State v. Alexander ( 2014 )


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  • An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-580
    NORTH CAROLINA COURT OF APPEALS
    Filed: 18 February 2014
    STATE OF NORTH CAROLINA
    v.                                         Mecklenburg    County
    Nos. 12 CRS    17112
    TERRANCE L. ALEXANDER,                                 12 CRS    203042
    Defendant.                                   12 CRS    203044
    Appeal by defendant from judgment entered 29 November 2012
    by    Judge    Anna    Mills    Wagoner     in    Mecklenburg      County      Superior
    Court.      Heard in the Court of Appeals 24 October 2013.
    Attorney General Roy Cooper, by Assistant Attorney General
    Richard A. Graham, for the State.
    Richard J. Costanza for defendant-appellant.
    GEER, Judge.
    Defendant       Terrance        L.   Alexander          appeals    from     his
    convictions       of   felony     breaking       and   entering,     larceny     after
    breaking and entering, and being a habitual felon.                        On appeal,
    defendant primarily argues that the trial court erred in denying
    his    motion    to    dismiss    because        the   State    failed    to   present
    substantial evidence that defendant was the perpetrator of the
    charged       offenses.        Based   on   (1)    the   State's     evidence      that
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    defendant's      palm    print       was   found    at    the    entry    point    of   the
    breaking and entering, which was a dislodged sliding screen door
    leading to the victim's second floor apartment balcony and (2)
    the victim's testimony that defendant had never been permitted
    access inside his apartment beyond the very front entrance and
    that defendant had never been on the victim's balcony, we hold
    that    the    State    presented      substantial        evidence       that    defendant
    committed the charged offenses, and the trial court, therefore,
    properly denied defendant's motion to dismiss.
    Facts
    The State's evidence tended to show the following facts.
    Hassan Nelson lived in a second floor apartment in Charlotte,
    North    Carolina.        On     14    January      2012,       Mr.   Nelson     left   his
    apartment for a trip out of town, returning two days later on 16
    January       2012.     Upon     driving       into      the    parking    lot    of     his
    apartment       building,      Mr.    Nelson       saw   and     briefly    spoke       with
    defendant who was a neighbor living in an apartment on the first
    floor of the building.
    When Mr. Nelson reached his own apartment, he found that
    his front door was open, and his apartment "had been broken
    into."        Mr. Nelson had left the sliding glass door leading to
    his second floor balcony locked, but the door had been pried
    open, damaging the bar used to secure the door.                             The outdoor
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    sliding screen had been taken off its track and set to the side
    of the door.          Mr. Nelson's closet was "trashed," his nightstand
    drawers had been opened, and Mr. Nelson's safe and watch were
    missing.        The stolen safe contained tax papers, the title to Mr.
    Nelson's truck, a ring, and $1,800.00 in cash.
    Mr. Nelson called the police, and Officer Stephen Blackwell
    of   the    Charlotte-Mecklenburg          Police      Department      responded       and
    determined the sliding glass door to be the point of entry.
    Another officer collected finger and palm prints from the metal
    frame      of   the    sliding    screen    door    that    had      been   dislodged.
    Subsequent latent fingerprint examination revealed that the palm
    print taken from the metal frame of the screen door matched
    defendant's palm print.
    Officer Blackwell canvassed the apartment building, telling
    residents there had been a burglary and asking whether residents
    had seen anything unusual in the past few days.                       While doing so,
    he spoke to defendant, and defendant stated he had not seen
    anything unusual.
    Prior      to    the   break-in,     Mr.     Nelson      and    defendant       were
    acquainted.           Defendant   had    sold    Mr.    Nelson       DVDs   on   several
    occasions, and Mr. Nelson had once showed defendant a pair of
    binoculars.           Although    defendant      had    been    "probably        a   foot"
    inside the front door of Mr. Nelson's apartment prior to the
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    break-in, defendant had never been further into the apartment
    and had never been on the balcony.              Mr. Nelson did not give
    defendant permission to enter his apartment during the period
    between 14 to 16 January 2012.
