{ "id": 4364303, "name": "STATE OF NORTH CAROLINA v. MICHAEL RAY KING", "name_abbreviation": "State v. King", "decision_date": "2012-02-07", "docket_number": "No. COA11-568", "first_page": "347", "last_page": "360", "citations": [ { "type": "official", "cite": "218 N.C. App. 347" } ], "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": "648 S.E.2d 788", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639123 ], "year": 2007, "pin_cites": [ { "page": "807", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/648/0788-01" ] }, { "cite": "634 S.E.2d 915", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636715 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "918" }, { "page": "918" } ], "opinion_index": 0, "case_paths": [ "/se2d/634/0915-01" ] }, { "cite": "660 S.E.2d 168", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640846 ], "weight": 3, "year": 2008, "pin_cites": [ { "page": "170" }, { "page": "171", "parenthetical": "citation and quotations omitted" }, { "page": "171" } ], "opinion_index": 0, "case_paths": [ "/se2d/660/0168-01" ] }, { "cite": "591 S.E.2d 535", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2004, "pin_cites": [ { "page": "539", "parenthetical": "quoting Harbison, 315 N.C. at 180, 337 S.E.2d at 507-08" }, { "page": "540" } ], "opinion_index": 0 }, { "cite": "358 N.C. 102", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2986844 ], "year": 2004, "pin_cites": [ { "page": "106", "parenthetical": "quoting Harbison, 315 N.C. at 180, 337 S.E.2d at 507-08" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0102-01" ] }, { "cite": "337 S.E.2d 504", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1985, "pin_cites": [ { "page": "507" }, { "page": "507-08" }, { "page": "507" } ], "opinion_index": 0 }, { "cite": "315 N.C. 175", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4716847 ], "weight": 3, "year": 1985, "pin_cites": [ { "page": "180" }, { "page": "180" }, { "page": "180" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0175-01" ] }, { "cite": "695 S.E.2d 771", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "775", "parenthetical": "quoting State v. Harbison, 315 N.C. 175, 180, 337 S.E.2d 504, 507 (1985)" } ], "opinion_index": 0 }, { "cite": "395 U.S. 238", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1771759 ], "weight": 3, "year": 1969, "opinion_index": 0, "case_paths": [ "/us/395/0238-01" ] }, { "cite": "270 S.E.2d 418", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "421" } ], "opinion_index": 0 }, { "cite": "301 N.C. 193", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564646 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "197" } ], "opinion_index": 0, "case_paths": [ "/nc/301/0193-01" ] }, { "cite": "185 S.E.2d 101", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1971, "pin_cites": [ { "page": "102", "parenthetical": "\"Ordinarily one who causes (or we think joins in causing" }, { "page": "102" } ], "opinion_index": 0 }, { "cite": "280 N.C. 170", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570333 ], "weight": 2, "year": 1971, "pin_cites": [ { "page": "171", "parenthetical": "\"Ordinarily one who causes (or we think joins in causing" }, { "page": "171" } ], "opinion_index": 0, "case_paths": [ "/nc/280/0170-01" ] }, { "cite": "446 S.E.2d 83", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "337 N.C. 182", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2549457 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/337/0182-01" ] }, { "cite": "555 S.E.2d 251", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "273", "parenthetical": "alterations in original" } ], "opinion_index": 0 }, { "cite": "354 N.C. 231", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138474 ], "year": 2001, "pin_cites": [ { "page": "266", "parenthetical": "alterations in original" } ], "opinion_index": 0, "case_paths": [ "/nc/354/0231-01" ] }, { "cite": "642 S.E.2d 274", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2007, "pin_cites": [ { "page": "278", "parenthetical": "quoting State v. Ward, 354 N.C. 231, 266, 555 S.E.2d 251, 273 (2001) (alterations in original)" } ], "opinion_index": 0 }, { "cite": "182 N.C. App. 417", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8172681 ], "year": 2007, "pin_cites": [ { "page": "420", "parenthetical": "quoting State v. Ward, 354 N.C. 231, 266, 555 S.E.2d 251, 273 (2001) (alterations in original)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/182/0417-01" ] }, { "cite": "361 N.C. 438", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3738089 ], "year": 2007, "pin_cites": [ { "page": "470", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/361/0438-01" ] }, { "cite": "179 N.C. App. 647", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8238896 ], "year": 2006, "pin_cites": [ { "page": "651" } ], "opinion_index": 0, "case_paths": [ "/nc-app/179/0647-01" ] }, { "cite": "374 S.E.2d 467", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "469" } ], "opinion_index": 0 }, { "cite": "92 N.C. App. 351", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526924 ], "year": 1988, "pin_cites": [ { "page": "354" } ], "opinion_index": 0, "case_paths": [ "/nc-app/92/0351-01" ] }, { "cite": "281 S.E.2d 198", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "204", "parenthetical": "finding an insufficient showing of prejudice where appellee did not indicate the content of the lost testimony in the record" } ], "opinion_index": 0 }, { "cite": "53 N.C. App. 373", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521385 ], "year": 1981, "pin_cites": [ { "page": "382", "parenthetical": "finding an insufficient showing of prejudice where appellee did not indicate the content of the lost testimony in the record" } ], "opinion_index": 0, "case_paths": [ "/nc-app/53/0373-01" ] }, { "cite": "582 S.E.2d 657", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2003, "pin_cites": [ { "page": "660" } ], "opinion_index": 0 }, { "cite": "159 N.C. App. 75", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8954022 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "80" }, { "page": "80" } ], "opinion_index": 0, "case_paths": [ "/nc-app/159/0075-01" ] }, { "cite": "436 S.E.2d 856", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "859" } ], "opinion_index": 0 }, { "cite": "112 N.C. App. 722", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523699 ], "year": 1993, "pin_cites": [ { "page": "726" } ], "opinion_index": 0, "case_paths": [ "/nc-app/112/0722-01" ] }, { "cite": "190 N.C. App. 183", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4157887 ], "weight": 3, "year": 2008, "pin_cites": [ { "page": "185" }, { "page": "187" }, { "page": "187" } ], "opinion_index": 0, "case_paths": [ "/nc-app/190/0183-01" ] }, { "cite": "375 U.S. 277", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11719292 ], "weight": 2, "year": 1964, "pin_cites": [ { "page": "282" }, { "page": "335" } ], "opinion_index": 0, "case_paths": [ "/us/375/0277-01" ] }, { "cite": "106 S. Ct. 163", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1985, "opinion_index": 0 }, { "cite": "474 U.S. 857", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6384257, 6385286, 6386023, 6385064, 6385865, 6384088, 6385575, 6384591, 6385427, 6384407, 6385176, 6385720, 6383963, 6384951 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/us/474/0857-03", "/us/474/0857-09", "/us/474/0857-14", "/us/474/0857-07", "/us/474/0857-13", "/us/474/0857-02", "/us/474/0857-11", "/us/474/0857-05", "/us/474/0857-10", "/us/474/0857-04", "/us/474/0857-08", "/us/474/0857-12", "/us/474/0857-01", "/us/474/0857-06" ] }, { "cite": "758 F.2d 966", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 311817 ], "year": 1985, "pin_cites": [ { "page": "969" } ], "opinion_index": 0, "case_paths": [ "/f2d/758/0966-01" ] } ], "analysis": { "cardinality": 1101, "char_count": 30817, "ocr_confidence": 0.758, "pagerank": { "raw": 5.12982294956584e-08, "percentile": 0.3230528111870615 }, "sha256": "58569c1cff1bbe6d72fa90c1d7aa5a329230bd1647d515c5a901d5d091aa308f", "simhash": "1:266bd06aa7cf8f2e", "word_count": 4932 }, "last_updated": "2023-07-14T20:21:59.538017+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ELMORE and STEPHENS concur." ], "parties": [ "STATE OF NORTH CAROLINA v. MICHAEL RAY KING" ], "opinions": [ { "text": "BRYANT, Judge.\nBecause neither a verbatim transcript nor adequate alternative is available to conduct a meaningful review of defendant\u2019s habitual felon status hearing, we reverse and remand for a new habitual felon status hearing. We hold there was no error in defendant\u2019s drug trial. However, because trial counsel conceded defendant\u2019s guilt to the charge of possession of drug paraphernalia and the record is incomplete as to whether defendant consented to such a concession, we dismiss this issue without prejudice to defendant\u2019s right to file a motion for appropriate relief in the trial court.\nIn June 2008, defendant Michael King was indicted on charges of possession with intent to sell or deliver cocaine, selling cocaine, possession of drug paraphernalia, and attaining habitual felon status. The matter was brought on for trial before a jury on 8 September 2008.\nAt trial, the evidence presented showed that on 4 January 2008 at 1:00 a.m., two plain-clothed officers with the Asheville Police Department Drug Suppression Unit were driving in the area of the Lee Walker Heights Apartment complex, an area from which the department had received a number of complaints regarding drug activity. The officers were in an unmarked vehicle. Defendant approached the vehicle and one of the officers asked if he could purchase thirty dollars worth of \u201ccrack cocaine.\u201d Defendant took the money, entered the apartment complex, and within five minutes returned and handed drugs to the officer. A marked police car, surveilling the transaction, then arrived and arrested defendant.