State v. Miles

Citation859 S.E.2d 645 (Table)
Decision Date06 July 2021
Docket NumberNo. COA20-118,COA20-118
Parties STATE of North Carolina v. Jammal Rashad MILES
CourtCourt of Appeal of North Carolina (US)

Attorney General Joshua H. Stein, by Assistant Attorney General Derek L. Hunter, for the State-Appellee.

Dylan J.C. Buffman Attorney at Law, PLLC, by Dylan J.C. Buffman, for Defendant-Appellant.

CARPENTER, Judge.

I. Factual and Procedural Background

¶ 1 Mr. Jammal Miles ("Defendant") was charged with two counts of malicious conduct by a prisoner and one count of felony possession of cocaine. He was also indicted as a habitual felon.

¶ 2 The relevant facts leading to Defendant's charges are as follows: On 23 April 2017, Deputy Price of the Cumberland County Sheriff's Department saw Defendant asleep in the passenger seat of a parked car at a gas station. Deputy Price attempted to wake Defendant through the car's open window, but Defendant was initially unresponsive. Deputy Price testified he saw a plastic bag in Defendant's hand. Deputy Price concluded Defendant was suffering from an overdose and called for an ambulance. Defendant awoke, and Deputy Price canceled the call for the ambulance. Following direction from Deputy Price, Defendant got out of the car and took his hands from his pockets. Deputy Price testified that he saw Defendant drop the plastic bag and step on it. Deputy Price testified he noticed the bag had white powder in it. Defendant denied the bag on the ground belonged to him.

¶ 3 Deputy Price testified that Defendant verbally opposed being searched, and that a civilian notified other nearby officers to come assist Deputy Price. Officer Ariel Aponte and his partner were inside the gas station and came out to assist Deputy Price. Officer Aponte recorded body camera footage of the incident. Officer Aponte and Deputy Price escorted Defendant to the patrol car. Defendant asked why he was being arrested and requested a supervisor come to the scene. Sergeant Britton arrived and told Defendant he was being arrested for possession of narcotics. Sergeant Britton forced Defendant into the patrol car. Sergeant Britton testified that officers at the scene later observed what they believed to be saliva on Sergeant Britton's shirt. While Defendant was handcuffed and locked in the patrol car, Deputy Price stood behind the tailgate and conducted a field test for narcotics. Deputy Price had the tailgate open while conducting the field test. Deputy Price testified that Defendant was spitting inside the vehicle, and Deputy Price instructed him to stop. Deputy Price testified that Defendant spit through the partition and out the open rear of the vehicle, landing on Deputy Price's forearm.

¶ 4 Defendant was charged with two counts of malicious conduct by a prisoner (one against Deputy Price, and one against Sergeant Britton), as well as one count of felony possession of cocaine. The charges came on for a trial during the 18 February 2019 criminal session of the Superior Court for Cumberland County, the Honorable James F. Ammons, Jr. presiding (the "first trial"). At the first trial, the State played body camera footage recorded by Officer Ariel Aponte, and Sergeant Britton was called as a witness to identify the points in the video at which Defendant spit. The jury returned a guilty verdict on one count of malicious conduct against Deputy Price, and acquitted Defendant on the second count of malicious conduct against Sergeant Britton. The jury could not reach a verdict on the charge of possession of cocaine. The trial court declared a mistrial on the third count. The jury found Defendant had attained habitual felon status. Defendant stipulated to twelve prior record level points. He was sentenced at prior record level four in the presumptive range to an active term of 88 to 118 months. Defendant gave oral notice of appeal at trial.

¶ 5 Pursuant to a plea agreement, Defendant agreed to plead guilty to the cocaine charge and admit his status as a habitual felon. The charges were to be consolidated into one judgment, and Defendant would be sentenced to 88 to 118 months in prison. During the plea colloquy, the trial court incorrectly advised Defendant that, in agreeing to plead guilty, Defendant waived his right to appeal both the conviction of malicious conduct by a prisoner of which the jury had convicted him, as well as the conviction for felony possession of cocaine to which Defendant was pleading guilty. Defendant's counsel informed the court that he did not believe Defendant waived his right to appeal by agreeing to the plea deal, to which the trial court responded that if Defendant wished to appeal his convictions, the trial court would not accept the plea. Defendant indicated he wished to exercise his right to appeal, and the trial court rejected the plea agreement.

