Appeal by defendant from judgments dated 3 March 2004 by Judge
Albert Diaz in Mecklenburg County Superior Court. Heard in the
Court of Appeals 13 April 2005.
Attorney General Roy Cooper, by Special Deputy Attorney
General David Roy Blackwell, for the State.
M. Alexander Charns for defendant.
Terraine Sanchez Byers (defendant) appeals from judgments
dated 3 March 2004, entered consistent with jury verdicts finding
him guilty of first-degree burglary and first-degree murder based
upon premeditation and deliberation and felony murder.
Defendant was indicted for first-degree murder, first-degree
burglary and injury to real property. Prior to trial, theprosecutor dismissed the injury to real property charge. These
matters came for jury trial during the 23 February 2004 criminal
session of Mecklenburg County Superior Court with the Honorable
Albert Diaz presiding. Defendant was found guilty of first-degree
murder and first-degree burglary on 3 March 2004. Defendant was
sentenced to life imprisonment without parole on the first-degree
murder charge, and 77 to 102 months imprisonment on the first-
degree burglary charge. Defendant gave timely notice of appeal.
The State's evidence tended to show the following: On 22
November 2001, Reginald Williams visited Shanvell Burke (the
victim) at her home located at 609 North Davidson Street,
Charlotte, North Carolina. He arrived at 7:30 p.m., the two
settled in, and watched a movie. Shortly after 9:00 p.m., they
heard a crash at the back door. Burke went to the back door and
started yelling Terraine, stop. Williams, in fear for his life,
ran out the front door to the bus terminal down North Davidson
Street. There, he located a bus driver who called 911 for him.
Later, in explaining why he ran, Williams said Burke
previously had allowed him to listen to telephone messages left for
her by defendant, her ex-boyfriend. In one message, defendant
stated he thought Burke was messing with somebody and when he
found out who it was, he was gonna kill them. Burke expressed to
Williams her fear of defendant. [S]he was afraid he was going to
do something to hurt her bad.
Tonya Gregory lived next to the victim. In the summer of
2001, the victim had introduced defendant to Gregory as herboyfriend. Returning home on 22 November 2001 around 8:00 p.m.,
Gregory observed defendant on the sidewalk near the back door area
of the victim's apartment. Later that evening, Gregory heard
bamming noises coming from the victim's kitchen.
On 22 November 2001, shortly after 9:00 p.m.,
Charlotte-Mecklenburg Police Officer Michael King and another
officer were dispatched on a 911 hang up call to Burke's apartment.
Walking through the apartment breezeway to the back, Officer King
observed a nervous and profusely sweating man (later identified as
defendant) coming out of an apartment through a broken window in a
door. Officer King and the other officer asked for identification
and inquired if defendant lived in the apartment. Defendant did
not produce identification and responded no when asked if he
lived in the apartment he exited.
Defendant stated that a female lay inside the apartment, and
she was hurt. While speaking, he turned, re-entered the apartment
through the broken glass door and ran toward the front door.
Officer King ordered defendant to stop and then requested backup.
A foot pursuit ensued resulting in the apprehension of defendant in
the parking lot. Defendant had a deep laceration on his left hand.
Upon entering the apartment, Officer King and other officers
observed a knife handle with a broken blade. Burke was found in a
pool of blood on the kitchen floor.
Officer Jason Joel Kerl also responded to the scene. Upon
entering the apartment, he recognized Burke. Eleven days prior to
her death, Officer Kerl responded to a domestic call at the Burke's
apartment. Appearing nervous and frightful that she was going toget hurt, Burke related that her boyfriend had been locked up for
domestic violence, been released from jail, and returned to bother
her. Five days later, Officer Kerl responded to another call at
Burke's residence and, again, she appeared upset and was worried
defendant was going to assault her.
On 30 August 2001 at 10:30 p.m., Charlotte-Mecklenburg Police
Officer Matthew Presley Montgomery responded to an emergency call
at 1923 Wilmore Drive. There, he met Burke and her aunt. As
Officer Montgomery related: [Burke] was extremely upset, she was
shaking, she was almost crying since we were out in the street. I
remember neither one of them could stand still; they were very
excited. The two women screamed at defendant, who ran away as the
police car approached. Burke related that defendant had threatened
to kill her. He had become angry because she did not want to go
home with him. She also told Officer Montgomery defendant had hit
her with his fist and open hand about her head and face and on her
back, pushed her down and stated he was going to kill her. Burke's
aunt related that defendant pulled a knife on her and also
threatened to kill her.
