State v. Ballard

IN THE COURT OF APPEALS OF NORTH CAROLINA

2022-NCCOA-294

No. COA21-202

Filed 3 May 2022

Brunswick County, Nos. 09-CRS-56342, 09-CRS-56348, 09-CRS-56687

STATE OF NORTH CAROLINA,

v.

JABAR BALLARD, Defendant.

Appeal by Defendant from order entered 15 October 2020 by Judge J. Stanley

Carmical in Brunswick County Superior Court. Heard in the Court of Appeals 2

November 2021.

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.
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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in an unpublished opinion filed 7 August 2012.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729 S.E.2d 730 (2012) (unpublished), cert.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
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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.

1 The police department lost the entire police file for this case, including Kashon’s
original statement, and the only photocopy of the statement was illegible. Kashon testified
at trial that he could not recall what he wrote in his original statement, but he maintained
that he recognized Defendant. The disputed contents of the statement premise Defendant’s
Brady claim, which we address below.
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¶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
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Opinion of the Court

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
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Opinion of the 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
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Opinion of the Court

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)
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(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 different result had the evidence been disclosed.” State v. Williams, 362 N.C.

628, 636, 669 S.E.2d 290, 296 (2008) (internal marks and citations omitted).

¶ 17 Here, even assuming that the first two Brady elements are met, the trial court

correctly concluded that Kashon’s statement was not material. Even without the

original statement, we agree with the trial court that “trial counsel was sufficiently

able to cross-examine Kashon McCall on the inconsistencies in his statements.”

¶ 18 Trial counsel revealed inconsistences in Kashon’s testimony during the

following cross-examination:

[Defense counsel]: So, just to clarify, it’s your testimony
that as soon as you saw the masked gunman you knew it
was Jabar Ballard?

[Kashon]: Yes.

[Defense counsel]: And when the police arrived did you
tell the police officers that?

[Kashon]: No, ma’am, I didn’t.

...

[Defense counsel]: Do you remember writing the
statement?

[Kashon]: No, I don’t remember writing it down, no.

[Defense counsel]: You don’t remember writing the
statement at all?
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[Kashon]: Yes, I wrote a statement.

...

[Defense counsel]: And do you remember what you wrote
in the statement?

[Kashon]: No, not really, I don’t.

[Defense counsel]: Did you write in the statement that you
knew it was Jabar Ballard in the mask?

[Kashon]: No, ma’am.

[Defense counsel]: You didn’t write that in your
statement?

[Kashon]: No, ma’am, I don’t remember, actually.

...

[Defense counsel]: And have you had to testify at a prior
court proceeding in a matter related to this incident?

[Kashon]: Yes ma’am, but I don’t remember the
testimony.

...

[Defense counsel]: And do you remember whether you
testified at that hearing that the masked man was Jabar
Ballard?

[Kashon]: Yes, I guess, I don’t remember anything.

[Defense counsel]: But, you remember today, you know
today that it was Jabar Ballard?

[Kashon]: Yes, ma’am.

...
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[Defense counsel]: But you never told anybody that day
that it was Jabar Ballard, did you?

[Kashon]: No, ma’am.

¶ 19 Additionally, trial counsel presented R. Smithwick (“Mr. Smithwick”) as an

impeachment witness. Mr. Smithwick, who represented Defendant during pretrial

proceedings, testified that Kashon was unable to identify Defendant as the

perpetrator during the probable cause hearing.

¶ 20 Although impeachment with the actual statement could have been more

effective than these methods used, this is not the test for materiality. Here, trial

counsel was able to effectively cross-examine and impeach Kashon without the

original statement, revealing inconsistencies in his testimony to the jury. We do not

believe that, had trial counsel instead impeached Kashon with the original statement,

there would have been a “reasonable probability of a different result[.]” Williams,

362 N.C. at 636, 669 S.E.2d at 296 (internal marks omitted).

¶ 21 Finally, the suppression of the statement was not enough to “undermine

confidence in the outcome of the trial.” Williams, 362 N.C. at 636, 669 S.E.2d at 296

(internal marks and citation omitted). The jury’s verdict was not premised solely on

Kashon’s eyewitness testimony and identification of Defendant as the perpetrator.

Kashon’s father and Defendant’s cousin, Hardy, was also an eyewitness to the crime,

and Hardy unwaveringly identified the perpetrator as Defendant both in his
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statements to police and at trial.

