State v. Todd

892 S.E.2d 240

STATE of North Carolina v. Paris Jujuan TODD, Defendant.

No. COA22-680

Court of Appeals of North Carolina.

Filed September 12, 2023

Attorney General Joshua H. Stein, by Assistant Attorney General Caden William Hayes, for the State.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Anne M. Gomez, for defendant-appellant.

STROUD, Chief Judge.

Defendant Paris Jujuan Todd appeals, by a previously granted writ of certiorari, from an order denying his motion for appropriate relief ("MAR") on the ground Defendant failed to show his appellate counsel provided ineffective assistance of counsel. Because Defendant cannot show his appellate counsel deficiently performed and therefore cannot demonstrate ineffective assistance of counsel, we affirm the trial court's denial of Defendant's MAR.

I. Background

On appeal from the denial of his MAR, Defendant argues his appellate counsel was ineffective for failing to raise a sufficiency of the evidence issue in his direct appeal. To determine whether appellate counsel was ineffective for failing to raise an argument the evidence at trial was insufficient, we need to consider the strength of the sufficiency argument. See State v. Casey , 263 N.C. App. 510, 521, 823 S.E.2d 906, 914 (2019) (stating "failing to raise a claim on appeal that was plainly stronger than those presented to the appellate court is deficient performance" (emphasis in original) (citing Davila v. Davis , 582 U.S. 521, 533, 137 S.Ct. 2058, 2067-68, 198 L.Ed.2d 603, 615 (2017) ); see also State v. Todd , 369 N.C. 707, 711, 799 S.E.2d 834, 837 (2017) (" Todd III ") (indicating deficient performance and prejudice are the two requirements "for a successful ineffective assistance of counsel claim"); State v. Blackmon , 208 N.C. App. 397, 403, 702 S.E.2d 833, 837 (2010) (holding the defendant could not show prejudice as part of an ineffective assistance of counsel claim because the State presented sufficient evidence he was the perpetrator). Therefore, we start by recounting what the State's evidence tended to show at trial.

This Court's decision in Defendant's direct appeal, State v. Todd , No. COA13- 67, 229 N.C. App. 197, 749 S.E.2d 113 (2013) (" Todd I ") (unpublished), provides many of the relevant facts here, and we supplement that discussion with more facts from the trial transcript relevant to Defendant's appeal from the denial of his MAR. The Todd I Court recounted the basics facts of the case as follows:

Shortly before midnight on 23 December 2011, the Raleigh Police Department responded to a report of an armed robbery at 325 Buck Jones Road. Upon arrival, George Major (the "victim") informed police that, as he was walking home from work, an unknown African-American male approached him from behind, placed his hand on his shoulder, told him to get on the ground if he did not want to be hurt, and then forced him to the ground on his stomach. Once victim was on the ground, a second unknown African-American male approached and held victim's hands while the original assailant went through victim's pockets and felt around victim's clear plastic backpack. As the assailants prepared to flee, they ordered victim to remain facedown on the ground until he counted to 200 because they "didn't want to shoot him." Victim complied until he could no longer hear the assailants’ footsteps. The assailants took victim's wallet containing an identification card, credit cards, and a small velvet drawstring bag containing change.

During the police investigation, Stacey Sneider of the City–County Identification Bureau was dispatched to assist in processing the backpack for fingerprints. During her analysis, Sneider collected two fingerprints from the backpack, one of which was later determined to be ... [D]efendant's right middle finger. As a result, a warrant was issued for [D]efendant's arrest.

Todd I , slip op. at 2-3 (brackets altered).

"On 18 January 2012, Officer Potter of the Raleigh Police Department stopped [D]efendant for illegal tint on his car's windows near the scene of the robbery. During the stop, Officer Potter came across [D]efendant's outstanding warrant and arrested [D]efendant." Id. , slip op. at 3. Specifically, Defendant was arrested as he went into a dead end about 300 yards from the scene of the robbery. The arrest location was also in the same direction that one assailant ran after the robbery.

Following his arrest, Officer Potter brought Defendant for an interview with the officer investigating the robbery, Detective Codrington. During this interview, Defendant denied he lived at an address on the same street on which he was arrested, which was only 300 yards from the robbery, and Defendant instead said he lived in a different town.