Officer Mark Santaniello testified concerning a domestic
violence and assault call on 28 May 2001, involving defendant and
Burke. In addition, Officer Donna Browning related her response to
a call from Burke on 19 September 2000. Burke complained to
Officer Browning that defendant threw bricks at her window and that
she feared him.
Dr. James Michael Sullivan performed the autopsy on the
victim's body. He found eleven stab wounds, the most serious tothe left chest in the left breast area that penetrated through the
chest wall and into the heart, causing hemorrhage into the cavity
that surrounds the heart and into the left pleural cavity. This
resulted in a large amount of blood loss.
Another significant stab wound entered the right chest, six
inches into the chest cavity, injuring the right lung. This wound
produced small to moderate amounts of bleeding in the right chest
cavity. Dr. Sullivan also found eighteen puncture wounds and some
twenty-three cutting wounds. Wounds on the victim's hands appeared
consistent with defensive wounds. The cause of death was multiple
sharp trauma injuries with death resulting from blood loss.
John Donahue, the DNA technical leader for the
Charlotte-Mecklenburg Police Department Crime Laboratory, analyzed
fingernail scrapings from defendant's hands; a blood stain from a
couch cushion; a swab from a knife; a swab from a knife blade; and
blood stains from various places in the apartment, including the
upper handrail of the stairway. The fingernail scrapings from
defendant's right hand contained a mixture of DNA from the victim
and defendant, with the majority contributed by defendant. The
left fingernail scrapings taken from defendant revealed the victim
contributed the majority of the DNA in the sample. The DNA in the
blood stain on the upper handrail and the couch matched
defendant's. The DNA in the blood stains from the knife and the
knife blade matched the victim.
Defendant did not present evidence.
The issues on appeal are whether: (I) the trial court erredby allowing into evidence the testimony of Reginald Williams in
violation of Crawford v. Washington
; (II) the trial court erred by
allowing into evidence hearsay testimony of the victim; (III) the
trial court erred by allowing evidence of a prior conviction and
unrelated assault on the victim's aunt; (IV) the trial court erred
by failing to instruct the jury in a manner to ensure a unanimous
verdict; (V) the short-form murder indictments for murder and
first-degree burglary are unconstitutional in light of Blakely v.
; and (VI) the trial court erred by not arresting
judgment on the first-degree burglary conviction.
 First, defendant argues the trial court committed error by
allowing into evidence Reginald Williams' testimony and Williams'
statements to law enforcement concerning statements the victim made
to Williams, in violation of Crawford v. Washington
, 541 U.S. 36,
158 L. Ed. 2d 177 (2004). In the alternative, defendant argues
plain error if the issue was not properly preserved at trial and/or
ineffective assistance of counsel.
(See footnote 1)
Hearsay, which is generally inadmissible, is a statement,
other than one made by the declarant while testifying at the trialor hearing, offered in evidence to prove the truth of the matter
asserted. N.C. Gen. Stat. § 8C-1, Rule 801(c) (2003); State v.
, 355 N.C. 242, 248, 559 S.E.2d 762, 765 (2002) ([A]
statement is not hearsay if it is offered for a purpose other than
to prove the truth of the matter asserted.). If the statement is
offered for reasons other than the truth of the matter asserted,
the statement is not hearsay and is not covered under Crawford
, 541 U.S. at 59, 158 L. Ed. 2d at 197 (The
[Confrontation] Clause . . . does not bar the use of testimonial
statements for purposes other than establishing the truth of the
matter asserted.). Crawford
[w]here testimonial statements are involved,
we do not think the Framers meant to leave the
Sixth Amendment's protection to the vagaries
of the rules of evidence, much less to
amorphous notions of reliability. . . . To
be sure, the [Confrontation] Clause's ultimate
goal is to ensure reliability of evidence, but
it is a procedural rather than a substantive
guarantee. It commands, not that evidence be
reliable, but that reliability be assessed in
a particular manner: by testing in the
crucible of cross-examination.
, 542 U.S. at 61, 158 L. Ed. 2d at 199.
