IN THE SUPREME COURT OF NORTH CAROLINA

2021-NCSC-88

No. 115A04-3

Filed 13 August 2021

STATE OF NORTH CARLOLINA

v.

SCOTT DAVID ALLEN

On writ of certiorari pursuant to N.C.G.S. § 7A-32(b) to review orders

dismissing defendant’s claims asserted in his motion for appropriate relief entered on 

22 August 2016, 8 January 2018, and 6 February 2019 by Judge V. Bradford Long in 

Superior Court, Montgomery County. Heard in the Supreme Court on 26 April 2021.

Joshua H. Stein, Attorney General, by Nicholaos Vlahos, Assistant Attorney 

General, for the State-appellee. 

Olivia Warren and Michael L. Unti for defendant-appellant.

EARLS, Justice.

¶ 1 This case involves numerous post-conviction claims raised by defendant Scott 

David Allen, who was found guilty of the first-degree murder of Christopher Gailey 

and sentenced to death in Montgomery County in 2003. Allen challenged his 

conviction and sentence on direct appeal, but this Court unanimously found no error.

State v. Allen, 360 N.C. 297, 321 (2006). The Supreme Court of the United States 

denied certiorari. Allen v. North Carolina, 549 U.S. 867 (2006). Subsequently, Allen 

filed a motion for appropriate relief (MAR) in Superior Court, Montgomery County 
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(MAR court), in July 2007. Six years later, and before the MAR court ruled on his 

MAR, Allen filed a supplemental motion for appropriate relief (SMAR) amending 

some of his previous claims and adding two additional claims. The MAR court’s 

dismissal of these claims forms the basis of defendant’s petition to this Court.

¶ 2 Of the twelve total claims raised in Allen’s MAR and SMAR, five of them 

directly relate to his allegation that his trial attorneys rendered unconstitutionally 

ineffective assistance of counsel (IAC) during the guilt-innocence phase of his trial by 

failing to investigate, develop, and utilize various sources of exculpatory evidence.

The evidence Allen presented in support of these claims includes affidavits from 

acquaintances of Allen and the State’s primary witness, Vanessa Smith, implicating 

Smith in Gailey’s murder, as well as a report from a crime scene expert concluding 

that in light of the physical evidence discovered at the scene of Gailey’s death, Smith’s 

account of Gailey’s killing was “unfathomable.” Notwithstanding this evidence and 

the centrality of Smith’s testimony to Allen’s conviction, the MAR court dismissed 

Allen’s guilt-innocence phase IAC claims without conducting an evidentiary hearing 

to resolve disputed issues of fact. 

¶ 3 Based on well-established precedent, we conclude that Allen is entitled to an 

evidentiary hearing on his guilt-innocence phase IAC claims. Allen has “present[ed] 

assertions of fact which will entitle [him] to . . . relief . . . if resolved in his favor.” 

State v. McHone, 348 N.C. 254, 258 (1998). Therefore, under the statutory framework 
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governing post-conviction review of criminal convictions in North Carolina, the MAR 

court was obligated to conduct an evidentiary hearing prior to ruling on his MAR and 

SMAR claims, because “some of his asserted grounds for relief required the [MAR] 

court to resolve questions of fact.” Id. (interpreting N.C.G.S. § 15A-1420(c)(1)). 

Accordingly, we vacate the portions of the MAR court’s order summarily dismissing 

Allen’s guilt-innocence phase IAC claims and remand to the MAR court to conduct a 

full evidentiary hearing.

¶ 4 In addition, we hold that the trial court erred in summarily ruling that Allen’s 

claim alleging he was impermissibly shackled in view of the jury was procedurally 

barred. On this claim, we vacate the relevant portion of the MAR court’s order and 

remand for an evidentiary hearing to obtain the facts necessary to determine whether 

his claim is procedurally barred and, if not, whether it has merit. We affirm the MAR 

court’s disposition of all other claims raised in Allen’s MAR and SMAR.

I. Factual Background

A. Gailey’s death and Allen’s trial.

¶ 5 In 1998, Allen escaped from a North Carolina Department of Corrections work 

release program. Shortly after fleeing, he reunited with Smith, with whom he had 

maintained an on-again, off-again romantic relationship. The couple drifted from 

hotel to hotel, living off settlement proceeds Smith received after her father’s death. 

Allen and Smith regularly purchased and used large quantities of illegal drugs
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together. To evade detection, Allen obtained a friend’s birth certificate and driver’s 

license issued by the State of Washington. While travelling through Colorado, Allen 

became romantically involved with another woman, and Allen and Smith split up.

The former couple returned to North Carolina separately in the spring of 1999. That 

summer, they began living together in a mobile home owned by a friend, Robert 

Johnson, near the Uwharrie National Forest. Various friends and acquaintances 

lived in the mobile home while Smith and Allen resided in it, including Gailey, Allen’s 

friend and sometimes drug dealer.

¶ 6 Sometime during the afternoon of 9 July 1999, Allen, Smith, and Gailey

entered the Uwharrie National Forest. At some point that evening, somebody shot 

and killed Gailey. His body was later found by a passerby driving an all-terrain 

vehicle. Smith eventually told law enforcement Allen killed Gailey to steal his money 

and drugs. Both Allen and Smith were charged with murder. 

¶ 7 Approximately two weeks before Allen was brought to trial, Smith—who by 

that time had spent approximately twenty-three months in jail—entered into an 

agreement with the State. In exchange for her testimony against Allen, the State 

would drop the murder charges against her, and she would plead guilty to a lesser 

offense. At trial, Smith testified that Allen was the sole person responsible for 

Gailey’s death and that Allen acted in cold blood. According to Smith, Allen 

assassinated Gailey by shooting him from behind, unprovoked, as they walked along 
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a path in the woods. 

¶ 8 Because Allen did not testify, Smith provided the sole narrative of the events 

directly precipitating Gailey’s death. As we explained in our decision resolving Allen’s 

direct appeal, Smith was “a witness with less-than-perfect credibility.” Allen, 360 

N.C. at 306. She was a chronic heavy drug user who admitted to smoking marijuana 

shortly before Gailey’s death. She was involved in a tumultuous romantic relationship 

with Allen which he had recently broken off. She accused Allen of Gailey’s murder 

only after confronting him in Denver, Colorado, where Allen had reunited with a 

different ex-girlfriend. She testified at the trial pursuant to a deal with the State 

which significantly reduced her potential criminal liability. 

¶ 9 According to Smith’s account of events, on 9 July 1999, Allen told her and 

Gailey he had stashed weapons in a cabin in the Uwharrie National Forest, which he 

thought they could recover and trade for money and cocaine. The trio left together in 

Gailey’s truck to retrieve the weapons sometime in the afternoon, while it was still 

light out. The party began walking along a path through the forest. Gailey was 

carrying a duffel bag and a .45-caliber handgun. Allen carried a sawed-off shotgun.

During the walk, Gailey and Allen used powder cocaine. Smith smoked marijuana. 

Smith testified that after at least an hour of walking, the path narrowed, and the 

three proceeded single file with Gailey leading the way, followed by Allen and then 

Smith.
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¶ 10 At some point, Allen allegedly turned around, shoved Smith to the ground, and 

then without provocation began shooting at Gailey with the shotgun. Smith did not 

see Allen shoot Gailey, but she recounted hearing multiple gunshots. Smith and Allen 

then waited for “seven or eight hours” in a nearby cabin for Gailey to die. While they 

were waiting, Allen would periodically crawl towards Gailey’s body and throw rocks 

at him to ascertain whether Gailey was still alive. When Allen and Smith finally left 

the cabin, they heard Gailey empty his .45-caliber handgun. 

¶ 11 Allen and Smith left the forest together in Gailey’s truck. Smith retrieved 

Gailey’s wallet and their belongings from the mobile home. The two then drove to 

Shallotte and then to Albemarle in search of cocaine. However, by this point, Smith’s 

memory had begun to deteriorate due to her drug use. 

¶ 12 According to multiple witnesses, Smith and Allen ended up at a party at the 

home of one of Smith’s friends, where they encountered a man named Jeffrey Lynn 

Page, who would later testify at Allen’s trial. According to Page, who had never 

previously met Allen, Allen admitted that he had just shot a man in the Uwharrie 

National Forest and was looking to offload the dead man’s truck. Allen told Page he 

had thrown rocks at Gailey’s body to confirm he was dead because Allen knew Gailey 

was armed. Page bought Allen’s truck at well below market value and then flipped it 

to a South Carolina junk dealer for a profit. Like Smith, Page was also charged in 

connection with Gailey’s death—he was indicted for being an accessory after the fact 
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to Gailey’s murder—and testified at Allen’s trial pursuant to an agreement with the 

State.

¶ 13 Sometime after selling Gailey’s truck, Allen returned to Denver. Smith 

testified that one of her former romantic partners, who she reunited with shortly after 

Gailey’s death, loaned her money and a car to travel to Denver1 where she was able 

to track down Allen. Allen and Smith fought. Smith returned to North Carolina. Upon 

her return, Smith went to law enforcement to accuse Allen of murdering Gailey. 

¶ 14 Law enforcement officers who examined the crime scene discovered the 

following evidence:

• A .45-caliber semi-automatic handgun between Gailey’s feet, loaded with a 

magazine containing five live rounds, and one spent .45-caliber shell casing 

jammed in the receiver; 

• A number of live rounds of .45-caliber ammunition next to Gailey; 

• A magazine containing live rounds several feet from Gailey’s head; 

• A black t-shirt draped over a rock with another smaller rock on top of it, 

approximately four feet from Gailey’s body; 

• A nylon handgun holster; 

• Five expended shotgun shells; 

1 The former romantic partner subsequently filed a police report and testified at 

Allen’s trial that rather than loaning Smith the money and her car, Smith stole both items. 
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• A hunting knife located on top of a duffel bag; 

• A yellow container with $1,944.00 in cash on Gailey’s body. 

According to the State’s forensic pathologist, Gailey died from two gunshot wounds, 

one to the back of his right shoulder from close range and another to his right knee 

from a further distance. In the pathologist’s opinion, Gailey probably lost 

consciousness “within a matter of minutes” of sustaining his injuries, and it was 

“extremely unlikely” Gailey survived for more than an hour or two after he was shot. 

¶ 15 The State’s case rested primarily on the testimony of Smith and Page. No 

fingerprint, DNA, or forensic evidence connecting Allen to the crime scene was ever 

produced, nor was the alleged murder weapon—Allen’s sawed off-shogun—ever 

located. The jury was instructed on the offense of first-degree murder and the lesser 

included offenses of second-degree murder and voluntary manslaughter. During 

closing argument, the State emphasized Smith’s testimony that Allen had thrown 

rocks at Gailey’s body while they waited for hours for Gailey to die in seeking to 

persuade the jury to convict on a theory of malice, premeditation, and deliberation. 

Eschewing Smith’s initial theory that Allen murdered Gailey for his money, the State 

argued in closing that Allen killed Gailey “to keep him from ratting [Allen] out . . . 

[and] to keep [Allen] from being arrested for his year-long rampage.” The jury found 

Allen guilty of first-degree murder.

¶ 16 During the sentencing phase, the State submitted three aggravating 
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circumstances to the jury: (1) the murder was committed for the purpose of avoiding 

or preventing a lawful arrest; (2) the murder was committed for pecuniary gain; and 

(3) the murder was especially heinous, atrocious, or cruel. Allen’s trial counsel 

submitted one statutory mitigating circumstance and fourteen non-statutory 

mitigating circumstances. The jury determined the State had proven all three 

aggravating circumstances beyond a reasonable doubt. Allen established only two 

non-statutory mitigating circumstances—that he had been deeply affected by the 

death of his grandfather and that Allen’s death would have a detrimental impact on 

his family. The jury found the mitigating circumstances insufficient to outweigh the 

aggravating circumstances and that the aggravating circumstances, when considered 

with the mitigating circumstances, were sufficiently substantial to call for the 

imposition of the death penalty. Allen was sentenced to death.

B. Allen’s MAR and SMAR claims.

¶ 17 Allen filed his initial MAR on 2 July 2007. In his MAR, Allen asserted the 

following ten claims:

• Claim I: The State knowingly presented false and misleading evidence at trial 

in violation of Allen’s rights under the Fourteenth Amendment to the 

Constitution of the United States.

• Claim II: Allen’s trial counsel provided IAC during the guilt-innocence phase 

by failing to investigate and call defense witnesses who could have provided 
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exculpatory evidence.

• Claim III: Allen’s trial counsel provided IAC during the guilt-innocence phase 

by failing to effectively cross-examine the State’s witnesses. 

• Claim IV: The State failed to produce exculpatory material before trial in 

violation of Brady v. Maryland, 373 U.S. 83 (1963). 

• Claim V: The trial court lacked jurisdiction to try, convict, and sentence Allen 

because the State’s indictment for first-degree murder was fatally deficient. 

• Claim VI: Allen’s trial counsel rendered IAC during both the guilt-innocence 

and the sentencing phases of his trial by failing to object to the State’s improper 

statements during closing arguments. 

• Claim VII: Allen’s trial counsel rendered IAC during the sentencing phase by 

failing to present testimony from a mental health expert. 

• Claim VIII: Allen’s trial counsel rendered IAC during the sentencing phase by 

failing to investigate and present available mitigation evidence. 

• Claim IX: Allen’s trial counsel rendered IAC during the sentencing phase by 

failing to adequately prepare Allen’s witnesses to testify. 

• Claim X: Allen’s trial counsel rendered IAC based upon the cumulative effect 

of his counsel’s various errors during both the guilt-innocence and sentencing 

phases of his trial. 

In support of his MAR, Allen submitted statements and affidavits from individuals 
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who interacted with Allen, Gailey, and Smith before and after Gailey’s death, as well 

as from Allen’s friends and family members. Allen also submitted affidavits from two 

mental health experts, Dr. John F. Warren III, a forensic psychologist, and Dr. 

Kristine M. Herfkens, a neuropsychologist.

