               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA18-517

                                Filed: 19 March 2019

Wake County, No. 15 CRS 221297

STATE OF NORTH CAROLINA

              v.

JOSE ISRAEL RIVERA


      Appeal by Defendant from judgment entered 18 August 2017 by Judge Paul C.

Ridgeway in Superior Court, Wake County.         Heard in the Court of Appeals 14

January 2017.


      Attorney General Joshua H. Stein, by Assistant Attorney General Tracy Nayer,
      for the State.

      Appellate Defender Glenn Gerding, by Assistant Appellate Defender Aaron
      Thomas Johnson, for Defendant.


      McGEE, Chief Judge.


      Jose Israel Rivera (“Defendant”) appeals from his 18 August 2017 conviction

for taking indecent liberties with a child. For the reasons stated below, we dismiss

his appeal.

                           I. Factual Basis and Procedure

      In the early fall of 2015, Defendant was living in Raleigh with his wife, his

wife’s parents, and his minor children.        Defendant’s nine-year-old daughter

(“daughter”) was a close friend of a ten-year-old girl (“G.”) who lived nearby. G. was
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a regular visitor at Defendant’s house, and also had a close relationship with

Defendant. On 22 September 2015, Defendant’s birthday, he came home from work

between 4:30 p.m. and 5:00 p.m. Defendant celebrated his birthday at home with his

family and G. by having dinner and watching a movie together. During the movie,

Defendant’s daughter and G. sat on the arms of an oversized armchair while

Defendant sat in the seat of the chair—a blanket covered their laps. According to G.,

while they were watching the movie, Defendant moved his left hand under the

blanket to her genital region, and touched her genitals both over and under her

underwear. The touching continued for five to ten minutes, until Defendant’s wife

announced that Defendant’s birthday cake was ready to eat and everyone went into

the kitchen to eat cake. G. went home after eating the cake, but did not report the

alleged touching to anyone that evening.

      Defendant’s daughter went to G.’s house the next morning, 23 September 2015,

and G. told her what had happened the night before. G. testified that Defendant’s

daughter told G. “to tell [G.’s] parents about what happened[,]” so they both went to

G.’s parents’ bedroom to report the alleged abuse. G. first told her father, and he then

told her mother. G.’s parents immediately walked over to Defendant’s house, where

they encountered Defendant’s wife and told her what G. had told them. G.’s parents

called the police, and officers were dispatched to investigate the accusations.




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Detective Kevin Hubard (“Detective Hubard”) of the Raleigh Police Department’s

Juvenile Unit interviewed G. at the police station later that day.

      After interviewing G., Detective Hubard and two additional officers went to

Defendant’s house, between 6:00 p.m. and 7:00 p.m. on 23 September 2015, to

question Defendant about the allegations.          After Detective Hubard talked to

Defendant, and explained the accusations, Defendant and his wife agreed to drive to

the police station in order to be interviewed. Once they arrived at the police station,

Detective Hubard interviewed Defendant in one room, while another detective talked

with Defendant’s wife in another room. Detective Hubard again informed Defendant

that the interview was voluntary, and Defendant again agreed to be interviewed. The

interview, which was recorded on video, began at approximately 8:00 p.m. on 23

September 2015, and lasted “at least an hour.”

      Approximately forty minutes into the interview, Defendant began to indicate

that he “guess[ed] it [was] possible” that he had improperly touched G. the night

before. Defendant stated: “I don’t remember, I guess I must have because she says,

it must have happened,” “she’s too close to me,” “I want to move on from this[.]”

However, Defendant vacillated between indicating that he had, or possibly could

have, sexually assaulted G.; stating that he did not remember doing anything; and

stating that he “would never” do something like that. At approximately 8:39 p.m.,

Detective Hubard suggested Defendant write an “apology” to G.’s parents, and



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Defendant agreed to do so. Detective Hubard gave Defendant paper and a pen, and

left the interview room around 8:42 p.m. to allow Defendant to write the “apology.”

Defendant wrote a short statement in which he indicated that he was sorry for having

hurt G. However, while he was alone in the interview room writing the “apology,” he

also made conflicting verbal statements concerning his culpability. Detective Hubard

returned to the interview room and read the “apology” aloud.        Defendant still

continued to give conflicting statements concerning whether he did, or could have,

molested G. Defendant asked to speak with his wife, and she was brought into the

interview room and left alone with Defendant. Defendant’s vacillation continued in

his conversation with his wife.     Defendant’s wife left the interview room, and

Defendant was then arrested at approximately 9:26 p.m. on 23 September 2015.

