{ "id": 8438816, "name": "STATE OF NORTH CAROLINA v. TIMOTHY SETH PHILLIPS", "name_abbreviation": "State v. Phillips", "decision_date": "2005-07-19", "docket_number": "No. COA04-933", "first_page": "622", "last_page": "636", "citations": [ { "type": "official", "cite": "171 N.C. App. 622" } ], "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": "601 S.E.2d 866", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12631756 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/se2d/601/0866-01" ] }, { "cite": "358 N.C. 734", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12631751, 12631754, 12631756, 12631757, 12631758, 12631675 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/se2d/601/0863-01", "/se2d/601/0865-02", "/se2d/601/0866-01", "/se2d/601/0867-03", "/se2d/601/0867-01", "/se2d/601/0201-02" ] }, { "cite": "607 S.E.2d 651", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "opinion_index": 0 }, { "cite": "359 N.C. 192", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3801344, 3794049, 3795246, 3801519, 3803513, 3793855 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/nc/359/0192-01", "/nc/359/0192-06", "/nc/359/0192-03", "/nc/359/0192-04", "/nc/359/0192-05", "/nc/359/0192-02" ] }, { "cite": "598 S.E.2d 213", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "223" } ], "opinion_index": 0 }, { "cite": "165 N.C. App. 279", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8996879 ], "pin_cites": [ { "page": "293" } ], "opinion_index": 0, "case_paths": [ "/nc-app/165/0279-01" ] }, { "cite": "19 S.E. 863", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1894, "pin_cites": [ { "page": "869" } ], "opinion_index": 0 }, { "cite": "114 N.C. 728", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8651445 ], "year": 1894, "pin_cites": [ { "page": "749-50" } ], "opinion_index": 0, "case_paths": [ "/nc/114/0728-01" ] }, { "cite": "291 S.E.2d 599", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "306 N.C. 90", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567497 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/306/0090-01" ] }, { "cite": "336 S.E.2d 719", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "721", "parenthetical": "\"The accepted practice is to raise claims of ineffective assistance of counsel in post-conviction proceedings, rather than direct appeal.\" (citing e.g., State v. Vickers, 306 N.C. 90, 291 S.E.2d 599 (1982)" } ], "opinion_index": 0 }, { "cite": "78 N.C. App. 190", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520248 ], "year": 1985, "pin_cites": [ { "page": "192", "parenthetical": "\"The accepted practice is to raise claims of ineffective assistance of counsel in post-conviction proceedings, rather than direct appeal.\" (citing e.g., State v. Vickers, 306 N.C. 90, 291 S.E.2d 599 (1982)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/78/0190-01" ] }, { "cite": "153 L. Ed. 2d 162", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2002, "opinion_index": 0 }, { "cite": "535 U.S. 1114", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 354625, 353731, 354760, 353448, 352172, 354576, 355188, 353749, 351828, 354680, 354745, 352827, 353947, 354297 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/us/535/1114-11", "/us/535/1114-05", "/us/535/1114-06", "/us/535/1114-02", "/us/535/1114-09", "/us/535/1114-03", "/us/535/1114-10", "/us/535/1114-08", "/us/535/1114-07", "/us/535/1114-13", "/us/535/1114-04", "/us/535/1114-14", "/us/535/1114-12", "/us/535/1114-01" ] }, { "cite": "558 S.E.2d 861", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "354 N.C. 576", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138424, 138498, 138312, 138390 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/354/0576-01", "/nc/354/0576-02", "/nc/354/0576-04", "/nc/354/0576-03" ] }, { "cite": "557 S.E.2d 500", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "524" } ], "opinion_index": 0 }, { "cite": "354 N.C. 131", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138455 ], "pin_cites": [ { "page": "166" } ], "opinion_index": 0, "case_paths": [ "/nc/354/0131-01" ] }, { "cite": "474 S.E.2d 360", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "344 N.C. 316", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867585 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/344/0316-01" ] }, { "cite": "530 S.E.2d 584", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "587", "parenthetical": "citing State v. Wooten, 344 N.C. 316, 474 S.E.2d 360 (1996)" } ], "opinion_index": 0 }, { "cite": "138 N.C. App. 127", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11078766 ], "year": 2000, "pin_cites": [ { "page": "130", "parenthetical": "citing State v. Wooten, 344 N.C. 316, 474 S.E.2d 360 (1996)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/138/0127-01" ] }, { "cite": "210 S.E.2d 59", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "286 N.C. 339", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566243, 8566276, 8566310, 8566348, 8566382 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/286/0339-01", "/nc/286/0339-02", "/nc/286/0339-03", "/nc/286/0339-04", "/nc/286/0339-05" ] }, { "cite": "84 N.C. 737", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8698711 ], "year": 1881, "opinion_index": 0, "case_paths": [ "/nc/84/0737-01" ] }, { "cite": "208 S.E.2d 206", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "210" } ], "opinion_index": 0 }, { "cite": "23 N.C. App. 52", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547675 ], "pin_cites": [ { "page": "57" } ], "opinion_index": 0, "case_paths": [ "/nc-app/23/0052-01" ] }, { "cite": "121 S.E.2d 736", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "255 N.C. 293", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568698 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/nc/255/0293-01" ] }, { "cite": "249 S.E.2d 417", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1978, "pin_cites": [ { "page": "425", "parenthetical": "even after arguments to the jury have begun, it is not an abuse of discretion for the court to allow additional evidence" } ], "opinion_index": 0 }, { "cite": "296 N.C. 31", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564469 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "45", "parenthetical": "even after arguments to the jury have begun, it is not an abuse of discretion for the court to allow additional evidence" } ], "opinion_index": 0, "case_paths": [ "/nc/296/0031-01" ] }, { "cite": "270 S.E.2d 476", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "301 N.C. 153", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564463 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/301/0153-01" ] }, { "cite": "295 S.E.2d 383", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "389", "parenthetical": "citing State v. Revelle, 301 N.C. 153, 270 S.E.2d 476 (1980); State v. Carson, 296 N.C. 31, 249 S.E.2d 417 (1978); State v. Coffey, 255 N.C. 293, 121 S.E.2d 736 (1961)" } ], "opinion_index": 0 }, { "cite": "306 N.C. 642", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573333 ], "year": 1982, "pin_cites": [ { "page": "653", "parenthetical": "citing State v. Revelle, 301 N.C. 153, 270 S.E.2d 476 (1980); State v. Carson, 296 N.C. 31, 249 S.E.2d 417 (1978); State v. Coffey, 255 N.C. 293, 121 S.E.2d 736 (1961)" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0642-01" ] }, { "cite": "133 L. Ed. 2d 435", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1995, "opinion_index": 0 }, { "cite": "516 U.S. 994", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 324192, 326433, 325570, 326147, 328450, 325243, 328216, 323051, 328556, 324366, 324911, 327448, 327675, 328317 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/us/516/0994-10", "/us/516/0994-09", "/us/516/0994-01", "/us/516/0994-14", "/us/516/0994-08", "/us/516/0994-07", "/us/516/0994-12", "/us/516/0994-06", "/us/516/0994-13", "/us/516/0994-05", "/us/516/0994-04", "/us/516/0994-02", "/us/516/0994-03", "/us/516/0994-11" ] }, { "cite": "456 S.E.2d 771", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "776" } ], "opinion_index": 0 }, { "cite": "340 N.C. 199", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790108 ], "year": 1995, "pin_cites": [ { "page": "209" } ], "opinion_index": 0, "case_paths": [ "/nc/340/0199-01" ] }, { "cite": "481 S.E.2d 418", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "423", "parenthetical": "quoting State v. Bowie, 340 N.C. 199, 209, 456 S.E.2d 771, 776, cert. denied, 516 U.S. 994,133 L. Ed. 2d 435 (1995)" } ], "opinion_index": 0 }, { "cite": "125 N.C. App. 505", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11869055 ], "year": 1997, "pin_cites": [ { "page": "512", "parenthetical": "quoting State v. Bowie, 340 N.C. 199, 209, 456 S.E.2d 771, 776, cert. denied, 516 U.S. 994,133 L. Ed. 2d 435 (1995)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/125/0505-01" ] }, { "cite": "451 S.E.2d 543", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "561" } ], "opinion_index": 0 }, { "cite": "339 N.C. 59", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2556750 ], "year": 1994, "pin_cites": [ { "page": "92" } ], "opinion_index": 0, "case_paths": [ "/nc/339/0059-01" ] }, { "cite": "455 S.E.2d 859", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "866", "parenthetical": "citing State v. Rouse, 339 N.C. 59, 92, 451 S.E.2d 543, 561 (1994)" } ], "opinion_index": 0 }, { "cite": "340 N.C. 52", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790121 ], "year": 1995, "pin_cites": [ { "page": "64", "parenthetical": "citing State v. Rouse, 339 N.C. 59, 92, 451 S.E.2d 543, 561 (1994)" } ], "opinion_index": 0, "case_paths": [ "/nc/340/0052-01" ] }, { "cite": "564 S.E.2d 47", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "355 N.C. 495", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220133, 219941, 219974, 220170, 220013 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/355/0495-02", "/nc/355/0495-03", "/nc/355/0495-05", "/nc/355/0495-01", "/nc/355/0495-04" ] }, { "cite": "340 S.E.2d 383", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "387" } ], "opinion_index": 0 }, { "cite": "315 N.C. 556", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4715095 ], "year": 1986, "pin_cites": [ { "page": "562" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0556-01" ] }, { "cite": "559 S.E.2d 17", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "22" } ], "opinion_index": 0 }, { "cite": "148 N.C. App. 343", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9365860 ], "pin_cites": [ { "page": "351" } ], "opinion_index": 0, "case_paths": [ "/nc-app/148/0343-01" ] }, { "cite": "204 S.E.2d 919", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "921", "parenthetical": "\"not[ing] in passing\" that a breathalyzer test does not give rise to the inference that a party was \"under the influence.\"" } ], "opinion_index": 1 }, { "cite": "21 N.C. App. 541", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8556810 ], "year": 1974, "pin_cites": [ { "page": "543", "parenthetical": "\"not[ing] in passing\" that a breathalyzer test does not give rise to the inference that a party was \"under the influence.\"" } ], "opinion_index": 1, "case_paths": [ "/nc-app/21/0541-01" ] }, { "cite": "537 S.E.2d 840", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "841", "parenthetical": "\"notpng] in passing\" an incorrect citation" } ], "opinion_index": 1 }, { "cite": "140 N.C. App. 590", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12132139 ], "year": 2000, "pin_cites": [ { "page": "591", "parenthetical": "\"notpng] in passing\" an incorrect citation" } ], "opinion_index": 1, "case_paths": [ "/nc-app/140/0590-01" ] }, { "cite": "93 S.E. 905", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1917, "pin_cites": [ { "page": "905", "parenthetical": "\"notpng], in passing,\" the personal history of a party to a prior case" } ], "opinion_index": 1 }, { "cite": "174 N.C. 390", "category": "reporters:state", "reporter": "N.C.", "year": 1917, "pin_cites": [ { "page": "391", "parenthetical": "\"notpng], in passing,\" the personal history of a party to a prior case" } ], "opinion_index": 1 }, { "cite": "37 Hous. L. Rev. 1343", "category": "journals:journal", "reporter": "Hous. L. Rev.", "year": 2000, "pin_cites": [ { "page": "1374" } ], "opinion_index": 1 }, { "cite": "426 N.Y.S.2d 639", "category": "reporters:state", "reporter": "N.Y.S.2d", "weight": 2, "year": 1978, "pin_cites": [ { "page": "648" }, { "page": "648" } ], "opinion_index": 1 }, { "cite": "64 Wash. L. Rev. 851", "category": "journals:journal", "reporter": "Wash. L. Rev.", "year": 1989, "pin_cites": [ { "page": "856" } ], "opinion_index": 1 } ], "analysis": { "cardinality": 1382, "char_count": 34784, "ocr_confidence": 0.742, "pagerank": { "raw": 2.3020953650138734e-07, "percentile": 0.7874934021249888 }, "sha256": "73370bce808c0dd358eeb01227ce4e49291b9460fa9313d83f6ca5c913fc9767", "simhash": "1:96eb8decf07743d7", "word_count": 5641 }, "last_updated": "2023-07-14T21:08:31.744997+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "JUDGE ELMORE concurs.", "JUDGE WYNN concurs in the result by separate opinion." ], "parties": [ "STATE OF NORTH CAROLINA v. TIMOTHY SETH PHILLIPS" ], "opinions": [ { "text": "TYSON, Judge.\nTimothy Seth Phillips (\u201cdefendant\u201d) appeals from judgment entered after a jury found him to be guilty of first-degree murder by torture, first-degree felony murder, and felonious child abuse inflicting serious bodily injury. We find no error.\nI. Background\nDefendant is the biological father of three-year-old Bailey Malian (\u201cBailey\u201d). Bailey lived in foster care beginning in January 2001 until he was placed in defendant\u2019s care on 20 December 2001. Defendant was accorded weekend visitation with his other children from a previous marriage, a twelve-year-old son, Seth Phillips (\u201cSeth\u201d), and a daughter.\nA. State\u2019s Evidence\n1. Emergency Medical Personnel\nOn 14 January 2002, emergency medical personnel (\u201cEMT\u201d) were dispatched to defendant\u2019s residence in response to a 911 call from defendant. Upon arrival, the EMTs found Bailey lying on the bedroom floor without a pulse. Defendant told the EMTs that: (1) Bailey had not felt well and had laid down; (2) defendant went to the mailbox and was gone for about fifteen minutes; (3) upon returning, he found Bailey in the bed not breathing; and (4) he called 911. EMT Phyllis Baity spoke with defendant and was told Bailey had suffered an asthma attack and stopped breathing. When Bailey arrived at the hospital, he had no pulse, no audible heart activity, and a core bodily temperature of sixty-nine degrees Fahrenheit. After three hours of resuscitative attempts and treatment for hypothermia, Bailey was pronounced dead.\nOn 25 March 2002, defendant was indicted for first-degree murder. The trial commenced on 22 September 2003.\n2. Seth Phfflins\nAt trial, Seth testified that after Bailey wet his bed defendant would become very angry and give Bailey a cold bath. Defendant would direct Seth to run a cold bath and to \u201cturn it all the way cold.\u201d Defendant placed Bailey in the tub containing cold water up to his upper stomach. When Bailey tried to crawl out of the tub, defendant pushed him back into the water and told Bailey this was his punishment for wetting his bed.\nSeth also testified: (1) defendant would occasionally quit watching television to make sure Bailey remained in the water for thirty to forty minutes; (2) Bailey would be crying and shivering when defendant removed him from the water; (3) defendant would lay Bailey across the washing machine with his legs hanging off the edge and spank him with a belt; (4) defendant would usually hit Bailey hard about three times; (5) defendant would place Bailey in a comer for about forty-five minutes to an hour; and (6) that this routine happened several times.\nSeth further testified defendant had given Bailey a bicycle for Christmas. Seth stated Bailey experienced some accidents while riding the bicycle but none were severe. On the morning of 13 January 2003, the day before his death, Bailey again wet his bed. Seth stated that defendant administered the punishments described above.\n3. Dr. Todd Hansen\nThe State tendered Dr. Todd Hansen (\u201cDr. Hansen\u201d) as an expert witness without objection from defendant. Dr. Hansen was an emergency room physician who examined Bailey upon arrival at the hospital. He determined Bailey\u2019s core bodily temperature was sixty-nine degrees Fahrenheit.\nDr. Hansen opined that hypothermia was the major cause of Bailey\u2019s death. He could not offer any medical explanation how a child\u2019s temperature could drop to sixty-nine degrees within a fifteen minute time span after defendant asserted he had last checked on Bailey. Dr. Hansen also testified the center bar on Bailey\u2019s bicycle, as shown in a photograph, could not have caused the injuries on his buttocks Dr. Hanson observed and opined those injuries were not accidentally caused.\n4. Dr. Patrick Eugene Lantz\nThe State offered Pathologist Patrick Eugene Lantz (\u201cDr. Lantz\u201d) as an expert witness without objection from defendant. Dr. Lantz performed the autopsy on Bailey and testified he observed bruises consistent with childhood type injuries and eight bruises on the back of Bailey\u2019s head. Dr. Lantz stated the eight bruises were consistent with adult finger \u201cthumping\u201d on the back of Bailey\u2019s head.\nDr. Lantz also observed bruising on Bailey\u2019s buttocks and testified in his opinion the injuries Bailey\u2019s body presented were not caused by falling from a bicycle and were not accidental. Dr. Lantz opined the linear nature of the bruises on the buttocks were consistent with Bailey having been struck with a belt. He found no evidence of any natural disease that would have caused or contributed to Bailey\u2019s death.\nBased upon Bailey\u2019s weight and size, Dr. Lantz opined Bailey could have become severely hypothermic after remaining forty-five minutes to an hour and one-half in water with a temperature of forty-five to fifty-five degrees. Dr. Lantz opined that Bailey\u2019s cause of death was severe hypothermia and that hypoglycemia would not cause the bodily temperature to drop to sixty-nine degrees.