{ "id": 11439204, "name": "STATE OF NORTH CAROLINA v. JONATHAN MAURICE LINTON", "name_abbreviation": "State v. Linton", "decision_date": "2001-08-21", "docket_number": "No. COA00-832", "first_page": "639", "last_page": "649", "citations": [ { "type": "official", "cite": "145 N.C. App. 639" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "376 S.E.2d 728", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "324 N.C. 172", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2486178 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc/324/0172-01" ] }, { "cite": "324 S.E.2d 241", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "247-49", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "312 N.C. 553", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4753359 ], "year": 1985, "pin_cites": [ { "page": "561-63", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0553-01" ] }, { "cite": "626 F.2d 254", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 651435 ], "weight": 3, "pin_cites": [ { "page": "261" } ], "opinion_index": 0, "case_paths": [ "/f2d/626/0254-01" ] }, { "cite": "646 F.2d 48", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1218061 ], "weight": 3, "year": 1981, "pin_cites": [ { "page": "54" } ], "opinion_index": 0, "case_paths": [ "/f2d/646/0048-01" ] }, { "cite": "325 S.E.2d 230", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "312 N.C. 739", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4756000 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/312/0739-01" ] }, { "cite": "315 S.E.2d 350", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "352" } ], "opinion_index": 0 }, { "cite": "68 N.C. App. 441", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527358 ], "year": 1984, "pin_cites": [ { "page": "443" } ], "opinion_index": 0, "case_paths": [ "/nc-app/68/0441-01" ] }, { "cite": "367 S.E.2d 589", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "598" } ], "opinion_index": 0 }, { "cite": "322 N.C. 117", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2519607 ], "year": 1988, "pin_cites": [ { "page": "131-32" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0117-01" ] }, { "cite": "74 L. Ed. 2d 513", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1982, "opinion_index": 0 }, { "cite": "459 U.S. 1018", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6468801, 6468547, 6469476, 6468711, 6469608, 6469353, 6468967, 6468624, 6468240, 6468465, 6469044, 6468343, 6469144, 6469246 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/us/459/1018-07", "/us/459/1018-04", "/us/459/1018-13", "/us/459/1018-06", "/us/459/1018-14", "/us/459/1018-12", "/us/459/1018-08", "/us/459/1018-05", "/us/459/1018-01", "/us/459/1018-03", "/us/459/1018-09", "/us/459/1018-02", "/us/459/1018-10", "/us/459/1018-11" ] }, { "cite": "676 F.2d 995", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 562145 ], "pin_cites": [ { "page": "1002" } ], "opinion_index": 0, "case_paths": [ "/f2d/676/0995-01" ] }, { "cite": "300 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "378", "parenthetical": "quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982)" } ], "opinion_index": 0 }, { "cite": "307 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565416 ], "year": 1983, "pin_cites": [ { "page": "660", "parenthetical": "quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982)" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0655-01" ] }, { "cite": "340 S.E.2d 80", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "83" }, { "page": "83" } ], "opinion_index": 0 }, { "cite": "316 N.C. 33", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4696125 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "39" }, { "page": "39" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0033-01" ] }, { "cite": "429 U.S. 492", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 7010 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "495" }, { "page": "719" } ], "opinion_index": 0, "case_paths": [ "/us/429/0492-01" ] }, { "cite": "139 L. Ed. 2d 177", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1997, "opinion_index": 0 }, { "cite": "522 U.S. 900", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11525121, 11525092, 11524582, 11524807, 11524710, 11525031, 11524847, 11524689, 11524884, 11524761, 11524635, 11524924, 11524734, 11524959 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/us/522/0900-14", "/us/522/0900-13", "/us/522/0900-01", "/us/522/0900-07", "/us/522/0900-04", "/us/522/0900-12", "/us/522/0900-08", "/us/522/0900-03", "/us/522/0900-09", "/us/522/0900-06", "/us/522/0900-02", "/us/522/0900-10", "/us/522/0900-05", "/us/522/0900-11" ] }, { "cite": "483 S.E.2d 396", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "405" } ], "opinion_index": 0 }, { "cite": "345 N.C. 647", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53878 ], "year": 1997, "pin_cites": [ { "page": "662" } ], "opinion_index": 0, "case_paths": [ "/nc/345/0647-01" ] }, { "cite": "543 S.E.2d 823", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "826" } ], "opinion_index": 0 }, { "cite": "353 N.C. 332", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135584 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "337" }, { "page": "337" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0332-01" ] }, { "cite": "543 S.E.2d 496", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "351 N.C. 475", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155589, 1155654, 1155601, 1155638, 1155960 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/351/0475-02", "/nc/351/0475-01", "/nc/351/0475-03", "/nc/351/0475-05", "/nc/351/0475-04" ] }, { "cite": "524 S.E.2d 828", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "830" } ], "opinion_index": 0 }, { "cite": "136 N.C. App. 510", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11240774 ], "pin_cites": [ { "page": "512" } ], "opinion_index": 0, "case_paths": [ "/nc-app/136/0510-01" ] } ], "analysis": { "cardinality": 948, "char_count": 22515, "ocr_confidence": 0.751, "pagerank": { "raw": 2.1618190013584228e-07, "percentile": 0.7699416066342092 }, "sha256": "f8b908ff1b5c8238addd9532fb0764444d72fa2bb549608b5ba90d8e492e72f2", "simhash": "1:0e3fc7e4313aec7e", "word_count": 3832 }, "last_updated": "2023-07-14T19:02:14.256422+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MARTIN and HUDSON concur." ], "parties": [ "STATE OF NORTH CAROLINA v. JONATHAN MAURICE LINTON" ], "opinions": [ { "text": "HUNTER, Judge.\nJonathan Linton (defendant) appeals from judgments entered upon the jury\u2019s verdicts finding him guilty of first degree sexual offense of a child and attempted first degree rape of a child. Defendant argues that the trial court erred by: (1) admitting into evidence his statement to the police; and (2) admitting testimony by various witnesses regarding out-of-court statements by the victim, \u201cK.\u201d Defendant further argues that he received ineffective assistance of counsel in violation of his Sixth Amendment right to counsel. We find no prejudicial error.\nThe pertinent facts leading up to defendant\u2019s conviction follow. The record tends to show that defendant met K in an electronic (internet) chat room in June or July of 1999. The two gave each other fake names, defendant calling himself \u201cMajestic,\u201d and/or \u201cMaurice,\u201d and K identifying herself as \u201cToya.\u201d Over the next few weeks, having exchanged telephone numbers, the two \u201ctalked on the telephone several times a day . . . and during those conversations K[] told him that she was sixteen years old and they made plans to go out together.\u201d Contrary to her assertions, K was only twelve.\nOn 7 August 1999, K and her girlfriend, Megan, went to the movies with defendant, after which defendant and K drove Megan home. Defendant and K then drove to the Southern High School parking lot where they engaged in sexual activity. In a written statement given to police three days later and testified to by Investigator Jacqueline Fountain, K stated that she and defendant\nwere on the way to bring me home [and] he [defendant] pulled in[to the] . . . parking lot [and] he told me to get out of the car .... Then he told me to get in the back seat [and] I got in the back seat [and] he told me to unbutton my pants [and] I said no. Then he said I\u2019ll do it for you. Then I just gave up. He got in the back seat [and] took off his pants. Then he got on top of me [and] stuck his penis in my vagina.\nK went on to describe defendant having oral sex with her and then continuing to have intercourse with her outside on the ground. She then stated, \u201c[w]hile he was having sex with me I was trying to push him off but he kept hugging me.\u201d Then she stated that she remembered walking home. However, K did not tell anyone about the incident when she initially returned to her home, and her mother testified that when K came home from the movies, \u201cthere were no signs of physical or emotional trauma and that K[] said she had a good time.