IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA25-287
Filed 18 February 2026
Robeson County, No. 20CR052504-770
STATE OF NORTH CAROLINA
v.
JERRY LOCKLEAR, Defendant.
Appeal by Defendant from judgment entered 15 April 2024 by Judge James G.
Bell in Robeson County Superior Court. Heard in the Court of Appeals 19 November
2025.
Law Office of Caryn Strickland, by Attorney Caryn Strickland, for defendant- appellant.
Attorney General Jeff Jackson, by Special Deputy Attorney General Brenda Menard, for the State.
STADING, Judge.
Jerry Locklear (“Defendant”) appeals from final judgment entered pursuant to
a jury verdict convicting him of second-degree murder. On appeal, Defendant asserts
his trial attorney’s failure to request recordation of closing arguments amounted to
ineffective assistance of counsel (“IAC”). Alternatively, Defendant asks this Court to
invoke N.C. R. App. P. 2 to review whether his trial attorney’s failure to request
recordation of the full trial proceedings violated his constitutional right to due STATE V. LOCKLEAR
Opinion of the Court
process. After careful consideration, we conclude that Defendant did not receive IAC
and decline to invoke Rule 2.
I. Factual & Procedural Background
This case deals with the death of Melissa Lowry (“Decedent”) after Defendant
ran her motor vehicle off a road in Robeson County. On 21 January 2022, the Robeson
County Grand Jury returned a true bill of indictment, charging Defendant with
second-degree murder and felony hit and run. The State, however, dismissed the
felony hit and run charge at the outset of trial.
Defendant’s trial commenced on 9 April 2024, wherein the evidence tended to
show that on the night of 23 June 2020, Defendant operated his sport utility vehicle
(“SUV”) on Cabinet Shop Road.1 In a recorded noncustodial interview2 with the
Robeson County Sheriff’s Office, Defendant conceded that: he and Decedent had
previously dated; Decedent came over to his house on the night in question asking for
money; he followed Decedent in his SUV at the time of the wreck; he began speeding
when Decedent began speeding; and, after seeing Decedent run off the road, he
returned to the scene, but did not stop.
Lieutenant Graham with the Robeson County Sheriff’s Office responded to the
1 Decedent contacted 911 during the incident, stating: “there is a car that is trying to run me off the
road on Cabinet Shop Road.” She stated the vehicle following her was a Suburban, and that the vehicle struck her vehicle numerous times. The recording of this 911 call was introduced into evidence as an exhibit and published to the jury. 2 Defendant’s interview was admitted into evidence and published to the jury.
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scene of the accident. Lieutenant Graham testified to his observations upon arriving
at the scene:
A. . . . [W]hen I was walking up to try to see, I started observing some what we call yaw marks on the pavement, and they were leading up under the fire truck. At the time I was documenting all this down and then being at the point, you know, I got the Evans Cross Roads Fire Department to move their truck so I could see which way these yaw marks was leading to the vehicle.
Q. Yaw marks, what is that?
A. Yaw marks is when a rotating tire starts to slide on its axis across pavement. It’s showing that the tire is actually sliding instead of turning with the pavement.
Lieutenant Graham testified that Defendant’s SUV sustained “damage to the front
license plate,” damage “to the right of the license plate,” and damage to “the front
bumper.” He added that Decedent’s vehicle sustained damage to the rear bumper
where the license plate should have been located. Upon reviewing the photographic
evidence, Lieutenant Graham noted that the damage to both vehicles was similar in
size—approximately five-to-six inches to Decedent’s vehicle, and approximately six-
to-seven inches to Defendant’s SUV.
Several other witnesses near the scene of the accident also testified at trial.
Chief Dial, the Chief of the Evans Fire Department, testified to observing two vehicles
driving erratically near the 1500 block of Cabinet Shop Road. Chief Dial noted that
shortly after midnight, he was traveling down Cabinet Shop Road when he saw two
vehicles rapidly approaching him. Chief Dial added that he had to pull onto “the
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grass to keep the vehicles from hitting” him. Chief Evans observed the vehicles
traveling at a “high rate of speed” and were less than a car-length apart. Shortly
thereafter, Chief Evans was dispatched to the accident in question, which occurred
near the 200 block of Cabinet Shop Road. Mr. Barnes, a local resident who was
parked in the Cabinet Shop Road area, heard “eeek, boom, boom” while parked in his
vehicle. He noted that the sounds were consistent with a vehicle striking another
“two or three times.” Upon looking up, Mr. Barnes saw Decedent’s vehicle in a ditch,
prompting him to drive up to Decedent to find out if she needed assistance. Mr.