    On   9    April   2012,   defendant   was    indicted    for    felonious
    breaking and entering, larceny after breaking and entering, and
    being a habitual felon.        Defendant did not present evidence at
    trial.   The jury found defendant guilty of felonious breaking
    and entering and larceny after breaking and entering.               Defendant
    then pled guilty to being a habitual felon.              The trial court
    consolidated defendant's convictions into a single judgment and
    sentenced defendant to a presumptive-range term of 78 to 106
    months imprisonment.      Defendant appeared in open court the day
    after his trial ended and gave oral notice of appeal.
    Discussion
    As   an    initial    matter,   we    must     address   this     Court's
    jurisdiction over defendant's appeal.            Defendant failed to give
    oral notice of appeal at trial and failed to file a written
    notice of appeal, the only two modes of appeal available under
    Rule 4 of the Rules of Appellate Procedure.           See State v. Oates,
    
    366 N.C. 264
    , 268, 
    732 S.E.2d 571
    , 574 (2012) (explaining Rule 4
    requires either "oral notice of appeal, but only if given at the
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    time of trial or . . . of the pretrial hearing," or filed,
    written notice of appeal).
    Although defendant attempted to give oral notice of appeal
    in open court the day after his trial ended, that notice was not
    effective       and     defendant         has     failed      to   timely     appeal      the
    judgment.       
    Id.
         We nonetheless elect to deem defendant's brief a
    petition for writ of certiorari, and we exercise our discretion
    to     grant    the     petition          in    order    to    reach    the      merits   of
    defendant's         appeal.         See    N.C.R.      App.   P.   21(a)(1)      (providing
    "writ of certiorari may be issued in appropriate circumstances"
    when "right to prosecute an appeal has been lost by failure to
    take timely action"); State v. May, 
    207 N.C. App. 260
    , 262, 
    700 S.E.2d 42
    , 44 (2010) (electing to "treat defendant's brief as a
    petition for writ of certiorari and allow it for the purpose of
    considering his contentions upon their merits").
    I
    Defendant       first        argues      that    the   trial    court      erred    in
    denying his motion to continue because his trial counsel had
    inadequate time to prepare for trial under the circumstances
    and,    with    more        time,    defense     counsel      could    have      more   fully
    investigated the case and presented a better defense.                             Defendant
    contends that the trial court's denial of his motion to continue
    resulted       in     the     denial      of    defendant's        right    to    effective
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    assistance of counsel guaranteed by the Sixth and Fourteenth
    Amendments      to   the   United     States      Constitution        and   Article    I,
    Sections 19 and 23 of the North Carolina Constitution.
    At     roughly     2:00   p.m.     on    Monday,     26    November       2012,   the
    prosecutor indicated that he intended to call defendant's case
    for trial.      One of defendant's trial counsel1 stated that he was
    "not making a motion to continue" because defendant had asked
    him not to do so, but counsel wanted to note for the record that
    he discussed the case with defendant for the first time that
    morning.     Counsel explained that he had attempted to meet with
    defendant    the     previous    week       but   the   meeting       did   not   occur.
    Counsel then stated: "I just would say for the Court that I have
    a lot of experience trying property cases in particular.                              This
    is a property felony case.               And I feel confident that I can
    represent and defend [defendant] expertly . . . ."
    The trial court then asked defendant whether it was "all
    right"   with    defendant      for   the     trial     to    begin    that    day,   and
    defendant stated that beginning trial that day "sounded like the
    1
    Defendant was represented by two attorneys at trial: Jason
    St. Aubin of the Mecklenburg County Public Defender's Office and
    Leslie Cockrell, apparently also with the Public Defender's
    Office. Mr. St. Aubin appears to have been defendant's primary
    attorney, and he made all of the relevant statements to the
    trial court regarding defendant's motion to continue.    Mr. St.
    Aubin presented defendant's closing argument and cross-examined
    five of the State's six witnesses.           Ms. Cockrell gave
    defendant's opening statement and cross-examined one of the
    State's six witnesses.
    -7-
    best" of the "possible choices" he had.               Defendant elaborated
    that he believed that because he had already failed to meet with
    his attorney, moving to continue could result in defendant being
    placed   in    jail.     Defense      counsel   clarified    he    had    informed
    defendant that "it's always a possibility" that when "a case is
    continued because       somebody hasn't had a chance to meet with
    their attorney, . . . if the judge feels strongly that they need
    added incentive to meet with their attorney that they could be
    placed in custody for a period of time in order for that to
    happen."