D. Napue Claim

¶ 22 Defendant argues that the trial court erroneously denied his Napue claim that

the State violated his right to due process by presenting evidence the State knew was

false. The trial court concluded that “there is no indication that the prosecution knew

the testimony was false.” After careful review, we affirm the trial court’s conclusion

on Defendant’s Napue claim.

¶ 23 A defendant’s due process rights are violated when a State witness gives false

testimony that the prosecution knew to be false. Napue v. Illinois, 360 U.S. 264, 269

(1959). In order to prove a Napue violation, a defendant must show that “testimony

was in fact false, material, and knowingly and intentionally used by the State to

obtain his conviction[.]” State v. Call, 349 N.C. 382, 405, 508 S.E.2d 496, 511 (1998)

(internal marks and citations omitted). If a defendant meets this burden, he is

entitled to a new trial. Id.

¶ 24 However, “there is a difference between the knowing presentation of false

testimony and knowing that testimony conflicts in some manner. It is for the jury to

decide issues of fact when conflicting information is elicited by either party.” State v.

Allen, 360 N.C. 297, 305, 306, 626 S.E.2d 271, 279 (2006) (concluding that “the

prosecution did not violate defendant’s constitutional rights by submitting conflicting

testimony when nothing in the record tends to show the prosecution knew the
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testimony was false”).

¶ 25 Here, Defendant specifically argues that the State knew Kashon’s testimony

identifying Defendant as the perpetrator was false because (1) Chief Taylor testified

at Defendant’s probation revocation hearing that Kashon “never looked at the

[perpetrator’s] face” and the State had a copy of this testimony, and (2) an assistant

district attorney (“ADA”) that interviewed Kashon wrote notes indicating that

Kashon saw “a man with a ‘hunting hoodie’ and ‘hunting pants,’ mask and Vasqueds

shoes.”

¶ 26 However, even assuming the other Napue elements are met, the record does

not support Defendant’s contention that the State knew Kashon’s testimony was

false. Although Kashon’s trial testimony that he instantly identified Defendant as

the robber was inconsistent with Chief Taylor’s pre-trial testimony that Kashon never

saw his face, “there is a difference between knowing presentation of false testimony

and knowing the testimony conflicts in some manner.” Allen, 360 N.C. at 305, 626

S.E.2d at 279. Moreover, despite indicating that Kashon saw “a man” in the first

reference to the perpetrator, the ADA’s notes do not support Defendant’s contention

that the State knew Kashon could not identify Defendant. The ADA’s notes from

Kashon’s interview also refer to the perpetrator as “JB,” Defendant’s initials, on every

reference thereafter. There was simply no record evidence that the State knew or

believed Kashon’s testimony to be false, and any inconsistencies in Kashon’s
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Opinion of the Court

identification of Defendant as the perpetrator were elicited during cross-examination,

as described above. Merely because inconsistent testimony was presented does not

suggest that such testimony was “knowingly and demonstrably false.” State v. Allen,

360 N.C. at 305, 626 S.E.2d at 279. Therefore, the trial court correctly concluded that

there was no evidence the State knew Kashon’s testimony was false to support

Defendant’s Napue claim.

E. Evidentiary Hearing

¶ 27 Defendant argues that the trial court erred by failing to grant an evidentiary

hearing on his Brady, Napue, and IAC claims because there were unresolved issues

of fact requiring an evidentiary hearing. We agree as to the IAC claims but reject

Defendant’s argument as to the Brady and Napue claims. Even accepting

Defendant’s factual allegations as true, he would not be entitled to relief on his Brady

and Napue claims as discussed above.

¶ 28 Evidentiary hearings on motions for appropriate relief are “the general

procedure rather than the exception.” State v. Howard, 247 N.C. App. 193, 207, 783

S.E.2d 786, 796 (2016). An evidentiary hearing is not required where the “motion

and supporting and opposing information present only questions of law[,]” however,

“[i]f the court cannot rule upon the motion without the hearing of evidence, it must

conduct a hearing for the taking of evidence, and must make findings of fact.” N.C.

Gen. Stat. § 15A-1420(c)(3), (4) (2021). In other words, “an evidentiary hearing is
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mandatory unless summary denial of an MAR is proper, or the motion presents a

pure question of law.” State v. Howard, 247 N.C. App. at 207, 783 S.E.2d at 796

(citing State v. McHone, 348 N.C. 254, 258, 499 S.E.2d 761, 763 (1998)).

