{ "id": 8372401, "name": "STATE OF NORTH CAROLINA v. JAMES EARL THOMAS", "name_abbreviation": "State v. Thomas", "decision_date": "2007-11-06", "docket_number": "No. COA07-60", "first_page": "140", "last_page": "147", "citations": [ { "type": "official", "cite": "187 N.C. App. 140" } ], "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": "611 S.E.2d 891", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632729 ], "year": 2005, "pin_cites": [ { "page": "898" } ], "opinion_index": 0, "case_paths": [ "/se2d/611/0891-01" ] }, { "cite": "626 S.E.2d 271", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635151 ], "weight": 3, "year": 2006, "pin_cites": [ { "page": "286" }, { "parenthetical": "citations omitted" }, { "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/626/0271-01" ] }, { "cite": "637 S.E.2d 244", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637244 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "248", "parenthetical": "citations omitted in original" }, { "page": "249" } ], "opinion_index": 0, "case_paths": [ "/se2d/637/0244-01" ] }, { "cite": "170 N.C. App. 57", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9004208 ], "year": 2005, "pin_cites": [ { "page": "67" } ], "opinion_index": 0, "case_paths": [ "/nc-app/170/0057-01" ] }, { "cite": "392 S.E.2d 364", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "373" } ], "opinion_index": 0 }, { "cite": "326 N.C. 646", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5308210 ], "year": 1990, "pin_cites": [ { "page": "661-62" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0646-01" ] }, { "cite": "360 N.C. 297", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3787721 ], "year": 2006, "pin_cites": [ { "page": "316" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0297-01" ] }, { "cite": "368 S.E.2d 633", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "638" } ], "opinion_index": 0 }, { "cite": "322 N.C. 415", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2517206 ], "year": 1988, "pin_cites": [ { "page": "424" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0415-01" ] }, { "cite": "440 S.E.2d 797", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1994, "opinion_index": 0 }, { "cite": "335 N.C. 567", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2527903 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/335/0567-01" ] }, { "cite": "347 S.E.2d 7", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "18" }, { "page": "18-19" } ], "opinion_index": 0 }, { "cite": "317 N.C. 417", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4773087 ], "year": 1986, "pin_cites": [ { "page": "436" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0417-01" ] }, { "cite": "229 S.E.2d 285", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1976, "pin_cites": [ { "page": "293" } ], "opinion_index": 0 }, { "cite": "291 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557231 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/291/0001-01" ] }, { "cite": "283 S.E.2d 502", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1981, "pin_cites": [ { "page": "505" }, { "page": "505-06" }, { "page": "505" } ], "opinion_index": 0 }, { "cite": "304 N.C. 349", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567671 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "353" }, { "page": "363" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0349-01" ] }, { "cite": "180 N.C. App. 403", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8242587 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "409", "parenthetical": "citations omitted in original" }, { "page": "411" } ], "opinion_index": 0, "case_paths": [ "/nc-app/180/0403-01" ] }, { "cite": "450 U.S. 261", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6184550 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "271" }, { "page": "230" } ], "opinion_index": 0, "case_paths": [ "/us/450/0261-01" ] }, { "cite": "324 S.E.2d 241", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "247" } ], "opinion_index": 0 }, { "cite": "312 N.C. 553", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4753359 ], "year": 1985, "pin_cites": [ { "page": "561" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0553-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "686" }, { "page": "692" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "474 S.E.2d 336", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "343", "parenthetical": "citing Strickland v. Washington, 466 U.S. 668, 686, 80 L. Ed. 2d 674, 692 (1984); State v. Braswell, 312 N.C. 553, 561, 324 S.E.2d 241, 247 (1985)" } ], "opinion_index": 0 }, { "cite": "344 N.C. 381", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867667 ], "year": 1996, "pin_cites": [ { "page": "391", "parenthetical": "citing Strickland v. Washington, 466 U.S. 668, 686, 80 L. Ed. 2d 674, 692 (1984); State v. Braswell, 312 N.C. 553, 561, 324 S.E.2d 241, 247 (1985)" } ], "opinion_index": 0, "case_paths": [ "/nc/344/0381-01" ] }, { "cite": "402 S.E.2d 162", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "163" }, { "page": "163" } ], "opinion_index": 0 }, { "cite": "102 N.C. App. 473", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524715 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "474" }, { "page": "475" } ], "opinion_index": 0, "case_paths": [ "/nc-app/102/0473-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-27.