# State v. Reber

> Court of Appeals of North Carolina · October 1, 2024

URL: https://www.frixlaw.com/law-library/cases/10594502

## Case

- **Court:** Court of Appeals of North Carolina
- **Decided:** October 1, 2024
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA22-130-2

Filed 1 October 2024

Ashe County, Nos. 15 CRS 50792-96

STATE OF NORTH CAROLINA

v.

JOSHUA DAVID REBER

Appeal by Defendant from judgments entered 9 August 2021 by Judge Forrest

D. Bridges in Ashe County Superior Court. Originally heard in the Court of Appeals

on 19 October 2022, with opinion issued 16 May 2023 by a divided panel of this Court.

See State v. Reber, 289 N.C. App. 66, 887 S.E.2d 487 (2023), (“Reber I”). By plurality

opinion filed 23 May 2024, the Supreme Court of North Carolina reversed this Court’s

decision and remanded for consideration of the issues not previously addressed in

Reber I. See State v. Reber, 386 N.C. 153, 900 S.E.2d 781 (2024).

Attorney General Joshua H. Stein, by Special Deputy Attorney General
Margaret A. Force, for the State.

Daniel M. Blau, for the Defendant.

WOOD, Judge.

This case is before us on remand from the Supreme Court of North Carolina

for the sole purpose of considering Defendant’s two remaining arguments on appeal

not contemplated by this Court in Reber I. Namely, whether Defendant received
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Opinion of the Court

ineffective assistance of counsel when his attorney failed to move to suppress evidence

obtained from his cell phone pursuant to a search warrant; and whether the trial

court committed structural constitutional error by allowing four disqualified jurors

to serve on Defendant’s trial. After careful consideration of Defendant’s remaining

arguments, we conclude Defendant received a fair trial free from error.

I. Factual and Procedural Background

The factual background and history of this case are fully set forth in Reber I

and the Supreme Court opinion further summarized and addressed the facts relevant

to its holdings on the issues. State v. Reber, 289 N.C. App. 66, 887 S.E.2d 487 (2023),

rev’d and remanded, 386 N.C. 153, 900 S.E.2d 781 (2024). Accordingly, we now

consider only those facts pertinent to Defendant’s two remaining arguments on

appeal.

This case concerns the sexual abuse of a minor child, K.W.1, spanning many

years. The abuse was uncovered when K.W. informed her mother that Joshua Reber

(“Defendant”) had been regularly engaging in sexual acts with her. The sexual abuse

began when K.W. was eight years old and ended around her eleventh birthday in

2015. K.W. testified that for over three years most incidents occurred in private

locations or at nighttime, and included vaginal sex, digital penetration, and oral sex.

1 A pseudonym is used to protect the identity of the juvenile pursuant to N.C. R. App. P.

42(b).

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K.W. additionally testified that she communicated with Defendant on Facebook

Messenger and Snapchat, where they sent nude photos to one another.

Defendant was arrested on 4 November 2015 for several counts of sexual

offense with a child and rape of a child. Following his arrest, on 19 November 2015,

the investigating law enforcement officer obtained a search warrant for Defendant’s

phone. On 15 March 2016, Agent Anderson of the SBI conducted a forensic

examination of his cell phone. The information extracted from the phone indicated

that the phone had not been “activated” until May 2015, one month after the alleged

abuse stopped. Agent Anderson testified that various applications were installed on

the phone on 15 May 2015, which, in his training and experience, is consistent with

the activation of a new cell phone. Agent Anderson did not find evidence of nude

photograph exchanges or other communications between Defendant and K.W.

Rather, the data extraction contained thousands of text messages between Defendant

and his girlfriend at that time, Danielle. Agent Anderson further testified that an

attempt to conduct a forensic examination of K.W.’s device was unsuccessful due to

technical issues. Thus, the search of both Defendant’s and K.W.’s devices did not

render any evidence indicative of K.W. and Defendant’s relationship. Defendant’s

attorney did not file a motion to suppress the evidence discovered pursuant to the

search warrant.

Defendant came on for a jury trial during the 2 August 2021 criminal session

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of Ashe County Superior Court. At trial, Defendant testified on his own behalf,

denied ever engaging in any sexual activities with K.W., and denied exchanging nude

photos with K.W. Defendant further testified that he did not buy a new phone to hide

any previous communications between him and K.W. Additionally, he stated that he

had not used Snapchat during the period between 2012 and 2015 to communicate

with K.W. but may have downloaded the application on one occasion in 2015 to chat

with his girlfriend Danielle. On cross-examination, the State questioned Defendant

about his relationship with Danielle and certain text messages exchanged between

them. The first text message exchange introduced at trial concerned a prior sexual

encounter that had occurred between Defendant and Danielle while she was

intoxicated. The other text message exchange concerned their desire to meet at a

motel to engage in sexual activity. Defendant informed Danielle that he would have

to bring his daughter and ask her not to say anything about it to his grandparents

because they are religious and did not condone of sexual activity outside of marriage.

