An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA03-338


Filed: 3 August 2004

v .                         Johnston County
                            Nos. 02 CRS 54026
                                02 CRS 6237


    Appeal by defendant from judgment entered 31 October 2002 by Judge Knox V. Jenkins, Jr. in Johnston County Superior Court. Heard in the Court of Appeals 3 December 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Kevin L. Anderson for the State.

    Richard E. Jester for the defendant-appellant.

    ELMORE, Judge.

    State's evidence at trial showed that Allen Mitchell Bailey (defendant) sold cocaine out of room 311 of a Howard Johnson hotel to an informant. Based on the informant's evidence, officers obtained and executed a search warrant on room 311. Cocaine and $261.00 dollars were found, along with evidence connecting the defendant to the room. Defendant's girlfriend was in the room at the time. Defendant knew Agent Craig Fish, the investigating officer, and made incriminating statements to him before he had been advised of his rights.

    Defendant first assigns error to the trial court's denial of his motion to suppress statements he made to law enforcement officers, arguing that the statements were made while the defendant was in custody and before officers advised him of his rights.
    This assignment of error is not preserved for our review. A pretrial motion is not sufficient to preserve an issue of admissibility of evidence for appeal if the defendant does not object to that evidence at the time it is offered at trial. State v. Grooms, 353 N.C. 50, 65-66, 540 S.E.2d 713, 723 (2000). We note that defendant failed to assign or argue plain error to the trial court's admission of the challenged evidence. Accordingly, defendant's argument is not properly before this Court. See N.C.R. App. P. 10(c)(4); State v. Frye, 341 N.C. 470, 496, 461 S.E.2d 664, 677 (1995), cert. denied, 517 U.S. 1123, 134 L. Ed. 2d 526 (1996).
    Defendant next argues that defendant's counsel was ineffective in the assistance provided in that he failed to make necessary objections to evidence where the trial court erred in denying the motion to suppress before trial.
    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, 80 L. Ed. 2d 674 (1984). In State v. Braswell, 312 N.C. 553, 562-63, 324 S.E.2d 241, 248 (1985), this Court expressly adopted the two-part Strickland test as the standard to be applied for ineffective assistance claims. Under this two-prong test, the defendant mustfirst show that counsel's performance fell below an objective standard of reasonableness as defined by professional norms. Braswell, 312 N.C. at 561-62, 324 S.E.2d at 248. Second, once defendant satisfies the first prong, he must show that the error committed was so serious that a reasonable probability exists that the trial result would have been different absent the error. Strickland, 466 U.S. at 695, 80 L. Ed. 2d at 698. Thus, defendant must show that the error committed was so grave that it deprived him of a fair trial because the result itself is considered unreliable. Id. at 687, 80 L. Ed. 2d at 693; State v. Lee, 348 N.C. 474, 501 S.E.2d 334 (1998).
    Defendant contends on appeal that his counsel was ineffective because counsel failed to object to the denial of the motion to suppress testimony of the officer about statements made by the defendant before he was advised of his rights. Because counsel failed to object, the right to appeal was lost.
    The evidence which defendant contends should have been suppressed was that of a conversation defendant had with Agent Fish in which the defendant made certain incriminating statements before he was advised of his rights. In his voir dire testimony, Agent Fish testified, in relevant part, that when he entered the hotel room to conduct the search with the other officers he said to the defendant, “How's it going, D,” to which defendant replied “What's going on, Fish.” Agent Fish was using one of defendant's aliases. He and defendant knew each other from prior investigations and arrests. Defendant then told Agent Fish that he and his girlfrienddid not stay in the room, to which Agent Fish replied that he had been working this investigation and could prove that he did stay in the room. Defendant then said, according to Agent Fish's testimony, “Well we do stay here but I don't know anything about no crack cocaine.” Agent Fish testified that at that point defendant was in handcuffs and not free to leave, but had not been advised of his rights.
