Opinion
No. COA12–916.
2013-05-7
STATE of North Carolina v. Joseph Brian TARLETON.
Attorney General Roy Cooper, by Assistant Attorney General Kathleen N. Bolton, for the State. Mark Montgomery for defendant-appellant.
Appeal by defendant from judgment entered 5 January 2012 by Judge Mark Klass in Union County Superior Court. Heard in the Court of Appeals 12 February 2013. Attorney General Roy Cooper, by Assistant Attorney General Kathleen N. Bolton, for the State. Mark Montgomery for defendant-appellant.
HUNTER, ROBERT C., Judge.
Defendant Joseph Tarleton appeals from judgments entered after a jury found him guilty of two counts of first degree statutory sexual offense of a child under the age of 13 years, five counts of indecent liberties with a child, and one count of disseminating obscenity to a minor under the age of 13. On appeal, defendant argues: (1) the trial court violated his right to a speedy trial; (2) the trial court committed plain error by allowing the prosecutor to elicit testimony in regard to defendant's invocation of his right to remain silent; (3) the trial court committed plain error by allowing the prosecutor to argue that defendant was lying and the complainant was telling the truth; and (4) the trial court committed plain error in denominating the complainant as the “victim” in the jury instructions. After careful review, we find no error.
Background
Prior to defendant's trial, he was indicted in 2004 for allegedly abusing his nieces (J.E.T. and M.E.) in addition to his nephew (J.T.), who is the victim in the current appeal. The cases were severed for trial. In 2006, defendant was tried for the crimes against his nieces and was convicted of nine counts of taking or attempting to take indecent liberties with a child and one count of disseminating obscenity to a minor under the age of 13.
The evidence at trial for the crimes against J.T. tended to establish the following: J.T., when he was six or seven years old, spent almost every other weekend with defendant who, at the time, was living in a camper located outside J.T.'s aunt's house. When J.T. visited, he and defendant would usually sleep in the same bed. Defendant made J.T. masturbate him and perform oral sex on him. Defendant would also perform these acts on J.T. and would show J.T. pornographic images of women and children. J.T. testified that these acts occurred every time he spent the night with defendant and that each of these acts happened at least fifteen times over a period of approximately two years until J.T. was seven or eight years old, at which time he ceased visiting defendant.
J.T. told no one about these acts until he was thirteen. At that point, J.T. told his mother something had happened, and, on 12 February 2004, she took him to the Union County Sheriff's Office where he described to Captain Cody Luke (“Captain Luke”) what defendant had done to him. After the interview, Captain Luke obtained and served the warrant for arrest on defendant in the Union County jail. After defendant was read his Miranda rights, defendant invoked his right to remain silent.
On 5 January 2012, the jury convicted defendant of five counts of taking indecent liberties with a child, two counts of first degree sexual offense, and one count of disseminating obscene material to a minor under the age of thirteen. Defendant was sentenced to a minimum of 288 months and maximum of 355 months to be served after the expiration of the sentence he was serving for the convictions of crimes against his nieces. Defendant timely appealed.
It should be noted that defendant, acting pro se, has filed numerous motions and petitions in this matter including a “Motion for Judicial Notice” and a Petition for Writ of Certiorari. However, since defendant has appointed appellate counsel, defendant may not file motions or petitions on his own behalf. Accordingly, we dismiss all pro se motions and petitions.
Arguments
I. Right to a Speedy Trial
Defendant first argues that the delay of eight years from indictment to trial constituted a violation of his right to a speedy trial. Because he did not object at trial, defendant argues plain error on appeal.
“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); see also State v. Goss, 361 N.C. 610, 622, 651 S.E.2d 867, 875 (2007), cert. denied,555 U.S. 835, 172 L.Ed.2d 58 (2008). The North Carolina Supreme Court “has elected to review unpreserved issues for plain error when they involve either (1) errors in the judge's instructions to the jury, or (2) rulings on the admissibility of evidence.” State v. Gregory, 342 N.C. 580, 584, 467 S.E.2d 28, 31 (1996). Since the right to a speedy trial is not an evidentiary or instructional error, defendant is not entitled to plain error review on appeal. Therefore, his argument is without merit.
Defendant argues in the alternative that he received ineffective assistance of counsel. He asserts that his counsel's performance was deficient because his counsel failed to raise this issue at trial. We decline to address this argument.
Our Supreme Court has noted that:
It is well established that ineffective assistance of counsel claims ‘brought on direct review will be decided on the merits when the cold record reveals that no further investigation is required, i .e., claims that may be developed and argued without such ancillary procedures as the appointment of investigators or an evidentiary hearing.’ Thus, when this Court reviews ineffective assistance of counsel claims on direct appeal and determines that they have been brought prematurely, we dismiss those claims without prejudice, allowing defendant to bring them pursuant to a subsequent motion for appropriate relief in the trial court.
