State v McKisson, (02-955) 07/15/2003

Appeal by defendant from judgments entered 28 January 2002 by Judge Loto G. Caviness in Henderson County Superior Court. Heard in the Court of Appeals 24 April 2003.

Attorney General Roy Cooper, by Assistant Attorney General Anne M. Middleton, for the State.

Marjorie S. Canaday for defendant appellant.

    McCULLOUGH, Judge.

    Defendant Laurence Freeman McKisson was tried before a jury at the 22 January 2002 Criminal Session of Henderson County Superior Court after being charged with nine counts of taking indecent liberties with a child and two counts of first-degree sexual offense with a child under thirteen. The evidence at trial showed the following: In October 2000, defendant worked as a teaching assistant at Edneyville Elementary School and Etowah Elementary School in Henderson County, North Carolina. At Edneyville, he assisted Mrs. Randles, the Special Education teacher, in the Resource classroom. Approximately forty-five students went to the Resource classroom for a certain amount of time each week toreceive specialized instruction. Among the students in the Resource classroom were second grader RB, fourth grader DM, and fifth grade twin brothers.
    During the week of 23 April 2001, defendant was put in charge of the Resource classroom while Mrs. Randles was on her honeymoon. At some point during the week, one of the other teachers complained because defendant placed an alarm bell on the door of the Resource classroom, which went off anytime the door was opened. At the teacher's request, defendant removed the bell and stated it was not working anyway.
    After school on 21 May 2001, RB and his mother met with principal Christine Smith to report an incident that occurred earlier that day. RB stated that, before lunch, defendant came to his regular classroom to take him to the Resource classroom. Once there, RB read three books for defendant and defendant asked him to stand up so he could take a picture of him for his wall at home. RB stated defendant took the photograph with an instant camera, then told him to come sit on his lap while the picture developed. RB complied, and defendant began rubbing his private parts. Defendant then unzipped RB's shorts, put his hand inside RB's underwear, and rubbed his private parts. RB told defendant to stop, zipped up his shorts, and got off defendant's lap. Defendant told RB he could select some toys from a toy bin and offered RB a toy stomach, but RB told defendant he wanted a toy brain. Defendant then asked RB if he wanted “one of these” and pointed to his own genital area. RB said no, and took the toy brain. According to RB, defendant had a toy of a private part in his pocket, which he pulled out and offered to RB. RB again indicated he wanted the toy brain, as well as a blue shark. Defendant then took RB back to his regular classroom. RB's classroom teacher verified that defendant picked RB up around 9:30 a.m. and returned him to the classroom around 10:15 a.m. on 21 May.
    In addition to the incident on 21 May, RB told Principal Smith that defendant had touched his private parts a number of times over a period of several days. He said the episodes occurred in the Resource classroom when he and other students were sitting at a table and defendant leaned over to help him. RB said none of the other students saw these events occur. Principal Smith called in Ms. Dana Humphries, the school guidance counselor, and left RB alone with her to see if he would tell the same story. RB told Ms. Humphries the same details he told his mother and Principal Smith.     At the conclusion of her meeting with RB and his mother, Principal Smith contacted defendant, told him an allegation had been made against him, and informed him that he was suspended with pay pending the investigation. Defendant gave his version of events and noted that he had recently disciplined a fourth grader who might have a vendetta against him. He also stated that someone named “Schaneberger” had been weird. Ms. Smith testified that defendant's voice and speech patterns did not indicate any alarm.     The next day, RB repeated the story to both Ms. Humphries and Detective Walter Harper of the Hendersonville Sheriff's Department. Detective Harper found a Polaroid camera in the Resource classroom,but could not find the photograph of RB that defendant took on 21 May. He believed the photograph was important to the investigation, and obtained a search warrant for defendant's home, which sought evidence pertinent to the case. On 23 May, Detective Harper and another officer went to defendant's house and informed him they had a search warrant for his residence, as well as a warrant for his arrest for indecent liberties. Defendant stated, “I know exactly who you are. I've seen you before. I know what you do.” When defendant asked “[t]his is about the incident with [RB], isn't it?”, the officers said yes.
