{ "id": 9081675, "name": "STATE OF NORTH CAROLINA v. BENJAMIN FRANKLIN CHINA", "name_abbreviation": "State v. China", "decision_date": "2002-06-04", "docket_number": "No. COA01-667", "first_page": "469", "last_page": "480", "citations": [ { "type": "official", "cite": "150 N.C. App. 469" } ], "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": "257 S.E.2d 417", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "420", "parenthetical": "\"The seizure of suspicious items in plain view inside a dwelling is lawful if the officer possesses legal authority to be on the premises.\"" } ], "opinion_index": 0 }, { "cite": "298 N.C. 135", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568643 ], "year": 1979, "pin_cites": [ { "page": "140", "parenthetical": "\"The seizure of suspicious items in plain view inside a dwelling is lawful if the officer possesses legal authority to be on the premises.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/298/0135-01" ] }, { "cite": "443 S.E.2d 68", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "75", "parenthetical": "bloody bed-sheet was admissible since it was within the plain view of the officers while they were lawfully on the premises" } ], "opinion_index": 0 }, { "cite": "336 N.C. 268", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2535615 ], "year": 1994, "pin_cites": [ { "page": "282", "parenthetical": "bloody bed-sheet was admissible since it was within the plain view of the officers while they were lawfully on the premises" } ], "opinion_index": 0, "case_paths": [ "/nc/336/0268-01" ] }, { "cite": "437 U.S. 385", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6180644 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/us/437/0385-01" ] }, { "cite": "524 S.E.2d 363", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "366" } ], "opinion_index": 0 }, { "cite": "136 N.C. App. 386", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11239703 ], "year": 2000, "pin_cites": [ { "page": "391-92" } ], "opinion_index": 0, "case_paths": [ "/nc-app/136/0386-01" ] }, { "cite": "558 S.E.2d 463", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "488", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "355 N.C. 73", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220002 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "112", "parenthetical": "citation omitted" }, { "page": "112" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0073-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 6, "year": 1984, "pin_cites": [ { "page": "687" }, { "page": "693" }, { "page": "689" }, { "page": "694" }, { "page": "687" }, { "page": "693" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "488 S.E.2d 769", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "779" } ], "opinion_index": 0 }, { "cite": "346 N.C. 365", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139608 ], "year": 1997, "pin_cites": [ { "page": "385" } ], "opinion_index": 0, "case_paths": [ "/nc/346/0365-01" ] }, { "cite": "340 S.E.2d 80", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "83" } ], "opinion_index": 0 }, { "cite": "316 N.C. 33", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4696125 ], "year": 1986, "pin_cites": [ { "page": "39" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0033-01" ] }, { "cite": "558 S.E.2d 87", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "92", "parenthetical": "quoting State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986)" } ], "opinion_index": 0 }, { "cite": "355 N.C. 136", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220122 ], "year": 2002, "pin_cites": [ { "page": "142", "parenthetical": "quoting State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986)" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0136-01" ] }, { "cite": "447 S.E.2d 349", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "352", "parenthetical": "emphasis supplied" }, { "page": "352" } ], "opinion_index": 0 }, { "cite": "337 N.C. 674", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2552733 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "680", "parenthetical": "emphasis supplied" }, { "page": "681" } ], "opinion_index": 0, "case_paths": [ "/nc/337/0674-01" ] }, { "cite": "489 S.E.2d 391", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "407", "parenthetical": "citing State v. Webster, 337 N.C. 674, 680, 447 S.E.2d 349, 352 (1994) (emphasis supplied)" } ], "opinion_index": 0 }, { "cite": "347 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551309 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "28", "parenthetical": "citing State v. Webster, 337 N.C. 674, 680, 447 S.E.2d 349, 352 (1994) (emphasis supplied)" }, { "page": "28" } ], "opinion_index": 0, "case_paths": [ "/nc/347/0001-01" ] }, { "cite": "407 U.S. 514", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9139028 ], "weight": 