Appeal by defendant from judgments dated 24 October 2002 by
Judge Cy A. Grant in Superior Court, Northampton County. Heard in
the Court of Appeals 4 March 2003.
Attorney General Roy Cooper, by Assistant Attorney General
Steven F. Bryant, for the State.
Everett & Hite, L.L.P., by Kimberly A. Swank, for defendant-
appellant.
McGEE, Judge.
Willie Melvin Jackson (defendant) was convicted on 24 October
2002 of first degree murder, attempted robbery with a firearm, and
conspiracy to commit robbery with a firearm. The trial court
entered judgment and sentenced defendant to life imprisonment
without parole for the murder conviction. The trial court further
sentenced defendant to a minimum of 64 months and a maximum of 86
months in prison for the attempted robbery conviction and a minimum
of 25 months and a maximum of 39 months in prison for the
conspiracy conviction to run consecutively. Defendant appeals.
The State's evidence at trial tended to show that James
Troutman (Troutman), manager of First Citizen's Bank (the bank) in
Conway, and two women working as bank tellers, Vickie Howell(Howell) and Carolyn Watson (Watson), were working on the afternoon
of 24 May 2001. Howell testified that at approximately 3:25 p.m.
that afternoon, she was waiting on a customer, Marjorie Joyner
(Joyner). Howell heard someone yell and she saw a "young guy" who
had come into the bank with a "black mesh type thing on his face."
Howell testified that the young male said, "don't push the f------
button" and then she heard a shot. Howell discovered Watson lying
on the floor and told Troutman that Watson had been shot.
Joyner testified that while she was standing at Howell's
teller window, she observed two young males enter the bank. One
announced that he meant "business" and walked toward Watson's
teller window, while the second male crouched down. Joyner heard
gunfire and then saw that Watson had fallen.
Troutman testified that at about 3:20 or 3:25 p.m. that
afternoon, he was working at his desk when he heard someone yell,
"nobody touch that f------ button." Troutman looked up and saw a
male with a pistol in his hand in the bank lobby. Troutman also
saw a second male crouched down at the corner of the teller window.
The male with the pistol passed by Troutman's office and walked
toward Watson's teller window. After the male passed by his
office, Troutman heard a gunshot. The two males fled the bank
immediately after the gunshot. Watson died on the way to the
hospital as the result of a single gunshot wound just below her
chin.
Mae Woodard (Woodard) testified that she saw defendant and
another male named Cody Hill (Hill) standing on the street corner
outside the bank at around 3:20 p.m. that afternoon. Woodard, whohad previously taught defendant and Hill in school, stopped to
speak with them. Woodard then went into the bank to make a
deposit, and when she left the bank, she observed defendant and
Hill walking away from the bank. Shortly after arriving back at
work, Woodard saw rescue squad vehicles and police cars outside the
bank. She returned to the bank and heard that Watson had been
shot. Woodard informed an officer at the scene that she had just
been at the bank and had seen two of her former students, defendant
and Hill, on the corner outside the bank. She gave a written
statement at the Conway Police Department. Afterwards, Woodard was
taken back to the bank and was asked to view a videotape from the
bank's surveillance camera. Woodard identified the male with the
gun as defendant and the other male as Hill.
Conway Chief of Police Billy Duke (Chief Duke) testified that
at around 7:00 p.m. that evening, FBI Agent Fernando Fernandez
(Agent Fernandez), who was assisting with the investigation, spoke
with Hill's father. Agent Fernandez then asked Chief Duke to check
out a car at the Arrowhead Trailer Park belonging to Toby Gary
(Gary), a twenty-four-year-old man from New York. Chief Duke and
Deputy Kevin Bird (Deputy Bird) searched the unlocked car, which
was parked at Lot 107 of the Arrowhead Trailer Park. The officers
found two caps in the car that matched the description of the caps
worn by the two males at the bank. On the way back to the police
station, the officers heard over the police radio that three
suspects, Gary, Hill, and defendant, had been detained.