¶ 18 On 19 September 2013, Allen filed his SMAR. In his SMAR, Allen 

supplemented and amended various claims he initially raised in his MAR based upon 

new affidavits and statements elicited during additional post-conviction 

investigation. Allen again submitted affidavits from acquaintances of Smith’s who 

cast doubt on her version of events—including an affidavit from Smith’s former 

boyfriend stating that Smith told him she had been the one who developed and carried 

out the plan to jump Gailey and take his cocaine and cash. Of particular note, Allen 

submitted an affidavit and report prepared by Gregory McCrary (the McCrary 

Report), a former agent with the Federal Bureau of Investigation, who examined the 

evidence law enforcement found at the crime scene and determined it was 

inconsistent with Smith’s account of an unprovoked execution. Instead, McCrary 

concluded the evidence reflected a physical confrontation which had devolved into a 

shootout between Allen and Gailey. 

¶ 19 Allen’s SMAR also contained two new claims: 

• Claim XI: Allen’s trial counsel rendered IAC during the guilt-innocence 

phase by failing to investigate evidence implicating a third party in Gailey’s 
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murder. 

• Claim XII: Allen was impermissibly shackled in the presence of the jury 

without the trial court conducting a hearing or entering findings of fact as 

to the need for restraints.

Allen sought a new trial and sentencing hearing or, in the alternative, an evidentiary 

hearing on his MAR and SMAR claims.

¶ 20 In response, the State answered and moved for summary dismissal of all 

claims. On 17 May 2016, the MAR court sent the parties a Memorandum of Ruling 

asking the parties to draft proposed orders disposing of Allen’s MAR and SMAR 

claims. Ultimately, the MAR court issued three separate orders. 

¶ 21 The first order—the “Order Summarily Dismissing Certain Claims of 

Defendant’s Motion for Appropriate Relief and Supplemental Motion for Appropriate 

Relief”—summarily dismissed Claims I, II, IV, V, VI, X, XI, and XII in their entirety 

and certain subparts of Claim III.

2 The second order concerned the trial court’s 

decision to deny Allen access to some of Smith’s sealed mental health and substance 

abuse treatment records during trial. In this order, the MAR court provided for a 

“limited evidentiary hearing” to determine if Allen had presented sufficient evidence 

of prejudice to warrant a full evidentiary hearing. After conducting this limited 

2 The MAR court and the parties use numbers and Roman numerals interchangeably 

throughout the proceedings below. For consistency, we use Roman numerals when referring 

to Allen’s claims throughout this opinion.
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evidentiary hearing, the MAR court dismissed these sub-claims in its “Order 

Granting State’s Motion to Dismiss Claims 3H, 3J, 3K and a Portion of 3I of 

Defendant’s Supplemental Motion for Appropriate Relief.” The third order—the 

“Order on State’s Summary Denial Motion on Claims VII, VIII, and IX”—granted 

Allen an evidentiary hearing on his claims alleging IAC during the sentencing phase 

of his trial. After completing this full evidentiary hearing, the MAR court dismissed 

these claims in its “Order Granting State’s Motion to Dismiss Claims [VII], [VIII], 

and [IX] of Defendant’s Motion for Appropriate Relief and Supplemental Motion for 

Appropriate Relief.” 

¶ 22 On appeal, Allen challenges the MAR court’s disposition of every claim raised 

in his MAR and SMAR. On the claims the MAR court summarily denied or denied 

after the limited evidentiary hearing—Claims I, II, III, IV, V, VI, X, XI, and XII—

Allen asks us to vacate the orders dismissing those claims and remand for a full 

evidentiary hearing. On the claims the MAR court denied after a full evidentiary 

hearing—Claims VII, VIII, and IX—Allen seeks a reversal of the order dismissing 

those claims and a remand for a new sentencing proceeding. The State opposes and 

asks this Court to affirm the MAR court’s orders dismissing all claims. We hold that 

the MAR court erred in summarily dismissing Allen’s guilt-innocence phase IAC 

claims, as well as his impermissible shackling claim. We affirm the portions of the 

MAR court’s orders dismissing all other claims.
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II. Analysis

¶ 23 Our examination of the MAR court’s disposition of Allen’s MAR and SMAR 

claims necessarily begins with the statutes governing post-conviction review. Under 

N.C.G.S. § 15A-1420, a capital defendant who files an MAR within the appropriate 

time period “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.” N.C.G.S. § 15A-1420(c)(1) (2019). When a capital 

defendant has properly filed an MAR, the trial 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.” Id. If the defendant’s MAR and 

supporting materials create disputed issues of fact, then the MAR court is obligated 

to conduct an evidentiary hearing to resolve any disputed facts unless “the trial court 

can determine that the defendant is entitled to no relief even upon the facts as 

asserted by him.” McHone, 348 N.C. at 257.

3 By contrast, when a defendant’s MAR 

3 When a non-capital defendant files an MAR pursuant to N.C.G.S. § 15A-1414(a)(1), 

which must be filed within ten days after entry of judgment, the trial court is not required to 

conduct an evidentiary hearing. Instead, as provided under N.C.G.S. § 15A-1420(c)(2), “[a]n 

evidentiary hearing is not required when the motion is made in the trial court pursuant to 

[N.C.G.S. §] 15A-1414, but the court may hold an evidentiary hearing if it is appropriate to 

resolve questions of fact.” N.C.G.S. § 15A-1420(c)(2) (2019) (emphases added). Because Allen 

is a capital defendant who did not file his MAR pursuant to N.C.G.S. § 15A-1414, the trial 

court lacks discretion to refuse to conduct an evidentiary hearing if his MAR and supporting 

materials created disputed factual issues which, if resolved in his favor, would entitle him to 

relief.
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“presents only questions of law, including questions of constitutional law, the trial 

court must determine the motion without an evidentiary hearing.” Id.

¶ 24 Thus, our analysis of Allen’s challenge to the MAR court’s summary dismissal

of certain claims differs from our analysis of Allen’s challenge to the MAR court’s 

dismissal of other claims after conducting an evidentiary hearing. We review the 

MAR court’s summary dismissal de novo to determine whether the evidence 

contained in the record and presented in Allen’s MAR—considered in the light most 

favorable to Allen—would, if ultimately proven true, entitle him to relief. McHone, 

348 N.C. at 258 (“Under subsection (c)(4), read in pari materia with subsection (c)(1), 

(c)(2), and (c)(3), an evidentiary hearing is required unless the motion presents 

assertions of fact which will entitle the defendant to no relief even if resolved in his 

favor.”) (emphasis added); see also State v. Jackson, 220 N.C. App. 1, 6 (2012) (“[T]he 

ultimate question that must be addressed in determining whether [an MAR] should 

be summarily denied is whether the information contained in the record and 

presented in the defendant’s [MAR] would suffice, if believed, to support an award of 

relief.”).4 If answering this question requires resolution of any factual disputes, 

4 To be clear, the MAR court only views the evidence presented in a defendant’s MAR 

in the light most favorable to the defendant when making the initial determination as to 

whether the facts alleged by the defendant would entitle the defendant to relief if proven 

true. Nothing in this opinion alters the undisputed premise that the defendant ultimately 

bears the burden of proving by a preponderance of the evidence “the existence of the asserted 

ground for relief.” N.C.G.S. § 15A-1420(c)(6).
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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. McHone, 348 N.C. at 

259 (“This Court is not the appropriate forum for resolving issues of fact . . . .”). 5 At 

this stage, the MAR court is entitled to summarily dismiss claims that are irrelevant 

(e.g., claims that even if proven true, would not entitle the defendant to relief) and 

claims that are without any apparent evidentiary basis (e.g., unsupported 

assertions). When the factual allegations would entitle the defendant to relief if true, 

and the defendant’s filings provide some evidentiary basis for the allegations, then 

the MAR court must conduct an evidentiary hearing to determine the facts necessary 

to resolve the claim on its merits. However, if the MAR court has already conducted 

an evidentiary hearing, our role is “to determine . . . whether the findings of fact 

support the conclusions of law, and whether the conclusions of law support the order 

entered by the trial court.” State v. Matthews, 358 N.C. 102, 105–06 (2004) (quoting 

State v. Stevens, 305 N.C. 712, 720 (1982)). The MAR court’s factual findings are

“binding upon the [defendant] if they [a]re supported by evidence,” even if the 

5 The dissent erroneously states that “this Court did not remand McHone for an 

evidentiary hearing.” But see McHone, 348 N.C. at 258–60 (“[D]efendant also contends in the 

present case that he was entitled to an evidentiary hearing before the trial court ruled on his 

motion for appropriate relief as supplemented because some of his asserted grounds for relief 

required the trial court to resolve questions of fact. We find this contention to have 

merit. . . . The trial court erred in denying defendant's supplemental motion without an 

evidentiary hearing. . . . [W]e reverse the trial court's order denying defendant's motion for 

appropriate relief and remand this case to that court for further proceedings.”). Moreover, 

McHone is not the only authority for the disposition in this case. The MAR statute itself 

makes it clear that an evidentiary hearing is required in these circumstances.
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evidence is “conflicting,” Stevens, 305 N.C. at 719–20, but the MAR court’s conclusions 

of law are always reviewed de novo, State v. McNeill, 371 N.C. 198, 220 (2018).

¶ 25 We proceed by applying this legal framework to Allen’s claims as follows: First, 

we review the portions of the MAR court’s order summarily dismissing Allen’s claims 

alleging he received IAC during the guilt-innocence phase of his trial. Second, we 

review the other claims addressed in the summary dismissal order which do not 

directly allege IAC. Third, we review the order dismissing certain subparts of Claim 

III relating to the trial court’s refusal to grant Allen access to Smith’s treatment 

records entered after the MAR court conducted a “limited evidentiary hearing.”

Finally, we review the order dismissing Allen’s claims alleging IAC during the 

sentencing phase of his trial entered after the MAR court conducted a full evidentiary 

hearing.

A. Ineffective assistance of counsel during the guilt-innocence phase.

¶ 26 Allen’s argument that his attorneys rendered IAC during the guilt-innocence 

phase of his trial encompasses multiple interrelated claims. Because these claims 

substantially overlap both factually and legally—and because the MAR court 

disposed of these claims in a single summary dismissal order—we consider them 

together. Specifically, in this section, we consider in their entirety Claim II (trial 

counsel’s failure to investigate and call certain witnesses), Claim VI (trial counsel’s 

failure to object to improper statements during closing arguments), Claim X 
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(cumulative prejudice arising out of trial counsel’s multiple instances of deficient 

performance), and Claim XI (trial counsel’s failure to investigate evidence of a third

party’s guilt). We also consider the subparts of Claim III (trial counsel’s failure to 

effectively cross-examine the State’s witnesses) which the MAR court resolved 

without conducting an evidentiary hearing. Although addressed in the same order, 

we separately address the claims which do not predominantly concern Allen’s IAC 

allegations, namely Claim I (the State knowingly presented false and misleading 

evidence), Claim IV (the State failed to disclose exculpatory evidence before trial), 

Claim V (the trial court lacked jurisdiction because Allen’s indictment was fatally 

deficient), and Claim XII (Allen was impermissibly shackled in view of the jury). 

¶ 27 This Court has “expressly adopt[ed]” the two-part test articulated in 

Strickland v. Washington, 466 U.S. 668 (1984), as the “uniform standard to be applied 

to measure ineffective assistance of counsel under the North Carolina Constitution” 

and the Sixth Amendment to the Constitution of the United States. State v. Braswell, 

312 N.C. 553, 562–63 (1985). Under the first prong of the Strickland test, a defendant

must “establish that counsel’s performance was deficient.” State v. Todd, 369 N.C. 

707, 710 (2017). To prove deficient performance, “the defendant must show that 

counsel’s representation fell below an objective standard of reasonableness.” 

Strickland, 466 U.S. at 688. Under the second prong of the Strickland test, the 

“defendant must demonstrate that the deficient performance prejudiced [his] 
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defense.” Todd, 369 N.C. at 710–11. To prove prejudice, “[t]he defendant must show 

that there is a reasonable probability that, but for counsel’s unprofessional errors, 

the result of the proceeding would have been different. A reasonable probability is a 

probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. 

at 694.

¶ 28 We begin by examining Allen’s assertion that his trial counsel unreasonably 

failed to investigate the crime scene evidence, which is contained within Claim III as 

supplemented and amended in his SMAR. This portion of Claim III is substantially 

based upon the evidence contained in the McCrary Report. McCrary was retained by 

Allen’s post-conviction counsel to independently assess the evidence discovered by 

law enforcement at the scene of Gailey’s death. Based upon his analysis of the crime 

scene evidence, McCrary concluded that portions of Smith’s testimony were 

incompatible with the physical evidence and, in his judgment, “unfathomable.” 

According to McCrary, the crime scene evidence “refute[s] Ms. Smith’s assertion that 

Mr. Gailey was assassinated in cold blood, never having got his gun out.” Instead, in 

McCrary’s opinion, “the totality of the evidence at the [crime] scene is more consistent 

with a dispute that deteriorated into a gunfight and significantly contradicts and 

discredits Ms. Smith’s story.” 

¶ 29 Allen alleges his trial counsel were deficient for failing to obtain information 

regarding the inconsistencies between Smith’s testimony and the crime scene 
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evidence prior to trial. In Allen’s view, counsel’s failure to adequately investigate the 

crime scene prejudiced his case in at least two ways. First, it deprived him of the 

opportunity to choose to present testimony based upon the crime scene evidence 

which would have directly rebutted Smith’s account of Gailey’s death. Second, it 

deprived his counsel of the capacity to effectively cross-examine Smith on the 

discrepancies between her account and the physical evidence. The MAR court did not

conduct an evidentiary hearing on this claim, and Allen seeks only a remand for an 

evidentiary hearing. Therefore, the question at this stage is not whether Allen has 

proven that he received IAC. Instead, the question is whether he has stated facts 

which, if proven true, would entitle him to relief. We conclude that he has. 

