Opinion
No. COA09-1431
Filed 6 July 2010 This case not for publication
On writ of certiorari by defendant to review judgment entered 14 August 2008 by Judge Jack A. Thompson in Bladen County Superior Court. Heard in the Court of Appeals 14 April 2010.
Attorney General Roy Cooper, by Assistant Attorney General Amy L. Funderburk, for the State. Richard Croutharmel for defendant-appellant.
Bladen County No. 07 CRS 51375.
Billy Glenn Cromartie ("defendant") appeals from a judgment entered 14 August 2008 after he was convicted of one count of taking indecent liberties with a minor. After careful review, we dismiss in part and find no error in part.
Background
The facts presented at trial tended to show that on 9-10 June 2007, defendant and his twelve-year-old son were staying at the home of defendant's cousin, Mattie M. ("Mattie"). On Sunday morning, 10 June 2007, Mattie and three of her children went to church while defendant and Mattie's ten-year-old daughter, T.M., remained at the house alone.
The initials T.M. are used to ensure the anonymity of the minor.
T.M. testified at trial that she was sitting on the edge of defendant's bed playing with a doll while defendant was sleeping. Defendant then awoke and they began playing. T.M. testified that defendant grabbed her, held her down with one arm, and then reached down her pants and touched her vagina. T.M. struggled and defendant released her. T.M. picked up the telephone, but defendant snatched it from her and threw it on the sofa. T.M. ran outside and defendant followed her. Defendant asked T.M. to play basketball, but she refused and waited on the side of the road for her mother to return from church. When Mattie came home, T.M. told her that defendant had touched her on her "private parts" and Mattie immediately took T.M. to the hospital.
At the hospital, social worker Alma Graham ("Graham") interviewed T.M. in the presence of Detective Jason Larimore ("Detective Larimore"). Graham's "Narrative Documentation Record" outlines Graham's conversation with T.M. T.M.'s account of the sexual assault was consistent with her trial testimony. Based on T.M.'s allegations, a warrant for arrest was issued on 10 June 2007, and defendant was subsequently arrested.
On 19 June 2007, social worker Jill Sampson ("Sampson") met with defendant to speak with him about the alleged sexual assault. Defendant claimed that T.M. woke him up on the morning of 10 June 2007, and began "grinding her hips on him." He repeatedly pushed her away and she asked him, "`who do you want? Me, my momma, or my sister?" Defendant left the bedroom and began cleaning up the kitchen. He then went outside and sat in a chair under a tree. Defendant claimed that T.M. came outside with a broom and knocked a bird's nest out of the tree and proceeded to stomp on an egg that rolled out of the nest. Defendant then went back inside the house and locked himself in a bedroom, but T.M. used a spoon to unlock the door. Defendant claimed that T.M. came into the room, took his hand and "put it on her private area." Defendant's testimony at trial was consistent with his statement to Sampson. Defendant testified that he never put his hand down T.M.'s pants.
On 26 July 2007, Dr. Laura Gutman ("Dr. Gutman") conducted an interview and a physical examination of T.M. T.M. told Dr. Gutman that defendant had reached down her pants and touched her vagina. The physical examination of T.M. did not reveal any evidence of physical or sexual abuse. Dr. Gutman testified that T.M. had given consistent statements regarding the sexual assault to multiple parties, had reported painful urination immediately after the assault, and had exhibited mental health changes since the assault. Dr. Gutman asserted that these factors were consistent with a child that had been sexually abused.
On 14 August 2008, defendant was convicted of taking indecent liberties with a minor. Defendant was sentenced to a presumptive-range term of 16 to 20 months imprisonment. On 12 May 2009, defendant submitted a Petition for Writ of Certiorari to this Court, which was granted on 22 May 2009.
Discussion I. Suppression of Evidence A. Ineffective Assistance of Counsel
At trial, the State sought to exclude evidence pursuant to N.C. Gen. Stat. § 8C-1, Rule 412 (2009) and N.C. Gen. Stat. § 8C-1, Rule 403 (2009) that T.M. had previously accused two men of sexual assault. A hearing was held on the State's motion. According to the prosecutor, T.M. told Dr. Gutman that these men, Lonnie Jessup ("Jessup") and French Smith ("Smith"), had touched her vagina in two separate incidents while they were living in her mother's home. Defendant argued before the trial court that Rule 412, which deems evidence of prior sexual activity of an alleged victim inadmissible, does not prohibit evidence of prior false accusations. Defendant claimed that T.M.'s allegations against Jessup and Smith were false. Defendant argued that Mattie was aware of T.M.'s accusations and did not report them, which tends to show that Mattie believed the accusations to be false. On voir dire, Mattie testified that T.M. told her that the two men had "touched her butt[,]" outside of her clothing. According to Mattie, T.M. did not claim that the men touched her vagina. Mattie stated that she believed T.M.'s accusations, but did not consider the prior incidents to be sexual assaults and did not report the incidents to the police.
Dr. Gutman was not called to provide voir dire testimony concerning T.M.'s accusations.