Defendant argues Williams' testimony and the following
statements Williams made to law enforcement concerning statements
the victim told to Williams, were admitted in violation of
Q: Mr. Williams, in reference to your
testimony of a moment ago that you were in
fear for your life, was there a time when
Shanvell allowed you to listen to some
telephone messages that had been left on her
Q: And did she tell you who had left those
[DEFENSE COUNSEL]: Objection.
THE COURT: Basis?
[DEFENSE COUNSEL]: Hearsay.
THE COURT: Overruled.
Q: Who did she tell you had left those
A: She said it was Terraine, her exboyfriend.
Q: And was there one of those messages that
you listened to in particular that provided
you in part with your basis for fearing for
Q: And what was the message that you heard on
the telephone that Shanvell told you it was
from Terraine and you listened to it?
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
A: The fact that he thought she was messing
with somebody, somebody was putting some stuff
in her head, and when he found out who it was,
he was gonna kill them.
Q: State whether or not Shanvell had ever
expressed to you, yourself, that she herself
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
. . .
A: She was just afraid of him. She was afraid
he was going to do something to hurt her bad.
A: She was just telling me, you know, why she
broke up with him because he was very
possessive and that he was locked up for
bothering her, and she was just feeling kind
of at ease while he was locked up and she was
scared of him. She was scared he was gonna do
something to her.
. . .
She just said one time he was fighting her and
he was slapping her around.
. . .
Yeah, he [sic] said that he [sic] - she - said
that he fought her a lot, but nobody knew
. . .
She said he was calling sometimes twenty times
. . .
[T]he time up at the Bojangles she told me
about when he popped up on her. . . . [S]he
said he was beating on her car and some stuff
Q: [W]hen he would call over there when you
were there on the phone [sic] were they
A: Once. He called a lot from jail. When the
first time he was in jail and he was calling
and she talked to him that she wanted him to
go on with his life and stuff, and that was
pretty much it.
. . .
Q : [Y]ou said he was in jail. Had she ever
mentioned to you about him being in jail?
A: Yes. . . . That was for beating her that
Q: Did she ever mention to you anything else
about anything he had ever been involved in?
A: Dog fights, and then she - I don't want to
make accusations, but she said something about
drugs. I don't know.
. . .
She just was telling me how he used to beat
her all the time, you know.
Q: Did she tell you when he might have
actually gotten out of jail?
A: [S]he told me that they were trying to get
him out on bail or whatever. . . And then she
told me the day that he got out because he
popped up at her house.
Q: . . . Do you remember when it was that he
went to jail for . . . assaulting her?
A: - didn't know when he went to jail.
Q: Okay. So it was several months ago?
These statements were admissible, not for the truth of the
matter asserted, but for purposes of explaining why Williams chose
to run (in fear for his life), seek law enforcement assistance
before returning to the apartment, and chose not to confront
defendant single-handedly. See Canady
, 355 N.C. at 248, 559 S.E.2d
at 765 (A statement which explains a person's subsequent conduct
is an example of such admissible nonhearsay.); State v. Anthony
354 N.C. 372, 404, 555 S.E.2d 557, 579 (2001); State v. Golphin
352 N.C. 364, 440, 533 S.E.2d 168, 219 (2000). Accordingly, the
trial court did not err in admitting this evidence. This
assignment of error is overruled.
 Next, defendant argues the trial court erred by allowing
into evidence, the hearsay statements of the victim in violation of
Crawford v. Washington
In State v. Pate
, 62 N.C. App. 137, 139, 302 S.E.2d 286, 288
(1983), this Court affirmatively stated defendant waives the
benefit of an objection when the same or similar evidence is
admitted without objection. See also, State v. Whitley
, 311 N.C.
656, 661, 319 S.E.2d 584, 588 (1984) (Where evidence is admitted
over objection, and the same evidence has been previously admitted
or is later admitted without objection, the benefit of the
objection is lost.).
