State v. Surratt ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
NO. COA14-202
NORTH CAROLINA COURT OF APPEALS
Filed: 2 December 2014
STATE OF NORTH CAROLINA
Forsyth County
v.
No. 09 CRS 54539-41
HEATHER ROCHELLE SURRATT
Review of order entered 7 August 2013 by Judge William Z.
Wood, Jr., in Forsyth County Superior Court based upon the
issuance of a writ of certiorari. Heard in the Court of Appeals
on 11 August 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Sherri Horner Lawrence, for the State.
Mark Montgomery for defendant.
ERVIN, Judge.
Defendant Heather Rochelle Surratt seeks review of an order
denying her motion for appropriate relief following the issuance
of a writ of certiorari. On appeal, Defendant contends that a
number of the trial court’s findings of fact lack adequate
evidentiary support and that the trial court erroneously
concluded that she was not entitled to relief from her original
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convictions on ineffective assistance of counsel grounds. After
careful consideration of Defendant’s challenges to the trial
court’s order in light of the record and the applicable law, we
conclude that the trial court’s order should be affirmed.
I. Factual Background
On 24 April 2009, warrants for arrest charging Defendant
with two counts of felony child abuse by sexual act, two counts
of taking indecent liberties with a child, and two counts of
first degree sex offense were issued. On 20 July 2009, the
Forsyth County grand jury returned bills of indictment charging
Defendant with two counts of felony child abuse by sexual act,
two counts of taking indecent liberties with a child, and two
counts of first degree sex offense. The charges against
Defendant came on for trial before Judge Ronald E. Spivey and a
jury at the 20 September 2010 criminal session of the Forsyth
County Superior Court. As Judge Spivey was considering the
merits of various pretrial motions, the State made a motion in
limine to bar the introduction of evidence relating to the
results of a prior adjudication hearing held in an abuse and
neglect proceeding that had been initiated by the Forsyth County
Department of Social Services in which both Defendant, the
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mother of Jenny1 and her siblings, and Mr. Surratt, the father of
Jenny and her siblings, lost custody of their children.
Although the issue of sexual abuse was raised in the
adjudication hearing, the District Court’s decision was based on
findings of neglect, domestic violence, and drug abuse. The
District Court did not find sexual abuse. In light of
Defendant’s failure to object to the allowance of the State’s
motion in limine, Judge Spivey granted the State’s motion and
instructed the parties to refrain from making any specific
references to the adjudication hearing or its outcome.
At trial, Jenny testified that Defendant had performed
sexual acts with her in their home when Jenny was nine years
old. Jenny eventually reported Defendant’s activities to her
brother and sister, who told their father. Tina Wallace, a
social worker, testified for the State at Defendant’s trial
about her interviews with Jenny and her siblings. As she was
being cross-examined by Defendant’s trial counsel, Ms. Wallace
made reference to the adjudication hearing:
Q. When was the case transferred from you
to Miss Swaim?
A. The children were placed in foster care
on February 25th. And at that point Mrs.
Swaim assumed responsibilities for foster
care, and my responsibilities were primarily
1
“Jenny” is a pseudonym used for ease of reading and to
protect the privacy of the alleged juvenile victim.
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-- primary to follow the case through
adjudication in the court.
Q. So it was your case from October –
basically from October to February?
A. Well, through the adjudication. But
the responsibility for the Children’s
Services were with the foster care social
worker.
Q. And when was the last time -- Well, let
me ask you this: Are you currently still
involved in the case?
A. No, I’m not.
Q. Okay. When was the last time that you
had any involvement in the case?
A. At the adjudication hearing, and I
believe that was in --
Q. June of last year?
A. At the adjudication hearing -- sorry --
I don’t recall the --
(Witness reviewing notes.)
A. If I can just have a minute --
Q. Well, do you recall if it was June of
last year?
A. I’m sorry?
Q. June of last year.
A. I can’t be sure if that was the
adjudication date or not without looking.
Q. Sometime last year?
A. Yes.
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At the conclusion of the trial, the jury returned verdicts
convicting Defendant of two counts of felony child abuse by
sexual act, two counts of taking indecent liberties with a
child, and two counts of first degree sex offense with a child.
On 22 September 2010, Judge Spivey entered judgments sentencing
Defendant to a term of 250 to 309 months imprisonment based upon
Defendant’s consolidated convictions for first degree sexual
offense and to a consecutive term of 24 to 38 months
imprisonment based upon Defendant’s consolidated convictions for
felony child abuse by sexual act and taking indecent liberties
with a child. Defendant noted an appeal to this Court from
Judge Spivey’s judgments.