Defendant's attorney informed the court that "Mr. Jessup is here and I can put him on the stand to say it didn't happen." However, defense counsel never called Mr. Jessup to provide voir dire testimony. The trial court determined that, while Rule 412 does not preclude evidence of false accusations, there was no evidence to suggest that T.M.'s accusations were false. Additionally, the trial court ruled that the probative value of the prior accusations was "substantially outweighed by its prejudicial impact." Consequently, the trial court excluded all evidence related to the prior accusations pursuant to Rules 412 and 403.
Defendant first argues that he received ineffective assistance of counsel ("IAC") because his trial attorney failed to call Jessup to testify at the hearing, though he was present in the court room. Defendant claims that the trial court may have ruled differently if it had been presented evidence, through Jessup's testimony, that T.M.'s accusations were false. Presumably, Jessup would have testified as to the specifics of T.M.'s accusations — whether he touched her butt or her vagina — and that the accusations were false.
Our Supreme Court has determined that
[t]o successfully assert an ineffective assistance of counsel claim, defendant must satisfy a two-prong test. First, he must show that counsel's performance fell below an objective standard of reasonableness. Second, once defendant satisfies the first prong, he must show that the error committed was so serious that a reasonable probability exists that the trial result would have been different.
State v. Gainey, 355 N.C. 73, 112, 558 S.E.2d 463, 488 (internal citations omitted), cert. denied, 537 U.S. 896, 154 L. Ed. 2d 165 (2002).
"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), cert. denied, 356 N.C. 623, 575 S.E.2d 758 (2002); accord State v. Dockery, 78 N.C. App. 190, 192, 336 S.E.2d 719, 721 (1985) ("The accepted practice is to raise claims of ineffective assistance of counsel in post-conviction proceedings, rather than direct appeal."). Our Supreme Court has aptly stated the reasoning behind this general rule:
To defend against ineffective assistance of counsel allegations, the State must rely on information provided by defendant to trial counsel, as well as defendant's thoughts, concerns, and demeanor. "[O]nly when all aspects of the relationship are explored can it be determined whether counsel was reasonably likely to render effective assistance." Thus, superior courts should assess the allegations in light of all the circumstances known to counsel at the time of the representation.
State v. Buckner, 351 N.C. 401, 412, 527 S.E.2d 307, 314 (2000) (quoting State v. Taylor, 327 N.C. 147, 161, 393 S.E.2d 801, 810 (1990) (Meyer, J., dissenting)).
However, "IAC 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." State v. Fair, 354 N.C. 131, 166, 557 S.E.2d 500, 524 (2001), cert. denied, 535 U.S. 1114, 153 L. Ed. 2d 162 (2002). "[S]hould the reviewing court determine that IAC claims have been prematurely asserted on direct appeal, it shall dismiss those claims without prejudice to the defendant's right to reassert them during a subsequent [motion for appropriate relief] proceeding." Id. at 167, 557 S.E.2d at 525.
In the present case, we find that the cold record before us is insufficient to properly rule on defendant's IAC claim. First, the record does not reveal "all the circumstances known to counsel at the time of the representation." Buckner, 351 N.C. at 412, 527 S.E.2d at 314. Without an evidentiary hearing, we cannot presume to know why defense counsel did not call Jessup to testify, and, therefore, we cannot conclude whether his actions fell below an objective standard of reasonableness. See State v. Parmaei, 180 N.C. App. 179, 186, 636 S.E.2d 322, 326 (2006) (holding that "[t]he transcripts and record are insufficient for us to determine whether defense counsel's actions resulted from trial tactics and strategy or from a lack of preparation or an unfamiliarity with the legal issues"), disc. review denied, 361 N.C. 366, 646 S.E.2d 537 (2007).
Second, in order to determine whether defendant was prejudiced by the alleged ineffective assistance of counsel, we would be forced to speculate as to what the trial court would have done had defense counsel conducted a voir dire of Jessup. The trial court may have found the testimony to be admissible under Rule 412, but still found it to be unduly prejudicial under Rule 403. However, the trial court may have reached a different conclusion altogether based on Jessup's testimony.
In sum, we conclude that defendant's IAC claim has been prematurely asserted on direct appeal. Accordingly, we dismiss this case, in part, without prejudice for defendant to make a motion for appropriate relief in the trial court.
B. Rule 403
Defendant admits in his brief that "[t]he trial judge had no choice but to rule in the manner he ruled [regarding Rule 412] because Defendant's trial counsel made no offer of proof. . . ." However, defendant argues that the trial court erred in excluding the testimony pursuant to Rule 403. Since defendant concedes that the trial court properly excluded the evidence under Rule 412, we need not address the trial court's Rule 403 analysis.
Defendant further claims that his Sixth Amendment right to compulsory process was violated; however, this constitutional argument was never raised before the trial court and we, therefore, decline to address it on appeal. It is well established that "a constitutional question which is not raised and passed upon in the trial court will not ordinarily be considered on appeal." State v. Hunter, 305 N.C. 106, 112, 286 S.E.2d 535, 539 (1982). Moreover, defendant merely cites to the Sixth Amendment, but makes no legal argument concerning its applicability to the issues raised in this case in violation of N.C. R. App. P. 28(b)(6).