    Upon searching defendant's home, the officers seized the Polaroid photo of RB as well as various sexually oriented videotapes and digital discs. The officers discovered and seized child pornography, as well as heterosexual and homosexual pornography, in the form of books, magazines, digital video discs and videotapes. The officers also found books on child development and hyperactivity, a journal, three day planners, and a legal pad marked with the name “L. McKisson.” The pad contained a long list of names, including RB, DM, and the twins. Next to each name was a notation of the sexual activity defendant engaged in with each child. The journals, legal pad, and day planners appeared to have been written by the same person. At trial, Principal Smith identified the handwriting as defendant's. On 28 May, the officers executed a second search warrant for defendant's home and seized over one hundred and twenty additional items, most of which were pornographic in nature. Defendant was not present during thesecond search.
    Based on the information obtained during the first search of defendant's home, Detective Harper spoke to some of the individuals named on the legal pad. On 24 May, Detective Harper spoke to DM, and without telling him what he found at defendant's home, asked him if anything inappropriate had happened between him and defendant. DM stated that, sometime in April, he was alone with defendant in the Resource classroom and defendant tried to touch his crotch area. DM stated he jumped up, told defendant no, and ran back to his classroom. Detective Harper noted DM was very upset and had difficulty discussing the incident. When Detective Harper talked to DM on other occasions during the same week, DM elaborated and said defendant had touched him “way more than once” and had fondled his penis on at least fifteen different occasions at Edneyville Elementary School. DM said defendant threatened to get him into trouble at school if DM did not touch him. DM said defendant did get him suspended once, and thereafter DM touched defendant's private area. During the incident, defendant reached inside DM's pants and fondled his penis. DM also stated defendant exposed himself and wanted DM to touch him on another occasion. But DM only stated he closed his eyes, but would not tell Detective Harper if he touched defendant.
    In another interview, DM told Detective Harper he first met defendant when he was a second grader at Upward Elementary School. DM stated he was cleaning the chalkboard when defendant came up behind him, put his arm around him, and fondled his crotch andbuttocks. DM said he was surprised, did not understand what was happening, and pulled away. Nothing else happened at that time. DM further stated defendant touched his “pecker” several times in the Resource classroom and had wide open eyes, a creepy voice, and a smug look on his face when he did so. DM said defendant sometimes said “weird stuff” when he was touching him. On cross- examination, DM admitted that defendant had gotten him into trouble at school, which made him angry. However, he testified he did not make up any of his testimony because he was angry at defendant.
    Detective Harper talked to the twins individually. At trial, they both testified that, while Mrs. Randles was away, defendant put a metal fork to their throats and threatened to stab them if they did not let him suck their penises. Defendant pulled down the boys' pants and performed fellatio on each boy, then threatened to “come and get them” if they told anyone, even if he was in jail. Defendant showed the twins pornographic magazines during this incident and also fondled one twin's buttocks when he went to sit at the computer.
    After presenting the testimony of the four victims, Principal Smith, Ms. Humphries, and Detective Harper, the State rested. Defendant requested that several of the indictments be dismissed; however, the trial court denied each of his requests. Defendant presented no evidence, but did renew his earlier motions to dismiss the indictments.
    After deliberating, the jury found defendant guilty of seven counts of taking indecent liberties with a child and two counts offirst-degree sexual offense. Defendant was found not guilty of two counts of taking indecent liberties with a child. The trial court determined defendant had a prior record level of I and sentenced him to a term of 20-24 months' imprisonment for each of the seven indecent liberties convictions, as well as a term of 300-369 months' imprisonment for each of the two first-degree sexual offense convictions. All nine sentences were to run consecutively. Defendant appealed.
    On appeal, defendant argues the trial court erred by (I) denying his request to proceed at trial on his motion to suppress evidence; (II) denying his motion for change of venue or for a special venire; (III) denying his motion for individual voir dire of potential jurors; (IV) failing to exercise its discretion in responding to the jury's request to review the testimony of one of the witnesses; (V) denying his motion to dismiss the two first- degree sexual offense indictments; (VI) instructing the jury on six counts of taking indecent liberties with DM and drafting verdict sheets for those offenses in an improper manner; (VII) admitting testimony that he invoked his constitutional rights to an attorney and to remain silent. Defendant also argues that (VIII) he is entitled to a new trial because he received ineffective assistance of counsel. For the reasons set forth herein, we disagree with defendant's arguments and hold he received a trial free from error.