On 18 October 2011, this Court filed an opinion awarding
Defendant a new trial on ineffective assistance of counsel
grounds. State v. Surratt, 216 N.C. App. 404, 407-08, 717
S.E.2d 47, 49-50 (2011). On 8 December 2011, the Supreme Court
entered an order allowing the State’s petition for discretionary
review, vacating our decision without prejudice to Defendant’s
right to raise her ineffective assistance of counsel claim in a
motion for appropriate relief, and remanding this case to us for
consideration of Defendant’s remaining challenges to Judge
Spivey’s judgments. State v. Surratt, __ N.C. __, 732 S.E.2d
348 (2011). On 17 January 2012, we filed an opinion on remand
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in which we allowed Judge Spivey’s judgments to remain
undisturbed. State v. Surratt, 218 N.C. App. 308, 309, 721
S.E.2d 255, 255 (2012).
On 25 April 2012, Defendant filed a motion for appropriate
relief seeking relief from Judge Spivey’s judgments on
ineffective assistance of counsel grounds. On 30 July 2012,
Judge Logan Todd Burke entered an order concluding that
Defendant had failed to establish that the performance of
Defendant’s trial counsel was deficient and denied Defendant’s
motion.
On 11 October 2012, Defendant filed a petition with this
Court in which she sought the issuance of a writ of certiorari
authorizing review of Judge Burke’s order. On 24 October 2012,
this Court entered an order remanding this case to the Forsyth
County Superior Court with instructions that an evidentiary
hearing be conducted for the purpose of evaluating the merits of
Defendant’s ineffective assistance of counsel claim.
The evidentiary hearing was held on 27 March 2013 before
the trial court. On 7 August 2013, the trial court entered an
order denying Defendant’s motion for appropriate relief. On 17
October 2013, Defendant filed a petition seeking the issuance of
a writ of certiorari authorizing appellate review of the trial
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court’s order. We issued the requested writ of certiorari on 14
November 2013.
II. Jurisdiction and Standard of Review
Defendant’s challenge to the trial court’s order is
properly before this Court pursuant to N.C. R. App. P. 21 and
N.C. Gen. Stat. § 15A-1422(c)(3). “When considering rulings on
motions for appropriate relief, we review the trial court’s
order to determine ‘whether the findings of fact are supported
by evidence, whether the findings of fact support the
conclusions of law, and whether the conclusions of law support
the order entered by the trial court.’” State v. Frogge, 359
N.C. 228, 240, 607 S.E.2d 627, 634 (2005) (quoting State v.
Stevens, 305 N.C. 712, 720, 291 S.E.2d 585, 591 (1982)). “The
findings made by the trial court are binding if they are
supported by any competent evidence . . . and the trial court’s
ruling on facts so supported may be disturbed only when there
has been a manifest abuse of discretion . . . or when it is
based on an error of law.” State v. Pait, 81 N.C. App. 286,
288-89, 343 S.E.2d 573, 575 (1986) (internal citations omitted).
III. Substantive Legal Analysis
A. Findings of Fact
In her brief, Defendant challenges the sufficiency of the
evidentiary support for Finding of Fact Nos. 4, 7, 12, and 14.
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In each instance, the relevant question for our consideration is
whether the challenged findings of fact have adequate
evidentiary support. As a general proposition, Defendant’s
challenges to the trial court’s findings lack merit.
1. Finding of Fact No. 4
In Finding of Fact No. 4, the trial court determined that:
[Defendant’s trial counsel] stated he did
not observe that the jury was getting a
false impression at the time of trial. He
further stated that in hindsight he would
have asked Ms. Wallace more questions to
include the rulings by the judge.
[Defendant’s trial counsel] stated that he
was not sure whether he would have wanted
the jury to know that no sexual abuse was
found by the court in the adjudicatory
hearing. [Defendant’s trial counsel] stated
that he was not sure if the jury even knew
what an adjudication hearing meant.
After carefully reviewing the record, we hold that the trial
court’s finding that Defendant’s trial counsel “did not observe
that the jury was getting a false impression” had adequate
record support. Defendant’s trial counsel testified that he was
not aware of what impression the jury was receiving from Ms.
Wallace’s testimony and that he did not see any indication that
the jury was getting a false impression. However, the trial
court’s determination that Defendant’s trial counsel “was not
sure whether he would have wanted the jury to know that no
sexual abuse was found by the court in the adjudicatory
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hearing[]” conflicts with the evidence contained in the record,
which clearly indicates that Defendant’s trial counsel wanted to
obtain the admission of evidence that the District Court had not
found sexual abuse at the adjudication hearing and that he was
disinclined to elicit evidence tending to show that the District
Court found the children to be neglected juveniles based on
domestic violence and drug use in the household. Finally,
Defendant’s trial counsel stated that he was unsure whether the
jurors knew what an adjudication hearing was. As a result, with
one exception that has no relevance to the prejudice inquiry
required in proceedings evaluating ineffective assistance of
counsel claims and that cannot, for that reason, support a
finding of prejudicial error in this case, Finding of Fact No. 4
has adequate evidentiary support.
