State v. Ballard

Citation2022 NCCOA 294
Decision Date03 May 2022
Docket NumberCOA21-202
PartiesSTATE OF NORTH CAROLINA, v. JABAR BALLARD, Defendant.
CourtCourt of Appeal of North Carolina (US)

Heard in the Court of Appeals 2 November 2021.

Appeal by Defendant from order entered 15 October 2020 by Judge J Stanley Carmical in Brunswick County Nos. 09-CRS-56342 09-CRS-56348, 09-CRS-56687 Superior Court.

Attorney General Joshua H. Stein, by Assistant Attorney General Zachary K. Dunn, for the State.

Hynson Law, PLLC, by Warren D. Hynson, for the Defendant.

JACKSON, Judge.

¶ 1 Jabar Ballard ("Defendant") appeals from an order denying his motion for appropriate relief ("MAR"). We affirm the trial court's Brady and Napue conclusions but hold that the trial court erred by (1) failing to conduct a hearing on Defendant's ineffective assistance of counsel ("IAC") claims and (2) barring Defendant from filing a future MAR. We therefore vacate the IAC portion of the order and the portion barring Defendant from filing a future MAR, and remand this case for an evidentiary hearing on Defendant's IAC claims.

I. Background

¶ 2 This case deals with post-conviction claims raised by Defendant in an MAR. After a jury trial held in October 2011, Defendant was found guilty of robbery with a firearm, two counts of assault by pointing a gun, and possession of a firearm. Defendant challenged his conviction on appeal to this Court, and we found no error in an unpublished opinion filed 7 August 2012. State v. Ballard, 222 N.C.App. 317, 729 S.E.2d 730 (2012) (unpublished), cert. and dis. rev. denied, 366 N.C. 429, 736 S.E.2d 505 (2013). Thereafter, Defendant filed an MAR in Brunswick County Superior Court.

A. The Robbery and Defendant's Trial

¶ 3 In the early morning of 13 November 2009, Hardy Ballard, III, and his fifteen- year-old son Kashon McCall were leaving their home for work and school when they were approached by a masked man with a gun. Hardy recognized the voice and face of the man as that of his cousin, Defendant. Hardy's grandfather and Defendant's grandfather were brothers; Hardy and Defendant knew each other when they were growing up but did not remain close as adults. Kashon also claimed to recognize Defendant, although they had only met a few times.

¶ 4 When Defendant approached Hardy and Kashon, he told Kashon to get on the ground and pointed the gun to Hardy's head. Hardy gave his wallet to Defendant, and then went inside the home to retrieve more money, leaving Kashon outside with Defendant. Kashon remained on the ground with Defendant's gun at the back of his head. From inside the home, Hardy's wife, Nikita Ballard, called the police, and Hardy threw more cash outside the back door of the home. Defendant collected the money and left.

¶ 5 When the police arrived, Hardy and Kashon were both asked to write statements. Hardy told the police that Defendant was the perpetrator and reflected that in his statement. Kashon did not speak with the police about Defendant's identity on the day of the robbery, and the contents of his original statement remain unclear.[1]

¶ 6 The State presented four witnesses at trial, including both Hardy and Kashon, Hardy's wife, and Defendant's probation officer. Both Hardy and Kashon testified at trial that they identified the perpetrator as Defendant. Nikita testified to seeing a gunman from inside the house, but she could not identify him. Defendant's probation officer was not a witness to the crime, but instead testified to Defendant's possible motive: he was in violation of his probation for being $500 in arrears prior to the robbery, which he paid four days after the robbery.

¶ 7 Defendant's trial counsel prepared a list of seven potential defense witnesses, but only presented one at trial. Trial counsel also notified the prosecutor of five potential alibi witnesses who were willing to testify that Defendant was seen at home the morning of the crime. Ultimately, trial counsel did not present any alibi witness at trial.

¶ 8 The jury convicted Defendant of robbery with a firearm, two counts of assault by pointing a gun, and possession of a firearm by a felon. Defendant was sentenced to a term of 146 to 185 months of incarceration for the robbery and assault convictions and a consecutive term of 29 to 35 months for possession of a firearm.