7, "year": 1972, "pin_cites": [ { "page": "530" }, { "page": "116-17" }, { "page": "532" }, { "page": "118" } ], "opinion_index": 0, "case_paths": [ "/us/407/0514-01" ] }, { "cite": "732 F.2d 379", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1947698 ], "year": 1984, "pin_cites": [ { "page": "381", "parenthetical": "emphasis in original" } ], "opinion_index": 0, "case_paths": [ "/f2d/732/0379-01" ] }, { "cite": "541 S.E.2d 166", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2000, "pin_cites": [ { "page": "175" }, { "page": "175" }, { "page": "176" } ], "opinion_index": 0 }, { "cite": "141 N.C. App. 152", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9440555 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "164" }, { "page": "164" } ], "opinion_index": 0, "case_paths": [ "/nc-app/141/0152-01" ] }, { "cite": "456 S.E.2d 875", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "876" } ], "opinion_index": 0 }, { "cite": "118 N.C. App. 724", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11920889 ], "year": 1996, "pin_cites": [ { "page": "725" } ], "opinion_index": 0, "case_paths": [ "/nc-app/118/0724-01" ] }, { "cite": "507 U.S. 234", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6226797 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "253", "parenthetical": "Rehnquist, C.J., dissenting" }, { "page": "600", "parenthetical": "Rehnquist, C.J., dissenting" } ], "opinion_index": 0, "case_paths": [ "/us/507/0234-01" ] }, { "cite": "514 U.S. 115", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1340327 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "119", "parenthetical": "citing Ortega-Rodriguez v. United States, 507 U.S. 234, 253, 122 L. Ed. 2d 581, 600 (1993) (Rehnquist, C.J., dissenting)" }, { "page": "158", "parenthetical": "citing Ortega-Rodriguez v. United States, 507 U.S. 234, 253, 122 L. Ed. 2d 581, 600 (1993) (Rehnquist, C.J., dissenting)" } ], "opinion_index": 0, "case_paths": [ "/us/514/0115-01" ] } ], "analysis": { "cardinality": 1021, "char_count": 25788, "ocr_confidence": 0.738, "pagerank": { "raw": 2.914316828432316e-07, "percentile": 0.8460404448290229 }, "sha256": "a6fc3af5a42505320a0caa9740f9d74a4870802107ae0788f1cb6945756ff96d", "simhash": "1:856dd4783aca9bdc", "word_count": 4130 }, "last_updated": "2023-07-14T19:52:10.836930+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MARTIN and THOMAS concur." ], "parties": [ "STATE OF NORTH CAROLINA v. BENJAMIN FRANKLIN CHINA" ], "opinions": [ { "text": "TYSON, Judge.\nBenjamin Franklin China (\u201cdefendant\u201d) appeals from judgment entered after a jury verdict found him guilty of second-degree burglary. We find no prejudicial error.\nI. Facts\nThe evidence at trial tended to show that on the evening of 15 January 1994 at approximately 10:00 p.m. Jonetta Dixon (\u2019\u2019Jonetta\u201d) and her husband Lacy Billings (\u201cLacy\u201d) were visited by Lacy\u2019s daughter Diane China (\u201cDiane\u201d) in their home. Diane is married to defendant. Diane borrowed $20.00 in cash from Lacy during their visit. Diane testified that she did not have a good relationship with Lacy.\nJonetta and Lacy informed Diane that they were going to spend the night at Jonetta\u2019s sister\u2019s house and that they would not return that evening. Jonetta and Lacy left their house at approximately 11:30 p.m. shortly after Diane left to go to her home. Jonetta and Lacy locked all of the doors and windows.\nOfficer M.D. Barenson (\u201cOfficer Barenson\u201d) was working in the vicinity of Jonetta\u2019s and Lacy\u2019s home when he received a call advising a burglary was in progress. Officer Barenson drove to Jonetta\u2019s and Lacy\u2019s house and parked in front. Officer Barenson exited his vehicle, approached the front door, determined that it was locked, and proceeded toward the side of the building. He discovered broken glass and a water cooler propped up against the wall directly under a shattered window. Officer Barenson radioed his sergeant to confirm the burglary, and his sergeant dispatched assistance. The sergeant and other officers were located nearby conducting a murder investigation.\nOfficer Barenson cautiously proceeded to the back of the building. He observed a black male, five-foot-six to five-foot-eight inches tall and approximately 145 pounds, later identified as defendant, descending the back stairs carrying numerous items in his arms. Defendant and Officer Barenson locked eyes momentarily. Defendant sprinted around the other side of the building, and dropped the items he was carrying. Defendant unknowingly ran past the murder scene where Officer Barenson\u2019s sergeant and other officers were conducting the unrelated murder investigation. Barenson\u2019s sergeant saw defendant running. Officer Barenson radioed his sergeant, who tried to secure the area with the other officers. The officers unsuccessfully conducted a search for defendant.