      Defendant was indicted for sexual offense with a child and taking indecent

liberties with a child.   Defendant’s trial began on 14 August 2017, and pretrial

motions were heard that morning before jury selection. At this pretrial motions

hearing, Defendant’s attorney informed the trial court that he wanted to move to

suppress the inculpatory statements Defendant had made in his interview with

Detective Hubard. The State objected, informing the trial court that Defendant had

not filed a motion to suppress and that it had received no notice that Defendant was

intending to move to suppress this evidence. Based upon Defendant’s violation of the

statutes governing motions to suppress, the trial court ruled that it would not



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consider Defendant’s purported pretrial “motion to suppress,” and the proceedings

continued to trial.

      During the direct questioning of Detective Hubard, the State sought to

introduce the video recording of Defendant’s interview with Detective Hubard at the

police station. Defendant’s attorney informed the trial court that he would like to be

heard, and the jury was sent out of the courtroom. Defendant asked the trial court’s

             permission to voir dire [Detective Hubard] on the question
             of the last thing he said on direct examination about his
             decision to arrest, and this relates to my earlier motion to
             suppress. I believe in the context of this interview,
             [Detective Hubard] had made a decision to arrest and it
             occurred sometime before his final decision to put my client
             in custody.

Defendant’s attorney stated: “I would submit to the Court that [Detective Hubard]

had made a decision to arrest [Defendant] at about 8:40 -- 8:40 p.m., where my client

had decided to make an apology.” The trial court stated that, in its opinion, it did not

make “any difference what subjective decisions [Detective Hubard] made about

arresting or not arresting” until those decisions were expressed to Defendant; the

trial court then overruled Defendant’s objection. Defendant’s attorney responded:

“Fair enough,” and the trial proceeded.         The video of Defendant’s inculpatory

statements was admitted into evidence and published to the jury. When asked if he

had any further objections, Defendant’s attorney stated that he did not, and the trial

continued. Defendant was found not guilty of a sex offense with a child, but was



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convicted on 18 August 2017 of taking indecent liberties with a child. Defendant

appeals.

                                      II. Analysis

      Defendant argues that the “trial court erred, and committed plain error, by

admitting [Defendant’s] statements [because Defendant] did not receive Miranda

warnings[,]” and because Defendant’s “statements were involuntary.” Defendant has

waived any right of appellate review of these arguments, and we dismiss.

                             A. Waiver of Right of Appeal

      Defendant’s arguments are based upon alleged violations of the Fifth and

Fourteenth Amendments of the Constitution of the United States.              Article 53,

Chapter 15A of the North Carolina General Statutes, N.C. Gen. Stat. § 15A-971, et

seq. (“Article 53”), “governs the suppression of unlawfully obtained evidence in our

trial courts.” State v. Miller, __ N.C. __, __, 814 S.E.2d 81, 83 (2018). As our Supreme

Court said:

              N.C.G.S. § 15A-974(a)(1) states that, “[u]pon timely
              motion, evidence must be suppressed if . . . [i]ts exclusion
              is required by the Constitution of the United States[.]” And
              N.C.G.S. § 15A-979(d) specifies that “[a] motion to suppress
              evidence made pursuant to this Article is the exclusive
              method of challenging the admissibility of evidence” on
              constitutional grounds. (Emphasis added.) A defendant
              generally “may move to suppress evidence only prior to
              trial,” N.C.G.S. § 15A-975(a) (2017), subject to a few,
              narrow exceptions that permit a defendant to move during
              trial, see id. § 15A-975(b), (c) (2017).



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             In other words, the governing statutory framework
             requires a defendant to move to suppress at some point
             during the proceedings of his criminal trial. Whether he
             moves to suppress before trial or instead moves to suppress
             during trial because an exception to the pretrial motion
             requirement applies, a defendant cannot move to suppress
             for the first time after trial. . . . . When a defendant files a
             motion to suppress before or at trial in a manner that is
             consistent with N.C.G.S. § 15A-975, that motion gives rise
             to a suppression hearing and hence to an evidentiary record
             pertaining to that defendant’s suppression arguments. But
             when a defendant, such as defendant here, does not file a
             motion to suppress at the trial court stage, the evidentiary
             record pertaining to his suppression arguments has not
             been fully developed, and may not have been developed at
             all.