    The       trial    court   then     asked   defendant,        "Do    you   feel
    competent [sic] that your lawyer can represent your interests
    well?"     Defendant responded, "As confident as I can be, ma'am."
    The trial court then held an unrecorded bench conference, after
    which the court stated, "If we do begin with this, the State
    wants to call it tomorrow . . . ."
    After speaking further with defendant, defense counsel then
    moved for a continuance.           As the basis for his motion, counsel
    stated that he was assigned defendant's case on 11 October 2012
    and received the file on 12 or 13 October 2012.               Counsel further
    stated that at the same time he was assigned defendant's case,
    he was assigned 40 habitual felon cases, and counsel spent the
    month of October addressing matters in the other cases.                    Counsel
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    explained that he had finished the work on the other habitual
    felon     cases    during        the    first      week        of     November          2012,
    "approximately      two    weeks"       prior     to   26      November         2012,    and
    attempted to contact defendant at that time but "did not have
    any success."
    Counsel       further       explained       that      he        then       successfully
    contacted defendant "this past Monday," 19 November 2012, and
    scheduled    an   afternoon       meeting     with     defendant          at    the   Public
    Defender's    Office      on    Tuesday,     20   November          2012.         Defendant
    failed to attend that meeting.                  Counsel called defendant the
    following morning and told defendant to either meet him at the
    Public Defender's Office that Wednesday, 21 November 2012, or
    else defendant would need to be present in court for calendar
    call the following Monday morning, 26 November 2012.                            Because it
    was Thanksgiving week, the Public Defender's Office was closed
    on Thursday and Friday.           Defendant appeared for court on Monday
    morning, 26 November 2012, and counsel discussed the case with
    defendant that morning for the first time.
    Counsel       then    advised      the   trial     court:        "I    have   reviewed
    [defendant's] file.            I have reviewed all the discovery in this
    matter.     I feel personally that I'm ready to handle the case.
    In all candor to the Court, this is a case that I can go to
    trial and proceed to trial on, but I understand my client's
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    hesitancy, especially because he's facing in the neighborhood of
    close to -- I believe it could be up to 160 months if both cases
    are habitual and both are back to back.                So understanding that
    that's a great magnitude and a great deal of time, juxtaposing
    that with the fact that we just met, that would be the concern
    that I have.             But I just would say for the Court and for the
    district attorney that I told them that I feel I could -- if my
    motion is denied, I am ready to try this case."2
    The       court   then   denied   defendant's   motion,   reasoning    (1)
    that       "it    appears   that   [defendant's]   having   no   contact     with
    [counsel] is perhaps of his own doing, he could have come in
    last week to see you at your request[,]" and (2) "[t]he State
    has advised the Court that it will not begin evidence until
    tomorrow, so that would give you some time to meet with him
    later this afternoon and over tonight, and I think that should
    get everybody up to speed."               The parties then engaged in jury
    selection for the remainder of the day and for several hours the
    next morning, until the jury was impanelled at roughly 11:00
    a.m. and the trial began.
    As an initial matter, defendant contends his constitutional
    argument is preserved for appeal since defense counsel "told the
    2
    The record does not appear to contain any information
    regarding the preparation of defendant's other attorney, Ms.
    Cockrell, for trial.
    -10-
    trial court he just met his client," "addressed his workload,"
    and "voiced his confidence level about proceeding."                               However,
    defense counsel's motion to continue was based on the fact that
    counsel     had     just    met     defendant       earlier       that   day    and    that
    defendant faced a lengthy sentence.                        Despite having just met
    defendant that morning, counsel repeatedly asserted that he was
    fully prepared to effectively represent defendant.                            Under these
    circumstances,        we    cannot    conclude        that    the    trial     court    was
    fairly presented with the question whether denial of defendant's
    motion to continue would violate defendant's right to effective
    assistance of counsel.               Defendant's constitutional argument is
    not, therefore, properly preserved for appeal.                           See State v.
    Braxton,      
    352 N.C. 158
    ,    173,     
    531 S.E.2d 428
    ,   436-37      (2000)
    ("Constitutional questions 'not raised and passed upon in the
    trial   court       will    not    ordinarily        be    considered     on    appeal.'"