Chief Ted Sumner (Chief Sumner) of the Gaston Police
Department testified that he took Gary and defendant into custodythat evening and transported them to the Conway Police Department
with defendant in the front passenger's seat and Gary in the rear
passenger area. Later that evening, the Conway Police Department
asked Chief Sumner to check his car for a gun. Chief Sumner did so
and found a handgun beneath the passenger's seat. Expert testimony
at trial established that Watson was shot by the handgun found
under the passenger's seat of Chief Sumner's patrol car.
The State also offered evidence of three statements defendant
made to police. In defendant's first statement, made on the
evening of 24 May 2001, defendant stated that Gary and Hill went
into the bank on the afternoon of 24 May 2001 while defendant
waited for them. While Gary and Hill were in the bank, defendant
went to a thrift store and then waited for them in the car. In his
second statement that evening, defendant admitted that he shot
Watson, but defendant claimed that the shooting was an accident.
Defendant also made a third statement on 7 June 2001 to Detective
Charles Barfield (Officer Barfield) of the Northampton Sheriff's
Department. In his third statement, defendant stated that he was
with Gary and Shawn Garris (Garris) on the evening of 23 May 2001
when a man was robbed by Gary and Garris. Defendant further stated
that they had attempted to get a gun "to do a job." Defendant
presented no evidence.
We note at the outset that defendant has failed to present an
argument in support of assignments of error numbers two, four
through seven, ten, fourteen, fifteen, twenty, twenty-one, twenty-
three through twenty-six, twenty-nine, and thirty-two through
thirty-five. Therefore, those assignments of error are deemedabandoned pursuant to N.C.R. App. P. 28(b)(6).
[1] Defendant first argues in assignments of error numbers
sixteen through eighteen that the trial court erred in denying his
motion to suppress his 7 June 2001 statement because it was
obtained as a result of custodial interrogation after defendant had
been formally charged. Accordingly, defendant asserts that he is
entitled to a new trial because his constitutional rights under the
Fifth and Sixth Amendments of the United States Constitution were
violated. For the reasons stated below, we disagree.
In a written motion dated 22 October 2002, defendant moved to
suppress "all evidence of written or oral statements made by him"
to law enforcement. However, on appeal, the only statement at
issue is the statement defendant made to Officer Barfield on 7 June
2001. We note that
[o]ur review of a denial of a motion to
suppress by the trial court is "limited to
determining whether the trial judge's
underlying findings of fact are supported by
competent evidence, in which event they are
conclusively binding on appeal, and whether
those factual findings in turn support the
judge's ultimate conclusions of law."
State v. Barden, 356 N.C. 316, 340, 572 S.E.2d 108, 125 (2002)
(quoting State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619
(1982)), cert. denied, 538 U.S. 1040, 155 L. Ed. 2d 1074 (2003).
"However, the trial court's conclusions of law 'must be legally
correct, reflecting a correct application of applicable legal
principles to the facts found.'" State v. Strobel, 164 N.C. App.
310, 313, 596 S.E.2d 249, 253 (2004) (quoting State v. Fernandez,
346 N.C. 1, 11, 484 S.E.2d 350, 357 (1997)).
In the case before our Court, voir dire was held during trialto determine the admissibility of defendant's 7 June 2001 statement
to Officer Barfield, as well as statements defendant made to other
officers. Evidence at voir dire tended to show that Officer
Barfield testified that after defendant's 7 June 2001 court
appearance, Officer Barfield and Officer Shelton Skinner (Officer
Skinner) sat with defendant as they waited for juvenile authorities
to transport defendant elsewhere. Officer Barfield did not make
any statements to defendant, but he described defendant as being
"very talkative." Officer Barfield testified that when defendant
saw the cap which had been presented into evidence, defendant
"spontaneously stated, 'I know where that cap came from.'" Officer
Barfield simply responded, "so do I." Officer Barfield further
testified that defendant then "went on to say, 'well I can tell you
some stuff that you don't know about.'" Officer Barfield
responded, "yeah[,]" and defendant "proceeded at that time talking
and disclosing to me of a robbery committed in Roanoke Rapids by
him and some others." When asked whether he initiated any
conversation with defendant at any point, Officer Barfield
responded negatively. On cross-examination during voir dire,
Officer Barfield stated that the only thing he would have asked
defendant was for defendant to "be more specific about something."
