State v. Pugh

• Court: Court of Appeals of North Carolina
• Decided: January 21, 2014
• Docket: 13-536
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Attorney General Danielle Marquis Elder, for the State.

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. Defendant puts forth two

arguments on appeal. 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 was

ineffective for failing to request the instruction. Second, -2- defendant 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 murder on the basis of premeditation and

deliberation; and (3) conclude that defendant’s claim for

ineffective assistance of counsel fails because defendant 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). A jury found him guilty of

deliberation and under the felony murder rule and recommended

defendant be sentenced to death. Id. Defendant was sentenced

accordingly. Id. -3- In 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. Id.

Defendant appealed his conviction. Id.

While his appeal was pending, defendant filed a motion for

appropriate relief (“MAR”) with our Supreme Court alleging

ineffective assistance of trial counsel and requesting

adjudication of his claim of mental retardation. State v.

Poindexter, 357 N.C. 248, 248, 581 S.E.2d 762, 762 (2003). 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 -4- counsel’s ineffective assistance during the 2002 sentencing

hearing. Id.

Our Supreme Court reviewed the trial court’s order granting

in part and denying in part defendant’s MAR. Id. It affirmed

the trial court’s order and remanded for a new capital

sentencing hearing. Id. 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 767. On 23 September 2010, the trial court sentenced

defendant to life imprisonment without parole. Defendant’s

current appeal raises alleged errors that occurred in the guilt-

innocence 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 17 December 1997, both Coltranes called defendant

numerous times looking for cocaine. Ms. Coltrane picked

defendant up at his house and drove to the house of Lori Hurley

(“Ms. Hurley”), defendant’s niece. Ms. Hurley was not at home

at the time. Around noon, Jaren Hulen (“Mr. Hulen”), a pest -5- exterminator, arrived at Ms. Hurley’s house for a scheduled

treatment. He noticed a red car parked in the driveway with the

door open and engine running. Mr. Hulen knocked on the door,

which was slightly open, and heard “stirring around” and a

woman’s voice calling for help. 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. Defendant was driving and

asked for her help. Deputy Walbourne saw Ms. Coltrane slumped

over in the front passenger seat with her throat cut.

Defendant, Ms. Coltrane, and the car were covered in blood, and

defendant appeared “wild-eyed.” -6- Investigators who arrived on the scene noted that Ms.

Coltrane’s shirt was pulled up around her shoulder blades, and

her bra was missing. During a subsequent search of Ms. Hurley’s

home, 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. The fatal wound was a deep cut

across her throat. However, she also sustained numerous other

injuries from either cutting or blunt force trauma to her face,

left arm, abdomen, and head. Because there was no evidence of

external or internal injury to her genital area, the sexual

assault kit collected from Ms. Coltrane was not analyzed.

Later, investigators confirmed that Ms. Coltrane’s 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. One of the gunmen dragged her down the

hallway to 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. -7- After 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, he did not request this

instruction in his 2002 trial. 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 -8- On 13 September 2012, defendant filed a petition for writ

of certiorari seeking review of the 23 September 2010 judgment

entered by Judge V. Bradford Long. This Court allowed

defendant’s petition for the purpose of reviewing the 2010

judgment which was imposed based on defendant’s 2002 trial.

Arguments

I. Defendant’s Conviction for First Degree Murder Based on Felony Murder

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 his motion to dismiss for

insufficiency of the evidence. 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 -9- whether 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 on our caselaw, defendant’s argument is without

merit. 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 attempted felony, “a determination of whether the

evidence supported a completed [felony] is not necessary to

resolve this issue.” 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 -10- with 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. Id. Thus, under this theory of felony murder, the jury

could have 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 found a completed sale while

others found an attempted sale.” 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 to constitute all lesser-included

offenses of that offense.” Id. The Court went on to say that:

Attempted sale of cocaine is a lesser- included 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 -11- evidence 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). Therefore, as in Squires, any member of the jury

who found 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 preparation but falls short of the completed

offense.” State v. Bell, 311 N.C. 131, 140, 316 S.E.2d 611, 616

(1984). “Intent to rape may be proved circumstantially by -12- inference, based upon a defendant’s actions, words, dress, or

demeanor.” State v. Oxendine, 150 N.C. App. 670, 674, 564

S.E.2d 561, 564 (2002) (internal quotation marks omitted).

Furthermore, an “overt act manifesting a sexual 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 bra,

which had been forcibly removed, at Ms. Hurley’s house. 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. Moreover, Mr. Saunders testified that defendant

allegedly admitted to him that he tried to “get with” Ms.

Coltrane. While it is uncontroverted that Ms. Coltrane had not

suffered any trauma to her genital area and that the sexual

assault kit sample was never tested, the State presented

substantial evidence that defendant intended to rape Ms.

Coltrane and that he engaged in an overt act for that purpose.

Thus, since the evidence was sufficient to prove defendant

attempted to rape Ms. Coltrane and because all jurors

necessarily found an attempted rape, the trial court’s -13- submission 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. In the

alternative, defendant contends that his trial counsel was

constitutionally ineffective in failing to request this

instruction. 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 defendant failed to request an instruction on

second degree murder, we review for plain error. State v.

Carter, 366 N.C. 496, 497, 739 S.E.2d 548, 549 (2013); State v. -14- Boyett, __ 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: (1) premeditation and deliberation; and (2)

felony murder. 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. In other words, that

supposed error would only affect defendant’s conviction for

first degree murder based on premeditation and deliberation.

Since we have found no error with regard to defendant’s

conviction for first degree murder based on felony murder, as

discussed above, defendant is unable to establish plain error. -15- With regards to defendant’s claim for ineffective

assistance of counsel based on his counsel’s failure to request

an instruction on second degree murder, we conclude it is

without merit. To establish that defendant’s counsel fell below

an objective 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 -16- Strickland 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 remains undisturbed. In addition, even

assuming arguendo that the trial court erred in refusing to

instruct on second degree murder, this error would have no

impact on the jury’s finding defendant guilty of first degree

murder based on the felony murder rule. Thus, defendant is

unable to establish plain error. Finally, with regard to

defendant’s ineffective assistance of counsel claim, defendant

is unable to establish prejudice, the second prong under

Strickland. Therefore, defendant’s claim has no merit.

CONVICTION OF FIRST DEGREE MURDER ON BASIS OF FELONY MURDER: NO ERROR.

CONVICTION FOR FIRST DEGREE MURDER ON THE BASIS OF PREMEDITATION AND DELIBERATION: NO PLAIN ERROR.

Judges CALABRIA and ROBERT N. HUNTER, JR. concur.

Report per Rule 30(e).