¶ 29 For IAC claims in particular, “[w]here the claim raises potential questions of

trial strategy and counsel’s impressions, an evidentiary hearing available through a

motion for appropriate relief is the procedure to conclusively determine these issues.”

State v. Santillan, 259 N.C. App. 394, 402, 815 S.E.2d 690, 696 (2018) (internal

quotation and citation omitted). However, summary denial of a defendant’s MAR

alleging IAC—without a hearing—may be appropriate where a defendant fails to

support IAC claims with any evidence. State v. Rhue, 150 N.C. App. 280, 290, 563

S.E.2d 72, 79 (2002) (supporting the trial court’s summary denial of Defendant’s MAR

and rejecting defendant’s IAC claim, based partly on his attorney’s alleged failure to

contact various defense witnesses, where “defendant failed to file any affidavits or

other evidence to support his assertions that counsel was ineffective”) (emphasis

added)).

¶ 30 For reasons elaborated below, we hold that the trial court erred by not granting

an evidentiary hearing on Defendant’s IAC claims.

F. Ineffective Assistance of Counsel

¶ 31 On appeal, as relief, Defendant seeks an evidentiary hearing on his IAC claims,

and therefore “the question at this stage is not whether [Defendant] has proven that
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he received IAC. Instead, the question is whether he has stated facts which, if proven

true, would entitle him to relief.” Allen, 378 N.C. 286, 299, 2021-NCSC-88, ¶29. We

conclude that Defendant is entitled to an evidentiary hearing.

¶ 32 A criminal defendant’s right to counsel under the Sixth Amendment to the

United States Constitution includes the right to effective assistance of counsel. U.S.

Const. amend. VI; Strickland v. Washington, 466 U.S. 668, 685-86 (1984). “When a

convicted defendant complains of the ineffectiveness of counsel’s assistance, the

defendant must show that counsel’s representation fell below an objective standard

of reasonableness.” Strickland, 466 U.S. at 687-88. To prove ineffective assistance

of counsel, the United States Supreme Court created the following two-part test that

must be satisfied: (1) “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”;

and (2) “the defendant must show that the deficient performance prejudiced the

defense. This requires showing that counsel’s errors were so serious as to deprive the

defendant of a fair trial, a trial whose result is reliable.” Id. at 687.

¶ 33 “[C]ounsel has a duty to make reasonable investigations or to make a

reasonable decision that makes particular investigations unnecessary.” Id. at 691.

It follows that “[s]trategic choices made after thorough investigation of law and facts

relevant to plausible options are virtually unchallengeable; and strategic choices
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Opinion of the Court

made after less than complete investigation are reasonable [only] to the extent that

reasonable professional judgments support the limitations on investigation.” Wiggins

v. Smith, 539 U.S. 510, 514 (2003) (internal marks and citation omitted). “In any

ineffectiveness case, a particular decision not to investigate must be directly assessed

for reasonableness in all the circumstances, applying a heavy measure of deference

to counsel’s judgments.” Strickland, 466 U.S. at 689, 691 (“[T]he defendant must

overcome the presumption that, under the circumstances, the challenged action

might be considered sound trial strategy.” (internal quotation omitted)).

¶ 34 Decisions regarding “what witnesses to call” and “whether and how to conduct

cross-examination” are typically considered strategic choices in the “exclusive

province” of the lawyer. State v. Quick, 152 N.C. App. 220, 222, 566 S.E.2d 735, 737

(2002). See also State v. Lowery, 318 N.C. 54, 68, 347 S.E.2d 729, 739 (1986) (“Trial

counsel are necessarily given wide latitude in these matters. Ineffective assistance

of counsel claims are not intended to promote judicial second-guessing on questions

of strategy as basic as the handling of a witness.” (internal marks omitted)).

However, whether a defendant’s counsel “made a particular strategic decision

remains a question of fact, and is not something which can be hypothesized.” State v.

Todd, 369 N.C. 707, 712, 799 S.E.2d 834, 838 (2017) (emphasis added) (citation

omitted).
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¶ 35 Although there are no prior North Carolina cases precisely on point, other

courts have concluded that an attorney’s representation was deficient for failing to

contact and interview prospective alibi witnesses. See, e.g., Griffin v. Warden, MD.