\nDr. Lantz also observed two burn marks on Bailey\u2019s left arm and opined the marks were consistent with being caused by a cigarette or cigarette-like object. Finally, Dr. Lantz opined that the burns to Bailey\u2019s arm, the bruising on his buttocks, and severe hypothermia were painful injuries.\nB. Defendant\u2019s Evidence\nDefendant testified in his defense. During cross-examination, defendant was asked about a telephone conversation that allegedly occurred with Danny Corriher (\u201cCorriher\u201d) regarding the water service to defendant\u2019s residence. Defendant stated he spoke with a female to cancel his water services and insisted he did not talk to Corriher and did not say, \u201cthat water done killed my baby.\u201d Defense counsel made a general objection to this line of cross-examination.\nC. State\u2019s Rebuttal\nCorriher is the proprietor of the water system which serviced defendant\u2019s residence. He was called as a witness for the State on rebuttal to impeach defendant\u2019s testimony and his answers on cross-examination. Corriher was asked if he was familiar with 124 Cove View Road located in Mooresville, North Carolina. Corriher testified he had spoken with a male calling from that address to cancel the water service but the person calling never identified himself. Corriher testified the person calling had stated, \u201cthat water had killed his child.\u201d Upon further questioning by Corriher the caller replied, \u201che died in the bathtub.\u201d Corriher stated he assumed that the caller\u2019s baby had drowned.\nDefendant objected to this line of questioning and the judge excused the jury. After voir dire, the State withdrew Corriher\u2019s testimony. The judge instructed the jury that the State had withdrawn Corriher\u2019s testimony and defendant\u2019s answers to the State\u2019s cross-examination had been stricken and to not consider any of Corriher\u2019s testimony during deliberations.\nAfter defendant rested his case on surrebuttal, a charge conference was held and court recessed for the evening. Upon arriving at his office the next day at 7:45 a.m., defense counsel received a tape recorded telephone message left by a caller who identified himself as Allen Lorek (\u201cLorek\u201d). Lorek informed defense counsel that he had witnessed Bailey having a \u201cbad\u201d bicycle wreck and falling in a ditch. Defendant moved to reopen the evidence to allow this witness to rebut Seth\u2019s testimony and the State\u2019s evidence on the cause of Bailey\u2019s bruising. The court denied defendant\u2019s motion.\nThe jury found defendant guilty of first-degree murder by torture, first-degree felony murder, and felonious child abuse inflicting serious bodily injury. Defendant was sentenced to life imprisonment without parole. Defendant appeals.\nII. Issues\nDefendant argues the trial court erred by: (1) permitting the State to question him in an improper and highly prejudicial manner; (2) not granting a mistrial ex mero motu after the State withdrew Corriher\u2019s testimony; and (3) not reopening the evidence to allow admission of newly discovered evidence. Defendant also asserts he was denied effective assistance of counsel.\nIII. Defendant\u2019s Cross-Examination\nDefendant argues the trial court erred by permitting the State to question him in an improper and highly prejudicial manner. We disagree.\nPursuant to Rule 611(b) of the North Carolina Rules of Evidence, \u201c[a] witness may be cross-examined on any matter relevant to any issue in the case, including credibility.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 611(b) (2003). The trial court, however, \u201cshall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 611(a) (2003). \u201c \u2018Because the manner of the presentation of evidence is a matter resting primarily within the discretion of the trial judge, his control of the case will not be disturbed absent a manifest abuse of discretion.\u2019 \u201d State v. Demos, 148 N.C. App. 343, 351, 559 S.E.2d 17, 22 (quoting State v. Harris, 315 N.C. 556, 562, 340 S.E.2d 383, 387 (1986)), cert. denied, 355 N.C. 495, 564 S.E.2d 47 (2002).\nDuring cross-examination, defendant was asked if he had a conversation with Corriher and whether he told Corriher, \u201cthat water done killed my baby.\u201d The State introduced the evidence for the purpose of challenging the credibility of defendant and his explanation of the cause of Bailey\u2019s death. Testing defendant\u2019s credibility and impeaching his explanations of Bailey\u2019s cause of death is relevant evidence well within the scope of cross-examination. N.C. Gen. Stat. \u00a7 8C-1, Rule 611(b). While this line of questioning may be damaging to defendant and cast doubt on his theory and explanation of the cause of Bailey\u2019s death, such evidence is highly probative of the issues at trial. The trial court did not abuse its discretion in allowing the questions. This assignment of error is overruled.\nIV. Ex Mero Motu\nDefendant argues the trial court committed plain error by not declaring a mistrial ex mero motu after the State withdrew Corriher\u2019s testimony.\nDuring rebuttal, the State asked Corriher if anything unusual was said during his telephone conversation. Corriher replied the caller stated, \u201cthat water had killed his child.\u201d Defense counsel objected and the trial court sustained the objection. The court recessed for lunch and after returning into session, the State moved to withdraw Corriher\u2019s testimony. Defendant moved to strike this testimony and asked that a curative instruction be given to the jury.\nAfter the State moved to withdraw Corriher\u2019s testimony, defendant\u2019s motion to strike was granted. Curative instructions were given to the jury. \u201cJurors are presumed to follow a trial judge\u2019s instructions.\u201d State v. Taylor, 340 N.C. 52, 64, 455 S.E.2d 859, 866 (1995) (citing State v. Rouse, 339 N.C. 59, 92, 451 S.E.2d 543, 561 (1994)).\nAfter the judge gave instructions to disregard Corriher\u2019s testimony, defense counsel thanked the court and proceeded to present his case without moving for a mistrial. Presuming Corriher\u2019s testimony before the jury was improper, \u201c \u2018the court cured any error by its action in sustaining the objection and giving the curative instruction.