State v. Vazquez ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1257
NORTH CAROLINA COURT OF APPEALS
Filed: 1 July 2014
STATE OF NORTH CAROLINA
Mecklenburg County
v.
Nos. 09 CRS 246322, 250051
ANGEL BROWN VAZQUEZ
Appeal by defendant from judgment entered 16 October 2012
by Judge Eric L. Levinson in Mecklenburg County Superior Court.
Heard in the Court of Appeals 19 March 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Martin T. McCracken, for the State.
Guy J. Loranger for Defendant.
ERVIN, Judge.
Defendant Angel Brown Vazquez appeals from a judgment
sentencing him to a term of 15 to 18 months imprisonment
stemming from convictions for assault inflicting serious bodily
injury and carrying a concealed weapon. On appeal, Defendant
contends that the trial court erred by denying his motion to
suppress evidence seized during the search of his book bag
conducted by a school official and that his trial counsel
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provided him with constitutionally deficient representation by
failing to renew his motion to sever the trial of the two
charges that had been lodged against him before the conclusion
of all of the evidence. After careful consideration of
Defendant’s challenges to the trial court’s judgment in light of
the record and the applicable law, we conclude that the trial
court’s judgment should remain undisturbed.
I. Factual Background
A. Substantive Facts
1. State’s Evidence
Carlos Grant, an assistant principal at Myers Park High
School, was outside the cafeteria on the morning of 22 September
2009. At approximately 7:15 a.m., which was before the first
class of the day was scheduled to begin, Mr. Grant noticed that
a large number of students were moving toward a particular area,
an event that usually signaled that something inappropriate was
happening.
As Mr. Grant and other staff members arrived at the
location toward which the students were heading, they observed
Jynae Brown involved in a heated argument with Tamara Andrews.
According to Mr. Grant, Ms. Brown and Ms. Andrews were screaming
profanities at each other and had positioned themselves as if
they were about to fight. A crowd consisting of approximately
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50 students, including two of Ms. Andrews’ sisters, had gathered
around Ms. Brown and Ms. Andrews. After arriving at the scene
of the confrontation, Mr. Grant grabbed Ms. Andrews by the arm
and led her away. In addition, Mr. Grant told Ms. Andrews’
sisters to leave and accompanied all three of the young women
towards the office.
In the meantime, Ms. Brown was continuing to act in an
aggressive manner. For that reason, Steven Blalock, a uniformed
school resource officer, approached Ms. Brown and stretched out
his arms for the purpose of restraining her. As Ms. Brown
struggled, yelled profanities, and attempted to continue her
confrontation with Ms. Andrews, Officer Blalock grabbed her from
behind with both his arms in order to obtain better control over
her activities. After initially failing to recognize the
individual who was attempting to restrain her, Ms. Brown
eventually turned, realized that Officer Blalock was restraining
her, cursed at him, and told him to take his hands off of her
body.
As Officer Blalock repeated his instruction that Ms. Brown
should stop resisting his efforts to bring her under control,
Ms. Brown persisted in her efforts to escape from his restraint.
At that point, Matthew Han, a school security associate, drove
up in a John Deere Gator all-terrain vehicle. After telling Ms.
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Brown that she was under arrest, Officer Blalock used his weight
to pull Ms. Brown to the ground in order to handcuff her. As
Officer Blalock attempted to place Ms. Brown in handcuffs, Mr.
Han held Ms. Brown’s legs down.
John Robbins, another security associate who was wearing a
school security uniform consisting of a light blue button-down
shirt, black pants, and a badge, knelt next to Officer Blalock
for the purpose of attempting to assist him after observing that
Ms. Brown was reaching towards Officer Blalock and that her hand
had neared his weapon. Although she was upset during the time
that she was on the ground, Ms. Brown never called for help.
In spite of the fact that Officer Blalock had instructed
Ms. Brown to stop resisting, she did not comply with that
request. After Ms. Brown dug her nails into Officer Blalock’s
arm, he cursed at her. Eventually, Officer Blalock handcuffed
Ms. Brown and believed that he was gaining control over the
situation. At that point, however, Defendant, who is Ms.