Correctional Adjustment Ctr., 970 F.2d 1355, 1358 (4th Cir. 1992) (“[Counsel] did not

even talk to [the prospective alibi witness], let alone make some strategic decision not

to call him.”); Grooms v. Solem, 923 F.2d 88, 90, 91 (8th Cir. 1991) (“[I]t is

unreasonable not to make some effort to contact [alibi witnesses] to ascertain whether

their testimony would aid the defense[,]” and “[p]rejudice can be shown by

demonstrating that the uncalled alibi witnesses would have testified if called at trial

and that their testimony would have supported [Defendant’s] alibi.”); Clinkscale v.

Carter, 375 F.3d 430, 445 (6th Cir. 2004) (“The fact that none of these individuals

could provide any corroboration for this alleged alibi certainly must have significantly

affected the jury’s assessment of [Defendant’s] guilt. Had even one alibi witness been

permitted to testify on [Defendant’s] behalf, [Defendant’s] own testimony would have

appeared more credible . . .”); Bryant v. Scott, 28 F.3d 1411, 1417 (5th Cir. 1994)

(“[Counsel’s] failure to investigate potential alibi witnesses was not a ‘strategic choice’

that precludes claims of ineffective assistance.”).

¶ 36 Because of the significance of a criminal defendant’s alibi defense, we are

persuaded that a trial counsel’s failure to investigate known alibi witnesses can

constitute deficient performance. Therefore, we focus our analysis primarily on
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Defendant’s IAC argument regarding counsel’s investigation of alibi witnesses.

¶ 37 In her affidavit, which was attached as an exhibit to Defendant’s MAR, trial

counsel testified as follows regarding her handling of Defendant’s alibi witnesses and

defense:

10. During the course of my representation prior to trial,
I interviewed Toye Baker, Tiye Cheatham, and Vashaun
(Kyheim) Cheatham. . . .

11. I did not look for the progress report to determine if
it existed and / or corroborated Tiye’s alibi for Jabar. . . .

12. I filed a notice of alibi on August 4, 2011. . . .

13. On August 30, 2011, I e-mailed the prosecutor, Gina
Essey, to inform her of Mr. Ballard’s potential alibi
witnesses: Toye Baker, Tiye Cheetham (sic), Kyheem
Cheetham (sic), Khalies (sic) Ballard, and Jauhar Ballard.
...

14. I did not present any alibi witnesses at Mr. Ballard’s
trial.

15. I do not recall whether I interviewed Khalief
Ballard.

...

20. Shortly before trial, I received additional discovery
from the State consisting of Mr. Ballard’s recorded
telephone conversations from jail. I believed and I told the
Court that I had a right to hear those recordings so that I
could prepare a defense. I thought there could be things in
those recordings that could exonerate Mr. Ballard. I did
not know if Mr. Ballard discussed his alibi in those
recordings.
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¶ 38 Regarding counsel’s allegedly deficient investigation into Defendant’s alibi,

there is a significant omission from the Order that the State fails to address on

appeal: potential alibi witness, Khalief Ballard, corroborated Defendant’s alibi and

claimed to have been with him the morning of the crime. Defendant now claims that

Khalief, Defendant’s son, was never contacted or interviewed by trial counsel prior to

trial. In her affidavit, trial counsel states that she “do[es] not recall” whether she

interviewed Khalief, although she concedes he was not on her witness list. In his

sworn statement, Khalief claims that he “was never contacted or interviewed” by trial

counsel about his father’s case. Moreover, nothing in the record indicates why counsel

may have chosen not to interview Khalief, and, in fact, we do not know whether trial

counsel interviewed him at all. Because whether a defendant’s counsel “made a

particular strategic decision remains a question of fact, and is not something which

can be hypothesized[,]” Todd, 369 N.C. at 712, 799 S.E.2d at 838 (emphasis added),

we cannot say with certainty whether counsel strategically decided not to investigate

Khalief as an alibi witness, and this factual issue can only be appropriately resolved

at an evidentiary hearing. See also Allen, 378 N.C. at 300, 2021-NCSC-88, ¶32 (“[T]he

court is not at liberty to invent for counsel a strategic justification which counsel does

not offer and which the record does not disclose.”).

