State v. Alexander

An unpublished opinion of the North Carolina Court of Appeals does not constitute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 Procedure.

NO. COA13-580
NORTH CAROLINA COURT OF APPEALS

Filed: 18 February 2014

STATE OF NORTH CAROLINA

v. Mecklenburg County
Nos. 12 CRS 17112
TERRANCE L. ALEXANDER, 12 CRS 203042
Defendant. 12 CRS 203044

Appeal by defendant from judgment entered 29 November 2012

by Judge Anna Mills Wagoner in Mecklenburg County Superior

Court. Heard in the Court of Appeals 24 October 2013.

Attorney General Roy Cooper, by Assistant Attorney General
Richard A. Graham, for the State.

Richard J. Costanza for defendant-appellant.

GEER, Judge.

Defendant Terrance L. Alexander appeals from his

convictions of felony breaking and entering, larceny after

breaking and entering, and being a habitual felon. On appeal,

defendant primarily argues that the trial court erred in denying

his motion to dismiss because the State failed to present

substantial evidence that defendant was the perpetrator of the

charged offenses. Based on (1) the State's evidence that
 -2-
defendant's palm print was found at the entry point of the

breaking and entering, which was a dislodged sliding screen door

leading to the victim's second floor apartment balcony and (2)

the victim's testimony that defendant had never been permitted

access inside his apartment beyond the very front entrance and

that defendant had never been on the victim's balcony, we hold

that the State presented substantial evidence that defendant

committed the charged offenses, and the trial court, therefore,

properly denied defendant's motion to dismiss.

Facts

The State's evidence tended to show the following facts.

Hassan Nelson lived in a second floor apartment in Charlotte,

North Carolina. On 14 January 2012, Mr. Nelson left his

apartment for a trip out of town, returning two days later on 16

January 2012. Upon driving into the parking lot of his

apartment building, Mr. Nelson saw and briefly spoke with

defendant who was a neighbor living in an apartment on the first

floor of the building.

When Mr. Nelson reached his own apartment, he found that

his front door was open, and his apartment "had been broken

into." Mr. Nelson had left the sliding glass door leading to

his second floor balcony locked, but the door had been pried

open, damaging the bar used to secure the door. The outdoor
 -3-
sliding screen had been taken off its track and set to the side

of the door. Mr. Nelson's closet was "trashed," his nightstand

drawers had been opened, and Mr. Nelson's safe and watch were

missing. The stolen safe contained tax papers, the title to Mr.

Nelson's truck, a ring, and $1,800.00 in cash.

Mr. Nelson called the police, and Officer Stephen Blackwell

of the Charlotte-Mecklenburg Police Department responded and

determined the sliding glass door to be the point of entry.

Another officer collected finger and palm prints from the metal

frame of the sliding screen door that had been dislodged.

Subsequent latent fingerprint examination revealed that the palm

print taken from the metal frame of the screen door matched

defendant's palm print.

Officer Blackwell canvassed the apartment building, telling

residents there had been a burglary and asking whether residents

had seen anything unusual in the past few days. While doing so,

he spoke to defendant, and defendant stated he had not seen

anything unusual.

Prior to the break-in, Mr. Nelson and defendant were

acquainted. Defendant had sold Mr. Nelson DVDs on several

occasions, and Mr. Nelson had once showed defendant a pair of

binoculars. Although defendant had been "probably a foot"

inside the front door of Mr. Nelson's apartment prior to the
 -4-
break-in, defendant had never been further into the apartment

and had never been on the balcony. Mr. Nelson did not give

defendant permission to enter his apartment during the period

between 14 to 16 January 2012.

On 9 April 2012, defendant was indicted for felonious

breaking and entering, larceny after breaking and entering, and

being a habitual felon. Defendant did not present evidence at

trial. The jury found defendant guilty of felonious breaking

and entering and larceny after breaking and entering. Defendant

then pled guilty to being a habitual felon. The trial court

consolidated defendant's convictions into a single judgment and

sentenced defendant to a presumptive-range term of 78 to 106

months imprisonment. Defendant appeared in open court the day

after his trial ended and gave oral notice of appeal.

