STATE OF NORTH CAROLINA
v. Forsyth County
Nos. 03CRS016573, 051878
SHERMAN ALPHONZO THOMPSON
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Douglas W. Corkhill, for the State.
Thorsen Law Office, by Haakon Thorsen for defendant-appellant.
HUNTER, Judge.
On 5 May 2003, Sherman Alphonzo Thompson (“defendant”) was
indicted on charges of robbery with a dangerous weapon and being an
habitual felon. The case was tried at the 1 December 2003 Criminal
Session of Forsyth County Superior Court.
On 1 December 2003, defendant was convicted of robbery with a
dangerous weapon. Following the trial, the State proceeded to try
defendant on the habitual felon charge. The State presented as
evidence copies of the judgments of defendant's three prior felony
convictions. In each conviction, defendant pled guilty. Defendant
offered no evidence. In his closing argument, defendant's counsel
noted a discrepancy in the judgments. The first judgment listedthe defendant's birth date as 16 June 1974. The second and third
judgment listed defendant's birth date as 10 August 1974.
Accordingly, defendant's attorney argued that these discrepancies
created a reasonable doubt as to the identity of his client as the
defendant in the prior convictions.
Following defense counsel's argument, there was an unreported
bench conference. Following this conference, the trial court
instructed the jury as follows:
[T]he lawyers have agreed to stipulate that
the plea transcripts which were sworn to by
Mr. Thompson and in fact signed by him do
indicate a birth date, on each of these felony
guilty pleas, of August 16, 1974. And we have
those. We did not attach those as part of the
records you were shown because they are fairly
lengthy and it would take a long time for you
to go through them. But the parties have
agreed to stipulate that on each of these
transcripts of plea his date of birth does
show as August 16, 1974.
Defendant was convicted of robbery with a dangerous weapon and
being an habitual felon and sentenced to a term of 120 to 153
months imprisonment. Defendant appeals.
Defendant first argues that he received ineffective assistance
of counsel. Defendant claims that his counsel was ineffective by
stipulating to his signature on the plea transcripts of his prior
convictions. Defendant further claims that the stipulation was
made without first obtaining his consent and was tantamount to an
admission of guilt. Defendant additionally argues that counsel was
ineffective for abandoning his motion to suppress. Defendant had
filed a motion prior to trial asserting that his statement to
police was the result of coercion. Finally, defendant argues thatcounsel was ineffective for failing to locate a certain witness who
would have testified that there was no robbery.
We decline to review this assignment of error because it is
not properly raised at this stage of review. A defendant's
ineffective assistance of counsel claim may be brought on direct
review “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
(2002). Here, however, there is an insufficient record on which to
review defendant's claims. It is unclear on the record what was
discussed at the bench conference, or the reason counsel agreed to
the stipulation. Furthermore, there is no explanation in the
record as to why counsel abandoned defendant's motion to suppress,
or failed to locate his exculpatory witness. Thus, the best course
of action is for defendant to make a motion for appropriate relief
and a hearing held on whether he received effective assistance of
counsel. See State v. Dockery, 78 N.C. App. 190, 192, 336 S.E.2d
719, 721 (1985) (“[t]he accepted practice is to raise claims of
ineffective assistance of counsel in post-conviction proceedings,
rather than direct appeal”). Once there is a record developed,
this Court can review it by way of a petition for writ of
certiorari.
Defendant next argues that the trial court erred by allowing
the introduction of evidence after closing arguments. Defendantcites the stipulation regarding his date of birth and argues that
by permitting the State to present this evidence, the trial court
denied him due process. We are not persuaded.
N.C. Gen. Stat. § 15A-1226(b) (2003) states that “[t]he judge
in his discretion may permit any party to introduce additional
evidence at any time prior to verdict.” “This statute 'is clear
authorization for a trial judge, within his discretion, to permit
a party to introduce additional evidence at any time prior to the
verdict.'” State v. Anthony, 354 N.C. 372, 420, 555 S.E.2d 557,
588 (quoting State v. Quick, 323 N.C. 675, 681, 375 S.E.2d 156, 159
(1989)), cert. denied, 354 N.C. 575, 559 S.E.2d. 184 (2001); see
also State v. Goldman, 311 N.C. 338, 350, 317 S.E.2d 361, 368
(1984) (“[t]he manner and presentation of evidence is largely in
the discretion of the trial judge and his control of the case will
not be disturbed absent a manifest abuse of discretion”). We
conclude the trial court acted well within its discretion in
permitting the stipulation. Accordingly, the assignment of error
is overruled.
No error.
Judges ELMORE and STEELMAN concur.
Report per Rule 30(e).
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