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "pin_cites": [ { "page": "(a)(l)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 768, "char_count": 18087, "ocr_confidence": 0.76, "pagerank": { "raw": 5.4033266686372354e-08, "percentile": 0.33980629758723385 }, "sha256": "2aad2ef7319aa5a4a18ade1c9ededff0a4746bf0aa393469100ddd217f59d43c", "simhash": "1:e929954a6745cc50", "word_count": 2929 }, "last_updated": "2023-07-14T22:19:56.575920+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and JACKSON concur." ], "parties": [ "STATE OF NORTH CAROLINA v. JAMES EARL THOMAS" ], "opinions": [ { "text": "HUNTER, Judge.\nJames Earl Thomas (\u201cdefendant\u201d) appeals from a judgment entered 30 August 2006 pursuant to a jury verdict finding him guilty of first degree rape in violation of N.C. Gen. Stat. \u00a7 14-27.2(a)(l) (2005). Defendant was sentenced to a minimum of 384 months\u2019 and a maximum of 470 months\u2019 imprisonment. After careful consideration, we find that defendant\u2019s trial was free from error.\nThe State presented evidence that tended to show that the victim, referred to as \u201cBH\u201d in this opinion, was spending the night at a friend\u2019s house. BH was sleeping on the floor next to her friend, TD, when defendant, who is TD\u2019s stepfather, entered the room. BH testified that after defendant entered the room, he dragged her to the door, took off her clothes, and \u201cput his stuff into\u201d hers. BH told defendant to stop. The only other person in the house was TD, and BH called to her, but TD did not wake up. After defendant left, BH testified that she was bleeding from her vagina.\nApproximately one month later, BH told her mother about the incident. Her mother called the police. Deputy S.M. Currin testified that BH told him that defendant \u201ctried to make me have sex with [him].\u201d He also stated that BH told him that defendant \u201cwas having sex with me when I didn\u2019t want to.\u201d\nDr. Vivian D. Everett examined BH and found nothing during that physical examination that would indicate that BH had been sexually abused. Dr. Everett also testified that, based on her examination of BH, a single act of intercourse could have occurred.\nDefendant\u2019s expert, Dr. Christopher Chao, had reviewed BH\u2019s medical records and testified that there was no evidence of trauma or injury to BH\u2019s genitals. Dr. Chao testified that if the trauma had occurred two months earlier, there would be no evidence of that trauma, and lack of trauma did not indicate lack of penetration.\nVincent Harris (\u201cHarris\u201d or \u201cwitness Harris\u201d) also testified at trial. Three years before the trial, defendant\u2019s counsel had represented Harris in an unrelated matter. At the time of the trial, Harris was in jail on a charge of breaking and entering and had been indicted as an habitual felon. According to Harris, defendant told him that he had dragged BH out of the bedroom, pulled her pants down, and had sex with her. Harris also said that defendant admitted to there being blood on the floor where the incident occurred and that defendant cleaned up afterward. Defendant did not testify.\nDefendant presents the following issues for this Court\u2019s review: (1) whether the trial court erred in denying defense counsel\u2019s motion to withdraw; (2) whether the trial court committed plain error by not instructing the jury on the lesser charge of attempted first degree rape; and (3) whether defendant\u2019s trial counsel was inadequate by not making certain requests, thereby' depriving defendant of a full and adequate appeal of trial errors.\nI.\nDefendant\u2019s trial attorney filed a motion to withdraw as counsel because the State intended to call as a witness against defendant one of the attorney\u2019s former clients, Harris. The attorney had represented Harris three years earlier in an unrelated matter. The trial court conducted an inquiry and made a ruling to deny this motion. Thus, defendant\u2019s argument that the denial of his counsel\u2019s motion to withdraw was made without a hearing is rejected. Defendant also argues that the ruling denied his right to counsel. We disagree.\n\u201cAn accused\u2019s right to counsel in a criminal prosecution is guaranteed by the Sixth Amendment of the United States Constitution and is applicable to the states through the Fourteenth Amendment, Sections 19 and 23 of the North Carolina Constitution.\u201d State v. Shores, 102 N.C. App. 473, 474, 402 S.E.2d 162, 163 (1991). It thus follows that defendants in criminal cases have \u201ca constitutional right to effective assistance of counsel.