An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-325


Filed: 5 April 2005


         v.                        Durham County
                                No. 02 CRS 48173

    Appeal by defendant from judgment entered 12 September 2003 by Judge A. Leon Stanback in Durham County Superior Court. Heard in the Court of Appeals 17 January 2005.

    Attorney General Roy Cooper, by Special Deputy Attorney General H. Dean Bowman, for the State.

    Bruce T. Cunningham, Jr., for defendant-appellant.

    GEER, Judge.

    Defendant Jacinto Jamil Barr was charged with the first degree murder of Ronald Sherman Johnson. The jury convicted him of second degree murder. On appeal, defendant argues only that his trial counsel provided ineffective assistance of counsel by failing to develop and present a coherent defense strategy. Because we cannot decide this issue based on the record before the Court, we dismiss this appeal without prejudice to defendant's pursuing this claim in a motion for appropriate relief.
    The State's evidence tended to show the following. At approximately 8:30 p.m. on 16 May 2002, Johnson and his cousin, Robert Earl Lawrence, were talking outside of the apartment of Johnson's girlfriend. Suddenly, a man appeared in front of thecousins and asked Johnson, "[W]hat's up, Bro." When Johnson did not reply, Lawrence said, "what the f___ do you mean what's up?" Defendant then looked at Lawrence and shot Johnson. Lawrence saw the flash of gunfire and realized that defendant was holding a long rifle. As Lawrence ran around the apartment house, he heard two additional shots. When Lawrence subsequently returned to the scene of the shooting, he found Johnson, who had been shot in the chest, lying on his back, gasping for air.
    Karin Knight, a paramedic, arrived at 9:57 p.m. At that point, Johnson was no longer breathing. Knight did not see a gun in Johnson's hand or observe any gun on his person until they reached the emergency room. She then found a gun in Johnson's pocket as she was removing his pants.
    Dr. Deborah Radisch, a forensic pathologist, testified that Johnson had been shot four times. She had concluded that the gunshot wound to Mr. Johnson's chest, which penetrated his heart, was the cause of death. Dr. Radisch was not, however, able to determine the caliber of weapon used to inflict the gunshot wounds.
    After Lawrence identified defendant from a photographic lineup, lead investigator Terry Mikels interviewed defendant. During the interview, defendant gave a statement in which he admitted that he and another young man named Tomarko Givens were walking down the street with the intention of committing a robbery. Defendant stated that when he saw Johnson, he asked Johnson to walk away with him, but Johnson pulled his gun and fired one shot. Defendant claimed that Givens, and not defendant, started shooting. According to his statement, defendant got scared and ran when he saw Johnson fall to the ground.
    James Arnez Jones, who also was Johnson's cousin, testified that he saw defendant at a Durham gas station the day after the shooting. Defendant told Jones that it was a case of mistaken identity, and he did not mean to shoot Johnson.
    Defendant was indicted for first degree murder, but the jury found defendant guilty of the lesser charge of second degree murder. The trial court found as an aggravating factor that defendant had committed the offense while on pretrial release on another charge and as mitigating factors that defendant supports his family and has a support system in the community. After determining that the factors in mitigation outweighed the factors in aggravation, the trial court entered a mitigated sentence of a minimum of 276 months and a maximum of 341 months.    
    On appeal, defendant only contends that he received ineffective assistance of counsel ("IAC"). Specifically, defendant argues: "In what appellant contends is objectively unreasonable representation, counsel made a series of requests and arguments that reveal an incoherent, inconsistent defense position that rises to the level of ineffectiveness per se."
    In order to prevail on an IAC claim,
    "[f]irst, 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 thatcounsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable."

State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985) (emphasis omitted) (quoting Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984)). Ordinarily, claims of IAC are most properly raised in a motion for appropriate relief.
    Our Supreme Court has held that an IAC claim "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. Fair, 354 N.C. 131, 166, 557 S.E.2d 500, 524 (2001), cert. denied, 535 U.S. 1114, 153 L. Ed. 2d 162, 122 S. Ct. 2332 (2002). As the Supreme Court explained, "[t]his rule is consistent with the general principle that, on direct appeal, the reviewing court ordinarily limits its review to material included in 'the record on appeal and the verbatim transcript of proceedings, if one is designated.'" Id., 557 S.E.2d at 524-25 (quoting N.C.R. App. P. 9(a)).
    The United States Supreme Court recently emphasized the preferability of deciding Strickland claims in post-conviction proceedings rather than on direct appeal:
In light of the way our system has developed, in most cases [a post-conviction proceeding] is preferable to direct appeal for deciding claims of ineffective-assistance. When an ineffective-assistance claim is brought on direct appeal, appellate counsel and the courtmust proceed on a trial record not developed precisely for the object of litigating or preserving the claim and thus often incomplete or inadequate for this purpose. Under Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), a defendant claiming ineffective counsel must show that counsel's actions were not supported by a reasonable strategy and that the error was prejudicial. The evidence introduced at trial, however, will be devoted to issues of guilt or innocence, and the resulting record in many cases will not disclose the facts necessary to decide either prong of the Strickland analysis. If the alleged error is one of commission, the record may reflect the action taken by counsel but not the reasons for it. The appellate court may have no way of knowing whether a seemingly unusual or misguided action by counsel had a sound strategic motive or was taken because the counsel's alternatives were even worse. . . . The trial record may contain no evidence of alleged errors of omission, much less the reasons underlying them. . . . Without additional factual development, moreover, an appellate court may not be able to ascertain whether the alleged error was prejudicial.

Massaro v. United States, 538 U.S. 500, 504-505, 155 L. Ed. 2d 714, 720-21 , 123 S. Ct. 1690, 1694 (2003).
    Our examination of the record reveals that defendant's arguments regarding IAC cannot be decided without further factual development. While defendant urges that counsel took inconsistent positions in denying that defendant committed the shooting and also arguing self-defense, we are confronted with the precise situation identified in Massaro: we cannot tell whether trial counsel had a strategic motive for her approach or whether she concluded that it was her only viable option in light of even worse alternatives. We also cannot fully assess prejudice without knowing whether defendant had available defenses that counsel did not pursue.    Although defendant does not cite State v. Harbison, 315 N.C. 175, 337 S.E.2d 504 (1985), cert. denied, 476 U.S. 1123, 90 L. Ed 2d 672, 106 S. Ct. 1992 (1986), he appears to argue, consistent with Harbison, that trial counsel provided per se ineffective assistance of counsel by conceding guilt without defendant's permission. Id. at 180, 337 S.E.2d at 507-08 ("[W]e conclude that ineffective assistance of counsel, per se in violation of the Sixth Amendment, has been established in every criminal case in which the defendant's counsel admits the defendant's guilt to the jury without the defendant's consent."). Defendant points to his trial counsel's argument to the jury in closing: "And if you believe that you want anyone to go to prison because he probably did it . . . probably did it don't do it. That's not the way it works in our system. You probably did it, you going home." A review of the closing argument reveals that trial counsel, in making these statements, was not conceding guilt, but rather was discussing the State's burden of proof and explaining what "beyond a reasonable doubt" means. We do not believe that the closing argument can reasonably be read to amount to a violation of Harbison.
    We therefore dismiss this appeal without prejudice to defendant's refiling his claims in a motion for appropriate relief.

    Judges WYNN and TYSON concur.
    Report per Rule 30(e).

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