\u2019 \u201d State v. Fletcher, 125 N.C. App. 505, 512, 481 S.E.2d 418, 423 (1997) (quoting State v. Bowie, 340 N.C. 199, 209, 456 S.E.2d 771, 776, cert. denied, 516 U.S. 994,133 L. Ed. 2d 435 (1995)). The trial court did not err by not granting a mistrial ex mero motu. This' assignment of error is dismissed.\nV. Newlv Discovered Evidence\nDefendant asserts the trial judge erred by not reopening the evidence to allow admission of newly discovered evidence.\nN.C. Gen. Stat. \u00a7 15A-1226(b) (2003) provides, \u201c[t]he judge in his discretion may permit any party to introduce additional evidence at any time prior to verdict.\u201d Our Supreme Court has stated, \u201c[t]he trial court has discretionary power to permit the introduction of additional evidence after a party has rested.\u201d State v. Jackson, 306 N.C. 642, 653, 295 S.E.2d 383, 389 (1982) (citing State v. Revelle, 301 N.C. 153, 270 S.E.2d 476 (1980); State v. Carson, 296 N.C. 31, 249 S.E.2d 417 (1978); State v. Coffey, 255 N.C. 293, 121 S.E.2d 736 (1961)). \u201cIt is within the discretion of the trial judge to permit, in the interest of justice, the examination of witnesses at any stage of trial.\u201d State v. Johnson, 23 N.C. App. 52, 57, 208 S.E.2d 206, 210 (citing State v. King, 84 N.C. 737 (1881)), cert. denied, 286 N.C. 339, 210 S.E.2d 59 (1974).\nWe review this ruling for an abuse of discretion and will uphold a trial court\u2019s ruling under N.C. Gen. Stat. \u00a7 15A-1226(b) unless it is shown to be \u201cmanifestly unsupported by reason.\u201d State v. Farmer, 138 N.C. App. 127, 130, 530 S.E.2d 584, 587 (2000) (citing State v. Wooten, 344 N.C. 316, 474 S.E.2d 360 (1996)); see also State v. Carson, 296 N.C. 31, 45, 249 S.E.2d 417, 425 (1978) (even after arguments to the jury have begun, it is not an abuse of discretion for the court to allow additional evidence).\nAfter defendant rested his case on surrebuttal, a charge conference was held. The court was recessed for the evening. A caller, who identified himself as Lorek left a message on defense counsel\u2019s telephone recorder stating he had previously seen Bailey have a bad bicycle wreck and fall into a ditch. Defense counsel called the trial judge at 8:10 a.m. to inform him of the message and moved the court to reopen the evidence. The tape recording of Lorek\u2019s message was presented to and heard by the court.\nOn the tape, the caller identified himself as \u201cAllen Lorek,\u201d and stated: (1) \u201cI saw the little boy crash, he fell into my ditch;\u201d (2) \u201cI ran out into my yard [sic] ask him if he was ok and his brother was there also;\u201d and (3) \u201cI don\u2019t think that he hit his little boy, I think the little guy actually did crash on his bicycle [sic] cause I saw it.\u201d\nDefendant argues the State would not have been prejudiced by reopening the evidence because neither side had concluded their case through closing arguments. The State objected to reopening the evidence. The trial court denied defendant\u2019s motion to reopen the evidence but allowed the tape to be admitted as a proffer of evidence.\nAlthough defendant may not have previously been aware of Lorek\u2019s testimony and presented the evidence and moved the court to reopen the evidence as soon as it was available to him, those facts alone do not warrant a new trial. During preparation for trial, defendant with due diligence could have asked his son, Seth, whether anyone else was present when Bailey fell from his bicycle. Also, during Seth\u2019s cross-examination, defendant could have inquired whether any other person witnessed or made any comments regarding Bailey\u2019s fall from the bicycle.\nEven though Lorek\u2019s testimony may have corroborated defendant\u2019s testimony regarding the severity of the bicycle wreck, defendant testified on direct and cross-examined Seth extensively regarding Bailey\u2019s bicycle wrecks. Relevant \u201cevidence may be excluded ... by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 403. Lorek\u2019s testimony was cumulative and would have only possibly served to corroborate defendant\u2019s testimony or facts brought to the jury\u2019s attention during Seth\u2019s cross-examination. Id.\nBoth Dr. Hansen and Dr. Lantz attributed Bailey\u2019s cause of death to hypothermia and not to bruises. The trial court did not abuse its discretion finding Lorek\u2019s testimony to be cumulative regarding the possible causes of Bailey\u2019s bruises and not allowing defendant\u2019s motion to reopen the trial for additional evidence. This evidence is merely cumulative to other evidence and testimony defendant placed before the jury for its consideration. Id. Defendant has failed to show any abuse in the trial court\u2019s discretion. This assignment of error is overruled.\nVI. Ineffective Assistance of Counsel\nDefendant asserts his trial counsel failed to provide meaningful assistance which prejudiced his defense by not moving for a mistrial after the State offered Corriher\u2019s direct testimony and later withdrew it.\nA defendant\u2019s ineffective assistance of counsel (\u201cIAC\u201d) claim may be brought on direct review \u201cwhen 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.\u201d State v. Fair, 354 N.C. 131, 166, 557 S.E.2d 500, 524 (citations omitted), motion to withdraw opinion denied, 354 N.C. 576, 558 S.E.2d 861 (2001), cert. denied, 535 U.S. 1114, 153 L. Ed. 2d 162 (2002).\nHere, the record is insufficient for us to review and rule on defendant\u2019s claim. The transcripts and record are insufficient for us to determine whether defense counsel\u2019s actions or inaction resulted from trial tactics and strategy or from a lack of preparation or an unfamiliarity with the legal issues. Further, defendant acknowledges in his brief that he \u201cis unable, on the present record, to litigate any of those claims for [IAC].\u201d We decline to reach defendant\u2019s IAC assignment of error because it is not properly raised at this stage of review. This assignment of error is dismissed.