Barnes testified that when he was talking to Decedent, “a SUV type, big vehicle”
drove by the scene.
After the State rested its case-in-chief, Defendant moved to dismiss the second-
degree murder charge. The trial court denied his motion. Defendant thereafter
elected not to present evidence and renewed his motion to dismiss at the close of all
evidence. Again, the trial court denied his motion.
At the close of the charge conference, the trial court asked whether defense
counsel planned to make any concessions in his closing argument:
THE COURT: Anything else we need to address? Here’s the verdict sheet. Guilty of second degree or guilty of involuntary manslaughter or guilty of misdemeanor death by vehicle or not guilty. So when you make your closing you are not conceding anything, are you?
[DEFENSE COUNSEL]: If between now and Monday morning I decide that we will, I will let you know so that we can cross that bridge. But at this point in time I don’t
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anticipate that.
THE COURT: Here’s the verdict sheet. Let me know if you do.
Upon reconvening after the weekend, and immediately before closing
arguments, the trial court twice asked whether the parties had any further matters
to address:
THE COURT: All right. Anything we need to address?
[THE STATE]: Nothing for the State, Your Honor.
THE COURT: So you’ll go first?
[THE STATE]: Yes, Your Honor.
THE COURT: Then you’ll go last?
[DEFENSE COUNSEL]: Yes, sir.
THE COURT: Then I’ll give the instructions, then we’ll send them out. And we’re getting rid of the two alternates, right?
....
THE COURT: Anything else?
[THE STATE]: I would like the podium, if one of the bailiffs could move it.
THE COURT: You want the podium?
[THE STATE]: Yes, please.
THE COURT: You want the blinds closed, or is that good?
[THE STATE]: No, Judge.
THE COURT: All right. If y’all are ready then--or do you
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need a minute to get set up.
[THE STATE]: No, Your Honor. That’s fine. I’m good.
THE COURT: So we heard all the motions. We did all of that, didn’t we?
At this time, defense counsel did not inform the trial court that his position had
changed with respect to concessions. Each party gave a closing argument, and
neither was recorded.
Following deliberations, the jury delivered a guilty verdict, convicting
Defendant of second-degree murder. The trial court sentenced Defendant, as a prior
record level VI, to a consolidated term of 450–552 months’ imprisonment. Defendant
entered oral notice of appeal after sentencing.
II. Analysis
Defendant argues that his trial attorney rendered IAC by failing to request
recordation of closing arguments under N.C. Gen. Stat. § 15A-1241 (2023).
Alternatively, Defendant asks this Court to invoke N.C. R. App. P. 2 to address
whether his trial attorney’s failure to request recordation of closing arguments
violated his constitutional right to due process. For the reasons below, we disagree
with Defendant’s IAC contentions and decline to invoke Rule 2.
A. IAC
Defendant maintains that his trial counsel rendered IAC by failing to request
that closing arguments be recorded pursuant to N.C. Gen. Stat. § 15A-1241 because:
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the North Carolina Indigent Defense Services Manual (“IDS manual”) recommends
recordation under section 15A-1241; defense counsel’s failure to request recordation
of the closing arguments denied him meaningful appellate review, amounting to
prejudice; no other reconstructed record of the closing arguments would suffice as a
substitute for the transcript; and the recordation of closing arguments is relevant to
the claims raised on appeal. Our review of applicable precedent leads us to disagree.
“Whether a defendant received IAC at trial is a question of law reviewable de
novo.” State v. Parker, 290 N.C. App. 650, 653, 893 S.E.2d 544, 547 (2023). “Under
a de novo review, the court considers the matter anew and freely substitutes its own
judgment for that of the lower tribunal.” State v. Clemons, 274 N.C. App. 401, 409,
852 S.E.2d 671, 676 (2020) (cleaned up).
“A defendant’s right to counsel, as guaranteed by the Sixth Amendment to the
United States Constitution, includes the right to effective assistance of counsel.”