\nAfter the search, Officer Barenson and another officer returned to the burglarized house. While examining the residence, Jonetta and Lacy returned home at approximately 12:30 a.m. Officer Barenson informed them of the burglary. Lacy responded that he suspected his son-in-law might be involved. Jonetta and Lacy escorted Officer Barenson to Diane\u2019s house. As they approached, they heard a violent argument emanating from inside the apartment. Officer Barenson knocked on the door, it opened, and they walked inside. Diane was sitting in the living room with a knife in her hand, and defendant walked out of the kitchen bleeding profusely from his forearm.\nOfficer Barenson immediately recognized defendant as the person he had seen descending the back stairs an hour earlier. Jonetta testified that Officer Barenson stated \u201cthis is the one ... that is him.\u201d Officer Barenson testified that \u201cI looked right at him and I said that is him. That is the man.\u201d Defendant was wearing pants that looked identical to the pants that Officer Barenson saw the burglar wearing. Defendant was placed under arrest.\nJonetta stood by Officer Barenson\u2019s side and observed the arrest. She also noticed and immediately recognized her jewelry scattered on top of the kitchen table and on top of the coffee table in the living room. Jonetta remembered seeing her jewelry on top of her bedroom dresser earlier that evening prior to leaving her house. The jewelry included necklaces, rings, bracelets, and watches. Unprompted, Diane fervently denied breaking into her father\u2019s house.\nAfter a complete identification of the jewelry by Jonetta, Officer Barenson returned Jonetta\u2019s jewelry to her pursuant to his sergeant\u2019s orders. Defendant was transported downtown to jail. Jonetta and Lacy returned home and noticed that her jewelry had, in fact, been stolen. One window was entirely shattered. Jonetta discovered blood stains on the curtains that surrounded the broken window. Lacy observed blood on the broken window glass.\nDefendant was tried on 24 April 1994. Defendant did not testify, but offered the testimony of his wife at trial. The jury found defendant guilty of second-degree burglary. The trial court sentenced defendant to twenty years. Defendant appealed in open court. The trial court appointed defendant\u2019s trial counsel to represent him on appeal. Defendant\u2019s appointed counsel did not perfect the appeal.\nApproximately six years later on 9 June 2000, defendant petitioned our Court for a writ of certiorari. Our Court granted defendant\u2019s petition and remanded the case to Durham County Superior Court for the appointment of substitute appellate counsel. New counsel was appointed on 11 December 2000. Defendant obtained the necessary extensions for filing the record and the briefs. The case is properly before us.\nII. Issues\nDefendant assigns the following errors: (1) the delay in affording defendant an appeal violated his statutory and constitutional rights to a \u201cspeedy appeal,\u201d (2) the trial court erred by overruling defendant\u2019s objection and admitting photographic evidence at trial, (3) the trial court erred by failing to stop a State\u2019s witness from improperly attacking defendant\u2019s character, and (4) defendant had ineffective assistance of counsel.\nIII. Anneal Delay\nDefendant contends that his due process rights and law of the land rights to a speedy trial were violated. He argues that the almost seven year delay in processing review of his conviction was unconscionable.\nThere is no constitutional right to an appeal under the United States Constitution for a convicted criminal. Goeke v. Branch, 514 U.S. 115, 119, 131 L. Ed. 2d 152, 158 (1995) (citing Ortega-Rodriguez v. United States, 507 U.S. 234, 253, 122 L. Ed. 2d 581, 600 (1993) (Rehnquist, C.J., dissenting)). The right to appeal in a criminal proceeding is purely statutory. State v. Shoff, 118 N.C. App. 724, 725, 456 S.E.2d 875, 876 (1996); N.C. Gen. Stat. \u00a7 15A-1444 (2001) (\u201cA defendant who has entered a plea of not guilty to a criminal charge, and who has been found guilty of a crime, is entitled to appeal as a matter of right when final judgment has been entered.)\nIn State v. Hammonds, 141 N.C. App. 152, 164, 541 S.E.2d 166, 175 (2000) this Court stated that \u201c \u2018undue delay in processing an appeal may rise to the level of a due process violation.\u2019 \u201d (quoting United States v. Johnson, 732 F.2d 379, 381 (4th Cir. 1984) (emphasis in original)). We must analyze the factors set forth in Barker v. Wingo, 407 U.S. 514, 33 L. Ed. 2d 101 (1972), to determine if there was a due process violation caused by a delay in processing an appeal. See Hammonds, 141 N.C. App. at 164, 541 S.E.2d at 175. The four factors are: (1) the length of the delay; (2) the reason for the delay; (3) defendant\u2019s assertion of his right to a speedy appeal; and (4) any prejudice to defendant. Id. at 158, 541 S.E.2d at 172 (citing Barker, 407 U.S. at 530, 33 L. Ed. 2d at 116-17). No one factor is dispositive; the four \u201care related factors and must be considered together with such other circumstances as may be relevant.