State v. Thompson, 359 N.C. 77, 122–23, 604 S.E.2d 850, 881 (2004) (citation omitted) (quoting State v. Fair, 354 N.C. 131, 166, 557 S.E.2d 500, 524 (2001)). Because we believe that defendant has brought these claims prematurely, we dismiss defendant's claim without prejudice to allow defendant to raise the issue in a motion for appropriate relief.
II. Testimony as to Defendant's Post- Miranda Silence
Defendant next argues that it was plain error to allow the State to elicit testimony that defendant invoked his right to remain silent. Defendant contends that the trial court committed plain error both during Captain Luke's testimony and during defendant's cross-examination. We disagree.
Our Supreme Court has stated that
For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial. 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.
State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (internal citations and quotation marks omitted). “[B]efore a ruling can be plain error, it must be error.” State v. Wade, ––– N.C.App. ––––, ––––, 714 S.E.2d 451, 459 (2011).
“It is well established under both the United States and the North Carolina Constitutions that post- Miranda silence may generally not be used to impeach the defendant on cross-examination.” Fair, 354 N.C. at 156, 557 S.E.2d at 518 (emphasis added); accord Doyle v. Ohio, 426 U.S. 610, 619, 49 L.Ed.2d 91, 98 (1976) (holding that when Miranda warnings are given, the United States Constitution bars the use, for impeachment purposes, of a defendant's post-arrest silence). However, not every question about a defendant's silence creates a constitutional error. See State v. Buckner, 342 N.C. 198, 221, 464 S.E.2d 414, 427 (1995) (“[I]n certain situations, a defendant's silence can be used to impeach a defendant without violating a defendant's constitutional rights.”). Mere reference to a defendant's post- Miranda silence does not necessarily amount to a violation. Greer v. Miller, 483 U.S. 756, 97 L.Ed.2d 618 (1987), reh'g denied,483 U.S. 1056, 97 L.Ed.2d 819 (1987).
At trial, the State asked Captain Luke whether he had interviewed defendant. Captain Luke testified that, prior to interviewing defendant, he gave him his Miranda rights, and defendant invoked his right to remain silent. After that, Captain Luke did not ask defendant any more questions. However, when Captain Luke was taking defendant before the magistrate and explaining defendant's charges to the magistrate, defendant made two voluntary statements. Defendant said that he never hurt the children, and he had no defense for the charges. After that, Captain Luke testified that that he continued to not question defendant and defendant made no further statements.
Here, Captain Luke referenced defendant's invocation of his right to remain silent to show that this right was honored and that, despite this invocation, defendant made two spontaneous and unprovoked statements while Captain Luke was explaining the charges to the magistrate. While our Courts have explicitly prohibited the use of testimony regarding a criminal defendant's decision to invoke his Miranda rights for impeachment purposes, see Fair, 354 N .C. at 156, 557 S.E.2d at 518, mere reference, without further questioning or argument, does not necessarily constitute a Doyle violation. Greer, 483 U.S. at 765, 97 L.Ed.2d at 630. Because defendant's post- Miranda silence was not being used for impeachment purposes, only for explanatory purposes to inform the jury why Captain Luke did not interview him, defendant's argument is without merit.
Relatedly, defendant alleges that the trial court erred by failing to intervene ex mero motu during cross-examination of defendant. On direct examination, defendant testified that he tried to tell Captain Luke and other members of the police department that he was innocent and explain why members of his family would make up these allegations against him. In response, on cross-examination, the State asked defendant how Captain Luke could have listened to him if defendant had invoked his right to remain silent.
In Doyle, the Supreme Court noted that “it would be fundamentally unfair and a deprivation of due process to allow the arrested person's silence to be used to impeach an explanation subsequently offered at trial.” Doyle, 426 U.S. at 618, 49 L.Ed.2d at 98. However, the Court goes on to say that:
It goes almost without saying that the fact of post-arrest silence could be used by the prosecution to contradict a defendant who testifies to an exculpatory version of events and claims to have told the police the same version upon arrest. In that situation the fact of earlier silence would not be used to impeach the exculpatory story, but rather to challenge the defendant's testimony as to his behavior following arrest.
Id. at 619, n.11, 49 L.Ed.2d at 98, n.11. In other words, Doyle prohibits the use of a defendant's post-arrest silence if it is used to impeach him at trial after the defendant testifies as to an explanation of events; in contrast, Doyle does not prohibit the use if the defendant claims he tried to offer an explanation to police, but the police did not listen.
Here, defendant's post- Miranda silence was not being used to impeach his exculpatory version of events presented at trial. Instead, his silence was being used to contradict defendant's claim that the police failed to investigate or take any action with regard to his claims of innocence. Accordingly, defendant's testimony was being used to challenge defendant's testimony regarding his post-arrest, post- Miranda behavior. Pursuant to Doyle, the State was authorized to use defendant's post-arrest silence for this purpose since it does not constitute impeachment. Thus, since it does not constitute error, there is no plain error.
