State v. Ward , 250 N.C. App. 254 ( 2016 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-52
Filed: 1 November 2016
Mecklenburg County, Nos. 13 CRS 226486–89
STATE OF NORTH CAROLINA
v.
STEPHEN LAMONT WARD
Appeal by defendant from judgment entered 29 April 2015 by Judge Robert T.
Sumner in Mecklenburg County Superior Court. Heard in the Court of Appeals 9
August 2016.
Attorney General Roy Cooper, by Assistant Attorney General Jill A. Bryan, for
the State.
Tarlton Law PLLC, by Raymond C. Tarlton, for defendant-appellant.
BRYANT, Judge.
Where defendant and defense counsel reached an impasse as to whether to
cross-examine the State’s witness on an issue of sample contamination, we affirm the
trial court’s ruling that it would be improper for the attorney to pursue a frivolous
line of questioning. And where, as defendant concedes, our laws do not support a jury
instruction for mistake of age or consent on facts such as these, we overrule
defendant’s argument.
On 15 July 2013, a Mecklenburg County grand jury indicted defendant
Stephen Lamont Ward on two counts of statutory rape of a person thirteen, fourteen,
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Opinion of the Court
or fifteen years old and two counts of taking indecent liberties with a child. These
matters were brought to trial during the 28 April 2015 Criminal Session of
Mecklenburg County Superior Court, the Honorable Robert T. Sumner, Judge
presiding.
At trial, the evidence tended to show that in June 2013, fourteen-year-old
Rebecca1,2 a Mecklenburg County resident, received a message via the social
networking site Facebook inviting her to apply for a modeling opportunity with
Fourth Ward Foto. At trial, Rebecca identified defendant as the person in the profile
picture for the webpage. Rebecca corresponded with defendant by messages sent via
Facebook and by phone for two days, and then agreed to meet him. On 28 June 2013,
after her stepfather dropped her off at a library, Rebecca walked to meet defendant
at a local pizzeria.
Q. What did you think you were meeting him to do?
A. Just take pictures, you know, what models do, just
things like that. Like, you know, face shots and all
that kind of stuff.
Rebecca got into defendant’s black Durango SUV and traveled with him to a
motel on Nations Ford Road. Defendant had not previously told Rebecca he was
taking her to a motel. Rebecca testified that en route, defendant stopped at a gas
1 Rebecca was sixteen at the time of trial.
2 A pseudonym has been used to protect the juvenile’s identity.
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station and purchased two cigars and a grape juice drink. Once in his motel room,
Rebecca and defendant talked while she drank grape juice, which defendant later told
her contained vodka. Defendant undressed Rebecca, kissed and fondled her body,
then performed cunnilingus and twice engaged her in sexual intercourse.
Afterwards, defendant directed her to pose in various positions for photographs.
Rebecca was in defendant’s motel room for three to four hours. During that time, her
parents’ numerous calls to her cellphone went unanswered.
When defendant returned Rebecca to the library, she contacted her parents
and, over the course of the night, eventually disclosed where she had been. The next
day, Rebecca directed her parents to the motel where defendant had taken her, and
there, Rebecca’s mother and step father confronted defendant. Rebecca was then
taken to Novant Health, a hospital, and her parents reported to law enforcement
officers in the Charlotte Mecklenburg County Police Department that their daughter
had been kidnapped and sexually assaulted. Officer David Wright was among the
officers that arrived at the motel to investigate.
Officer Wright testified that a search warrant was issued for the room to which
Rebecca was taken, as well as for the black Durango SUV in the motel parking lot.
In the vehicle, officers found a vehicle registration card, a visa card with defendant’s
picture on it, and a bottle of Smirnoff Vodka. It was also confirmed that the room
Rebecca had been taken to had been rented by defendant.
