Heard in the Court of Appeals October 6, 2014
Attorney General Roy Cooper, by Assistant Attorney General Teresa M. Postell, for the State.
Massengale & Ozer, by Marilyn G. Ozer, for defendant-appellant.
DIETZ, Judge. Chief Judge McGEE and Judge STEPHENS concur.
Appeal by Defendant from judgments entered 16
January 2014 by Judge Anderson D. Cromer in Guilford County Superior Court, Nos. 11 CRS 24659-65.
Defendant Bonrick Lee Barksdale appeals from a lengthy series of felony convictions stemming from a violent attack and sexual assault on two women. Barksdale broke into the victims' home intending to steal laptops visible through a window. But after discovering the couple and their young child in the home, Barksdale forced the two women to kiss and touch each other. He then sexually assaulted and attempted to rape one of the victims and later shot the other when she tried to fight him off, nearly killing her.
On appeal, Barksdale argues that his appointed counsel improperly disclosed to the court (outside the presence of the jury) that Barksdale knew how strong the case against him was, but wanted a trial to " take the chance that maybe lightning strikes, or I get lucky, or something." He also argues that the trial court improperly considered his decision to go to trial in determining the severity of his sentence. Finally, Barksdale argues that his sentences for first degree kidnapping based on sexual assault and for the underlying sexual assault itself violate the double jeopardy clause--an error that the State concedes on appeal.
For the reasons set forth below, we hold that Barksdale did not receive ineffective assistance because his trial counsel's remarks, even if improper, did not prejudice Barksdale. We likewise hold that the trial court did not improperly increase Barksdale's sentence based on his decision to go to trial. Because the State concedes error in Barksdale's sentence--and we agree--we vacate
his sentence and remand for resentencing consistent with this opinion.
Facts and Procedural History
In the early morning hours of 25 August 2011, Barksdale broke into an apartment occupied by Jane Doe, Jill Smith, and Smith's young child, whom the couple raised together. Barksdale had seen two laptops through the window and entered the apartment with the intention of taking them. Ms. Doe, Ms. Smith, and their child were asleep in the bedroom when Ms. Doe woke up and noticed a light was on in the kitchen. Ms. Doe got up to turn off the light and discovered Barksdale standing in her kitchen. She confronted Barksdale and he pulled out his gun. Ms. Doe ran back to the bedroom, yelling for Ms. Smith to take the child and escape out the window.
Ms. Smith took her child and hid in the bathroom. Ms. Doe attempted to hold the bedroom door closed and block Barksdale from entering, but Barksdale threatened to shoot through the door if she didn't let him in. Barksdale entered the bedroom and asked who else was there. Ms. Doe told him that her girlfriend was in the bathroom. Barksdale then made Ms. Smith and the child come out of the bathroom and sit on the bed with Ms. Doe.
Barksdale asked them if they had any money and they responded that they didn't. He then told them to " touch each other." Barksdale stood at the foot of the bed, holding his gun, and watched while Ms. Doe and Ms. Smith touched and kissed. After about two minutes, Barksdale instructed them to stop kissing and to go into the other bedroom.
As they were walking through the hallway to the other bedroom, Barksdale pulled Ms. Smith away from Ms. Doe and began " dry humping" her back and touching her breasts. Barksdale, gun still in hand, asked if they had any condoms. When they informed him that they did not, he asked if they had any sandwich bags. Ms. Doe told him where they were in the kitchen, and Barksdale went to get them, returning approximately thirty seconds later. Barksdale told Ms. Smith to get down on the floor, where he removed her clothes and attempted to rape her. Barksdale was unable to rape Ms. Smith with the sandwich bag around his penis, and instead instructed Ms. Smith at gunpoint to get on her knees and " suck my dick." Ms. Smith did as she was instructed because she wanted her family to " make it out alive." Barksdale inserted his penis, with the sandwich bag on it, into Ms. Smith's mouth against her will.
At that point, Ms. Doe grabbed Barksdale and began choking him. Ms. Smith then grabbed and twisted Barksdale's penis. During the struggle, Barksdale fired three or four shots at Ms. Doe. Two of the shots hit her, one in the abdomen and one in the leg. Barksdale also punched Ms. Doe several times, leaving her with a black eye and chipped tooth. Ms. Doe eventually managed to drag Barksdale out to the living room where she yelled for Ms. Smith to " open the door so I can get him out." Ms. Smith opened the door and Ms. Doe pushed Barksdale out of the apartment. Ms. Doe shut and locked the door while Ms. Smith called 9-1-1.
When the ambulance arrived, Ms. Doe was taken away to the hospital. The responding police found a pry mark on one of the apartment's sliding glass doors as well as gunshot damage on furniture inside the apartment. Police also found Barksdale's Maryland driver's license, his hat, his glasses, his cell phone, and a plastic sandwich bag with his DNA on the inside. Barksdale was arrested in Maryland on 26 August 2011 and later extradited to North Carolina.
The State charged Barksdale with possession of a firearm by a felon, two counts of first degree kidnapping, assault with a deadly weapon with intent to kill inflicting serious injury, first degree sexual offense, attempted first degree rape, two counts of attempted robbery with a dangerous weapon, and first degree burglary.
Barksdale declined the plea agreement offered by the State and his case went to trial on 13 January 2014. Barksdale's appointed counsel informed the court, on the record but before the jury was impaneled, ...