    By his first assignment of error, defendant argues the trial court abused its discretion by denying his motion to suppress theevidence seized from his home, which was made for the first time during the trial. Specifically, defendant contends that he did not have a reasonable opportunity before trial to move to suppress the evidence and that the State's notice was defective because it notified him only of the State's intention to use evidence obtained as a result of the second search which took place when defendant was not present. We will examine each contention in turn.
    Upon taking defendant's case, his attorney, Mr. James L. Goldsmith, Jr., requested that additional counsel be appointed because he was concerned about a potential conflict. (Mr. Goldsmith had previously represented a potential witness for the State.) On 6 September 2001, the trial court appointed Mr. Gregory A. Newman as co-counsel. On 13 September 2001, Mr. Newman filed and served a discovery request upon the State and asked for, among other things, information surrounding any search and seizure and whether the State intended to use evidence obtained by virtue of a search warrant. On 9 November 2001, the State filed a form notice of intention to introduce “[e]vidence obtained as a result of a search with a search warrant when the defendant was not present at the time of the execution of the search warrant.” Because Mr. Newman and Mr. Goldsmith were working independently, the State served only Mr. Newman with its response, but did place a copy of its response in the court file.
    Immediately before jury selection, the State moved for Mr. Newman to be released as counsel. Mr. Goldsmith indicated that he did not object to Mr. Newman's release because he was satisfiedthat there was no conflict. Before Detective Harper testified, Mr. Goldsmith informed the trial court that he did not recall receiving any notice of the State's intention to introduce items seized from defendant's home while he was present, and he moved for suppression of that evidence. Mr. Goldsmith informed the trial court that he and Mr. Newman had avoided working together before the trial to avoid the appearance of impropriety, and they had engaged in little or no consultation regarding the preparation of defendant's case.     Defendant maintains that, because the State's response was not served on his trial attorney (Mr. Goldsmith), he did not have a reasonable opportunity before trial to move to suppress the evidence. However, although the State's response was served on Mr. Newman, the response was placed in the court file for Mr. Goldsmith to see, and there was open file discovery which clearly described all the items seized from defendant's home. Nothing prevented Mr. Goldsmith from examining the court file prior to trial. Had he done so, he would have seen the State's response to Mr. Newman's request for discovery. As defendant cannot show a compelling reason why Mr. Goldsmith did not examine the court file, we perceive no reason to grant him relief on appeal.
    Defendant also argues that the State's notice was faulty because he was notified only of the State's intention to use evidence obtained during the 28 May search and seizure when he was not present, but received no notice of the State's intention to use evidence obtained during the 23 May search and seizure, for which he was present. N.C. Gen. Stat. § 15A-975 (2001) provides:            (a) In superior court, the defendant may move to suppress evidence only prior to trial unless the defendant did not have reasonable opportunity to make the motion before trial or unless a motion to suppress is allowed during trial under subsections (b) or (c).

            (b) A motion to suppress may be made for the first time during trial when the State has failed to notify the defendant's counsel or, if he has none, the defendant, sooner than 20 working days before trial, of its intention to use the evidence, and the evidence is:

                    (1)    Evidence of a statement made by a defendant;

                    (2)    Evidence obtained by virtue of a search without a search warrant; or

                    (3)    Evidence obtained as a result of search with a search warrant when the defendant was not present at the time of the execution of the search warrant.