¶ 30 An attorney can render IAC by failing to conduct an adequate investigation of 

the physical evidence of a crime. See, e.g., Elmore v. Ozmint, 661 F.3d 783, 864 (4th 

Cir. 2011) (“Because [the defendant] lawyers’ investigation into the State’s forensic 

evidence never started, there could be no reasonable strategic decision either to stop 

the investigation or to forgo use of the evidence that the investigation would have 

uncovered.”). Here, Allen has presented evidence which could support factual findings 

which could, in turn, establish a successful IAC claim. He has presented evidence 

supporting his contentions that (1) counsel were aware of the importance of the crime 

scene evidence before trial but unreasonably failed to follow up on these “red flags,”

Rompilla v. Beard, 545 U.S. 374, 392 (2005); (2) counsel did not perform an 
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independent investigation of the crime scene evidence; (3) counsel’s conduct was 

unreasonable when judged against prevailing professional norms in capital cases, 

including those outlined in the American Bar Association’s guidelines; and (4) 

counsel’s unreasonable failure to investigate was prejudicial. Given the centrality of 

Smith’s testimony to the State’s case, if each of these factual contentions were proven 

to be true, Allen would be entitled to a new trial. See, e.g., Elmore, 661 F.3d at 870 

(“Though perhaps the jury would have yet believed the [State’s witnesses], there is a 

reasonable probability that the jury would have doubted the [witnesses’] account” had 

defense counsel presented contradictory forensic evidence); Rompilla, 545 U.S. at 376 

(“The undiscovered . . . evidence, taken as a whole, might well have influenced the 

jury’s appraisal of [the defendant’s] culpability, and the likelihood of a different result 

had the evidence gone in is sufficient to undermine confidence in the outcome actually 

reached . . . .” (cleaned up) (first quoting Wiggins v. Smith, 539 U.S. 510, 538 (2003); 

then quoting Strickland, 466 U.S. at 694)). Thus, the MAR court erred in summarily 

dismissing Allen’s guilt-innocence IAC claims.

¶ 31 The MAR court’s reasoning in support of its decision to summarily dismiss 

these claims is critically flawed. According to the MAR court, Allen’s counsel’s failure 

to consult with or present testimony from a crime scene expert resulted from a “sound 

tactical decision.” This “sound tactical decision” purportedly reflected the reasonable 

trial strategy of “focus[ing] on the doubt created by Smith’s gaps in memory, addiction 
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and use of controlled substances on the date of Gailey’s death, and failure to maintain 

a cohesive timeline, rather than attempting to prove Defendant’s innocence through 

the use of a crime scene analyst.” 

¶ 32 It is correct that in considering an IAC claim, “a court must indulge a strong 

presumption that counsel’s conduct falls within the wide range of reasonable 

professional assistance.” Strickland, 466 U.S. at 689. However, this presumption is 

rebuttable. Once a defendant presents evidence rebutting the presumption of 

reasonableness, the court is not at liberty to invent for counsel a strategic justification 

which counsel does not offer and which the record does not disclose. See Wiggins, 539 

U.S. at 526–27 (rejecting “strategic” reasons that “the state courts and respondents 

all invoke to justify counsel’s limited pursuit of mitigating evidence [as] resembl[ing] 

more [of] a post hoc rationalization of counsel’s conduct than an accurate description 

of their deliberations prior to sentencing”). 

¶ 33 In this case, Allen has presented direct evidence indicating his trial counsel’s 

decision not to adequately investigate the crime scene—and their resulting decision 

not to present evidence derived from an adequate investigation or use such evidence 

to impeach Smith’s testimony—was not a reasonable strategic choice. His SMAR 

included an affidavit from one of his two trial attorneys explicitly stating that he 

“do[es] not recall [either himself or Allen’s other attorney] making any strategic 

decisions to limit the cross-examination of the State’s witnesses, including Vanessa 
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Smith.” This directly undercuts the MAR court’s presently unsupported theory that 

counsel’s failure to investigate resulted from a “tactical decision” to focus on Smith’s 

lack of credibility due to her drug use.

6 If it is true that trial counsel’s “failure to 

investigate thoroughly resulted from inattention, not reasoned strategic judgment,” 

then counsel’s performance was deficient. Wiggins, 539 U.S. at 526.

¶ 34 Even if trial counsel chose to pursue a “strategy” of focusing on Smith’s lack of 

credibility, counsel’s failure to adequately investigate the crime scene could still be 

unreasonable. Strickland, 466 U.S. at 690–91 (“[S]trategic choices made after less 

than complete investigation are reasonable precisely to the extent that reasonable 

professional judgments support the limitations on investigation.”). With the benefit 

of insights gleaned from the crime scene, counsel could have directly contradicted 

Smith’s account of Gailey’s death with tangible, extrinsic evidence, a tactic which 

would only serve a strategy centered around attacking Smith’s credibility. To answer 

the question of whether Allen’s counsel made a reasonable strategic judgment in 

foregoing a thorough investigation of the crime scene, the MAR court needed to 

6 The dissent advances the curious and novel position that because Allen’s trial 

counsel had represented other capital defendants without rendering IAC and had not been 

disciplined by the State Bar, Allen could not have received IAC at his trial or sentencing 

proceeding. The dissent cites no relevant authority for that proposition. The State never made 

this argument and we reject this contention. Obviously, the adequacy of an attorney’s 

representation in one trial does not establish the adequacy of an attorney’s representation in 

a different trial, nor does the IAC claim require that an attorney have been disciplined by the 

State Bar in order to demonstrate ineffective assistance. See, e.g., Strickland, 466 U.S. at 687 

(explaining that to prove IAC, a defendant must “show that counsel’s performance was 

deficient” and “that the deficient performance prejudiced the defense”). 
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resolve factual issues, a task our statutes do not permit it to undertake in these 

circumstances without first conducting an evidentiary hearing.

¶ 35 Alternatively, the MAR court rested its conclusion that Allen’s counsel was not 

deficient on the following brief statement Allen made during a colloquy with the trial 

court regarding his rights as a criminal defendant:

THE COURT: Knowing that you have the right to present 

evidence and you have the right not to, what is your desire 

about presenting evidence in this case?

MR. ALLEN: Well, I don’t know anything. I don’t know 

what happened, so I have nothing to contribute to it. 

According to the MAR court, this statement proves that “defense counsel[’s] decision 

not to call any witnesses [during] the guilt[-innocence] phase of Defendant’s trial was 

a tactical decision that was made after consultation with Defendant.” Even if this 

perfunctory exchange could possibly support the conclusion that counsel’s choices 

were strategic, it does not necessarily disprove Allen’s contention that counsel’s 

“tactical decision” was unreasonable, nor his argument that counsel could not 

reasonably make such an important “tactical decision” without first conducting an 

adequate investigation of the crime scene evidence.

¶ 36 The State’s arguments in support of the MAR court’s order are also 

unpersuasive. The State appears to argue that even if Allen’s counsel were deficient, 

Allen could not have been prejudiced because the crime scene evidence in no way 

detracted from the State’s overwhelming evidence of guilt. To begin with, Allen need 
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not present evidence which, if believed, would entirely exculpate him of all criminal 

conduct relating to Gailey’s killing. Allen was convicted of first-degree murder, which 

made him eligible to receive the death penalty. Yet the trial court also instructed on 

lesser included offenses for which he would not have been eligible to receive the death

even if he were convicted. If counsel’s conduct resulted in Allen being convicted of 

first-degree murder rather than second-degree murder or voluntary manslaughter, 

then Allen was prejudiced. 

¶ 37 Regardless, the State’s argument that Allen cannot prove prejudice rests on 

two erroneous premises. First, the State contends the McCrary Report cannot support 

Allen’s IAC claim because it failed to account for the State’s evidence indicating Allen 

shot Gailey “in the back at close range with a shotgun.” This assertion is belied by 

the text of the McCrary Report, which explicitly acknowledges the State’s medical 

examiner’s conclusion that Gailey was shot from “quite close, within a matter of a 

foot or so” and also from “several yards away.” McCrary’s conclusion that “the totality 

of the evidence at the [crime] scene is more consistent with a dispute that deteriorated 

into a gunfight” reflects his interpretation of all of the crime scene evidence, including 

the evidence the State relied upon in support of Allen’s conviction. 

¶ 38 Second, the State argues that because there was evidence indicating Allen shot 

Gailey “in the back at close range with a shotgun,” no rational juror could possibly 

conclude that Allen committed anything other than first-degree murder. As the State 
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bluntly puts it, “[s]hooting someone in the back at close range with a shotgun is not 

a gunfight, it is premeditated and deliberated murder.” This argument incorrectly 

suggests that Allen’s intent has been established as a matter of law by the manner of 

Gailey’s death. The State disregards more than a century of precedent explaining 

that “[w]hether an act is the result of premeditation and deliberation is a fact to be 

found by the jury, and not a conclusion of law to be drawn by the court.” State v. 

Daniels, 134 N.C. 671, 674 (1904). 

¶ 39 While the jury could have inferred that Allen acted with premeditation and 

deliberation based upon “the distance from which the shot was fired and . . . the 

weapon and ammunition used,” State v. Reece, 54 N.C. App. 400, 406 (1981), these 

facts would not have precluded Allen from persuading the jury to draw a different 

inference, see State v. Walker, 332 N.C. 520, 533 (1992) (concluding that the “nature 

of the killing, a contact shot to the temple, indicates a premeditated and deliberate 

act of homicide . . . [which] support[s] a reasonable inference” of intent (emphases 

added)). The nature of Gailey’s wounds is not necessarily inconsistent with the 

alternative theory propounded by McCrary of a drug-fueled confrontation that turned 

fatal, a theory Allen alleges is supported by physical evidence from the crime scene, 
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such as the evidence demonstrating Gailey fired his weapon and the unexplained 

presence of a hunting knife.

7

¶ 40 As described above, in addition to his argument based upon counsel’s 

purported failure to adequately investigate the crime scene evidence, Allen raises

other related IAC claims challenging other aspects of his trial counsel’s performance 

during the guilt-innocence phase of his trial. Having already determined that the 

MAR court erred in summarily denying one of Allen’s IAC claims, we need not 

address his other claims here without the benefit of a more fully developed factual 

record. Applying the two-prong Strickland test, we conclude that Allen has presented 

evidence supporting his contention that his attorneys provided IAC during the guiltinnocence phase of his trial, creating factual disputes which, if resolved in his favor, 

would entitle him to relief. At a minimum, he is entitled to further develop these 

claims during an evidentiary hearing. Todd, 369 N.C. at 712 (remanding for an 

evidentiary hearing because “the record before th[e] Court [was] not thoroughly 

developed regarding defendant’s appellate counsel’s reasonableness, or lack thereof, 

in choosing not” to pursue an argument).

7 Further, if the evidence could only support the conclusion Allen had committed firstdegree murder, the trial court would have had no reason to instruct on the lesser included 

offenses of second-degree murder and voluntary manslaughter, neither of which requires the 

State to prove the killing was committed with premeditation and deliberation. 
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¶ 41 Accordingly, we vacate the relevant portions of the MAR court’s order 

summarily dismissing Allen’s guilt-innocence IAC claims. Because “an evidentiary 

hearing is required unless the motion presents assertions of fact which will entitle 

the defendant to no relief even if resolved in his favor, or the motion presents only 

questions of law, or the motion is made pursuant to N.C.G.S. § 15A-1414,” McHone, 

348 N.C. at 258 (emphasis added), we remand to the MAR court to conduct an 

evidentiary hearing. At the evidentiary hearing, the MAR court will determine 

whether Allen’s counsel were deficient and, if so, whether counsel’s deficient 

performance was prejudicial.

¶ 42 If the MAR court reaches the question of prejudice, the MAR court must 

examine whether any instances of deficient performance at discrete moments in the 

trial prejudiced Allen when considered both individually and cumulatively. We reject 

the MAR court’s erroneous conclusion that cumulative prejudice is unavailable to a 

defendant asserting multiple IAC claims. We have previously acknowledged 

cumulative prejudice IAC claims, see, e.g., State v. Thompson, 359 N.C. 77, 121–22 

(2004) (recognizing cumulative prejudice argument but dismissing IAC claim on other 

grounds), as has the United States Supreme Court in Williams v. Taylor, 529 U.S. 

362, 396–98 (2000). Therefore, we adopt the reasoning of the unanimous Court of 

Appeals panel which recently concluded that “because [IAC] claims focus on the 

reasonableness of counsel’s performance, courts can consider the cumulative effect of 
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alleged errors by counsel.” State v. Lane, 271 N.C. App. 307, 316, review dismissed, 

376 N.C. 540 (2020), review denied, 851 S.E.2d 624 (N.C. 2020). 8 To be clear, only 

instances of counsel’s deficient performance may be aggregated to prove cumulative 

prejudice—the cumulative prejudice doctrine is not an invitation to reweigh all of the 

choices counsel made throughout the course of representing a defendant.

¶ 43 We next address the portions of the “Order Summarily Dismissing Certain 

Claims of Defendant’s Motion for Appropriate Relief and Supplemental Motion for 

Appropriate Relief” disposing of Claims I, IV, V, and XII. 

1. Knowing presentation of false and misleading evidence.

¶ 44 In Claim I of his MAR and SMAR, Allen alleges that the State violated his 

constitutional rights by allowing Smith to testify in a manner the State knew to be 

8 Our decision to recognize cumulative prejudice claims is based upon our own 

interpretation of Strickland and IAC doctrine, and is in accord with numerous federal and 

state appellate decisions (including the recent decision by our Court of Appeals), none binding 

on this Court, but which we find persuasive. See, e.g., Williams v. Washington, 59 F.3d 673, 

681 (7th Cir. 1995) (“In making this showing [of prejudice], a petitioner may demonstrate 

that the cumulative effect of counsel's individual acts or omissions was substantial enough 

to meet Strickland’s test.”); Rodriguez v. Hoke, 928 F.2d 534, 538 (2d Cir. 1991) (“Since [the 

defendant’s] claim of ineffective assistance of counsel can turn on the cumulative effect of all 

of counsel's actions, all his allegations of ineffective assistance should be reviewed together.”); 

Ewing v. Williams, 596 F.2d 391, 395 (9th Cir. 1979) (“[E]ven where, as here, several specific 

errors are found, it is the duty of the Court to make a finding as to prejudice, although this 

finding may either be ‘cumulative’ or focus on one discrete blunder in itself prejudicial.”); 

State v. Clay, 824 N.W.2d 488, 500 (Iowa 2012) (“[W]e [ ] look to the cumulative effect of 

counsel's errors to determine whether the defendant satisfied the prejudice prong of the 

Strickland test.”); State v. Thiel, 2003 WI 111, ¶ 4, 264 Wis. 2d 571, 581, 665 N.W.2d 305, 

311 (“We conclude that counsel's performance was deficient in several respects and that the 

cumulative effect of the deficiencies prejudiced [the defendant’s] defense to an extent that it 

undermines our confidence in the outcome of the trial.”).
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false and misleading. In support of his claim, Allen relies principally on postconviction affidavits from individuals whose account of events surrounding Gailey’s 

death differ from and conflict with Smith’s recollection. The MAR court determined 

this claim was procedurally barred pursuant to N.C.G.S. § 15A-1419(a)(3), which 

provides in relevant part that it is “grounds for the denial of a motion for appropriate 

relief, including motions filed in capital cases . . . [if u]pon a previous appeal the 

defendant was in a position to adequately raise the ground or issue underlying the 

present motion but did not do so.” In the alternative, the MAR court concluded this 

claim was meritless. 

