{ "id": 4343141, "name": "STATE OF NORTH CAROLINA v. HEATHER R. SURRATT", "name_abbreviation": "State v. Surratt", "decision_date": "2011-10-18", "docket_number": "No. COA11-239", "first_page": "404", "last_page": "408", "citations": [ { "type": "official", "cite": "216 N.C. App. 404" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "689 S.E.2d 858", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2010, "opinion_index": 0 }, { "cite": "363 N.C. 826", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4150979 ], "year": 2010, "opinion_index": 0, "case_paths": [ "/nc/363/0826-01" ] }, { "cite": "681 S.E.2d 504", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "opinion_index": 0 }, { "cite": "199 N.C. App. 115", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4170662 ], "year": 2009, "opinion_index": 0, "case_paths": [ "/nc-app/199/0115-01" ] }, { "cite": "711 S.E.2d 787", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 2011, "pin_cites": [ { "page": "789" }, { "page": "789-90", "parenthetical": "citations and quotation marks omitted" }, { "page": "790" } ], "opinion_index": 0 }, { "cite": "713 S.E.2d 246", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2011, "pin_cites": [ { "page": "248", "parenthetical": "citation, quotation marks, and ellipses omitted" }, { "page": "248" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 528, "char_count": 11638, "ocr_confidence": 0.748, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.1473838822263383 }, "sha256": "52b734243355df3de4ba3ddaf7726b139b91cbddfec6883a8db3d1861a18d89c", "simhash": "1:1bf5c220f29715d2", "word_count": 1822 }, "last_updated": "2023-07-14T18:13:27.459138+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GEER and THIGPEN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. HEATHER R. SURRATT" ], "opinions": [ { "text": "STROUD, Judge.\nDefendant appeals her convictions for two counts of felony child abuse \u2014 sexual act, two counts of indecent liberties with a child, and two counts of first degree sex offense with a child, arguing that' she received ineffective assistance of counsel. For the following reasons, we conclude that defendant did receive ineffective assistance of counsel, and we order she receive a new trial.\nI. Background\nThe State\u2019s evidence tended to show that in 2005, defendant forced Jenny, 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 \u2014 sexual act (\u201cchild abuse\u201d), two counts of indecent liberties with a child (\u201cindecent liberties\u201d), and two counts of first degree sex offense with a child (\u201csex offense\u201d). Defendant was tried by a jury and found guilty of all of 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.\nII. Ineffective Assistance of Counsel\nIn a previous hearing before the district court regarding a Department of Social Services petition for abuse, neglect, and dependency, the district court concluded that defendant\u2019s children were not sexually abused but were neglected. Before testimony in defendant\u2019s trial began, the trial court \u201cgrant[ed] the [State\u2019s] motion in limine excluding specific references to or [sic] the outcome of any previous DSS hearing.\u201d Defendant\u2019s attorney did not object.\nDuring defendant\u2019s trial, Ms. Tina Wallace, \u201ca social worker in Child Protective Services with Davidson County Department of Social Services[,]\u201d testified that she interviewed defendant\u2019s family. Ms. Wallace discussed the allegations of sexual abuse made by Jenny and her interview with two of Jenny\u2019s siblings regarding what Jenny had told them. Ms. Wallace then testified that DSS removed defendant\u2019s children from the home and placed them with another family.\nDefendant now contends that she received ineffective assistance of counsel, particularly because \u201c[t]he jury should have ... heard that th[e] removal was solely on the basis of neglect, not the sexual abuse alleged by\u201d Jenny.\nNorth Carolina has adopted the federal standard for ineffective assistance of counsel; this standard consists of a two-part test.\nFirst, the defendant must show that counsel\u2019s 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\u2019s 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.\nState v. Brown, _ N.C. App. _, _, 713 S.E.2d 246, 248 (2011) (citation, quotation marks, and ellipses omitted).\nAfter a thorough reading of the transcript, it is clear that defendant\u2019s children were placed in foster care after the investigation regarding Jenny\u2019s allegations; it is also evident that from Ms. Wallace\u2019s 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 regarding neglect or why the children were actually removed from their home; they only heard about the sexual abuse allegations.\nIn State v. Martinez, the \u201c[defendant first argue[d] the trial court erred in admitting DSS social worker Putney\u2019s testimony that she \u2018substantiated\u2019 Nadia\u2019s 2006 claim of sexual abuse by Defendant. Defendant contended] the admission of this testimony was an error of law as it unfairly bolstered the victim\u2019s credibility.\u201d _ N.C. App. _, _, 711 S.E.2d 787, 789 (2011). This Court stated:\nIn State v. Giddens[, 199 N.C. App. 115, 681 S.E.2d 504 (2009), aff\u2019d 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 \u201csubstantiated\u201d the victim\u2019s sexual abuse allegation after an investigation into the claim. Because the investigator\u2019s testimony was based, in part, on the DSS investigation and not solely on the children\u2019s accounts of what happened, the Court rejected the State\u2019s argument that the testimony was a prior consistent statement and merely corroborated the victims\u2019 testimony. Rather, the testimony amounted to an impermissible voucher of the victims\u2019 credibility.