State v. Pugh ( 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An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-536
NORTH CAROLINA COURT OF APPEALS
Filed: 21 January 2014
STATE OF NORTH CAROLINA
v. Randolph County
No. 97 CRS 17484
RONALD LEE PUGH
Appeal by defendant from judgment entered 23 September 2010
by Judge V. Bradford Long in Randolph County Superior Court.
Heard in the Court of Appeals 23 October 2013.
Attorney General Roy Cooper, by Special Deputy Attorney
General Danielle Marquis Elder, for the State.
Appellate Defender Staples Hughes for defendant.
HUNTER, Robert C., Judge.
Defendant Ronald Lee Pugh appeals the judgment sentencing
him to life imprisonment without parole entered upon his
conviction for first degree murder on the bases of premeditation
and deliberation and felony murder. Defendant puts forth two
arguments on appeal. First, defendant contends that the trial
court erred in failing to instruct the jury on second degree
murder or, in the alternative, that his trial counsel was
ineffective for failing to request the instruction. Second,
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defendant argues that because the verdict form does not specify
whether the jury found defendant guilty of felony murder based
on a completed rape or attempted rape, “this Court cannot
determine that the felony murder verdict rests unanimously on a
theory supported by the evidence.”
After careful review, we: (1) find no error in defendant’s
conviction for first degree murder based on the felony murder
rule; (2) determine that defendant has failed to meet his burden
in establishing plain error with regard to his conviction for
first degree murder on the basis of premeditation and
deliberation; and (3) conclude that defendant’s claim for
ineffective assistance of counsel fails because defendant is
unable to establish prejudice.
Procedural History
The procedural history of this case is substantial. In
1999, defendant was tried capitally for the murder of Wanda
Coltrane (“Ms. Coltrane”). State v. Poindexter, 353 N.C. 440,
441, 545 S.E.2d 414, 415 (2001). A jury found him guilty of
first degree murder on the basis of premeditation and
deliberation and under the felony murder rule and recommended
defendant be sentenced to death. Id. Defendant was sentenced
accordingly. Id.-3-
In 2001, our Supreme Court reversed the conviction based on
juror misconduct during the guilt-innocence phase of the trial.
Id. at 444, 545 S.E.2d at 416. In 2002, defendant was retried.
State v. Poindexter, 359 N.C. 287, 289, 608 S.E.2d 761, 763
(2005) (“Poindexter II”). The jury, again, found him guilty of
first degree murder and felony murder and recommended a death
sentence. Id. The trial court imposed a death sentence. Id.Defendant appealed his conviction. Id.While his appeal was pending, defendant filed a motion for
appropriate relief (“MAR”) with our Supreme Court alleging
ineffective assistance of trial counsel and requesting
adjudication of his claim of mental retardation. State v.
Poindexter, 357 N.C. 248, 248, 581 S.E.2d 762, 762 (2003). The
Supreme Court remanded the MAR to the trial court and ordered it
to conduct an evidentiary hearing on the MAR’s allegations. Id.After an evidentiary hearing, the trial court entered an order
denying defendant’s request to be adjudicated mentally retarded
and defendant’s request for a new trial based on an IAC claim
alleging ineffectiveness during the guilt-innocence phase of his
trial. Poindexter II, 359 N.C. at 289, 608 S.E.2d at 763.
However, the trial court vacated defendant’s death sentence and
ordered a new capital sentencing hearing based on his trial
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counsel’s ineffective assistance during the 2002 sentencing
hearing. Id.Our Supreme Court reviewed the trial court’s order granting
in part and denying in part defendant’s MAR. Id. It affirmed
the trial court’s order and remanded for a new capital
sentencing hearing. Id. Pursuant to N.C. Gen. Stat. § 15A-
2004(d), the State decided to not proceed with resentencing and
accepted a life sentence for defendant. Id. at 296, 608 S.E.2d
at 767. On 23 September 2010, the trial court sentenced
defendant to life imprisonment without parole. Defendant’s
current appeal raises alleged errors that occurred in the guilt-
innocence stage of his 2002 trial.
Factual Background
In 1997, defendant was indicted for killing Ms. Coltrane.
Defendant, Ms. Coltrane, and Ms. Coltrane’s husband, Willard
Coltrane (“Mr. Coltrane”), had been friends for more than twenty
years. The Coltranes regularly bought cocaine from defendant.