            (c)    If, after a pretrial determination and denial of the motion, the judge is satisfied, upon a showing by the defendant, that additional pertinent facts have been discovered by the defendant which he could not have discovered with reasonable diligence before the determination of the motion, he may permit the defendant to renew the motion before the trial or, if not possible because of the time of discovery of alleged new facts, during trial.

“As a general rule, motions to suppress must be made before trial.” State v. Satterfield, 300 N.C. 621, 625, 268 S.E.2d 510, 514 (1980) (emphasis in original). “[W]hen none of the exceptions to making the pretrial motion to suppress applies, failure to make the pretrial motion pursuant to statute constitutes a waiver by defendant of his objections to the admission of the evidence.” State v. Harris, 71 N.C. App. 141, 143-44, 321 S.E.2d 480, 482(1984).
    Upon a careful reading of N.C. Gen. Stat. § 15A-975, we discern no requirement that the State notify defendant of its intention to use evidence obtained during a search at which defendant was present. Here, the State's response to Mr. Newman's discovery request stated its intention to introduce “[e]vidence obtained as result of a search with a search warrant when the defendant was not present at the time of the execution of the search warrant.” The State's response mirrored the situation envisioned in N.C. Gen. Stat. § 15A-975(b)(3). Under a plain reading of that statute, we believe defendant was required to move for suppression of the evidence prior to trial. The mere fact that Mr. Goldsmith had co-counsel for a period of time does not change the fact that the State's notice was in the open court file since 9 November 2001. Defendant had ample opportunity before trial to move to suppress the evidence in question, and his failure to comply with the advance notice requirement of N.C. Gen. Stat. § 15A-975(a) constitutes a waiver of his right to contest the admissibility of the evidence. Accordingly, defendant's first assignment of error is overruled.

    By his second assignment of error, defendant contends the trial court erred in denying his motion for a change of venue and for a special venire. We do not agree.
    N.C. Gen. Stat. § 15A-957 (2001) provides:
            If, upon motion of the defendant, thecourt determines that there exists in the county in which the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial, the court must either:

                    (1)    Transfer the proceeding to another county in the prosecutorial district . . . or to another county in an adjoining prosecutorial district . . . or

                    (2)    Order a special venire under the terms of G.S. 15A-958.

            The procedure for change of venue is in accordance with the provisions of Article 3 of this Chapter, Venue.

Defendant made a written motion for a change of venue pursuant to N.C. Gen. Stat. § 15A-957, citing prejudice and the existence of pretrial publicity, which he believed compromised his right to a fair and impartial trial. Defendant also asked the trial court to hold the matter in abeyance until voir dire determined the extent to which the potential jurors had been exposed to media coverage of the case. Defendant's attorney stated, “I think the bottom line is if we can find twelve jurors fair and impartial, fair to the State, fair to the defendant, then my motion to change venue might well be moot.” Before exhausting all his peremptory challenges, defendant indicated he was satisfied with the jury and did not ask the trial court to revisit his motion to change venue.
    As defendant failed to obtain a ruling on his motion to change venue, he has waived this issue on appeal. See N.C.R. App. P. 10(b)(1) (2003). Even if we reach the merits of this assignment of error, defendant has failed to show that he is entitled to relief.        [A] defendant's motion for a change of venue should be granted when he establishes that it is reasonably likely that prospective jurors would base their decision in the case upon pretrial information rather than the evidence presented at trial and would be unable to remove from their minds any preconceived impressions they might have formed.