These text messages, discovered pursuant to the search warrant, were referenced

again during the prosecutor’s closing argument.

The jury was tasked with weighing K.W.’s detailed testimony against

Defendant’s blanket denial, as there were no witnesses or physical evidence of the

alleged abuse. Ultimately, on 9 August 2021, the jury found Defendant guilty of four

counts of rape of a child and six counts of sex offense with a child. The trial court

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consolidated the charges and Defendant was sentenced to two consecutive terms of

300 to 420 months of imprisonment. Defendant gave oral notice of appeal in open

court and filed a written notice of appeal on 13 August 2021.

In Reber I, Defendant argued before this Court that (1) the trial court

committed plain error by allowing the State to introduce into evidence the text

message exchanges between Defendant and Danielle; (2) the trial court erred by

failing to intervene ex mero motu in response to certain statements made by the State

during the prosecutor’s closing argument; (3) the search warrant to access

Defendant’s phone was deficient and Defendant received ineffective assistance of

counsel when his attorney failed to file a motion to suppress the evidence obtained

therein; and (4) the trial court committed structural constitutional error by allowing

multiple disqualified jurors to serve on Defendant’s trial. State v. Reber, 289 N.C.

App. 66, 74, 887 S.E.2d 487, 495 (2023). On 23 May 2024, a divided Supreme Court

issued an opinion which reversed this Court’s majority opinion and remanded with

instruction for consideration of Defendant’s remaining arguments on appeal. State

v. Reber, 386 N.C. at 166, 900 S.E.2d at 791 (2024).

II. Analysis

We now consider (1) whether Defendant received ineffective assistance of

counsel when his attorney failed to move to suppress the search warrant granting

access to Defendant’s cell phone records because it was not supported by probable

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cause; and (2) whether the trial court committed structural constitutional error when

it allowed four jurors, who were empaneled on a preceding case during the same

session of the court, to serve on Defendant’s trial.

A. Ineffective Assistance of Counsel

Whether a Defendant received ineffective assistance of counsel is reviewed de

novo on appeal. State v. Wilson, 236 N.C. App. 472, 475, 762 S.E.2d 894, 896 (2014)

(citation omitted). “[T]he Appellate Rules generally require that parties take some

action to preserve an issue for appeal. Exceptions exist, however, allowing a party to

raise an issue on appeal that was not first presented to the trial court.” State v.

Meadows, 371 N.C. 742, 746, 821 S.E.2d 402, 405 (2018) (citation omitted). Among

these exceptions is a claim for ineffective assistance of counsel, allowing a party to

assert this type of claim for the first time on appeal. “Generally, a claim of ineffective

assistance of counsel should be considered through a motion for appropriate relief

before the trial court in post-conviction proceedings and not on direct appeal.” State

v. Allen, 262 N.C. App. 284, 285, 821 S.E.2d 860, 861 (2018) (citation omitted). When

this Court reviews this type of claim on direct appeal, the claim “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.” State v. Fair, 354 N.C. 131,

166, 557 S.E.2d 500, 524 (2001) (citations omitted).

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To establish a claim for ineffective assistance of counsel, the defendant carries

the burden of satisfying a two-part test. State v. Braswell, 312 N.C. 553, 562, 324

S.E.2d 241, 248 (1985). This well-established test requires that

First, 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.

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). The first

prong is measured under an objective, reasonableness standard and requires the

defendant to “overcome the presumption that, under the circumstances, the

challenged action might be considered sound trial strategy.” State v. Stroud, 147 N.C.

App. 549, 555, 557 S.E.2d 544, 548 (2001) (cleaned up). “Counsel is given wide

latitude in matters of strategy, and the burden to show that counsel's performance

fell short of the required standard is a heavy one for defendant to bear.” State v.

Fletcher, 354 N.C. 455, 482, 555 S.E.2d 534, 551 (2001). Under the second prong,

establishing prejudice, the test asks “whether there is a ‘reasonable probability’ that,

absent the errors, the result of the proceeding would have been different.” Reber, 386

N.C. at 159, 900 S.E.2d at 787 (citation omitted). “A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” State v. Allen, 360

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N.C. 297, 316, 626 S.E.2d 271, 286 (2006) (cleaned up).