Discussion

As an initial matter, we must address this Court's

jurisdiction over defendant's appeal. Defendant failed to give

oral notice of appeal at trial and failed to file a written

notice of appeal, the only two modes of appeal available under

Rule 4 of the Rules of Appellate Procedure. See State v. Oates,

366 N.C. 264, 268, 732 S.E.2d 571, 574 (2012) (explaining Rule 4

requires either "oral notice of appeal, but only if given at the
 -5-
time of trial or . . . of the pretrial hearing," or filed,

written notice of appeal).

Although defendant attempted to give oral notice of appeal

in open court the day after his trial ended, that notice was not

effective and defendant has failed to timely appeal the

judgment. Id. We nonetheless elect to deem defendant's brief a

petition for writ of certiorari, and we exercise our discretion

to grant the petition in order to reach the merits of

defendant's appeal. See N.C.R. App. P. 21(a)(1) (providing

"writ of certiorari may be issued in appropriate circumstances"

when "right to prosecute an appeal has been lost by failure to

take timely action"); State v. May, 207 N.C. App. 260, 262, 700

S.E.2d 42, 44 (2010) (electing to "treat defendant's brief as a

petition for writ of certiorari and allow it for the purpose of

considering his contentions upon their merits").

I

Defendant first argues that the trial court erred in

denying his motion to continue because his trial counsel had

inadequate time to prepare for trial under the circumstances

and, with more time, defense counsel could have more fully

investigated the case and presented a better defense. Defendant

contends that the trial court's denial of his motion to continue

resulted in the denial of defendant's right to effective
 -6-
assistance of counsel guaranteed by the Sixth and Fourteenth

Amendments to the United States Constitution and Article I,

Sections 19 and 23 of the North Carolina Constitution.

At roughly 2:00 p.m. on Monday, 26 November 2012, the

prosecutor indicated that he intended to call defendant's case

for trial. One of defendant's trial counsel1 stated that he was

"not making a motion to continue" because defendant had asked

him not to do so, but counsel wanted to note for the record that

he discussed the case with defendant for the first time that

morning. Counsel explained that he had attempted to meet with

defendant the previous week but the meeting did not occur.

Counsel then stated: "I just would say for the Court that I have

a lot of experience trying property cases in particular. This

is a property felony case. And I feel confident that I can

represent and defend [defendant] expertly . . . ."

The trial court then asked defendant whether it was "all

right" with defendant for the trial to begin that day, and

defendant stated that beginning trial that day "sounded like the
1
Defendant was represented by two attorneys at trial: Jason
St. Aubin of the Mecklenburg County Public Defender's Office and
Leslie Cockrell, apparently also with the Public Defender's
Office. Mr. St. Aubin appears to have been defendant's primary
attorney, and he made all of the relevant statements to the
trial court regarding defendant's motion to continue. Mr. St.
Aubin presented defendant's closing argument and cross-examined
five of the State's six witnesses. Ms. Cockrell gave
defendant's opening statement and cross-examined one of the
State's six witnesses.
 -7-
best" of the "possible choices" he had. Defendant elaborated

that he believed that because he had already failed to meet with

his attorney, moving to continue could result in defendant being

placed in jail. Defense counsel clarified he had informed

defendant that "it's always a possibility" that when "a case is

continued because somebody hasn't had a chance to meet with

their attorney, . . . if the judge feels strongly that they need

added incentive to meet with their attorney that they could be

placed in custody for a period of time in order for that to

happen."

The trial court then asked defendant, "Do you feel

competent [sic] that your lawyer can represent your interests

well?" Defendant responded, "As confident as I can be, ma'am."

The trial court then held an unrecorded bench conference, after

which the court stated, "If we do begin with this, the State

wants to call it tomorrow . . . ."

After speaking further with defendant, defense counsel then

moved for a continuance. As the basis for his motion, counsel

stated that he was assigned defendant's case on 11 October 2012

and received the file on 12 or 13 October 2012. Counsel further

stated that at the same time he was assigned defendant's case,

he was assigned 40 habitual felon cases, and counsel spent the

month of October addressing matters in the other cases. Counsel
 -8-
explained that he had finished the work on the other habitual

felon cases during the first week of November 2012,

"approximately two weeks" prior to 26 November 2012, and

attempted to contact defendant at that time but "did not have

any success."