Defendant argues the admission of the following constituted
error: (I) a criminal complaint signed by the victim regarding a
domestic dispute occurring on 30 August 2001, involving the victim
and defendant; (II) testimony of Officer Montgomery, who responded
to the domestic call on 30 August 2001; (III) testimony of Officer
Santaniello, who testified that defendant assaulted the victim on
30 August 2001, hit her in the back of the neck, pushed her in the
back, choked her, and threatened to kill her; and (IV) testimony of
the victim's great-grandmother that the victim was afraid of
Officer Montgomery testified without objection that on 30
August 2001, the victim was extremely upset, shaking, and almost
crying. The victim expressed her fear of defendant and he
threatened to kill her. Defendant was angry because the victim
would not go home with him and assaulted her by hitting her withhis fist on her head, face, and back, then pushing her down.
Officer Montgomery then drove the victim and the aunt to the
Magistrate's office to file criminal complaints.
As Officer Montgomery was allowed to testify to the
aforementioned without objection from defendant, defendant lost the
benefit of any objection he may have made in relation to similar
testimony from Officer Santaniello and the victim's aunt. Also,
since Officer Montgomery's testimony essentially mimicked the
statements the victim made in her criminal complaint form,
defendant lost the benefit of any objection made to admission of
(See footnote 3)
This assignment of error is overruled.
 Defendant next argues the trial court erred by allowing
into evidence a prior conviction concerning an attack against the
victim and a criminal complaint form regarding an assault against
the victim's aunt.
As stated supra
Issue II, a defendant loses the benefit of an
objection if the same or similar evidence is admitted without
objection. See Whitley
, 311 N.C. at 661, 319 S.E.2d at 588.
Defendant argues the trial court erred in allowing into evidence
Williams' testimony concerning defendant's prior conviction forassaulting the victim, and the aunt's criminal complaint concerning
an attack occurring on 30 August 2001, where defendant attacked the
aunt with a knife and threatened to kill her. However, Officer
Montgomery was allowed to testify without objection that the victim
had previously prosecuted defendant for assault, and on 30 August
2001, the aunt reported defendant threatened to kill her while
holding a knife. Officer Montgomery's testimony regarding the
attack on the aunt essentially mimicked the statements the aunt
made on her criminal complaint form.
Defendant has lost the benefit of any objection to admission
into evidence of the Williams' testimony regarding defendant's
prior conviction and the admission of the aunt's criminal complaint
form. This assignment of error is overruled.
 Defendant next argues the trial court erred by failing to
instruct the jury in a manner to ensure a unanimous verdict,
contending that the jury could have split on the issues of
premeditation and deliberation, and the felony murder rule and
rendered a verdict of guilty of first-degree murder on a
combination of the two theories.
Preliminarily, we note that the trial court instructed the
jury on unanimity as follows:
Now, Ladies and Gentlemen, I instruct you that
a verdict is not a verdict until all 12 jurors
agree unanimously as to what your decision
shall be. You may not render a verdict by
majority vote. . . .
When you have reached a unanimous verdict,
have your foreperson mark the appropriate
place on the verdict form which I will send in
to you in a few moments after you enter thejury room.
Thus, before deliberating, the jury was aware their verdict had to
In addition to this instruction, the verdict sheets explicitly
called for a unanimous verdict on whether defendant was guilty of
first-degree murder. If the jury answered this question
affirmatively, it had to show whether it was convicting on one or
both of the theories of first-degree murder: the theory of
premeditation and deliberation, or the felony murder rule. Here,
the jury unanimously decided that defendant was guilty under both
theories and marked yes under each one.
Finally, to ensure that the jury was unanimous, jurors were
polled. The clerk asked the jury:
THE CLERK: Members of the Jury, would you
please stand? Members of the Jury, your
foreperson has reported that you find the
defendant, Terraine Byers, guilty of first-
degree murder on the basis of malice,
premeditation and deliberation, and under the
first-degree felony murder rule, and also
guilty of first-degree burglary.
Was this your verdict?
(Affirmative response from all jurors.)
. . .
[DEFENSE COUNSEL]: Request polling of the
jury, Your Honor.
The clerk then asked each juror individually whether or not their
verdict was that defendant was guilty of first-degree murder under
the basis of malice, premeditation and deliberation, and under the
first-degree felony murder rule. Each juror responded, Yes.
Our Supreme Court dealt with precisely this issue in State v.Carroll
The jury's unanimous verdict based on both
theories of first-degree murder was clearly
represented on the verdict sheet. Moreover,
following the clerk's announcement that the
jury unanimously found defendant guilty of
first degree murder on the basis of malice,
premeditation and deliberation and under the
first degree felony murder rule, each juror
individually affirmed that this was indeed his
verdict. It would strain reason to conclude
that the jury's verdict was not unanimously
based on both theories of first-degree murder.
