State v Black

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 C a r o l i n a R u l e s o f A p p e l l a t e P r o c e d u r e . NO. COA11-354 NORTH CAROLINA COURT OF APPEALS Filed: 15 November 2011 STATE OF NORTH CAROLINA v. Mecklenburg County Nos. 08 CRS 208908 08 CRS 208910 LAWRENCE ALDOUS BLACK Appeal by Defendant from final judgment and sentence entered 27 August 2010 by Judge Robert C. Ervin in Mecklenburg County Superior Court. Heard in the Court of Appeals 13 October 2011. Attorney General Roy Cooper, by Special Deputy Attorney General Gary R. Govert, for the State. Glover & Petersen, P.A., by James R. Glover, for Defendantappellant. HUNTER, JR., Robert N., Judge. Lawrence Aldous Black ( Defendant ) appeals from a jury verdict finding him guilty of robbery with a firearm and felony murder in the first degree. On appeal, Defendant argues the trial court committed reversible error by denying Defendant s motion to suppress his post-arrest statements and by denying him -2effective assistance of counsel. After careful review, we dismiss both claims. I. Factual & Procedural Background On 10 March 2008, a Mecklenburg County Grand Jury indicted Defendant for robbery and felony murder in the first degree. Defendant was tried during the 23 August 2010 Criminal Term of the Mecklenburg County Superior Court, the Honorable Robert C. Ervin presiding. William Saddler, a witness for the State, testified that on 16 February 2008, he saw Defendant approach the driver s side of a white car with a handgun pointed at the car. According to Mr. Saddler, Defendant reached inside the car and removed the keys from the ignition while repeatedly asking the driver to hand over his wallet. Mr. Saddler testified that after the driver refused to give Defendant the wallet, Defendant reached inside the car and shot the driver. Officer Pedro Ache regarding the incident. responded to a call for service He investigated the scene and canvassed the neighborhood to determine the names of potential suspects. Defendant was identified as a suspect, and Officer Ache met with him at the questioning Cornelius on 21 Police February Department 2008. conference During this room for initial -3interrogation, Defendant was not placed under arrest. He stated he was at the scene of the shooting but maintained he did not shoot the driver. After making this initial statement, Defendant left the police station. Hours later, Cornelius police brought him back to the station. arrested Defendant and He was read his Miranda rights from a standard Cornelius Police Department form. Before he made another statement (the Second Statement ) to the police, Defendant initialed the form in spaces indicating that he understood each of the rights stated and signed the form in the space indicating he was willing to provide a statement. After an interview lasting several hours, an officer typed up a condensed version of Defendant s Second Statement. In the statement, Defendant admitted to approaching the driver s side of the white car with a handgun in his back pocket, opening the door, and asking the driver for his money. that, after the driver removed the keys Defendant admitted from the ignition, Defendant took the keys from the driver s hand and threw them on the car s floorboard. He admitted to hitting the driver in the face with his handgun upon the driver s refusal to give him money, after which, Defendant claimed, the gun accidentally went off. Defendant claimed he saw no blood and that he did not know -4whether the bullet had hit the driver. He stated that he then picked up a twenty-dollar bill off the road and walked away from the scene. Before Statement forms trial, based the Defendant on police the moved alleged presented to to suppress insufficiency Defendant. of the the After Second Miranda holding a hearing, including a voir dire examination of Officer Ache, the trial court denied Defendant s motion. admitted Defendant s objection along with Second the Statement form Defendant his Miranda rights. from At trial, the State into which evidence Officer without Ache read Additionally, the State admitted, without objection, a compact disc containing an audio and video recording of Statement. the process of obtaining Defendant s Second The disc was played for the jury. The jury found Defendant guilty of robbery with a firearm and felony murder in the first degree. Judge Ervin sentenced Defendant to a presumptive term of life imprisonment without parole. Defendant entered timely notice of appeal on 27 August 2010. II. Jurisdiction -5As Defendant appeals from the final judgment of a superior court, an appeal lies of right with this Court pursuant to N.C. Gen. Stat. §7A-27(b) (2009). III. Analysis A. Defendant s Motion to Suppress