Opinion
No. COA10-1025
Filed 7 June 2011 This case not for publication
Appeal by Defendant from judgment entered 8 March 2010 by Judge Richard W. Stone in Rockingham County Superior Court. Heard in the Court of Appeals 8 February 2011.
Attorney General Roy Cooper, by Assistant Attorney General David Gordon, for the State. Douglas R. Hux, for Defendant.
Rockingham County No. 08 CRS 3974.
Angela Dale Southern (Defendant) appeals from judgment entered on her conviction of felonious child abuse inflicting serious injury on the ground that she was denied due process of law when tried without adequate representation. Because Defendant did not object to any potential conflict at trial and fails to show that an actual conflict of interest adversely affected her lawyer's performance, we conclude Defendant suffered no prejudicial error and is not entitled to a new trial.
On 6 October 2008, Defendant was indicted on one count of felonious child abuse inflicting serious injury, as a result of an intentional assault on her boyfriend's seven-year-old daughter, E.V. The matter came on for trial at the 1 March 2010 Criminal Session of Superior Court in Rockingham County. E.V. was eight-years-old at the time of trial and found by the trial court to be competent to testify. Her testimony, combined with that of other witnesses for the State, tended to show the following.
The pseudonym E.V. is used to protect the identity and privacy of the minor victim.
On or about 18 September 2008, E.V. went to the home of Defendant, her father's girlfriend, after school. Defendant, known to E.V. as "Bumpy," began hitting E.V. upon learning that E.V. would not play with her daughter at school that day. E.V. testified that prior to her father coming home, she had been brought into Bumpy's bedroom, where Bumpy kept hitting her, punched her in the eye, and caused her to fall and hit her leg against a "metal thing." E.V. was left with painful bruises on her face and leg, and Bumpy threatened E.V. that she would get beaten again if she told anyone what had happened. The beating had occurred after a prior incident in the school gym that week when E.V. got kicked in the eye by a girl doing a handstand, and E.V. initially told her teacher at school the next day that the bruising on her face was the result of the earlier accident. E.V.'s teacher informed the school nurse, Diane Brim, who also testified at trial that, after some prompting, E.V. told her about Defendant hitting her the night before. Several other members of the elementary school staff corroborated various portions of E.V.'s testimony, including assistant teachers, a bus driver, a media assistant, and the principal. A Mayodan Police Department officer and an investigator with DSS Child Protective Services (CPS) also offered consistent testimony, regarding the nature of E.V.'s injuries and Defendant's role in causing them.
On 19 September 2008, E.V. was taken to the hospital by the Rockingham County Department of Social Services (DSS), where she was examined by Dr. Mark Bucy. Dr. Bucy testified as an expert in pediatrics and noted that he had observed quite a bit of bruising on both sides of E.V.'s face, including her left ear and right eyelid; petechiae, or "hemorrhages under the skin where blood has come out because of some sort of trauma," on her left ear; abrasions on her upper and lower lips; a bruise on her left thigh; and "some faint reddish-purple areas on her buttocks." Dr. Bucy opined that, based on the coloring of the bruises on the date of examination, they were recent, formed within the past twenty-four hours. The newness of the bruises and the fact that they were located in multiple areas on E.V.'s body led Dr. Bucy to conclude being hit by one handstand days earlier was not a plausible explanation therefor. Rather, E.V.'s injuries were consistent with repetitive trauma, such as multiple blows to both sides of her body and being hit with a fist. Dr. Bucy also stated that the force required to deliver that kind of hemorrhage and the resultant pain would have been fairly substantial.
Defendant's motion to dismiss at the close of the State's evidence was denied, and she then presented evidence and testified on her own behalf. The State presented rebuttal evidence through the testimony of a Mayodan Police Department detective and the CPS investigator, after which Defendant was recalled to the stand by her attorney. She renewed her motion to dismiss at the close of the evidence, which was again denied by the trial court.
On 3 March 2010, the jury found Defendant guilty of felonious child abuse inflicting serious injury. The trial court sentenced her in the presumptive range to twenty-three to twenty-eight months imprisonment and placed Defendant on supervised probation for twenty-four months and suspended all but six months of her sentence. Defendant appeals.
Defendant's sole argument on appeal is that she was denied due process of law in that she did not receive adequate representation, where her attorney's advocacy was encumbered by a pecuniary conflict of interest. Specifically, Defendant contends that she could not have received a fair, single-minded defense when her court-appointed attorney was, at the time of trial, also under two separate contracts with the Rockingham County DSS to represent the agency: (1) in child support matters and, (2) on an as-needed basis, in child welfare matters. Only after trial in this matter did Defendant discover a potential conflict of interest related to her counsel's employment by "one of the agencies charged with the investigation and prosecution of the child abuse case against [her]." Her argument is further based on the fact that one of the agency's CPS investigators testified as a prosecuting witness, and that the "apparent collegiality" between him and her court-appointed defense attorney was a result of the latter's pecuniary interest in maintaining good relations with the DSS and "an eye to future, continued employment" by the agency.