\u201d State v. Bruton, 344 N.C. 381, 391, 474 S.E.2d 336, 343 (1996) (citing Strickland v. Washington, 466 U.S. 668, 686, 80 L. Ed. 2d 674, 692 (1984); State v. Braswell, 312 N.C. 553, 561, 324 S.E.2d 241, 247 (1985)). Included within that right is the \u201c \u2018right to representation that is free from conflicts of interest.\u2019 \u201d Id. (quoting Wood v. Georgia, 450 U.S. 261, 271, 67 L. Ed. 2d 220, 230 (1981)).\nWhen, as in this case, a trial court is made aware of a potential conflict of interest, it must hold a hearing \u201c \u2018 \u201cto determine whether there exists such a conflict of interest that the defendant will be prevented from receiving advice and assistance sufficient to afford him the quality of. representation guaranteed by the [S]ixth Amendment.\u201d \u2019 \u201d State v. Mims, 180 N.C. App. 403, 409, 637 S.E.2d 244, 248 (2006) (citations omitted in original) (failure to hold a hearing after being made aware of it is reversible error). Here, the trial court held such a hearing. While hearings are required, \u201c[t]he trial court must be given substantial latitude in granting or denying a motion for attorney disqualification.\u201d Shores, 102 N.C. App. at 475, 402 S.E.2d at 163.\nIn the instant case, we hold that defendant was not prevented from receiving the quality of representation guaranteed by the Sixth Amendment. Here, there was no concurrent conflict of interest. Defense counsel had represented witness Harris three years prior to defendant\u2019s trial and was no longer representing him. See Rev. R. Prof. Conduct N.C. St. B. 1.7(a), 2007 Ann. R. N.C. 746 (stating that \u201ca lawyer shall not represent a client if the representation involves a concurrent conflict of interest\u201d) (cited with approval by Mims, 180 N.C. App. at 411, 637 S.E.2d at 249). Moreover, defense counsel had no recollection as to specifics of witness Harris\u2019s case aside from the bare fact that witness Harris had been convicted on assault charges. Indeed, defense counsel told the trial court that she would review witness Harris\u2019s file, which she had in her office, to see if she could use any information in that file to help her current client. That statement establishes that defense counsel was committed to her current client\u2019s case and would not hesitate to use any information at her disposal to aid defendant.\nAlthough defense counsel\u2019s cross-examination as to witness Harris\u2019s past convictions may not have been as robust as it could have been, the transcript reveals that defense counsel did make significant inroads to undermine witness Harris\u2019s credibility. She asked him about the fight defendant had with witness Harris in jail, in which witness Harris was knocked unconscious; how after that incident, witness Harris decided to cooperate with the police; and about what witness Harris expected to receive in terms of a deal on his own pending felony charges for informing on defendant. Accordingly, we hold that defendant\u2019s Sixth Amendment rights under the United States Constitution and his rights under Sections 19 and 23 of the North Carolina Constitution were not violated.' Defendant\u2019s assignments of error as to this issue are rejected.\nII.\nDefendant next argues that the trial erred by not instructing the jury, upon its own motion, on attempted first degree rape. We disagree.\n\u201cInstructions on the lesser included offenses of first degree rape are warranted only when there is some doubt or conflict concerning the crucial element of penetration.\u201d State v. Wright, 304 N.C. 349, 353, 283 S.E.2d 502, 505 (1981). In Wright, our Supreme Court held that where there was only conflict as to how the penetration occurred (whether defendant inserted his penis or whether the victim assisted him), an instruction on attempted rape was not warranted. Id. at 355, 283 S.E.2d at 505-06. Similarly, in State v. Davis, 291 N.C. 1, 229 S.E.2d 285 (1976), our Supreme Court held that submitting the charge of second degree attempted rape would have been inappropriate because all the evidence in that case tended \u201cto show a completed act of intercourse and the only issue [was] whether the act was with the prosecuting witness\u2019s consent or by force and against her will[.]\u201d Id. at 13, 229 S.E.2d at 293.\nInstructions on attempted rape have been required where there is conflicting evidence as to penetration or when, from the evidence presented, the jury may draw conflicting inferences. State v. Johnson, 317 N.C. 417, 436, 347 S.E.2d 7, 18 (1986), superseded by statute as stated in, State v. Moore, 335 N.C. 567, 440 S.E.2d 797 (1994). In Johnson, the victim testified that penetration had occurred. Id. On cross-examination, however, the victim \u201ctestified that on the morning she was raped, she gave to the police a written statement in which she said, regarding the assailant\u2019s first attack, that the man \u2018tried to push it in but couldn\u2019t\u2019 and that \u2018[h]e tried for maybe fifteen seconds.