State v Surratt
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NO. COA11-239 NORTH CAROLINA COURT OF APPEALS Filed: 18 October 2011 STATE OF NORTH CAROLINA, v. Forsyth County No. 09CRS54539-41 HEATHER R. SURRATT, Defendant. Appeal by defendant from judgments and order entered on or about 22 September 2010 by Judge Ronald E. Spivey in Superior Court, Forsyth County. Heard in the Court of Appeals 15 September 2011. Attorney General Roy A. Cooper, III, by Assistant Attorney General David Gordon, for the State. Mark Montgomery, for defendant-appellant. STROUD, Judge. Defendant appeals her convictions for two counts of felony child abuse - sexual act, two counts of indecent liberties with a child, and two counts of first degree sex offense with a child, counsel. arguing that she received ineffective assistance of For the following reasons, we conclude that defendant did receive ineffective assistance of counsel, and we order she receive a new trial. -2I. Background The State s evidence tended to show that in 2005, defendant forced Jenny1, her biological minor daughter, to touch inside her vagina with her fingers. On another occasion, defendant also made Jenny lick her vagina. On or about 20 July 2009, defendant was indicted for two counts of felony child abuse - sexual act ( child abuse ), two counts of indecent liberties with a child ( indecent liberties ), and two counts offense with a child ( sex offense ). jury and found guilty of all of of first degree sex Defendant was tried by a the charges against her. Defendant was determined to have a prior record level of II and was sentenced consecutively to 24 to 38 months imprisonment for the child abuse and indecent liberties convictions and 250 to 309 months for the sex offense convictions. Defendant was also placed on satellite-based monitoring for the remainder of her life. Defendant appeals. II. Ineffective Assistance of Counsel In a previous hearing before the district court regarding a Department of Social Services petition for abuse, neglect, and dependency, 1 the district court concluded that defendant s A pseudonym will be used to protect the identity of the child. -3children were not sexually abused but were neglected.2 Before testimony in defendant s trial began, the trial court grant[ed] the [State s] motion in limine excluding specific references to or [sic] the outcome of any previous DSS hearing. Defendant s attorney did not object. During worker in defendant s Child trial, Protective Ms. Tina Services Wallace, with a social Davidson County Department of Social Services[,] testified that she interviewed defendant s family. Ms. Wallace discussed the allegations of sexual abuse made by Jenny and her interview with two of Jenny s siblings regarding what Jenny had told them. Ms. Wallace then testified that DSS removed defendant s children from the home and placed them with another family. Defendant now contends that she received ineffective assistance of counsel, particularly because [t]he jury should have . . . heard that th[e] removal was solely on the basis of neglect, not the sexual abuse alleged by Jenny. North Carolina has adopted the federal standard for ineffective assistance of counsel; this standard consists of a two2 The district court s decision regarding the abuse, neglect, and dependency proceeding is not part of our record on appeal. However, it is clear from statements of counsel for both the State and defendant to the trial court that the district court concluded that defendant s children were neglected but not sexually abused. -4part 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 errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable. State v. Brown, ___ N.C. App. ___, ___, 713 S.E.2d 246, 248 (2011) (citation, quotation marks, and ellipses omitted). After a thorough reading of the transcript, it is clear that defendant s children were placed in foster care after the investigation regarding Jenny s allegations; it is also evident that from Ms. Wallace s testimony the jury would have thought that the children were removed from their home due to those allegations; this Court would have believed the same thing, if we did not know that the district court removed the children based upon neglect. The jury did not hear any evidence -5regarding neglect or why the children were actually removed from their home; they only heard about the sexual abuse allegations. In State v. Martinez, the [d]efendant first argue[d] the trial court erred in admitting DSS social worker Putney s testimony that she substantiated Nadia s 2006 claim of sexual abuse by Defendant. testimony was an Defendant contend[ed] the admission of this error victim s credibility. 