State v. Jerrett, 309 N.C. 239, 254-55, 307 S.E.2d 339, 347 (1983). See also State v. Bonnett, 348 N.C. 417, 428, 502 S.E.2d 563, 571 (1998), cert. denied, 525 U.S. 1124, 142 L. Ed. 2d 907 (1999). In meeting this burden, a defendant “must show that jurors have prior knowledge concerning the case, that he exhausted peremptory challenges and that a juror objectionable to the defendant sat on the jury.” Jerrett, 309 N.C. at 255, 307 S.E.2d at 348. “A motion for change of venue is addressed to the sound discretion of the trial judge and his ruling will not be overturned in the absence of an abuse of discretion.” State v. Alford, 289 N.C. 372, 378, 222 S.E.2d 222, 226, death sentence vacated by Carter v. North Carolina, 429 U.S. 809, 50 L. Ed. 2d 69 (1976).
    In the present case, defendant cannot show prejudice. Defendant maintains pretrial publicity “infected” the jury pool and “rocked this small, rural county.” However, the jurors did not indicate that they personally knew the victims or their families or that they had great familiarity with the case. More importantly, each juror clearly stated he or she could be fair and impartial. We also find unpersuasive defendant's argument that, because there were forty-six indictments against him, “an inordinate number of county residents had personal ties to this case.” Both defendantand the State had ample opportunity to question potential jurors and to exercise their challenges. The fact remains that defendant did not use all his available peremptory challenges; by the time the jury was selected, defendant still had one challenge left for the regular jury pool and three challenges left for the selection of the alternate jurors. Finally, defendant references some comments by Juror Steurer, who stated the following during voir dire:
            [T]his is the kind of thing, you know, a teacher, you know, a teacher is put in a trust of students -- the children are put in the trust of the teacher. It's not a good situation to be in for a teacher to do that. It's a bad name for the profession. So I have thought of that and I also thought of the children involved. I have an eight year old son. Essentially, I've heard it marks them for life. I've never had experience with that, but I've heard that. It's not a good situation.

When asked, Mr. Steurer stated he could be fair and impartial. Defendant did not replace him, even though he still had peremptory challenges available for that specific purpose. As defendant cannot make a threshold showing of prejudice, his second assignment of error is overruled.

    In his next assignment of error, defendant argues the trial court erred in denying his written motion for individual voir dire of potential jurors and by denying his alternative request that the jurors appear in groups of two or three. Defendant argues that individual voir dire would have improved the chances of gettingcandid responses from jurors and would have avoided tainting the impartiality of jurors who heard a prejudicial remark made by another juror. Defendant contends the aforementioned remarks by Juror Steurer, as well as two other jurors who were dismissed by defendant for cause, infected the entire jury pool and ultimately denied him his state and federal due process rights and his Sixth Amendment right to be tried by a fair and impartial jury.
    Potential Juror Fletcher, who was dismissed for cause, stated:
            I'm saying when I heard all of this morning, I hadn't heard anything about it until this morning, and then when I heard it it just totally turned me off and I already said in my head he was guilty.

Potential Juror Johnston was dismissed for cause, because he could not set aside his opinion. Defendant contends the manner in which the prosecutor questioned Mr. Johnston inflamed everyone's emotions against him:
            MR. ELLIS [Prosecutor]:    Okay. The nature of the offence [sic] is sexual offence [sic] involving a man against small boys. Is it just that this is so contemptible a thing that you don't think you can be a part of that, is that what you're saying?

            MR. JOHNSTON:    Well, I'd rather not.

Defendant maintains the jury pool heard these comments and were tainted by them. We do not agree.
    The trial court has the power to closely regulate jury selection to ensure that both the defendant and the State receive a fair trial before an impartial jury. State v. Brady, 299 N.C. 547, 554, 264 S.E.2d 66, 70 (1980). “The trial judge has broaddiscretion 'to see that a competent, fair and impartial jury is impaneled and rulings of the trial judge in this regard will not be reversed absent a showing of abuse of discretion.'” State v. Phillips, 300 N.C. 678, 682, 268 S.E.2d 452, 455 (1980) (quoting State v. Johnson, 298 N.C. 355, 362, 259 S.E.2d 752, 757 (1979)).
    The State points out that, under N.C. Gen. Stat. § 15A-1214(j) (2001), individual juror voir dire is limited to capital cases, and the case law of this State has borne out that interpretation. The trial court reviewed the statute, indicated its agreement, and denied defendant's motion for individual voir dire. “Under N.C.G.S. 15A-1214(j), defendant does not have a right to have the jurors selected individually. . . . N.C.G.S. 15A-1214(d), (e), (f) sets forth the procedure ordinarily followed in non-capital trials.” State v. Watson, 310 N.C. 384, 395, 312 S.E.2d 448, 456 (1984). We have considered defendant's additional arguments related to this assignment of error and believe they are without merit. Upon careful review of the proceedings below, we conclude the trial court did not abuse its discretion in denying defendant's motion for individual juror voir dire or for a special venire. Accordingly, this assignment of error is overruled.