    (quoting State v. Hunter, 
    305 N.C. 106
    , 112, 
    286 S.E.2d 535
    , 539
    (1982))).
    Even    assuming           defendant     had        sufficiently        raised      a
    constitutional       argument       below,     defendant       argued    to    the    trial
    court   a     different      theory     in    support        of    his   motion      for   a
    continuance than that argued on appeal.                           At trial, defendant
    asked for a continuance because counsel and defendant had only
    just    met    and     defendant       faced     a        considerable    sentence         if
    -11-
    convicted.     On appeal, however, defendant argues that the trial
    court   should    have    granted      his    motion       to   continue      to   allow
    defendant more time to investigate the case, including time to
    interview Mr. Nelson and to develop a strategy to "properly
    attack" the State's expert fingerprint evidence "in light of
    scientific     advances,"    such      as     those    outlined      in   a    National
    Academy of Science report cited in defendant's brief.
    "Our   Supreme     Court   'has       long    held    that   where      a    theory
    argued on appeal was not raised before the trial court, the law
    does not permit parties to swap horses between courts in order
    to get a better mount' in the appellate courts."                              State v.
    Holliman, 
    155 N.C. App. 120
    , 123, 
    573 S.E.2d 682
    , 685 (2002)
    (quoting State v. Sharpe, 
    344 N.C. 190
    , 194, 
    473 S.E.2d 3
    , 5–6
    (1996)).       Here,    defendant      did    not     ask   the    trial      court   to
    continue his case to allow him more time to investigate and to
    develop his defense to the State's expert fingerprint evidence.
    Because the arguments made on appeal were not preserved at the
    trial level, we do not address them.
    II
    Defendant next argues that the trial court erred in denying
    his   motion     to    dismiss   the    charges       of    felony    breaking        and
    entering and larceny after breaking and entering.                             Defendant
    contends that the only evidence tending to show he committed the
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    crimes was evidence of his palm print on the frame of the second
    floor balcony screen door, which, defendant argues, the State
    did not sufficiently show could only have been impressed at the
    time the crimes were committed.
    "This Court reviews the trial court's denial of a motion to
    dismiss de novo."          State v. Smith, 
    186 N.C. App. 57
    , 62, 
    650 S.E.2d 29
    , 33 (2007).            "'Upon defendant's motion for dismissal,
    the    question    for   the     Court    is     whether    there     is   substantial
    evidence (1) of each essential element of the offense charged,
    or of a lesser offense included therein, and (2) of defendant's
    being the perpetrator of such offense.                      If so, the motion is
    properly denied.'"         State v. Fritsch, 
    351 N.C. 373
    , 378, 
    526 S.E.2d 451
    , 455 (2000) (quoting State v. Barnes, 
    334 N.C. 67
    ,
    75, 
    430 S.E.2d 914
    , 918 (1993)).                 "Substantial evidence is such
    relevant evidence as a reasonable mind might accept as adequate
    to support a conclusion."               State v. Smith, 
    300 N.C. 71
    , 78-79,
    
    265 S.E.2d 164
    , 169 (1980).
    In   this   case,        the    State's     evidence      tending       to    show
    defendant was the perpetrator consisted primarily of the fact
    that    defendant's      palm    print    was     found    on   the    frame    of    the
    sliding screen door that had been removed from its track and
    placed on the second floor balcony of Mr. Nelson's apartment.
    "Fingerprint       evidence,          standing     alone,       is    sufficient       to
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    withstand a motion for nonsuit only if there is 'substantial
    evidence of circumstances from which the jury can find that the
    fingerprints could only have been impressed at the time the
    crime was committed.'"       State v. Irick, 
    291 N.C. 480
    , 491-92,
    
    231 S.E.2d 833
    , 841 (1977) (quoting State v. Miller, 
    289 N.C. 1
    ,
    4, 
    220 S.E.2d 572
    , 574 (1975)).      "Circumstances tending to show
    that a fingerprint lifted at the crime scene could only have
    been impressed at the time the crime was committed include . . .
    statements by prosecuting witnesses that they had never seen the
    defendant before or given him permission to enter the premises .
    . . ."   Id. at 492, 
    231 S.E.2d at 841
    .