\u2019 \u201d Id. As to the second attack, the victim told the police that \u201c \u2018he tried to penetrate me again\u2019 and \u2018[h]e told me to put it in, and I said \u201cI have.\u201d He tried to get it in but couldn\u2019t.\u2019 \u201d Id.\nIn addition to that testimony, her treating physician testified that the victim had told him that \u201cshe \u2018felt pressure but not penetration\u2019 and she was uncertain whether there had been penetration or not.\u201d Id. Our Supreme Court held that \u201c [t]his evidence creates a conflict as to whether penetration occurred which should have been resolved by the jury under appropriate instructions [on attempt].\u201d Id. The error was reversible because, according to the Johnson Court, the fact that \u201cthe jury convicted defendant of first degree rape which required it to find penetration does not render the error harmless.\u201d Id. at 436-37, 347 S.E.2d at 18-19.\nIn the instant case, defendant relies on BH\u2019s testimony that \u201c[defendant] tried to make me have sex with [him,]\u201d as evidence permitting a jury to draw a conflicting inference as to penetration. Defendant also relies on the lack of medical evidence of penetration in making this argument. We disagree that this evidence created a conflict that would necessitate an instruction on first degree attempted rape.\nThe crucial element in establishing first degree rape is that there was some penetration. Wright, 304 N.C. at 363, 283 S.E.2d at 505. Although defendant presented evidence that BH\u2019s genitals showed no evidence of trauma, the expert witness also testified that lack of trauma does not indicate lack of penetration. Moreover, penetration does not require \u201c \u2018that the vagina be entered or that the hymen be ruptured. The entering of the vulva or labia'is sufficient.\u2019 \u201d State v. Fletcher, 322 N.C. 415, 424, 368 S.E.2d 633, 638 (1988). The State put. on evidence from BH that defendant had inserted his penis into her vagina, which was corroborated by Deputy Currin who confirmed that BH had told him that defendant inserted his penis into her vagina, as well as evidence from Harris, who testified that defendant told him that he had sex with BH. Merely presenting evidence that no trauma occurred to BH is not sufficient to establish a conflict of evidence as to penetration.\nWe find defendant\u2019s additional argument that BH\u2019s testimony that defendant \u201ctried to . . . have sex\u201d with her equally unpersuasive. At the outset, this evidence falls far short of the standard set in Johnson where the alleged victim told both the police and her doctor that no penetration had occurred. Moreover, the testimony does not create doubt as to whether the penetration actually occurred. The statement is consistent with penetration occurring as, according to BH\u2019s testimony, defendant did try to penetrate her and eventually was able to do so. Accordingly, defendant\u2019s arguments as to this issue are rejected.\nIII.\nDefendant next argues that he received ineffective assistance of counsel because his trial counsel did not request recordation of opening/closing arguments, jury selection, and rulings from the trial court on matters of law. Defendant acknowledges that he cannot show prejudice as to this issue and has made the argument for preservation purposes only.\n\u201cTo prevail on a claim of ineffective assistance of counsel, a defendant must first show that his counsel\u2019s performance was deficient and then that counsel\u2019s deficient performance prejudiced his defense.\u201d State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271, 286 (2006). Deficient performance may be shown by establishing \u201cthat \u2018counsel\u2019s representation \u201cfell below an objective standard of reasonableness.\u201d \u2019 \u201d Id. (citations omitted). In order \u201c \u2018to establish prejudice, a \u201cdefendant must show that there is a reasonable probability that, but for counsel\u2019s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.\u201d- \u2019 \u201d Id. (citations omitted).\nN.C. Gen. Stat. \u00a7 15A-1241(a) (2005) excludes from mandatory recording: \u201c(1) [selection of the jury in noncapital cases; (2) [opening statements and final arguments of counsel to the jury; and (3) [arguments of counsel on questions of law.\u201d Under subsection (b) of that statute, all of the above may be recorded upon request of any party. N.C. Gen. Stat. \u00a7 15A-1241(b). In the instant case, no such request was made.\nIn State v. Hardison, 326 N.C. 646, 661-62, 392 S.E.2d 364, 373 (1990), our Supreme Court held that a defendant cannot establish ineffective assistance of counsel for failure to request recordation of the jury selection and bench conferences where no specific allegations of error were made and no attempts were made to reconstruct the transcript. Moreover, this Court has held that a defendant-cannot establish prejudice as a result of defense counsel\u2019s failure to request recordation of those items specifically exempted from the recording statute. State v. Price, 170 N.C. App. 57, 67, 611 S.E.2d 891, 898 (2005). Thus, defendant is unable to establish ineffective assistance of counsel or any prejudice as a result of failure to record. Accordingly, his assignment of error as to this issue is rejected.