Opinion
No. COA15-1133
05-17-2016
STATE OF NORTH CAROLINA v. ADAM CLAYTON PUGH
Attorney General Roy Cooper, by Assistant Attorney General Cathy Hinton Pope, for the State. Guy J. Loranger for defendant-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. Wake County, No. 13 CRS 214277 Appeal from judgment entered 11 February 2015 by Judge Kendra D. Hill in Wake County Superior Court. Heard in the Court of Appeals 2 May 2016. Attorney General Roy Cooper, by Assistant Attorney General Cathy Hinton Pope, for the State. Guy J. Loranger for defendant-appellant. McCULLOUGH, Judge.
A jury found defendant guilty of malicious conduct by inmate, N.C. Gen. Stat. § 14-258.4(a) (2015), upon evidence that he threw a Styrofoam cup containing urine, feces, and spoiled milk at Wake County Detention Officer Larry King through the trapdoor of his jail cell on 14 June 2013. Testifying in his own defense, defendant admitted throwing a cup of milk at Officer King but denied it contained urine or fecal matter. After the jury returned its verdict, the trial court sentenced defendant to an active prison term of 33 to 49 months. Defendant gave notice of appeal in open court.
Defendant now claims he was "potentially deprived" of his right to effective assistance of counsel under U.S. Const. amend. VI, XIV, and N.C. Const. art. 1 §§ 19 and 23. See, e.g., State v. Braswell, 312 N.C. 553, 561-62, 324 S.E.2d 241, 247-48 (1985). Noting the State's burden to prove that he threw "bodily fluids or excrement" at Officer King, N.C. Gen. Stat. § 14-258.4(a), defendant suggests his counsel failed to conduct a reasonable investigation to determine whether officers violated jail policy when they failed to submit the substance thrown at Officer King for forensic testing. Defendant acknowledges that counsel represented to the trial court that his "sources over at the jail . . . indicated to [counsel] that there is no required policy they submit this for lab testing." Defendant observes, however, that "the record does not reveal who those sources were, whether they could be considered reliable . . . and why . . . [counsel] saw no need to pursue the issue . . . ." Because the "cold record" does not allow a full assessment of counsel's performance on this issue, State v. Fair, 354 N.C. 131, 166, 557 S.E.2d 500, 524 (2001), defendant asks this Court to "dismiss this assignment of error without prejudice to [his] right to raise an ineffective assistance of counsel claim in a motion for appropriate relief." [Id. at 13-14].
Counsel offered this information after defendant expressed his dissatisfaction with counsel and his unwillingness to proceed to trial. Defendant insisted that Wake County had a "jail policy that covers" the testing of suspicious substances and that counsel "haven't [sic] tried to get a copy of it." When the court reminded defendant that "counsel, as an officer of the court, has said he's checked with folks about whether there is in fact a policy[,]" defendant replied, "I don't believe it. I don't believe it. I don't believe he checked with it." We note the trial court had already replaced two attorneys previously appointed to represent defendant.
To support an ineffective assistance of counsel ("IAC") claim, a defendant must show both that his counsel's performance fell below an objective standard of reasonableness and that this deficiency had a probable impact on the outcome of the trial. Braswell, 312 N.C. at 563, 324 S.E.2d at 249. "In bringing an [IAC] claim based on the failure to adequately present a defense, the central question is whether a supportable defense could have been developed. The burden of showing the probability that this defense existed is on the defendant." State v. Dockery, 78 N.C. App. 190, 192, 336 S.E.2d 719, 721 (1985).
"IAC claims brought on direct review will be decided on the merits when the cold record reveals that no further investigation is required . . . ." Fair, 354 N.C. at 166, 557 S.E.2d at 524. However, "should 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 [postconviction] proceeding." Id. at 167, 557 S.E.2d at 525; accord State v. Pemberton, 228 N.C. App. 234, 242-43, 743 S.E.2d 719, 725 (2013).
It appears from the materials of record that the substance thrown at Officer King on 14 June 2013 was neither submitted for analysis nor preserved as evidence. Officer King described the contents of the Styrofoam cup to the jury as follows: "it was a murky fluid and it smelled very bad. It was apparent what it was as soon as it hit me. It smelled like fecal matter when it hit me." He noted that the substance "wasn't entirely liquid" and included "white chunks and also brown chunks inside of there." Officer King expressed "no doubt" that the substance "was fecal matter." Detention Officer Benjamin Rieger, who cleaned the area after the incident, testified that the "mess" on the floor consisted of "[w]hite chunks with milk and . . . a yellowish substance with some brown chunks in it." He also recalled odors of "[f]eces, rotten milk" permeating the entire floor of the jail. Like Officer King, Officer Rieger averred it was obvious that the material he was "cleaning up off the floor was feces and milk."
On the subject of jail policy, the prosecutor elicited the following testimony from Officer King:
Q. And the clothing that you took off when you said you put in a trash bag, what did you ultimately do with that?Defense counsel revisited the issue on cross-examination, asking Officer King to confirm that "there's no policy that you guys have to submit this to a lab for testing?" Officer King replied, "No, there isn't. To my knowledge there isn't." Officer Rieger likewise testified that, to his knowledge, "there's no [jail] policy about having to have bodily fluids or other substances like excrement tested in a laboratory . . . ."
A. I turned it in to our person in charge of uniforms, and he gave me a new one.
. . . .
Q. Before you turned in or even after you turned it in, was any kind of testing done on the uniform --
A. No.
Q. -- of the substance that was thrown on you?
A. No.
Q. Is there any policy that requires to [sic] you do that?
A. Not that I'm aware of, no.
On the record before this Court, we cannot conclusively determine whether counsel's investigation of the jail's policy for testing substances thrown at detention officers by detainees was unreasonably deficient, or whether a more searching investigation might have affected the outcome of defendant's trial. See State v. Stroud, 147 N.C. App. 549, 556, 557 S.E.2d 544, 548 (2001). Officers King and Rieger both claimed to be unaware of any policy that required testing of the substance. The existence of such a policy, if proved, may well have affected the jury's assessment of their credibility as witnesses. In an abundance of caution, we dismiss defendant's ineffective assistance of counsel claim without prejudice to his right to file a motion for appropriate relief in superior court. See Pemberton, 228 N.C. App. 245-46, 743 S.E.2d at 727.
DISMISSED.
Chief Judge McGEE and Judge ZACHARY concur.
Report per Rule 30(e).