\nDefendant was found guilty of possession with intent to sell or deliver cocaine, sale of cocaine, and possession of drug paraphernalia. Subsequently, defendant was found guilty of attaining habitual felon status. The trial court entered judgment in accordance with the jury verdict, sentencing defendant to thirty days for possession of drug paraphernalia, and consecutive sentences of 150 to 189 months for possession with intent to sell or deliver cocaine and selling cocaine. Defendant appealed.\nAs an indigent person with appointed appellate counsel, defendant requested a transcript of the proceeding. A partial transcript was provided; however, sections were missing and deemed unrecoverable.\nOn appeal, defendant raises the following questions: (I) Whether defendant is entitled to a new trial because of the State\u2019s inability to provide a complete transcript of the proceedings; (II) whether the trial court committed plain error by allowing a witness to testify to defendant\u2019s refusal to make a statement; and (III) whether defendant was provided ineffective assistance of counsel.\n/\nDefendant argues that he is entitled to a new trial on all charges because the State has failed to provide him with a complete transcript of the proceedings. Defendant contends that he has attempted to reconstruct the missing portions of the transcript but to no avail. As a result, he is unable to procure meaningful appellate review and is entitled to a new trial. We agree, in part.\nUnder North Carolina General Statutes, section 7A-452,\n[i]n cases in which an indigent person has entered notice of appeal and appellate counsel has been appointed by the Office of Indigent Defense Services, the clerk of superior court shall make a copy of the complete trial division file in the case, make a copy of documentary exhibits upon request, and furnish those files and any requested documentary exhibits to the appointed attorney.\nN.C. Gen. Stat. \u00a7 7A-452(e) (2009).\nAlthough due process does not \u201crequire[] a verbatim transcript of the entire proceedings,\u201d Karabin v. Petsock, 758 F.2d 966, 969 (3d Cir. 1985), cert. denied, 474 U.S. 857, 106 S. Ct. 163 (1985), the United States Supreme Court has held that an appellate \u201ccounsel\u2019s duty cannot be discharged unless he has a transcript of the testimony and evidence presented by the defendant and also the court\u2019s charge to the jury, as well as the testimony and evidence presented by the prosecution.\u201d Hardy v. United States, 375 U.S. 277, 282, 11 L. Ed. 2d 331, 335 (1964).\nState v. Hobbs, 190 N.C. App. 183, 185, 660 S.E.2d 168, 170 (2008).\nThe unavailability of a verbatim transcript does not automatically constitute error. See Hunt v. Hunt, 112 N.C. App. 722, 726, 436 S.E.2d 856, 859 (1993). To prevail on such grounds, a party must demonstrate that the missing recorded evidence resulted in prejudice. [In re Clark, 159 N.C. App. 75, 80, 582 S.E.2d 657, 660 (2003)]. General allegations of prejudice are insufficient to show reversible error. Id.; In re Peirce, 53 N.C. App. 373, 382, 281 S.E.2d 198, 204 (1981) (finding an insufficient showing of prejudice where appellee did not indicate the content of the lost testimony in the record). As to unavailable verbatim transcripts, a party has the means to compile a narration of the evidence through a reconstruction of the testimony given. In re Clark, 159 N.C. App. at 80, 582 S.E.2d at 660 (citing Miller v. Miller, 92 N.C. App. 351, 354, 374 S.E.2d 467, 469 (1988)); N.C.R. App. P. 9(c)(1).\nState v. Quick, 179 N.C. App. 647, 651, 634 S.E.2d 915, 918 (2006). \u201cWithout an adequate alternative, this Court must determine whether the incomplete nature of the transcript prevents the appellate court from conducting a meaningful appellate review, in which case a new trial would be warranted.\u201d Hobbs, 190 N.C. App. at 187, 660 S.E.2d at 171 (citation and quotations omitted).\nIn an attempt to reconstruct the missing portions of the transcript, defendant requested a statement of any detailed memory of what occurred at trial or detailed notes taken during the trial from the following court officers: Judge Beverly Beal, who presided over the trial; Buncombe County Clerk of Superior Court; the assistant district attorney who prosecuted the matter; defendant\u2019s public defender; and the Deputy Clerk of Court who was present during the trial. Specifically, defendant noted the following portions of the proceedings that were missing from the transcript:\n1) several answers given by the defendant during Judge Beal\u2019s colloquy with him regarding his decision not to testify; 2) several portions of both [the prosecutor\u2019s] and [defense counsel\u2019s] closing arguments; 3) the substantive jury instruction on the charge of selling cocaine in case number 08 CRS 50163; 4) the substantive jury instruction on the charge of possession of drug paraphernalia in case number 08 CRS 50164; 5) the concluding jury instructions regarding jury unanimity, the requirement that the judge be impartial, the juror\u2019s duty to recall all of the evidence, etc; 6) anything that occurred during jury deliberations and/or any questions that may have arisen during jury deliberations in the possession with intent to sell or deliver cocaine, selling cocaine, and possession of drug paraphernalia trial; 7) the return of the verdicts in the possession with intent to sell or deliver cocaine, selling cocaine, and possession of drug paraphernalia trial; and 8) the entire habitual felon trial, including opening statements, evidence, closing arguments, instructions, and jury deliberations.