To assess whether Defendant received ineffective assistance of counsel when

his counsel failed to challenge the search warrant through a motion to suppress, we

first must determine whether the issuance of the warrant was lawful. See State v.

Hernandez, 899 S.E.2d 899, 913 (N.C. Ct. App. 2024) (“Had Defendant's trial counsel

objected to the [search warrant], the result of the proceeding would have been the

same. Thus, we can discern from the Record on appeal that Defendant was not

prejudiced . . . and he did not receive [ineffective assistance of counsel].”). Defendant

argues that the search warrant and supporting affidavit contain “multiple

deficiencies”, including failure to establish temporal proximity and failure to

establish probable cause.

“Pursuant to N.C. Gen. Stat. § 15A-244, an application for a search warrant

must contain a statement of probable cause and allegations of fact supporting the

statement of probable cause. The statements must be supported by one or more

affidavits particularly setting forth the facts and circumstances establishing probable

cause.” State v. Eddings, 280 N.C. App. 204, 209, 866 S.E.2d 499, 503 (2021) (cleaned

up). The supporting affidavit “is sufficient if it supplies reasonable cause to believe

that the proposed search for evidence probably will reveal the presence [of] . . . the

items sought and that those items will aid in the apprehension or conviction of the

offender.” State v. Arrington, 311 N.C. 633, 636, 319 S.E.2d 254, 256 (1984) (citation

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Opinion of the Court

omitted). In other words, “[t]he affidavit must establish a nexus between the objects

sought and the place to be searched.” State v. Parson, 250 N.C. App. 142, 152, 791

S.E.2d 528, 536 (2016) (citations omitted). Whether probable cause exists is viewed

under the “totality of the circumstances” test. Id. at 151, 791 S.E.2d at 536 (citation

omitted). The totality of the circumstances test requires a “common-sense decision

based on all the circumstances that there is a fair probability that contraband or

evidence of a crime will be found in a particular place.” State v. McCoy, 100 N.C. App.

574, 576, 397 S.E.2d 355, 357 (1990) (cleaned up).

To establish probable cause for the issuance of a search warrant, the

determination “is grounded in practical considerations” and “does not mean actual

and positive cause nor import absolute certainty.” State v. Steen, 352 N.C. 227, 243,

536 S.E.2d 1, 11 (2000) (cleaned up). Rather, “[a] magistrate may draw such

reasonable inferences as he will from the material supplied to him by applicants for

a warrant.” State v. Riggs, 328 N.C. 213, 221, 400 S.E.2d 429, 434 (1991) (cleaned up).

The issuing magistrate is tasked with “mak[ing] a practical, common-sense decision”

and “great deference should be paid to a magistrate’s determination of probable

cause.” State v. Dexter, 186 N.C. App. 587, 592, 651 S.E.2d 900, 904 (2007) (cleaned

up).

In the present case, the affidavit attached to the search warrant application

includes under “item to be searched”:

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Opinion of the Court

Verizon cell phone having cell number 828-514-1208 seized
from the property of inmate Joshua David Reber, currently
incarcerated in the Ashe County Detention Center, on
______________. The phone has remained in the custody of
Your Affiant since the seizure.

The affiant, Captain Gentry, indicated under “items to be seized”, that she sought

discovery of electronically stored information, such as telephone calls, text messages,

contact list, photographs, and billing information. Captain Gentry’s probable cause

statement, detailed her training, experience, and expertise as to child sexual abuse

cases, explaining that it is a “common practice” for one alleged with the commission

of this offense to use a cell phone to store evidence of criminal activity, such as the

exchanging of nude photographs or text messages about sexual acts. Further,

Captain Gentry explained,

Based on information provided hereafter, this Affiant
believes that probable cause exists to conclude that the
pertinent information may be found on the aforementioned
device, described earlier in this application. Specifically,
the alleged child victim has reported that the Defendant
Joshua David Reber did send nude photos to her using such
programs as SNAPCHAT via his cell phone. Defendant
Reber would also send text messages containing sexual
conduct involving the alleged victim and himself.

Ultimately, the warrant issued and the cell phone was searched, but the evidence

sought was not found. The search indicated that the phone did not contain data prior

to May 2015, one month after the alleged abuse stopped.