¶ 39 Therefore, applying Strickland, Defendant has sufficiently alleged a factual

dispute regarding his alibi defense that, if ultimately proven true, would support his
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Opinion of the Court

contention that counsel’s failure to investigate Khalief as an alibi witness was

deficient and prejudiced the outcome of the trial. He is entitled, at a minimum, to an

evidentiary hearing on his IAC claims. We therefore vacate and remand the Order

of the trial court, with instruction to hold an evidentiary hearing on the IAC claims.

Because we conclude that the trial court erred in summarily denying one of

Defendant’s IAC claims, “we need not address his other claims here without the

benefit of a more fully developed factual record.” Allen, 378 N.C. at 303, 2021-NCSC-

88, ¶40.

G. Gatekeeper Order

¶ 40 In the Order, the trial court concluded that “pursuant to N.C.G.S. § 15A-

1419(a), Defendant’s failure to assert any other grounds in this Motion shall be

treated in the future as a BAR to any other motions for appropriate relief that he

might hereafter file in this case.” However, we have previously held that this statute

does not allow trial courts to enter “gatekeeper” orders that preclude defendants from

filing any future MAR, because “the determination regarding the merits of any future

MAR must be decided based upon that motion. Gatekeeper orders are normally

entered only where a defendant has previously asserted numerous frivolous claims.”

State v. Blake, 275 N.C. App. 699, 714, 853 S.E.2d 838, 848 (2020) (citations omitted).

Because this is not a case where Defendant “has filed many frivolous MARs asserting

the same claims[,]” id., we therefore vacate the erroneous gatekeeper portion of the
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trial court’s Order.

III. Conclusion

¶ 41 For the foregoing reasons, we affirm the Brady and Napue portions of the

Order, vacate the gatekeeper and IAC portions of the Order, and remand for the trial

court to conduct an evidentiary hearing on Defendant’s IAC claims.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

Judge MURPHY concurs with the exception of paragraph 35.

Judge GRIFFIN concurs by separate opinion.
 No. COA21-202 – State v. Ballard

GRIFFIN, Judge, concurring.

¶ 42 While I concur in the result reached in the case before us, this is, in part, based

solely upon this Court’s adherence to North Carolina Supreme Court precedent. I

write separately to express my concerns with our Supreme Court’s precedent binding

this Court to hold that Defendant is entitled to an evidentiary hearing on his IAC

claim.

¶ 43 The standard employed by the majority effectively guarantees any defendant

an MAR evidentiary hearing when the defendant merely alleges “facts which, if

proven true, would entitle him to relief.” State v. Allen, 378 N.C. 286, 2021-NCSC-

88, ¶ 29. The novel precedent set out in Allen requires this Court to review

Defendant’s MAR “in the light most favorable to [Defendant]” and “to vacate the

summary dismissal order and remand to the MAR court to conduct an evidentiary

hearing” if any factual disputes arise. Id. ¶ 24. I acknowledge the reliance on Allen

in utilizing this standard. However, the standard utilized in Allen is not supported

anywhere in the North Carolina General Statutes or North Carolina caselaw. Our

legislature, in writing this unambiguous statute, provided MAR defendants with

sufficient protections as the statute is written.

¶ 44 The holding in Allen allows a petitioning party to take away the gatekeeping

function of the trial judge. This results in meritless hearings that will deplete the

resources of our trial courts by simply alleging a disputed fact, regardless of its

legitimacy. Certainly, our Supreme Court thought about the practical implications
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of flooding our trial courts by applying this new standard for evidentiary hearings.

See id. ¶ 78 (Berger, J., dissenting) (“The majority opinion, however, strips trial court

judges of this important gatekeeping function. As a result, trial courts will now be

forced to spend precious time and resources conducting evidentiary hearings on

meritless post-conviction motions.”) This position clearly frustrates the plain

language of the statute, takes away discretion from our trial judges, and shows a need

for our Supreme Court to revisit its holding.

¶ 45 Requiring an evidentiary hearing in this instance runs counter to the plain

language of N.C. Gen. Stat. § 15A-1420(c), which states:

(1) Any party is entitled to a hearing on questions of law or
fact arising from the motion and any supporting or
opposing information presented unless the court
determines that the motion is without merit. The court
must determine, on the basis of these materials and the
requirements of this subsection, whether an evidentiary
hearing is required to resolve questions of fact. Upon the
motion of either party, the judge may direct the attorneys
for the parties to appear before him for a conference on any
prehearing matter in the case.