\nIV.\nIn summary, we hold that the trial court did not err in denying defense counsel\u2019s motion to withdraw. We also find that the trial court did not err when instructing the jury. Finally, defendant cannot establish ineffective assistance of counsel by trial counsel for not requesting recordation of the complete trial proceedings. Defendant\u2019s trial was free from error.\nNo error.\nJudges WYNN and JACKSON concur.\n. As stated earlier, the trial court barred defense counsel from reviewing those files.\n. When defense counsel asked about witness Harris\u2019s prior criminal record, the following exchange took place:\nA I have not the slightest idea.\nQ It\u2019s a lot, isn\u2019t it?\nA It occurred much.\n[Defense Attorney]: Your Honor, that\u2019s all.", "type": "majority", "author": "HUNTER, Judge." } ], "attorneys": [ "Attorney General Roy A. Cooper, III, by Assistant Attorney General Chris Z. Sinha, for the State.", "M. Alexander Chams for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JAMES EARL THOMAS\nNo. COA07-60\n(Filed 6 November 2007)\n1. Constitutional Law\u2014 right to representation free from conflict \u2014 denial of counsel\u2019s motion to withdraw\nThe trial court did not err in a first-degree rape case by denying defense counsel\u2019s motion to withdraw, because: (1) although defense counsel had represented a State\u2019s witness three years prior to defendant\u2019s trial and was no longer representing him, there was no concurrent conflict of interest; (2) defense counsel had no recollection of the specifics of the witness\u2019s case aside from the bare fact that the witness had been convicted on assault charges; and (3) the transcript revealed that defense counsel made significant inroads to undermine the witness\u2019s credibility.\n2. Rape\u2014 first-degree rape \u2014 failure to instruct on lesser-included charge of attempted first-degree rape \u2014 penetration\nThe trial court did not commit plain error in a first-degree rape case by failing to instruct, upon its own motion, on the lesser-included charge of attempted first-degree rape, because: (1) although defendant presented evidence that the victim\u2019s genitals showed no evidence of trauma, an expert witness also testified that lack of trauma does not indicate lack of penetration and the entering of the vulva or labia is sufficient for penetration; (2) instructions on the lesser-included offenses of first-degree rape are warranted only when there is some doubt or conflict concerning the crucial element of penetration, and merely presenting evidence that no trauma occurred to the victim was not sufficient to establish a conflict of evidence as to penetration; and (3) although defendant relies on the victim\u2019s testimony that \u201cdefendant tried to make me have sex with [him]\u201d as evidence permitting a jury to draw a conflicting inference as to penetration, the testimony did not create doubt as to whether penetration actually occurred and was in fact consistent with penetration occurring.\n3. Constitutional Law\u2014 effective assistance of counsel \u2014 failure to show prejudice from lack of request for recording\u2014 exclusions from mandatory recording\nDefendant did not receive ineffective assistance of counsel in a first-degree rape case based on defense counsel\u2019s failure to request recordation of opening/closing arguments, jury selection, and rulings from the trial court on matters of law, because: (1) defendant acknowledges he cannot show prejudice as to this issue and has made the argument for preservation purposes only; (2) no request for these recordings, that are excluded from mandatory recording, was made as required by N.C.G.S. \u00a7 15A-1241(b); (3) our Supreme Court has held that a defendant cannot establish ineffective assistance of counsel for failure to request recordation of the jury selection and bench conferences where no specific allegations of error were made and no attempts were made to reconstruct the transcript; and (4) the Court of Appeals has held that a defendant cannot establish prejudice as a result of defense counsel\u2019s failure to request recordation of those items specifically exempted from the recording statute.\nAppeal by defendant from judgment entered 30 August 2006 by Judge James F. Ammons, Jr. in Harnett County Superior Court. Heard in the Court of Appeals 11 September 2007.\nAttorney General Roy A. Cooper, III, by Assistant Attorney General Chris Z. Sinha, for the State.\nM. Alexander Chams for defendant-appellant." }, "file_name": "0140-01", "first_page_order": 170, "last_page_order": 177 }