Id. at __, 814 S.E.2d at 83 (penultimate emphasis added). This Court recognized in

an opinion affirmed per curiam by our Supreme Court:

             A defendant who seeks to suppress evidence upon a ground
             specified in N.C. Gen. Stat. § 15A–974 must comply with
             the procedural requirements outlined in Article 53,
             Chapter 15A of the North Carolina General Statutes. State
             v. Satterfield, 300 N.C. 621, 624, 268 S.E.2d 510, 513
             (1980); State v. Holloway, 311 N.C. 573, 576, 319 S.E.2d
             261, 264 (1984), habeas corpus granted, Holloway v.
             Woodard, 655 F. Supp. 1245 (1987). . . . . The burden is
             upon the defendant to show that he has complied with the
             procedural requirements of Article 53. Satterfield, 300
             N.C. at 624–25, 268 S.E.2d at 513–14.

State v. Creason, 123 N.C. App. 495, 499, 473 S.E.2d 771, 773 (1996), affirmed, per

curiam, 346 N.C. 165, 484 S.E.2d 525 (1997). In Holloway, the defendant’s motion to

suppress failed to include a supporting affidavit as required by N.C. Gen. Stat. § 15A–

977(a), but the State did not object and the trial court conducted a suppression


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hearing on the defendant’s Fourth Amendment argument, which it denied. State v.

Holloway, 311 N.C. 573, 576-77, 319 S.E.2d 261, 263-64 (1984). This Court, with one

judge dissenting, agreed with the defendant’s argument and remanded for the taking

of additional evidence. Id. at 576, 319 S.E.2d at 263. On appeal by the State, our

Supreme Court held that failure to comply with the requirements of Article 53

constituted a waiver of the defendant’s right to challenge the denial of his motion to

suppress—even though that issue had already been litigated in the trial court:

             The defendant contends that because the State did not
             object to the sufficiency of the motion to suppress at trial,
             or to the evidentiary hearing held on the motion, the State
             cannot now raise the issue of the motion’s deficiency for the
             first time before this Court. We find no merit in this
             contention. We have held that defendants by failing to
             comply with statutory requirements set forth in N.C.G.S.
             15A–977 waive their rights to contest on appeal the
             admission of evidence on constitutional or statutory
             grounds. State v. Maccia, 311 N.C. 222, 316 S.E.2d 241
             (1984); State v. Satterfield, 300 N.C. 621, 268 S.E.2d 510
             (1980). The State’s failure to object to the form of the
             motion affects neither that waiver nor the authority
             statutorily vested in the trial court to deny summarily the
             motion to suppress when the defendant fails to comply with
             the procedural requirements of Article 53. The trial court
             could properly have denied the defendant’s motion to
             suppress based on the defendant’s procedural failures
             alone, and we therefore reverse the decision of the Court of
             Appeals.

Holloway, 311 N.C. at 578, 319 S.E.2d at 264.

      In the present case, Defendant did not file a motion to suppress—or give proper

notice and file other required documents—as directed by N.C. Gen. Stat. §§ 15A-972,


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15A-974, 15A-975, 15A-976, 15A-977, and 15A-979(d) (2017) (“A motion to suppress

evidence made pursuant to this Article is the exclusive method of challenging the

admissibility of evidence upon the grounds specified in G.S. 15A-974.”). The State,

based upon violations of N.C.G.S. § 15A-977,1 objected, and the trial court ruled:

“Okay. I’m not going to entertain a motion to suppress at this stage.” No hearing

was conducted, but the trial court opined, based on the forecast of evidence, that

Detective Hubard’s questioning of Defendant did not appear to constitute custodial

interrogation for Miranda purposes. The trial court again stated that it would not

consider Defendant’s motion to suppress because “the procedural bar at this stage

[Article 53] would bar the consideration of a motion to suppress on this matter. And

so I will not entertain that.” The trial court’s ruling was clearly correct, and we affirm

it. Creason, 123 N.C. App. at 499, 473 S.E.2d at 773.

       During direct questioning of Detective Hubard at trial, the State sought to

introduce the video recording of Defendant’s interview with Detective Hubard at the

police station. Defendant informed the trial court that he would like to be heard, and

the jury was sent out of the courtroom. Defendant’s attorney asked the trial court’s

“permission to voir dire [Detective Hubard] on the question of the last thing

[Detective Hubard] said on direct examination about his decision to arrest, and this


       1  “A motion to suppress evidence in superior court made before trial must be in writing and a
copy of the motion must be served upon the State. The motion must state the grounds upon which it
is made. The motion must be accompanied by an affidavit containing facts supporting the motion.”



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relates to my earlier motion to suppress.[2]” Defendant’s attorney stated: “I believe

in the context of this interview, [Detective Hubard] had made a decision to arrest and

it occurred sometime before his final decision to put my client in custody.”