III. Closing Argument
Next, defendant argues that it was plain error for the prosecution to refer to the believability of J.T. in its closing arguments. We disagree.
At trial, the prosecutor stated during his closing argument that “[J.T.] is telling you the truth” and “[J.T] we contend is believable.” The prosecution also commented on the believability of defendant saying: “[Y]ou can't believe [defendant]. He's not telling you the truth” and “[Defendant's] not shooting you straight.”
The standard of review for assessing alleged improper closing arguments that fail to provoke timely objection from opposing counsel is:
[W]hether the remarks were so grossly improper that the trial court committed reversible error by failing to intervene ex mero motu. Under this standard, only an extreme impropriety on the part of the prosecutor will compel this Court to hold that the trial judge abused his discretion in not recognizing and correcting ex mero motu an argument that defense counsel apparently did not believe was prejudicial when originally spoken. To establish such an abuse, defendant must show that the prosecutor's comments so infected the trial with unfairness that they rendered the conviction fundamentally unfair.
State v. Waring, 364 N.C. 443, 499–500, 701 S.E.2d 615, 650 (2010) (internal citations and quotations omitted), cert. denied,––– U.S. ––––, 181 L.Ed.2d 53 (2011). During closing arguments, an attorney may not “express his personal belief as to the truth or falsity of the evidence.” N.C. Gen.Stat. § 15A–1230(a). However, an attorney may argue both that the State's witnesses are credible and that the jury should not believe a witness. State v. Augustine, 359 N.C. 709, 725, 616 S.E.2d 515, 528 (2005).
Here, the prosecutor's comments regarding J.T.'s credibility were not improper assertions of personal belief or guarantees of truthfulness; rather, they were an attempt to show why J.T. should be believed over defendant. See generally State v. Wiley, 355 N.C. 592, 621–22, 565 S.E.2d 22, 43–44 (2002) (not improper vouching when prosecutor stated: “she came forward and began to tell the truth and has told pretty much the truth.”). Furthermore, the statements were a proper response to defendant's attack on the credibility of J.T. See State v. Davis, 305 N.C. 400, 422, 290 S .E.2d 574, 587–88 (1982) (holding that the State was justified, when defense counsel attacked the credibility of the State's witnesses, in responding). Moreover, the State was authorized to argue to the jury that it should reject defendant's testimony. See State v. Tyler, 346 N.C. 187, 208, 485 S.E.2d 599, 610 (1997) (noting that when a defendant denied other trial testimony, the prosecutor's argument was no more than an argument that the jury should reject the defendant's testimony). Therefore, because none of the State's comments during its closing argument were improper, they were not so grossly improper as to render the trial fundamentally unfair. See Waring, 364 N.C. at 499–500, 701 S.E.2d at 650.
IV. Jury Instructions
Defendant's final argument on appeal is that the court erred in referring to J.T. as the victim in its jury instructions. We disagree.
Our courts typically do not find plain error when the trial court referred to the witness as “the victim” in the jury charge, particularly when the instructions follow the pattern instructions. See State v. McCarroll, 336 N.C. 559, 565–66, 445 S.E.2d 18, 22 (1994)(“We cannot hold that the reference to the prosecuting witness as the victim was an error so basic and lacking in its elements that justice could not have been done.”); State v. Richardson, 112 N.C.App. 58, 66–67, 434 S.E.2d 657, 663 (1993), disc. review denied, 335 N.C. 563, 441 S.E.2d 132 (1994) (stating that the word “victim” is included in the North Carolina pattern jury instructions and used regularly to instruct on rape and sexual offenses). The jury instructions in this case mirrored that of the North Carolina pattern jury instructions. See N.C.P.I.—Crim. 207.45.1 (2004). Thus, the trial court did not commit error, much less plain error, in referring to J.T. as “the victim.”
In the alternative, defendant argues that his counsel was ineffective for failing to object to the jury instructions. However, since the trial court did not err in referring to J.T. as “the victim,” defense counsel did not perform deficiently in failing to object. Furthermore, we note that this Court has specifically rejected a defendant's argument that his counsel was deficient for failing to object when the trial court referred to the complainant as “the victim” in State v. Carter, ––– N.C.App. ––––, ––––, n.4, 718 S.E.2d 687, 697, n.4 (2011), reversed on other grounds, ––– N.C. ––––, ––– S.E.2d –––– (Apr. 12, 2013) (No. 507PA11). Thus, defendant's claim for ineffective assistance of counsel fails.
Conclusion
Based on the foregoing reasons, we find no error.
NO ERROR. Judges McCULLOUGH and DAVIS concur.
Report per Rule 30(e).