Opinion
No. COA08-948.
Filed May 5, 2009.
Mecklenburg County Nos. 06 CRS 255804-05; 07 CRS 26731.
Appeal by defendant from judgments entered 3 April 2008 by Judge Beverly T. Beal in Mecklenburg County Superior Court. Heard in the Court of Appeals 20 April 2009.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Donald W. Laton, for the State. Anne Bleyman, for defendant-appellant.
Marvin Randy McDonald ("defendant") appeals from judgments entered after a jury found him guilty of felony possession of cocaine and misdemeanor possession of drug paraphernalia. Defendant admitted to having attained habitual felon status. The trial court sentenced defendant to a term of 136 to 173 months imprisonment for the felony and 120 days imprisonment for the misdemeanor. For the reasons below, we hold no error.
The evidence tended to show that on 2 December 2006, Officer Brian S. Carey ("Officer Carey") and Officer Todd A. Kanipe ("Officer Kanipe") of the Charlotte-Mecklenburg Police Department ("CMPD") were riding together as a two-man unit. They were patrolling in the north part of Charlotte in Plaza Midwoood, a neighborhood off of Central Avenue. At approximately 9:38 p.m., the officers drove by a vacant building located at 3201 The Plaza and noticed a silver truck parked in the parking lot. The officers saw someone, who was later identified as defendant, slumped in the driver's seat of the truck.
The officers pulled in behind the truck. Officer Carey called dispatch and requested that they run the truck's tags. Dispatch responded that the truck had been reported stolen. Officer Carey approached the truck on the driver's side and noticed that defendant did not appear conscious. Officer Carey rapped on the window or opened the truck's door to get defendant's attention. Defendant was very lethargic, seemed incoherent, and "appeared to be high on something." Officer Carey directed defendant to step out of the truck. Defendant told Officer Carey that there was a "stem" in the truck. Officer Carey understood defendant was using the slang term for a crack pipe.
Officer Kanipe approached the truck on the passenger side and shone his flashlight into the window to get a better look and see if there were any weapons or contraband. He saw what appeared to be a crack pipe in the cupholder in the center console. Officer Kanipe returned to the patrol car to get the stolen vehicle's vehicle identification number ("VIN"). Next, Officer Kanipe went back to the truck and checked the last five digits of the truck's VIN in order to confirm that it matched the VIN of the vehicle listed as stolen. Officer Kanipe searched the truck and found a crack pipe and what appeared to be two rocks of crack cocaine in the cup holder. Officer Kanipe found another crack pipe on the floorboard. Defendant was arrested.
The rocks were analyzed by CMPD forensic chemist, Jennifer Price Mills, who opined that the rocks contained cocaine.
On appeal, defendant first argues that the trial court erred and denied him a fair trial by ordering that he be placed in restraints during trial without justification or an opportunity to object. We disagree.
In relevant part, North Carolina General Statutes, section 15A-1031 provides that [a] trial judge may order a defendant or witness subjected to physical restraint in the courtroom when the judge finds the restraint to be reasonably necessary to maintain order, prevent the defendant's escape, or provide for the safety of persons. If the judge orders a defendant or witness restrained, he must:
(1) Enter in the record out of the presence of the jury and in the presence of the person to be restrained and his counsel, if any, the reasons for his action; and
(2) Give the restrained person an opportunity to object; and
(3) Unless the defendant or his attorney objects, instruct the jurors that the restraint is not to be considered in weighing evidence or determining the issue of guilt.
If the restrained person controverts the stated reasons for restraint, the judge must conduct a hearing and make findings of fact.
N.C. Gen. Stat. § 15A-1031 (2007).
Here, the record reveals that defendant was in custody and had some restraints on his movement. However, the record does not indicate that defendant was restrained during the trial by order of the trial court. There is also no evidence in the record that the jury was ever aware that defendant was restrained. The trial court allowed defendant both to take and to leave the witness stand outside the presence of the jury.
Defendant argues that because the trial court did not order defendant to be restrained, defendant did not have an opportunity to object. Notwithstanding the fact that the trial court did not order defendant to be restrained pursuant to section 15A-1301, defendant could have objected at any time during the trial to being restrained or to the trial court's method of concealing his restraint from the jury, but defendant failed to do so. Furthermore, defendant did not assert any violation of his constitutional rights arising from the fact of his being restrained. Accordingly, we hold that defendant has failed to preserve this issue for appellate review. State v. Tolley, 290 N.C. 349, 370, 226 S.E.2d 353, 369 (1976); see also State v. Thomas, 134 N.C. App. 560, 570, 518 S.E.2d 222, 229, disc. rev. denied, 351 N.C. 119, 541 S.E.2d 468 (1999).
In his second argument on appeal, defendant contends that his trial counsel failed to provide effective assistance of counsel. Defendant asserts that trial counsel failed to subject the prosecution's case to meaningful adversarial testing by failing to object to defendant's restraint and failing to challenge the search and seizure of defendant on any grounds. We disagree.
"In general, claims of ineffective assistance of counsel should be considered 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), cert. denied, 356 N.C. 623, 575 S.E.2d 758, (2002). Nevertheless, "[ineffective assistance of counsel] claims brought on direct [appeal] 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 (2002). We conclude that the record is sufficient to allow review of defendant's ineffective assistance of counsel claim.
"When a defendant attacks his conviction on the basis that counsel was ineffective, he 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). To establish ineffective assistance of counsel, a defendant must satisfy the following two-part 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 whose result is reliable.
Braswell, 312 N.C. at 562, 324 S.E.2d at 248 (quoting Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984)) (emphasis omitted). We do not believe defendant has shown prejudice to his defense. As discussed above, there is no evidence in the record that the jury was ever aware defendant was restrained. Furthermore, the State presented substantial evidence. The officers were on patrol when they noticed a truck parked in a parking lot. The person inside the truck was slumped over. The officers ran the tags on the truck, which came back as a stolen vehicle. Moreover, the crack pipe and rocks of crack were visible in the truck's center console, and defendant informed Officer Carey that he had a "stem" — a crack pipe — in the truck. Accordingly, defendant's argument is without merit.
No error.
Judges McGEE and Robert C. HUNTER concur.
Report per Rule 30(e).