    In this case, Mr. Nelson testified that although he was
    acquainted with defendant, defendant had never been more than a
    foot inside the doorway of Mr. Nelson's apartment, and had never
    been on the balcony.        The State's evidence further tended to
    show that the metal screen door was removed by the perpetrator
    in order to gain entry to the house and was located on a second
    floor balcony that was not generally accessible to the public.
    This evidence constituted substantial evidence of circumstances
    from which the jury could find that defendant's palm print could
    only have been impressed at the time the crimes were committed.
    See State v. Foster, 
    282 N.C. 189
    , 198, 
    192 S.E.2d 320
    , 326
    (1972)   (holding   State    presented   substantial   evidence   that
    -14-
    defendant's fingerprint found on flowerpot inside victims' house
    could only have been impressed at time of crime when victims
    "testified they did not know defendant and had never given him
    permission   to    enter   their    home,"   defendant    testified    he   had
    never been inside victims' house, and flowerpot had been inside
    house for three years and was frequently washed).
    Defendant nonetheless cites State v. Bass, 
    303 N.C. 267
    ,
    
    278 S.E.2d 209
     (1981), and State v. Gilmore, 
    142 N.C. App. 465
    ,
    
    542 S.E.2d 694
     (2001), in support of his argument.               However, in
    those cases there was evidence that the defendants could have
    left the fingerprints at the respective crime scenes at times
    other than during commission of the charged offenses.              See Bass,
    303 N.C. at 272-73, 
    278 S.E.2d at 213
     (holding State did not
    present substantial evidence defendant's prints on window screen
    of house could only have been impressed when charged offense
    committed because defendant testified he broke into same house,
    through relevant window, three or four weeks prior to charged
    offense   and     committed   a    larceny   at   that   time,   and   State's
    rebuttal evidence supported defendant's testimony); Gilmore, 142
    N.C. App. at 470, 
    542 S.E.2d at 698
     (holding State did not
    present substantial evidence that defendant's print on piece of
    glass from      broken   store window, which was located on ground
    outside store, was impressed at time of commission of crime
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    since     outside    portion     of   window    was       accessible    to   public,
    officer who lifted print did not determine whether print was
    made on inside or outside portion of window glass, and State
    presented evidence that defendant was a customer in store near
    or   on   day   of    break-in).      Bass     and    Gilmore    are,    therefore,
    distinguishable.
    We hold that the State's palm print evidence, along with
    the substantial evidence that the palm print could only have
    been impressed at the time of the commission of the charged
    offenses, constituted substantial evidence that defendant was
    the perpetrator of the breaking and entering and larceny after
    breaking and entering offenses.               Consequently, the trial court
    did not err in denying defendant's motion to dismiss.
    III
    Finally,       defendant    argues     that    he    received     ineffective
    assistance of counsel ("IAC") when his trial counsel (1) argued
    a certain theory of the case during the opening statement but
    then failed to present evidence supporting that theory of the
    case and appeared to adopt a different theory mid-trial and (2)
    failed to move for a mistrial when the victim, Mr. Nelson, gave
    previously      undisclosed      testimony      at    trial     that    materially
    conflicted with the theory of the case presented by defense
    counsel during defendant's opening statement.
    -16-
    In order to prevail on an IAC claim,
    "[f]irst, the defendant must show that
    counsel's performance was deficient.     This
    requires showing that counsel made errors so
    serious that counsel was not functioning as
    the 'counsel' guaranteed the defendant by
    the Sixth Amendment.   Second, the defendant
    must show that the deficient performance
    prejudiced the defense.       This requires
    showing   that  counsel's  errors   were   so
    serious as to deprive the defendant of a
    fair   trial,  a   trial  whose   result   is
    reliable."
    State v. Braswell, 
    312 N.C. 553
    , 562, 
    324 S.E.2d 241
    , 248 (1985)
    (emphasis omitted) (quoting Strickland v. Washington, 
    466 U.S. 668
    , 687, 
    80 L. Ed. 2d 674
    , 693, 
    104 S. Ct. 2052
    , 2064 (1984)).
    The North Carolina Supreme Court has held that
    ineffective assistance of counsel claims
    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.    Thus, when this Court
    reviews ineffective assistance of counsel
    claims on direct appeal and determines that
    they have been brought prematurely, we
    dismiss those claims without prejudice,
    allowing defendant to bring them pursuant to
    a subsequent motion for appropriate relief
    in the trial court.