\u201d Id.\nA. Length and Reason for the Delay.\nAn approximately seven year delay in processing defendant\u2019s appeal is lengthy and sufficient to examine the remaining factors. We are troubled by the reason for the delay in this case. Defendant argues that \u201c[t]he reason for most of the delay in this case is the failure of the defendant\u2019s court-appointed attorney to perfect the appeal.\u201d In the State\u2019s response to defendant\u2019s petition for writ of cer-tiorari, it posits that defendant\u2019s appointed trial counsel did not know that he was appointed as defendant\u2019s appellate counsel. Defendant claims that the colloquy at the end of the trial between the judge and defendant\u2019s trial counsel clearly shows that defendant\u2019s trial counsel knew and understood that he was appointed as defendant\u2019s appellate counsel. The trial transcript supports defendant\u2019s position.\nNone of the delay was attributable to any affirmative act by defendant. \u201c[W]e are equally unable to find that the delay is attributable to the prosecution.\u201d Id. at 164, 541 S.E.2d at 176. From the record before us, we cannot and do not determine why defendant\u2019s appeal was not perfected.\nB. Defendant\u2019s Assertion of His Right, to a Sneedv Appeal\nThe record fails to indicate that defendant asserted his right to a speedy appeal prior to 14 June 2000. On that date defendant petitioned this Court pro se for a writ of certiorari and requested that we order the Durham County Superior Court to review defendant\u2019s judgment. Defendant contributed to the delay by failing to assert earlier his right to a speedy appeal.\nDefendant could have contacted his attorney, the trial court, or the Clerk of this Court to determine the status of his appeal at any time between the time he gave notice of appeal and filed a petition for a writ of certiorari with our Court. In the speedy trial context, our Supreme Court has stated: \u201c[d]efendant\u2019s failure to assert his right to a speedy trial sooner in the process does not foreclose his speedy trial claim, but does weigh against his contention that he has been denied his constitutional right to a speedy trial.\u201d State v. Flowers, 347 N.C. 1, 28, 489 S.E.2d 391, 407 (1997) (citing State v. Webster, 337 N.C. 674, 680, 447 S.E.2d 349, 352 (1994) (emphasis supplied)).\nHere, defendant\u2019s silence is deafening. Defendant\u2019s failure to stay informed concerning the status of his appeal of right and to assert his rights weighs heavily against his contention that his due process rights were violated.\nC. Prejudice\nIn the trial context, our Supreme Court and the United States Supreme Court have recognized three interests protected by a speedy trial: \u201c(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.\u201d Flowers, 347 N.C. at 28, 489 S.E.2d at 407 (citing Webster, 337 N.C. at 681, 447 S.E.2d at 352) (quoting Barker, 407 U.S. at 532, 33 L. Ed. 2d at 118)).\nConcerning the first two interests, defendant contends that he suffered a greater degree of anxiety over the outcome of his appeal than the typical appellant. Defendant argues that he was abandoned by his attorney, and that he did not have anyone zealously representing his interests. If defendant was unaware that appellate counsel was, in fact, not representing him, then he logically could not have suffered any more anxiety than the average appellant. If he was aware that he did not have appellant counsel, any anxiety he purportedly suffered could have been alleviated by acting on his concerns at any time. Once defendant acted, this Court granted his requested relief. Defendant has failed to show that he suffered any more anxiety than any other appellant.\nConcerning the third interest, defendant claims that \u201cthe passage of time has prevented [him] from obtaining a certified transcript of his trial, since the Court Reporter has moved to Nicaragua.\u201d Defendant also contends that it is impossible for his counsel to determine if any error occurred during those periods because the trial transcript does not contain the selection of the jury or trial counsel\u2019s closing arguments. The record contains an unsigned copy of the trial transcript. Defendant presented no evidence to suggest that the unsigned transcript is inaccurate. After balancing the four factors set out above, defendant\u2019s failure to assert his right to a speedy appeal combined with the lack of prejudice suffered by defendant shows that although his delay in processing his appeal was approximately seven years, defendant suffered no depravation of due process. We hold that defendant\u2019s delay in asserting his statutory right of appeal did not violate his due process rights.