\nOur dismissal of this assignment of error is without prejudice to defendant to move for appropriate relief and to request a hearing to determine whether he received effective assistance of counsel. See State v. Dockery, 78 N.C. App. 190, 192, 336 S.E.2d 719, 721 (1985) (\u201cThe accepted practice is to raise claims of ineffective assistance of counsel in post-conviction proceedings, rather than direct appeal.\u201d (citing e.g., State v. Vickers, 306 N.C. 90, 291 S.E.2d 599 (1982)).\nVII. Trial Court\u2019s Ex Parte Communication\nDefendant failed to assign error to or provide any argument in his brief regarding the trial court\u2019s ex parte communication with the Institute of Government. N.C.R. App. P. 28(b)(6) (2004). Any discussion regarding the trial court\u2019s action and authority is extraneous to and not germane to any issue before us on appeal.\nLooseness of language and dicta in judicial opinions, either silently acquiesced in or perpetuated by inadvertent repetition, often insidiously exert their influence until they result in confusing the application of the law, or themselves become crystallized into a kind of authority which the courts, without reference to true principle, are constrained to follow.\nSmith v. R.R., 114 N.C. 728, 749-50, 19 S.E. 863, 869 (1894); see also State v. Clark, 165 N.C. App. 279, 293, 598 S.E.2d 213, 223 (J. Wynn concurring in the result only by separate opinion), disc. rev. denied, 358 N.C. 734, 601 S.E.2d 866, appeal dismissed, 359 N.C. 192, 607 S.E.2d 651 (2004).\nYIII. Conclusion\nDefendant failed to show the trial court committed prejudicial error in allowing the State to question defendant on cross-examination regarding a purported telephone conversation with Corriher. The trial court struck this testimony and provided curative instructions to the jury. The trial court did not err in not granting a mistrial ex mero mo tu.\nDefendant failed to show the trial court abused its discretion by not allowing defendant to introduce testimony of a newly found witness. That witness\u2019s proffered testimony was cumulative of other evidence defendant already presented. Defendant had the opportunity to learn of Lorek\u2019s presence at Bailey\u2019s bicycle accident through his son, Seth, prior to and during trial.\nDefendant\u2019s claim of ineffective assistance of counsel is not properly before us and is dismissed without prejudice. Defendant received a fair trial free from prejudicial errors he preserved and argued.\nNo error.\nJUDGE ELMORE concurs.\nJUDGE WYNN concurs in the result by separate opinion.", "type": "majority", "author": "TYSON, Judge." }, { "text": "WYNN, Judge\nconcurring in the result.\nI write separately to note in passing an apparently on-going occurrence in our judiciary in which judges are permitted, without restriction, under our Code of Judicial Conduct to engage in ex parte discussions on issues of law with individuals (\u201cdisinterested experts\u201d) who are not parties to the proceeding. N.C. Code of Judicial Conduct Canon 3(A)(4) (2003).\nIn this case, the trial court initially indicated that it would admit evidence of a telephone conversation that Corriher allegedly had with Defendant. Shortly thereafter, however, the State withdrew Corriher\u2019s testimony. The trial court responded that it thought the testimony was admissible and had conferred with the Institute of Government during the lunch recess. After probing by defense counsel, the trial judge revealed the name of the individual that he spoke to at the Institute of Government, \u201cMs. Smith.\u201d\nWhile this assertion by the trial judge appears at first glance to be benign, I believe it raises a strong concern regarding the apparently common practice of judges consulting \u201cdisinterested experts\u201d or obtaining opinions from non-judicial entities such as the Institute of Government on the law applicable to a proceeding before them.\nThe primary reason that ex 'parte communications are prohibited, is to ensure that parties appearing \u201cbefore a judge have access to the relevant materials on which a judge may rely.\u201d Andrew L. Kaufman, Judicial Ethics: The Less-Often Asked Questions, 64 Wash. L. Rev. 851, 856 (1989). Nearly all states that allow a judge to engage in ex parte communication with an expert on the law require that certain due process and notice concerns be given to the parties. Indeed, those states generally track the language of the American Bar Association Model Code of Judicial Conduct Canon 3(B)(7) which gives guidance to the judiciary on the use of a disinterested expert. The ABA Model Code of Judicial Conduct Canon 3(B)(7)(b) provides: \u201cA judge may obtain the advice of a disinterested expert on the law applicable to a proceeding before the judge if the judge gives notice to the parties of the person consulted and the substance of the advice, and affords the parties reasonable opportunity to respond.\u201d Thus, the Model Code requires that the trial judge give the parties notice of the expert consulted and the substance of the advice, as well as requires that the parties be given a chance to respond. But see Alaska Code of Judicial Conduct Canon 3(B)(7) (2005) (commentary to rule states \u201cA judge may not ex parte seek advice on the law applicable to a proceeding from a disinterested expert.\u201d).\nIn contrast, our Code of Judicial Conduct does not give any guidance to the judiciary as to who is a \u201cdisinterested expert,\u201d whether the parties should be notified, whether the parties must be told the substance of the communication, whether the parties must be given a chance to respond to the expert\u2019s advice, or what exactly a judge may ask the expert. Instead, Canon 3(A)(4) unrestrictively provides that: \u201cA judge, however, may obtain the advice of a disinterested expert on the law applicable to a proceeding before him.\u201d\nSignificantly, even in a criminal proceeding in which defendants are constitutionally entitled to be present at every critical stage of the criminal proceeding, U.S. Const, amend. VI; N.C. Const, art. I, \u00a7 23, our Code provides for no notice to parties of the ex parte communication with a \u201cdisinterested expert.