Defendant contends the search warrant application was deficient because (1)

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Opinion of the Court

it is not clear how or when the phone came into the officers’ possession; (2) there is

no time frame provided for when the illegal activity allegedly took place; and (3) there

is no indication that K.W. provided investigators with the phone number that

Defendant used to communicate with her, so it is impossible to confirm that the seized

phone was the same phone Defendant used to commit the alleged offense. Defendant

argues that, due to these errors, the warrant was unsupported by probable cause.

In considering Defendant’s argument, we note an issuing magistrate is

permitted to draw “reasonable inferences” from the warrant application. Riggs, 328

N.C. at 221, 400 S.E.2d at 434. As to Defendant’s first issue, Captain Gentry clearly

states how the cell phone came into the officers’ possession in the affidavit—it was

“seized from the property of inmate [Defendant], currently incarcerated in the Ashe

County Detention Center.” Thus, the magistrate could reasonably infer that the cell

phone was seized at the time of Defendant’s arrest. Second, although Defendant

correctly states that the affidavit does not include a time frame of when the alleged

illegal activity took place, it does indicate that this matter concerns an “on-going

investigation” and it is “common practice” to “store information of criminal activity”

on a cell phone. Further, it states that K.W. informed law enforcement that

Defendant sent nude photos of himself to her over snapchat and sent text messages

referencing sexual activity to her. Thus, the warrant application and affidavit

contained information sufficient for a magistrate judge to conclude Captain Gentry

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Opinion of the Court

sought information stored on Defendant’s cell phone related to K.W.’s statement. The

magistrate could reasonably infer that the “time frame” would be established by

evidence recovered from Defendant’s phone. Lastly, Defendant’s contention regarding

the impossibility of confirming, prior to the search, that Defendant used that

particular phone to communicate with K.W., lacks merit. Again, it is reasonable for

a magistrate to have inferred that the phone in Defendant’s possession at the time of

his arrest and incarceration was in fact the same phone used to contact K.W. and

evidence of the alleged crime would have potentially been stored on that cell phone.

Accordingly, these inferences are “grounded in practical considerations” and the

affidavit was not deficient for any of the three reasons raised by Defendant on appeal.

Steen, 352 N.C. at 243, 536 S.E.2d at 11.

This Court has held, “[p]robable cause cannot be shown, however, by affidavits

which are purely conclusory, stating only the affiant's or an informer's belief that

probable cause exists without detailing any of the underlying circumstances upon

which that belief is based.” State v. Rayfield, 231 N.C. App. 632, 651, 752 S.E.2d 745,

759 (2014) (cleaned up). An affidavit is not purely conclusory when it details “some

connection or nexus linking the [property] to illegal activity” and that “direct evidence

is not always necessary to establish probable cause.” State v. Bailey, 374 N.C. 332,

335-36, 841 S.E.2d 277, 280-81 (2020) (citation omitted). Here, Captain Gentry’s

affidavit established a connection linking Defendant’s cell phone to illegal, sexual

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Opinion of the Court

activity with K.W. The affidavit did not simply state Captain Gentry’s belief that

probable cause exists, rather, it explained, her background and training on this type

of criminal activity; how, in her experience, it is “common practice” for information

related to the illegal activity to be stored on a cell phone; how Defendant allegedly

sent nude photos to K.W. via snapchat; how Defendant sent text messages involving

sexual conduct to K.W.; and that the purpose of the warrant was to find evidence of

phone calls, text messages, emails, pictures, and videos. Thus, it sufficiently details

that a search of Defendant’s cell phone may reveal evidence of illegal sexual activity

with a child. Accordingly, because the affidavit set out the underlying circumstances

from which the issuing judge could find that probable cause existed to search

Defendant’s cell phone, we conclude that the issuance of the warrant was proper.

Having determined that probable cause existed to support the issuance of the

search warrant, we now conclude that “[h]ad Defendant's trial counsel objected to the

[search warrant], the result of the proceeding would have been the same.” Hernandez,

899 S.E.2d 899, 913 (N.C. Ct. App. 2024). See Braswell, 312 N.C. at 563, 324 S.E.2d

at 249 (Under the second prong of the ineffective assistance of counsel test, a

defendant must show a “reasonable probability that in the absence of counsel's

alleged errors the result of the proceeding would have been different.”). Stated

differently, had Defendant’s counsel moved to suppress the evidence obtained from

the search warrant, the motion would have been properly denied since the warrant

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Opinion of the Court

was sufficient to establish probable cause. Thus, Defendant is unable to show the

requisite prejudice to support a “reasonable probability that in the absence of

counsel's alleged errors the result of the proceeding would have been different.”