¶ 45 On direct appeal, Allen alleged that the State presented two portions of Smith’s 

testimony which it knew to be false and misleading. Allen, 360 N.C. at 305. He argued

that the State knew Smith’s account of waiting hours for Gailey to die and hearing 

Gailey “empty his gun out” as she left the Uwharrie National Forest was false and 

misleading in light of the medical examiner’s testimony that Gailey could not have 

survived more than a brief time after being shot. Id. We rejected this claim, noting 

the “difference between the knowing presentation of false testimony and knowing 

that testimony conflicts in some manner.” Id. 

¶ 46 Assuming without deciding that Claim I is not procedurally barred—and even 

if the facts alleged in his supporting affidavits were proven to be true—the same 

distinction we recognized on direct appeal controls our disposition of Allen’s MAR 
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claim. We must again conclude that “nothing in the record tends to show the [State] 

knew [Smith’s] testimony was false.” Id. at 306. Thus, Allen cannot meet his burden 

of proving that the State “knowingly and intentionally used” false and misleading 

testimony “to obtain his conviction.” State v. Williams, 341 N.C. 1, 16 (1995). 

Accordingly, we affirm the portion of the MAR court’s order summarily dismissing 

Claim I.

2. Failure to produce exculpatory material before trial in violation of 

Brady v. Maryland.

¶ 47 In Claim IV of his MAR, Allen alleges that the State violated his constitutional 

rights as established in Brady v. Maryland, 373 U.S. 83 (1963). To establish a 

successful Brady claim, a defendant must prove that the State withheld evidence 

which would have been “favorable” to the defendant, either as impeachment evidence 

or exculpatory evidence, and that the evidence was “material,” meaning “there is a 

‘reasonable probability’ of a different result had the evidence been disclosed.” State v. 

Williams, 362 N.C. 628, 636 (2008) (quoting State v. Berry, 356 N.C. 490, 517 (2002)). 

A defendant’s burden . . . is more than showing that 

withheld evidence might have affected the verdict, but less 

than showing that withheld evidence more likely than not 

affected the verdict. When we consider whether there was 

a reasonable probability that the undisclosed evidence 

would have altered the jury’s verdict, we consider the 

context of the entire record.

State v. Best, 376 N.C. 340, 349 (2020) (cleaned up) (quoting United States v. Agurs, 

427 U.S. 97, 112 (1976)), petition for cert. filed, No. 20-1608 (U.S. May 18, 2021).
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¶ 48 The basis for Allen’s Brady claim was that the State provided an incomplete 

account of Page’s criminal record prior to putting him on the stand to testify. 

Although the State did convey information regarding other of Page’s prior criminal 

convictions, the State failed to disclose Page’s two prior criminal convictions for 

misdemeanor injury to personal property.

¶ 49 We are persuaded that Allen cannot prove these omitted prior convictions were 

“material” within the meaning of Brady. When Page testified, the jury was made 

aware of the fact that Page had previously been convicted of other, more serious 

crimes, that he had been charged as an accessory after the fact to Gailey’s murder, 

and that he had initially made false statements to law enforcement regarding his 

interactions with Allen. Informing the jury that Page had also committed two other 

minor crimes could not have meaningfully altered the jury’s perception of Page’s 

credibility as a witness. Under these circumstances, where the withheld information 

is substantially similar to information properly disclosed to counsel and presented to 

the jury, we conclude that Allen cannot “show[ ] that the favorable evidence could 

reasonably be taken to put the whole case in such a different light as to undermine 

confidence in the verdict.” Kyles v. Whitley, 514 U.S. 419, 435 (1995).

3. The trial court’s jurisdiction to try, convict, and sentence Allen.

¶ 50 In Claim V of his MAR, Allen alleges that his short-form indictment was 

constitutionally improper for failing to fully state the elements of first-degree murder 
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and the aggravating circumstances to be submitted to the jury. Allen raised this exact 

claim on direct appeal, which we denied, explaining that this Court has “consistently 

ruled short-form indictments for first-degree murder are permissible under . . . the 

North Carolina and United States Constitutions.” Allen, 360 N.C. at 316. Since 

Allen’s direct appeal, there has been no retroactively effective change in the 

applicable law. Accordingly, we affirm the portion of the MAR court’s order 

summarily dismissing this claim on the ground that it is procedurally barred 

pursuant to N.C.G.S. § 15A-1419(a)(2).

4. Impermissible shackling in view of the jury.

¶ 51 In Claim XII of his SMAR, Allen alleged that he was impermissibly shackled 

in view of the jury without justification, in violation of his constitutional rights. In 

support of his claim, Allen produced an affidavit from one juror stating that she 

“know[s] that . . . Allen had some type of shackles or restraints on during the trial” 

and an affidavit from an alternate juror stating that he “noticed . . . Allen’s 

appearance and demeanor in the courtroom . . . [and] saw that he had tattoos on his 

body and that he was wearing leg irons.” In addition, Allen’s post-conviction counsel 

disclosed to the MAR court that a different juror “told post-conviction investigators 

that [Allen] was shackled and ‘there were deputies all around him’ ” but refused to 

sign an affidavit. The State argued, and the MAR court agreed, that Allen’s claim was 

procedurally barred under N.C.G.S. § 15A-1419(a)(3). In the alternative, the MAR 
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court concluded that even if Allen’s shackling claim was not procedurally barred, it 

was meritless. 

¶ 52 Under both the North Carolina Constitution and the Constitution of the United 

States, a defendant may not be visibly shackled in the courtroom in the presence of 

the jury unless there is a special need for restraints specific to the defendant. See 

State v. Tolley, 290 N.C. 349, 367–68 (1976); see also Deck v. Missouri, 544 U.S. 622, 

626 (2005) (“The law has long forbidden routine use of visible shackles during the 

guilt phase; it permits a State to shackle a criminal defendant only in the presence of 

a special need.”). Mirroring this constitutional rule, North Carolina law permits a 

trial court to order a defendant restrained in the courtroom only when doing so is 

“reasonably necessary to maintain order, prevent the defendant’s escape, or provide 

for the safety of persons,” and only after the trial court “[e]nter[s] in the record out of 

the presence of the jury and in the presence of the person to be restrained and his 

counsel, if any, the reasons for” imposing the restraints. N.C.G.S. § 15A-1031 (2019).

The defendant must also be afforded an opportunity to be heard on the matter, and 

the trial court must instruct the jurors “that the restraint is not to be considered in 

weighing evidence or determining the issue of guilt.” Id.; see also Sigmon v. Stirling, 

956 F.3d 183, 202 (4th Cir. 2020) (noting the “longstanding” constitutional 

requirement “for the trial court to articulate a reason for [imposing] visible restraints 

on the record”). Typically, adherence to this mandatory statutory procedure ensures 
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that evidence of a defendant’s shackling appears in the record and transcript of trial,

enabling the defendant to challenge the trial court’s decision to impose restraints on 

direct appeal.

¶ 53 In this case, however, there is no evidence in the record and transcript 

suggesting Allen was restrained at all during trial. The trial court did not enter 

factual findings as would have been required prior to ordering Allen shackled 

pursuant to N.C.G.S. § 15A-1031. The record and transcript do not reflect that Allen 

entered an objection or otherwise noted that he was restrained in a manner visible to 

the jury at any point during trial. The record and transcript reflect that Allen did not 

request and the trial court did not give a jury instruction that his appearance in 

restraints was not to be considered as evidence of his guilt.

¶ 54 Consistent with the logic of our decision in State v. Hyman, 371 N.C. 363 

(2018), we conclude that the MAR court erred in summarily dismissing Allen’s 

shackling claim as procedurally barred. We reject the State’s invitation to construe 

N.C.G.S. § 15A-1419(a)(3) broadly as a general prohibition on post-conviction review 

of any claim not raised on direct appeal. Instead, we agree with Allen that a claim is 

not procedurally barred when the record on appeal is completely silent as to 

dispositive facts necessary to prove or disprove the claim. Because the record does not 

reveal the information necessary to determine whether Allen’s claim is procedurally 

barred, the MAR court erred in summarily concluding that Allen was “in a position 
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to adequately raise the ground or issue underlying the [MAR claim]” on direct appeal 

within the meaning of N.C.G.S. § 15A-1419(a)(3).

¶ 55 In Hyman, we held that a defendant was not procedurally barred from raising 

an IAC claim on post-conviction review, even though he had not raised the claim on 

direct appeal. Hyman, 371 N.C. at 383. In that case, the defendant’s IAC claim 

challenged his attorney’s failure to withdraw from representing him during trial. Id.

at 381. The attorney worked at a law firm that had previously represented a witness 

who was testifying at the defendant’s trial and whose testimony inculpated the 

defendant. Id. at 367–68. During cross-examination, an exchange between counsel 

and the inculpating witness suggested that the witness had previously conveyed a 

different account of the events in question than the one the witness was offering at 

trial. Id. at 372. The defendant argued that his attorney should have withdrawn from 

the representation and testified regarding the content of this alleged prior 

conversation. Id. at 367. 

¶ 56 In concluding that the Hyman defendant’s claim was not procedurally barred,

we explained that in order to prove that his attorney rendered IAC, the defendant 

was required to prove numerous facts, including that (1) the alleged pretrial 

conversation between the witness and the defendant’s attorney had indeed occurred;

(2) the witness made statements inconsistent with his trial testimony during said 

conversation; (3) the attorney did not have a strategic reason for failing to withdraw 
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from representing the defendant; and (4) the testimony the attorney would have been 

able to deliver would have benefitted the defendant. Id. at 384–85. We reasoned that 

because “[t]he record developed at trial did not contain any information affirmatively 

tending to show” any of those facts, the record did not “contain[ ] sufficient 

information to permit the reviewing court to make all the factual and legal 

determinations necessary to allow a proper resolution of the claim in question.” Id. at 

383–84 (emphasis added). We thus held that the procedural bar set forth in N.C.G.S. 

§ 15A-1419(a)(3) did not apply. Id. at 385.

¶ 57 This reasoning requires us to hold that the MAR court erred in summarily 

concluding that Allen’s shackling claim was procedurally barred. To assess Allen’s 

shackling claim, three threshold facts must first be established. First, Allen must 

show that he was indeed shackled in the courtroom. Second, he must establish that 

the shackles were visible to the jury. Third, he must establish whether or not his trial 

counsel was aware that he was shackled in a way that was visible to the jury in the 

courtroom. Only when these facts have been established is it possible for a reviewing 

court to ascertain (1) whether or not the claim is procedurally barred, and (2) whether 

or not the trial court imposed restraints under circumstances which undermined the 
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fairness of the defendant’s trial and the validity of its outcome.

9 See State v. Holmes, 

355 N.C. 719, 729 (2002) (holding that where shackles are not visible to the jury, “the 

risk is negligible that the restraint undermined the dignity of the trial process or 

created prejudice in the minds of the jurors by suggesting that defendant is a 

dangerous person”).

¶ 58 The record and transcript from Allen’s trial are devoid of any information 

which would allow a court to resolve these central factual questions. If Allen had 

brought his claim on direct appeal, the only way a reviewing court could assess his 

claim would be by guessing or presuming answers. This is precisely the kind of 

circumstance in which further factual development is necessary to reach an informed 

judgment of a defendant’s claim. As Hyman illustrates, given the affidavits Allen filed 

which indicate he may be able to prove the facts necessary to prevail on his claim, the 

proper course is to analyze Allen’s shackling claim after an evidentiary hearing to 

determine the central facts at issue, rather than ruling without receiving the 

9 We do not have before us the question of whether counsel’s failure to object to the 

imposition of visible restraints could form the basis of an IAC claim. See, e.g., Roche v. Davis, 

291 F.3d 473, 483 (7th Cir. 2002) (concluding that a capital defendant’s counsel was deficient 

under Strickland because “not only did counsel fail to object to [the defendant’s] shackling, 

he also failed to ensure that [the defendant’s] shackles would not be visible to the jury while 

[the defendant] was sitting at counsel’s table during the entire trial”); Jackson v. Washington, 

270 Va. 269, 280 (2005) (concluding that “counsel’s failure to object to [the defendant] being 

compelled to stand trial before the jury in jail clothes” rendered IAC). We leave it to the MAR 

court in the first instance to determine whether Allen should be permitted to again amend 

his MAR to include an allegation that he received IAC based upon a failure to object to his 

alleged shackling in view of the jury.
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necessary facts.

¶ 59 The State argues that we should ignore the impossibility of resolving Allen’s 

claim on the existing record because the insufficiency of the record purportedly 

results from Allen’s own failure to supply at trial or on appeal the necessary 

information. Yet this presumes that either Allen or his trial counsel possessed all of 

the information required to perfect the record on appeal. Even though Allen and his 

counsel would have known whether Allen was shackled at trial, they may not have 

known whether his shackles were visible to the jury or whether, in the absence of a 

hearing on the matter, he was legally compelled to be shackled in the courtroom. More 

facts are needed to ascertain whether Allen was in an adequate position to raise this 

claim on direct appeal.