On 17 December 1997, both Coltranes called defendant
numerous times looking for cocaine. Ms. Coltrane picked
defendant up at his house and drove to the house of Lori Hurley
(“Ms. Hurley”), defendant’s niece. Ms. Hurley was not at home
at the time. Around noon, Jaren Hulen (“Mr. Hulen”), a pest
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exterminator, arrived at Ms. Hurley’s house for a scheduled
treatment. He noticed a red car parked in the driveway with the
door open and engine running. Mr. Hulen knocked on the door,
which was slightly open, and heard “stirring around” and a
woman’s voice calling for help. A few seconds later, defendant
came to the door; Mr. Hulen reported that defendant appeared
“panicked,” with his shirt and belt loose. Mr. Hulen heard dull
thuds and another cry for help after defendant shut the door.
After getting the license plate number of the car in the
driveway, Mr. Hulen drove to a nearby church and called 911.
Also around noon that day, Deputy Nora Walbourne (“Deputy
Walbourne”) noticed a small red car parked on the shoulder of a
rural road. When she stopped, the car sped off, and Deputy
Walbourne lost it in pursuit. Less than twenty minutes later,
Deputy Walbourne responded to the 911 call Mr. Hulen made. Soon
after she arrived at Ms. Hurley’s house, the red car she had
pursued pulled into the driveway. Defendant was driving and
asked for her help. Deputy Walbourne saw Ms. Coltrane slumped
over in the front passenger seat with her throat cut.
Defendant, Ms. Coltrane, and the car were covered in blood, and
defendant appeared “wild-eyed.”
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Investigators who arrived on the scene noted that Ms.
Coltrane’s shirt was pulled up around her shoulder blades, and
her bra was missing. During a subsequent search of Ms. Hurley’s
home, investigators found Ms. Coltrane’s bra in the master
bedroom, and it appeared to have been torn or cut off. Ms.
Coltrane’s jeans and underwear were partly pulled down.
An autopsy revealed that Ms. Coltrane died as a result of
numerous cutting injuries. The fatal wound was a deep cut
across her throat. However, she also sustained numerous other
injuries from either cutting or blunt force trauma to her face,
left arm, abdomen, and head. Because there was no evidence of
external or internal injury to her genital area, the sexual
assault kit collected from Ms. Coltrane was not analyzed.
Later, investigators confirmed that Ms. Coltrane’s injuries
occurred in Ms. Hurley’s house.
In his statements to Deputy Walbourne and another officer
on the day of the murder, defendant claimed that two masked
gunmen were waiting for him and Ms. Coltrane when they entered
Ms. Hurley’s house. One of the gunmen dragged her down the
hallway to the bedroom. After the exterminator arrived,
defendant alleged that Ms. Coltrane broke free and began yelling
for help. At that point, one of the gunman cut her throat.
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After the two men ordered defendant to drive them away from the
home, defendant carried Ms. Coltrane to the car because he knew
she could not be left alone. Defendant dropped the men off on a
country road before returning back to Ms. Hurley’s house.
At trial, a jailhouse informant, Larry Saunders (“Mr.
Saunders”), testified that defendant told him that he and Ms.
Coltrane had been riding around smoking crack and that defendant
admitted to killing Ms. Coltrane after defendant tried to “mess
with her.” After he cut her throat, defendant allegedly told
Mr. Saunders that he rode around with her body looking for a
place to dump it. When he arrived back at Ms. Hurley’s house,
the police had already arrived so he had no choice but to claim
someone else had killed her.
Although defendant had requested an instruction on second
degree murder in his 1999 trial, he did not request this
instruction in his 2002 trial. The trial court instructed the
jury on first degree murder on the bases of felony murder and
premeditation and deliberation. The jury found defendant guilty
of first degree murder on the basis of malice, premeditation,
and deliberation and based on the felony murder rule.
Grounds for Appeal
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On 13 September 2012, defendant filed a petition for writ
of certiorari seeking review of the 23 September 2010 judgment
entered by Judge V. Bradford Long. This Court allowed
defendant’s petition for the purpose of reviewing the 2010
judgment which was imposed based on defendant’s 2002 trial.
Arguments
I. Defendant’s Conviction for First Degree Murder Based on
Felony Murder
In challenging his conviction for first degree murder on
the basis of the felony murder rule, defendant argues that the
trial court erred in denying his motion to dismiss for
insufficiency of the evidence. Specifically, defendant contends
that he is entitled to a new trial because the verdict form does
not specify whether the jury found him guilty of felony murder
on the basis of rape or attempted rape. Consequently, defendant
alleges that the inability to determine whether “jurors based
the felony murder verdict on the notion of a completed rape, or
not” necessitates this Court vacate his conviction for first
degree murder on the basis of felony murder. We disagree.