\u201d\nThe record reflects that, after taking K\u2019s statement, Investigator Fountain contacted defendant, informed him that she was investigating a sexual assault, and \u201casked him to come down to the police station\u201d to talk. However, Investigator Fountain never informed defendant that he was her only suspect or that she fully intended to charge and arrest him at a later time. As defendant discussed the incident, Investigator Fountain reduced defendant\u2019s statement to writing and later had him sign it. In his statement, defendant said:\nOn Saturday [the day in question] I parked in front of K[]\u2019s house [and] she came out, we were going to the movies. I went to pick up a friend of hers, Megan, and then ... we went to the movies .... After the movie, I asked her if she was ready to go home [and] she said no, so we rode around. . . . We then went to Southern High School, got out of the car [and] we kissed. I unbuttoned her pants. Then she asked me did I have any condoms, I said no. Then she said, \u201cdon\u2019t come in me because I don\u2019t want to get pregnant. [\u201d] Then we started having sex, I could never get all the way in there. She got on top of me and tried. We were in the back seat. . . [and] went to the front of the car [and] tried to have sex on the hood. That didn\u2019t work, [and] then, last, we got on the street, on the ground. I wanted to stop because it wasn\u2019t working but she said no she didn\u2019t want me to stop. So I continued to try to have sex with her. . . . [When I drove her home, s]he wanted me to stop up the street from her house. .. . She left messages after that saying that she wanted to do it again [and] she wanted me to come over to her house to get her. . . . She called me [again] from . . . her friend[\u2019]s house. I asked her again if she was really sixteen, she said yes. I didn\u2019t know she was twelve until I called her at her house today and her father told me. . . . When she was lying on the ground I had oral sex with her because nothing else was working.\nShortly after giving his statement, defendant left the police station. He was arrested for the crimes against K five days later.\nIn his brief, defendant sets forth six assignments of error, condensed into three arguments for our review. The remaining seven assignments of error appearing in the record but not raised in defendant\u2019s brief are deemed abandoned. N.C.R. App. P. 28(b)(5). Defendant first argues that the trial court erred by denying his motion to suppress his statement to the police, which, defendant argues, was given while defendant was in custody without having been read his Miranda rights. We are unconvinced.\n\u201c \u2018The scope of review on appeal of the denial of a defendant\u2019s motion to suppress is strictly limited to determining whether the trial court\u2019s findings of fact are supported by competent evidence, in which case they are binding on appeal, and in turn, whether those findings support the trial court\u2019s conclusions of law.\u2019 \u201d State v. Cabe, 136 N.C. App. 510, 512, 524 S.E.2d 828, 830 (citation omitted), appeal dismissed and disc. review denied, 351 N.C. 475, 543 S.E.2d 496 (2000). As to the merits of defendant\u2019s argument, \u201cthe initial inquiry in determining whether Miranda warnings were required is whether an individual was \u2018in custody.\u2019 \u201d State v. Buchanan, 353 N.C. 332, 337, 543 S.E.2d 823, 826 (2001). \u201c[I]n determining whether a suspect was in custody, an appellate court must examine all the circumstances surrounding the interrogation; but the definitive inquiry is whether there was a formal arrest or a restraint on freedom of movement of the degree associated with a formal arrest.\u201d State v. Gaines, 345 N.C. 647, 662, 483 S.E.2d 396, 405, cert. denied, 522 U.S. 900, 139 L. Ed. 2d 177 (1997). Miranda warnings are not required \u201csimply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect.\u201d Buchanan, 353 N.C. at 337, 543 S.E.2d at 827 (quoting Oregon v. Mathiason, 429 U.S. 492, 495, 50 L. Ed. 2d 714, 719 (1977)).\nIn applying the law to the facts of this case, we hold that defendant was not in custody when he chose, by his own volition, to go to the police station and give a statement without any promises being made to him, even if he did not know he was a suspect at the time. The record discloses no evidence of defendant being handcuffed or affirmatively placed in custody, neither is there evidence of any officer telling defendant he was not free to go. Defendant simply contends that at no time did anyone tell him he was free to go. That fact, standing alone, does not compel the conclusion that Miranda warnings should have been given. Without any evidence to the contrary, we hold that defendant was not in custody when he gave his statement to police and, thus, Miranda warnings were not required. His statement was admissible, and the trial court did not err in denying his motion to suppress.\nIn his second argument, defendant contends that the trial court erred in admitting the testimony of a number of witnesses regarding out-of-court statements made by K. Specifically, defendant argues that the testimony of Elese Black, Nathaniel Keith, Cecelia Black, Barbara Sanders, Howard Alexander, Jacqueline Fountain, and Susan Rowe, regarding statements allegedly made by K, should not have been admitted by the trial court because K was not \u201cunavailable as a witness\u201d as required by N.C. Gen. Stat. \u00a7 8C-1, Rule 804 (1999) (Rule 804). Although we agree that K was not \u201cunavailable as a witness,\u201d and that the admission of the testimony in question pursuant to Rule 804 was error, we hold that the error does not require reversal because it does not amount to plain error.