State v. Oxendine

436 S.E.2d 906, 112 N.C. App. 731, 1993 N.C. App. LEXIS 1242
CourtCourt of Appeals of North Carolina
DecidedDecember 7, 1993
DocketNo. 9316SC69
StatusPublished

This text of 436 S.E.2d 906 (State v. Oxendine) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Oxendine, 436 S.E.2d 906, 112 N.C. App. 731, 1993 N.C. App. LEXIS 1242 (N.C. Ct. App. 1993).

Opinion

EAGLES, Judge.

Defendant’s twenty-four assignments of error can be grouped into two main arguments. First, defendant contends that she was prejudiced by the ineffective assistance of her trial counsel in violation of the Sixth and Fourteenth Amendments to the United States Constitution. Second, defendant contends that the trial court committed prejudicial error in admitting certain tax department records into evidence and allowing witnesses to testify as to the information in those documents. We find no error.

I.

Defendant contends that she received ineffective assistance of counsel and that counsel’s ineffectiveness denied defendant her right to a fair trial under the Constitution of North Carolina and [735]*735under the Sixth and Fourteenth Amendments to the United States Constitution. We disagree.

In Strickland v. Washington, 466 U.S. 668, 80 L.Ed.2d 674 (1984), the United States Supreme Court held that in order for a convicted defendant to prevail on an ineffective assistance of counsel claim, the defendant must satisfy a two-part test. The defendant must first show that counsel’s performance was so deficient that counsel was not “functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687, 80 L.Ed.2d at 693. In addition to showing that counsel’s performance was deficient, the defendant must also show that counsel’s deficient performance deprived the defendant of a fair trial, a trial whose result is reliable. Id. There is no reason for a court to address both components of this test if the defendant makes an insufficient showing on one of them. Id. at 697, 80 L.Ed.2d at 699. The Strickland test is also the standard for measuring ineffective assistance of counsel claims under the North Carolina Constitution. State v. Swann, 322 N.C. 666, 370 S.E.2d 533 (1988); State v. Braswell, 312 N.C. 553, 324 S.E.2d 241 (1985).

In order to satisfy the performance component of the Strickland test, a defendant must show that “counsel’s representation fell below an objective standard of reasonableness.” Strickland v. Washington, 466 U.S. 668, 688, 80 L.Ed.2d 674, 693 (1984). The defendant must identify the acts or omissions of counsel that were the result of unreasonable professional judgment. Id. at 690, 80 L.Ed.2d at 695. A reviewing court must then judge the reasonableness of counsel’s challenged conduct in light of the facts and circumstances of the particular case and determine ■ whether the identified acts or omissions were outside the wide range of professionally competent assistance. Id. In making this determination, counsel is strongly presumed to have rendered adequate assistance and exercised reasonable professional judgment. Id.

Here, defendant essentially contends that she was prejudiced by defense counsel’s failure to present evidence. Defendant argues that there was ample evidence from which to present an efficient defense. Defendant contends that she provided defense counsel with a list of potential defense witnesses who were willing to testify on her behalf. These witnesses included: 1) Ms. Penny Stephens, a former tax clerk who worked with defendant prior to the investigation of these charges; 2) Ms. Brenda Fairley, a tax clerk [736]*736who worked with defendant at the time these charges were investigated; and 3) Mr. Thomas Jones, a delinquent tax collector who also worked with defendant.

Defendant contends that Ms. Stephens would have testified that defendant’s supervisor, Mr. Foley, had made offensive and inappropriate comments to defendant. Ms. Stephens would also have testified that Mr. Foley had threatened her at one time saying, “the next time money is taken, I am going to pin it on you.” Defendant argues that Ms. Fairley would have testified that she had seen Mr. Foley enter the computer and “backdate information to make it appear that tax money had been paid on an earlier date.” Ms. Fairley would also have testified that Mr. Foley had asked her to credit a tax account without the proper documentation. Finally, defendant contends that Mr. Jones would have testified concerning the operation of the tax department and its computer system.

Defendant also provided defense counsel with the names of two prominent witnesses who were willing to testify to her good character and her reputation for honesty. Defendant also argues that since the State’s case consisted entirely of circumstantial evidence, defense counsel should have allowed defendant to take the stand and refute the charges in her own words. Defendant contends that she should have been allowed to take the stand because she had no prior criminal history with which the State could have impeached her.

With the exception of the two character witnesses, we are not persuaded that any of the other potential defense witnesses’ testimony was relevant to defendant’s charges. It is clear that defense counsel could have presented a defense with the testimony of the potential defense witnesses. The question we must answer is whether defense counsel’s failure to present evidence in defendant’s defense was outside the exercise of reasonable professional judgment. We hold that it was not.

The State’s case against defendant was based entirely upon circumstantial evidence. There was no incontrovertible eyewitness evidence that showed that defendant had misapplied or embezzled tax department funds. Rather, the State’s case was based entirely upon a series of deductions drawn from various tax department ledgers, receipts and work documents. In deciding not to present evidence, defense counsel apparently made a strategic judgment [737]*737that the jury would not convict defendant solely on the basis of this circumstantial evidence. Although in hindsight we might conclude that defense counsel may have made an error in judgment, defense counsel’s decision not to present evidence was not unreasonable in light of the facts and circumstances of this case.

Although defendant wanted to testify in her own behalf to assert her innocence, Agent Underwood from the State Bureau of Investigation had already testified that defendant steadfastly maintained her innocence during both his initial interview with defendant and after defendant was arrested. Defendant’s exculpatory statements were put before the jury without defendant having to answer any questions on cross-examination. The usefulness of defendant’s potential defense witnesses is questionable at best. Much of their testimony was cumulative because evidence, similar to the statements in their affidavits was admitted through other witnesses who testified at trial. Furthermore, defendant’s trial counsel gained a significant tactical advantage in deciding not to present evidence. When a defendant elects not to present evidence, the defendant may both open and close oral arguments to the jury. General Rules of Practice for Superior and District Courts, Rule 10. The opportunity to both open and close oral arguments to the jury can be particularly significant when as here, the State’s case is based purely on circumstantial evidence. In Strickland, the Supreme Court stated that:

Judicial scrutiny of counsel’s performance must be highly deferential.

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Related

Strickland v. Washington
466 U.S. 668 (Supreme Court, 1984)
State v. Braswell
324 S.E.2d 241 (Supreme Court of North Carolina, 1985)
State v. Swann
370 S.E.2d 533 (Supreme Court of North Carolina, 1988)

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Bluebook (online)
436 S.E.2d 906, 112 N.C. App. 731, 1993 N.C. App. LEXIS 1242, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-oxendine-ncctapp-1993.