Officer Barfield also specifically testified that he did not tell
defendant he had a right not to say anything.
Officer Skinner testified at voir dire that he was present
when defendant made the 7 June 2001 statement to Officer Barfield.
Officer Skinner testified that defendant "just decided to talk"
while they were waiting for defendant to be transferred. OfficerSkinner stated that he did not ask defendant anything during this
time and that Officer Barfield "may have asked [defendant] to
specify what he was talking about[.]" Officer Skinner further
testified that neither he nor Officer Barfield gave defendant any
Miranda warnings. Defendant did not testify during voir dire
concerning the motion to suppress.
At the conclusion of voir dire, the trial court immediately
found and concluded, among other things, that "the statement made
by the defendant on June 7, 2001, was made freely, voluntarily and
understandingly." Accordingly, the trial court orally denied the
motion to suppress and overruled defendant's objection to admission
of the statement into evidence.
I. Fifth Amendment
Defendant first challenges admission of his statement to
Officer Barfield as a violation of his rights under the Fifth
Amendment of the U.S. Constitution. Under the interpretation of
the Fifth Amendment under Miranda v. Arizona, 384 U.S. 436, 479, 16
L. Ed. 2d 694, 726 (1966), "no evidence obtained from a defendant
through custodial interrogation may be used against that defendant
at trial, unless the interrogation was preceded by (1) the
appropriate warnings of the rights to remain silent and to have an
attorney present and (2) a voluntary and intelligent waiver of
those rights." State v. Locklear, 138 N.C. App. 549, 551, n.2, 531
S.E.2d 853, 855, n.2, disc. review denied, 352 N.C. 359, 544 S.E.2d
553 (2000). However, "'[t]he Miranda warnings and waiver of
counsel are required only when an individual is being subjected to
custodial interrogation.'" State v. Kincaid, 147 N.C. App. 94,101, 555 S.E.2d 294, 300 (2001) (quoting State v. Clay, 297 N.C.
555, 559, 256 S.E.2d 176, 180 (1979), overruled on other grounds by
State v. McAvoy, 331 N.C. 583, 601, 417 S.E.2d 489, 500 (1992), and
by State v. Davis, 305 N.C. 400, 414-15, 290 S.E.2d 574, 583
(1982)).
Defendant argues that his Fifth Amendment right applies in the
present case because his statement to Officer Barfield was the
result of custodial interrogation. The State does not dispute that
defendant was in custody at the time of the 7 June 2001 statement,
or that defendant was not advised of his Miranda rights. However,
the State argues that Officer Barfield did not interrogate
defendant; rather, defendant's statement was spontaneous and
therefore admissible. Thus, the issue is whether the statement was
the result of an interrogation.
We begin our analysis by noting that "not every statement
obtained by police from a person in custody is considered the
product of interrogation." State v. Fisher, 158 N.C. App. 133,
142, 580 S.E.2d 405, 413, disc. review denied, 357 N.C. 464, 586
S.E.2d 273-74 (2003), aff'd, 358 N.C. 215, 593 S.E.2d 583 (2004).
The term "interrogation" is not limited to
express questioning by law enforcement
officers, but also includes "any words or
actions on the part of the police (other than
those normally attendant to arrest and
custody) that the police should know are
reasonably likely to elicit an incriminating
response from the suspect."