B. Defendant's MAR

¶ 9 Defendant filed an MAR pro se in Brunswick County Superior Court, and thereafter his counsel filed an amended MAR. In his amended MAR, Defendant raised eight total claims: one Brady claim, one Napue claim, and six IAC claims. Defendant's specific IAC claims alleged that trial counsel failed to (1) present known impeachment evidence of Hardy Ballard, III; (2) present known alibi witnesses and interview other known alibi witnesses; (3) pursue or compel known exculpatory evidence; (4) impeach Kashon McCall with testimony from Police Chief C. Taylor; (5) challenge identification evidence with expert testimony; and (6) properly request the pattern jury instruction on identification. In an appendix of exhibits supporting his MAR, Defendant submitted hundreds of pages of documents, including sworn statements from Defendant's trial counsel, family members, and potential alibi witnesses. Defendant sought an evidentiary hearing on his claims, or alternatively, for his convictions to be vacated and a new trial granted.

¶ 10 The trial court dismissed all of Defendant's claims in an order ("Order") without holding an evidentiary hearing. In the Order, specifically regarding the IAC claims, the trial court found that "Defendant's first, second, fourth and fifth assertions within his ineffective assistance of counsel claim were strategic decisions regarding witnesses made by Defendant's trial counsel." The trial court also found that, with regard to Defendant's sixth assertion, "trial counsel did request the pattern jury instruction on identification" which was denied in the discretion of the trial judge. Accordingly, for all but Defendant's third assertion, the trial court found that trial counsel's conduct did not fall below an objective standard of reasonableness. Lastly, for Defendant's third assertion, the trial court found that "Defendant's trial counsel deficiently performed when she failed to pursue or obtain a legible copy of Kashon McCall's written statement," but that the second Strickland prong was not satisfied because Defendant failed to establish that but for counsel's error the trial would have had a different outcome.

¶ 11 On 21 October 2020, Defendant filed a notice of intent to seek appellate review and a request for the appointment of appellate counsel. Defendant filed a petition for writ of certiorari, seeking appellate review of the Order denying his MAR. This Court granted the petition in an order dated 29 January 2021.

II. Analysis

¶ 12 On appeal, Defendant argues that the trial court erred by (1) denying his MAR because law enforcement's loss of an eyewitness statement was a due process violation under Brady, (2) denying his MAR because the State presented false testimony in violation of Napue, (3) failing to conduct an evidentiary hearing for his Brady, Napue, and IAC claims, and (4) barring Defendant from filing any future motions for appropriate relief. We remand for an evidentiary hearing on the IAC claims.

A. Jurisdiction

¶ 13 The State argues we should decline to consider issues one, two, and four, because these issues fall outside the scope of Defendant's petition for writ of certiorari, which was previously granted by this Court. Our order allowed the writ "for purposes of reviewing the order entered by Judge J. Stanley Carmical on 16 October 2020 in Brunswick County Superior Court denying petitioner's motion for appropriate relief." Because Defendant's arguments fall within the scope of reviewing Judge Carmical's order, we hold that we have jurisdiction to review them.

B. Standard of Review

¶ 14 Where a defendant's MAR has been dismissed without holding an evidentiary hearing, "[w]e review the MAR court's summary dismissal de novo to determine whether the evidence contained in the record and presented in [Defendant's] MAR- considered in the light most favorable to [Defendant]-would, if ultimately proven true, entitle him to relief." State v. Allen, 378 N.C. 286, 296-97, 2021-NCSC-88, ¶24. "If answering this question requires resolution of any factual disputes, N.C. G.S. § 15A-1420(c)(1) requires us to vacate the summary dismissal order and remand to the MAR court to conduct an evidentiary hearing." Id. at 297, 2021-NCSC-88, ¶24.

C. Brady Claim

¶ 15 Defendant argues on appeal that the trial court erroneously denied his Brady claim. In his MAR, Defendant argued that the State violated his right to due process by suppressing Kashon McCall's original written statement to police, which was lost by the police department and not available at trial. The trial court concluded that Kashon's statement was not material. After careful review, we affirm the trial court's conclusion on Defendant's Brady claim.

¶ 16 A criminal defendant's due process rights under the 14th Amendment to the United States Constitution are violated when the prosecution suppresses evidence favorable to the defendant that is "material either to guilt or to punishment[.]" Brady v. Maryland 373 U.S. 83, 87 (1963). Therefore, "[t]o establish a Brady violation, a defendant must show (1) that the prosecution suppressed evidence; (2) that the evidence was favorable to the defense; and (3) that the evidence was material to an issue at trial." State v. McNeil, 155 N.C.App. 540, 542, 574 S.E.2d 145, 147 (2002) (citing Brady, 373 U.S. at 87). "Favorable" evidence can be impeachment evidence or exculpatory evidence, and evidence is "material" if "there is a reasonable probability of a...

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