State v. Pugh

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA13-536 NORTH CAROLINA COURT OF APPEALS Filed: 21 January 2014 STATE OF NORTH CAROLINA v. Randolph County No. 97 CRS 17484 RONALD LEE PUGH Appeal by defendant from judgment entered 23 September 2010 by Judge V. Bradford Long in Randolph County Superior Court. Heard in the Court of Appeals 23 October 2013. Attorney General Roy Cooper, by Special Deputy General Danielle Marquis Elder, for the State. Attorney Appellate Defender Staples Hughes for defendant. HUNTER, Robert C., Judge. Defendant Ronald Lee Pugh appeals the judgment sentencing him to life imprisonment without parole entered upon his conviction for first degree murder on the bases of premeditation and deliberation and felony murder. arguments on appeal. Defendant puts forth two First, defendant contends that the trial court erred in failing to instruct the jury on second degree murder or, in the alternative, that his trial counsel ineffective for failing to request the instruction. was Second, -2defendant argues that because the verdict form does not specify whether the jury found defendant guilty of felony murder based on a completed rape or attempted rape, this Court cannot determine that the felony murder verdict rests unanimously on a theory supported by the evidence. After careful review, we: (1) find no error in defendant s conviction for first degree murder based on the felony murder rule; (2) determine that defendant has failed to meet his burden in establishing plain error with regard to his conviction for first degree deliberation; ineffective murder and (3) assistance on the basis conclude of of that counsel premeditation defendant s fails because claim defendant and for is unable to establish prejudice. Procedural History The procedural history of this case is substantial. In 1999, defendant was tried capitally for the murder of Wanda Coltrane ( Ms. Coltrane ). State v. Poindexter, 353 N.C. 440, 441, 545 S.E.2d 414, 415 (2001). first degree murder on the A jury found him guilty of basis of premeditation and deliberation and under the felony murder rule and recommended defendant be sentenced to death. accordingly. Id. Id. Defendant was sentenced -3In 2001, our Supreme Court reversed the conviction based on juror misconduct during the guilt-innocence phase of the trial. Id. at 444, 545 S.E.2d at 416. In 2002, defendant was retried. State v. Poindexter, 359 N.C. 287, 289, 608 S.E.2d 761, 763 (2005) ( Poindexter II ). The jury, again, found him guilty of first degree murder and felony murder and recommended a death sentence. Id. The trial court imposed a death sentence. Defendant appealed his conviction. Id. Id. While his appeal was pending, defendant filed a motion for appropriate relief ( MAR ) ineffective assistance adjudication of his with of claim our trial of mental Supreme counsel Court and retardation. alleging requesting State Poindexter, 357 N.C. 248, 248, 581 S.E.2d 762, 762 (2003). v. The Supreme Court remanded the MAR to the trial court and ordered it to conduct an evidentiary hearing on the MAR s allegations. Id. After an evidentiary hearing, the trial court entered an order denying defendant s request to be adjudicated mentally retarded and defendant s request for a new trial based on an IAC claim alleging ineffectiveness during the guilt-innocence phase of his trial. Poindexter II, 359 N.C. at 289, 608 S.E.2d at 763. However, the trial court vacated defendant s death sentence and ordered a new capital sentencing hearing based on his trial -4counsel s hearing. ineffective assistance during the 2002 sentencing Id. Our Supreme Court reviewed the trial court s order granting in part and denying in part defendant s MAR. the trial court s order sentencing hearing. Id. and remanded for Id. a It affirmed new capital Pursuant to N.C. Gen. Stat. § 15A- 2004(d), the State decided to not proceed with resentencing and accepted a life sentence for defendant. Id. at 296, 608 S.E.2d at trial 767. On defendant to 23 life September 2010, imprisonment the without court parole. sentenced Defendant s current appeal raises alleged errors that occurred in the guiltinnocence stage of his 2002 trial. Factual Background In 1997, defendant was indicted for killing Ms. Coltrane. Defendant, Ms. Coltrane, and Ms. Coltrane s husband, Willard Coltrane ( Mr. Coltrane ), had been friends for more than twenty years. The Coltranes regularly bought cocaine from defendant. On numerous 17 December times 1997, looking for both Coltranes cocaine. Ms. called defendant Coltrane picked defendant up at his house and drove to the house of Lori Hurley ( Ms. Hurley ), defendant s niece. at the time. Ms. Hurley was not at home Around noon, Jaren Hulen ( Mr. Hulen ), a pest -5exterminator, treatment. arrived at Ms. Hurley s house for a scheduled He noticed a red car parked in the driveway with the door open and engine