State v. Golphin, 352 N.C. 364, 406, 533 S.E.2d 168, 199 (2000)
(quoting Rhode Island v. Innis, 446 U.S. 291, 301, 64 L. Ed. 2d
297, 308 (1980)), cert. denied, 532 U.S. 931, 149 L. Ed. 2d 305
(2001). We emphasize that the definition of interrogation extendsonly to words or actions that police officers should reasonably
have known would elicit an incriminating response "because 'the
police surely cannot be held accountable for the unforeseeable
results of their words or actions[.]'" Golphin, 352 N.C. at 406,
533 S.E.2d at 199 (quoting Innis, 446 U.S. at 301-02, 64 L. Ed. 2d
at 308)). Further,
[f]actors that are relevant to the
determination of whether police "should have
known" their conduct was likely to elicit an
incriminating response include: (1) "the
intent of the police"; (2) whether the
"practice is designed to elicit an
incriminating response from the accused"; and
(3) "[a]ny knowledge the police may have had
concerning the unusual susceptibility of a
defendant to a particular form of persuasion .
. . ."
Fisher, 158 N.C. App. at 142-43, 580 S.E.2d at 413 (quoting Innis,
446 U.S. at 301-02, n.7,8, 64 L. Ed. 2d at 308, n.7,8).
In this case, as already stated, Officer Barfield did not
initiate any questioning with defendant. Rather, defendant
spontaneously stated to Officer Barfield that he knew where the cap
in the room came from. Officer Barfield responded simply, "so do
I." This is not the type of statement that necessarily invites a
response. According to testimony by both Officers Barfield and
Skinner, defendant then volunteered the information about another
robbery unrelated to defendant's pending charges. Both officers
also testified that Officer Barfield may have asked for
clarification on a couple of occasions as defendant talked about
the unrelated robbery.
Defendant emphasizes that when he made this statement to
Officer Barfield, he was only fifteen years old, he was facingfirst degree murder and attempted robbery charges, and he had just
left a probable cause hearing in district court. Defendant argues
that he was "undoubtedly nervous and scared" and "particularly
susceptible to any persuasion tactics." In addition, defendant
alleges that he was "confronted with a baseball cap" while he was
waiting to be transferred. However, we do not find that these
circumstances warrant a conclusion that Officer Barfield should
have known that he would elicit an incriminating response from
defendant by saying, "so do I."
Furthermore, we note that defendant argues that Officer
Barfield "expressly questioned Defendant about the details, asking
him to be more specific." However, this assertion is not supported
by the evidence in the transcript. Rather, the evidence shows that
Officer Barfield may have simply asked for clarification for such
things as who defendant meant by "we." Defendant has also cited no
cases to support the assertion that Officer Barfield's requests for
clarification amounted to interrogation, and we hold that Officer
Barfield's conduct did not constitute interrogation under the Fifth
Amendment.
II. Sixth Amendment
The Sixth Amendment to the U.S. Constitution provides that "in
all criminal prosecutions, the accused shall enjoy the right to
. . . have the assistance of counsel for his defense." U.S. Const.
amend. VI.
"The Sixth Amendment right to counsel attaches only 'at
or after the initiation of adversary judicial criminal proceedings
_ whether by way of formal charge, preliminary hearing, indictment,
information, or arraignment.'"
State v. Lippard, 152 N.C. App.564, 569-70, 568 S.E.2d 657, 661 (quoting
Kirby v. Illinois, 406
U.S. 682, 689, 32 L. Ed. 2d 411, 417 (1972)),
disc. review denied
and cert. denied, 356 N.C. 441, 573 S.E.2d 159 (2002). "[T]he
police may not interrogate a defendant whose Sixth Amendment right
has attached unless counsel is present or the defendant expressly
waives his right to assistance of counsel."
State v. Warren, 348
N.C. 80, 95, 499 S.E.2d 431, 439,
cert. denied, 525 U.S. 915, 142
L. Ed. 2d 216 (1998).
As just stated, the Sixth Amendment protects a defendant from
interrogation after the right has attached. In the analysis
regarding defendant's Fifth Amendment challenge, we concluded that
defendant was not interrogated by Officer Barfield. Thus, although
defendant's Sixth Amendment rights had attached, because he was not
interrogated, the conclusion follows that defendant's Sixth
Amendment rights were not violated. Accordingly, the assignments
of error challenging the trial court's denial of defendant's motion
to suppress the 7 June 2001 statement are overruled.
