State v. Ward

250 N.C.App. 254

792 S.E.2d 579

STATE of North Carolina

v.Stephen Lamont WARD

No. COA16–52

Court of Appeals of North Carolina.

Filed: November 1, 2016

Attorney General Roy Cooper, by Assistant Attorney General Jill A. Bryan, for the State.

Tarlton Law PLLC, by Raymond C. Tarlton, Raleigh, 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, 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 Rebecca^{1 ,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 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.

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 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." Moeykens 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 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.

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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.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 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

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