\nThe Giddens Court concluded the investigator\u2019s testimony, that DSS \u201csubstantiated\u201d the allegations of sexual abuse, essentially told the jury that DSS determined the defendant was guilty of sexually abusing the victims and the trial court erred in admitting the testimony.\nThe State argues the present case is distinguishable. In Giddens, the State\u2019s witness testified to the thorough nature of the investigation that led DSS to conclude the victims\u2019 allegation was substantiated. Here, Putney did not testify to the thoroughness of the DSS investigation, but merely stated that DSS \u201csubstantiated\u201d 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.\nIn Giddens, the DSS investigator testified that her investigation included a global assessment, in which she inquired about more than the child\u2019s specific allegations, but also inquired as to the child\u2019s mental needs and supervision. Based on this information, the DSS investigator stated she had no information to substantiate that the child\u2019s other caregivers were abusive or neglectful. We cannot conclude the testimony in the present case, that DSS substantiated Nadia\u2019s 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\u2019 opinion more weight than the opinion of a lay person. The trial court erred in admitting Putney\u2019s substantiation testimony.\nWe 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\u2019s expert medical witness, Dr. St. Claire, testified to Nadia\u2019s non-specific genital exam results\u2014 she looked like a very typical adolescent. Thus, the State\u2019s case rested solely on Nadia\u2019s testimony and additional corroborative testimony. In effect, the essential issue for the jury to consider was Nadia\u2019s credibility.\nAccordingly, we conclude there is a reasonable possibility that had Putney\u2019s testimony not been admitted, the jury would have reached a different verdict.\nId. at_, 711 S.E.2d at 789-90 (citations and quotation marks omitted).\nHere, as in Giddens and Martinez, \u201cthere was no physical evidence of sexual abuse\u201d and \u201c[t]hus, the State\u2019s case rested solely on [Jenny]\u2019s testimony and additional corroborative testimony.\u201d Id. at _, 711 S.E.2d at 790. Furthermore, just as in Giddens and Martinez \u201calthough the social worker was not qualified as an expert witness, the jury likely gave the witness\u2019 opinion more weight than the opinion of a lay person.\u201d Id. Unlike Giddens and Martinez, Ms. Wallace did not specifically testify that the sexual abuse claims against defendant were \u201csubstantiated.\u201d Id. However, Ms. Wallace\u2019s 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\u2019s testimony was the functional equivalent of testimony that DSS had \u201csubstantiated\u201d Jenny\u2019s 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. See id.\nYet we have not been asked to address Ms. Wallace\u2019s testimony substantively, but to consider instead the effectiveness of defendant\u2019s counsel in both 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\u2019s accusations. Under these circumstances, we believe it quite likely that without Ms. Wallace\u2019s testimony which impermissibly bolsters Jenny\u2019s testimony, the jury may have reached a different verdict. We conclude that failing to challenge Ms. Wallace\u2019s testimony was deficient advocacy on the part of defendant\u2019s trial attorney which ultimately had the effect of prejudicing defendant\u2019s case. See Brown at _, 713 S.E.2d at 248. As such, we conclude that defendant received ineffective assistance of counsel.\nIII. Conclusion\nAs 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.\nNEW TRIAL.\nJudges GEER and THIGPEN concur.\n. A pseudonym will be used to protect the identity of the child.\n. The district court\u2019s 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\u2019s children were neglected but not sexually abused.", "type": "majority", "author": "STROUD, Judge." } ], "attorneys": [ "Attorney General Roy A. Cooper, III, by Assistant Attorney General David Gordon, for the State.", "Mark Montgomery, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. HEATHER R. SURRATT\nNo. COA11-239\n(Filed 18 October 2011)\nConstitutional Law \u2014 effective assistance of counsel \u2014 failure to challenge witness\nA defendant charged with felony child abuse \u2014 sexual act, indecent liberties, and first-degree sexual offense with a child received ineffective assistance of counsel where her attorney did not challenge the testimony of a social worker who testified that she had investigated the sexual abuse allegations and removed the children from the home, but did not mention that the children were removed for neglect rather than sexual abuse. There was no physical evidence, no witnesses other than the victim, a long delay between the dates of the crime and the accusation, and it was quite likely that the jury may have reached a different result without this testimony.\nAppeal 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.\nAttorney General Roy A. Cooper, III, by Assistant Attorney General David Gordon, for the State.\nMark Montgomery, for defendant-appellant." }, "file_name": "0404-01", "first_page_order": 414, "last_page_order": 418 }