Defendant’s attorney stated: “I would submit to the Court that [Detective Hubard]

had made a decision to arrest [Defendant] at about 8:40 -- 8:40 p.m., where my client

had decided to make an apology.” Defendant’s argument was that once Detective

Hubard decided that he was going to arrest Defendant—when Defendant agreed to

write out an “apology”—the interview “segue[d] from a non-custodial interview to a

custodial interview” because “during the course of that interview the police officers

did make a decision to arrest. And at that point, . . . the obligation of [Detective

Hubard] to put [Defendant] on notice with Miranda warning was” triggered.

Defendant’s sole authority for his argument was Dickerson v. United States, 530 U.S.

428, 147 L. Ed. 2d 405 (2000). The trial court did not find Defendant’s legal authority

persuasive, stating:

               I don’t see the factual parallel. [Dickerson] sounds like a
               custodial interrogation where no Miranda was given. And
               the Fourth Circuit said since it was a voluntary statement
               that Miranda was not required. And the [Supreme Court]
               in 2000 is saying it doesn’t matter whether its voluntary or
               not, if it’s a custodial interrogation, Miranda warning[s
               are] required. I’m not sure I’m seeing the principle of law
               that I asked you about, mainly whether in the course of a

       2  The State had asked Detective Hubard whether he had at any point during the interview
told Defendant “that he was not free to leave.” Detective Hubard responded: “The only time anything
like that would have been said was when we told him he was under arrest. At that point I was no
longer interviewing him.”

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               non-custodial interview if someone makes an inculpatory
               statement, whether at that point in the interview law
               enforcement is required to provide a Miranda Warning
               because the -- can you point me to the[] facts that support
               that position?

Defendant’s attorney did not voir dire Detective Hubard concerning his questioning

of Defendant at the police station, nor did Defendant’s attorney request the trial court

to view the video of Defendant’s questioning prior to ruling on his objection to the

introduction of the evidence of Defendant’s inculpatory statements.3 State v. Roper,

328 N.C. 337, 361, 402 S.E.2d 600, 614 (1991) (when the defendant desires to make a

motion to suppress at trial, he “must . . . specify that he is making a motion to

suppress and request a voir dire.”). The trial court considered Defendant’s argument

to be an objection to the admission of the video, not a motion to suppress, and it

overruled Defendant’s objection. The trial court expressed its ruling as follows:

               I’m going to overrule the objection that at a certain point of
               this non-custodial interview, based on statements made by
               [] Defendant, it made any difference what subjective
               decisions [Detective Hubard] made about arresting or not
               arresting [] Defendant. It still has the character of a non-
               custodial interview, not requiring Miranda Warnings, so
               therefore I would overrule the objection on that basis.
               (Emphasis added).

Defendant’s attorney responded: “Fair enough[,]” and the trial proceeded.



       3 Although Defendant’s attorney initially stated that he wanted to voir dire Detective Hubard
concerning when Detective Hubard had decided to arrest Defendant, he did not voir dire Detective
Hubard concerning this or any other subject; did not make any follow-up request to voir dire Detective
Hubard prior to the ruling of the trial court; nor request voir dire to preserve Detective Hubard’s
testimony for appellate review.

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      The objection made by Defendant’s attorney did not constitute a motion to

suppress pursuant to Article 53, nor could it:

             A defendant may move to suppress evidence at trial only if
             he demonstrates that he did not have a reasonable
             opportunity to make the motion before trial; or that the
             State did not give him sufficient advance notice (twenty
             working days) of its intention to use certain types of
             evidence; or that additional facts have been discovered
             after a pretrial determination and denial of the motion
             which could not have been discovered with reasonable
             diligence before determination of the motion. G.S. 15A-975.

State v. Satterfield, 300 N.C. 621, 625, 268 S.E.2d 510, 514 (1980); see also State v.

Maccia, 311 N.C. 222, 227–28, 316 S.E.2d 241, 244 (1984) (citations omitted) (“The

defendant has the burden of showing that he has complied with the procedural

requirements of Article 53. In Superior Court a ‘defendant may move to suppress

evidence only prior to trial’ unless he falls within certain exceptions. G.S. 15A–975

(emphasis added).”). Because none of the exceptions set forth in N.C.G.S. § 15A–975

apply in the present case, Defendant could not timely make a motion to suppress

during the trial. Id.; State v. Stowes, 220 N.C. App. 330, 333, 727 S.E.2d 351, 354

(2012) (citations omitted) (“In the present case, Defendant objected at trial to the

introduction of Exhibits 4 and 5 by the State and the trial court itself elected to treat