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Following his arrest, defendant was transported to the Charlotte Mecklenburg
Police Department. There, he waived his Miranda rights and agreed to speak with
Officer Wright. Defendant gave his date of birth as 12 October 1972, making him
forty years old at the time of his arrest. Defendant stated that he made contact with
Rebecca on 28 June 2016 by “face messaging” her through Facebook for the purpose
of making arrangements to take her photograph. He met Rebecca at a local
restaurant and then drove her to the motel on Nations Ford Road. Defendant stated
that Rebecca agreed to take nude pictures for him, and he took fifteen nude or
partially nude photographs. But after the confrontation with Rebecca’s mother and
step-father, he deleted the photos. Defendant denied having sex with Rebecca. After
the interview, defendant submitted to a cheek scraping for the collection of his DNA.
At trial, a certified Sexual Assault Nurse Examiner (SANE) with Novant
Health testified about her examination of Rebecca. On 29 June 2013, the nurse
collected specimen samples from Rebecca for a rape kit and recorded Rebecca’s
medical history. In testimony admitted for the purpose of corroboration, the SANE
nurse testified to the statement Rebecca gave in her medical history regarding the
events which brought her to the motel room on 28 June and the conduct that occurred
inside. The testimony was substantially similar to Rebecca’s trial testimony.
The last witness the State called was a DNA analyst working with the
Charlotte Mecklenburg Police Crime Lab. Prior to her testimony, the trial court
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Opinion of the Court
heard ex parte arguments, out of the presence of the jury and the prosecutor, from
defendant and his trial counsel to resolve an impasse regarding a proposed line of
questioning intended for cross-examination. The trial court ruled in favor of
defendant’s trial counsel, and the trial resumed.
DNA analyst Aby Moeykens, with the Charlotte Mecklenburg Police Crime
Lab, had been a DNA analyst for twelve years and after stating her credentials was
accepted without objection as an expert in DNA analysis and forensic DNA analysis.
Moeykens testified that she “was asked to analyze a buccal standard from [defendant]
and . . . [a] buccal standard from [Rebecca], vaginal swabs, external genitalia swabs,
crotch with stains from the underpants, . . . [as well as] fingernail swabs.” “[T]he
DNA profile obtained from [defendant] matched the major DNA profile obtained from
the vaginal swabs.” Moeykins testified that the probability of selecting another
individual who would match the DNA profile was “approximately 1 in 2.54
quadrillion.” Moeykens further testified that defendant’s DNA profile matched the
DNA profile obtained from sperm cell fractions taken from Rebecca’s external
genitalia, as well as her underwear.
Defendant did not present any evidence.
The jury returned guilty verdicts against defendant as charged: two counts of
statutory rape; and two counts of indecent liberties with a child. In accordance with
the jury verdicts, the trial court entered a consolidated judgment against defendant
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Opinion of the Court
on the charges of one count of statutory rape and one count of indecent liberties with
a child, imposing an active sentence of 240 to 348 months and a second consolidated
judgment reflecting the remaining counts of those charges, imposing a sentence of
150 to 240 months, to be served consecutively. Defendant appeals.
_____________________________________________
On appeal, defendant raises two issues: whether the trial court erred by (I)
settling an impasse between defendant and defense counsel in favor of defense
counsel; and (II) denying defendant’s request for an instruction on mistake of age as
well as consent.
I
Defendant first argues the trial court erred by ruling that defense counsel’s
trial strategy determined whether a witness would be cross-examined despite
defendant’s objection to counsel’s strategy. Defendant contends that the trial court’s
ruling violated his Sixth Amendment right to assistance of counsel and on the
evidence presented before the trial court, entitles defendant to a new trial. We
disagree.
Standard of review
We note defendant contends that our standard of review is de novo, while the
State seems to argue the standard is abuse of discretion. As defendant raises a
constitutional issue, we will review the matter de novo. State v. Whitaker, 201 N.C.
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App. 190, 192, 689 S.E.2d 395, 396 (2009) (“The standard of review for questions
concerning constitutional rights is de novo.” (citation and quotation marks omitted)),
aff'd, 364 N.C. 404, 700 S.E.2d 215 (2010).