¶ 60 The State argues in the alternative that Allen is precluded from raising his 

shackling claim on post-conviction review because he failed to object to his purported 

shackling at trial. This argument misses the mark. Subsection 15A-1419(a)(3)

contains no language restricting post-conviction review to claims that were preserved 

at trial. Indeed, claims preserved at trial can always be brought on direct appeal and 

the statute would, construed in this way, effectively prevent post-conviction review of 

all claims. The legislature did not include any language suggesting that a defendant’s 

failure to object at trial triggers application of the procedural bar. We reject the 

State’s invitation to read into the statute an extra-textual requirement the legislature 
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understandably did not see fit to include. 

¶ 61 We have previously rejected and continue to disclaim any interpretation of 

N.C.G.S. § 15A-1419(a)(1)–(4) which imposes “a general rule that any claim not 

brought on direct appeal is forfeited on state collateral review.” State v. Fair, 354 N.C.

131, 166 (2001) (quoting McCarver v. Lee, 221 F.3d 583, 589 (4th Cir. 2000), cert. 

denied, 531 U.S. 1089 (2001)). The rule is not that any claim not litigated on direct 

appeal cannot be brought in post-conviction proceedings. The rule is that such claims 

may be brought unless one or more of the procedural bars set forth in the relevant 

statutes applies and is not waived. On the present record, we are unable to conclude 

that Allen was “in a position to adequately raise the ground or issue underlying” his 

shackling claim on direct appeal but failed to do so. N.C.G.S. § 15A-1419(a)(3).

¶ 62 Having examined the facts and circumstances of Allen’s shackling claim, we 

conclude that the trial court erred in summarily dismissing Allen’s claim as 

procedurally barred because the record does not contain facts necessary to a fair

resolution of the claim. Because Allen has presented sufficient evidence which would 

entitle him to an evidentiary hearing in the event that he can demonstrate his claim 

is not procedurally barred, we vacate the portion of the MAR court’s order summarily 

dismissing Claim XII of his SMAR and remand to the trial court to conduct an 

evidentiary hearing to determine whether his shackling claim is procedurally barred 

and whether the claim has merit. See McHone, 348 N.C. at 258. At the hearing, as an 
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initial matter, Allen will have the burden of proving by a preponderance of the 

evidence (1) that he was shackled, (2) that he was shackled in the courtroom in the 

presence of, and in a manner visible to, the jury, and (3) whether his counsel knew he 

was impermissibly shackled in the courtroom and in the view of the jury.

B. Claims regarding trial counsel’s access to Smith’s medical records.

¶ 63 At trial, Allen’s counsel sought access to records produced during Smith’s stay

at the Black Mountain Treatment Center in October 1993, as well as records from a 

period of involuntary commitment she experienced in Stanley County. The trial court 

granted the order but provided that when the documents were produced, the court 

would review them in camera to determine whether they should be disclosed to 

counsel. After conducting this review, the trial court released only the records of 

Smith’s involuntary commitment. The trial court withheld all records obtained from 

the Black Mountain Treatment Center on the grounds that they contained no 

evidence indicating Smith suffered from any pertinent mental health conditions (e.g., 

conditions which would affect her credibility as a witness), nor any evidence 

indicating substance abuse issues distinct from what Smith herself had admitted to 

at trial. 

¶ 64 In his SMAR, Allen supplemented Claim III of his original MAR to include 

additional subclaims relating to the trial court’s refusal to disclose the Black 
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Mountain Treatment Center records.

10 While the precise nature and scope of the 

subclaims in Claim III vary, each is predicated on Allen’s antecedent argument that 

the trial court violated his constitutional rights by failing to release the records to his 

counsel after conducting only an in camera review.

11

¶ 65 After determining that Allen was not procedurally barred from pursuing these 

subclaims, the MAR court conducted a “limited evidentiary hearing to determine if 

Defendant suffered any sufficient prejudice to warrant a full evidentiary hearing on 

SMAR sub-claims 3H, 3J, 3K and that portion of sub-claim 3I that relates to the in 

camera examination of the sealed mental health and substance abuse records of 

State’s trial witness Vanessa Smith.” At this hearing, Allen presented testimony from 

Dr. Warren, one of his mental health experts. Dr. Warren testified that although 

Smith was not formally diagnosed with any pertinent mental health conditions at the 

Black Mountain Treatment Center, the records contained evidence that she suffered 

from borderline and antisocial personality disorders. He explained that he based his

10 Although these allegations are contained within a broader claim alleging IAC 

during the guilt-innocence phase of trial, the MAR court conducted an evidentiary hearing 

solely on these subclaims.

11 Subclaim 3H contends that defendant’s trial counsel were rendered ineffective by 

the trial court’s unconstitutional refusal to reveal the Black Mountain Treatment Center 

records; Subclaim 3J contends that the trial court impermissibly refused Allen the 

opportunity to conduct voir dire of Smith and Dr. Warren regarding the importance of the 

records prior to the trial court’s determination not to release the records to Allen; Subclaim

3K contends that Allen should have been allowed to submit extrinsic evidence of Smith’s 

unreliability contained in the records; and the relevant portion of Subclaim 3I contends that 

Allen’s counsel were ineffective because they cross-examined Smith without knowledge of the 

information contained in the records.
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conclusion on the varying and conflicting statements Smith made to staff which were 

contained within the records, as well as the staff’s description of Smith as “spiritually 

bankrupt,” which he asserted was a term of art used by mental health professionals

to refer to an individual who suffers from certain mental illnesses. The parties 

subsequently submitted post-hearing briefs. Ultimately, the MAR court entered an 

order containing numerous findings of fact in support of its conclusion of law that 

Allen “has failed to establish that he suffered any sufficient prejudice to warrant a 

full evidentiary hearing on [SMAR Subclaims 3H, 3J, 3K and the relevant portion of 

3I].” The MAR court dismissed these subclaims. 

¶ 66 There were two bases for the MAR court’s conclusion that Allen could not have 

been prejudiced by the trial court’s refusal to convey Smith’s Black Mountain 

Treatment Center records. First, the MAR court found that the records were “bereft 

of any evidence to support an Axis II Personality B Complex Array diagnosis” and 

that Dr. Warren’s attestations to the contrary were “wholly unpersuasive.” Second, 

the MAR court found that Allen was permitted to “vigorously cross-examine Smith 

regarding her extensive abuse of several controlled substances, her abuse of alcohol, 

her early departure from a drug treatment facility, and several other topics meant to 

impugn her credibility.” 

¶ 67 We read the MAR court’s findings of fact collectively as determining that (1) 

the Black Mountain Treatment Center records did not contain evidence indicating 
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Smith suffered from a pertinent mental health condition, and (2) the records did not 

contain evidence regarding Smith’s substance abuse that meaningfully differed from 

the information Smith herself disclosed to the jury during her testimony. In the MAR 

court’s view, because the records did not supply an alternative basis for impeaching 

Smith’s credibility (evidence of a pertinent mental health condition)—and because 

the other information the records contained was largely duplicative of Smith’s 

testimony (evidence of her substance abuse disorders)—Allen could not have been 

prejudiced by the trial court’s failure to release the records.

¶ 68 We reiterate that when the MAR court has entered findings of fact in support 

of its conclusions of law, our review is limited to “determin[ing] whether the findings 

of fact are supported by evidence, whether the findings of fact support the conclusions 

of law, and whether the conclusions of law support the order entered by the trial 

court.” Stevens, 305 N.C. at 720. Our inquiry does not change when, as in this case, 

the MAR court chooses to bifurcate its proceedings and first conducts a limited 

evidentiary hearing on a single potentially dispositive issue, as opposed to 

immediately conducting a full evidentiary hearing on all issues associated with a 
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claim.12 Examining the MAR court’s findings of fact, we conclude that they are 

supported by the evidence, that the findings support the MAR court’s conclusions of 

law, and that the conclusions of law in turn justify the order dismissing these 

subclaims.

¶ 69 Although Dr. Warren asserted that the treatment records contained 

information tending to show Smith suffered from a pertinent mental health condition, 

the MAR court was entitled to disbelieve his testimony. The MAR court’s contrary 

inference is supported by the contents of the records themselves, which do not contain 

any reference to or diagnosis of any pertinent mental health disorder, even though 

Smith was examined by multiple physicians. Similarly, although the records 

contained information illustrating the severity and persistence of Smith’s substance 

abuse issues, the transcript of Smith’s cross-examination at trial supports the trial 

court’s finding that the jury was already aware of the extent of her history of chronic 

substance abuse issues and that the medical records would have merely been 

cumulative documentation of an uncontested fact. These findings support the 

12 Allen does argue that the MAR court erred by conducting a limited evidentiary 

hearing, instead of a full evidentiary hearing. However, Allen does not provide support for 

his contention that in conducting a limited hearing, the MAR court “deprived Allen of a full 

opportunity to support his factual allegations that he was entitled to a new trial.” Nor does 

he identify how the limited evidentiary hearing—and the MAR court’s subsequent request 

for post-hearing briefs and its allowance of the further offer of proof from Allen’s postconviction counsel regarding the records from another mental health expert, Dr. Herfkens—

purportedly fell short of what is required under N.C.G.S. § 15A-1420(c)(1)–(4). Accordingly, 

we find no merit in his contention that the MAR court’s handling of these subclaims violated 

his constitutional rights.
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conclusion that Allen “has failed to establish that the trial court’s withholding of the 

Black Mountain [Treatment Center] Records from his trial counsel and the State 

violated any of his constitutional rights or deprived Defendant of a fair trial.” 

Accordingly, we affirm the Order Granting State’s Motion to Dismiss Claims 3H, 3J, 

3K, and a Portion of 3I of Defendant’s Supplemental Motion for Appropriate Relief.

C. Ineffective assistance of counsel during the sentencing phase.

¶ 70 Allen raised three distinct IAC claims regarding the sentencing phase of his 

trial. First, in Claim VII, Allen argued that his trial counsel were ineffective for 

failing to elicit testimony from a mental health expert to explain the significance of 

lay witness testimony and other evidence presented to the jury at sentencing. Second, 

in Claim VIII, Allen argued that his trial counsel were ineffective for failing to 

adequately investigate and present available mitigation evidence, including by failing 

to meet with and present testimony from various friends, family members, and 

acquaintances of Allen. Third, in Claim IX, Allen argued that his trial counsel were 

ineffective for failing to adequately prepare witnesses to testify during the sentencing 

hearing. In dismissing each of these claims, the MAR court concluded as a matter of 

law that Allen’s counsel were not deficient and that even if they were deficient, any

deficient performance could not have been prejudicial. 

¶ 71 The familiar two-part Strickland test also applies in examining Allen’s 

sentencing-phase IAC claims. However, because the MAR court conducted an 
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evidentiary hearing, our review of these claims is again limited to “determin[ing] 

whether the findings of fact are supported by evidence, whether the findings of fact 

support the conclusions of law, and whether the conclusions of law support the order 

entered by the trial court.” Matthews, 358 N.C. at 105–06 (quoting Stevens, 305 at 

720). Here, evidence in the record supports the MAR court’s findings of fact on each 

claim. These findings in fact in turn support the conclusion of law that Allen did not 

receive IAC at sentencing. 

¶ 72 Regarding Claim VII, we find dispositive the MAR court’s finding of fact that 

in retaining two mental health experts who attempted to examine Allen and 

investigate his mental health by interviewing other sources, Allen’s trial counsel 

made a reasonable investigation into Defendant’s mental 

health and background, but Defendant’s reluctance to 

complete psychological testing and refusal to fully comply 

with Dr. Warren’s evaluation, coupled with the lack of 

evidence that Defendant suffered from a mental health 

disorder that would assist in his defense, led to [the 

experts] not being called as . . . mental health expert[s] at 

Defendant’s capital sentencing proceeding. Under these 

circumstances, any decision trial counsel made not to call 

a mental health expert at Defendant’s capital sentencing 

proceeding was reasonable. 

A defendant’s reluctance to cooperate with a mental health professional during 

sentencing does not absolve counsel of its duty to adequately investigate relevant 

mitigating circumstances. However, where the record contains no evidence tending 

to suggest the defendant suffers from a pertinent mental health condition and 
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defendant’s counsel has retained a mental health expert who diligently attempted to 

elicit relevant information from both the defendant and the defendant’s 

acquaintances, we cannot say that “no competent attorney” would fail to present 

evidence from the mental health expert at sentencing. Premo v. Moore, 562 U.S. 115, 

124 (2011) (explaining that whether “no competent attorney would think a [foregone 

trial strategy] would have failed . . . is the relevant question under Strickland”).

¶ 73 Regarding Claim VIII, we note the MAR court’s finding that the additional 

witnesses Allen claims his counsel failed to present testimony from 

either (1) did not know Defendant very well, (2) had 

substantial character flaws that would have weakened 

Defendant’s mitigation case, (3) would present only 

cumulative evidence, (4) did not present valid mitigating 

evidence, or (5) did not fit the mitigation strategy trial 

counsel chose to pursue at sentencing. 

This finding is both supported by evidence in the record and is sufficient to sustain 

the conclusion that counsel’s failure to call these witnesses could not have been 

prejudicial. 

¶ 74 Finally, regarding Claim IX, the findings of fact support the conclusion of law 

that Allen cannot prove prejudice. We affirm the MAR court’s conclusion that Allen 

failed to meet his “burden of proving by a preponderance of the evidence” that the 

“nature and extent of the testimony that” the testifying witnesses would have offered 

had they been better prepared for sentencing could reasonably have altered the 

outcome of his sentencing proceeding. Hyman, 371 N.C. at 386. Accordingly, we 
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affirm the order dismissing Allen’s claims alleging IAC during the sentencing phase.