    In his next assignment of error, defendant argues the trial court committed prejudicial error by failing to exercise its discretion in responding to the jury's request to review the testimony of DM. When presented with the question, “May we review [DM's] testimony?” the trial court told the jury:            [DM's] testimony is not in a form that would be subject to review. It would be some period of time before it would be transcribed. I will instruct you to search your own memory as to [DM].

Defendant contends the trial court's statement demonstrated an erroneous belief that it had no discretion to provide the requested testimony. Defendant believes the trial court's error was compounded because he was indicted for six counts of taking indecent liberties with DM, and a review of his testimony could have led the jury to convict him of only two of those counts instead of four (the jury acquitted defendant of two of the counts). We do not agree.
    The trial court must exercise its discretion in responding to questions posed by the jury. N.C. Gen. Stat. § 15A-1233 (2001). “The decision to grant or deny a jury request for a review of evidence is committed to the discretion of the trial court. [T]he trial court errs where it does not exercise its discretion in determining whether the jury should be allowed to review the evidence introduced at trial.” State v. Porter, 340 N.C. 320, 329, 457 S.E.2d 716, 720 (1995). Here, the trial court's response was proper.
    Defendant cites State v. Barrow, 350 N.C. 640, 517 S.E.2d 374 (1999); State v. Ashe, 314 N.C. 28, 331 S.E.2d 652 (1985); and State v. Lang, 301 N.C. 508, 272 S.E.2d 123 (1980), for the proposition that the trial court here did not exercise its discretion in denying the jury's request to review DM's testimony. However, we believe the present case is distinguishable from thosecases. The trial court did not state that it “doesn't have the ability” to produce DM's testimony, as did the trial court in Barrow. Barrow, 350 N.C. at 647, 517 S.E.2d at 378. A review of Barrow also demonstrates that it is fully distinguishable both on its facts and on the types of errors that occurred at the trial. See id. In the present case, the trial court indicated it “[would] instruct” the jury, which differs from the Ashe trial court's statement that it would “have to” give an instruction and the jury would “have to” recollect the evidence. Ashe, 314 N.C. at 33, 331 S.E.2d at 656. The trial court in the instant case exercised a choice to instruct the jury and did not indicate that it lacked discretion. Finally, the trial court here did not make a blanket statement indicating that it did not exercise discretion in specific situations, as did the trial court in Lang. Lang, 301 N.C. at 510-11, 272 S.E.2d at 125. Lang is also distinguishable on its facts because the jury asked to review alibi testimony, which is not the case here.
    We further agree with the State that defendant cannot show prejudicial error. DM's testimony did not constitute evidence presented by defendant which conflicted with the State's evidence, but was rather the testimony of a prosecuting witness. Consequently, the trial court's denial of the jury's request had no effect on the convictions involving the twin brothers or RB. With respect to DM, defendant was charged with six counts of taking indecent liberties. The jury convicted defendant of four of those charges and acquitted him of two charges. DM testified defendantinappropriately touched him “several” times while Mrs. Randles was on her honeymoon, and once before that. The dictionary definition of “several” is “being of a number more than two or three but not many.” American Heritage Dictionary 1248 (3d ed. 1997). Thus, we believe DM's testimony supported at least four counts of taking indecent liberties. We further note that, in addition to DM's testimony, the jury heard Detective Harper testify regarding what DM told him, without objection or limiting instruction. This evidence could therefore have been considered for both corroborative and substantive purposes. See State v. Chandler, 324 N.C. 172, 182, 376 S.E.2d 728, 734-35 (1989).
    The State argues, and we agree, that the jury could have found defendant guilty of an additional count of taking indecent liberties against DM had they been permitted to review his testimony. Thus, even if the trial court erred in its handling of the jury's question, there is no prejudice to defendant. Defendant's fourth assignment of error is overruled.