\u201d This creates a problem as the expert contacted by the trial judge is supposed to be disinterested in the parties, the issues and facts of the proceeding, and the outcome of the proceeding. Giving the parties notice of the ex parte communication, as well as the identity of the expert contacted and substance of the advice given, is prudent because\nit cannot be assumed that legal and other experts will give only objective advice. They may have developed philosophical loyalties which affect the advice that they give; as practicing attorneys they may have cases involving the same problems on which they are rendering advice; as consultants they may owe allegiance to business or other interests that could benefit from acceptance by courts of their viewpoints.\nIn re Fuchsberg, 426 N.Y.S.2d 639, 648 (N.Y. Ct. Jud. 1978).\nFurther, our Code does not require the court to allow parties a chance to respond to the substance of the advice given by the judge. \u201cUnless the parties are given the opportunity to respond to the expert and the substance of his advice, his prejudices and preconceptions may go unchallenged. In short, the practice of judicial consultation with experts without notice to the parties is fraught with dangers.\u201d Id.-, see also Leslie W. Abramson, The Judicial Ethics of Ex Parte and Other Communications, 37 Hous. L. Rev. 1343, 1374 (2000).\nClearly, Canon 3(B)(7) of the ABA Model Code gives a great deal more protection to the parties than.does Canon 3(A)(4) of the N.C. Code of Judicial Conduct. But in the interest of protecting the independence, impartiality, and integrity of our judiciary, our judges should be cautious about having an ex parte communication with an \u201cexpert.\u201d At the very least, judges should give notice to the parties of the communication, the identity of the \u201cdisinterested expert,\u201d the substance of the communication, and afford the parties an opportunity to respond. See In re Fuchsberg, 426 N.Y.S.2d at 648 (\u201cEx parte conversations or correspondence with experts, law teachers or otherwise, is unfair and can be misleading. The facts given may be incomplete or inaccurate, the problem can be incorrectly stated or other matters can be incorrectly stated.\u201d) (internal citation omitted).\nIt is essential that the independence, impartiality and integrity of the judiciary in the decision-making process are protected. After all, \u201c[a]n independent and honorable judiciary is indispensable to justice in our society.\u201d N.C. Code of Judicial Conduct Canon 1.\n. The practice of our courts commenting on relevant matters in the record that are not raised by the parties is well established by \u201cnoting in passing.\u201d See, e.g., First Nat\u2019l Bank of Lumberton v. McCaskill, 174 N.C. 390, 391, 93 S.E. 905, 905 (1917) (\u201cnotpng], in passing,\u201d the personal history of a party to a prior case); Onuska v. Barnwell, 140 N.C. App. 590, 591, 537 S.E.2d 840, 841 (2000) (\u201cnotpng] in passing\u201d an incorrect citation); State v. Jenkins, 21 N.C. App. 541, 543, 204 S.E.2d 919, 921 (1974) (\u201cnot[ing] in passing\u201d that a breathalyzer test does not give rise to the inference that a party was \u201cunder the influence.\u201d). While not binding, this practice allows our courts to move beyond the technical rules of appeal to provide guidance for improving the legal profession.\n. Canon 3(A)(4) of the North Carolina Code of Judicial Conduct provides:'\nA judge should accord to every person who is legally interested in a proceeding, or his lawyer, full right to be heard according to law, and, except as authorized by law, neither initiate nor consider ex parte or other communications concerning a pending or impending proceeding. A judge, however, may obtain the advice of a disinterested expert on the law applicable to a proceeding before him.\n. The mission of the Institute of Government located at the University of North Carolina at Chapel Hill is: \u201cTo provide to state, county, and municipal officials and employees programs of instruction, research, and consultation to help them improve and maintain their effectiveness, efficiency, and economy. The institute also provides special programs for the news media and non-profit organizations with govemmentally related purposes.\u201d Institute of Government, available at httn://www.ncruralcenter.org/guidebook/viewresource.asp?ID=27 (last visited 24 June 2006). The mission statement does not indicate the Institute of Government provides any services for criminal defendants.\n. The following states follow Model Code of Judicial Conduct Canon 3(B)(7): Ala. Canons of Judicial Ethics Canon 3(A)(4); Ark. Code of Judicial Conduct Canon 3; Cal. Code of Judicial Ethics Canon 3(B)(7); Colo. Code of Judicial Conduct Canon 3(A)(4); Conn. Code of Judicial Conduct Canon 3(A)(4); Del. Judges\u2019 Code of Judicial Conduct Canon 3(A)(4); Fla. Code of Judicial Conduct Canon 3(B)(7)(b); The Ga.' Code of Judicial Conduct Canon 3(B)(7); Haw. Code of Judicial Conduct Canon 3(B)(7); Idaho Code of Judicial Conduct Canon 3(B)(7); Ind. Code of Judicial Conduct Canon 3(B)(8); La. Code of Judicial Conduct Canon 3(A)(4); Me. Code of Judicial Conduct Canon 3(B)(7); Md. Code of Judicial Conduct Canon 3(A)(5); Mich. Code of Judicial Conduct Canon 3(A)(4); Minn. Code of Judicial Conduct Canon 3(A)(4); Miss. Code of Judicial Conduct Canon 3(B)(4); Mo. Code of Judicial Conduct Canon 3(B)(7); Neb. Code of Judicial Conduct Canon 3(B)(7); Nev. Code of Judicial Conduct Canon 3(B)(7); N.J. Code of Judicial Conduct Canon 3(A)(6); N.M. Code of Judicial Conduct Rule 21-300(B)(7); 22 N.Y.C.R.R. \u00a7 100.3(B)(6); N.D. Code of Judicial Conduct Canon 3(B)(7); Ohio Code of Judicial Conduct Canon 3(B)(7); Okla. Code of Judicial Conduct Canon 3(B)(6); R.I. Code of Judicial Conduct Canon 3(B)(8); S.C. Code of Judicial Conduct Canon 3(B)(4); S.D. Code of Judicial Conduct Canon 3(B)(7); Tenn. Code of Judicial Conduct Canon 3(B)(7); Tex. Code of Judicial Conduct Canon 3(B)(8); Utah Code of Judicial Conduct Canon 3(B)(7); Vt. Code of Judicial Conduct Canon 3(B)(7); Va. Canons of Judicial Conduct Canon 3(B)(7); W. Va. Code of Judicial Conduct Canon 3(B)(7); Wis. SCR 60.04(l)(g); Wyo. Code of Judicial Conduct Canon 3(B)(7).