Accordingly, the trial court properly polled
the jury to ensure that the announced verdict
was unanimous. . . . Nothing more was
State v. Carroll
, 356 N.C. 526, 545, 573 S.E.2d 899, 911-12 (2002).
This assignment of error is overruled.
Defendant argues use of the short-form indictments for first-
degree murder and first-degree burglary were constitutionally
defective after Blakely v. Washington
, 542 U.S. 296, 159 L. Ed. 2d
403 (2004). Defendant argues that under Blakely
, every fact
essential to his punishment must have been charged in the
indictment. Specifically, defendant contends that the failure to
specifically name the felony crime of burglary or assault
inflicting serious injury in the murder indictment and in the
first-degree burglary indictment is a jurisdictional defect and
judgment must be arrested on the burglary charge and on the murder
charge based on upon felony murder. Defendant's argument,
however, is misguided.
Our Courts have consistently held that the short-form
first-degree murder indictment does not violate the Sixth Amendment
of the United States Constitution. See, e.g., State v. Squires
,357 N.C. 529, 591 S.E.2d 837 (2003), cert. denied
, 541 U.S. 1088,
159 L. Ed. 2d 252 (2004); State v. Braxton,
352 N.C. 158, 531
S.E.2d 428 (2000), cert. denied
, 531 U.S. 1130, 148 L. Ed. 2d 797
(2001); State v. Wallace
, 351 N.C. 481, 528 S.E.2d 326, cert.
, 531 U.S. 1018, 148 L. Ed. 2d 498 (2000). In upholding the
constitutionality of short-form indictments for first-degree
murder, our Supreme Court has held that:
[the United States Supreme] Court's refusal to
incorporate the grand jury indictment
requirement into the Fourteenth Amendment
along with the lack of precedent on this issue
convinces us that the Fourteenth Amendment
does not require the listing in an indictment
of all the elements or facts which might
increase the maximum punishment for a crime.
, at 508, 528 S.E.2d 326, 343; see also, Squires
, 357 N.C.
at 537, 591 S.E.2d at 842 (The United States Supreme Court has
consistently declined to impose a requirement mandating states to
prosecute only upon indictments which include all elements of an
offense.); State v. Hunt
, 357 N.C. 257, 273, 582 S.E.2d 593, 604
([T]he United States Supreme Court has not applied the Fifth
Amendment indictment requirements to the states.), cert. denied
539 U.S. 985, 156 L. Ed. 2d 702 (2003).
Similarly, our Courts have held that [a]n indictment for
burglary need not specify the particular felony that the accused
intended to commit at the time of the breaking or entering . . . .
State v. Lawrence
, 352 N.C. 1, 18, 530 S.E.2d 807, 818 (2000). The
indictment must charge the offense in a plain, intelligible, and
explicit manner and contain sufficient allegations to enable the
trial court to proceed to judgment and to bar a subsequent
prosecution for the same offense, . . . and . . . inform thedefendant of the charge against him with sufficient certainty to
enable him to prepare his defense. Id.
at 18-19, 530 S.E.2d at
818 (quotations omitted); see also,
N.C. Gen. Stat. § 15A-924(a)(5)
, the [United States Supreme] Court reaffirmed its
previous holding that the right to jury trial requires jurors to
find sentencing facts which increase the penalty for a crime beyond
the prescribed statutory maximum. State v. Hurt
, 359 N.C. 840,
845, 616 S.E.2d 910, 913 (2005) (quotations omitted); see also,
State v. Allen
, 359 N.C. 425, 437, 615 S.E.2d 256, 265 (2005)
(Other than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed presumptive
range must be submitted to a jury and proved beyond a reasonable
doubt.). However, in Allen
, our Supreme Court held that, under
, sentencing factors which might lead to a sentencing
enhancement need not be alleged in a North Carolina state court
at 438, 615 S.E.2d at 265. Furthermore, to this
date, the United States Supreme Court has not applied the Fifth
Amendment indictment requirements to the states. State v. Hunt
357 N.C. 257, 273, 582 S.E.2d 593, 604, cert. denied
, 539 U.S. 985,
156 L. Ed. 2d 702 (2003). [T]he Fifth Amendment would not require
aggravators, even if they were fundamental equivalents of elements
of an offense, to be pled in a state-court indictment. Id.