    By his sixth assignment of error, defendant argues the trial court improperly instructed the jury on the six counts of taking indecent liberties with regard to DM. Specifically, defendant argues that the trial court's failure to differentiate between the six indictments, charges and verdicts for taking indecent liberties regarding DM makes it impossible to determine which verdicts correspond to which incidents and whether the verdicts were unanimous.
    However, defendant failed to object to the jury instructions at trial and has not asserted plain error review in his brief to this Court. The plain error standard is generally applied in situations where the defendant has failed to object to juryinstructions as given. See State v. Odom, 307 N.C. 655, 659-61, 300 S.E.2d 375, 378 (1983). “[W]here a party has not preserved a question for review, he must specifically and distinctly allege that the trial court's action amounted to plain error in order to have the error reviewed on appeal.” State v. Alston, 131 N.C. App. 514, 517, 508 S.E.2d 315, 318 (1998). See also N.C.R. App. P. 10(c)(4) (2003). In any event, defendant cannot show plain error. While it is true that “[n]o person shall be convicted of any crime but by the unanimous verdict of a jury in open court[,]” defendant cannot show that this did not occur in his case. N.C. Const. Art. I, § 24. Our Supreme Court has held that a disjunctive instruction for indecent liberties does not result in the risk of a nonunanimous verdict. See State v. Hartness, 326 N.C. 561, 564-65, 391 S.E.2d 177, 179 (1990). Defendant also contends the issue is not that the instruction was disjunctive as to one charge, but that by instructing on all the charges together and failing to differentiate between them on the verdict sheet, the trial court created confusion and made it impossible to determine what the jury decided or if the verdicts were unanimous. During its deliberations, the jury asked a question on this subject:
            THE COURT: Madam Foreperson, the jury has sent a message: “Does a count refer to a specific act or to an occasion? For example: An occasion may have several acts, would that be one count or more than one?”

            Members of the jury, I will define count for you as this. This case involved 11 counts. A count -- each count -- a count means a separate charge. Madam Foreperson does that answer your question?
            FOREPERSON:    Yes, ma'am.

When the verdicts were returned, the jury found defendant guilty of four counts of taking indecent liberties with DM, but acquitted him of two additional counts of taking indecent liberties with DM. We therefore believe that the jury duly considered the evidence and made separate determinations regarding each count. As defendant cannot show plain error, his sixth assignment of error is overruled.

    In his seventh assignment of error, defendant argues Detective Harper's testimony impermissibly revealed that he asserted his constitutional rights to an attorney and to remain silent. The prosecutor asked Detective Harper what actions he took after the 23 May search. Detective Harper stated that he and his fellow officers loaded the evidence into their patrol cars and had another officer take defendant into custody and transport him to the police station. He also testified that:
            I then went into an interview room where Mr. McKisson was located. I read him his Constitutional Rights, advised him of all his rights that he had at the moment, and asked him if he was willing to make any statements to me. He refused to make any statements to me and exercised his right to have an attorney.