\n. In this case, the trial judge consulted the Institute of Government. Given that the mission of the Institute of Government is to serve only governmental entities (see, supra, footnote 3), it is questionable as to whether the Institute of Government qualifies as a \u201cdisinterested expert\u201d on the law in a criminal proceeding.\n. It should be noted that in North Carolina, our trial judges are not provided research assistants. In federal courts, and increasingly in many state jurisdictions, trial judges are being provided the assistance of law clerks, which lessens the need to seek advice from \u201cdisinterested experts\u201d on the law applicable to proceedings before them.", "type": "concurrence", "author": "WYNN, Judge" } ], "attorneys": [ "Attorney General Roy Cooper, by Special Deputy Attorney General Jill Ledford Cheek, for the State.", "Public Defender Isabel Scott Day, by Assistant Public Defender Julie Ramseur Lewis, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. TIMOTHY SETH PHILLIPS\nNo. COA04-933\n(Filed 19 July 2005)\n1. Evidence\u2014 cross-examination \u2014 credibility\u2014impeachment\nThe trial court did not abuse its discretion in a first-degree murder by torture, first-degree felony murder, and felonious child abuse inflicting serious bodily injury case by permitting the State to ask defendant during cross-examination if he had a conversation with the owner of a water company that serviced defendant\u2019s residence and whether he told the owner \u201cthat water done killed my baby,\u201d because: (1) testing defendant\u2019s credibility and impeaching his explanations of the minor child\u2019s cause of death is relevant evidence well within the scope of cross-examination; and (2) while this line of questioning may be damaging to defendant and cast doubt on his theory and explanation of the cause of the child\u2019s death, such evidence is highly probative of the issues at trial.\n2. Criminal Law\u2014 failure to grant mistrial ex mero motu\u2014 curative instruction\nThe trial court did not err in a first-degree murder by torture, first-degree felony murder, and felonious child abuse inflicting serious bodily injury case by failing to grant a mistrial ex mero motu after the State withdrew the testimony of the owner of a water company that serviced defendant\u2019s residence that stated defendant said \u201cthat water had killed his child\u201d because assuming the testimony before the jury was improper, the court cured any error by its action in sustaining the objection and giving a curative instruction.\n3. Criminal Law\u2014 failure to reopen evidence \u2014 newly discovered evidence \u2014 cumulative\nThe trial court did not abuse its discretion in a first-degree murder by torture, first-degree felony murder, and felonious child abuse inflicting serious bodily injury case by failing to reopen the evidence to allow admission of newly discovered evidence from a newly found witness who stated he saw the victim crash on his bicycle, which evidence defendant contends shows how the victim got bruises on his body, because: (1) defendant had the opportunity to learn of the witness\u2019s presence at his younger son\u2019s bicycle accident through his older son prior to and during trial; (2) even though the witness\u2019s testimony may have corroborated defendant\u2019s testimony regarding the severity of his younger son\u2019s bicycle wreck, defendant testified on direct and cross-examined his older son extensively regarding the younger son\u2019s bicycle wreck; (3) the witness\u2019s testimony was cumulative regarding the possible causes of the younger son\u2019s bruises and would have only possibly served to corroborate defendant\u2019s testimony or facts brought to the jury\u2019s attention during the older son\u2019s cross-examination; and (4) two doctors attributed the younger son\u2019s cause of death to hypothermia and not to bruises. N.C.G.S. \u00a7 15A-1226(b).\n4. Constitutional Law\u2014 effective assistance of counsel \u2014 failure to move for mistrial \u2014 insufficient record\nAlthough defendant contends he received ineffective assistance of counsel (IAC)in a first-degree murder by torture, first-degree felony murder, and felonious child abuse inflicting serious bodily injury case by his counsel\u2019s failure to move for a mistrial after the State offered and later withdrew the direct testimony of the owner of a water company that serviced defendant\u2019s residence that defendant said \u201cthat water had killed his child,\u201d this assignment of error is dismissed without prejudice to defendant to move for appropriate relief and to request a hearing to determine whether he received effective assistance of counsel because: (1) the transcripts and records are insufficient to determine whether defense counsel\u2019s actions or inaction resulted from trial tactics and strategy, from a lack of preparation, or an unfamiliarity with the legal issues; and (2) defendant acknowledges in his brief that he is unable, on the present record, to litigate any of those claims for IAC.\n5. Appeal and Error\u2014 preservation of issues \u2014 failure to assign error \u2014 failure to argue\nDefendant failed to assign error to or provide any argument in his brief regarding the trial court\u2019s ex parte communication with the Institute of Government as required by N.C. R. App. P. 28(b)(6), and thus, this issue is waived.\nJudge Wynn concurring in the result.\nAppeal by defendant from judgment entered 3 October 2003 by Judge Christopher M. Collier in Iredell County Superior Court. Heard in the Court of Appeals 22 March 2005.\nAttorney General Roy Cooper, by Special Deputy Attorney General Jill Ledford Cheek, for the State.\nPublic Defender Isabel Scott Day, by Assistant Public Defender Julie Ramseur Lewis, for defendant-appellant." }, "file_name": "0622-01", "first_page_order": 652, "last_page_order": 666 }