Defendant’s objection as a motion to suppress.            The trial court then denied

Defendant’s motion to suppress and overruled the objection.              We hold that

Defendant’s ‘motion to suppress’ was not timely, and the trial court did not err in



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denying it.”); State v. Harris, 71 N.C. App. 141, 143–44, 321 S.E.2d 480, 482–83 (1984)

(trial court properly denied the defendant’s attempted motion to suppress at trial

without conducting a voir dire hearing where none of the N.C.G.S. § 15A–975

exceptions applied). Because Defendant has failed in his burden of establishing that

his purported “motion to suppress” at trial was made in compliance with the

requirements of N.C.G.S. § 15A–975, Defendant waived any right to appellate review,

and the trial court did not err in denying it on that basis alone. Holloway, 311 N.C.

at 578, 319 S.E.2d at 264.

      “The defendant has the burden of establishing that the motion to suppress is

both timely and in proper form.” Roper, 328 N.C. at 360, 402 S.E.2d at 613-14

(citations omitted). Defendant has not met this burden. We hold that Defendant

waived appellate review of both his purported “motions to suppress,” and we are

required to dismiss these arguments pursuant to the holdings in Creason, 346 N.C.

at 165, 484 S.E.2d at 525, affirming, per curiam, Creason, 123 N.C. App. at 499, 473

S.E.2d at 773, and Holloway, 311 N.C. at 577–78, 319 S.E.2d at 264. In addition, our

Supreme Court recently held that a defendant waives even plain error review if his

purported “motion to suppress” is not made in accordance with the requirements of

Article 53. Miller, __ N.C. at __, 814 S.E.2d at 83–86.

                         B. Ineffective Assistance of Counsel




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      Defendant further argues that his attorney was constitutionally ineffective

because the attorney failed to properly move to suppress Defendant’s inculpatory

statements. The test to determine if a defendant’s attorney’s representation has

violated the defendant’s Sixth Amendment rights was set forth by the United States

Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693

(1984) (the “Strickland test”). Pursuant to the Strickland test, in order to prevail on

a claim of ineffective assistance of counsel (“IAC”), a defendant must prove two things:

             “First, the defendant must show that counsel’s
             performance was deficient. This requires showing that
             counsel made errors so serious that counsel was not
             functioning as the ‘counsel’ guaranteed the defendant by
             the Sixth Amendment. Second, the defendant must show
             that the deficient performance prejudiced the defense.
             This requires showing that counsel’s errors were so serious
             as to deprive the defendant of a fair trial, a trial whose
             result is reliable. (Emphasis added).”

State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985) (citation omitted).

      However, it is rare that this Court will be in a position to decide a defendant’s

IAC claim on direct appeal: “Generally, a claim of ineffective assistance of counsel

should be considered through a motion for appropriate relief before the trial court in

post-conviction proceedings and not on direct appeal.” State v. Allen, __ N.C. App. __,

__, 821 S.E.2d 860, 861 (2018) (citation omitted). This Court will only consider IAC

claims brought on direct appeal “‘when the cold record reveals that no further

investigation is required, i.e., claims that may be developed and argued without such



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ancillary procedures as the appointment of investigators or an evidentiary hearing.’”

State v. Thompson, 359 N.C. 77, 122–23, 604 S.E.2d 850, 881 (2004) (citation omitted).

“Thus, when this Court reviews ineffective assistance of counsel claims on direct

appeal and determines that they have been brought prematurely, we dismiss those

claims without prejudice, allowing defendant to bring them pursuant to a subsequent

motion for appropriate relief in the trial court.” Id. at 123, 604 S.E.2d at 881 (citation

omitted).

      We agree with Defendant that the record before us demonstrates that his

“counsel’s performance was deficient[,]” thus satisfying the first prong of the

Strickland test. Braswell, 312 N.C. at 562, 324 S.E.2d at 248 (citation omitted).

Defendant’s counsel failed to file a pretrial motion to suppress as was required by

Article 53. This failure prevented Defendant from being afforded the opportunity to

present his evidence and arguments in a voir dire suppression hearing and, therefore,

no ruling was obtained nor order entered. This failure also prevented Defendant from

the ability to obtain appellate review of the trial court’s ruling and order in the event

his motion to suppress had been denied. The fact that Defendant’s counsel attempted

to make an oral motion to suppress at the pretrial motions hearing demonstrates that

this failure was not intentional nor part of any trial strategy. Defendant’s “counsel

was not functioning as the ‘counsel’ guaranteed [D]efendant by the Sixth

Amendment.” Id. (citation omitted).