A criminal defendant subject to imprisonment has a right to counsel, which is guaranteed by the Sixth Amendment and "applies to the states through the Fourteenth Amendment of the United States Constitution." State v. Mims, 180 N.C. App. 403, 409, 637 S.E.2d 244, 247-48 (2006); see also State v. James, 111 N.C. App. 785, 789, 433 S.E.2d 755, 757 (1993) (holding article I, §§ 19 and 23 of the North Carolina Constitution also provide criminal defendants with the right to counsel.) The United States Supreme Court has held that A[w]here a constitutional right to counsel exists . . . there is a correlative right to representation that is free from conflicts of interest." Wood v. Georgia, 450 U.S. 261, 271, 67 L. Ed. 2d 220, 230 (1981).
As a procedural safeguard to the constitutional right to counsel, "the practice should be that the trial judge inquire into an attorney's multiple representation once made aware of this fact." State v. James, 111 N.C. App. 785, 791, 433 S.E.2d 755, 758 (1993) (emphasis added).
If the possibility of conflict is raised before the conclusion of trial, the trial court must "take control of the situation." A hearing should be conducted "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 [A]mendment."
Id. (citation omitted). However, the Supreme Court has "noted that defense counsel are often in the best position to recognize when dual representation presents a conflict of interest; thus, they shoulder an ethical obligation to avoid conflicting representations and to promptly inform the trial court when a conflict arises." State v. Walls, 342 N.C. 1, 40, 463 S.E.2d 738, 758 (1995) (citing Cuyler v. Sullivan, 446 U.S. 335, 346-47, 64 L. Ed. 2d 333, 345-46 (1980)). Still, "[u]nless the trial court knows or reasonably should know that a particular conflict exists, the court need not initiate an inquiry." Cuyler, 446 U.S. at 347, 64 L. Ed. 2d at 346.
In the instant, case Defendant made no objection at trial; therefore, the trial court had no occasion to determine whether a conflict of interest existed or rule upon the propriety of defense counsel's representation. Accordingly, Defendant must show this Court that the alleged conflicting interest actually affected the adequacy of her trial counsel's representation. See Cuyler, 446 U.S. at 348, 64 L. Ed. 2d at 346-47 ("In order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance."). As Defendant argues, neither the defense attorney nor the district attorney recognized any potential conflict of interest necessitating disclosure. Moreover, Defendant makes no argument that the trial judge reasonably should have known of any conflict necessitating further inquiry or that any special circumstance precluded the court from assuming that Defendant and her trial counsel knowingly accepted any risk of possible conflict that existed. See id. at 346-47, 64 L. Ed. 2d at 345-46 ("Absent special circumstances, therefore, trial courts may assume either that multiple representation entails no conflict or that the lawyer and his clients knowingly accept such risk of conflict as may exist.").
While "a defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief," the mere possibility of a conflict "is insufficient to impugn a criminal conviction." Id. at 349-50, 64 L. Ed. 2d at 347. Where Cuyler involved the issue of multiple representation-three criminal co-defendants were tried separately by the same two lawyers-Defendant suggests that the particular facts of this case create a matter of first impression in our courts. She relies wholly on cases from other jurisdictions for support and fails entirely to address the standard of review established in Cuyler, which has been adopted by our courts on several occasions. As such, Defendant presents no argument that this standard does not apply to the case sub judice, nor do we perceive any reason that it should not. Cf. Walls, 342 N.C. at 40, 463 S.E.2d at 758 (addressing defense counsel's prior representation of a state witness in an unrelated matter and noting that "[w]hile there apparently have been no previous cases before this Court identical to this specific fact situation, we believe that the principles in Cuyler, concerning the burden to be carried by a defendant in alleging that a conflict of interest violated his rights under the Sixth Amendment, are applicable to this case").
At the outset, we are not convinced that the pecuniary interest defense counsel might gain as an independent contractor with the DSS necessarily created a conflict. While she represented the Rockingham County DSS from time to time, primarily in matters relating to child support and rarely in child welfare cases, the CPS investigator who testified on behalf of the State in this case was never her client. In this criminal matter to which the DSS was not a party, defense counsel was representing her client against the State, as prosecuted by the district attorney, and not against the county agency. Thus, it does not appear that any concurrent conflict of interest existed. Moreover, Defendant's attorney did not represent the DSS, consult with the DSS, or involve herself in any way with the DSS in this case concerning Defendant and E.V.
However, even assuming arguendo that an actual conflict existed, Defendant has failed to show how her counsel's performance was adversely affected by the alleged conflict. In fact, the record reflects that defense counsel made an opening statement, cross-examined the prosecuting witnesses, including the child victim E.V. and the DSS social worker, with the aim of highlighting contradictions and discrepancies in the State's evidence, presented and examined defense witnesses, including Defendant herself, and even recalled Defendant to the stand for further testimony after the State put on rebuttal evidence. Defendant's counsel also moved to dismiss at the close of the State's case and renewed it at the close of all the evidence, made a closing argument, and argued for lenience on behalf of Defendant at sentencing. The only detail Defendant argues in support of her contention is that a certain collegiality existed between the DSS social worker testifying for the prosecution and defense counsel. This subjective observation and Defendant's speculation that her attorney was "interested in maintaining good relations with the previous employer" so as to deprive her "of an aggressive and adequate defense" are clearly insufficient to demonstrate that Defendant's representation was affected by the alleged pecuniary interest. There is no indication in the record that defense counsel provided her client with anything but a full, single-minded defense, and we conclude that Defendant has failed to carry her burden of showing that an actual conflict of interest adversely affected her lawyer's performance.
No error.
Judges MCGEE and BRYANT concur.
Report per Rule 30(e).