Counsel further explained that he then successfully

contacted defendant "this past Monday," 19 November 2012, and

scheduled an afternoon meeting with defendant at the Public

Defender's Office on Tuesday, 20 November 2012. Defendant

failed to attend that meeting. Counsel called defendant the

following morning and told defendant to either meet him at the

Public Defender's Office that Wednesday, 21 November 2012, or

else defendant would need to be present in court for calendar

call the following Monday morning, 26 November 2012. Because it

was Thanksgiving week, the Public Defender's Office was closed

on Thursday and Friday. Defendant appeared for court on Monday

morning, 26 November 2012, and counsel discussed the case with

defendant that morning for the first time.

Counsel then advised the trial court: "I have reviewed

[defendant's] file. I have reviewed all the discovery in this

matter. I feel personally that I'm ready to handle the case.

In all candor to the Court, this is a case that I can go to

trial and proceed to trial on, but I understand my client's
 -9-
hesitancy, especially because he's facing in the neighborhood of

close to -- I believe it could be up to 160 months if both cases

are habitual and both are back to back. So understanding that

that's a great magnitude and a great deal of time, juxtaposing

that with the fact that we just met, that would be the concern

that I have. But I just would say for the Court and for the

district attorney that I told them that I feel I could -- if my

motion is denied, I am ready to try this case."2

The court then denied defendant's motion, reasoning (1)

that "it appears that [defendant's] having no contact with

[counsel] is perhaps of his own doing, he could have come in

last week to see you at your request[,]" and (2) "[t]he State

has advised the Court that it will not begin evidence until

tomorrow, so that would give you some time to meet with him

later this afternoon and over tonight, and I think that should

get everybody up to speed." The parties then engaged in jury

selection for the remainder of the day and for several hours the

next morning, until the jury was impanelled at roughly 11:00

a.m. and the trial began.

As an initial matter, defendant contends his constitutional

argument is preserved for appeal since defense counsel "told the

2
The record does not appear to contain any information
regarding the preparation of defendant's other attorney, Ms.
Cockrell, for trial.
 -10-
trial court he just met his client," "addressed his workload,"

and "voiced his confidence level about proceeding." However,

defense counsel's motion to continue was based on the fact that

counsel had just met defendant earlier that day and that

defendant faced a lengthy sentence. Despite having just met

defendant that morning, counsel repeatedly asserted that he was

fully prepared to effectively represent defendant. Under these

circumstances, we cannot conclude that the trial court was

fairly presented with the question whether denial of defendant's

motion to continue would violate defendant's right to effective

assistance of counsel. Defendant's constitutional argument is

not, therefore, properly preserved for appeal. See State v.

Braxton, 352 N.C. 158, 173, 531 S.E.2d 428, 436-37 (2000)

("Constitutional questions 'not raised and passed upon in the

trial court will not ordinarily be considered on appeal.'"

(quoting State v. Hunter, 305 N.C. 106, 112, 286 S.E.2d 535, 539

(1982))).

Even assuming defendant had sufficiently raised a

constitutional argument below, defendant argued to the trial

court a different theory in support of his motion for a

continuance than that argued on appeal. At trial, defendant

asked for a continuance because counsel and defendant had only

just met and defendant faced a considerable sentence if
 -11-
convicted. On appeal, however, defendant argues that the trial

court should have granted his motion to continue to allow

defendant more time to investigate the case, including time to

interview Mr. Nelson and to develop a strategy to "properly

attack" the State's expert fingerprint evidence "in light of

scientific advances," such as those outlined in a National

Academy of Science report cited in defendant's brief.

"Our Supreme Court 'has long held that where a theory

argued on appeal was not raised before the trial court, the law

does not permit parties to swap horses between courts in order

to get a better mount' in the appellate courts." State v.

Holliman, 155 N.C. App. 120, 123, 573 S.E.2d 682, 685 (2002)

(quoting State v. Sharpe, 344 N.C. 190, 194, 473 S.E.2d 3, 5–6

(1996)). Here, defendant did not ask the trial court to

continue his case to allow him more time to investigate and to

develop his defense to the State's expert fingerprint evidence.