\nAt the outset we note that defendant failed to object to the admission of the testimony when it was offered (which was before K refused to testify) and thereby failed to preserve the issue for review. However, an alleged error by the trial court not objected to at trial may be made the basis of an assignment of error where a defendant contends that the judicial action amounts to plain error, and defendant here does so contend. N.C.R. App. P. 10(c)(4). Thus, we review the alleged error under the plain error standard of review although it was not preserved at trial. If we find that the admission of the testimony constitutes error, in order for the error to warrant reversal, this Court \u201cmust be convinced that absent the error the jury probably would have reached a different verdict.\u201d State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986).\n\u201c[T]he plain error rule ... is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a 'fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done,\u2019 or \u2018where [the error] is grave error which amounts to a denial of a fundamental right of the accused,\u2019 or the error has \u2018 \u201cresulted in a miscarriage of justice or in the denial to appellant of a fair trial\u201d \u2019 or where the error is such as to \u2018seriously affect the fairness, integrity or public reputation of judicial proceedings\u2019. . . .\u201d\nState v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982)). In addition, a defendant asserting plain error on appeal bears the burden of proving that the trial court committed plain error. Walker, 316 N.C. at 39, 340 S.E.2d at 83.\nTurning to the merits of defendant\u2019s argument, the first question is whether the trial court\u2019s admission of the testimony at issue was, in fact, error. \u201cHearsay\u201d is an out-of-court statement \u201coffered in evidence to prove the truth of the matter asserted,\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 801(c) (1999), and is \u201cnot admissible except as provided by statute or by the North Carolina Rules of Evidence.\u201d State v. Wilson, 322 N.C. 117, 131-32, 367 S.E.2d 589, 598 (1988). Rule 804 provides various exceptions to the general prohibition against the admission of hearsay where the declarant is \u201cunavailable as a witness.\u201d Subdivision (a) of Rule 804 enumerates the circumstances in which a witness may be deemed unavailable for purposes of admitting hearsay testimony under subdivision (b) of the rule:\n(a) Definition of unavailability. \u2014 \u201cUnavailability as a witness\u201d includes situations in which the declarant:\n(2) Persists in refusing to testify concerning the subject matter of his statement despite an order of the court to do so ....\nRule 804(a)(2). Subdivision (b)(5) of the rule, which provides a \u201ccatch all\u201d exception for hearsay not falling under any other hearsay exception, states in pertinent part:\n(b) Hearsay exceptions. \u2014 The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:\n(5) Other Exceptions. \u2014 A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.\nRule 804(b)(5).\nIn the case at bar, K entered the courtroom to testify on behalf of the State, but once she arrived she refused to testify. The following discourse transpired during voir dire by the trial court:\nThe Court: Do you understand that the Court could require you to testify?\n[K]: Yes.\nThe Court: Are you currently unwilling to testify on behalf of the State?\n[K]: Yes.\nThe Court: Do you refuse to testily at this point?\n[K]: Yes.\nThe trial court then excused K from testifying, declaring that she was \u201cunavailable within the meaning of [Rule 804(a)(2)] in that she persists in refusing to testify concerning the subject matter of her statement despite some admonitions and directives of the Court.\u201d\nDefendant argues that because the trial court \u201cnever ordered K[] to testify,\u201d it was improper to find her unavailable pursuant to Rule 804(a)(2), and therefore error to admit the statements pursuant to Rule 804(b)(5). We have not found any cases from this State directly addressing the issue. However, because Rule 804(a)(2) is identical to Rule 804(a)(2) in the Federal Rules of Evidence, see Fed. R. Evid. 804(a)(2), opinions from federal courts that have addressed this issue are instructive. See, e.g., Stone v. Lynch, Sec. of Revenue, 68 N.C. App. 441, 443, 315 S.E.2d 350, 352 (1984), aff'd, 312 N.C. 739, 325 S.E.2d 230 (1985).