State v. Clayton, 051920 NCCA, COA19-401

Docket Nº:COA19-401
Opinion Judge:DIETZ, JUDGE.
Party Name:STATE OF NORTH CAROLINA v. THOMAS ANTWAN CLAYTON
Attorney:Attorney General Joshua H. Stein, by Assistant Attorney General Kimberly N. Callahan, for the State. Paul F. Herzog for defendant.
Judge Panel:Judges BERGER and BROOK concur.
Case Date:May 19, 2020
Court:Court of Appeals of North Carolina
 
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STATE OF NORTH CAROLINA

v.

THOMAS ANTWAN CLAYTON

No. COA19-401

Court of Appeals of North Carolina

May 19, 2020

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

Heard in the Court of Appeals 4 March 2020.

Appeal by defendant from judgments entered 2 April 2018 by Judge W. Osmond Smith III in Durham County Superior Court, Nos. 13 CRS 53804, 53806; 16 CRS 2274-75

Attorney General Joshua H. Stein, by Assistant Attorney General Kimberly N. Callahan, for the State.

Paul F. Herzog for defendant.

DIETZ, JUDGE.

Defendant Thomas Antwan Clayton appeals his convictions for first degree murder and related offenses. Clayton argues that the trial court erred by denying his motion to suppress evidence of his cell phone records but acknowledges that his trial counsel failed to preserve this issue with a timely objection at trial. He therefore asserts a claim for ineffective assistance of counsel.

As explained below, we agree that Clayton failed to preserve his suppression argument and we therefore cannot reach the merits of that issue on direct appeal. Because Clayton's ineffective assistance claim requires consideration of fact-driven questions concerning his trial counsel's strategic decisions at trial, we dismiss that claim without prejudice to pursue it in a motion for appropriate relief in the trial court.

Facts and Procedural History

In 2013, JeJuan Taylor was shot and killed during an attempted robbery. During the investigation of that killing, law enforcement officers arrested Defendant Thomas Antwan Clayton and seized his cell phone. The officers later obtained a warrant to search the phone.

The State charged Clayton with first degree murder, conspiracy to commit robbery with a dangerous weapon, robbery with a dangerous weapon, two counts of discharging a firearm into an occupied vehicle while in operation, and possession of a firearm by a felon. Before trial, Clayton moved to suppress the evidence obtained from the search of his cell phone, arguing that the search of his phone was unconstitutional because the search warrant "was without sufficient probable cause" due to the warrant application's failure to include specific "facts . . . that implicate Defendant's...

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