Brown’s brother, quickly emerged from the crowd and punched Mr.
Robbins in his face using a hand on which he was wearing a ring.
After Defendant hit him, Mr. Robbins fell back in a stunned
condition and attempted to collect himself and find his glasses.
As a result of the blow that he received from Defendant, Mr.
Robbins suffered fractured facial bones; underwent a number of
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surgical procedures, including the placement of two titanium
plates in his face; and remained under medical treatment for a
year.
After Defendant struck Mr. Robbins, Jeffrey Kraftson, a
teacher at Myers Park who was attempting to help control the
surrounding crowd, approached Defendant for the purpose of
restraining him. After helping Mr. Kraftson bring Defendant
under his control, Officer Blalock called for assistance because
he had used the only set of handcuffs in his possession for the
purpose of restraining Ms. Brown. After Defendant was taken to
the ground, he began to calm down.
Jason Kline, another assistant principal at Myers Park,
arrived after Defendant and his sister had already been placed
on the ground and helped to disperse the crowd. A number of
book bags and jackets that had been left in the area in which
the assault upon Mr. Robbins had occurred were placed in the
Gator and removed. After being informed that one or more of the
book bags might belong to Defendant and Ms. Brown, Mr. Kline
opened one of the bags for the purpose of identifying its owner.
Upon looking inside Defendant’s book bag, Mr. Kline found
notebooks, books, and a screwdriver with cloth taped to the
handle.1 Mr. Kline became concerned about finding this
1
The screwdriver was discovered in a pocket near the opening
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particular screwdriver since the manner in which the handle was
wrapped suggested that the screwdriver might be used as a
weapon. As a result, Mr. Kline took the book bag to Officer
Blalock, who conducted a further search of the bag and
discovered two additional screwdrivers with handles that had
been wrapped in a manner similar to that in which the first had
been wrapped. Although some classes, such as auto shop, might
require students to use a screwdriver, Mr. Kline testified that
any needed screwdrivers or similar implements would have been
provided by the school. Mr. Grant, on the other hand, testified
that none of the courses taught at the school required the use
of a screwdriver.
2. Defendant’s Evidence
Ms. Brown and Defendant are brother and sister. On the
date of the incident in question, Ms. Brown argued with Ms.
Andrews and her sisters prior to the beginning of first period.
After Mr. Grant told the Andrews sisters to accompany him to the
office, he motioned for Ms. Brown to do likewise. As Ms. Brown
attempted to comply with this instruction, Officer Blalock
grabbed her, threw her to the ground, cursed at her, and
insulted her. Although Ms. Brown remained on the ground with
her hands behind her back for almost three minutes, no one ever
of the book bag.
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told her that she was under arrest. As a result of the fact
that she was experiencing pain, Ms. Brown told everyone to get
off of her and yelled that someone should help her.
Defendant, who was in the tenth grade, had seen his sister
arguing with Ms. Andrews earlier that morning. However, he
continued on his way to class after seeing that nothing was
going to come of the confrontation between the two young women.
However, a classmate got his attention, after which he dropped
his book bag in the math building and returned to the area in
which the confrontation had occurred. As he did so, Defendant
heard his sister screaming for help and telling people to get
off of her.
Although Defendant noticed that Officer Blalock was wearing
a police uniform and was familiar with the uniforms worn by the
school’s security personnel, Defendant’s attention was focused
on the fact that there were three men on top of his sister. As
a result, in order to protect his sister, Defendant approached
Mr. Robbins and hit him. At that point, Defendant was
restrained from behind and taken into custody.
B. Procedural History
On 22 September 2009, a magistrate’s order charging
Defendant with carrying a concealed weapon was issued. On 7
December 2009, the Mecklenburg County grand jury returned bills
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of indictment charging Defendant with carrying a concealed
weapon and assault inflicting serious bodily injury. On 27
September 2010, Defendant filed a motion seeking to have
evidence seized from his person and his book bag suppressed.