¶ 6 The cocaine charge came on for a second trial during the 13 May 2019 criminal session of the Superior Court of Cumberland County, the Honorable Thomas H. Lock presiding (the "second trial"). At the second trial, the jury found Defendant guilty of possession of cocaine. The prior record level worksheet that was submitted to the trial court after the second trial included the conviction for malicious conduct by a prisoner, obtained in this case at the first trial. This additional conviction increased the number of prior record level points from twelve to sixteen, elevating Defendant's prior record level from four to five. Defendant was sentenced in the mitigated range to an active term of 26 to 44 months, consecutive to the sentence imposed after the first trial.

¶ 7 On 1 October 2019, this Court granted Defendant's petition for certiorari , reinstating his right to appeal the judgment from the second trial. On 12 March 2020, this Court allowed Defendant's motion to consolidate the appeal of both judgments.

II. Jurisdiction

¶ 8 Jurisdiction lies in this Court as a matter of right over a final judgment of a superior court, pursuant to N.C. Gen. Stat. § 7A-27(b) (2019) and N.C. Gen. Stat § 15A-1444(a) (2019), and pursuant to N.C. R. App. P. 21 (2019) and the Order of this Court allowing Defendant's petition for certiorari.

III. Issues

¶ 9 The issues on appeal are (1) whether Defendant was denied the right to effective assistance of counsel when his attorney failed to object to the trial court's misstatements of law; (2) whether the trial court committed plain error when it allowed the State to introduce lay-opinion testimony from Sergeant Britton describing events on the video he did not witness personally; (3) whether the trial court abused its discretion by denying Defendant's motion to sequester the State's witnesses; and (4) whether the trial court erred in including Defendant's conviction from the first trial when calculating Defendant's prior record level for sentencing after the second trial.

IV. Analysis
A. Ineffective Assistance of Counsel

¶ 10 Defendant contends he was denied the right to effective assistance of counsel when his attorney failed to object to the trial court's misstatements of law, specifically the trial court's incorrect representation to Defendant that, in agreeing to plead guilty, Defendant waived his right to appeal both the convictions of malicious conduct by a prisoner and felony possession of cocaine.

1. Standard of Review

¶ 11 "To prevail on a claim of ineffective assistance of counsel, a defendant must first show that his counsel's performance was deficient and then that counsel's deficient performance prejudiced his defense." State v. Allen , 360 N.C. 297, 316, 626 S.E.2d 271, 286, cert. denied , 549 U.S. 867 (2006), (citing Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984) ). "Deficient performance may be established by showing that counsel's representation fell below an objective standard of reasonableness." Id. at 316, 626 S.E.2d at 286. "Generally, to establish prejudice, a defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 216, 626 S.E.2d at 286. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 216, 626 S.E.2d at 286. In the context of a plea, a defendant "must ... demonstrate a reasonable probability the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it[.]" Missouri v. Frye , 566 U.S. 134, 147, 132 S. Ct. 1399, 1409 (2012).

2. Discussion

¶ 12 The trial court misrepresented to Defendant he would not be able to appeal his convictions if he agreed to plead guilty to the cocaine charge. Defendant's counsel objected to the trial court's misrepresentations, and ultimately Defendant expressed his desire to preserve his right to appeal. In response, the trial court stated, "Then I will reject this plea." Defendant contends his counsel's performance was deficient because counsel failed to further object to the trial court's requirement that Defendant waive his right to appeal.

¶ 13 However, "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) (citing State v. Dockery , 78 N.C. App. 190, 192, 336 S.E.2d 719, 721 (1985) ). A motion for appropriate relief is the preferable mechanism to raise such a claim because "[t]o defend against ineffective assistance of counsel allegations, the State must rely on information provided by defendant to trial counsel, as well as defendant's thoughts, concerns, and demeanor." State v. Buckner , 351 N.C. 401, 412, 527 S.E.2d 307, 314 (2000) (citation omitted). "[S]hould the reviewing court determine that [the ineffective assistance of counsel] claims have been prematurely asserted on direct appeal, it shall dismiss those claims without prejudice to the defendant's right to reassert them during a subsequent [motion for appropriate relief] proceeding." State...

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