Braswell, 312 N.C. at 563, 324 S.E.2d at 241.

Since it is understood that “there is no reason for a court deciding an ineffective

assistance of counsel claim to . . . address both components of the inquiry if the

defendant makes an insufficient showing on one[,]” we need not address the first

prong under the test. Strickland, 466 U.S. at 697, 104 S. Ct. at 2069. We hold that

Defendant did not satisfy the second prong of prejudice, that his “counsels errors were

so serious as to deprive [him] of a fair trial.” Id. at 687, 104 S. Ct. at 2064.

Accordingly, Defendant did not receive ineffective assistance of counsel when his

counsel failed to file a motion to suppress the evidence obtained from the search of

his cell phone.

B. Disqualified Jurors

Defendant next argues that the trial court committed structural constitutional

error by allowing certain jurors to serve on his trial. From 2 August 2021 to 3 August

2021, the Ashe County Superior Court conducted a jury trial on a different case

involving misdemeanor stalking. In that case, the jury returned a verdict of not guilty

on the morning of 3 August 2021. Following the verdict, the judge, who also presided

over Defendant’s trial, addressed the jury. The judge informed the jurors that their

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Opinion of the Court

service on the misdemeanor stalking case was complete, but since the jurors were

already summoned for the week, the judge asked them to stay until he figured out

what the State’s next case was. In the afternoon of 3 August 2021, during the same

session of court, Defendant’s case was called for trial. Six of the jurors from the

preceding case were selected to participate in voir dire for Defendant’s case. During

the selection process, Defendant’s counsel was aware that these six jurors had sat

and rendered a not-guilty verdict on the case heard that same morning. Defendant’s

counsel did not raise any objection, and none of the jurors were challenged for cause.

Ultimately, four of the six jurors were empaneled for Defendant’s trial.

N.C. Gen. Stat. § 9-3 provides the qualifications of prospective jurors. It states,

in relevant part, “[a] person is qualified to serve as a juror” who is “a resident of the

State” and “a resident of the county[,]” who “has not served as a juror during the

preceding two years” and “[a] person not qualified under this section is subject to

challenge for cause.” N.C. Gen. Stat. § 9-3 (emphasis added). On appeal, Defendant

argues that the trial court acted contrary to N.C. Gen. Stat. § 9–3 when it seated the

four jurors who had served on the previous case. He argues that these jurors were

not permitted to serve on his case, as once the jurors sat and rendered a verdict on

the previous case, they were disqualified from further service. Without

disqualification, Defendant argues, the statutory mandate of “who have not served as

jurors during the preceding two years” is violated. Defendant contends that this

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Opinion of the Court

improper selection amounts to a structural constitutional error that warrants

automatic reversal of the verdict rendered by the jury. Further, Defendant asserts,

without evidence, that because the jurors had already returned a not guilty verdict

in the previous case, the four jurors “were more likely to convict [Defendant]” and

thus the error was prejudicial to his trial.

Defendant argued three separate grounds upon which this issue should be

reviewed on appeal, each will be addressed in turn. First, Defendant argues that

“when a trial court acts contrary to a statutory mandate regarding jury selection, the

error is preserved even if the defendant did not object below.” We disagree. “N.C.

Gen. Stat. § 9–3 specifically provides that persons not qualified to be jurors are

subject to challenge for cause.” State v. Davis, 191 N.C. App. 535, 545, 664 S.E.2d 21,

27 (2008) (citation omitted). Defendant’s “sole recourse under the statute was to

challenge the juror for cause. Having failed to do so at trial, he has not preserved the

issue for appellate review.” Id. (citation omitted). The court did not bar Defendant

from challenging for cause and it was incumbent on Defendant to use peremptory

challenges appropriately.

However, presuming, without deciding, that the trial court did violate a

mandate in N.C. Gen. Stat. § 9–3, Defendant must prove more than a statutory

violation. “This Court has consistently required that defendants claiming error in

jury selection procedures show prejudice in addition to a statutory violation before

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Opinion of the Court

they can receive a new trial.” State v. Garcia, 358 N.C. 382, 406–07, 597 S.E.2d 724,

743 (2004) (citations omitted). To establish prejudice in jury selection, the defendant

must have exhausted all peremptory challenges. State v. Lawrence, 352 N.C. 1, 13,

530 S.E.2d 807, 815 (2000) (citations omitted). If peremptory challenges are unused,

and the defendant makes no challenge for cause, then he cannot be said to have been

forced to accept an undesirable juror. Garcia, 358 N.C. at 408, 597 S.E.2d at 743–44

(citation omitted). N.C. Gen. Stat. § 15A-1217 provides that, in noncapital cases, the

“defendant is allowed six challenges.” N.C. Gen. Stat. § 15A-1217(b). Defendant does

not claim to have exhausted all challenges and the transcript indicates only two of

six strikes were used. Consequently, Defendant cannot establish prejudice in the jury

selection process.