Although Plaintiff’s numerous violations of the relevant
provisions of the North Carolina Rules of Appellate Procedure
made our review of his challenges to the trial court’s order
unnecessarily difficult, we decline to dismiss Plaintiff’s
appeal given our strong preference for deciding cases on the
merits rather than on procedural grounds. On 25 September 2012,
the State filed a motion seeking to have the offenses with which
Defendant had been charged joined for trial.
The charges against Defendant came on for trial before the
trial court and a jury at the 25 September 2012 criminal session
of the Mecklenburg County Superior Court. At the beginning of
the trial proceedings, the trial court held a hearing concerning
the issues raised by Defendant’s suppression motion and
announced that Defendant’s motion should be denied. In
addition, the trial court allowed the State’s joinder motion
over Defendant’s objection. On 1 October 2012, the jury
returned verdicts convicting Defendant of assault inflicting
serious bodily injury and carrying a concealed weapon. On 16
October 2012, the trial court consolidated Defendant’s
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convictions for judgment and ordered that Defendant be
imprisoned for a term of 15 to 18 months. Defendant noted an
appeal to this Court from the trial court’s judgment.
II. Legal Analysis
A. Motion to Suppress
In his first challenge to the trial court’s judgment,
Defendant contends that the trial court erred by denying his
motion to suppress the evidence that had been seized from his
person and his book bag and allowing the admission of evidence
concerning the screwdrivers that were discovered during the
search of his book bag. More specifically, Defendant argues
that Mr. Kline did not have any justification for searching his
book bag, thereby establishing that the screwdrivers were seized
in violation of his state and federal constitutional rights to
be free from unreasonable searches and seizures. We do not find
Defendant’s argument persuasive.
1. Standard of Review
Appellate review of a defendant’s challenge to the denial
of a suppression motion is “strictly limited to determining
whether the trial judge’s underlying findings of fact are
supported by competent evidence, in which event they are
conclusively binding on appeal, and whether those factual
findings in turn support the judge’s ultimate conclusions of
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law.” State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619
(1982). Findings of fact that have not been “challenged on
appeal . . . are deemed to be supported by competent evidence
and are binding on appeal.” State v. Roberson, 163 N.C. App.
129, 132, 592 S.E.2d 733, 735-36, disc. review denied, 358 N.C.
240, 594 S.E.2d 199 (2004). As a general proposition, a “judge
must set forth in the record his findings of facts and
conclusions of law” in ruling on the issues raised by the making
of a motion to suppress. N.C. Gen. Stat. § 15A-977(f).
However:
[i]f there is no material conflict in the
evidence on voir dire, it is not error to
admit the challenged evidence without making
specific findings of fact, although it is
always the better practice to find all facts
upon which the admissibility of the evidence
depends. In that event, the necessary
findings are implied from the admission of
the challenged evidence.
State v. Steen, 352 N.C. 227, 237, 536 S.E.2d 1, 7 (2000)
(citations omitted) (citing State v. Ladd, 308 N.C. 272, 278,
302 S.E.2d 164, 168-69 (1983); State v. Phillips, 300 N.C. 678,
685, 268 S.E.2d 452, 457 (1980); State v. Riddick, 291 N.C. 399,
408-409, 230 S.E.2d 506, 512-13 (1976); State v. Biggs, 289 N.C.
522, 530, 223 S.E.2d 371, 376 (1976); State v. Whitley, 288 N.C.
106, 110, 215 S.E.2d 568, 571 (1975)), cert. denied, 531 U.S.
1167, 121 S. Ct. 1131, 148 L. Ed. 2d 997 (2001). “The trial
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court’s conclusions of law . . . are fully reviewable on
appeal.” State v. Hughes, 353 N.C. 200, 208, 539 S.E.2d 625,
631 (2000).
2. Validity of the Trial Court’s Decision
According to Defendant, the fact that he had been
handcuffed and taken into custody at the time that his book bag
was searched precluded Mr. Kline from having the right to search
his book bag. More specifically, Defendant contends that, since
he could not have obtained access to the book bag and since
there was no evidence that he had utilized any sort of weapon
during his attack on Mr. Robbins, Mr. Kline had no valid basis
for searching his book bag and seizing the screwdrivers.
