State v. Hurst , 304 N.C. 709 ( 1982 )

285 S.E.2d 808 (1982)

STATE of North Carolina
v.
Fred HURST.

No. 67.

Supreme Court of North Carolina.

January 12, 1982.

Rufus L. Edmisten, Atty. Gen., by Sandra M. King and Ralf F. Haskell, Asst. Attys. Gen., Raleigh, for the state.

John D. Xanthos, Graham, for defendant-appellant.

PER CURIAM.

By permission of this court, defendant has filed an addendum to the record on appeal, setting forth the trial judge's charge to the jury and certain other trial proceedings not included in the original record. The addendum also contains assignments of error not set forth in the original record. In addition, he has filed in this court a motion for appropriate relief pursuant to G.S. 15A-1415(b)(3) and G.S. 15A-1418 et seq. Attached to this motion are affidavits of defendant and his mother, Peggy Hurst.

By his first assignment of error defendant contends that he was denied effective assistance of counsel at his trial in superior court and in his appeal to the Court of Appeals in violation of his rights guaranteed by the sixth and fourteenth amendments to the federal constitution. For the reasons hereinafter stated, we decline to pass on this assignment.

While G.S. 15A-1418(a) authorizes the filing of motions for appropriate relief in the appellate division, G.S. 15A-1418(b) provides as follows:

When a motion for appropriate relief is made in the appellate division, the appellate court must decide whether the motion may be determined on the basis of the materials before it, or whether it is necessary to remand the case to the trial division for taking evidence or conducting other proceedings. If the appellate court does not remand the case for proceedings on the motion, it may determine the motion in conjunction with the appeal and enter its ruling on the motion with its determination of the case.

G.S. 15A-1415 provides, inter alia, that at any time after verdict a defendant by motion may seek appropriate relief if his conviction was obtained "in violation of the Constitution of the United States or the Constitution of North Carolina". The materials before us are not sufficient for us to make that determination. While the quoted statute suggests that the motion be remanded to the trial court for hearing and determination, we think that the better procedure in this case is to dismiss the motion and permit defendant, if he so desires, to file a new motion for appropriate relief in the superior court.^[1] We will proceed to consider the other assignments of error argued in defendant's brief.

By his second assignment of error defendant contends the trial court expressed an opinion in the presence of the jury in violation of G.S. 15A-1222. By his third assignment of error, he contends that the trial court erred in its instructions to the jury.

Rule 16 of the Rules of Appellate Procedure sets out the scope of review by this court of decisions of the Court of Appeals. Rule 16(a) provides in pertinent part:

Review by the Supreme Court after a determination by the Court of Appeals, whether by appeal of right or by discretionary review, is to determine whether there is error of law in the decision of the Court of Appeals. Review is limited to consideration of the questions properly presented in the new briefs required by Rules 14(d)(1) and 15(g)(2) to be filed in the Supreme Court.

The questions which defendant attempts to present by his second and third assignments of error were not presented to the Court of Appeals, therefore, they are not properly presented in his new brief to this court. Nevertheless, we have considered those questions and conclude that they are without merit and that discussion of them is not justified.

After a careful review of the record on appeal, the addendum thereto, the decision of the Court of Appeals and the briefs filed in this court, we hold that defendant received a fair trial, free from prejudicial error.

The decision of the Court of Appeals is affirmed.

Defendant's motion for appropriate relief is dismissed.

NOTES

[1] "The Supreme Court shall have exclusive authority to make rules of procedure and practice for the Appellate Division ...." N.C. Constitution, Art. IV, Sec. 13(2).