\nJudge Beal responded that his notes from the trial state \u201cDefendant does not wish to present evidence. I conducted a voir dire examination of Defendant on his decision not to testify\u201d and that \u201cthe verdicts on the underlying charges were announced at 4:14 p.m., and the verdicts were \u2018Guilty.\u2019 There was no motion to poll the jury. In the second phase of the trial evidence was presented. The jury was presented with three charges of Habitual Felon status, and all were returned \u2018Guilty.\u2019 \u201d With the exception of Judge Beal, no official had a detailed memory of the trial or notes on the proceedings.\nReviewing the record, we note that defendant does not contest the completeness and accuracy of the transcript with regard to the following portions of the trial: defendant\u2019s arraignment; defendant\u2019s motions for complete recordation and sequestration of witnesses; the State\u2019s motion to join the charges for trial; jury selection and impaneling; opening statements by the prosecution and defense counsel; the testimony of the State\u2019s witnesses \u2014 direct and cross-examinations through the prosecution resting its case; the hearing on defendant\u2019s motion to dismiss, as well as, the trial court\u2019s ruling; the defense resting its case; a Rule 21 conference \u2014 discussing what instructions were to be provided the jury; the verdict in the Habitual Felon proceeding; the sentencing hearing; and the judgment.\nDefendant contends, however, that the transcript is incomplete with regard to significant portions of the trial proceedings, including some of defendant\u2019s answers during the trial court\u2019s colloquy regarding defendant\u2019s decision not to testify:\nCourt: [Defendant], do you understand as a defendant charged in a criminal case you are not required to testify. Do you understand that?\nDefendant: I do.\nCourt: Do you understand that if you do testify, or did decide to testify, that you would be subject to cross-examination by the district attorney?\nDefendant: I do.\nCourt: And do you understand that if you testify he can cross-examine you about prior convictions as well as other things involving this case? Do you understand that?\nDefendant: I do.\nCourt: Do you understand that, on the other hand, that if you felt like it was in your best interest to testify that you could testify in the case?\nDefendant: Yes.\nCourt: But that if you do not testify that I will instruct the jury that they\u2019re not to hold that against you; do you understand that?\nDefendant: Yes.\nCourt: Do you want to talk about it with your lawyer?\nDefendant: No.\nCourt: Do you understand that, again, you could if you wanted to, but I\u2019m not telling you to do so. I\u2019m just being sure you understand you could if you wanted to. Do you understand that?\nDefendant: Yes.\nCourt: But you\u2019ve made the decision not to testify; is that right?\nDefendant: (Answer not audible enough to transcribe.)\nCourt: All right.\nDefense counsel: . . . we have talked about it.\nDefendant: Well, we haven\u2019t talked about it today.\nCourt: Right. But you understand \u2014 and I would not want you to think \u201cI can\u2019t testify.\u201d You could if you wanted to.\nDefendant: I know.\nCourt: But you don\u2019t want to; is that right?\nDefendant: (Answer not audible enough to transcribe.)\nCourt: All right; all right. You can have a seat. And the Court will instruct 101.30 [effect of the defendant\u2019s decision not to testify].\nOn the record, the trial court\u2019s inquiry and defendant\u2019s responses regarding his decision not to testify is substantially complete. Therefore, this record will not support defendant\u2019s contention that meaningful review of this issue is precluded. Defendant cannot show prejudice from the inaudible responses.\nDefendant also contends that he is prejudiced on appeal by the transcript\u2019s failure to fully reflect the closing arguments of both the prosecutor and defense counsel.\nIn his closing argument, as reflected by relevant portions of the transcript, the prosecutor states that he will go through \u201cthe three charges that the defendant\u2019s facing and tell you what the elements are and show you how [the State has] proved [its] case beyond any reasonable doubt.