Although the record supports the factual predicate that
underlies Defendant’s argument, we are not persuaded that the
search of Defendant’s book bag and the seizure of the
screwdrivers violated his state and federal constitutional right
to be free from unreasonable searches and seizures.
According to well-established principles of Fourth
Amendment jurisprudence, “school officials need not obtain a
warrant before searching a student who is under their
authority.” N.J. v. T. L. O., 469 U.S. 325, 340, 105 S. Ct.
733, 742, 83 L. Ed. 2d 720, 734 (1985). In other words, an
analysis of the lawfulness of the search of a student or his
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property conducted by school officials on school premises “does
not require strict adherence to the requirement that searches be
based on probable cause to believe that the subject of the
search has violated or is violating the law”; instead, “the
legality of a search of a student should depend simply on the
reasonableness, under all the circumstances, of the search.”
Id. at 341, 105 S. Ct. at 742, 83 L. Ed. 2d at 734. In making
the required reasonableness determination, reviewing courts
should determine first, whether the search was justified at its
inception and second, whether the scope of the search that was
actually conducted was reasonably related to the initial
justification for the search in question. Id. at 341, 105 S.
Ct. at 742-43, 83 L. Ed. 2d at 734. “Under ordinary
circumstances, a search of a student by a teacher or other
school official will be ‘justified at its inception’ when there
are reasonable grounds for suspecting that the search will turn
up evidence that the student has violated or is violating either
the law or the rules of the school.” Id. at 341-42, 105 S. Ct.
at 743, 83 L. Ed. 2d at 734-35.
In his brief, Defendant places substantial reliance on the
language quoted in the preceding paragraph, arguing that school
officials had no reasonable basis for searching his book bag
given that the record did not reveal the existence of any
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connection between his assault on Mr. Robbins and the contents
of his book bag. Although Defendant is correct in noting the
absence of any connection between his assault upon Mr. Robbins
and the contents of his book bag, the argument that Defendant
has made in reliance upon that fact overlooks the undisputed
evidence that, instead of opening Defendant’s book bag in the
hope of finding something that could be used in prosecuting
Defendant for assaulting Mr. Robbins, Mr. Kline “opened one to
see whose it was.” We have no hesitation in concluding that Mr.
Kline acted reasonably given that a number of unidentified
jackets and book bags had been left on school property after the
incident, which occurred before a crowd of students, during
which one student assaulted a school security associate and two
students had been placed under arrest. Assuming, without
necessarily deciding, that Defendant had a reasonable
expectation of privacy in the book bag that he abandoned prior
to assaulting Mr. Robbins, school officials clearly had an
interest in identifying the owners of the jackets and book bags
that had been left behind in the aftermath of the incident in
question in order to ensure that these items were returned to
their rightful owners and to protect the property in the
interim. As a result, Mr. Kline did not act in an unreasonable
manner at the time that he opened Defendant’s book bag and
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discovered the presence of a screwdriver with an unusually
wrapped handle.
The result that we reach in this instance is similar to
that which we reached in State v. Francum, 39 N.C. App. 429,
430, 250 S.E.2d 705, 706 (1979), in which the defendant, who had
been involved in a serious motor vehicle accident, was
transported to the hospital. After arriving at the scene of the
accident, an officer opened a plastic bag and discovered the
presence of unlawful controlled substances. Id. at 430-31, 250
S.E.2d at 706. After noting that the officer did not have
probable cause to believe that the defendant had committed a
crime or that evidence of the defendant’s commission of a
criminal offense would be discovered in the plastic bag, we
concluded that a reasonableness standard should be utilized in
evaluating the validity of the defendant’s challenge to the
search of the bag and the seizure of the drugs, id. at 431-32,
250 S.E.2d at 706-07; analogized the officer’s decision to open
the plastic bag to an inventory search; and determined that the
officer acted reasonably in light of the fact that the “primary
justification for such a limited intrusion by the police is that
of safeguarding the individual’s property from loss or theft,”
the fact that “there ha[d] been no contention that the procedure
was a pretext for concealing an investigatory police motive,”
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and the fact that “[i]t was reasonable for the officer to see
that the personal effects in the automobile were not lost and
were secured prior to the towing of the automobile.” Id. at
433-34, 250 S.E.2d at 708.