\nIn United States v. Zappola, 646 F.2d 48 (2d Cir. 1981), the Court held that the trial court erred in ruling that a witness, who refused to testify, was unavailable pursuant to Rule 804(a)(2) because \u201cthe district court did not order [the witness] to testify,\u201d but \u201c[i]nstead . . . relied on [the witness\u2019s] assertion that he would refuse to testify even if ordered to by the court.\u201d Id. at 54. The Court stated:\nThe procedure that should have been followed by the court when faced with [the witness\u2019s] refusal to testify was (1) the issuance of an order, outside the presence of the jury, directing him to testify and (2) a warning that continued refusal to testify despite the court\u2019s order would be punishable by contempt.\nId. In a similar case, United States v. Oliver, 626 F.2d 254 (2d Cir.1980), the same Court held that an order from the trial court is an essential component in a declaration of unavailability under Rule 804(a)(2). In Oliver, the trial court had put pressure on the witness to testify; \u201c[hjowever, the court never ordered him to testify, which is an essential requisite to the invocation of Rule 804(a)(2).\u201d Id. at 261. The Court also noted that \u201c[i]t is always possible that a recalcitrant witness who does not respond to judicial pressure will testify when ordered to do so.\u201d Id.\nHere, during voir dire, the trial court asked K whether she intended to refuse to testify although she could be required to do so by the court. K responded affirmatively, indicating that she refused to testify. While the court exerted some pressure on K to testify, the court never ordered K to testify and never warned her of the possibility of punishment for her continued refusal. We believe it is possible that K would have testified had she been ordered to do so by the court. We agree with the rule set forth in Zapolla and Oliver that an order from the trial court is an essential component in a declaration of unavailability under Rule 804(a)(2). Therefore, we conclude that the trial court erred in declaring K unavailable without first giving the required order to testify.\nThe next question is whether this error warrants reversal. The record shows that the statements in question are extremely similar (in terms of providing evidence of the offenses charged) to the statement that defendant gave to the police, and the statement that K gave to the police, both of which were admitted in evidence and considered by the jury. For this reason, we cannot say that, absent the admission of the statements in question, the jury would probably have reached a different verdict. Furthermore, we agree with the trial court that the fact that the statements in question were made shortly after the incident indicates a significant degree of reliability as to the accuracy of these statements. Thus, we also cannot say that admission of the statements resulted in a miscarriage of justice. In sum, although the trial court erred in deeming K unavailable without ordering her to testify, we conclude that defendant has failed to carry his burden under a plain error analysis and that the error does not warrant reversal. This assignment of error is overruled.\nIn defendant\u2019s final argument, he contends that he received ineffective assistance of counsel in violation of his Sixth Amendment right to counsel. \u201cDefendant argues that he was denied effective assistance of counsel when, during the testimony of Elese Black, Cecelia Black, Nathan Keith, Rosalyn Keith, Investigator Jacqueline Fountain and Corporal Howard Alexander, defense counsel failed to object to their hearsay testimony about what K[] said to them\u201d regarding the incident in question. Defendant further contends that \u201c[e]ven the [trial] court recognized the flawed proceedings,\u201d because when defense counsel finally did object, the trial court stated:\nAs far as the defendant\u2019s general objection to the testimony of the alleged victim as given through other witnesses, the defendant having failed to object to any of that evidence offered through other witnesses at the time offered by the State, the Court overrules that objection.\nWe are unpersuaded by defendant\u2019s argument.\nIt is well-established that\n[a] defendant\u2019s right to counsel includes the right to the effective assistance of counsel. When a defendant attacks his conviction\non the basis that counsel was ineffective, he must show that his counsel\u2019s conduct fell below an objective standard of reasonableness. In order to meet this burden defendant must satisfy a two part test.