\nIV. Evidence at Trial\nDefendant contends the trial court erred by allowing the State to introduce into evidence photographs of Jonetta\u2019s jewelry that she wore into court during the trial. Defendant claims the State failed to disclose to defendant its intention to enter the items into evidence during the trial, and that the State failed to properly preserve the tangible evidence seized and then released at the crime scene. Defendant contends that the trial court\u2019s failure to sanction the State for these violations was an abuse of discretion. We disagree.\nA. Discovery Disclosure\nN.C.G.S \u00a7 15A-903(d) controls the disclosure of documentary and tangible evidence by the State to the defendant, and requires the prosecutor, upon request by defendant, to disclose all tangible evidence to be used against defendant at trial. N.C. Gen. Stat. \u00a7 15A-903(d) (2001). The record shows that the State did not intend to introduce the jewelry or photographs into evidence at trial.\nThe trial transcript also shows that defendant failed to object to the admission into evidence of Jonetta\u2019s jewelry. Defendant has alleged plain error. \u201cThis Court has recognized that \u2018[t]he plain error rule applies only in truly exceptional cases.\u2019 \u201d State v. Anderson, 355 N.C. 136, 142, 558 S.E.2d 87, 92 (2002) (quoting State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986)). \u201c[A] defendant relying on the rule bears the heavy \u2018burden of showing . . . (i) that a different result probably would have been reached but for the error or (ii) that the error was so fundamental as to result in a miscarriage of justice or denial of a fair trial.\u2019 \u201d Id. (quoting State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997)).\nThe admission of the evidence occurred when the State was questioning Jonetta on direct examination. Defendant\u2019s counsel peremptorily objected that the State was about to broach the subject of the jewelry Jonetta was wearing. The trial court removed the jury and considered defendant\u2019s objections. The trial court discovered that Jonetta was wearing some of the jewelry that was stolen and returned to her the night of the burglary. The trial court suggested that the items be examined thoroughly by both sides and be photographed. Defendant (1) did not object to the suggested procedure, (2) indicated his complete satisfaction with the procedure, and (3) was allotted time to completely examine all of the jewelry. Hearing no objections or complaints from defendant or his counsel, the trial court resumed the trial. The State continued its examination of Jonetta. The State admitted the photographs of the jewelry into evidence. Defendant never cross-examined Jonetta\u2019s or any other witness\u2019 recollection of the jewelry.\nAssuming error in admitting the photographs into evidence, defendant has failed to show, and we are unable to find, any prejudice to defendant. Jonetta, Lacy, and Officer Barenson could have testified about the jewelry regardless of whether the photographs were admitted into evidence. This assignment of error is overruled.\nB. Preservation\nDefendant contends that the officer\u2019s failure to keep records of the jewelry seized from and returned to Jonetta constituted a statutory violation and substantially impeded defendant\u2019s ability to defend against the charges. Defendant argues that \u201c[b]y releasing the property without any documentation of ownership, the offer created a situation where the prosecuting witness might have manufactured the strongest evidence against [defendant], in furtherance of a preexisting grudge.\u201d Defendant also argues that \u201c[b]y placing [Jonetta] in a position where she was able to wear the evidence into court and spring it upon the defendant without warning, the State substantially impeded the defendant\u2019s ability to challenge the most critical evidence against him.\u201d\nDefendant failed to object when the photographs were admitted as evidence and asserts plain error. We disagree. For the same reasons stated above, defendant was provided a full opportunity to examine the jewelry prior to its admission into evidence, object to the trial court\u2019s recommended procedure, or cross-examine any witness about the jewelry. Defendant has not shown that but for the admission of these photographs a different result probably would have occurred or that he was denied a fair trial by the admission of the evidence. Defendant has failed to show prejudice. This assignment of error is overruled.