Criminal Practice – Ineffective Assistance of Counsel – Jury Selection Process

Defendant did not receive ineffective assistance of counsel when his counsel failed to file a motion to suppress because the search warrant was proper and supported by probable cause. Further, Defendant is unable to satisfy the two-part test, as set forth in Strickland, to demonstrate ineffective assistance of counsel. Finally, Defendant’s jury selection argument was not properly preserved for consideration by this Court.

Defendant received a fair trial free from error.

This case concerned the sexual abuse of a minor child, K.W., spanning many years. The abuse was uncovered when K.W. informed her mother that Defendant had been regularly engaging in sexual acts with her. This case was before us on remand from the Supreme Court of North Carolina for the sole purpose of considering Defendant’s two remaining arguments on appeal not contemplated by this Court in Reber I. Namely, whether Defendant received ineffective assistance of counsel when his attorney failed to move to suppress evidence obtained from his cell phone pursuant to a search warrant; and whether the trial court committed structural constitutional error by allowing four disqualified jurors to serve on Defendant’s trial.

Defendant contended the search warrant application was deficient because it is not clear how or when the phone came into the officers’ possession; there is no time frame provided for when the illegal activity allegedly took place; and there is no indication that K.W. provided investigators with the phone number that Defendant used to communicate with her, so it is impossible to confirm that the seized phone was the same phone Defendant used to commit the alleged offense. Defendant argued that, due to these errors, the warrant was unsupported by probable cause. Having determined that probable cause existed to support the issuance of the search warrant, we concluded that had Defendant’s trial counsel objected to the search warrant, the result of the proceeding would have been the same. Accordingly, Defendant did not receive ineffective assistance of counsel when his counsel failed to file a motion to suppress the evidence obtained from the search of his cell phone.

Defendant next argued that the trial court committed structural constitutional error by allowing certain jurors to serve on his trial. Defendant did not claim to have exhausted all challenges and the transcript indicates only two of six strikes were used. Consequently, Defendant could not establish prejudice in the jury selection process. Defendant stated that even if this Court does not find structural error, “the error was still prejudicial and requires a new trial,” regardless of the standard applied. However, Defendant failed to establish prejudice in the jury selection process under the facts of his case.

Lastly, Defendant asserted that this Court should review this issue “under Appellate Rule 2” to “prevent manifest injustice to a party.” The exercise of Rule 2 was intended to be limited to “rare occasions.” Defendant asserted, without evidence, that his right to a fair and impartial jury was violated because four jurors who had been empaneled, despite their prior service, were more likely to find him guilty. However, Defendant failed to demonstrate that his right to a fair and impartial jury was adversely affected. Defendant had four remaining peremptory strikes but failed to use them. Defendant’s decision to not exhaust his peremptory strikes does not deprive him of any substantial right that would justify invoking Rule 2. Defendant did not satisfy any of the three grounds upon which the issue would be preserved on appeal.

No error.

State of North Carolina v. Joshua David Reber (Lawyers’ Weekly No. 011-242-24, 20 pp.) (April Wood, J.) Appealed from Ashe County Superior Court (Forrest D. Bridges, J.) Attorney General Joshua H. Stein, by Special Deputy Attorney General Margaret A. Force, for the State; Daniel M. Blau, for the defendant. North Carolina Court of Appeals