2. Finding of Fact No. 7
In Finding of Fact No. 7, the trial court found that
Defendant’s trial counsel avoided questioning Defendant about
the reason that she lost custody of her children as part of a
deliberate and reasonable strategy under which Defendant’s trial
counsel sought to avoid addressing neglect, drug abuse, and
domestic violence issues. At a number of points, Defendant’s
trial counsel indicated that the ideal outcome would have been
to elicit evidence that the District Court refrained from
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finding that sexual abuse had occurred while preventing the jury
from learning about the drug use and domestic violence issues
upon which the District Court’s determination of neglect rested.
Although the record contains evidence that would support a
different finding as well, we conclude that the evidentiary
record supports the trial court’s inference that the strategy
adopted by Defendant’s trial counsel included preventing the
jury from learning the reasons that the District Court
adjudicated the children to be neglected juveniles.
3. Finding of Fact No. 12
In Finding of Fact No. 12, the trial court found “[t]hat
Ms. Wallace did not state any opinion as to the credibility of
the alleged victim and did not impermissibly ‘bolster’ her
testimony” and that “Ms. Wallace did not claim that the alleged
victim’s story was substantiated in any way.” Once again, we
conclude that, to the extent that Finding of Fact No. 12 is a
factual finding instead of a legal conclusion, it has adequate
evidentiary support.
“Our case law has long held that a witness may not vouch
for the credibility of a victim.” State v. Giddens, 199 N.C.
App. 115, 121, 681 S.E.2d 504, 508 (2009), aff’d, 363 N.C. 826,
689 S.E.2d 858 (2010). As Defendant candidly admits, Ms.
Wallace’s testimony does not directly vouch for the credibility
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of Jenny’s allegations of sexual abuse. Instead, however,
Defendant contends that the relevant portion of Ms. Wallace’s
testimony created the erroneous impression that Defendant and
Mr. Surratt lost custody of their children on the basis of
sexual abuse and that this inference, in turn, served to
impermissibly bolster Jenny’s testimony.
In our original consideration of this issue, we agreed with
Defendant’s contention. See Surratt, 216 N.C. App. at 407-08,
717 S.E.2d at 49-50. After additional consideration, however,
we conclude that inferences other than the one suggested by
Defendant can be drawn from the relevant portion of Ms.
Wallace’s testimony. According to Ms. Wallace, Jenny and her
siblings were living with Mr. Surratt, rather than with
Defendant, at the time of the abuse and neglect investigation.
The children were removed from Defendant’s custody months before
the adjudication hearing was held. Instead, Ms. Wallace
testified that the children were taken from Mr. Surratt and
taken to the home of a family friend before being placed in
foster care. The fact that the children were taken from both
Defendant and Mr. Surratt before the adjudication hearing tends
to suggest that the children were removed from the custody of
their parents for reasons other than the sexual abuse with which
Ms. Surratt had been charged. As a result, given that the
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evidence permits a number of different inferences concerning the
likely import of the relevant portion of Ms. Wallace’s
testimony, we cannot say that Finding of Fact No. 12 lacks
adequate evidentiary support. See Pait, 81 N.C. App. at 288-89,
343 S.E.2d at 575.
4. Finding of Fact No. 14
In Finding of Fact No. 14, the trial court found that
evidence that the District Court’s neglect adjudication was
based on domestic violence and drug use was properly excluded
given the absence of any indication that such evidence would
have been helpful to Defendant and that the admission of
evidence “could have been prejudicial to the defense and was
certainly not relevant to the issues to be decided by the jury.”
As an initial matter, we note that Finding of Fact No. 14,
instead of being a finding of fact, is really an explanation of
the reasoning process employed by the trial court. In addition,
we see no valid basis for disputing the validity of the trial
court’s logic. As a result, we see no basis for an award of
appellate relief based upon Defendant’s challenge to Finding of
Fact No. 14.
B. Conclusions of Law
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In the conclusions of law, the trial court concluded that
Defendant failed to satisfy either of the two prongs of
ineffective assistance of counsel.