Because the arguments made on appeal were not preserved at the

trial level, we do not address them.

II

Defendant next argues that the trial court erred in denying

his motion to dismiss the charges of felony breaking and

entering and larceny after breaking and entering. Defendant

contends that the only evidence tending to show he committed the
 -12-
crimes was evidence of his palm print on the frame of the second

floor balcony screen door, which, defendant argues, the State

did not sufficiently show could only have been impressed at the

time the crimes were committed.

"This Court reviews the trial court's denial of a motion to

dismiss de novo." State v. Smith, 186 N.C. App. 57, 62, 650

S.E.2d 29, 33 (2007). "'Upon defendant's motion for dismissal,

the question for the Court is whether there is substantial

evidence (1) of each essential element of the offense charged,

or of a lesser offense included therein, and (2) of defendant's

being the perpetrator of such offense. If so, the motion is

properly denied.'" State v. Fritsch, 351 N.C. 373, 378, 526

S.E.2d 451, 455 (2000) (quoting State v. Barnes, 334 N.C. 67,

75, 430 S.E.2d 914, 918 (1993)). "Substantial evidence is such

relevant evidence as a reasonable mind might accept as adequate

to support a conclusion." State v. Smith, 300 N.C. 71, 78-79,

265 S.E.2d 164, 169 (1980).

In this case, the State's evidence tending to show

defendant was the perpetrator consisted primarily of the fact

that defendant's palm print was found on the frame of the

sliding screen door that had been removed from its track and

placed on the second floor balcony of Mr. Nelson's apartment.

"Fingerprint evidence, standing alone, is sufficient to
 -13-
withstand a motion for nonsuit only if there is 'substantial

evidence of circumstances from which the jury can find that the

fingerprints could only have been impressed at the time the

crime was committed.'" State v. Irick, 291 N.C. 480, 491-92,

231 S.E.2d 833, 841 (1977) (quoting State v. Miller, 289 N.C. 1,

4, 220 S.E.2d 572, 574 (1975)). "Circumstances tending to show

that a fingerprint lifted at the crime scene could only have

been impressed at the time the crime was committed include . . .

statements by prosecuting witnesses that they had never seen the

defendant before or given him permission to enter the premises .

. . ." Id. at 492, 231 S.E.2d at 841.

In this case, Mr. Nelson testified that although he was

acquainted with defendant, defendant had never been more than a

foot inside the doorway of Mr. Nelson's apartment, and had never

been on the balcony. The State's evidence further tended to

show that the metal screen door was removed by the perpetrator

in order to gain entry to the house and was located on a second

floor balcony that was not generally accessible to the public.

This evidence constituted substantial evidence of circumstances

from which the jury could find that defendant's palm print could

only have been impressed at the time the crimes were committed.

See State v. Foster, 282 N.C. 189, 198, 192 S.E.2d 320, 326

(1972) (holding State presented substantial evidence that
 -14-
defendant's fingerprint found on flowerpot inside victims' house

could only have been impressed at time of crime when victims

"testified they did not know defendant and had never given him

permission to enter their home," defendant testified he had

never been inside victims' house, and flowerpot had been inside

house for three years and was frequently washed).

Defendant nonetheless cites State v. Bass, 303 N.C. 267,

278 S.E.2d 209 (1981), and State v. Gilmore, 142 N.C. App. 465,

542 S.E.2d 694 (2001), in support of his argument. However, in

those cases there was evidence that the defendants could have

left the fingerprints at the respective crime scenes at times

other than during commission of the charged offenses. See Bass,

303 N.C. at 272-73, 278 S.E.2d at 213 (holding State did not

present substantial evidence defendant's prints on window screen

of house could only have been impressed when charged offense

committed because defendant testified he broke into same house,

through relevant window, three or four weeks prior to charged

offense and committed a larceny at that time, and State's

rebuttal evidence supported defendant's testimony); Gilmore, 142

N.C. App. at 470, 542 S.E.2d at 698 (holding State did not

present substantial evidence that defendant's print on piece of

glass from broken store window, which was located on ground

outside store, was impressed at time of commission of crime
 -15-
since outside portion of window was accessible to public,

officer who lifted print did not determine whether print was

made on inside or outside portion of window glass, and State

presented evidence that defendant was a customer in store near

or on day of break-in). Bass and Gilmore are, therefore,

distinguishable.