II. Exclusion of Character Evidence
Next, defendant argues that the trial court erred in sustaining the prosecutor's objections to the testimony of Pastor Carnell Stringfield ("Pastor Stringfield"). Pastor Stringfield testified, without objection from the State, that he had known defendant "ever since he was born" and that he was a "respectable young man." He testified that defendant "take[s] care" of his two children and his bedridden mother. Pastor Stringfield further testified that defendant was an assistant pastor at a local church and that he had observed defendant in the church and in the community for many years. The prosecution did not object prior to the following examination:
Defense Counsel: How well do you know Mr. Cromartie?
Pastor Stringfield: Like I said, I have been knowing him all my life. He's a respectable person in the community —
Prosecution: Objection to the form of the question.
Court: Sustained.
Defense Counsel: Let me ask you this. Based on your knowledge of Mr. Cromartie, do you have an opinion of his character and reputation in the community?
Prosecution: Objection.
Court: Objection sustained.
Defense Counsel: Do you have an opinion as to Mr. Cromartie's character and reputation with regard to honesty in your community?
Pastor Stringfield: Yes. I would say he is a honest person. When I heard the news —
Prosecution: Objection to —
Court: Sustained, no [sic] responsive.
Defense Counsel: Do you have an opinion as to his character and reputation — his moral character and reputation?
Prosecution: Objection.
Court: Sustained.
Defense Counsel: Nothing else.
Pursuant to N.C. Gen. Stat. § 8C-1, Rule 404(a) (2009), "[e]vidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion[.]" However, "[e]vidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same" is generally admissible. N.C. Gen. Stat. § 8C-1, Rule 404(a)(1). "While Rule 404(a)(1) requires that character evidence offered by an accused must be of a `pertinent' trait, it is not so narrow as to preclude evidence of character traits even though general in nature provided that such traits are relevant to some issue in the case." State v. Squire, 321 N.C. 541, 545-46, 364 S.E.2d 354, 357 (1988) (emphasis added). "[A]n accused must elicit evidence regarding particular character traits in his presentation of character evidence. . . ." Id. at 547, 364 S.E.2d at 358 (emphasis added). In other words, the pertinent character trait must be relevant to the determination of the action. Id.
This interpretation of the word "pertinent" is consistent with the rule of statutory construction which restrictively construes exceptions to a general rule of exclusion. Rule 404(a), as a general rule, excludes character evidence. Therefore, the language of its exception permitting the accused to offer evidence of a "pertinent" trait should be restrictively construed.
State v. Bogle, 324 N.C. 190, 201, 376 S.E.2d 745, 751 (1989). "In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion." N.C. Gen. Stat. § 8C-1, Rule 405 (2009).
Here, Pastor Stringfield was permitted to testify that defendant was known as a "respectable young man" in the community. He was also allowed to testify that defendant was an "honest person." The trial court only sustained objections to testimony when Pastor Stingfield attempted to discuss his personal feelings regarding the accusations against defendant; when defense counsel attempted to illicit a statement from Pastor Stringfield regarding defendant's general character, not a specific trait of character; and when defense counsel asked Pastor Stringfield about defendant's general moral character. Defendant does not point to any specific objection that he claims should have been overruled; he merely argues that the trial court erred in "excluding evidence of defendant's good character and reputation in the community." We disagree.
Upon review of defense counsel's examination of Pastor Stringfield, we find no error in the trial court's rulings on the prosecution's objections. The pertinent trait of character in this case was defendant's honesty in the community. "In common usage, a person is . . . `honest' if his conduct, including his speech, is free from fraud or deception." Bogle, 324 N.C. at 202, 376 S.E.2d at 752. While the trait of honesty was not necessarily pertinent to the crime of taking indecent liberties with a minor, defendant's reputation for honesty was still "relevant to some issue in the case." Squire, 321 N.C. at 545-46, 364 S.E.2d at 357. The allegations made by T.M., which were not witnessed by any other person, were completely denied by defendant; therefore, the jury had to make a credibility determination, which put defendant's character for honesty at issue.
Pastor Stringfield testified that defendant was known as an "honest person" in the community and that he was a "respectable young man." Accordingly, evidence of defendant's good character and reputation for honesty was admitted for jury consideration. Additionally, Pastor Stringfield testified, without objection, regarding specific acts of defendant that led him to believe that defendant was a respectable person in the community. Absent argument by defendant regarding any specific objection that was subsequently sustained, we find defendant's general argument that the trial court erroneously excluded evidence of defendant's good character to be without merit. Assuming, arguendo, that the trial court erred in sustaining any of the prosecutor's objections, we find no prejudicial error since evidence of defendant's good character and reputation for honesty were admitted.
Conclusion
Based on the foregoing analysis, we dismiss defendant's IAC claim without prejudice and we find no error in the trial court's rulings with regard to Pastor Stringfield's testimony.
Dismissed in part; no error in part.
Judges GEER and STEPHENS concur.
Report per Rule 30(e).