Defendant contends the trial court committed reversible error in denying his pretrial motion to suppress Statement. during the Second He argues the police obtained the Second Statement custodial interrogation that was not preceded by a sufficient warning of rights under Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694 (1966). that he was inadequately Specifically, Defendant claims advised that an appointed to him prior to any questioning. attorney would be However, we do not address the merits of Defendant s claim. Defendant introduced failed Defendant s to object Second at trial Statement when into the State evidence. By failing to lodge an objection, Defendant did not preserve for appellate motion to 10(a)(1). review the suppress See State trial the v. court s confession Oglesby, denial of under N.C. 361 N.C. his 550, R. pre-trial App. 554-55, P. 648 S.E.2d 819, 821 (2007) (finding a trial court s evidentiary ruling on a pretrial motion is not sufficient to preserve the -6issue of admissibility for appeal unless a defendant renews the objection during trial. ) (emphasis in original). In criminal cases, however, a defendant may still appeal an issue that was not preserved by objection when the judicial action questioned is specifically error. and distinctly contended N.C. R. App. P. 10(a)(4). to amount to plain The defendant must, however, assert plain error in his or her brief in order to allow for an otherwise non-preserved issue to be reviewed by this Court. State v. Harrington, 171 N.C. App. 17, 31-32, 614 S.E.2d 337, 349 (2005). Here, Defendant failed to assert plain error in his brief and has waived review of the denial of his motion to suppress. B. Accordingly, we dismiss the claim. Ineffective Assistance of Counsel Defendant next contends he received ineffective assistance of counsel at trial amounting to a violation of his state and federal Constitutional rights. He argues that his trial counsel s failure to object at trial to the State s introduction of the Second Statement into evidence resulted in the failure to preserve for appellate review the denial of his pre-trial motion to suppress. However, we again do not reach the merits of Defendant s claim. -7In general, a court should consider claims of ineffective assistance of counsel through motions for appropriate relief and not on direct appeal. State v. Stroud, 147 N.C. App. 549, 553, 557 S.E.2d 544, 547 (2001). A motion for appropriate relief is preferable because the State must rely on information provided by defendant to trial counsel when defending against claims of ineffective assistance of counsel. 547 (citation omitted). Id. at 554, 557 S.E.2d at [B]ecause of the nature of [ineffective assistance of counsel] claims, defendants likely will not be in a position to adequately develop many [of these] claims on direct appeal. State v. Fair, 354 N.C. 131, 167, 557 S.E.2d 500, 525 (2001). When a prematurely reviewing asserted a court claim determines of a defendant ineffective assistance has of counsel on direct appeal, the court shall dismiss those claims without prejudice to the defendant s rights to reassert them during a subsequent proceeding. (citation [motion for appropriate relief] Stroud, 147 N.C. App. at 554, 557 S.E.2d at 547 omitted). In determining whether a defendant has adequately raised a claim of ineffective assistance of counsel, this Court has held itself bound to reviewing this assignment of error only on the record before us, without the benefit of -8 information provided by defendant to trial counsel, as well as defendant s thoughts, concerns, and demeanor[,] that could be provided in appropriate a full evidentiary relief. Id. hearing (citation on omitted) a motion for (alteration in original). Here, further investigation of evidentiary matters is necessary because trial counsel s lack of objection upon the State s own, introduction does not of reveal Defendant s sufficient counsel s strategy. Second Statement, information on regarding its trial State v. Loftis, 185 N.C. App 190, 203, 649 S.E.2d 1, 10 (2007); see also State v. Mohamed, ___ N.C. App. ___, ___, 696 S.E.2d 724, 733 (2010) ( In this case, the record reveals development that before certain evidentiary [d]efendant may issues adequately courts may adequately consider this claim[.] ). is proper to dismiss Defendant s ineffective need raise further and the Therefore, it assistance of counsel claim without prejudice to Defendant s right to reassert it during a subsequent motion for appropriate relief proceeding. IV. Conclusion For the foregoing reasons, we dismiss Defendant s appeal without prejudice. Dismissed. -9Judges BEASLEY and THIGPEN concur. Report per Rule 30(e).

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