\n\u201cFirst, the defendant must show that counsel\u2019s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the \u2018counsel\u2019 guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel\u2019s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. \u201d\nThe fact that counsel made an error, even an unreasonable error, does not warrant reversal of a conviction unless there is a reasonable probability that, but for counsel\u2019s errors, there would have been a different result in the proceedings.\nThus, if a reviewing court can determine at the outset that there is no reasonable probability that in the absence of counsel\u2019s alleged errors the result of the proceeding would have been different, then the court need not determine whether counsel\u2019s performance was actually deficient.\nState v. Braswell, 312 N.C. 553, 561-63, 324 S.E.2d 241, 247-49 (1985) (citations omitted).\nHere, our examination of the record convinces us that there is no reasonable probability that defense counsel\u2019s failure to object to the admission of the testimony in question affected the outcome of the trial. This is because, as discussed above, the statements in question are extremely similar (in terms of providing evidence of the offenses charged) to the statement that defendant gave to the police, and the statement that K gave to the police, both of which were admitted in evidence and considered by the jury. As a result, we believe the evidence of defendant\u2019s guilt was more than substantial to prove defendant committed the crimes with which he was charged, even without the hearsay testimony being allowed. Looking to the totality of the circumstances in the present case, we hold that defendant has failed to show that any errors by defense counsel prejudiced defendant.\nNo error.\nJudges MARTIN and HUDSON concur.\n. The State\u2019s reliance upon State v. Chandler, 324 N.C. 172, 376 S.E.2d 728 (1989), is misplaced because the trial court in that case deemed the witness unavailable under Rule 804(a)(4), which allows a finding of unavailability when the declarant \u201c[i]s unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity.\u201d Rule 804(a)(4).", "type": "majority", "author": "HUNTER, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Assistant Attorney General Celia Grasty Lata, for the State.", "The Law Offices of James Williams, Jr., P.A., by James D. Williams, Jr., for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JONATHAN MAURICE LINTON\nNo. COA00-832\n(Filed 21 August 2001)\n1. Confessions and Other Incriminating Statements\u2014 Miranda warnings \u2014 defendant not told he could leave \u2014 not in custody\nThe trial court did not err in a prosecution for the first-degree sexual offense of a child and attempted first-degree rape of a child by admitting a statement which defendant contended he gave to police without Miranda warnings while he was in custody. Defendant went to the police station of his own volition and gave a statement without any promises being made; while he did not know that he was a suspect and contends that no one told him that he was free to go, he was not in custody and Miranda warnings were not required.\n2. Evidence\u2014 hearsay \u2014 out-of-court statements of witness refusing to testify \u2014 witness unavailable \u2014 order to testify required\nThere was no plain error in a prosecution for the first-degree sexual offense of a child and the attempted first-degree rape of a child where the victim refused to testify, the court ruled that she was unavailable, and a number of witnesses were allowed to testify regarding her out-of-court statements. While the court exerted some pressure on the victim, she was never ordered to testify; an order from the trial court is an essential component in a declaration of unavailability under N.C.G.S. \u00a7 8C-1, Rule 804(a)(2). However, the statements in question are very similar to others admitted in evidence and it cannot be said that the jury would probably have reached a different result without these statements.\n3. Constitutional Law\u2014 effective assistance of counsel \u2014 failure to object to hearsay \u2014 other similar statements admitted \u2014 no prejudice\nA defendant in a prosecution for the first-degree sexual offense of a child and first-degree attempted rape was not denied the effective assistance of counsel where his counsel did not object to hearsay testimony which was similar to statements given by defendant which were admitted.\nAppeal by defendant from judgments entered 23 February 2000 by Judge David Q. LaBarre in Durham County Superior Court. Heard in the Court of Appeals 30 May 2001.\nAttorney General Michael F. Easley, by Assistant Attorney General Celia Grasty Lata, for the State.\nThe Law Offices of James Williams, Jr., P.A., by James D. Williams, Jr., for defendant-appellant." }, "file_name": "0639-01", "first_page_order": 669, "last_page_order": 679 }