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      However, the record before us is insufficient for review of the prejudice prong

of the Strickland test on direct appeal. In order to meet the requirements of proving

prejudice, Defendant must show “‘that [his] counsel’s errors were so serious as to

deprive [him] of a fair trial, a trial whose result is reliable.’” Id. (citation omitted)

(emphasis removed). “A defendant must demonstrate a reasonable probability that

the trial result would have been different absent counsel’s error.” State v. Warren,

244 N.C. App. 134, 145, 780 S.E.2d 835, 842 (2015) (citation omitted). Defendant

argues: “Had [Defendant’s attorney] properly preserved these issues, there is a

reasonable probability that either (1) the trial court would have suppressed the

statements and at least one juror would have voted to acquit, or (2) this Court would

reverse the denial of the suppression motion and vacate the conviction[.]” In order

for this Court to hold that Defendant has met his burden of showing prejudice

pursuant to either of these arguments, we would have to hold, at least implicitly, that

there was no legitimate possibility that additional relevant evidence would have been

elicited had a suppression hearing been conducted in this case. We cannot know what

evidence might have been produced in a hearing that never occurred and, therefore,

direct review of an IAC claim on facts similar to those before us will rarely be

appropriate:

               “In order to determine whether a defendant is in a position
               to adequately raise an ineffective assistance of counsel
               claim, we stress this Court is limited to reviewing this
               [argument] only on the record before us, without the


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             benefit of information provided by [the State, or by]
             defendant to trial counsel, as well as defendant’s thoughts,
             concerns, and demeanor, that could be provided in a full
             evidentiary hearing on a motion for appropriate relief.”

State v. Perry, __ N.C. App. __, __, 802 S.E.2d 566, 573, disc. review denied, 370 N.C.

377, 807 S.E.2d 568 (2017) (citation omitted).

      Without a suppression hearing, the State is not given the opportunity to tailor

its evidence and arguments in response to the arguments set forth in a defendant’s

motion to suppress. Further, the defendant’s counsel cannot fully present his legal

arguments, introduce evidence in support of his arguments, nor directly counter the

State’s evidence through cross-examination or the admission of contradictory

evidence.

      In the present case, Defendant now asks this Court to make a determination

on whether there was “a reasonable probability that the trial result would have been

different absent counsel’s error,” Warren, 244 N.C. App. at 145, 780 S.E.2d at 842

(citation omitted), based not on the evidence and arguments that Defendant’s counsel

and the State would have presented at a suppression hearing, but on the arguments

Defendant’s appellate counsel has decided to present to this Court based upon the

evidence presented at trial, which was not tailored toward the issues Defendant

would have raised during a pretrial suppression hearing.

      In Miller, our Supreme Court held that a request for plain error review is not

an appropriate method for making a constitutional challenge to the admission of


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evidence when there has been no suppression hearing due to the defendant’s counsel’s

failure to follow the requirements of Article 53. Miller, __ N.C. App. at __, 814 S.E.2d

at 85. In reaching its holding, the Court thoroughly discussed the dangers inherent

in conducting a prejudice review on appeal when the issue has not been litigated in a

suppression hearing at trial.         Miller, __ N.C. App. at __, 814 S.E.2d at 83-85.

Although Miller involves plain error review, the defendant’s burden to demonstrate

prejudice on plain error review is very similar to the defendant’s burden to

demonstrate prejudice on direct appeal of an IAC claim, and we find the Court’s

reasoning applicable to Defendant’s IAC argument in the present case.

       The procedural facts in Miller are analogous to the procedural facts in the

present case—the defendant in Miller failed to file any pretrial motion to suppress in

accordance with Article 53, and failed to move to suppress during trial.4 Instead, the

defendant raised an argument that the relevant evidence had been obtained in

violation of the Fourth Amendment for the first time on appeal: “[The d]efendant

argued to the Court of Appeals that the trial court ‘plainly erred’ by ‘admitting the

cocaine and testimony about the cocaine,’ and that the seizure of the cocaine resulted

from various Fourth Amendment violations.” Miller, __ N.C. App. at __, 814 S.E.2d

at 82. In overruling this Court’s decision to conduct plain error review—and thereby



       4 There is no indication that the defendant in Miller could have made a motion to suppress
during trial because, as in the present case, there was no evidence that any of the requirements of
N.C.G.S. § 15A-975 allowing a motion to suppress during trial applied.