In determining whether a trial court erred in failing to
grant a defendant’s motion to dismiss based on the insufficiency
of the evidence, this Court’s review is well-established: “Upon
defendant’s motion for dismissal, the question for the Court is
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whether there is substantial evidence (1) of each essential
element of the offense charged, or of a lesser offense included
therein, and (2) of defendant’s being the perpetrator of such
offense.” State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451,
455 (2000). The trial court must review the evidence in the
light most favorable to the State. State v. Barnes, 334 N.C.
67, 75, 430 S.E.2d 914, 918 (1993).
Based on our caselaw, defendant’s argument is without
merit. Essentially, defendant’s argument is that there was no
evidence presented at trial of a completed rape. Thus, because
some jurors may have convicted defendant for felony murder based
on a completed rape and others on an attempted rape, this Court
must vacate the verdict since it is unable to determine whether
the verdict rests unanimously on a theory supported by the
evidence.
However, our Supreme Court has concluded that, for purposes
of felony murder, if the evidence at trial is sufficient to
prove the attempted felony, “a determination of whether the
evidence supported a completed [felony] is not necessary to
resolve this issue.” State v. Squires, 357 N.C. 529, 536, 591
S.E.2d 837, 842 (2003). In Squires, the defendant was convicted
of felony murder predicated on the felony of the sale of cocaine
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with the use or possession of a deadly weapon and the felony of
“other murder.” Id. at 534, 591 S.E.2d at 840. With regard to
the felony of the sale of cocaine, the trial court instructed
the jury that it could find the defendant guilty of felony
murder if it found that the defendant committed or attempted to
commit a sale of cocaine with the use or possession of a deadly
weapon. Id. Thus, under this theory of felony murder, the jury
could have convicted the defendant of felony murder if he
actually completed a sale of cocaine or attempted to complete a
sale. The defendant argued that the trial court erred in not
granting his motion to dismiss for insufficiency of the evidence
because “some jurors may have found a completed sale while
others found an attempted sale.” Id. at 536, 591 S.E.2d at 842.
Our Supreme Court disagreed, noting: “Even if some jurors found
a completed sale of cocaine rather than an attempted sale, this
discrepancy would not change the result. When a jury finds the
facts necessary to constitute one offense, it also inescapably
finds the facts necessary to constitute all lesser-included
offenses of that offense.” Id. The Court went on to say that:
Attempted sale of cocaine is a lesser-
included offense of the sale of cocaine.
Therefore, any member of the jury who found
the elements constituting a sale of cocaine
must necessarily have found the elements of
attempted sale of cocaine. Since the
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evidence at trial was sufficient to prove
attempted sale of cocaine and since all
jurors necessarily found an attempted sale,
a determination of whether the evidence
supported a completed sale of cocaine is not
necessary to resolve this issue. We hold
that the trial court’s submission to the
jury of “sale of cocaine” as a predicate
felony to support defendant’s felony murder
conviction for [the victim’s] death was not
error.
Id.Attempted rape is a lesser included offense of first degree
rape. State v. Green, 95 N.C. App. 558, 563, 383 S.E.2d 419,
422 (1989). Therefore, as in Squires, any member of the jury
who found the elements constituting a completed rape must
necessarily have found the elements of an attempted rape. If
the evidence was sufficient to prove defendant was guilty of
attempted rape, then all the jurors would have necessarily found
defendant attempted to rape Ms. Coltrane. Accordingly, based on
Squires, it would not be necessary to determine whether the
evidence supported a completed rape.
“The two elements of attempted rape are the intent to
commit rape and an overt act done for that purpose which goes
beyond mere preparation but falls short of the completed
offense.” State v. Bell, 311 N.C. 131, 140, 316 S.E.2d 611, 616
(1984). “Intent to rape may be proved circumstantially by
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inference, based upon a defendant’s actions, words, dress, or
demeanor.” State v. Oxendine, 150 N.C. App. 670, 674, 564
S.E.2d 561, 564 (2002) (internal quotation marks omitted).
Furthermore, an “overt act manifesting a sexual purpose or
motivation on the part of the defendant is adequate evidence of
an intent to commit rape.” Id.Considering the evidence in a light most favorable to the
State, a reasonable jury could infer that defendant intended to
rape Ms. Coltrane. Investigators found Ms. Coltrane’s bra,
which had been forcibly removed, at Ms. Hurley’s house. When
Ms. Coltrane’s body was found, her shirt was forced up around
her shoulder blades and her jeans and underwear were partly
pulled down. Moreover, Mr. Saunders testified that defendant
allegedly admitted to him that he tried to “get with” Ms.