running. Mr. Hulen knocked on the door, which heard was slightly open, and woman s voice calling for help. stirring around and a A few seconds later, defendant came to the door; Mr. Hulen reported that defendant appeared panicked, with his shirt and belt loose. Mr. Hulen heard dull thuds and another cry for help after defendant shut the door. After getting the license plate number of the car in the driveway, Mr. Hulen drove to a nearby church and called 911. Also around noon that day, Deputy Nora Walbourne ( Deputy Walbourne ) noticed a small red car parked on the shoulder of a rural road. When she stopped, the car sped off, and Deputy Walbourne lost it in pursuit. Less than twenty minutes later, Deputy Walbourne responded to the 911 call Mr. Hulen made. Soon after she arrived at Ms. Hurley s house, the red car she had pursued pulled into the driveway. asked for her help. over in the front Defendant was driving and Deputy Walbourne saw Ms. Coltrane slumped passenger seat with her throat cut. Defendant, Ms. Coltrane, and the car were covered in blood, and defendant appeared wild-eyed. -6Investigators who arrived on the scene noted that Ms. Coltrane s shirt was pulled up around her shoulder blades, and her bra was missing. home, During a subsequent search of Ms. Hurley s investigators found Ms. Coltrane s bra in the master bedroom, and it appeared to have been torn or cut off. Ms. Coltrane s jeans and underwear were partly pulled down. An autopsy revealed that Ms. Coltrane died as a result of numerous cutting injuries. across her throat. The fatal wound was a deep cut However, she also sustained numerous other injuries from either cutting or blunt force trauma to her face, left arm, abdomen, and head. external or internal assault Later, kit injury to her genital area, the sexual collected investigators Because there was no evidence of from Ms. confirmed Coltrane that Ms. was not Coltrane s analyzed. injuries occurred in Ms. Hurley s house. In his statements to Deputy Walbourne and another officer on the day of the murder, defendant claimed that two masked gunmen were waiting for him and Ms. Coltrane when they entered Ms. Hurley s house. hallway to the One of the gunmen dragged her down the bedroom. After the exterminator arrived, defendant alleged that Ms. Coltrane broke free and began yelling for help. At that point, one of the gunman cut her throat. -7After the two men ordered defendant to drive them away from the home, defendant carried Ms. Coltrane to the car because he knew she could not be left alone. Defendant dropped the men off on a country road before returning back to Ms. Hurley s house. At trial, a jailhouse informant, Larry Saunders ( Mr. Saunders ), testified that defendant told him that he and Ms. Coltrane had been riding around smoking crack and that defendant admitted to killing Ms. Coltrane after defendant tried to mess with her. After he cut her throat, defendant allegedly told Mr. Saunders that he rode around with her body looking for a place to dump it. When he arrived back at Ms. Hurley s house, the police had already arrived so he had no choice but to claim someone else had killed her. Although defendant had requested an instruction on second degree murder in his 1999 trial, instruction in his 2002 trial. he did not request this The trial court instructed the jury on first degree murder on the bases of felony murder and premeditation and deliberation. The jury found defendant guilty of first degree murder on the basis of malice, premeditation, and deliberation and based on the felony murder rule. Grounds for Appeal -8On 13 September 2012, defendant filed a petition for writ of certiorari seeking review of the 23 September 2010 judgment entered by defendant s Judge V. petition Bradford for the Long. purpose This of Court reviewing allowed the 2010 judgment which was imposed based on defendant s 2002 trial. Arguments I. Defendant s Conviction Felony Murder for First Degree Murder Based on In challenging his conviction for first degree murder on the basis of the felony murder rule, defendant argues that the trial court erred in denying insufficiency of the evidence. his motion to dismiss for Specifically, defendant contends that he is entitled to a new trial because the verdict form does not specify whether the jury found him guilty of felony murder on the basis of rape or attempted rape. Consequently, defendant alleges that the inability to determine whether jurors based the felony murder verdict on the notion of a completed rape, or not necessitates this Court vacate his conviction for first degree murder on the basis of felony murder. We disagree. In determining whether a trial court erred in failing to grant a defendant s motion to dismiss based on the insufficiency of the evidence, this Court s review is well-established: Upon defendant s motion for dismissal, the question for the Court is -9whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant s being the perpetrator of such offense. State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (2000). The trial court must review the evidence in the light most favorable to the State. State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993). Based merit. on our caselaw, defendant s argument is without Essentially, defendant s argument is that there was no evidence presented at trial of a completed rape. Thus, because some jurors may have convicted defendant for felony murder based on a completed rape and others on an attempted rape, this Court must vacate the verdict since it is unable to determine whether the verdict rests unanimously on a theory supported by the evidence. However, our Supreme Court has concluded that, for purposes of felony murder, if the evidence at trial is sufficient to prove the evidence attempted supported felony, a resolve this issue. a completed determination [felony] is of not whether the necessary to State v. Squires, 357 N.C. 529, 536, 591 S.E.2d 837, 842 (2003). In Squires, the defendant was convicted of felony murder predicated on the felony of the sale of cocaine -10with the use or possession of a deadly weapon and the felony of other murder. Id. at 534, 591 S.E.2d at 840. With regard to the felony of the sale of cocaine, the trial court instructed the jury that it could find the defendant guilty of felony murder if it found that the defendant committed or attempted to commit a sale of cocaine with the use or possession of a deadly weapon. could Id. have Thus, under this theory of felony murder, the jury convicted the defendant of felony murder if he actually completed a sale of cocaine or attempted to complete a sale. The defendant argued that the trial court erred in not granting his motion to dismiss for insufficiency of the evidence because some jurors may have others found an attempted sale. found a completed sale while Id. at 536, 591 S.E.2d at 842. Our Supreme Court disagreed, noting: Even if some jurors found a completed sale of cocaine rather than an attempted sale, this discrepancy would not change the result. When a jury finds the facts necessary to constitute one offense, it also inescapably finds the facts necessary offenses of that offense. to Id. constitute all lesser-included The Court went on to say that: Attempted sale of cocaine is a lesserincluded offense of the sale of cocaine. Therefore, any member of the jury who found the elements constituting a sale of cocaine must necessarily have found the elements of attempted sale of cocaine. Since the -11evidence at trial was sufficient to prove attempted sale of cocaine and since all jurors necessarily found an attempted sale, a determination of whether the evidence supported a completed sale of cocaine is not necessary to resolve this issue. We hold that the trial court s submission to the jury of sale of cocaine as a predicate felony to support defendant s felony murder conviction for [the victim s] death was not error. Id. Attempted rape is a lesser included offense of first degree rape. State v. Green, 95 N.C. App. 558, 563, 383 S.E.2d 419, 422 (1989). who found Therefore, as in Squires, any member of the jury the elements constituting a completed rape must necessarily have found the elements of an attempted rape. If the evidence was sufficient to prove defendant was guilty of attempted rape, then all the jurors would have necessarily found defendant attempted to rape Ms. Coltrane. Accordingly, based on Squires, it would not be necessary to determine whether the evidence supported a completed rape. The two elements of attempted rape are the intent to commit rape and an overt act done for that purpose which goes beyond mere offense. (1984). preparation but falls short of the completed State v. Bell, 311 N.C. 131, 140, 316 S.E.2d 611, 616 Intent to rape may be proved circumstantially by -12inference, based upon a defendant s actions, words, dress, or demeanor. S.E.2d State 561, v. 564 Furthermore, an Oxendine, (2002) overt 150 (internal act N.C. App. quotation manifesting a 670, 674, marks sexual 564 omitted). purpose or motivation on the part of the defendant is adequate evidence of an intent to commit rape. Id. Considering the evidence in a light most favorable to the State, a reasonable jury could infer that defendant intended to rape Ms. Coltrane. Investigators found Ms. Coltrane s which had been forcibly removed, at Ms. Hurley s house. bra, When Ms. Coltrane s body was found, her shirt was forced up around her shoulder blades and her jeans and underwear were partly pulled down. allegedly Moreover, Mr. Saunders testified that defendant admitted Coltrane. to him that he tried to get with Ms. While it is uncontroverted that Ms. Coltrane had not suffered any trauma to her genital area and that the sexual assault kit substantial sample was evidence