Analysis
In our review of the issue, we find guidance from our Supreme Court in State
v. Ali, 329 N.C. 394, 407 S.E.2d 183 (1991). At trial, the defendant and his trial
counsel reached an impasse during jury voir dire. Namely, the defendant wanted to
accept a juror that counsel recommended be excused. Ali, 329 N.C. at 402, 407 S.E.2d
at 188–89. Out of the presence of the jury and for the record, trial counsel noted his
exception to the juror, but speaking for the defendant, accepted the juror. Id. at 402,
407 S.E.2d at 188–89. Following his conviction, the defendant appealed, arguing that
his trial counsel should have made the final determination as to whether the juror
would be accepted, and that trial counsel’s failure to make that determination
deprived the defendant of his Sixth Amendment right to counsel. Id. Our Supreme
Court noted that “[t]he attorney-client relationship ‘rests on principles of agency, and
not guardian and ward.’ ” Id. at 403, 407 S.E.2d at 189 (quoting State v. Barley, 240
N.C. 253, 255, 81 S.E.2d 772, 773 (1954)). The Ali Court acknowledged the prior
holding of this Court while clarifying the duty of an attorney who reaches an impasse
with the client, as to tactical trial strategy.
[T]actical decisions, such as which witnesses to call,
“whether and how to conduct cross-examinations, what
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jurors to accept or strike, and what trial motions to make
are ultimately the province of the lawyer . . . .” State v.
Luker, 65 N.C. App. 644, 649, 310 S.E.2d 63, 66 (1983),
aff'd as to error, rev'd as to harmlessness of error, 311 N.C.
301, 316 S.E.2d 309 (1984). However, when counsel and a
fully informed criminal defendant client reach an absolute
impasse as to such tactical decisions, the client's wishes
must control; this rule is in accord with the principal-agent
nature of the attorney-client relationship.
Id. at 404, 407 S.E.2d at 189 (alteration in original). In such a conflict, the Ali Court
recommended that the attorney make a record of the circumstances, her advice to the
defendant, her reasons for the advice, the defendant’s decision, and the conclusion
reached. Id.; accord State v. Floyd, 238 N.C. App. 110, 125-26, 766 S.E.2d 361, 372–
73 (2014) (holding the defendant was entitled to a new trial where an impasse was
reached between the defendant and his trial counsel as to the extent of cross-
examination, the trial court failed to inquire into the nature of the impasse or rule on
the dispute, and on appeal, the State failed to assert that the violation was harmless
error), review allowed, writ allowed, ___ N.C. ___, 771 S.E.2d 295 (2015).
Given this procedure, we note that this Court has held that despite a conflict,
trial counsel is not compelled to pursue strategy or tactical decisions based on
frivolous or unsupported claims.
[The] [d]efendant in this case sought to have his attorneys
follow instructions to present claims that they felt “ha[d]
no merit.” Thus, the impasse was not over “tactical
decisions,” but rather over whether [the] Defendant could
compel his counsel to file frivolous motions and assert
theories that lacked any basis in fact. Nothing in Ali or our
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Sixth Amendment jurisprudence requires an attorney to
comply with a client's request to assert frivolous or
unsupported claims. In fact, to do so would be a violation
of an attorney's professional ethics: “A lawyer shall not
bring or defend a proceeding, or assert or controvert an
issue therein, unless there is a basis in law or fact for doing
so that is not frivolous . . . [.]” N.C. St. B. Rev. R. Prof.
Conduct 3.1 (emphasis added).
State v. Jones, 220 N.C. App. 392, 395, 725 S.E.2d 415, 417 (2012) (alteration in
original).
Here, we consider whether defendant’s direction to his trial counsel to cross-
examine the State’s DNA expert on the extent of a mold contamination in the testing
laboratory amounted to a tactical decision or a frivolous act.
[Defense Counsel]: What the issue is in this case, the State
is going to be calling a DNA expert on this matter and that
expert's going to be testifying to the results of some
laboratory tests that were performed in the Charlotte
Mecklenburg Police Department laboratory. As part of the
Discovery, the State disclosed that there had been
contamination of a freezer in the laboratory with mold and
that mold was found in the vicinity of and apparently on
some DNA samples. They took quality control steps to
determine whether there was actual contamination and
they did not find any and they informed the effected [sic]
parties, the defense counsel, of the contamination issue.
...