\u201d The prosecutor first discusses the charge of selling a controlled substance \u2014 cocaine. The prosecutor discusses the individual elements of the offense and makes an argument as to how the facts should be applied to satisfy each element. There is no interruption in the transcript. Next, the prosecutor discusses the charge of possession with intent to sell or deliver cocaine. The prosecutor avers that the State must prove \u201cdefendant knowingly possessed cocaine____\u201d The transcript then acknowledges a break in the recording. The transcript resumes with the prosecutor\u2019s statements \u201cSo those are the only two elements that the State has to prove is that he knowingly possessed it and that he intended to sell it. And we know that he possessed it because he had it in his hands, and we know he intended to sell it because he got the money, went, came back and sold him the cocaine.\u201d Last, the prosecutor discusses the charge of possession of drug paraphernalia.\nBecause the only omission reflected in the transcript of the prosecutor\u2019s closing arguments relates to statements on the charge of possession with intent to sell or deliver cocaine and because the prosecutor recaps his discussion of the elements of that offense in his argument explaining the application of the facts to the elements, we find that meaningful appellate review of this issue is not precluded. Therefore, defendant is not prejudiced by the omissions.\nAs to defense counsel\u2019s closing argument, there is no indication that any portion of the transcript is missing; rather, in one sentence, defense counsel\u2019s words were not audible:\nYou know the officer said, \u201cWe don\u2019t find pagers anymore.\u201d Well, they didn\u2019t find that. They didn\u2019t find baggies. He didn\u2019t have drugs in his pocket ready to (not audible enough to transcribe.) He\u2019s not adealer. He is not a drug dealer. They didn\u2019t find any money. No money on the defendant. None. Especially not that twenty dollars they gave him.\u201d\nIt appears that defense counsel\u2019s words which were \u201cnot audible enough to transcribe\u201d amount to only a fragment of one sentence. This does not preclude meaningful appellate review.\nDefendant contends that he is prejudiced on appeal by the transcript\u2019s omission of the substantive jury instruction on the charges of selling cocaine and possession of drug paraphernalia, as well as, the trial court\u2019s concluding instructions regarding jury unanimity, the judge\u2019s impartiality, the juror\u2019s duty to recall all of the evidence, etc., and anything that occurred during jury deliberations.\nIt does not appear that the transcript of the trial court\u2019s charge to the jury is incomplete. The transcript includes the trial court\u2019s instruction on the following: the jury has a duty to decide the facts from the evidence presented; defendant has entered a plea of \u201cnot guilty\u201d entitling him to a presumption of innocence until proven guilty beyond a reasonable doubt; and the jury is the sole judge of a witness\u2019s credibility, as well as, the weight to be given the evidence. The transcript reflects the trial court\u2019s instruction on the charge of possessing cocaine with intent to sell or deliver but indicates that the device recording the proceedings stopped. The transcript continues with the trial court addressing the jury which had already begun deliberations. Omitted are the instructions on the charges of selling cocaine and possession of drug paraphernalia, and the trial court\u2019s instructions regarding jury unanimity, the judge\u2019s impartiality, the juror\u2019s duty to recall all of the evidence, etc. However, during the Rule 21 conference, which was recorded and appears in the record, the trial court discussed with the parties the instructions to be given to the jury. Specifically, the .court stated pattern jury instructions N.C.P.I. \u2014 Crim. 101.05, the function of the jury; N.C.P.I. \u2014 Crim. 101.10, the burden of proof and reasonable doubt; N.C.P.I. \u2014 Crim. 101.15, credibility of witness; N.C.P.I. \u2014 Crim. 101.20, weight of the evidence; N.C.P.I. \u2014 Crim. 104.94, testimony of expert witness; N.C.P.I. \u2014 Crim. 101.30, effect of the defendant\u2019s decision not to testify; N.C.P.I. \u2014 Crim. 105.20, impeachment or corroboration by prior statement; and N.C.P.I. \u2014 Crim. 104.05, circumstantial evidence. With regard to the charges of possession of a controlled substance with intent to sell or deliver and possession of drug paraphernalia, as well as, concluding instructions for the jury, the court stated to the parties the following:\nThen[,] possession of controlled substance with intent to sell or deliver, and the Court will instruct the jury on the elements first: The defendant knowingly possessed cocaine. Cocaine\u2019s a controlled substance. A person possesses cocaine when he is aware of its presence and has both the power and intent to control its disposition or use. Second, the defendant intended to sell or deliver it. I\u2019m just briefly stating it. And then the mandate on that, [N.C.P.I. \u2014 Crim.] 260.21, sale of controlled substance. The defendant\u2019s been charged with selling it and the State must prove that beyond a reasonable doubt.\n[N.C.P.I. \u2014 Crim.] 260.95, possession or use of drug paraphernalia. I\u2019m just going to say \u201cpossession of drug paraphernalia.