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                                         Opinion of the Court



overruling the decision to grant the defendant a new trial—our Supreme Court

discussed why a defendant’s failure to comply with Article 53—when this failure

prevents a proper motion to suppress hearing from being conducted by the trial

court—significantly impairs the ability to conduct meaningful or fair appellate

review:

               Whether [a defendant] moves to suppress before trial or
               instead moves to suppress during trial because an
               exception to the pretrial motion requirement applies, a
               defendant cannot[, pursuant to Article 53,] move to
               suppress for the first time after trial.[5] By raising his
               Fourth Amendment arguments for the first time on appeal,
               however, that is effectively what defendant has done here.
               When a defendant files a motion to suppress before or at
               trial in a manner that is consistent with N.C.G.S. § 15A-
               975, that motion gives rise to a suppression hearing and
               hence to an evidentiary record pertaining to that
               defendant’s suppression arguments.            But when a
               defendant, such as defendant here, does not file a motion
               to suppress at the trial court stage, the evidentiary record
               pertaining to his suppression arguments has not been fully
               developed, and may not have been developed at all.

               To find plain error, an appellate court must determine that
               an error occurred at trial. The defendant, additionally,
               must demonstrate that the error was “fundamental”—
               meaning that the error “had a probable impact on the jury’s
               finding that the defendant was guilty” and “seriously
               affect[ed] the fairness, integrity, or public reputation of
               judicial proceedings.” But here, considering the incomplete
               record and the nature of defendant’s claims, our appellate
               courts cannot conduct appellate review to determine
               whether the Fourth Amendment required suppression.

       5 The defendant in Miller did not make any motion to suppress after his trial; the Court is
simply stating that the defendant’s request for plain error review on appeal is akin to such a request,
which Article 53 does not allow.

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                                 Opinion of the Court



            [The d]efendant asked the Court of Appeals . . . to review
            whether defendant voluntarily consented to a search that
            resulted in the discovery of incriminating evidence. Fact-
            intensive Fourth Amendment claims like these require an
            evidentiary record developed at a suppression hearing.
            Without a fully developed record, an appellate court simply
            lacks the information necessary to assess the merits of a
            defendant’s plain error arguments.

            When a defendant does not move to suppress, moreover,
            the State does not get the opportunity to develop a record
            pertaining to the defendant’s . . . claims. Developing a
            record is one of the main purposes of a suppression hearing.
            At a suppression hearing, both the defendant and the State
            can proffer testimony and any other admissible evidence
            that they deem relevant to the trial court’s suppression
            determination. In this case, though, the trial court did not
            conduct a suppression hearing because defendant never
            moved to suppress [the] evidence[.] And because no
            suppression hearing took place, we do not know whether
            the State would have produced additional evidence at a
            suppression hearing, or, if the State had done so, what that
            evidence would have been. Cf. Cardinale v. Louisiana, 394
            U.S. 437, 439, 89 S.Ct. 1161, 1163, 22 L.Ed.2d 398 (1969)
            (“Questions not raised below are those on which the record
            is very likely to be inadequate, since it certainly was not
            compiled with those questions in mind.”). To allow plain
            error review in a case like this one, therefore, “would
            ‘penalize the [g]overnment for failing to introduce [at trial]
            evidence on probable cause for arrest [or other matters
            bearing on the defendant’s claim] when defendant’s failure
            to raise an objection before or during trial seemed to make
            such a showing unnecessary.’”).

Miller, __ N.C. App. at __, 814 S.E.2d at 83-84 (citations omitted) (emphasis in

original). The same concerns are present on direct appeal of an IAC claim when no

suppression hearing has been conducted. This Court can only surmise who might



                                        - 20 -
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                                   Opinion of the Court



have testified at the suppression hearing and what evidence that testimony would

have elicited. As the Court in Miller stated: “We just do not know, because no

suppression hearing occurred.” Id. at __, 814 S.E.2d at 84. It is therefore difficult, if

not impossible, to conduct meaningful prejudice review.

      The Miller Court also discussed the potential for intentional abuse of the

system when appellate review is allowed without the full consideration of the relevant

issues and evidence afforded the trial court pursuant to a suppression hearing:

             [A] defendant could unfairly use plain error review to his
             tactical advantage. For instance, a defendant might
             determine that his chances of winning a motion to suppress
             before or at trial are minimal because he thinks that, once
             all of the facts come out, he will likely lose. But if we were
             to allow plain error review when no motion to suppress is
             filed and hence no record is created, that same defendant
             might wait to raise a Fourth Amendment issue until appeal
             and take advantage of the undeveloped record—a record in
             which some or all of the important facts may never have
             been adduced—to claim plain error. Cf. United States v.
             Chavez–Valencia, 116 F.3d 127, 132 (5th Cir.) (“If, at trial,
             the government assumes that a defendant will not seek to
             suppress certain evidence, the government may justifiably
             conclude that it need not introduce the quality or quantity
             of evidence needed otherwise to prevail.”).