Normally saying that there could be errors is not relevant
unless you have evidence of errors. Now, in this case
something did happen, but it is my concern that there is
nothing from what I see of the DNA electropherogram, the
actual results, to indicate that there was any damage in
this case. And by the way, if DNA is degraded there is a
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characteristic pattern that appears, it's called a ski slope,
and [I] did not see that. The larger pieces of DNA are going
to get damaged first, we don't see that in this case. So it's
not just that the results were there, the normal signs of
degradation aren't even there. . . .
...
THE COURT: . . . Now, does your client care to be heard
with regard to this?
THE DEFENDANT: Your Honor, my question was
basically surrounding the fact that they had to prove their
case beyond a reasonable doubt and I feel like if there is
any doubt surrounding the DNA then that should be heard
by the jury. . . .
Denying defendant’s request to compel his trial counsel to examine the State’s
DNA expert regarding the contamination reported in the lab’s freezer, the trial court
made the following remark: “[Defense counsel] has an obligation not to -- as he
indicated, I think I've alluded to and I certainly agree with him, that raising an issue
that is not an issue just when you know it's not an issue is improper.” This reasoning
and ruling by the trial court in the instant case is in line with the Court’s reasoning
in Jones. 220 N.C. App. at 395, 725 S.E.2d at 417 (“Nothing in Ali or our Sixth
Amendment jurisprudence requires an attorney to comply with a client's request to
assert frivolous or unsupported claims. In fact, to do so would be a violation of an
attorney's professional ethics[.]”).
On the record before us, it appears that the proposed challenge to the DNA
analysis performed by the Charlotte Mecklenburg Police Crime Lab on the basis of
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Opinion of the Court
contamination was not a challenge rooted in relevant facts. Rather, the matter was
properly considered one which is governed by rules of professional ethics for
attorneys. The trial court properly denied defendant’s request to compel trial counsel
to pursue a line of questioning to elicit irrelevant facts. See id. Accordingly,
defendant’s argument is overruled.
Moreover, even were we to presume the trial court erred by failing to instruct
defense counsel to cross-examine the State’s forensic DNA expert in the manner
directed by defendant, such error would be harmless in light of the other
overwhelming evidence of defendant’s guilt.
“A violation of the defendant's rights under the Constitution of the United
States is prejudicial unless the appellate court finds that it was harmless beyond a
reasonable doubt. The burden is upon the State to demonstrate, beyond a reasonable
doubt, that the error was harmless.” N.C. Gen. Stat. § 15A-1443(b) (2015). “This
Court has previously applied harmless error analysis to constitutional errors arising
under Article I, Section 24[, Right of jury trial in criminal cases].” State v. Bunch,
363 N.C. 841, 845, 689 S.E.2d 866, 869 (2010). “On a general level, an error is
harmless beyond a reasonable doubt if it did not contribute to the defendant's
conviction. The presence of overwhelming evidence of guilt may render error of
constitutional dimension harmless beyond a reasonable doubt.” Id. at 845–46, 689
S.E.2d at 869 (citation, quotation marks, and brackets omitted).
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In its brief to this Court, the State argues there was overwhelming evidence of
defendant’s guilt on the charges of indecent liberties and statutory rape sufficient to
render harmless beyond a reasonable doubt any potential violation of defendant’s
right to counsel. We agree.
The evidence presented at trial included defendant’s handwritten statement to
a Charlotte Mecklenburg Police Officer admitting that he was born in 1972; that, on
28 June 2016, he met Rebecca at a local restaurant, then drove her to a motel on
Nations Ford Road; and that he took at least fifteen nude and partially nude pictures
of Rebecca. Rebecca was born in 1998 and was fourteen years of age on 28 June 2016.
Her testimony, describing how she met defendant and many of the events occurring
on 28 June, was consistent with defendant’s statement. Additionally, Rebecca
testified that defendant provided her with grape juice mixed with vodka. A bottle of
Smirnoff Vodka was recovered from defendant’s black Durango SUV, parked in the
motel parking lot on Nations Ford Road. Rebecca testified that after providing her
with the grape juice and vodka, defendant undressed her, kissed and fondled her
body, performed cunnilingus, and had sexual intercourse with her two times. Rebecca
testified that defendant told her he ejaculated during sexual intercourse.