(See footnote 1)
[2] Defendant next argues in assignment of error number
thirteen that the trial court deprived him of his constitutionalright to a presumption of innocence by instructing the jury not to
form an opinion regarding defendant's guilt or innocence. We note
that defendant failed to object or make a constitutional claim for
this alleged error at trial. "Constitutional questions not raised
and passed upon at trial will not be considered on appeal."
State
v. Call, 353 N.C. 400, 421, 545 S.E.2d 190, 204,
cert. denied, 534
U.S. 1046, 151 L. Ed. 2d 548 (2001).
"In criminal cases, a question which was not
preserved by objection noted at trial and
which is not deemed preserved by rule or law
without any such action, nevertheless may be
made the basis of an assignment of error where
the judicial action questioned is specifically
and distinctly contended to amount to plain
error." N.C. R. App. P. 10(c)(4). In order
to establish plain error, a defendant must
establish that the trial court committed error
and that absent this error, the jury would
have probably reached a different result.
State v. Gainey, 355 N.C. 73, 93, 558 S.E.2d 463, 477,
cert.
denied, 537 U.S. 896, 154 L. Ed. 2d 165 (2002).
Defendant cites language from
Coffin v. United States, 156
U.S. 432, 459, 39 L. Ed. 481, 493 (1895) for the proposition that
the presumption of innocence is an "instrument of proof created by
the law in favor of one accused, whereby his innocence is
established until sufficient evidence is introduced to overcome the
proof which the law has created." Defendant argues that the trial
court's instruction about not forming an opinion regarding
defendant's guilt or innocence effectively "operated to remove from
the jury's consideration a portion of the 'proof created by the
law,' which the jury was bound to consider."
Subsequent cases have commented on the
Coffin Court's view of
the presumption of innocence being an "instrument of proof." Forexample, in
Taylor v. Kentucky, the United States Supreme Court
noted in a footnote that "the so-called 'presumption' is not
evidence _ not even an inference drawn from a fact in evidence _
but instead is a way of describing the prosecution's duty both to
produce evidence of guilt and to convince the jury beyond a
reasonable doubt."
Taylor v. Kentucky, 436 U.S. 478, 483-84, n.12,
56 L. Ed. 2d 468, 474, n.12 (1978). The Court further stated that
the presumption is "better characterized as an 'assumption' that is
indulged in the absence of contrary evidence."
Id.
In the case before our Court, the trial court instructed the
jury before the trial began not to "form any opinion about the
guilt or innocence of the defendant."
Defendant cited no cases
showing that such an instruction constitutes an error. Thus, we
hold that this instruction by the trial court did not amount to
plain error. Accordingly, defendant's argument is overruled.
[3] Defendant next agues in assignment of error number eight
that the trial court lacked jurisdiction to enter judgment
convicting defendant of conspiracy to commit robbery. Defendant
asserts that because he was fifteen years old at the time the
alleged conspiracy was committed, he was subject to prosecution
only pursuant to the North Carolina Juvenile Code as codified in
N.C. Gen. Stat. § 7B-100 et seq. (2003). Defendant argues that the
trial court did not properly obtain jurisdiction pursuant to the
Juvenile Code.
The Juvenile Code provides that the district court "has
exclusive, original jurisdiction over any case involving a juvenile
who is alleged to be delinquent. For purposes of determiningjurisdiction, the age of the juvenile at the time of the alleged
offense governs." N.C. Gen. Stat. § 7B-1601(a) (2003).
See also
N.C. Gen. Stat. § 7B-1501(4) (2003) (defining court as "[t]he
district court division of the General Court of Justice.").
Further, N.C. Gen. Stat. § 7B-2200 (2003) provides the following as
the procedure regarding transfer from district to superior court:
After notice, hearing, and a finding of
probable cause the court may, upon motion of
the prosecutor or the juvenile's attorney or
upon its own motion, transfer jurisdiction
over a juvenile to superior court if the
juvenile was 13 years of age or older at the
time the juvenile allegedly committed an
offense that would be a felony if committed by
an adult. If the alleged felony constitutes a
Class A felony and the court finds probable
cause, the court shall transfer the case to
the superior court for trial as in the case of
adults.