III. Conclusion

¶ 75 We hold that the MAR court erred in summarily dismissing Allen’s guiltinnocence phase IAC claims without an evidentiary hearing. Because Allen has 

presented evidence which, if proven true would entitle him to relief, Allen is entitled 

to an evidentiary hearing in accordance with the mandate of N.C.G.S. § 15A1420(c)(1) and McHone, 348 N.C. at 258. We also hold that the MAR court erred in

dismissing Allen’s shackling claim as procedurally barred without conducting an 

evidentiary hearing to establish facts without which the claim could not fairly be 

resolved. Therefore, we vacate the portions of the MAR court’s orders summarily 

dismissing Claims II, VI, X, XI, XII and the portions of Claim III not addressed during 

the limited evidentiary hearing, and we remand to the MAR court to conduct an 

evidentiary hearing. We affirm the MAR court’s order dismissing Allen’s other claims

and subclaims.

AFFIRMED IN PART; VACATED IN PART AND REMANDED.
Justice BERGER dissenting.

¶ 76 State v. McHone is the anchor to the majority’s claim that it is compelled to 

remand this case to the trial court for an evidentiary hearing. Contrary to the 

majority’s assertions, this Court did not remand McHone for an evidentiary hearing 

but rather for findings of fact based on materials contained in the record. See State 

v. McHone, 348 N.C. 254, 259, 499 S.E.2d 761, 764 (1998). McHone, in clear and 

unambiguous language, “remand[ed] this case to that court in order that it may make 

findings of fact, inter alia, as to whether defendant or defendant’s counsel was served 

with a copy of the original proposed order.” Id. (emphasis added). It is only by virtue 

of the majority’s gross misreading of McHone that the stunning leap can be made 

from this language to the requirement of an evidentiary hearing in every motion for 

appropriate relief. 

¶ 77 In addition, the majority claims that McHone compels review of motions for 

appropriate relief “in the light most favorable to the defendant.” As discussed further 

herein, this language cannot be found in McHone, N.C.G.S. § 15A-1420, or the official 

commentary to that section.

¶ 78 The trial court here set forth detailed findings that Claims I, II, IV, V, VI, X, 

XI, and XII in defendant’s motions for appropriate relief were without merit, and 

therefore, defendant was not entitled to an evidentiary hearing. In doing so, the trial 

court performed the gatekeeping function contemplated by the plain language of 

N.C.G.S. § 15A-1420(c) and discussed in McHone. The majority opinion, however, 
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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. 

¶ 79 In addition, the majority breathes life into defendant’s newly asserted claim 

that he was impermissibly shackled during his trial which occurred nearly eighteen 

years ago. The trial court correctly found that defendant’s newly imagined claim was 

procedurally barred. The majority, however, grants defendant an evidentiary 

hearing even though there is no evidence that defendant was shackled during his 

trial, defendant never objected to being shackled at trial, and defendant failed to 

argue that he was impermissibly shackled in his original appeal.

¶ 80 Furthermore, the majority brings a new form of prejudice into North Carolina’s 

jurisprudence on ineffective assistance of counsel claims: cumulative prejudice. 

Never has a cumulative prejudice standard been enunciated by this Court in this 

context, even though we frequently have addressed Strickland and ineffective 

assistance of counsel claims. At least here, however, the majority acknowledges that 

their “decision to recognize cumulative prejudice claims is based upon our own 

interpretation of Strickland and IAC doctrine[.]”

¶ 81 Because the majority misreads our precedent, misinterprets a straightforward 

statute, effectively rewrites post-conviction procedure by eliminating no-merit 

determinations by our trial courts, establishes a new standard by which any question 
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of fact raised in a motion for appropriate relief would require a full evidentiary 

hearing, and introduces cumulative prejudice into our ineffective assistance of 

counsel jurisprudence, I respectfully dissent.

I. N.C.G.S. § 15A-1420 and McHone

¶ 82 Criminal defendants are not entitled to an evidentiary hearing on every claim 

set forth in a motion for appropriate relief. See N.C.G.S. § 15A-1420(c) (2019). 

¶ 83 The majority misreads the unique procedural scenario in McHone to support 

its position that any factual dispute entitles a defendant to an evidentiary hearing. 

This Court in McHone did not grant the defendant an evidentiary hearing as the 

majority imagines. McHone, 348 N.C. at 259, 499 S.E.2d at 764. In McHone, the 

defendant made an oral supplemental motion for appropriate relief related to an 

order entered in a prior hearing on a motion for appropriate relief. Id. at 258, 499 

S.E.2d at 763. The defendant contended that the State had engaged in ex parte 

contact with the trial court when it submitted a proposed order denying the prior 

motion for appropriate relief without forwarding a copy to defense counsel. Id. The 

defendant asserted that the ex parte communication violated his due process rights. 

Id. The State did not counter that allegation in the trial court. Id. 

¶ 84 However, in response to the defendant’s petition for a writ of certiorari with 

this Court, the State submitted an affidavit with a certified mail return receipt 

showing that the proposed order had been forwarded to defense counsel, countering
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the allegation raised by the defendant with conflicting evidence. Id. at 259, 499 

S.E.2d at 763–64. 

¶ 85 Thus, in McHone, the defendant made a meritorious claim in the trial court 

that his due process rights had been violated. The trial court, without the benefit of 

the affidavit provided to this Court concerning service of the proposed order, only had 

before it the defendant’s allegations concerning the purported ex parte 

communication. There was, therefore, a factual question, i.e., whether there was an 

ex parte communication concerning the order that could only be resolved at that time 

through hearing evidence from the State and the defendant. If the trial court had 

been presented with the affidavit from the State concerning service, the factual 

question could have been resolved without an evidentiary hearing.

¶ 86 This Court acknowledged that the trial court was not obligated to conduct an 

evidentiary hearing and remanded the case to the trial court, not for an evidentiary 

hearing but for the entry of findings of fact. Id. at 259, 499 S.E.2d at 764. The 

affidavit provided by the State in its response to the defendant’s petition would allow 

the factual question to be resolved without an evidentiary hearing. The majority 

simply misapprehends what took place in McHone. This Court remanded the case to 

the trial court, not for an evidentiary hearing, but for entry of findings of fact. See id. 

(“This Court is not the appropriate forum for resolving issues of fact, even though the 

State’s affidavit was filed here. We therefore reverse the order of the trial court and 
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remand this case to that court in order that it may make findings of fact, inter alia, as 

to whether defendant or defendant’s counsel was served with a copy of the original 

proposed order.” (emphasis added)).

¶ 87 Further evidence that McHone does not support the majority’s claim is found 

in the plain language of N.C.G.S. § 15A-1420(c), which establishes the framework by 

which trial courts determine whether an evidentiary hearing is appropriate. That 

section 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.

(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 
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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.G.S. § 15A-1420(c) (emphasis added). 

¶ 88 The official commentary to this section further clarifies that 

[i]t should be noted that the subsections provide 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. G.S. 15A-1420(c)(3) provides that if

the only question is a question of law then the matter is to 

be disposed of without an evidentiary hearing. On the 

other hand, subdivision (4) makes it clear that if it is 

necessary to take evidence the court must hold an 

evidentiary hearing at which the defendant has the right 

to be present and to be represented by counsel, and the 

judge must make findings of fact. . . .
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Pursuant to subsections (c)(5) and (6) the moving 

party has the burden of proof, by a preponderance of 

evidence, with regard to facts essential to support the 

motion. The defendant must show the existence of the 

ground and substantial prejudice must appear. The 

definition of prejudice is cross-referenced to G.S. 15A-1443, 

in the Appeal Article, where the State rule on prejudice and 

the federal constitutional error rule are set out.

N.C.G.S. § 15A-1420, Official Commentary (2019). 

¶ 89 “It is well-established that the ‘ordinary rules of grammar apply when 

ascertaining the meaning of a statute, and the meaning must be construed according 

to the context and approved usage of the language.’ ” State v. Fuller, 376 N.C. 862, 

867, 855 S.E.2d 260, 265 (2021) (cleaned up) (quoting Dunn v. Pac. Emps. Ins. Co., 

332 N.C. 129, 134, 418 S.E.2d 645, 648 (1992)). Based on the plain language of 

N.C.G.S. § 15A-1420(c), trial court judges serve as gatekeepers for meritorious 

motions for appropriate relief. Subsection 15A-1420(c)(1) clearly states that a 

defendant is only entitled to a hearing on a motion for appropriate relief if the trial 

court determines there is merit to the motion. See N.C.G.S. § 15A-1420(c)(1) (“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.”)

However, a determination of merit alone does not guarantee an evidentiary hearing. 

¶ 90 As stated in the official commentary, there are two types of hearings: one in 

which the trial court makes factual or legal determinations based upon the contents 

of the motion and supporting evidence; and the other, a full evidentiary hearing. The 
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statute does not demand an evidentiary hearing merely because factual questions are 

presented in a defendant’s motion. Rather, after the trial court has determined that 

the motion is meritorious, the statute and the official commentary contemplate that 

an evidentiary hearing is to be conducted only when the trial court determines such 

a hearing is necessary. See N.C.G.S. § 15A-1420(c); N.C.G.S. § 15A-1420, Official 

Commentary. Thus, an evidentiary hearing is only required when a party’s motion 

(1) has merit, and (2) the trial court determines that it cannot resolve the factual 

questions based on the materials provided by the moving party.

¶ 91 Contrary to the majority’s holding, the trial court here was not “obligated to 

conduct an evidentiary hearing[.]” The majority misreads the statute, skipping the 

merits determination and eliminating the ability for a trial court to resolve factual 

issues based upon the materials submitted without an evidentiary hearing. Instead, 

the majority merges the two inquiries required by the statute into one determination, 

holding that the statute requires an evidentiary hearing must be conducted “to 

resolve disputed issues of fact” regardless of merit.

¶ 92 Moreover, the phrase “disputed issues of fact” does not appear in N.C.G.S. § 

15A-1420(c) or the official commentary because the statute and official commentary 

clearly set forth that merit determinations and hearings may be conducted by the 

trial court to resolve factual issues short of an evidentiary hearing. See N.C.G.S. § 

15A-1420(c)(1) (“The court must determine, on the basis of these materials and the 
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requirements of this subsection, whether an evidentiary hearing is required to resolve 

questions of fact.” (emphasis added)). 

¶ 93 Thus, a proper and complete reading of McHone clearly sets forth, consistent 

with the plain language of N.C.G.S. § 15A-1420(c), that a defendant’s motion for 

appropriate relief may be dismissed without an evidentiary hearing on questions of 

law or fact if the trial court determines that the defendant is entitled to no relief, i.e., 

that the motion has no merit. The majority’s misinterpretation of the statute and 

gross misreading of McHone impermissibly amends N.C.G.S. § 15A-1420(c) and alters 

the plain language of an otherwise straightforward statute.

II. Standard of Review

¶ 94 The majority’s misreading of McHone and N.C.G.S. § 15A-1420(c) also results 

in its application of an incorrect standard of review. By erroneously stating that the 

summary dismissal of a MAR is reviewed de novo, the majority ignores our precedent 

and eliminates all deference owed to the trial court. 

¶ 95 The trial court’s “findings of fact are binding on this Court if they are supported 

by competent evidence and may not be disturbed absent an abuse of discretion. The 

lower court’s conclusions of law are reviewed de novo.” State v. Lane, 370 N.C. 508, 

517, 809 S.E.2d 568, 574 (2018) (cleaned up) (quoting State v. Gardner, 227 N.C. App. 

364, 365–66, 742 S.E.2d 352, 354 (2013)) (adopting the “analogous standard of review 

for a denial of a motion for appropriate relief” as the standard of review for denial of 
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a motion for postconviction DNA testing “because the trial court sits as finder of fact 

in both circumstances.”). Moreover, this Court must refrain from reweighing the 

evidence and should defer to the trial court’s findings of fact which are “binding upon 

the [defendant] if they [a]re supported by the evidence,” even if the evidence is 

conflicting. State v. Stevens, 305 N.C. 712, 719–20, 291 S.E.2d 585, 591 (1982)

(citations omitted). Critically, where “findings are supported by the evidence in the 

record . . . it is not the duty of this Court to reweigh the evidence presented to the 

trial court.” State v. Johnson, 371 N.C. 870, 881, 821 S.E.2d 822, 831 (2018). 

¶ 96 However, the trial court’s determination of merit under N.C.G.S. § 15A-1420(c) 

is reviewed de novo. See Lane, 370 N.C. at 517, 809 S.E.2d at 574. 

¶ 97 The majority needlessly muddies the water by conflating our review of the trial 

court’s factfinding with our review of the trial court’s legal conclusion that a MAR is 

without merit. In doing so, the majority eliminates the great deference that must be 

afforded to the trial court’s factual determinations. See State v. Cummings, 361 N.C. 

438, 447, 648 S.E.2d 788, 794 (2007) (“A trial court abuses its discretion if its 

determination is manifestly unsupported by reason and is so arbitrary that it could 

not have been the result of a reasoned decision. In our review, we consider not 

whether we might disagree with the trial court, but whether the trial court’s actions 

are fairly supported by the record.” (cleaned up) (quoting White v. White, 312 N.C. 

770, 777, 324 S.E.2d 829, 833 (1985) and Wainwright v. Witt, 469 U.S. 412, 434 
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(1985))); State v. Larrimore, 340 N.C. 119, 134, 456 S.E.2d 789, 796 (1995) 

(“According, as we must, great deference to the findings of the trial court, we cannot 

find error in its findings of facts . . . .” (citations omitted)). 

¶ 98 Here, the majority’s broad application of de novo review ignores the nuance of 

our precedent and results in wholesale reweighing of the evidence. The majority 

further exacerbates this error by also holding that this evidence must be reweighed 

“in the light most favorable to the defendant[.]” This holding, as with the majority’s 

application of de novo review, is without support in either our General Statutes or 

our caselaw. 

¶ 99 Nowhere in N.C.G.S. § 15A-1420(c) is it stated that the evidence is to be viewed 

in the light most favorable to the defendant.1 In fact, N.C.G.S. § 15A-1420(c)(6) 

states, “[a] defendant who seeks relief by motion for appropriate relief must show the 

existence of the asserted ground for relief.” N.C.G.S. § 15A-1420(c)(6) (emphasis 

added). The official commentary further clarifies that

[p]ursuant to subsections (c)(5) and (6) the moving party 

has the burden of proof, by a preponderance of evidence, 

with regard to facts essential to support the motion. The 

defendant must show the existence of the ground and 

prejudice must appear.