    Agent Fish then testified that when the search was completed he put the defendant in his car for transport to the police station. In the car, Agent Fish played a CD of defendant's music, because defendant was a rap musician. After a period of silence as they listened to his music, Agent Fish testified that defendant said to him, “Fish, do you know why I sell?” Agent Fish responded, “To make money, I guess.” Defendant then responded, “Because I don't have anyone to sponsor me in the music business.”
    The trial court filed an order denying the motion to suppress. In that order the trial court found the relevant facts from the testimonial evidence and concluded that “[t]he statements made by the defendant to Detective Fish and others on April 30, 2002, were made freely, voluntarily, and understandingly and not in response to any questions propounded by law enforcement officers.” The trial court therefore ordered the objection to the admission of the statements overruled and the motion to suppress denied.
    Because Agent Fish's actions in no way indicate that he was trying to solicit an incriminating response from the defendant, the evidence supports the trial court's conclusions of law. See Statev. Williams, 308 N.C. 47, 301 S.E.2d 335 (1983), cert. denied, 464 U.S. 865, 78 L. Ed. 2d 177 (1983), reh'g denied, 464 U.S. 1004, 78 L. Ed. 2d 704 (1983) (The fact that an investigating officer confronts a person in custody with evidence of his implication in a crime or evidence from the crime scene does not amount to “interrogation” within the meaning of Miranda. . . . Further, confronting a person in custody with such evidence is not the type of “subtle coercion” prohibited by Miranda).
    Since the statements were admissible, it is not error for the defense attorney to remain silent. State v. Lowery, 318 N.C. 54, 72, 347 S.E.2d 729, 741 (1986) (holding that trial counsel properly did not object to testimony as inadmissible hearsay because statements were in fact admissible as statements of a party opponent or statements made by co-conspirators). Our Supreme Court also determined in that analysis that admission of the first statement constituted harmless error, and thus, failure to object to its admission could not have deprived defendant of a fair trial. We hold in light of that opinion that the defendant in the present case was not deprived of a fair trial because of his counsel's failure to object. We therefore hold that counsel for the defendant was not ineffective in his assistance and representation of the defendant.
    Next the defendant argues that the trial court erred in sentencing the defendant for a charge of habitual felon because there is no such charge for sentencing purposes. On the judgmentsheet, defendant is charged with possession with intent to sell cocaine and habitual felon. He was given one active sentence of 120 to 150 months.
    Defendant has neither alleged nor argued that he was improperly sentenced. The trial court may have been less than precise in the sentence quoted by the defendant on appeal, but that did not have an impact on his actual charge, his record, or his sentence. We hold that there was no prejudicial error.
    Defendant next assigns error to the trial court's denial of defendant's motion to dismiss at the close of the State's evidence and at the close of all the evidence. Defendant argues that the State did not prove its case by the required standard. We disagree.
    After careful review of the record and the transcripts we conclude that there was sufficient evidence to submit the case to the jury. Defendant argues on the premise that his inculpatory statements are inadmissible. Because the statements are in fact admissible, we hold that the trial court did not err.
    Lastly, defendant assigns error to the trial court's decision to not declare a mistrial upon the defendant's motion in that the State's witness had testified of items prohibited by the Court's order. “The judge must declare a mistrial upon the defendant's motion if there occurs during the trial an error or legal defect in the proceedings, or conduct inside or outside the courtroom,resulting in substantial and irreparable prejudice to the defendant's case.” N.C. Gen. Stat. § 15A-1061 (2003).
    The trial court had set parameters that the officers not testify about the informant's buy at Room 311. The testimony here in question concerned drug activity at the Howard Johnson's. No evidence was admitted that defendant was the object of complaints about drug activity. Other objections made were irrelevant to the testimonial limits proscribed by the trial court. From a thorough examination of the transcript, there appears to have been no substantial or irreparable prejudice to the defendant's case from the testimony allowed. We therefore hold that the trial court did not err in denying the motion for mistrial.
    No error.
    Judges BRYANT and CALABRIA concur.
    Report per Rule 30(e).

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