We hold that the State's palm print evidence, along with

the substantial evidence that the palm print could only have

been impressed at the time of the commission of the charged

offenses, constituted substantial evidence that defendant was

the perpetrator of the breaking and entering and larceny after

breaking and entering offenses. Consequently, the trial court

did not err in denying defendant's motion to dismiss.

III

Finally, defendant argues that he received ineffective

assistance of counsel ("IAC") when his trial counsel (1) argued

a certain theory of the case during the opening statement but

then failed to present evidence supporting that theory of the

case and appeared to adopt a different theory mid-trial and (2)

failed to move for a mistrial when the victim, Mr. Nelson, gave

previously undisclosed testimony at trial that materially

conflicted with the theory of the case presented by defense

counsel during defendant's opening statement.
 -16-
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 that counsel'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)).

The North Carolina Supreme Court has held that

ineffective assistance of counsel claims
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. Thus, when this Court
reviews ineffective assistance of counsel
claims on direct appeal and determines that
they have been brought prematurely, we
dismiss those claims without prejudice,
allowing defendant to bring them pursuant to
a subsequent motion for appropriate relief
in the trial court.

State v. Thompson, 359 N.C. 77, 122-23, 604 S.E.2d 850, 881

(2004) (internal citation and quotation marks omitted).
 -17-
The United States Supreme Court has explained more

specifically why IAC claims should rarely be raised on direct

appeal:

When an ineffective-assistance claim is
brought on direct appeal, appellate counsel
and the court must 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. . . . The evidence introduced at
trial . . . 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, 504–05, 155 L. Ed. 2d

714, 720–21, 123 S. Ct. 1690, 1694 (2003). In this case, we

cannot determine from the record either that defense counsel

acted unreasonably or that counsel's actions or omissions had a

probable impact on the verdict.

With respect to defendant's argument that his counsel

failed to present evidence in support of the theory presented in
 -18-
defendant's opening statement, the record reveals that the

defense's opening statement was consistent with an incriminating

recorded statement made by defendant. The State in its opening

statement had specifically promised to present that recorded

statement to the jury.

Subsequently, however, Mr. Nelson testified in a manner

that negated the defense theory. It is undisputed that the

State was unaware that Mr. Nelson would testify in that manner.

Then, the State elected not to present any evidence at all

regarding defendant's recorded statement.

Given Mr. Nelson's testimony and the State's unexpected

election not to offer evidence of defendant's incriminating

statements, we cannot conclude that defense counsel must have

acted without any strategic basis when counsel decided not to

present evidence of defendant's explanation for his presence in

the apartment. Since the State had not relied upon the recorded

statement, defense counsel would have been forced to offer

defendant's own testimony, which would have opened the door to

the jury's hearing about defendant's four prior breaking and

entering convictions, a possession of stolen goods conviction,

and a common law robbery conviction.

Defense counsel may well have decided that, in light of the

State's decision not to present the incriminating recorded
 -19-
statement by defendant, it was better to lose some credibility

with the jury by not following up on the promises made in the

defense's opening statement than to potentially disclose

defendant's prior convictions to the jury. Defense counsel was

also able, in the closing argument, to attack the State's

failure to present that recorded statement and another pretrial

statement by defendant, an argument that likely would have been

unavailable had defendant elected to present evidence consistent

with the opening statement.

Similarly, we cannot conclude on the basis of this record

that defendant received IAC because his counsel failed to move

for a mistrial. We do not agree with appellate counsel that

trial counsel could have had no strategic reason for not moving

for a mistrial. Nor can we determine, on this record, given the

unexpected decision of the State to not use defendant's pre-

trial statements, that the failure to move for a mistrial was

sufficiently prejudicial to warrant a finding of IAC.

Consequently, we dismiss defendant's IAC arguments without

prejudice to defendant's asserting them in a motion for

appropriate relief.

No error.

Judges STEPHENS and ERVIN concur.

Report per Rule 30(e).