1 Interestingly, the majority creates a standard far lower than summary judgment in 

civil procedure, even though here a jury has already determined defendant’s guilt beyond a 

reasonable doubt. The invented “in the light most favorable to the defendant” standard for 

disputed factual issues is astoundingly low. This standard is on par with notice pleading in 

civil procedure. It will be the rare attorney who fails to meet this standard for his client. 
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N.C.G.S. § 15A-1420, Official Commentary. 

¶ 100 The majority contends that McHone, 348 N.C. at 258, 499 S.E.2d at 763, 

supports its “light most favorable to the defendant” language. The entire text of page 

258 is set forth as follows:

[T]he trial court may determine that the motion “is without 

merit” within the meaning of subsection (c)(1) and deny it 

without any hearing on questions of law or fact. 

Defendant’s contention that he was entitled to a hearing 

and entitled to present evidence simply because his motion 

for appropriate relief was based in part upon asserted 

denials of his rights under the Constitution of the United 

States is without merit.

However, defendant also contends in the present 

case that he was entitled to an evidentiary hearing before 

the trial court ruled on his motion for appropriate relief as 

supplemented because some of his asserted grounds for 

relief required the trial court to resolve questions of fact. 

We find this contention to have merit. N.C.G.S. § 15A1420(c)(1) mandates that “[t]he court must determine . . . 

whether an evidentiary hearing is required to resolve 

questions of fact.” If the trial 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.G.S. § 15A-1420(c)(4). Under subsection (c)(4), 

read in pari materia with subsections (c)(1), (c)(2), and 

(c)(3), an evidentiary hearing is required unless the motion 

presents assertions of fact which will entitle the defendant 

to no relief even if resolved in his favor, or the motion 

presents only questions of law, or the motion is made 

pursuant to N.C.G.S. § 15A-1414 within ten days after 

entry of judgment.

At the 9 December 1996 hearing, defendant 

contended for the first time that in August 1996, the State 

had sent to the trial court a proposed order denying 
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defendant’s original motion for appropriate relief without 

providing defendant with a copy. This matter was not 

raised or referred to in defendant’s original or 

supplemental motion for appropriate relief. During the 9 

December 1996 hearing, the State acknowledged that it did 

send a proposed order to the trial court and that the trial 

court signed the State’s proposed order dismissing 

defendant’s original motion for appropriate relief. 

Defendant contended at the 9 December hearing that since 

neither he nor his counsel were served with a copy of the 

proposed order, the State had engaged in an improper ex 

parte communication with the trial court in violation of his 

rights to due process under the state and federal 

constitutions. Thus, during the 9 December 1996 hearing, 

defendant orally moved for the first time to have the 

August 1996 order denying his original motion for 

appropriate relief vacated because of the ex parte contact. 

The trial court summarily denied that motion and entered 

its 9 December 1996 order denying defendant’s motion for 

appropriate relief as supplemented. 

McHone, 348 N.C. at 257–58, 499 S.E.2d at 763 (second and third alterations in 

original) (citation omitted) (quoting N.C.G.S. § 15A-1420(c)(1) (1997)). As one can 

plainly see, there is no language or inference which could be drawn from this passage 

in McHone that supports the majority’s assertion that we view the evidence in the 

light most favorable to the defendant when reviewing a summary denial of a MAR. 

¶ 101 Additionally, the approach implemented by the majority deviates from other 

areas of our caselaw which mandate that when a party makes a motion, we view the 

evidence in the light most favorable to the nonmoving party. See State v. McNeil, 359 

N.C. 800, 804, 617 S.E.2d 271, 274 (2005) (stating that when a defendant makes a 

motion to dismiss, “ ‘[t]he reviewing court considers all evidence in the light most 
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favorable to the State, and the State receives the benefit of every reasonable inference 

supported by that evidence.’ ” (quoting State v. Garcia, 358 N.C. 382, 412–13, 597 

S.E.2d 724, 746 (2004))); Dalton v. Camp, 353 N.C. 647, 651, 548 S.E.2d 704, 707 

(2001) (“When considering a motion for summary judgment, the trial judge must view 

the presented evidence in a light most favorable to the nonmoving party.” (citation 

omitted)); State v. James, 321 N.C. 676, 686, 365 S.E.2d 579, 586 (1988) (“In ruling 

upon a motion to dismiss, the trial court must consider the evidence in the light most 

favorable to the State, allowing every reasonable inference to be drawn therefrom.” 

(citation omitted)). 

¶ 102 The majority’s improper application of de novo review eliminates the great 

deference that should be afforded to the trial court’s factual determinations, and the 

majority’s improper reweighing of the evidence nullifies the trial court’s merit 

determination under N.C.G.S. § 15A-1420(c). Further, when combined with the 

majority’s assertion that we must view the evidence in the light most favorable to the 

defendant, the majority runs afoul of the plain reading of N.C.G.S. § 15A-1420(c) by 

eliminating any burden for the defendant other than providing notice to the State. 

III. Ineffective Assistance of Counsel

¶ 103 Defendant filed an MAR and SMAR asserting ineffective assistance of counsel

(IAC), among other claims. The trial court found no merit pursuant to N.C.G.S. § 

15A-1420 and denied defendant’s claims of IAC without an evidentiary hearing. 
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Defendant contends, and the majority agrees, that he was entitled to an evidentiary 

hearing on his IAC claims. 

¶ 104 A defendant’s claim for IAC must satisfy the two prongs of Strickland v. 

Washington, 466 U.S. 668 (1984). First, the defendant must show that counsel’s 

performance was deficient. Id. at 687. “Deficient performance may be established by 

showing that counsel’s representation fell below an objective standard of 

reasonableness.” State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271, 286 (cleaned up)

(quoting Wiggins v. Smith, 539 U.S. 510, 521 (2003)), cert. denied, 549 U.S. 867 

(2006). Second, the defendant must show that counsel’s deficient performance was 

prejudicial to his defense. Strickland, 466 U.S. at 692. “Generally, to establish 

prejudice, a defendant must show that there is a reasonable probability that, but for 

counsel’s unprofessional errors, the result of the proceeding would have been 

different. A reasonable probability is a probability sufficient to undermine confidence 

in the outcome.” Allen, 360 N.C. at 316, 626 S.E.2d at 286 (cleaned up) (quoting 

Wiggins, 539 U.S. at 534). When assessing reasonableness, a reviewing court 

considers “whether counsel’s assistance was reasonable considering all the 

circumstances.” Strickland, 466 U.S. at 688. 

¶ 105 Describing the hurdle that defendants must overcome to prevail on an IAC 

claim, this Court has stated that trial “[c]ounsel is given wide latitude in matters of 

strategy, and the burden to show that counsel’s performance fell short of the required 
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standard is a heavy one for defendant to bear.” State v. McNeill, 371 N.C. 198, 218–

19, 813 S.E.2d 797, 812 (2018) (alteration in original) (quoting State v. Fletcher, 354 

N.C. 455, 482, 555 S.E.2d 534, 551 (2001)). Decisions concerning trial strategy “are 

not generally second-guessed by this Court.” State v. Prevatte, 356 N.C. 178, 236, 570 

S.E.2d 440, 472 (2002), cert. denied, 538 U.S. 986 (2003) (citation omitted). 

¶ 106 Reading the majority opinion, defendant’s brief, and listening to defendant’s 

oral argument, one could easily conclude that defendant’s two attorneys were grossly 

incompetent and ill-equipped to handle a murder trial. In reality, the two attorneys 

who represented defendant at trial, Carl Atkinson and Pierre Oldham, had 

represented at least twenty-five capital-eligible defendants prior to their 

representation of defendant. Neither attorney had ever been disciplined by the State 

Bar or found to have provided IAC. 

¶ 107 Atkinson testified at the evidentiary hearing related to the sentencing phase 

that he frequently consulted with the Center for Death Penalty Litigation about 

defendant’s case.2 Atkinson stated that his purpose in “dealing with the Center for 

Death Penalty Litigation was to get any help [he] could in addressing [defendant’s] 

case.” Atkinson discussed potential experts with the capital defender, and Atkinson 

testified that “every time I needed a recommendation of that nature I went to the 

2 The Center for Death Penalty Litigation represents defendant, and they argue that 

the attorneys who sought their advice were ineffective at trial.
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Center for Death Penalty Litigation.” According to Atkinson, the Center for Death 

Penalty Litigation “basically believed that [defendant was] likely to be convicted” and 

that the attorneys should focus on mitigation at sentencing.

¶ 108 Atkinson also attended the “Capital College.” According to Atkinson, this was 

a group of experts from the Center for Death Penalty Litigation and the Academy of 

Trial Lawyers who met with attorneys handling capital cases. During four days of

meetings, attorneys would “present . . . discovery information, all [the] materials to 

them,” and the experts would “go through a process of developing [the] case.” 

Atkinson presented defendant’s case to this group of experts.

¶ 109 In addition, defendant attached to his motion for appropriate relief an affidavit 

from Oldham. Oldham’s affidavit stated, in relevant part, the following:

3. After being assigned to the case, [co-counsel] and I 

pursued discovery from the District Attorney and law 

enforcement agencies. I recall that from the very 

beginning, we believed that the chief prosecution witness, 

Vanessa Smith, who claimed to be an eyewitness to the

murder, was not telling the truth in her various statements 

to law enforcement. I also recall that the State’s case was 

based almost entirely on her testimony. 

. . . .

5. I do not recall [co-counsel] and me making any strategic 

decisions concerning the evidence discussed in Claim II of 

the MAR and SMAR. For example, I do not recall an

individual named Troy Spencer contacting either [cocounsel] or me prior to trial. If I had known, however, that 

he claimed that Vanessa Smith had confessed to planning

the murder of Christopher Gailey, and that she had shot 
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and killed him, I would have contacted him, conducted a 

thorough investigation of his statements, and considered

calling him in the guilt phase of the trial.

6. Although I recall our private investigator looking for Mr. 

Allen’s long-time friend, Christina Fowler, I do not recall

that he ever found her, or that he learned from her that 

Scott Allen spent most of the night of the murder at her 

house. Had [co-counsel] and I known that, we would have 

conducted additional investigation of the alibi evidence and

considered calling her as a defense witness in the guilt 

phase of the trial. I do not recall making any strategic 

decision not to call Ms. Fowler as a witness in either phase 

of the trial.

7. Similarly, I do not recall [co-counsel] and me making any 

strategic decisions to limit the cross-examination of the 

State’s witnesses, including Vanessa Smith. . . . We did not 

have an expert crime scene analyst to assist our 

understanding of the crime scene, or to help us use that 

information to impeach Ms. Smith’s story of the crime. . . . 

8. I have no recollection of a strategic decision not to call a 

mental health expert to testify during either phase of the 

trial. . . .

9. I also have no recollection of making a strategic decision 

to limit our investigation of possible other suspects in the

case. I do not recall the evidence of other suspects set forth

in Mr. Allen’s Claim XI, and do not recall anything about 

other individuals with a motive to harm Gailey, or their 

whereabouts on the night of the murder. 

(Emphases added.)

¶ 110 The majority finds that Oldham’s affidavit, littered with statements that he 

does not remember what took place, serves as “direct evidence” that “directly 

undercuts” the MAR court’s finding that counsel made a strategic decision. However, 
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Oldham’s affidavit fails to shed any light on defendant’s claim of ineffective assistance 

of counsel. The majority nevertheless uses this as the starting point for a chain of 

assumptions and speculation that it claims provides the factual predicate to an 

evidentiary hearing. This is in the face of the sworn testimony at trial and defense 

counsels’ reasonable and clearly stated trial strategy of casting doubt on Vanessa 

Smith’s credibility.

¶ 111 Defendant here had the benefit of two experienced attorneys at trial who made 

the reasonable decision to focus on the credibility of one of the State’s witnesses. The 

attorneys sought advice on strategy and the use of expert witnesses from the Center 

for Death Penalty Litigation and experts in the field of capital litigation. These 

experts were confident that defendant would be convicted of capital murder and that 

defense counsels’ best strategy to avoid a death sentence for defendant related to 

mitigation evidence during the sentencing phase. 

¶ 112 Now, nearly eighteen years after his conviction, the Center for Death Penalty 

Litigation claims the attorneys they coached were ineffective because they did not 

consult a crime scene expert. However, as the trial court found: 

51. Defendant also contends that trial counsel was 

ineffective for failing to call an expert crime scene analyst 

to testify regarding alleged discrepancies between Smith’s 

testimony and the physical evidence found at the location 

of Gailey’s murder. (SMAR pp. 12–15) In support of this 

contention, Defendant presents the affidavit and report of 

Gregg O. McCrary (“McCrary”), a post-conviction crime 

scene analyst . . . . However, McCrary’s report is based 
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upon the assumption that “[t]he only link between Scott 

Allen and the murder of Christopher Gailey are the 

allegations made by Ms. Smith.” (SMAR Ex. B of Ex. 41 p. 

12) This assumption is faulty as belied by the record.

52. Several other witnesses corroborated Defendant’s 

involvement in the murder. Absent from McCrary’s 

analysis and report are the trial testimony of Harold 

Blackwelder (“Blackwelder”), Jeffrey Page (“Page”), and 

Coy Honeycutt (“Honeycutt”). (See SMAR Ex. 41) At 

Defendant’s trial, Blackwelder testified that Defendant 

and Smith arrived at a cookout . . . on 10 July 1999. (T pp. 

1748–49) As soon as Defendant and Smith arrived, 

Blackwelder went outside and saw a white pickup truck 

matching the description of Gailey’s truck provided by 

Johnson earlier in the trial. (See T p. 1749–50; T pp. 1464–

65) . . . .

53. . . . Defendant told Page that after Defendant shot the 

fellow, he “heard the boy groaning, and he also stated that 

he would throw a rock and when that rock would hit the 

ground the fellow thought that it was him and the fellow 

had a gun undoubtedly and went to shooting.” (T p. 1781). 