\u201d I\u2019m not going to use that phrase \u201cuse.\u201d First, he possessed the paraphernalia, and that describes what it is, and second, that he did this knowingly. And third, that the defendant did so with the intent to use the paraphernalia in order to consume a controlled substance which would be unlawful to possess, cocaine.\nNow, then, instructions on the \u2014 concluding instructions, 101.35 [concluding instructions \u2014 jury consider all evidence, judge not express opinion, unanimous verdict, selection of foreperson], with which you guys are familiar.\nThe trial court later asked if defendant requested any additional instructions. Defendant asked that the court give a \u201cfull instruction\u201d on reasonable doubt and also asked for an instruction on entrapment. The record includes a transcript of the recorded discussion and the trial court\u2019s denial of defendant\u2019s request for an entrapment instruction. We also note that Judge Beal did not remember \u201cany questions the jury may have asked or actions that [he] took in response to any questions or the giving of further instructions to the jury.\u201d\nBased on the forecast of the jury instructions and the lack of any indication that the instructions provided deviated from those proposed, the incompleteness of the record does not deny defendant meaningful appellate review.\nDefendant further contends that he is prejudiced on appeal by the transcript\u2019s omission of the return of the verdicts on the charges of possession with intent to sell or deliver cocaine, selling cocaine, and possession of drug paraphernalia trial.\nAs previously stated, where verbatim transcripts are unavailable, a reconstruction of the proceedings may be achieved by narration. Quick, 179 N.C. App. at, 651, 634 S.E.2d at 918. Here, Judge Beal\u2019s response to defendant\u2019s request for any notes or memory he had of the proceedings include the following:\nMy notes on the verdicts just record: \u201cVerdicts 4:14 Guilty, no motion to poll; second phase \u2014 evidence \u201cH-l H-2 H-3\u201d Guilty.\u201d That means to me that the verdicts on the underlying charges were announced at 4:14 p.m., and the verdicts were \u201cGuilty.\u201d There is no motion to poll the jury. In the second phase of the trial evidence was presented. The jury was presented with three charges of Habitual Felon status, and all were returned \u201cGuillty.\u201d [sic]\nNotwithstanding the lack of a transcript regarding the return of the verdicts on the charges of possession with intent to sell or deliver cocaine, selling cocaine, and possession of drug paraphernalia trial, Judge Beal\u2019s detailed reconstruction is sufficient for defendant to obtain meaningful appellate review of this issue.\nLast, defendant contends that the lack of a verbatim transcript in the second phase of the trial, for a determination of defendant\u2019s habitual felon status, including opening statements, evidence, closing arguments, instructions, and jury deliberations, precludes meaningful appellate review. We agree.\nThe almost complete lack of a transcript or adequate alternative narration of the habitual felon phase of the proceedings in the lower court precludes our ability to review defendant\u2019s contentions on the habitual felon hearing and precludes any meaningful appellate review. See Hobbs, 190 N.C. App. at 187, 660 S.E.2d at 171. Accordingly, we remand this matter for a new determination of defendant\u2019s habitual felon status and sentencing.\nII\nNext, defendant argues that the trial court committed plain error by allowing Officer Rice to testify that defendant refused to make a statement after being read his Miranda rights. We disagree.\n[T]he plain error rule ... is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done, or where [the error] is grave error which amounts to a denial of a fundamental right of the accused, or the error has resulted in a miscarriage of justice or in the denial to appellant of a fair trial or where the error is such as to seriously affect the fairness, integrity or public reputation of judicial proceedings or where it can be fairly said the instructional mistake had a probable impact on the jury\u2019s finding that the defendant was guilty.\nState v. Cummings, 361 N.C. 438, 470, 648 S.E.2d 788, 807 (2007) (citation omitted).\n[I]t is well established that a criminal defendant has a right to remain silent under the Fifth Amendment to the United States Constitution, as incorporated by the Fourteenth Amendment, and under Article I, Section 23 of the North Carolina Constitution. A defendant\u2019s decision to remain silent following his arrest may not be used to infer his guilt, and any comment by the prosecutor on the defendant\u2019s exercise of his right to silence is unconstitutional. \u201cA statement that may be interpreted as commenting on a defendant\u2019s decision to remain silent is improper if the jury would naturally and necessarily understand the statement to be a comment on the exercise of his right to silence.