To prevail on a claim of ineffective
assistance of counsel, a defendant must
first show that his counsel’s performance
was deficient and then that counsel’s
deficient performance prejudiced his
defense. Deficient performance may be
established by showing that counsel’s
representation fell below an objective
standard of reasonableness. Generally, to
establish prejudice, a defendant must show
that there is a reasonable probability that,
but for counsel’s unprofessional errors, the
result of the proceeding would have been
different. A reasonable probability is a
probability sufficient to undermine
confidence in the outcome.
State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271, 286 (internal
citations and quotation marks omitted), cert. denied, 549 U.S.
867, 127 S. Ct. 164, 166 L. Ed. 2d 116 (2006). Assuming, for
purposes of discussion, that Defendant did receive deficient
representation from her trial counsel, we are unable to conclude
that Defendant has shown the existence of the prejudice
necessary to support an award of relief from Judge Spivey’s
judgment. State v. Braswell, 312 N.C. 553, 563, 324 S.E.2d 241,
249 (1985) (stating that, “if a reviewing court can determine at
the outset that there is no reasonable probability that in the
absence of counsel’s alleged errors the result of the proceeding
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would have been different, then the court need not determine
whether counsel’s performance was actually deficient”).
As we have already noted, the ultimate issue that must be
addressed in determining whether a defendant has established the
prejudice necessary for an award of relief on ineffective
assistance of counsel grounds is whether there is “a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Strickland
v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L.
Ed. 2d 674, 698 (1984). Thus, in order to obtain relief from
Judge Spivey’s judgment, Defendant would necessarily have to
establish the existence of a reasonable probability that, had
her trial counsel acted differently, the jury would have
returned a verdict of not guilty rather than guilty.
In her brief, Defendant argues that she “was prejudiced by
the failure of trial counsel or the court to correct the
misapprehension that [Jenny] was taken from [Defendant] because
the District Court found evidence of sexual abuse.”2 More
2
Defendant has not argued that the admission of evidence
tending to show that the District Court’s failure to find that
sexual abuse occurred at the adjudication hearing would have
fundamentally altered the credibility calculus that the jury
necessarily was required to engage in at Defendant’s original
trial as a result of the conflicting testimony presented by
Jenny and Defendant. As a result, given that “[i]t is not the
role of the appellate courts . . . to create an appeal for an
appellant,” Viar v. N.C. Dep’t. of Transp., 359 N.C. 400, 402,
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specifically, the prejudice argument advanced in Defendant’s
brief rests on the theory that a mere reference to “the
adjudicatory hearing,” without any mention of the actual
conclusion that the District Court reached at the conclusion of
that hearing, resulted in an impermissible substantiation of
Jenny’s testimony at the actual conclusion of the hearing, and
may have raised an impermissible substantiation of the type that
resulted in awards of appellate relief in cases such as Giddens,
199 N.C. App. at 121, 681 S.E.2d at 508, and State v. Martinez,
212 N.C. App. 661, 664, 711 S.E.2d 787, 789, disc. Review
denied, 365 N.C. 359, 719 S.E.2d 23 (2011). As the trial court
noted, however, Ms. Wallace did not describe what an
“adjudication” was or state any basis for the District Court’s
adjudication decision. After carefully reviewing the record, we
are unable to accept Defendant’s contention that a mere
reference to an adjudication, without more, sufficed to create
an impression on the part of the jury that the District Court
610 S.E.2d 360, 361 (2005), this Court is limited to an
evaluation of the prejudice argument that has been actually
advanced in Defendant’s brief. We will, for that reason,
refrain from addressing the extent, if any, to which the
admission of evidence that the District Court failed to find
that sexual abuse had occurred at the adjudication hearing,
standing alone, would have sufficed to create a reasonable
probability that the outcome would have been different in the
absence of the allegedly deficient performance of Defendant’s
trial counsel by making it more likely that the jury would have
believed Defendant rather than Jenny.
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found in the related abuse and neglect proceeding that Defendant
had sexually abused Jenny. On the contrary, we read the record
to suggest that the jury would not have had any sort of a clear
indication of what the effect of an adjudication in a juvenile
abuse and neglect proceeding actually was. As a result, given
our inability to accept Defendant’s contention that the relevant
portion of Ms. Wallace’s testimony created any risk that the
jury would have believed that the District Court had previously
found that Defendant sexually abused Jenny, we cannot conclude
that there is a reasonable probability that the outcome at
Defendant’s trial would have been different in the event that
her trial counsel had taken action to correct the
“misapprehension” that Defendant believes to have been created
by Ms. Wallace’s testimony.
IV. Conclusion
Thus, for the reasons set forth above, we conclude that
Defendant is not entitled to relief from the trial court’s
order. As a result, the trial court’s order should be, and
hereby is, affirmed.
AFFIRMED.
Judge ROBERT C. HUNTER and McCULLOUGH concur.
Report per Rule 30(e).