Defendant argues the trial court should have intervened ex mero motu and that its failure to do so constituted plain error, which we must review. State v. Fleming, 350 N.C. 109, 139, 512 S.E.2d 720, 741, cert. denied, 528 U.S. 941, 145 L. Ed. 2d 274 (1999).     Upon review, we discern no plain error. Detective Harper's testimony was not made in response to a specific question posed by the State regarding the invocation of his constitutional rights, but was offered to describe how the investigation proceeded and the actions taken by himself and the other law enforcement officers. Defendant did not object, did not move to strike, did not request a curative instruction, and did not move for a mistrial based on the testimony. Detective Harper's comments were mild and the State did not emphasize defendant's invocation of his rights. We believe this case is analogous to State v. Alexander, 337 N.C. 182, 194-96, 446 S.E.2d 83, 90-91 (1994), wherein the Supreme Court overruled the defendant's assignment of error on this very point. Defendant asserted his constitutional rights when they were read to him, and not in response to a specific allegation or to a question. In such a situation, the Miranda prohibition against using the fact that defendant remained silent does not apply. See State v. Love, 296 N.C. 194, 202, 250 S.E.2d 220, 226 (1978); and State v. Allison, 57 N.C. App. 635, 636-37, 292 S.E.2d 288, 289 (1982), rev'd on other grounds, 307 N.C. 411, 298 S.E.2d 365 (1983). Further, given the overwhelming evidence of defendant's guilt, he cannot establish plain error by the admission of Detective Harper's testimony. Accordingly, this assignment of error is overruled.

    By his final assignment of error, defendant argues that he was denied effective assistance of counsel because his attorney failed to make a timely motion to suppress and failed to request alimiting instruction on hearsay evidence.
    To establish ineffective assistance of counsel, defendant must demonstrate “that his counsel's conduct fell below an objective standard of reasonableness.” State v. Braswell, 312 N.C. 553, 561- 62, 324 S.E.2d 241, 248 (1985). To do so, defendant must show two things:
        First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, reh'g denied, 467 U.S. 1267, 82 L. Ed. 2d 864 (1984).
    With regard to the motion to suppress, we believe that, even if defendant's attorney's actions were deemed deficient, defendant cannot obtain relief because there was no meritorious basis to support suppression of the evidence. Defendant believes RB's statements to Detective Harper did not give the Detective probable cause to seek the wide array of items that were eventually seized. However, RB told Detective Harper that defendant took a Polaroid photograph of him. Based on his twenty-five years of experience investigating sexual assault cases, Detective Harper believed defendant was documenting his sexual activities with his victims. Defendant's possession of child pornography was relevant to establish intent.    Additionally, though defendant challenges the vagueness of the search warrant and argues that “there is a serious First Amendment issue regarding the various magazines and other writings that were seized and that were named in the search warrants only in a generic way[,]” he directs us to no supporting case law. Thus, because defendant cannot show prejudice by his attorney's failure to timely move to suppress, and because he cannot show that there was a meritorious basis for suppression, he cannot show ineffective assistance of counsel in this instance.
    Defendant also argues his attorney failed to request limiting instructions to hearsay evidence (in the form of Detective Harper's and Ms. Humphries' testimonies as to what DM told them). Specifically, defendant contends Detective Harper and Ms. Humphries were allowed to testify regarding matters not fully discussed by DM when he testified. Defendant maintains his attorney's failure to object to the testimony or to request a limiting instruction that the evidence was only corroborative and not substantive evidence resulted in an additional indecent liberties conviction and amounted to ineffective assistance of counsel. We do not agree.
    Both Detective Harper's and Ms. Humphries' testimonies served to corroborate DM's testimony. The jury had an opportunity to hear directly from DM and also saw defendant's legal pad, which documented several episodes of sexual contact between himself and DM. It also bears repeating that the jury acquitted defendant of two of the six indecent liberties counts involving DM, which indicates that they considered all the testimony and reconciled anydiscrepancies or extraneous matter. In light of the foregoing, we do not believe defendant can show ineffective assistance of counsel based on his attorney's failure to object to hearsay testimony. Accordingly, his final assignment of error is overruled.
    After careful review of the record, the transcript, and the arguments presented by the parties, we conclude defendant received a fair trial, free from error.
    No error.
    Judges McGEE and LEVINSON concur.
    Report per Rule 30(e).

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