State v. Walker

898 S.E.2d 661

STATE of North Carolina

v.Kenneth Louis WALKER

No. 202PA22

Supreme Court of North Carolina.

Filed March 22, 2024

On writ of certiorari pursuant to N.C.G.S. § 7A-32(b) to review a unanimous, unpublished opinion of the Court of Appeals, No. COA21-535 (N.C. Ct. App. June 7, 2022), affirming an order entered on 8 April 2020 by Judge Paul C. Ridgeway in Superior Court, Wake County, denying defendant’s motion for appropriate relief. Heard in the Supreme Court on 1 November 2023.

Joshua H. Stein, Attorney General, by Benjamin Szany, Assistant Attorney General, for the State-appellee.

Glenn Gerding, Appellate Defender, by Katy Dickinson-Schultz, Assistant Appellate Defender, for defendant-appellant.

BARRINGER, Justice.

In this case, we are tasked with determining whether the Court of Appeals properly dispensed with defendant’s ineffective assistance of counsel claim and motion for appropriate relief (MAR). For the following reasons, we affirm.

I. Background

On 22 October 1909, defendant was convicted of first-degree murder and sentenced to life imprisonment without parole. On appeal, defendant’s attorney filed an Anders brief, see Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L,Ed.2d 493 (1967), and the Court of Appeals found no error at trial.

Over two decades later, defendant filed a pro se MAR on 1 April 2020. Defendant raised, for the first time, that his trial counsel had not informed him of his right to testify, denied him the opportunity to testify, and prevented him from testifying despite defendant’s desire to do so. Defendant also claimed that the trial court erred in limiting the testimony of defendant’s expert witness, a forensic psychiatrist. Further, he alleged he had been denied effective assistance of appellate counsel because his counsel filed an Anders brief. The trial court denied the MAR because defendant had "not shown that he was unable, at the time of his appeal, to raise the issues he now raises in his present [MAR]."

The Court of Appeals reviewed 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. Walker, No. COA21-535, slip op. at 4, 2022 WL 2046873 (N.C. Ct. App. June 7, 2022) (unpublished) (quoting State v. Peterson, 228 N.C. App. 339, 343, 744 S.E.2d 153 (2013)); see also State v. Stevens, 305 N.C. 712, 720, 291 S.E.2d 585 (1982). However, when it recounted the standard of review for an MAR, the Court of Appeals failed to state that review is "in the light most favorable to [defendant]," which was first established in an opinion of this Court published in August 2021. See State v. Allen, 378 N.C. 286, 296, 861 S.E.2d 273 (2021).

IL Standard of Review

[1] Questions of law are reviewed de novo. State v. Thomsen, 369 N.C. 22, 24, 789 S.E.2d 639 (2016). In Allen, this Court established that the factual allegations contained in a defendant’s MAR should be reviewed "in the light most favorable to [defendant]." 378 N.C. at 296, 861 S.E.2d 273. Under Allen, for the first time in our Jurisprudential history, MARs were to be read in the light most favorable to defendants. We now return to the standard of review which existed prior to Allan—that of statutory review pursuant to N.C.G.S. § 15A-1420(c).Id. at 324, 861 S.E.2d 273 (Berger, J., dissenting).

[2] Reviewing a defendant’s asserted grounds for relief in the light most favorable to defendant is a departure from this Court’s longstanding standard of review. See, e.g., State v. McHone, 348 N.C. 254, 490 S.E.2d 761 (1998); State v. Stevens, 305 N.C. 712, 291 S.E.2d 585 (1982); Branch v. State, 269 N.C. 642, 153 S.E.2d 343 (1967); State v. Graves, 251 N.C. 550, 112 S.E.2d 85 (1960); Miller v. State, 237 N.C. 29, 74 S.E.2d 513, cert. denied, 345 U.S. 930, 73 S.Ct, 792, 97 L.Ed. 1360 (1953). The mere fact that some ground for relief is asserted does not entitle defendant to a hearing or to present evidence. McHone, 348 N.C. at 256, 499 S.E.2d 761. An MAR court need not conduct an evidentiary hearing if a defendant’s MAR offers insufficient evidence to support his claim or only asserts general allegations and speculation. N.C.G.S. § 15A-1420 (2023); see State v. Harris, 338 N.C. 129, 143, 449 S.E.2d 371 (1994), cert. denied, 514 U.S. 1100, 115 S.Ct. 1833, 131 L.Ed.2d 752 (1995).