582 S.E.2d at 603.
In the instant case, the indictments for first-degree murder
and first-degree burglary complied with the statutory and case-law
requirements for charging first-degree murder and first-degreeburglary. The holdings enunciated in Blakely
apply to the use of a short-form indictment for murder in the
instant case. See, State v. Wissink
, 172 N.C. App. 829, 836-37,
617 S.E.2d 319, 324 (2005) (fact that defendant committed an
offense while on probation need not have been alleged in the
indictment). This assignment of error is overruled.
 Lastly, defendant argues the trial court erred by not
arresting judgment on the first-degree burglary conviction on the
ground the conviction was used as the underlying felony for the
first-degree murder conviction under the felony murder theory.
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). However, here, defendant was
found guilty under both the theories of malice, premeditation and
deliberation, and felony murder. Accordingly, we hold the trial
court did not err in not arresting judgment on the first-degree
burglary conviction, as defendant was found guilty of first-degree
murder on the basis of malice, premeditation and deliberation.
This assignment of error is overruled.
Motion for Appropriate Relief
 Defendant has filed a pro se
Motion for Appropriate Relief
(MAR) with this Court, which we decide pursuant to N.C. Gen. Stat.
§ 15A-1418. From defendant's pro se motion, we can identify three
issues raised by defendant: (1) whether the trial court improperly
admitted evidence; (2) whether the trial court had jurisdictionover defendant's charges; and (3) whether defendant's trial and/or
appellate counsel were ineffective. We have addressed defendant's
first two MAR issues above, see Issue I
, and find no
error. As to defendant's claims of ineffective assistance of
counsel (IAC), we find the record before us is sufficient to make
a determination of the questions presented and it is not necessary
to remand the case for proceedings on the motion.
As best we can determine from defendant's MAR, defendant
argues he received ineffective assistance from both his trial and
his appellate counsel. Defendant argues his trial counsel did not
have blood samples left around the frame of the [broken] window in
the victim's residence tested for DNA evidence and did not
determine if there [were] latent [finger]prints . . . inside or
outside of the window glass. Defendant contends his trial
counsel's failure to present potentially exculpatory evidence
amounts to ineffective assistance of counsel.
To prevail on his IAC claim defendant must show 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) (citing Strickland v. Washington
, 466 U.S.
668, 80 L. Ed. 2d 674 (1984)). Defendant must satisfy the
following two-prong test:
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 whoseresult is reliable.
at 562, 324 S.E.2d at 248 (quotations omitted). [E]ven
an unreasonable error . . . does not warrant reversal of a
conviction unless there is a reasonable probability that, but for
counsel's errors, there would have been a different result in the
at 563, 324 S.E.2d at 248.
As defendant admits he cut his fingers on the glass of the
broken window, any testing of the blood samples from the broken
glass would identify defendant's DNA. While it is possible for DNA
of other individuals to be present, in light of the evidence
presented at trial any such finding is not sufficient to establish
a reasonable probability that there would have been a different
result in the proceedings. Therefore, defendant's IAC claim as to
his trial counsel is denied.
Defendant also argues he has received ineffective assistance
from his appellate counsel in that his appellate counsel has not,
on appeal, raised an IAC issue concerning defendant's trial
counsel, has not raised issues concerning inadmissible evidence,
and has not filed a Motion of Appropriate Relief on defendant's
behalf. Defendant's appellate counsel was appointed to perfect
defendant's appeal by the North Carolina Office of the Appellate
Defender. Defendant's appellate counsel has brought forth
arguments regarding alleged inadmissible evidence, see Issue I
. For the reasons stated above, appellate counsel's
decision to not fully argue an IAC claim concerning defendant's
trial counsel was warranted. Further, as defendant's appellate
counsel was not appointed to assist defendant with his MAR, it wasappropriate for appellate counsel to deny defendant's request for
assistance in drafting his MAR. Therefore, defendant's IAC claim
as to his appellate counsel is denied.
No error at trial. Defendant's claims under his Motion for
Appropriate Relief are denied.
Judges McGEE and STEELMAN concur.