789 (2011). of law as it unfairly bolstered the ___ N.C. App. ___, ___, 711 S.E.2d 787, This Court stated: In State v. Giddens[, 199 N.C. App. 115, 681 S.E.2d 504 (2009), aff d per curiam, 363 N.C. 826, 689 S.E.2d 858 (2010),] this Court concluded similar testimony to be an impermissible expression of opinion as to the credibility of the accuser. At issue in Giddens was the testimony by a DSS investigator that he substantiated the victim s sexual abuse allegation after an investigation into the claim. Because the investigator s testimony was based, in part, on the DSS investigation and not solely on the children s accounts of what happened, the Court rejected the State s argument that the testimony was a prior consistent statement and merely corroborated the victims testimony. Rather, the testimony amounted to an impermissible voucher of the victims credibility. The Giddens Court concluded the investigator s testimony, that DSS substantiated the allegations of sexual abuse, essentially told the jury that DSS determined the defendant was guilty of sexually abusing the victims and the trial -6court erred in admitting the testimony. The State argues the present case is distinguishable. In Giddens, the State s witness testified to the thorough nature of the investigation that led DSS to conclude the victims allegation was substantiated. Here, Putney did not testify to the thoroughness of the DSS investigation, but merely stated that DSS substantiated the claim after conducting an investigation. On this basis, the State contends it would be disingenuous to equate the present case with the facts of Giddens. We cannot agree. In Giddens, the DSS investigator testified that her investigation included a global assessment, in which she inquired about more than the child s specific allegations, but also inquired as to the child s mental needs and supervision. Based on this information, the DSS investigator stated she had no information to substantiate that the child s other caregivers were abusive or neglectful. We cannot conclude the testimony in the present case, that DSS substantiated Nadia s sexual abuse allegations, is any less prejudicial than the testimony in Giddens. As we explained in Giddens, although the social worker was not qualified as an expert witness, the jury likely gave the witness opinion more weight than the opinion of a lay person. The trial court erred in admitting Putney s substantiation testimony. We also note the striking similarity of the evidence in Giddens and the present case. Here, as in Giddens, there was no physical evidence of sexual abuse. The State s expert medical witness, Dr. St. Claire, testified to Nadia s non-specific genital exam results she looked like a very typical adolescent. Thus, the State s case rested solely on Nadia s testimony and additional corroborative testimony. In effect, the essential issue for the jury to -7consider was Nadia s credibility. Accordingly, we conclude there is a reasonable possibility that had Putney s testimony not been admitted, the jury would have reached a different verdict. Id. at ___, 711 S.E.2d at 789-90 (citations and quotation marks omitted). Here, as in Giddens and Martinez, there was no physical evidence of sexual abuse and [t]hus, the State s case rested solely on [Jenny] s testimony. testimony and additional Id. at ___, 711 S.E.2d at 790. corroborative Furthermore, just as in Giddens and Martinez although the social worker was not qualified as an expert witness, the jury likely gave the witness opinion more weight than the opinion of a lay person. Id. Unlike specifically Giddens testify and that Martinez, the defendant were substantiated. sexual Id. Ms. Wallace abuse did claims not against However, Ms. Wallace s testimony gave the jury the same impression, that the children were removed from their home because of sexual abuse, as the jury was told only that DSS was investigating the sexual abuse allegations and then that the children were removed from their home, without any mention of neglect or any other reason that the children could have been removed from their home. We believe Ms. Wallace s testimony was the functional equivalent of -8testimony that DSS had substantiated Jenny s allegations, thereby bolstering her credibility, which is perhaps even worse in this case than in those cases where DSS or the district court did actually find sexual abuse, as here, the district court did not remove the children based upon sexual abuse. Just as in Giddens and Martinez, we also conclude that the effect of bolstering the credibility of the one substantive witness was prejudicial. Yet See id. we testimony have not been substantively, effectiveness of asked but defendant s to to address Ms. consider counsel in both Wallace s instead the allowing such testimony and not attempting to clarify the information. As noted above, there was no physical evidence of the crimes, there were no witnesses to the alleged acts other than Jenny, and there was a long delay between the dates of the crimes and Jenny s accusations. quite likely impermissibly reached a that Under these circumstances, we believe it without bolsters different Ms. Jenny s verdict. Wallace s testimony, We testimony the conclude jury that which may failing have to challenge Ms. Wallace s testimony was deficient advocacy on the part of defendant s trial attorney which effect of prejudicing defendant s case. ultimately had the See Brown at ___, 713 -9S.E.2d at 248. As such, we conclude that defendant received ineffective assistance of counsel. III. Conclusion As we conclude that defendant received ineffective assistance of counsel, we order she receive a new trial. As defendant is receiving a new trial, we need not address her other issues on appeal. NEW TRIAL. Judges GEER and THIGPEN concur.
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