsay's Testimony
Defendant lastly contends that the trial court committed plain error by allowing certain testimony from Ms. Lindsay alleging that Defendant “was a violent, misogynistic, philanderer.” We disagree.
“In criminal cases, an issue that was not preserved by objection noted at trial and that is not deemed preserved by rule or law without any such action nevertheless may be made the basis of an issue presented on appeal when the judicial action questioned is specifically and distinctly contended to amount to plain error.” N .C. R.App. P. 10(a)(4). Here, though Defendant objected during Ms. Lindsay's testimony, he did not state the specific grounds for his objection, and therefore has failed to properly preserve the issue for appeal. SeeN.C. R.App. P. 10(a)(1). Nevertheless, we may review an evidentiary matter for plain error, State v. Garcell, 363 N.C. 10, 35, 678 S.E.2d 618, 634 (2009), and do so in light of Defendant's specific request.
A defendant alleging plain error on appeal carries a heavy burden. State v. Lawrence, 365 N.C. 506, ––––, 723 S.E.2d 326, 330 (2012). As our Supreme Court has explained:
[T]he plain error rule ... is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done, or where [the error] is grave error which amounts to a denial of a fundamental right of the accused, or the error has resulted in a miscarriage of justice or in the denial to appellant of a fair trial or where the error is such as to seriously affect the fairness, integrity or public reputation of judicial proceedings....
Id. at ––––, 723 S.E.2d at 333 (quoting State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)) (quotation marks omitted) (alterations in original). “To show that an error was fundamental, a defendant must establish prejudice that, after examination of the entire record, the error had a probable impact on the jury's finding that the defendant was guilty.” Id. at ––––,723 S.E.2d at 334 (quotation marks and citation omitted).
Here, Defendant claims that the admission of Ms. Lindsay's testimony constitutes plain error. During her direct examination, the State elicited the following testimony from Ms. Lindsay:
Q: And why—at some point, did you leave the marriage?
A: Yes. I left the marriage August 21, 2009.
Q: And why did you leave?
A: Mr. Lindsay had always been somewhat verbally abusive and a lot of that abuse had turned into physical. In March of 2009, Mr. Lindsay had started telling me that I needed to start learning how to obey him. And I was like, “What do you mean, learn how to obey you?” He just—he kept on and he would say certain things to me, call me names and things and I would say—back in March I remember recalling him when he said that, and I was like, “I can't believe you're saying this to me. You're supposed to be my best friend.” And he said, “I've never been your friend, and I'm not your g-d friend, and I haven't been your m-f'ing husband for a long g-d time.” And that just—that there started my feelings to change because I'd always tried to stay in the marriage. I'd already been divorced once. I didn't want to be divorced again. I always tried to make my marriage work but when that happened, and things were getting worse, and I asked him then, I said, “Are you having an affair?” And he told me “No.” I said, “Something's going on,” because the verbal abuse used to be a couple days a week, and then it was starting to be more and more every day. And during July, the end of July, he would never tell me what happened, or what he was doing. He was in the military, and he would leave on the weekends. He'd leave a day early, start coming home a day later, and I started asking him what was going on. He wouldn't say. So I planted a tape recorder and heard Mr. Lindsay talking to some lady
Ms. Lindsay went on to imply that Defendant had threatened to kill her, stating that “Mr. Lindsay let me know at the time that I could have my belongings-or I could have his stuff, if I lived to see it.”
Defendant claims that the trial court violated N.C. R. Evid. 404(b) in admitting this testimony. The State contends that Ms. Lindsay's testimony was properly admitted under Rule 404(b) as evidence of Defendant's motive for assaulting Mr. Hunt and as a “direct and natural continuation and consequence of the marital relationship.”
However, even assuming that the trial court erred in admitting the testimony, such error does not rise to the level of plain error. Here, while Ms. Lindsay's testimony was certainly prejudicial to Defendant, we are not persuaded that the instruction had a “probable impact on the jury's finding that the defendant was guilty” in light of the totality of evidence presented at trial. Id. at ––––, 723 S.E.2d at 333. Although Ms. Lindsay testified that Defendant was physically abusive and implicitly threatened her life, the jury was also aware that Defendant possessed an almost spotless criminal record, with no history of violent crime. Therefore, we cannot hold that Ms. Lindsay's testimony that Defendant was abusive or threatening, and thus likely the aggressor, had a “probable impact on the jury's finding that the defendant was guilty.” Id. at ––––, 723 S.E.2d at 334. Admission of her testimony regarding Mr. Lindsay's lack of fidelity, given her relationship with Mr. Hunt, likewise does not amount to a “miscarriage of justice.” Id. at ––––, 723 S.E.2d at 333. We therefore conclude, assuming the trial court erred, that such error was not plain error.
IV. Conclusion
For the foregoing reasons, Defendant's ineffective assistance argument regarding defense counsel's lapsus linguae is dismissed. Defendant's ineffective assistance argument related to the introduction of his post- Miranda silence is dismissed without prejudice. We find no plain error with regard to Defendant's remaining argument.
DISMISSED IN PART; NO PLAIN ERROR IN PART. Judges BRYANT and McCULLOUGH concur.
Report per Rule 30(e).