\nV. Trial Court\u2019s Failure to Intervene\nOn cross-examination by defense counsel, Lacy testified that \u201cI know [defendant] is a thief and I feel like there was some connection between those two [defendant and Diane] with what happened to the house .... I said it had to be one or the other but after [Officer Barenson] described who it was I was definite that he was the one because I know his past life.\u201d Immediately after Lacy\u2019s comments, defense counsel attempted to impeach Lacy\u2019s credibility.\nDefendant argues that it was plain error for the trial court not to intervene ex mero mo tu. Defendant\u2019s counsel elicited the testimony during cross-examination. Defendant\u2019s counsel continued to question Lacy about the comment and about defendant\u2019s description. Defense counsel did not object to Lacy\u2019s response, nor move to strike Lacy\u2019s comments as not responsive.\nOfficer Barenson identified defendant as the perpetrator, Jonetta\u2019s jewelry was found in defendant\u2019s apartment, defendant\u2019s arm was bleeding profusely immediately after the burglary, and blood was found on the broken glass at Jonetta\u2019s and Lacy\u2019s house. Even if improper character evidence was admitted, defendant has not shown that a different result was probable if the trial court had stricken the testimony. This assignment of error is overruled.\nVI. Ineffective Assistance of Counsel\nIn his final assignment of error, defendant contends that when Officer Barenson entered defendant\u2019s house without a search or arrest warrant his Fourth Amendment rights were violated. Defendant argues that his counsel did not move to suppress the evidence obtained at defendant\u2019s apartment. Defendant claims that this failure constituted ineffective assistance of counsel. We disagree.\n\u201cTo successfully assert an ineffective assistance of counsel claim, defendant must satisfy a two-prong test.\u201d Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984). \u201cFirst, he must show that counsel\u2019s performance fell below an objective standard of reasonableness.\u201d State v. Gainey, 355 N.C. 73, 112, 558 S.E.2d 463, 488 (2002) (citation omitted). \u201cSecond, once defendant satisfies the first prong, he must show that the error committed was so serious that a reasonable probability exists that the trial result would have been different.\u201d Id.\nThere is a presumption that trial counsel acted in the exercise of reasonable professional judgment. Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694. \u201cIn analyzing the reasonableness under the performance prong, the material inquiry, is whether the actions were reasonable considering the totality of the circumstances at the time of performance.\u201d Gainey, 355 N.C. at 112, 558 S.E.2d at 488 (citation omitted). \u201cReviewing courts should avoid the temptation to second-guess the actions of trial counsel, and judicial review of counsel\u2019s performance must be highly deferential.\u201d Id.\nOfficer Barenson\u2019s warrantless entry into defendant\u2019s residence did not violate defendant\u2019s Fourth Amendment rights. The evidence shows that Officer Barenson, Lacy and Jonetta arrived at the front door, heard a violent argument in the apartment, knocked on the door which opened, and walked inside. Officers may enter a house for emergency purposes without a warrant when they believe a person in the house is in need of immediate aid or assistance in order to avoid serous injury. State v. Woods, 136 N.C. App. 386, 391-92, 524 S.E.2d 363, 366 (2000); see also Mincey v. Arizona, 437 U.S. 385, 57 L. Ed. 2d 290 (1978).\nOfficer Barenson could have reasonably believed that someone in the house was in need of immediate assistance based on the violent screaming emanating from inside of the apartment as he, Lacy and Jonetta approached the front door. Once inside, Officer Barenson\u2019s beliefs were justified. Diane was holding a knife, and defendant was bleeding excessively from his arm. Defendant and Diane did not protest Officer Barenson\u2019s, Lacy\u2019s, or Jonetta\u2019s entry. Counsel\u2019s actions in not moving to suppress the evidence were reasonable.\nOnce inside, Officer Barenson\u2019s seizure of the jewelry in plain view was lawful. State v. Worsley, 336 N.C. 268, 282, 443 S.E.2d 68, 75 (1994) (bloody bed-sheet was admissible since it was within the plain view of the officers while they were lawfully on the premises); State v. Allison, 298 N.C. 135, 140, 257 S.E.2d 417, 420 (1979) (\u201cThe seizure of suspicious items in plain view inside a dwelling is lawful if the officer possesses legal authority to be on the premises.\u201d) (citations omitted).\nDefendant has failed to meet the first prong of the ineffective assistance of counsel test. Because defendant has failed to satisfy the first prong, we need not address the second prong. See Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693. This assignment of error is overruled.