never that tested, defendant the State intended to presented rape Ms. Coltrane and that he engaged in an overt act for that purpose. Thus, since attempted necessarily to the evidence rape found Ms. an was sufficient Coltrane attempted and rape, to prove because the defendant all trial jurors court s -13submission to the jury based on the predicate felony of attempted rape or rape does not constitute error, see Squires, 357 N.C. App. at 536, 591 S.E.2d at 842, and the trial court did not err in denying his motion to dismiss. Defendant s conviction for first degree murder on the basis of felony murder is left undisturbed. II. Defendant s Conviction for First Degree Murder on the Basis of Premeditation and Deliberation Next, with regard to defendant s conviction for first degree murder on the basis of premeditation and deliberation, defendant argues that the trial court committed plain error in failing to instruct the jury on second degree murder. alternative, defendant constitutionally instruction. contends ineffective that in his failing trial to In the counsel request was this Even assuming arguendo that the trial court erred in refusing to instruct on second degree murder, this error would not affect the jury s verdict finding defendant guilty of first degree murder based on the felony murder rule. Therefore, defendant is unable to meet his burden of demonstrating plain error. Because second degree defendant murder, failed we to review request for plain an instruction error. State on v. Carter, 366 N.C. 496, 497, 739 S.E.2d 548, 549 (2013); State v. -14Boyett, __ N.C. App. __, __, 735 S.E.2d 371, 374 (2012). Our Supreme Court has recently clarified the plain error standard of review: For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial. To show that an error was fundamental, a defendant must establish prejudice that, after examination of the entire record, the error had a probable impact on the jury s finding that the defendant was guilty. State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (internal citations and quotation marks omitted). Here, the jury was presented with two theories of first degree murder: felony murder. (1) premeditation and deliberation; and (2) The jury convicted defendant of first degree murder under both theories. Assuming arguendo that the trial court erred by failing to instruct on second degree murder, defendant is unable to establish that the error would have a probable impact on the jury finding defendant guilty for first degree murder based on felony murder. supposed error first degree Since we would murder have only based found no affect on In other words, that defendant s premeditation error with conviction and regard to for deliberation. defendant s conviction for first degree murder based on felony murder, as discussed above, defendant is unable to establish plain error. -15With regards to defendant s claim for ineffective assistance of counsel based on his counsel s failure to request an instruction without merit. an objective on second degree murder, we conclude it is To establish that defendant s counsel fell below standard of reasonableness, the defendant must satisfy the two-prong test created by the United States Supreme Court in Washington v. Strickland, 466 U.S. 668, 280 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985): In order to meet this burden [the] defendant must satisfy a two part 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 error were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. (quoting Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693). Since defendant s conviction for felony murder was free from error and that judgment is not affected by the trial court s alleged error in refusing to instruct on second degree murder, defendant is unable to establish the second prong of the -16Strickland test: that he was prejudiced as a result. Consequently, defendant s argument is overruled. Conclusion In summary, we find no error in defendant s conviction for first degree murder based on felony murder pursuant to Squires and that conviction assuming arguendo instruct on remains undisturbed. In addition, that the trial court erred in second degree murder, this error even refusing to would have no impact on the jury s finding defendant guilty of first degree murder based on the felony murder rule. unable to establish plain error. Thus, defendant is Finally, with regard to defendant s ineffective assistance of counsel claim, defendant is unable Strickland. to establish prejudice, the second prong under Therefore, defendant s claim has no merit. CONVICTION OF FIRST MURDER: NO ERROR. DEGREE MURDER ON BASIS CONVICTION FOR FIRST DEGREE MURDER ON THE PREMEDITATION AND DELIBERATION: NO PLAIN ERROR. Judges CALABRIA and ROBERT N. HUNTER, JR. concur. Report per Rule 30(e). OF FELONY BASIS OF

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