As was the case in Francum, the record contains no evidence
tending to suggest that Mr. Kline searched Defendant’s book bag
for the purpose of investigating the commission of a crime.
Instead, the undisputed record evidence indicates that Mr. Kline
opened Defendant’s book bag for the purpose of ascertaining the
identity of the owner and protecting the owner’s property. The
fact that Mr. Kline may have had reason to believe that
Defendant owned the book bag in question before opening it has
no bearing on the validity of Mr. Kline’s conduct given that he
was entitled to make the required ownership determination for
himself rather than being forced to rely on information provided
by others. In our view, Mr. Kline would have been acting
unreasonably in the event that he had allowed the book bags and
jackets found on the scene of the confrontation involving
Defendant, Ms. Brown, Ms. Andrews, Officer Blalock, and school
security personnel to remain lying on the ground in an
unprotected position rather than taking them into the possession
of school officials, opening them up for the purpose of ensuring
that the owners of the jackets and book bags in question had
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been correctly identified, and ensuring that the jackets and
book bags could be safely stored until they could be returned to
their rightful owners. As a result, we have no difficulty in
concluding that the opening of Defendant’s book bag, the
subsequent delivery of that book bag to Officer Blalock, and the
seizure of the screwdrivers from the book bag did not violate
Defendant’s right to be free from unreasonable searches and
seizures.
In seeking to persuade us to reach a different result,
Defendant argues, among other things, that the scope of the
search of his book bag was unreasonable given that Mr. Kline had
to dig through his book bag to find the screwdriver and that Mr.
Kline could have easily identified the owner of the book bag had
he contented himself with examining the numerous documents that
the book bag contained. We are not persuaded by Defendant’s
argument that the scope of the search of the book bag conducted
by Mr. Kline was an unreasonable one, however, given the
complete absence of any evidence tending to show that Mr. Kline
either rummaged through Defendant’s bag in search of contraband
or overlooked any identifying documents in advance of the
discovery of the screwdriver. On the contrary, Mr. Kline
testified that he “located [the screwdriver] almost immediately
after opening the bag.” As a result, given our inability to
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accept Defendant’s argument that Mr. Kline searched Defendant’s
book bag in an unreasonable manner, we hold that the trial court
did not err by denying Defendant’s suppression motion.
B. Ineffective Assistance of Counsel
Secondly, Defendant contends that his trial counsel
provided him with constitutionally deficient representation by
failing to renew his motion to sever the trial of the two
charges that had been lodged against him. More specifically,
Defendant contends that, had his trial counsel renewed his
severance motion, either that motion would have been allowed or
the trial court’s joinder motion would have been reversed on
appeal. Once again, we do not find Defendant’s argument
persuasive.
To establish ineffective assistance of
counsel, defendant must satisfy a two-prong
test . . . . Under this two-prong test, the
defendant must first show that counsel’s
performance fell below an objective standard
of reasonableness as defined by professional
norms. This means that defendant must show
that his attorney made errors so serious
that counsel was not functioning as the
“counsel” guaranteed the defendant by the
Sixth Amendment. Second, once defendant
satisfies the first prong, he must show that
the error committed was so serious that a
reasonable probability exists that the trial
result would have been different absent the
error.
State v. Lee, 348 N.C. 474, 491, 501 S.E.2d 334, 345 (1998)
(citations and quotation marks omitted) (citing Strickland v.
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Washington, 466 U.S. 668, 695, 104 S. Ct. 2052, 2068, 80 L. Ed.