Defendant was indicted for robbery with a dangerous weapon and conspiracy to commit robbery with a dangerous weapon on 8 April 2012. Todd I , slip op. at 3. Following a continuance, Defendant's trial was set to begin on 12 June 2012. Id. The day before trial, "the State received a copy of the fingerprints" and "provided them to defense counsel that same day." Id. The State had already provided defense counsel with its forensic report showing "[D]efendant's fingerprints were located at the scene of the crime" in January 2012. Id. After receiving a copy of the fingerprints the day before trial, "defense counsel stated that she was prepared to go to trial," but "she requested a continuance in order for her to obtain an expert to analyze the fingerprints." Id. "No affidavit was attached to counsel's unsigned motion, which neither indicated the expert she planned to call nor what testimony the expert would offer." Id. , slip op. at 3-4. The trial court denied Defendant's motion for a continuance. Id. , slip op. at 4.

At trial, the State's witnesses included: the victim of the robbery; an officer who spoke with the victim the night of the robbery; Agent Sneider who collected the fingerprints off the backpack; a "fingerprint expert[,]" id. , slip op. at 4 ; Officer Potter who arrested Defendant, id. , slip op. at 3 ; and Detective Codrington who investigated the robbery and interviewed Defendant. As relevant to the denied continuance motion, "Defendant's counsel was prepared to rebut the State's expert's testimony, and she cross-examined [the fingerprint expert] on various weaknesses in the fingerprint identification." Id. , slip op. at 4. At the close of the State's evidence, Defendant moved to dismiss on the grounds the State had "not proven their case." The trial court denied the motion to dismiss. After Defendant said he would not present any evidence and renewed his motion to dismiss at the close of all the evidence, the trial court again denied the motion to dismiss.

"On 14 June 2012, the jury found [D]efendant guilty of robbery with a dangerous weapon. The trial court entered judgment on the verdict, sentencing defendant to a term of 84 to 113 months’ [sic] imprisonment. Defendant gave oral notice of appeal in open court." Todd I , slip op. at 4.

On appeal, Defendant's appellate counsel argued two issues: "(1) the trial court erred when it denied [D]efendant's motion for a continuance made on the first day of trial, and alternatively, (2) [Defendant] received ineffective assistance of trial counsel" because trial counsel "should have called an expert to produce testimony[.]" See id. , slip op. at 12-13 (describing Defendant's ineffective assistance of counsel argument as a "vague assertion"). Defendant's appellate counsel raised no argument about the sufficiency of the evidence identifying him as the perpetrator of the robbery. As to the continuance and ineffective assistance of trial counsel arguments Defendant actually raised in his direct appeal, this Court held the trial court did not err and Defendant did not receive ineffective assistance of trial counsel. Id. , slip op. at 13.

On or about 23 September 2014, Defendant filed a MAR alleging ineffective assistance of appellate counsel. Specifically, Defendant argued his appellate counsel was ineffective "in failing to argue that the case should have been dismissed for lack of evidence" based on State v. Irick , 291 N.C. 480, 231 S.E.2d 833 (1977) and its progeny. (Capitalization altered.) Based on Irick , Defendant argued "for fingerprint evidence standing alone to withstand a motion to dismiss, there must be ‘substantial evidence of circumstances from which the jury can find that the fingerprints could only have been impressed at the time the crime was committed.’ " (Emphasis in original) (Quoting Irick , 291 N.C. at 491-92, 231 S.E.2d at 841 ). Defendant contended (1) the fingerprint evidence in his case stood alone and (2) the State did not present substantial evidence the fingerprint could only have been impressed when the crime was committed. The MAR court "summarily denied" Defendant's MAR.

After granting Defendant's petition for a writ of certiorari, this Court heard an appeal of the denial of Defendant's MAR in State v. Todd , 249 N.C. App. 170, 790 S.E.2d 349 (2016) (" Todd II "), rev'd Todd III , 369 N.C. 707, 799 S.E.2d 834. The Todd II Court reversed the denial of the MAR because "the State presented insufficient evidence that [D]efendant committed the underlying offense, and if [D]efendant's appellate counsel had raised this issue in the initial appeal, [D]efendant's conviction would have been reversed." Todd II , 249 N.C. App. at 191, 790 S.E.2d at 364. As a result, the Todd II Court remanded for an order granting Defendant's MAR and vacating his conviction. Id. Judge Tyson dissented on the ground the State had presented sufficient evidence and thus Defendant failed to show his appellate counsel's performance was deficient. Id. at 193, 790 S.E.2d at 365 (Tyson, J. Dissenting).

Our Supreme Court then issued an opinion, based on the State's appeal from Todd II , in Todd III . See Todd III , 369 N.C. at 709, 799 S.E.2d at 836 (indicating State took appeal). The...