\u201d\nState v. Ezzell, 182 N.C. App. 417, 420, 642 S.E.2d 274, 278 (2007) (quoting State v. Ward, 354 N.C. 231, 266, 555 S.E.2d 251, 273 (2001) (alterations in original)); accord State v. Alexander, 337 N.C. 182, 446 S.E.2d 83 (1994) (holding that where the prosecutor\u2019s questions were \u201crelatively benign,\u201d the prosecutor made no attempt to emphasize the fact that defendant did not wish to speak after being read his rights, and evidence of the defendant\u2019s guilt was substantial, the officer\u2019s testimony did not amount to plain error).\nRegardless of these rules, it is axiomatic that \u201c[a] defendant is not prejudiced ... by error resulting from his own conduct.\u201d N.C. Gen. Stat. \u00a7 15A-1443(c) (2009); see also State v. Payne, 280 N.C. 170, 171, 185 S.E.2d 101, 102 (1971) (\u201cOrdinarily one who causes (or we think joins in causing) the court to commit error is not in a position to repudiate his action and assign it as ground for a new trial. The foregoing is not intended as any intimation the court committed error in this instance; but to point out the legal bar to the defendant's right to raise the question. Invited error is not ground for a new trial.\u201d (citations omitted)).\nHere, Officer Rice gave the following testimony on direct examination.\nQ So after you placed him under arrest what did you do?\nA Transported him to jail.\nQ Did the defendant make any statements?\nA He didn\u2019t make anything worthy of writing down. We always speak with \u2014 or typically I speak with the suspect, you know, try to get information from them like \u201cwhere did you buy drugs,\u201d \u201chow long have you been doing this.\u201d I usually give them an opportunity to help themselves out. By that, I mean helping us. Maybe move up a level and catch the person that supplied him with the drugs. Obviously he was uncooperative as there were no statements or notes taken by me from him.\nOfficer Rice was further questioned about the investigation on cross-examination.\nQ Did you do any further investigation after you arrested [defendant]?\nA Such as the statements I spoke about earlier?\nQ Yes.\nA As I said earlier, we try to do a brief investigation with them depending on how cooperative they are. I did speak with him \u2014 or I\u2019m sure I spoke with him. There was nothing worth .writing down. He did not make any written statement. I didn\u2019t take any notes from it. It didn\u2019t yield anything useful.\nWhile we do not believe the prosecutor\u2019s questions were intended to focus the jury\u2019s attention on defendant\u2019s lack of cooperation with law enforcement following his arrest, even elevating this inquiry to a condemnation of defendant\u2019s silence cannot amount to plain error when defendant made the same inquiry on cross examination. N.C.G.S. \u00a7 15A-1443(c); see also Payne, 280 N.C. at 171, 185 S.E.2d at 102. Accordingly, defendant\u2019s argument is overruled.\nIII\nLastly, defendant argues that his trial counsel rendered ineffective assistance of counsel by admitting defendant\u2019s guilt to the charge of possession of drug paraphernalia during her closing argument without defendant\u2019s consent. We dismiss this argument.\nA defendant\u2019s right to plead \u201cnot guilty\u201d has been carefully guarded by the courts. When a defendant enters a plea of \u201cnot guilty,\u201d he preserves two fundamental rights. First, he preserves the right to a fair trial as provided by the Sixth Amendment. Second, he preserves the right to hold the government to proof beyond a reasonable doubt. A plea decision must be made exclusively by the defendant. \u201cA plea of guilty or no contest involves the waiver of various fundamental rights such as the privilege against self-incrimination, the right of confrontation and the right to trial by jury.\u201d State v. Sinclair, 301 N.C. 193, 197, 270 S.E.2d 418, 421 (1980). Because of the gravity of the consequences, a decision to plead guilty must be made knowingly and voluntarily by the defendant after full appraisal of the consequences. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L. Ed. 2d 274 (1969); N.C.G.S. \u00a7 15A-1011 through \u00a7 15A-1026; State v. Sinclair, 301 N.C. 193, 270 S.E.2d 418 (1980).\nState v. Maready,_N.C. App._,_, 695 S.E.2d 771, 775 (2010) (quoting State v. Harbison, 315 N.C. 175, 180, 337 S.E.2d 504, 507 (1985)). In Harbison, our Supreme Court noted that \u2018ineffective assistance of counsel, per se in violation of the Sixth Amendment, has been established in every criminal case in which the defendant\u2019s counsel admits the defendant\u2019s guilt to the jury without the defendant\u2019s consent.\u2019 \u201d State v. Matthews, 358 N.C. 102, 106, 591 S.E.2d 535, 539 (2004) (quoting Harbison, 315 N.C. at 180, 337 S.E.2d at 507-08). Id. at 108-09, 591 S.E.2d at 540 (quoting Harbison, 315 N.C. at 180, 337 S.E.2d at 507).