2d 674, 698 (1984)) (quoting State v. Braswell, 312 N.C. 553,
562, 324 S.E.2d 241, 248 (1985)). As the United States Supreme
Court has stated, “a court need not determine whether counsel’s
performance was deficient before examining the prejudice
suffered by the defendant as a result of the alleged
deficiencies,” so that, “[i]f it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient
prejudice,” “that course should be followed.” Strickland, 466
U.S. at 697, 104 S. Ct. 2069, 80 L. Ed. 2d 699-700. As a result
of the fact that Defendant’s ineffective assistance claim hinges
on the assertion that his trial counsel provided him with
deficient representation by failing to renew his severance
motion, Defendant must demonstrate that, had his trial counsel
renewed his severance motion, the trial court would have been
required to sever the trial of the offenses that Defendant was
charged with having committed in order to obtain appellate
relief from the trial court’s judgment.2
2
According to well-established North Carolina law, an
ineffective assistance of counsel claim “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,” with any ineffective assistance claim having been
“prematurely asserted on direct appeal” to be dismissed “without
prejudice to the defendant’s right to reassert them during a
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“When [a] defendant objects to joinder or moves to sever,
the trial court must . . . determine whether the offenses are so
separate in time and place and so distinct in circumstances as
to render consolidation unjust and prejudicial.” State v.
White, 87 N.C. App. 311, 324, 361 S.E.2d 301, 308 (1987), aff’d
in part, rev’d in part on other grounds, 322 N.C. 770, 370
S.E.2d 390, (1988), cert. denied, 488 U.S. 958, 109 S. Ct. 399,
102 L. Ed. 2d 112 (1990). In making this determination:
a two-step analysis is required for all
joinder inquiries. First, the two offenses
must have some sort of transactional
connection. State v. Corbett, 309 N.C. 382,
387, 307 S.E.2d 139, 143 (1983). Whether
such a connection exists is a question of
law, fully reviewable on appeal. State v.
Holmes, 120 N.C. App. 54, 61, 460 S.E.2d
915, 920, disc. review denied, 342 N.C. 416,
465 S.E.2d 545 (1995). If such a connection
exists, consideration then must be given as
to “whether the accused can receive a fair
hearing on more than one charge at the same
trial,” i.e., whether consolidation “hinders
or deprives the accused of his ability to
present his defense.” State v. Silva, 304
N.C. 122, 126, 282 S.E.2d 449, 452 (1981).
This second part is addressed to the sound
discretion of the trial judge and is not
subsequent [motion for appropriate relief] proceeding.” State
v. Fair, 354 N.C. 131, 166-67, 557 S.E.2d 500, 524-25 (2001)
(citations omitted), cert. denied, 535 U.S. 1114, 122 S. Ct.
2332, 153 L. Ed. 2d 162 (2002). As a result of our belief that
the extent to which Defendant was prejudiced by the failure of
his trial counsel to renew his severance motion as required by
N.C. Gen. Stat. § 15A-927(a)(2) can be properly determined by
examining the record developed at trial, we will address the
merits of Defendant’s ineffective assistance of counsel claim in
this opinion.
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reviewable on appeal absent a manifest abuse
of that discretion. Holmes, 120 N.C. App.
at 62, 460 S.E.2d at 920.
State v. Montford, 137 N.C. App. 495, 498, 529 S.E.2d 247, 250,
cert denied, 353 N.C. 275, 546 S.E.2d 386 (2000). The factors
to be considered in determining whether a transactional
connection between two offenses exists “include: (1) the nature
of the offenses charged; (2) any commonality of facts between
the offenses; (3) the lapse of time between the offenses; and
(4) the unique circumstances of each case.” Id. at N.C. App.
498-99, 529 S.E.2d at 250.
According to N.C. Gen. Stat. § 15A-927(a)(1), “[a]
defendant’s motion for severance of offenses must be made before
trial.” “If a defendant’s pretrial motion for severance is
overruled, he may renew the motion on the same grounds before or
at the close of all the evidence”; however, “[a]ny right to
severance is waived by failure to renew the motion.” N.C. Gen.
Stat. § 15A-927(a)(2). As a result, by failing to renew his
severance motion at the conclusion of all of the evidence,
Defendant waived the right to challenge the denial of his
severance motion on appeal. State v. McDonald, 163 N.C. App.