Second, Defendant claims that “this Court and our Supreme Court have also

reviewed unpreserved structural error despite a defendant’s failure to object at trial.”

“Structural error is a rare form of constitutional error resulting from structural

defects in the constitution of the trial mechanism which are so serious that a criminal

trial cannot reliably serve its function as a vehicle for determination of guilt or

innocence.” Garcia, 358 N.C. at 409, 597 S.E.2d at 744 (cleaned up). Since the United

States Supreme Court first identified structural error in 1991, “that Court has

identified only six instances of structural error to date.” Id. (citations omitted).

Improper selection of jurors in violation of state statute is not one of the six instances

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Opinion of the Court

identified by the Court. Id. Furthermore, “the United States Supreme Court

emphasizes a strong presumption against structural error.” Id. at 409-10, 597 S.E.2d

at 744-45 (citations omitted). Our Supreme Court “has recently declined to extend

structural error analysis beyond the six cases enumerated by the United States

Supreme Court.” Id. at 410, 597 S.E.2d at 745 (citation omitted).

Defendant claims that this Court has previously “reviewed unpreserved

structural error.” However, both cases provided by Defendant are distinguishable

from the current case. In State v. Colbert, the defendant was deprived of his “right to

counsel.” State v. Colbert, 311 N.C. 283, 286, 316 S.E.2d 79, 81 (1984). In State v.

Veney, the Court similarly reviewed whether the defendant was deprived of his right

to counsel. State v. Veney, 259 N.C. App. 915, 920, 817 S.E.2d 114, 118 (2018).

Deprivation of counsel is one of the six structural errors identified by the United

States Supreme Court, unlike jury selection issues. Garcia, 358 N.C. at 409, 597

S.E.2d at 744. Defendant states that even if this Court does not find structural error,

“the error was still prejudicial and requires a new trial,” regardless of the standard

applied. However, as discussed supra, Defendant has failed to establish prejudice in

the jury selection process under the facts of his case.

Lastly, Defendant asserts that this Court should review this issue “under

Appellate Rule 2” to “prevent manifest injustice to a party.” The exercise of Rule 2

was intended to be limited to “rare occasions.” State v. Hart, 361 N.C. 309, 316, 644

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Opinion of the Court

S.E.2d 201, 205 (2007) (citations omitted). This Court has tended to invoke Rule 2 in

“circumstances in which [the] substantial rights of an appellant are affected.” Id.

(citation omitted). Defendant asserts, without evidence, that his right to a fair and

impartial jury was violated because four jurors who had been empaneled, despite

their prior service, were more likely to find him guilty. However, Defendant has

failed to demonstrate that his right to a fair and impartial jury was adversely

affected. “A defendant is not entitled to any particular juror. His right to challenge

is not a right to select but to reject a juror.” State v. Harris, 338 N.C. 211, 227, 449

S.E.2d 462, 470 (1994). In Harris, failure to exhaust peremptory challenges

evidenced “satisfaction” with the jury. Id. (citation omitted). Defendant had four

remaining peremptory strikes but failed to use them. Defendant’s decision to not

exhaust his peremptory strikes does not deprive him of any substantial right that

would justify invoking Rule 2.

Defendant does not satisfy any of the three grounds upon which the issue

would be preserved on appeal. Presuming arguendo that it was preserved, Defendant

is unable to show that he was prejudiced by the alleged error or that it deprived him

of a fair trial.

III. Conclusion

For the foregoing reasons, we conclude that Defendant did not receive

ineffective assistance of counsel when his counsel failed to file a motion to suppress

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because the search warrant was proper and supported by probable cause. Further,

Defendant is unable to satisfy the two-part test, as set forth in Strickland, to

demonstrate ineffective assistance of counsel. Strickland, 466 U.S. at 687, 104 S. Ct.

at 2064. We also hold that Defendant’s jury selection argument, was not properly

preserved for consideration by this Court. Accordingly, we hold that Defendant

received a fair trial free from error.

NO ERROR.

Chief Judge DILLON and Judge COLLINS concur.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10594502. Public record. Not legal advice.