Coltrane. While it is uncontroverted that Ms. Coltrane had not
suffered any trauma to her genital area and that the sexual
assault kit sample was never tested, the State presented
substantial evidence that defendant intended to rape Ms.
Coltrane and that he engaged in an overt act for that purpose.
Thus, since the evidence was sufficient to prove defendant
attempted to rape Ms. Coltrane and because all jurors
necessarily found an attempted rape, the trial court’s
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submission to the jury based on the predicate felony of
attempted rape or rape does not constitute error, see Squires,
357 N.C. App. at 536, 591 S.E.2d at 842, and the trial court did
not err in denying his motion to dismiss. Defendant’s
conviction for first degree murder on the basis of felony murder
is left undisturbed.
II. Defendant’s Conviction for First Degree Murder on the Basis
of Premeditation and Deliberation
Next, with regard to defendant’s conviction for first
degree murder on the basis of premeditation and deliberation,
defendant argues that the trial court committed plain error in
failing to instruct the jury on second degree murder. In the
alternative, defendant contends that his trial counsel was
constitutionally ineffective in failing to request this
instruction. Even assuming arguendo that the trial court erred
in refusing to instruct on second degree murder, this error
would not affect the jury’s verdict finding defendant guilty of
first degree murder based on the felony murder rule. Therefore,
defendant is unable to meet his burden of demonstrating plain
error.
Because defendant failed to request an instruction on
second degree murder, we review for plain error. State v.
Carter, 366 N.C. 496, 497, 739 S.E.2d 548, 549 (2013); State v.
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Boyett, __ N.C. App. __, __, 735 S.E.2d 371, 374 (2012). Our
Supreme Court has recently clarified the plain error standard of
review:
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).
Here, the jury was presented with two theories of first
degree murder: (1) premeditation and deliberation; and (2)
felony murder. The jury convicted defendant of first degree
murder under both theories. Assuming arguendo that the trial
court erred by failing to instruct on second degree murder,
defendant is unable to establish that the error would have a
probable impact on the jury finding defendant guilty for first
degree murder based on felony murder. In other words, that
supposed error would only affect defendant’s conviction for
first degree murder based on premeditation and deliberation.
Since we have found no error with regard to defendant’s
conviction for first degree murder based on felony murder, as
discussed above, defendant is unable to establish plain error.
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With regards to defendant’s claim for ineffective
assistance of counsel based on his counsel’s failure to request
an instruction on second degree murder, we conclude it is
without merit. To establish that defendant’s counsel fell below
an objective standard of reasonableness, the defendant must
satisfy the two-prong test created by the United States Supreme
Court in Washington v. Strickland, 466 U.S. 668, 280 L. Ed. 2d
674 (1984), and adopted by our Supreme Court in State v.
Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985):
In order to meet this burden [the] defendant
must satisfy a two part test. First, the
defendant must show that counsel’s
performance was deficient. This requires
showing that counsel made errors so serious
that counsel was not functioning as the
“counsel” guaranteed the defendant by the
Sixth Amendment. Second, the defendant must
show that the deficient performance
prejudiced the defense. This requires
showing that counsel’s error were so serious
as to deprive the defendant of a fair trial,
a trial whose result is reliable.
(quoting Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693).
Since defendant’s conviction for felony murder was free from
error and that judgment is not affected by the trial court’s
alleged error in refusing to instruct on second degree murder,
defendant is unable to establish the second prong of the
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Strickland test: that he was prejudiced as a result.
Consequently, defendant’s argument is overruled.
Conclusion
In summary, we find no error in defendant’s conviction for
first degree murder based on felony murder pursuant to Squires
and that conviction remains undisturbed. In addition, even
assuming arguendo that the trial court erred in refusing to
instruct on second degree murder, this error would have no
impact on the jury’s finding defendant guilty of first degree
murder based on the felony murder rule. Thus, defendant is
unable to establish plain error. Finally, with regard to
defendant’s ineffective assistance of counsel claim, defendant
is unable to establish prejudice, the second prong under
Strickland. Therefore, defendant’s claim has no merit.
CONVICTION OF FIRST DEGREE MURDER ON BASIS OF FELONY
MURDER: NO ERROR.
CONVICTION FOR FIRST DEGREE MURDER ON THE BASIS OF
PREMEDITATION AND DELIBERATION: NO PLAIN ERROR.
Judges CALABRIA and ROBERT N. HUNTER, JR. concur.
Report per Rule 30(e).