Id. at __, 814 S.E.2d at 84–85 (citation omitted). Applying the reasoning in Miller,

the potential that a defendant will seek direct appeal for an IAC claim like the one

before us, based on the failure of Defendant’s counsel to properly move to suppress

evidence, could prompt the State to attempt to introduce evidence at trial “that the

defendant may or may not later challenge on appeal. On the other hand, if the State


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                                         Opinion of the Court



[chooses] not to present evidence supporting [the voluntariness of] an unchallenged

[inculpatory statement], it could risk reversal on an undeveloped record under the

[IAC] standard.” Id. at __, 814 S.E.2d at 85 (citation omitted).

       The Court in Miller held that “the Court of Appeals should not have conducted

plain error review in the first place,” and that our Supreme Court did “not need to

address (and, based on our analysis, it would not be possible for us to address) the

other issue before us—namely, whether the Court of Appeals reached the right

conclusion in its plain error analysis.” Id. Prior to Miller, this Court has decided

whether the record was sufficient for direct review of defendants’ IAC claims based

on failure to properly move for suppression of evidence on a case-by-case basis.6

However, we have shown reluctance to conduct direct review of an IAC claim when

the claim is based on evidence admitted at trial after counsel’s failure to obtain a

suppression hearing due to violations of Article 53. In a recent unpublished opinion,

we discussed this Court’s reluctance:

                [T]his Court repeatedly has held that when the trial court
                denies a defendant’s motion to suppress as untimely, “we
                cannot properly evaluate defendant’s claim of ineffective
                assistance of counsel on direct appeal because no
                evidentiary hearing was held on defendant’s motion to
                suppress.” State v. Johnson, 203 N.C. App. 718, 722, 693
                S.E.2d 145, 147 (2010).      Likewise, here, we cannot

       6  See, e.g., State v. Canty, 224 N.C. App. 514, 516-17, 736 S.E.2d 532, 535 (2012) (conducting
direct review of IAC claim when trial testimony and video evidence sufficient to demonstrate officer
lacked reasonable suspicion for a traffic stop); State v. Johnson, 203 N.C. App. 718, 721–23, 693 S.E.2d
145, 146–47 (2010) (no review where there was no suppression hearing and there was conflict in the
relevant trial testimony such that prejudice review was not possible).

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                                 Opinion of the Court



             determine whether counsel’s conduct—even assuming it
             was deficient—prejudiced Otto because the trial court did
             not conduct an evidentiary hearing on the motion to
             suppress, and the court had no occasion, during trial, to
             make findings concerning the admission of the challenged
             evidence. As we explained in Johnson, “[b]ased upon this
             record, it is simply not possible for this Court to adjudge
             whether defendant was prejudiced by counsel’s failure to
             file the motion to suppress within the allotted time.” Id.

State v. Otto, __ N.C. App. __, 822 S.E.2d 792, 2019 WL 438392 *2 (2019)

(unpublished); see also State v. Kinch, 314 N.C. 99, 106, 331 S.E.2d 665, 669 (1985)

(“Defendant also alleges that his sixth amendment right to effective assistance of

counsel at trial was violated. We cannot properly determine this issue on this direct

appeal because an evidentiary hearing on this question has not been held.”). We

agree with the reasoning in Otto, and find that it comports with the reasoning

discussed above in Miller. We believe that Miller, as well as precedent in which our

appellate courts considered direct appeal of IAC claims based on errors by counsel

that denied defendants the opportunity, by voir dire hearing, to challenge the

admission of evidence, demonstrates that direct review in cases like the present case

is not appropriate unless it is clear that an MAR proceeding would not result in

additional evidence that could influence our decision on appellate review.

      Therefore, we hold that the current record is insufficient for direct review of

Defendant’s IAC claim, and we dismiss the claim “without prejudice to defendant’s

right to file a motion for appropriate relief in the superior court based upon an



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                                  Opinion of the Court



allegation of ineffective assistance of counsel. N.C. Gen. Stat. § 15A–1415(b)(3)[.]”

Kinch, 314 N.C. at 106, 331 S.E.2d at 669; State v. Fair, 354 N.C. 131, 167, 557 S.E.2d

500, 525 (2001).

      DISMISSED.

      Judges HUNTER, JR. and HAMPSON concur.




                                         - 24 -