(2) An evidentiary hearing is not required when the motion
is made in the trial court pursuant to G.S. 15A-1414, but
the court may hold an evidentiary hearing if it is
appropriate to resolve questions of fact.

(3) The court must determine the motion without an
evidentiary hearing when the motion and supporting and
opposing information present only questions of law. The
defendant has no right to be present at such a hearing
where only questions of law are to be argued.
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(4) If the court cannot rule upon the motion without the
hearing of evidence, it must conduct a hearing for the
taking of evidence, and must make findings of fact. The
defendant has a right to be present at the evidentiary
hearing and to be represented by counsel. A waiver of the
right to be present must be in writing.

(5) If an evidentiary hearing is held, the moving party has
the burden of proving by a preponderance of the evidence
every fact essential to support the motion.

(6) A defendant who seeks relief by motion for appropriate
relief must show the existence of the asserted ground for
relief. Relief must be denied unless prejudice appears, in
accordance with G.S. 15A-1443.

(7) The court must rule upon the motion and enter its order
accordingly. When the motion is based upon an asserted
violation of the rights of the defendant under the
Constitution or laws or treaties of the United States, the
court must make and enter conclusions of law and a
statement of the reasons for its determination to the extent
required, when taken with other records and transcripts in
the case, to indicate whether the defendant has had a full
and fair hearing on the merits of the grounds so asserted.

N.C. Gen. Stat. § 15A-1420(c) (2019). The official commentary of this section provides

for two types of hearings: “One is the hearing based upon affidavits, transcripts, or

the like, plus matters within the judge’s knowledge, to comply with the parties’

entitlement to a hearing on questions of law and fact. The other is an evidentiary

hearing.” N.C. Gen. Stat. § 15A-1420, Off. Comment. (2019).
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GRIFFIN, J., concurring.

¶ 46 Based on the plain language of the statute and its official commentary, the

trial court is permitted discretion to determine whether an evidentiary hearing is

required. See id. § 15A-1420(c)(1). Additionally, even when questions of fact are

presented to the trial court or a motion has merit, it is clear that an evidentiary

hearing is not necessarily required by the statute. Instead, the trial court has been

given clear authority in the statute to exercise discretion. If the motion presents a

factual dispute, the trial court may conduct a “hearing based upon affidavits,

transcripts, or the like, plus matters within the judge’s knowledge, to comply with

the parties’ entitlement to a hearing on questions of law and fact[,]” unless, “the court

cannot rule upon the motion without the hearing of evidence[.]” Id. §§ 15A-1420(c)(1),

(4), and Off. Comment. However, the statute clearly leaves open the possibility for

the trial court to resolve the motion without a hearing if the trial court determines it

is not necessary. See State v. Camp, 286 N.C. 148, 152, 209 S.E.2d 754, 756 (1974)

(“Where the language of a statute is clear and unambiguous, there is no room for

judicial construction and the courts must give [the statute] its plain and definite

meaning, and are without power to interpolate, or superimpose, provisions and

limitations not contained therein.” (citation and internal quotation marks omitted)).

¶ 47 Here, the trial court determined that it could decide the matter without an

evidentiary hearing. The trial court was provided with an extensive record from the

trial and post-conviction proceedings. The submissions before the judge included an
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GRIFFIN, J., concurring.

affidavit from the defense counsel and the alleged alibi witness. The trial judge had

sufficient information to decide the IAC claim and, in his discretion, determined the

MAR could be resolved without an evidentiary hearing. The trial court’s order stated

that “Defendant’s . . . assertions within his ineffective assistance of counsel claim

were strategic decisions regarding witnesses made by Defendant’s trial counsel” and

therefore “Defendant’s first claim . . . that he received ineffective assistance of

counsel, is without merit.” Since there were no factual disputes requiring a hearing

and the trial court found no merit to Defendant’s IAC claim, the trial court, within

its authority, summarily resolved the claims in its order.

¶ 48 While I disagree with the Allen standard regarding the evidentiary hearing, I

recognize that this Court is bound by our Supreme Court’s precedent. See Dunn v.

Pate, 334 N.C. 115, 118, 431 S.E.2d 178, 180 (1993) (“[T]he Court of Appeals . . . has

no authority to overrule decisions of [the] Supreme Court and [has] the responsibility

to follow those decisions until otherwise ordered by the Supreme Court.” (citations

and internal quotation marks omitted)). Accordingly, I concur in the majority

opinion.