"The superior court may obtain subject matter jurisdiction over a
juvenile case only if it is transferred from the district court
according to the procedure [N.C. Gen. Stat. § 7B-2200] prescribes."
State v. Dellinger, 343 N.C. 93, 96, 468 S.E.2d 218, 220 (1996).
In the case before this Court, two juvenile petitions, one
alleging murder and the other alleging attempted armed robbery,
were filed in district court.
The trial court found probable cause
that defendant committed these offenses and ordered that these
offenses be transferred to superior court.
Subsequently, defendant
was indicted and found guilty of first degree murder, attempted
armed robbery, and conspiracy to commit armed robbery. Prior to
the indictments in superior court, no petition had been filed in
district court regarding the conspiracy charge. Defendant argues
that the district court never exercised jurisdiction over defendantfor this charge, and consequently, the superior court did not
obtain jurisdiction over this charge by transfer pursuant to N.C.
Gen. Stat. § 7B-2200. However, N.C. Gen. Stat. § 7B-2203(c) (2003)
states that when a juvenile case is transferred to superior court,
"the superior court has jurisdiction over that felony, any offense
based on the same act or transaction or on a series of acts or
transactions connected together or constituting parts of a single
scheme or plan of that felony[.]" The offense of conspiracy to
commit armed robbery fell within the transaction related to the
felony charge of armed robbery that was transferred from district
court to superior court. Therefore, the superior court also had
jurisdiction over the offense of conspiracy to commit armed robbery
under N.C.G.S. 7B-2203(c). Accordingly, we affirm defendant's
conviction for conspiracy to commit armed robbery.
[4] Defendant next argues in assignment of error number thirty
that the trial court erred in failing to arrest judgment on the
attempted armed robbery offense where that offense served as the
underlying felony for defendant's felony murder conviction. We
note that the State concedes the trial court erred.
"When a defendant is convicted of felony murder only, the
underlying felony constitutes an element of first-degree murder and
merges into the murder conviction."
State v. Millsaps, 356 N.C.
556, 560, 572 S.E.2d 767, 770 (2002). "In accordance with the
state and federal prohibitions against double jeopardy, our Supreme
Court firmly established that 'a defendant may not be punished both
for felony murder and for the underlying, "predicate" felony, even
in a single prosecution.'"
State v. Coleman, 161 N.C. App. 224,234, 587 S.E.2d 889, 896 (2003) (quoting
State v. Gardner, 315 N.C.
444, 460, 340 S.E.2d 701, 712 (1986)). Because the underlying
felony merges into the murder conviction, "any judgment on the
underlying felony must be arrested."
Coleman, 161 N.C. App. at
234, 587 S.E.2d at 896.
In the case before us, defendant was convicted of first degree
murder based on the fact that the killing occurred during an
attempted armed robbery.
Defendant was also convicted of attempted
armed robbery.
The trial court erroneously imposed sentences for
both the murder conviction and the attempted armed robbery
conviction.
Accordingly, judgment is arrested on defendant's
conviction of attempted armed robbery.
See State v. Gillis, 158
N.C. App. 48, 58-59, 580 S.E.2d 32, 39,
disc. review denied, 357
N.C. 508, 587 S.E.2d 887 (2003);
State v. Ocasio, 344 N.C. 568,
581, 476 S.E.2d 281, 288 (1996).
[5] Defendant next argues in assignment of error number one
that the trial court erred in entering judgment convicting him of
first degree murder because the indictment was insufficient to
allege the elements of felony murder. Defendant maintains the
trial court violated his federal and state constitutional rights
under U.S. Const. amends. V, VI, VIII, and XIV and N.C. Const. art.
I, §§ 18, 19, 22, 23, 24 and 27.
Defendant cites two cases in recognition that our Supreme
Court has upheld the use of short-form indictments. However,
defendant contends that the "cases do not address the specific
issue presented here __ whether an indictment alleging an unlawful,
willful and felonious killing with malice aforethought providessufficient notice . . . to charge a defendant with felony murder."