\nVIL Summary\nWe have carefully examined all of defendant\u2019s argued assignments of error. Those assignments of error not argued are deemed abandoned. N.C.R. App. P. 28(b)(5) (2001). We hold that defendant received a trial free from prejudicial errors that he assigned.\nNo error.\nJudges MARTIN and THOMAS concur.", "type": "majority", "author": "TYSON, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General John P. Scherer, II, for the State.", "Daniel Shatz for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. BENJAMIN FRANKLIN CHINA\nNo. COA01-667\n(Filed 4 June 2002)\n1. Constitutional Law\u2014 right to a speedy trial \u2014 delay in processing appeal\nA defendant\u2019s right to a speedy trial was not violated in a second-degree burglary case even though there was almost a seven-year delay in processing review of his conviction, because: (1) there is no constitutional right to an appeal under the United States Constitution for a convicted criminal, and the right is purely statutory; (2) the record fails to indicate that defendant asserted his right to a speedy appeal prior to 14 June 2000, and defendant contributed to the delay by failing to assert earlier his right to a speedy appeal; (3) although defendant contends he suffered a greater degree of anxiety over the outcome of his appeal compared to a typical appellant, defendant failed to support his claim; and (4) although defendant contends he was prejudiced since the passage of time has prevented him from obtaining a certified transcript of his trial, defendant has failed to show that the unsigned transcript provided in the record is inaccurate.\n2. Evidence\u2014 photographs \u2014 jewelry\nThe trial court did not commit plain error in a second-degree . burglary case by allowing the State to introduce into evidence photographs of the victim\u2019s stolen jewelry that she wore into court during the trial on the grounds that the State failed to disclose to defendant its intention to enter the items into evidence at trial and failed to properly preserve the tangible evidence seized and released to the victim at the crime scene because: (1) even assuming there was error in admitting the photographs into evidence, defendant has failed to show any prejudice when the victims and an officer could have testified about the jewelry regardless of whether the photographs were admitted into evidence; (2) defendant was provided a full opportunity to examine the jewelry prior to its admission into evidence, to object to the trial court\u2019s recommended procedure, or to cross-examine any witness about the jewelry; and (3) defendant has failed to show that but for the admission of these photographs, a different result probably would have occurred or that he was denied a fair trial by the admission of the evidence.\n3. Evidence\u2014 cross-examination \u2014 statement defendant was a thief\nThe trial court did not commit plain error in a second-degree burglary case by failing to intervene ex mero motu during defendant\u2019s cross-examination of one of the victims who stated that defendant was a thief and that the victim knew defendant had to be involved, because: (1) an officer identified defendant as the perpetrator, the victim\u2019s jewelry was found in defendant\u2019s apartment, defendant\u2019s arm was bleeding profusely immediately after the burglary, and blood was found on the broken glass at the victims\u2019 house; and (2) even if improper character evidence was admitted, defendant has not shown that a different result was probable if the trial court had stricken the testimony.\n4. Constitutional Law\u2014 effective assistance of counsel \u2014 failure to move to suppress evidence\nA defendant did not receive ineffective assistance of counsel in a second-degree burglary case based on defense counsel\u2019s failure to move to suppress evidence obtained during a warrantless search of defendant\u2019s apartment, because: (1) the warrantless entry into defendant\u2019s residence did not violate defendant\u2019s Fourth Amendment rights since the officer could have reasonably believed that someone in the house was in need of immediate assistance based on the violent screaming emanating from inside the apartment as he approached the front door along with the two victims; and (2) once inside the apartment, the officer\u2019s seizure of the victim\u2019s jewelry in plain view was lawful.\nAppeal by defendant from judgment entered 28 April 1994 by Judge Anthony M. Brannon in Durham County Superior Court. Heard in the Court of Appeals 28 March 2002.\nAttorney General Roy Cooper, by Assistant Attorney General John P. Scherer, II, for the State.\nDaniel Shatz for defendant-appellant." }, "file_name": "0469-01", "first_page_order": 499, "last_page_order": 510 }