Q. Did you -- when you were 14, did you know what
ejaculated meant?
A. No.
...
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Q. Did you use that green washcloth to wash yourself?
A. I did.
Q. Did you see anything on the washcloth?
A. It was like a little bit of blood and some white,
whitish clearish stuff on there.
Rebecca testified that she was in defendant’s motel room for three to four hours. The
next day, Rebecca was taken to Novant Health where her clothes were collected and
specimen swabs were taken from her body. The SANE nurse, who collected evidence
from Rebecca took a history from Rebecca during the examination. The nurse
testified to the history Rebecca provided detailing the events which had occurred,
including two separate acts of sexual intercourse, cunnilingus, and having nude
photographs taken. The nurse corroborated that Rebecca’s underwear were collected
and that the nurse took external and internal swabs of Rebecca’s vagina for the rape
kit. A criminalist with the Charlotte Mecklenburg Police Department testified
extensively regarding the scientific testing she performed on physical evidence
collected in the rape kit from which she found the presence of sperm and saliva on
vaginal swabs taken from Rebecca’s body.
The DNA analyst compared the DNA profile from Rebecca to defendant's DNA
profile and determined that the DNA profile obtained from defendant matched the
DNA profile obtained from the vaginal swabs, as well as external genitalia swabs,
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taken from Rebecca. The analyst further testified that the statistical calculation on
the match from the vaginal swab and from the external genitalia swabs was the
same—1 in 2.54 quadrillion.
We note that even if on cross-examination of the forensic DNA expert, defense
counsel had challenged the integrity of the DNA sample on the basis of
contamination, the DNA evidence would have still been admissible, as such
challenges go to the weight, not the admissibility, of the evidence. See State v.
Pennington, 327 N.C. 89, 101, 393 S.E.2d 847, 854 (1990) (“The admissibility of any
such [DNA] evidence remains subject to attack. . . . [T]raditional challenges to the
admissibility of evidence such as the contamination of the sample . . . may be
presented. These issues relate to the weight of the evidence.”). Defendant did not
present any evidence that the DNA samples tested in his case were contaminated.
Even presuming the trial court’s failure to resolve the impasse between trial
counsel and defendant in defendant’s favor amounted to a violation of defendant’s
Sixth Amendment right to counsel, the other overwhelming evidence of defendant’s
guilt on the two counts of statutory rape of a person thirteen, fourteen, or fifteen years
old and two counts of taking indecent liberties with a child would render even the
constitutional error harmless beyond a reasonable doubt. See Bunch, 363 N.C. at
845–46, 689 S.E.2d at 869 (“[T]he presence of overwhelming evidence of guilt may
render error of constitutional dimension harmless beyond a reasonable doubt.”
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(citation and quotation marks omitted)). Accordingly, defendant’s argument is
overruled.
II
Next, defendant argues that the trial court erred by denying his request for
instructions on “mistake of age” and consent as defenses. Despite this argument,
defendant acknowledges the precedent of this Court to the contrary, see State v.
Anthony, 351 N.C. 611, 616, 528 S.E.2d 321, 323 (2000) (“Where the age of the victim
is an essential element of the crime of rape, as in N.C.G.S. § 14–27.2(a)(1) and its
predecessor statute N.C.G.S. § 14–21, the result is a strict liability offense . . . [:]
Consent is no defense[.]” (citation and quotation marks omitted)); State v. Browning,
177 N.C. App. 487, 491–92, 629 S.E.2d 299, 303 (2006) (“Statutory rape, under
N.C.G.S. § 14–27.7A is a strict liability crime. Criminal mens rea is not an element of
statutory rape. . . . [A] mistake of fact is no defense to statutory rape.” (citations and
quotation marks omitted)); State v. Sines, 158 N.C. App. 79, 86, 579 S.E.2d 895, 900
(2003) (“The defendant was not required to have knowledge that the victim was under
the age of consent in order to be convicted of attempted rape of a child.” (citation
omitted)). Defendant submits this argument simply to preserve the argument should
the law allow for such defenses in the future. Accordingly, we do not further consider
this argument.
NO ERROR.
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Judges TYSON and INMAN concur.
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