Although the dissent argues that we are overruling a standard which Allen did not prescribe, the Court of Appeals has expressed uncertainty on how to approach Allen. In State v. Ballard, for example, the concurrence voiced concern over the "novel precedent set out in Allen." 283 N.C. App. 236, 250, 872 S.E.2d 557 (2022) (Griffin, J., concurring). The concurrence further wrote that Allen is not supported by our jurisprudence nor the text of the North Carolina General Statutes. Id. The holding in Allen "clearly frustrates the plain language of the statute, takes away discretion from our trial judges, and shows a need for our Supreme Court to revisit its holding." Id. Despite the arguments made by our dissenting colleagues, the Court of Appeals has highlighted the continuing issues caused by Allen. We now correct these issues.

[3–5] In the present case, defendant made ineffective assistance of counsel allegations against both his trial and appellate counsel. The right to effective assistance of counsel is guaranteed by the Sixth Amendment to the United States Constitution. State v. Braswell, 312 N.C. 553, 561, 324 S.E.2d 241 (1985). When asserting that counsel is ineffective, defendant must show that their counsel fell "below an objective standard of reasonableness." Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To do so, defendant must first show that "counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment." Id. at 687, 104 S.Ct. 2052. Second, defendant must show that "counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. "Thus, both deficient performance and prejudice are required for a successful ineffective assistance of counsel claim." State v. Todd, 369 N.C. 707, 711, 799 S.E.2d 834 (2017).

III. Analysis

[6] Defendant argues that his trial counsel refused to allow him to testify, despite his desire to testify. However, the record does not support defendant’s argument. Defendant knew of his right to testify, as evidenced by the trial court’s colloquy with defendant.

THE COURT: [Defendant], do you understand, sir, you have the right to remain silent, you don’t need to make any statement at this point.

THE DEFENDANT: Yes, sir.

THE COURT: And you understand that you’re charged here today with first degree murder allegedly occurring on November 14, 1998, in which you were charged with malice … [a]forethought, premeditation, murdering one Stephanie V. Keith. Do you understand that you’re charged with that, sir?

THE DEFENDANT: Yes, sir.

THE COURT: State is calling this as a first degree murder case.

THE DEFENDANT: Yes, sir.

THE COURT: Your attorneys advised me, sir, that they don’t intend to contest certain aspects of that charge; that is to say they anticipate that they would not contest that decedent Ms. Keith was, in fact, shot by you and that she died as a result thereof. Have they discussed that with you prior to trial?

THE DEFENDANT: Yes, sir.

THE COURT: And you understand that they don’t want to contest those two aspects on your behalf.

THE DEFENDANT: Yes, sir.

THE COURT: That is, they’re not pleading guilty to any particular offense at this point on your behalf, but they don’t intend to contest the fact that she was shot and that you were the person that shot her. Have they discussed that with you, sir?

THE DEFENDANT: Yes, sir.

THE COURT: Have you given them your specific permission to do that during the course of the trial?

THE DEFENDANT: Yes, sir.

THE COURT: Any other questions or concerns about that issue at this point?

THE DEFENDANT: No, sir.

THE COURT: All right. Be seated.

Contrary to his arguments to this Court, defendant stated, through counsel, to the trial court that he "ha[d] not made a decision yet on whether [he] will testify or not." At no point during trial did defendant indicate he wished to testify.

The only suggestion that defendant wished to testify is contained within defendant’s MAR. Furthermore, nothing in the record supports defendant’s argument. Defendant has not shown that he intended to testify at trial nor that his trial counsel’s conduct fell below an objective standard of reasonableness. Accordingly, he has failed to meet his burden. The Court of Appeals correctly determined that defendant’s ineffective assistance of trial counsel claim is without merit.

[7, 8] Defendant further contends that his appellate counsel was ineffective for failing to challenge the trial court’s limitation on defendant’s forensic psychologist expert witness, Dr. Holly Rogers. In advancing this argument, defendant filed a Motion to Take Judicial Notice, requesting this Court take judicial notice of the prior appellate filings in his case. Judicial notice of the appellate filings is proper, and therefore, defendant’s motion is allowed. See In re McLean Trucking Co., 285 N.C. 552, 557, 206 S.E.2d 172 (1974); N.C.G.S. § 8C-1, Rule 201 (2023).

[9, 10] An expert may not "testify to a particular legal conclusion or that a legal standard has or has not been met." State v. Fisher, 336 N.C. 684, 703-04, 445 S.E.2d 866 (1994). The trial court’s ruling on whether expert testimony shall be admitted "will not be reversed on appeal absent a showing of abuse of discretion." E.g., State v. McGrady, 368 N.C. 880, 893, 787 S.E.2d 1 (2016) (quoting Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 458, 597 S.E.2d 674 (2004)).

In this case, the trial court prohibited Dr. Rogers from using legal terminology...