Our Supreme Court "has consistently held that the 'short-form
indictment is sufficient to charge a defendant with first-degree
murder.'"
Coleman, 161 N.C. App. at 236, 587 S.E.2d at 897
(quoting
Barden, 356 N.C. at 384, 572 S.E.2d at 150
). Contrary to
defendant's assertion, our Supreme Court has addressed the very
same issue.
See State v. Avery, 315 N.C. 1, 12-14, 337 S.E.2d 786,
792-93 (1985) (holding that an indictment alleging that the
defendant "unlawfully, willfully and feloniously and of malice
aforethought did kill and murder" the victim was "sufficient to
charge first degree murder without specifically alleging
premeditation and deliberation or felony murder."). Accordingly,
defendant's argument is overruled.
[6] Finally, defendant argues in multiple assignments of error
that he received ineffective assistance of counsel. "To establish
ineffective assistance of counsel, defendant must satisfy a
two-prong test which was promulgated by the United States Supreme
Court in
Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d
674, 693 (1984)."
State v. Thomas, 350 N.C. 315, 328, 514 S.E.2d
486, 495,
cert. denied, 528 U.S. 1006, 145 L. Ed. 2d 388 (1999).
"[A] defendant must show that his counsel's assistance was so
deficient that counsel was not 'functioning as the "counsel"
guaranteed the defendant by the Sixth Amendment,' and that
counsel's deficient performance deprived him of a fair trial."
State v. Lawson, 159 N.C. App. 534, 543, 583 S.E.2d 354, 360 (2003)
(quoting
Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693).
Defendant argues that there are multiple errors that his trialcounsel made at trial that either singularly or collectively
amounted to ineffective assistance of counsel. He argues that
trial counsel (1) failed to object to the first degree murder and
conspiracy indictments; (2) failed to take appropriate action to
preserve any record of the juvenile court proceedings and failed to
preserve defendant's right to appeal the district court
proceedings; (3) failed to adequately prepare for trial or to
adequately present a defense; and (4) failed to present a defense
that was supported by the law.
N.C. Gen. Stat. § 15A-1419(a)(3) (2003) "requires a defendant
to raise on direct appeal 'those [ineffective assistance of
counsel] claims on direct review that are apparent from the
record.'"
Lawson, 159 N.C. App. at 544, 583 S.E.2d at 361 (quoting
State v. Hyatt, 355 N.C. 642, 668, 566 S.E.2d 61, 78 (2002),
cert.
denied, 537 U.S. 1133, 154 L. Ed. 2d 823 (2003)). Pursuant to this
statute, "it is likely that counsel will err on the side of
bringing claims for ineffective assistance of counsel on direct
review even when they cannot be accurately determined at such a
stage."
Lawson, 159 N.C. App. at 544, 583 S.E.2d at 361.
"'[Ineffective assistance of counsel] claims brought on direct
review will be decided on the merits when the cold record reveals
that no further investigation is required, i.e., claims that may be
developed and argued without such ancillary procedures as the
appointment of investigators or an evidentiary hearing.'"
State v.
Daniels, 164 N.C. App. 558, 564, 596 S.E.2d 256, 259-60 (2004)
(quoting
State v. Fair, 354 N.C. 131, 166, 557 S.E.2d 500, 524
(2001),
cert. denied, 535 U.S. 1114, 153 L. Ed. 2d 162 (2002)). On this record, we conclude that there is inadequate evidence
of ineffective assistance of counsel for our Court to review the
issue on appeal. Accordingly, we dismiss defendant's ineffective
assistance claim, without prejudice, so that defendant may file a
motion for appropriate relief before the trial court.
See Daniels,
164 N.C. App. at 564, 596 S.E.2d at 260.
Judgment arrested in 01 CRS 001020, the attempted armed
robbery conviction.
Judgment affirmed in 01 CRS 001019, the conspiracy to commit
armed robbery conviction.
Affirmed in part; dismissed in part; arrested in part.
Judges CALABRIA and STEELMAN concur.
Footnote: 1