    State v. Thompson, 
    359 N.C. 77
    , 122-23, 
    604 S.E.2d 850
    , 881
    (2004) (internal citation and quotation marks omitted).
    -17-
    The    United    States   Supreme    Court   has    explained   more
    specifically why IAC claims should rarely be raised on direct
    appeal:
    When an ineffective-assistance claim is
    brought on direct appeal, appellate counsel
    and the court must proceed on a trial record
    not developed precisely for the object of
    litigating or preserving the claim and thus
    often incomplete or inadequate for this
    purpose. . . .    The evidence introduced at
    trial . . . will be devoted to issues of
    guilt or innocence, and the resulting record
    in many cases will not disclose the facts
    necessary to decide either prong of the
    Strickland analysis.    If the alleged error
    is one of commission, the record may reflect
    the action taken by counsel but not the
    reasons for it.     The appellate court may
    have no way of knowing whether a seemingly
    unusual or misguided action by counsel had a
    sound strategic motive or was taken because
    the counsel's alternatives were even worse.
    . . .     The trial record may contain no
    evidence of alleged errors of omission, much
    less the reasons underlying them. . . .
    Without   additional   factual  development,
    moreover, an appellate court may not be able
    to ascertain whether the alleged error was
    prejudicial.
    Massaro v. United States, 
    538 U.S. 500
    , 504–05, 
    155 L. Ed. 2d 714
    , 720–21, 
    123 S. Ct. 1690
    , 1694 (2003).             In this case, we
    cannot determine from the record either that defense counsel
    acted unreasonably or that counsel's actions or omissions had a
    probable impact on the verdict.
    With   respect    to   defendant's   argument   that   his   counsel
    failed to present evidence in support of the theory presented in
    -18-
    defendant's         opening     statement,        the     record       reveals    that      the
    defense's opening statement was consistent with an incriminating
    recorded statement made by defendant.                      The State in its opening
    statement     had     specifically        promised        to    present    that    recorded
    statement to the jury.
    Subsequently,          however,       Mr.     Nelson       testified    in    a    manner
    that negated the defense theory.                         It is undisputed that the
    State was unaware that Mr. Nelson would testify in that manner.
    Then,   the    State      elected      not   to     present      any    evidence       at   all
    regarding defendant's recorded statement.
    Given      Mr.     Nelson's        testimony     and       the   State's     unexpected
    election      not    to   offer     evidence        of    defendant's      incriminating
    statements, we cannot conclude that defense counsel must have
    acted without any strategic basis when counsel decided not to
    present evidence of defendant's explanation for his presence in
    the apartment.         Since the State had not relied upon the recorded
    statement,      defense       counsel     would      have      been     forced    to    offer
    defendant's own testimony, which would have opened the door to
    the jury's hearing about defendant's four prior breaking and
    entering convictions, a possession of stolen goods conviction,
    and a common law robbery conviction.
    Defense counsel may well have decided that, in light of the
    State's    decision       not     to    present      the       incriminating       recorded
    -19-
    statement by defendant, it was better to lose some credibility
    with the jury by not following up on the promises made in the
    defense's      opening       statement      than    to        potentially      disclose
    defendant's prior convictions to the jury.                      Defense counsel was
    also   able,    in    the     closing     argument,      to    attack    the    State's
    failure to present that recorded statement and another pretrial
    statement by defendant, an argument that likely would have been
    unavailable had defendant elected to present evidence consistent
    with the opening statement.
    Similarly, we cannot conclude on the basis of this record
    that defendant received IAC because his counsel failed to move
    for a mistrial.            We do not agree with appellate counsel that
    trial counsel could have had no strategic reason for not moving
    for a mistrial.           Nor can we determine, on this record, given the
    unexpected decision of the State to not use defendant's pre-
    trial statements, that the failure to move for a mistrial was
    sufficiently        prejudicial      to     warrant       a      finding       of   IAC.
    Consequently,        we    dismiss   defendant's         IAC     arguments      without
    prejudice      to    defendant's        asserting     them      in   a     motion   for
    appropriate relief.
    No error.
    Judges STEPHENS and ERVIN concur.
    Report per Rule 30(e).