458, 463-64, 593 S.E.2d 793, 797 (citing State v. Agubata, 92
N.C. App. 651, 660-61, 375 S.E.2d 702, 708 (1989)) (stating that
“[t]his Court has held that failure to renew a motion to sever
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as required by [N.C. Gen. Stat.] § 15A-927(a)(2) waives any
right to severance and that on appeal the Court is limited to
reviewing whether the trial court abused its discretion in
ordering joinder at the time of the trial court’s decision to
join”), disc. review denied, 358 N.C. 548, 599 S.E.2d 910(2004).
In his brief before this Court, Defendant argues that the
record does not show the existence of any transactional
connection between the two offenses with which he had been
charged sufficient to support the joinder of those offenses for
trial. Although the offenses that Defendant was charged with
committing are admittedly somewhat dissimilar, an analysis of
the other relevant factors demonstrates the existence of the
transactional connection necessary to permit joinder of the
assault inflicting serious bodily injury and carrying a
concealed weapon charges. Only a short period of time elapsed
between Defendant’s assault upon Mr. Robbins and the discovery
of the screwdrivers in Defendant’s book bag. In addition,
Defendant’s assault upon Mr. Robbins led to the search of his
book bag and the discovery of the screwdrivers in that location.
Had Defendant not assaulted Mr. Robbins, his book bag would have
never been discarded, found, and searched. In light of this
fact, we are at a loss to understand how the State could have
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explained the process that led to the discovery of the
screwdrivers in Defendant’s book bag without presenting evidence
concerning Defendant’s assault upon Mr. Robbins. As a result,
we have no hesitancy in concluding that the requisite
transactional connection existed between the two offenses with
which Defendant was charged to permit the joinder of those
offenses for trial.
In addition, we are not persuaded that the joinder of the
assault inflicting serious bodily injury charge with the
carrying a concealed weapon charge for trial raised a serious
question “as to ‘whether the accused [could have] receive[d] a
fair hearing on more than one charge at the same trial,’ i.e.,
whether consolidation ‘hinder[ed] or deprive[d] the accused of
his ability to present his defense.’” Montford, 137 N.C. App.
at 498, 529 S.E.2d at 250 (quoting Silva, 304 N.C. at 126, 282
S.E.2d at 452). In attempting to persuade us that the joinder
of the two charges unfairly hindered his defense and that a
renewed severance motion would have been allowed, Defendant
points to the State’s pretrial statement to the effect that it
intended to use the discovery of the screwdrivers to rebut any
evidence that Defendant presented, including his contention that
he lawfully acted in the defense of another at the time that he
assaulted Mr. Robbins. Assuming, without in any way concluding,
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that the State intended to use the discovery of the screwdrivers
to rebut Defendant’s contention that he acted in lawful defense
of another, we are unable to see how a decision to sever the
trial of the assault inflicting serious bodily injury and
carrying a concealed weapon charges would have had any impact on
the State’s ability to use the discovery of the screwdrivers to
rebut Defendant’s contention. Instead, the State’s ability to
use the evidence in question in the manner described in
Defendant’s brief would have been the same under the applicable
evidentiary principles regardless of the extent to which the two
charges at issue here were joined for trial or severed. As a
result, given that the record does not provide any basis for
believing that either the trial court’s original joinder
decision was incorrect or that anything occurred during the
course of Defendant’s trial that tends to suggest that a renewed
severance motion would have been successful, we conclude that
Defendant was not prejudiced by his trial counsel’s failure to
renew his severance motion as required by N.C. Gen. Stat. § 15A-
927(a)(2) and that he is not entitled to relief from the trial
court’s judgment based upon the ineffective assistance of
counsel claim asserted in his brief.
III. Conclusion
-24-
Thus, for the reasons set forth above, we conclude that
neither of Defendant’s challenges to the trial court’s judgment
have any merit. As a result, the trial court’s judgment should,
and thereby does, remain undisturbed.
NO ERROR.
Judges GEER and STEPHENS concur.
Report per Rule 30(e).