. . . Also, Defendant told Page “that the reason he shot that 

boy [was] because he thought that boy was going to rat him 

off because he was an escapee from Troy prison.” (T p. 1785) 

. . . .

54. . . . [A]ny alleged deficiency of trial counsel and 

prejudice resulting therefrom regarding counsel’s failure to 

call a crime scene analyst must be viewed in light of 

Defendant’s subsequent statements and actions that link 

him to Gailey’s murder. 

. . . .

56. Here, the record supports the conclusion that trial 

counsels’ apparent decision to focus on the doubt created 

by Smith’s gaps in memory, addiction and use of controlled 

substances on the date of Gailey’s death, and failure to 
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maintain a cohesive timeline, rather than attempting to 

prove Defendant’s innocence through the use of a crime 

scene analyst was a sound tactical decision. In light of the 

inculpatory statements Defendant made to Page . . . trial 

counsels’ failure to call an expert crime scene analyst to 

testify was not an objectively unreasonable decision. 

Additionally, Defendant has failed to show that he suffered 

any prejudice from trial counsels’ failure to call a crime 

scene analyst because Defendant’s statements to Page, 

possession of Gailey’s truck so soon after Gailey’s demise, 

and willingness to sell the truck for a price far below the 

fair market value all tended to demonstrate evidence of 

Defendant’s guilt. Therefore, Defendant has failed to show 

that trial counsel deficiently represented Defendant by 

committing an objectively unreasonable error or that trial 

counsels’ representation so prejudiced the defense as to 

deprive Defendant of a fair trial whose result was reliable.

¶ 113 These findings of fact were supported by the evidence presented at trial. The 

majority gives greater weight to the contrary conclusion in the McCrary Report than 

it does to the sworn testimony provided at trial. In fact, at trial, Blackwelder testified 

that defendant arrived at a cookout with a white pickup truck matching the 

description of Gailey’s truck. Defendant told Page that he shot someone in the 

Uwharrie National Forest and “heard the boy groaning, and he also stated that he 

would throw a rock and when that rock would hit the ground the fellow thought that 

it was him and the fellow had a gun undoubtedly and went to shooting.” Defendant 

also told Page that “the reason he shot that boy [was] because he thought that boy 

was going to rat him off because he was an escapee from Troy prison.” Page testified 

that defendant offered to sell him the truck, matching the description of Gailey’s, at 
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significantly less than fair market value. 

¶ 114 Based upon this evidence presented at trial, we cannot say that the trial court 

erred in finding that “trial counsels’ failure to call a crime scene analyst” was not an 

objectively unreasonable decision. See Harrington v. Richter, 562 U.S. 86, 106–07 

(2011) (finding that counsel’s decisions to forgo the use of experts can be reasonable 

because counsel was “entitled to formulate a strategy that was reasonable at the time 

and to balance limited resources in accord with effective trial tactics and strategies.”). 

Accordingly, the trial court did not abuse its discretion by resolving the factual issues 

based upon the evidence presented by defendant and did not err in determining that 

defendant’s IAC claim was without merit. 

¶ 115 It should be noted that the majority states that they considered all of 

defendant’s guilt-innocence claims in their entirety. In reality, the majority only 

considered the above crime-scene-investigation claim. Rather than addressing 

defendant’s other four claims (Claims III, VI, X, and XI) to determine whether an 

evidentiary hearing is required, the majority simply states that “[h]aving already 

determined that the MAR court erred in summarily denying one of [defendant’s] IAC 

claims, we need not address his other claims here[.]” Nowhere in N.C.G.S. § 15A1420 or our caselaw is it stated that if an evidentiary hearing should have been held 

on one claim, it must be held on all other claims. It is curious that the majority holds 

that summary dismissal of defendant’s claims was error, yet summarily grants an 
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evidentiary hearing for defendant’s claims without analysis and in the face of binding 

findings of fact by the trial court. 

IV. Shackling Claim

¶ 116 In Claim XII of his SMAR, defendant alleged that he was impermissibly 

shackled in the presence of the jury without justification in violation of his statutory 

and constitutional rights. In support of his claim, defendant produced information 

from two jurors and from one alternate juror. 

¶ 117 The State argued, and the MAR court agreed, that defendant’s claim was 

procedurally barred under N.C.G.S. § 15A-1419(a)(3) because he was in an adequate 

position to raise the issue on direct appeal but failed to do so. In the alternative, the 

MAR court concluded that even if defendant’s shackling claim was not procedurally 

barred, it was meritless. 

¶ 118 Under both the North Carolina Constitution and the United States 

Constitution, a defendant may not be visibly shackled in the courtroom in the 

presence of the jury unless there is a special need for restraints specific to the 

defendant. See State v. Tolley, 290 N.C. 349, 367, 226 S.E.2d 353, 367 (1976); see also

Deck v. Missouri, 544 U.S. 622, 626 (2005) (“The law has long forbidden routine use 

of visible shackles during the guilt phase; it permits a State to shackle a criminal 

defendant only in the presence of a special need.”). Consistent with this 

constitutional rule, N.C.G.S § 15A-1031 permits a trial court judge to order a 
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defendant restrained in court only when doing so is “reasonably necessary to 

maintain order, prevent the defendant’s escape, or provide for the safety of persons[,]” 

and only then after the judge “[e]nter[s] in the record out of the presence of the jury 

and in the presence of the person to be restrained and his counsel, if any, the reasons 

for” imposing the restraints and after giving the defendant an opportunity to be heard 

on the matter. N.C.G.S. § 15A-1031 (2019). Typically, adherence to this mandatory 

statutory procedure ensures that evidence of a defendant’s shackling appears in the 

record and transcript of trial, enabling the defendant to challenge the judge’s decision 

to impose restraints on direct appeal.

¶ 119 In this case, there is no evidence in the record or transcript suggesting that 

defendant was restrained during trial. The trial court did not enter factual findings 

as would have been required prior to ordering defendant shackled under N.C.G.S § 

15A-1031. Defendant did not object or otherwise note that he was restrained in a 

manner visible to the jury. 

¶ 120 Relying principally on our decision in State v. Hyman, 371 N.C. 363, 817 S.E.2d 

157 (2018), defendant contends that his failure to raise any objection to the purported 

shackling at trial does not preclude post-conviction review. He argues that the 

procedural bar does not apply when the record is completely silent as to whether the 

alleged shackling did or did not occur, because when the record is silent, the 

defendant is not “in a position to adequately raise the ground or issue underlying the 
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[MAR claim]” within the meaning of N.C.G.S. § 15A-1419(a)(3).

¶ 121 This case is distinguishable from Hyman. In Hyman, we held that a defendant 

was not procedurally barred from raising an IAC claim on post-conviction review, 

even though he had not raised the claim on direct appeal. Hyman, 371 N.C. at 385, 

817 S.E.2d at 171. The defendant’s IAC claim challenged his attorney’s failure to 

withdraw from representing him during trial. Id. at 367–68, 817 S.E.2d at 161. The 

attorney worked at a law firm that had previously represented a witness at the 

defendant’s trial whose testimony inculpated the defendant. Id. During crossexamination, an exchange between counsel and the inculpating witness suggested 

the witness had previously conveyed a different account of the events in question than 

the one the witness was offering at trial. Id. at 365–66, 817 S.E.2d at 160. The 

defendant argued that his attorney should have withdrawn from the representation 

and testified regarding the contents of this alleged conversation. Id. at 367–68, 817 

S.E.2d at 161. 

¶ 122 We explained that in order to prove his attorney rendered IAC, the defendant 

was required to prove numerous facts, including (1) that the alleged pretrial 

conversation between the witness and the defendant’s attorney had in fact occurred, 

(2) that during the conversation the witness made statements inconsistent with his 

trial testimony, (3) that the attorney did not have a strategic reason for failing to 

withdraw from representing the defendant, and (4) that the testimony the attorney 
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would have been able to deliver would have benefitted the defendant. Id. at 384–85, 

817 S.E.2d at 170–71. Because “[t]he record developed at trial did not contain any 

information affirmatively tending to show” any of those facts, we concluded that the 

record did not “contain[ ] sufficient information to permit the reviewing court to make 

all the factual and legal determinations necessary to allow a proper resolution of the 

claim in question.” Id. at 383–84, 817 S.E.2d at 170. We thus held that the 

procedural bar provided for in N.C.G.S. § 15A-1419(a)(3) did not apply. Id. at 385, 

817 S.E.2d at 171.

¶ 123 The distinction between this case and Hyman is rooted in a basic difference 

between an impermissible shackling claim and an IAC claim. To prevail on an 

impermissible shackling claim, a threshold fact must first be established: that the 

defendant was shackled at trial. Absent some indication in the record or transcript 

that the defendant was shackled, it is appropriate to presume that the defendant was 

not shackled. In the rare case where the defendant is shackled at trial but the 

shackling is not reflected in the record—because the trial court has failed to adhere 

to the constitutionally necessary procedural safeguards codified in N.C.G.S § 15A1031—the defendant possesses all of the information necessary to cure that 

deficiency, as the defendant knows whether he or she has been subjected to restraints 

during trial.

¶ 124 By contrast, the same is not true when a defendant brings an IAC claim on 
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direct appeal. On direct appeal, even a fully developed record will generally fail to 

contain information without which the claim cannot be adjudicated. When that 

occurs, the defendant is typically not in a position to fill the necessary gaps in the 

record. Resolving an IAC claim frequently requires information that necessarily is 

not a part of the record at trial, namely whether trial counsel made a conscious choice 

to pursue a given strategy, why that strategy was chosen, and whether that choice 

was reasonable. Thus, “because of the nature of IAC claims, defendants likely will 

not be in a position to adequately develop many IAC claims on direct appeal.” State 

v. Fair, 354 N.C. 131, 167, 557 S.E.2d 500, 525 (2001). 

¶ 125 When presented with a “prematurely asserted” IAC claim, the court “shall 

dismiss those claims without prejudice to the defendant’s right to reassert them 

during a subsequent MAR proceeding.” Id.; see also State v. Hyatt, 355 N.C. 642, 668, 

566 S.E.2d 61, 78 (2002) (dismissing without prejudice IAC claim that is “suggested 

by the record but [is] insufficiently developed for review”); State v. Watts, 357 N.C. 

366, 378, 584 S.E.2d 740, 749 (2003) (concluding that defendant did not waive IAC 

claim because “there are evidentiary issues which may need to be developed before 

defendant will be in a position to adequately raise his potential IAC claim”). 

¶ 126 However, the nature of shackling claims renders them usually susceptible to 

direct review. Accordingly, Hyman is fully consistent with application of the 

procedural bar under the circumstances of this case. See N.C.G.S. § 15A-1415, 
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Official Commentary (2019) (“It should also be taken into account with the latter 

consideration that additional finality has been added in G.S. 15A-1419 by making it 

clear that there is but one chance to raise available matters after the case is over, and 

if there has been a previous assertion of the error, or opportunity to assert the error, 

by motion or appeal, a later motion may be denied on that basis.”); see also N.C.G.S. 

§ 15A-1419, Official Commentary (2019) (“[O]nce a matter has been litigated or there 

has been opportunity to litigate a matter, there will not be a right to seek relief by 

additional motions at a later date. Thus, this section provides, in short, that if a 

matter has been determined on the merits upon an appeal, or upon a post-trial motion 

or proceeding, there is no right to litigate the matter again in an additional motion 

for appropriate relief. Similarly, if there has been an opportunity to have the matter 

considered on a previous motion for appropriate relief or appeal the court may deny 

the motion for appropriate relief.”).

V. Cumulative Error

¶ 127 Next, defendant claims that his alleged IAC claims in his MAR and SMAR 

amount to cumulative error. The majority rejects our jurisprudence in this area, and 

the MAR court’s conclusion that cumulative error does not apply to IAC claims. While 

the trial court correctly recognized that such a claim has never been sanctioned by 

this Court, the majority now proclaims that the “decision to recognize cumulative 

prejudice claims is based upon our own interpretation of Strickland and IAC 
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Berger, J., dissenting

doctrine.” 

¶ 128 While the majority cites to State v. Thompson, 359 N.C. 77, 604 S.E.2d 850 

(2004); Williams v. Taylor, 529 U.S. 362 (2000); and State v. Lane, 271 N.C. App. 307, 

844 S.E.2d 32 (2020), those cases do not support the proposition that cumulative error 

applies to IAC claims. 

¶ 129 Once again, the majority misreads our precedent. Thompson merely reiterated 

a single argument the defendant was attempting to make and did not recognize nor 

adopt the defendant’s position on cumulative prejudice for IAC claims. See

Thompson, 359 N.C. at 121–22, 604 S.E.2d at 880. Furthermore, the majority 

incorrectly asserts that the Supreme Court of the United States recognized 

cumulative prejudice for IAC claims in Williams. In Williams, the Supreme Court 

referred to the cumulation of “the totality of the available mitigation evidence . . . in 

reweighing it against the evidence in aggravation” and not, as the majority 

mistakenly asserts, to cumulative error in IAC claims. Williams, 529 U.S. at 397–98.

¶ 130 Lastly, the majority employs a North Carolina Court of Appeals case, Lane, for 

the proposition that “courts can consider the cumulative effect of alleged errors by 

counsel.” Lane, 271 N.C. App. at 316, 844 S.E.2d at 40. However, Court of Appeals 

precedent is not binding upon this court. See State v. Steen, 376 N.C. 469, 497, 852 

S.E.2d 14, 33 (2020) (Earls, J., concurring in result in part and dissenting in part) 

(“The majority also cites a number of cases from the Court of Appeals; however, 
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Berger, J., dissenting

‘precedents set by the Court of Appeals are not binding on this Court.’ ” (quoting 

Mazza v. Med. Mut. Ins. Co., 311 N.C. 621, 631, 319 S.E.2d 217, 223 (1984))). At no 

point in our precedent has this Court applied cumulative error to IAC claims, and we 

should decline to do so now. 

VI. Conclusion

¶ 131 For the reasons stated herein, I respectfully dissent.3

Chief Justice NEWBY and Justice BARRINGER join in this dissenting 

opinion.

3 As to those instances where the majority upholds the trial court’s order, I concur in 

the result only.