Criminal Practice — MAR – Ineffective Assistance Claims – Evidentiary Hearing – Shackles

In defendant’s motion for appropriate relief (MAR), some of defendant’s asserted grounds for relief required the MAR court to resolve questions of fact. Accordingly, the MAR court was obligated to conduct an evidentiary hearing prior to ruling on defendant’s MAR.

We vacate the portions of the MAR court’s order summarily dismissing Allen’s guilt-innocence phase claims of ineffective assistance of counsel (IAC) and remand to the MAR court to conduct a full evidentiary hearing. In addition, we hold that the trial court erred in summarily ruling that defendant’s claim alleging he was impermissibly shackled in view of the jury was procedurally barred. On this claim, we vacate the relevant portion of the MAR court’s order and remand for an evidentiary hearing to obtain the facts necessary to determine whether his claim is procedurally barred and, if not, whether it has merit. We affirm the MAR court’s disposition of all other claims raised in defendant’s MAR.

Because defendant did not testify, prosecution witness Vanessa Smith provided the sole narrative of the events directly precipitating the victim’s death. As we explained in our decision resolving defendant’s direct appeal, Smith was “a witness with less-than-perfect credibility.”

She was a chronic heavy drug user who admitted to smoking marijuana shortly before the victim’s death. She was involved in a tumultuous romantic relationship with defendant which he had recently broken off. She accused defendant of the victim’s murder only after confronting him after he had reunited with an ex-girlfriend. Smith testified at the trial pursuant to a deal with the state which significantly reduced her potential criminal liability.

Analysis

If a defendant’s MAR and supporting materials create disputed issues of fact, then the MAR court is obligated to conduct an evidentiary hearing to resolve any disputed facts unless “the trial court can determine that the defendant is entitled to no relief even upon the facts as asserted by him.” State v. McHone, 348 N.C. 254 (1998).

In support of his MAR, defendant presented the report of a crime-scene expert who said the crime scene refuted Smith’s assertion that the victim was assassinated in cold blood, never having got his gun out. Defendant argued that trial counsel’s failure to investigate crime-scene evidence constituted IAC.

According to the MAR court, trial counsel’s failure to consult with or present testimony from a crime scene expert resulted from a “sound tactical decision” reflecting the reasonable trial strategy of “[focusing] on the doubt created by Smith’s gaps in memory, addiction and use of controlled substances on the date of [the victim’s] death, and failure to maintain a cohesive timeline, rather than attempting to prove Defendant’s innocence through the use of a crime scene analyst.”

However, defendant presented an affidavit from one of his trial attorneys explicitly stating that he “do[es] not recall [either himself or defendant’s other attorney] making any strategic decisions to limit the cross-examination of the State’s witnesses, including Vanessa Smith.” This directly undercuts the MAR court’s theory that counsel’s failure to investigate resulted from a “tactical decision” to focus on Smith’s lack of credibility due to her drug use. If it is true that trial counsel’s “failure to investigate thoroughly resulted from inattention, not reasoned strategic judgment,” then counsel’s performance was deficient.

Defendant has presented evidence supporting his contention that his attorneys provided IAC during the guilt-innocence phase of his trial, creating factual disputes which, if resolved in his favor, would entitle him to relief. He is entitled to further develop these claims during an evidentiary hearing.

Because “an evidentiary hearing is required unless the motion presents assertions of fact which will entitle the defendant to no relief even if resolved in his favor, or the motion presents only questions of law, or the motion is made pursuant to N.C.G.S. § 15A-1414,” McHone, we remand to the MAR court to conduct an evidentiary hearing.

We also reject the MAR court’s erroneous conclusion that cumulative prejudice is unavailable to a defendant asserting multiple IAC claims. We have previously acknowledged cumulative prejudice IAC claims, as has the U.S. Supreme Court. Therefore, we adopt the reasoning of the Court of Appeals panel which recently concluded that “because [IAC] claims focus on the reasonableness of counsel’s performance, courts can consider the cumulative effect of alleged errors by counsel.” State v. Lane, 271 N.C. App. 307, review dismissed, 376 N.C. 540 (2020), review denied, 851 S.E.2d 624 (N.C. 2020).

Finally, because the record does not reveal information necessary to determine whether defendant’s claim that he was visibly shackled in the courtroom is procedurally barred, the MAR court erred in summarily concluding that defendant was “in a position to adequately raise the ground or issue underlying the [MAR claim]” on direct appeal within the meaning of G.S. § 15A-1419(a)(3). The record and transcript from defendant’s trial are devoid of any information which would allow a court to rule on this issue. Defendant is entitled to an evidentiary hearing on this issue.

Dissent

(Berger, J.): Contrary to the majority’s assertions, this court did not remand McHone for an evidentiary hearing but rather for findings of fact based on materials contained in the record. McHone “[remanded] this case to that court in order that it may make findings of fact, inter alia, as to whether defendant or defendant’s counsel was served with a copy of the original proposed order.” It is only by virtue of the majority’s gross misreading of McHone that the stunning leap can be made from this language to the requirement of an evidentiary hearing in every motion for appropriate relief.

In addition, the majority claims that McHone compels review of motions for appropriate relief “in the light most favorable to the defendant.” This language cannot be found in McHone, G.S. § 15A-1420, or the official commentary to that section.

In addition, the majority breathes life into defendant’s newly asserted claim that he was impermissibly shackled during his trial which occurred nearly 18 years ago. The trial court correctly found that defendant’s newly imagined claim was procedurally barred.

Furthermore, the majority brings a new form of prejudice into North Carolina’s jurisprudence on ineffective assistance of counsel claims: cumulative prejudice. Never has a cumulative prejudice standard been enunciated by this court in this context.

State v. Allen (Lawyers Weekly No. 010-085-21, 79 pp.) (Anita Earls, J.) (Philip Berger, J., joined by Paul Newby, C.J. & Tamara Barringer, J., dissenting) Appealed from the Superior Court in Montgomery County (Bradford Long, J.) Nicholaos Vlahos for the state; Olivia Warren and Michael Unti for defendant. 2021-NCSC-88