\nThe gravity of the consequences demands that the decision to plead guilty remain in the defendant\u2019s hands. When counsel admits his client\u2019s guilt without first obtaining the client\u2019s consent, the client\u2019s rights to a fair trial and to put the State to the burden of proof are completely swept away. The practical effect is the same as if counsel had entered a plea of guilty without the client\u2019s consent. Counsel in such situations denies the client\u2019s right to have the issue of guilt or innocence decided by a jury.\nHere, defendant\u2019s counsel stressed, during her closing argument, that defendant was not a drug dealer but rather a drug user. With regard to the charge of possession of drug paraphernalia, defendant\u2019s trial counsel stated \u201c[s]o he could get four months total for the drug paraphernalia. And finding him guilty of the drug paraphernalia I would agree is about as open and shut as we can get in this case, but finding him guilty of the selling, you don\u2019t have the seller.\u201d (emphasis added).\nThough clearly a strategic decision, such a statement concedes defendant\u2019s guilt to the charge of possession of drug paraphernalia. The incomplete record before us contains no indication that defendant\u2019s trial counsel obtained defendant\u2019s consent to concede his guilt to the charge of possession of drug paraphernalia or that an inquiry was made into the basis for the concession. Therefore, we dismiss this issue without prejudice to defendant\u2019s right to file a motion for appropriate relief requesting an evidentiary hearing on whether trial counsel admitted defendant\u2019s guilt to the charge of possession of drug paraphernalia without defendant\u2019s consent. State v. Johnson, _ N.C. App. _, .__ S.E.2d __ (filed 20 December 2011) (No. COA11-677) (dismissing the defendant\u2019s ineffective assistance of counsel argument without prejudice to file a motion for appropriate relief in the trial court where the record on appeal was unclear as to whether defendant consented to trial counsel\u2019s concession of guilt).\nNo error in part; new trial on habitual felon status; dismissed in part.\nJudges ELMORE and STEPHENS concur.", "type": "majority", "author": "BRYANT, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Special Deputy Attorney General Elizabeth Leonard, McKay, for the State.", "Appellate Defender Staples Hughes, by Assistant Appellate Defender Kristen L. Todd, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. MICHAEL RAY KING\nNo. COA11-568\n(Filed 7 February 2012)\n1. Appeal and Error \u2014 lack of transcript or adequate alternative narration \u2014 meaningful review \u2014 precluded in habitual felon proceeding \u2014 not precluded on remaining issues\nThe almost complete lack of transcript or adequate alternative narration of the habitual felon phase of the proceedings in the trial court precluded any meaningful appellate review of the proceeding. The matter was remanded for a new determination of defendant\u2019s habitual felon status and sentencing. The incompleteness of the record did not preclude meaningful review of the remaining charges.\n2. Evidence \u2014 police officer testimony \u2014 defendant\u2019s post-Miranda silence \u2014 defendant\u2019s inquiry on cross-examination\nThe trial court did not commit plain error in a possession with intent to sell or deliver cocaine, selling cocaine, and possession of drug paraphernalia case by allowing a police officer to testify that defendant refused to make a statement after being read his Miranda rights. Even if the prosecutor\u2019s questions were intended to focus the jury\u2019s attention on defendant\u2019s silence and lack of cooperation with law enforcement following his arrest, the error did not amount to plain error when defendant made the same inquiry on cross-examination.\n3. Constitutional Law \u2014 effective assistance of counsel\u2014 incomplete transcript \u2014 dismissed without prejudice\nDefendant\u2019s argument that his trial counsel rendered ineffective assistance of counsel by admitting defendant\u2019s guilt to the charge of possession of drug paraphernalia during her closing argument without defendant\u2019s consent was dismissed without prejudice to defendant\u2019s right to file a motion for appropriate relief requesting an evidentiary hearing on the matter. The incomplete record before the Court of Appeals contained no indication that defendant\u2019s trial counsel obtained defendant\u2019s consent to concede his guilt to the charge of possession of drug paraphernalia or that an inquiry was made into the basis for the concession.\nAppeal by defendant from judgments entered 11 September 2008 by Judge Beverly T. Beal in Buncombe County Superior Court. Heard in the Court of Appeals 26 October 2011.\nAttorney General Roy Cooper, by Special Deputy Attorney General Elizabeth Leonard, McKay, for the State.\nAppellate Defender Staples Hughes, by Assistant Appellate Defender Kristen L. Todd, for defendant-appellant." }, "file_name": "0347-01", "first_page_order": 357, "last_page_order": 370 }