State v. Todd, 369 N.C. 707, 710, 799 S.E.2d 834, 837 (2017). “When a defendant
attacks his conviction on the basis that counsel was ineffective, he must show that
his counsel’s conduct fell below an objective standard of reasonableness.” State v.
Braswell, 312 N.C. 553, 561–62, 324 S.E.2d 241, 248 (1985). Our jurisprudence
establishes “a two-pronged test for determining whether a defendant has
received ineffective assistance of counsel.” Todd, 369 N.C. at 710, 799 S.E.2d at 837.
That test provides:
First, the defendant must show that counsel’s performance
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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. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). “Thus,
both deficient performance and prejudice are required for a successful ineffective
assistance of counsel claim.” Todd, 369 N.C. at 711, 799 S.E.2d at 837.
“IAC claims brought on direct review will be decided on the merits when
the cold record reveals that no further investigation is required, i.e., claims that may
be developed and argued without such ancillary procedures as the appointment of
investigators or an evidentiary hearing.” State v. Fair, 354 N.C. 131, 166, 557 S.E.2d
500, 524 (2001). That said, “should the reviewing court determine that IAC claims
have been prematurely asserted on direct appeal, it shall dismiss those claims
without prejudice to the defendant’s right to reassert them during a subsequent MAR
proceeding.” Id. at 167, 557 S.E.2d at 525.
Here, Defendant asserts he received IAC because his trial counsel failed to
request that closing arguments be recorded under N.C. Gen. Stat. § 15A-1241(a).
Defendant’s arguments are rooted in a hypothetical assertion—that defense counsel
may have conceded guilt during closing argument without his permission, a violation
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of State v. Harbison, and it is impossible to discern whether such concession occurred
since no record of the closing arguments exists. 315 N.C. 175, 180, 337 S.E.2d 504,
507–508 (1985) (noting that “ineffective assistance of counsel, per se in violation of
the Sixth Amendment, has been established in every criminal case in which the
defendant’s counsel admits the defendant’s guilt to the jury without the defendant’s
consent.”).
Subsection 15A-1241(a) provides the trial court must ensure that a court
reporter makes a record “of all statements from the bench and all other proceedings
except” as follows:
(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.
Id. That said, “[u]pon motion of any party of the judge’s own motion,” jury selection,
opening statements, and closing arguments must be recorded. Id. § 15A-1241(b)
(emphasis added).
The North Carolina Supreme Court’s decision in State v. Hardison is
particularly instructive. 326 N.C. 646, 392 S.E.2d 364 (1990). In that case, the
defendant asserted he received IAC since his trial attorney did not request
recordation “of the jury selection, the bench conferences, and the opening and closing
arguments of counsel.” Id. at 660–61, 392 S.E.2d at 372. The defendant maintained
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he satisfied the first prong of Strickland—deficient performance—by “showing that
his counsel failed to request a transcript of all proceedings.” Id. at 661, 392 S.E.2d at
373. Upon analyzing the issue, the Court held that under a plain reading of section
15A-1241, recordation of jury selection, opening statements, and closing arguments
is permissive as opposed to mandatory. Id. Further, the defendant did “not assign
any error regarding the selection of the jury in this case.” Id. The Court also
determined that since the “defendant . . . made no attempt to reconstruct the record
of any particular bench conference and . . . [made] no specific allegations as to a
particular conference,” he failed to demonstrate IAC. Id. at 661–62, 392 S.E.2d at
373 (cleaned up).
Following Hardison, prior panels of this Court have consistently held that a
trial attorney’s failure to request recordation did not amount to IAC for varying
reasons. See, e.g., State v. Thomas, 187 N.C. App. 140, 147, 651 S.E.2d 924, 928 (2007)
(citation modified) (“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’s failure to request recordation of those items
specifically exempted from the recording statute.”); State v. Verrier, 173 N.C. App.
123, 130, 617 S.E.2d 675, 680 (2005) (declining to find IAC where defense counsel
failed to request recordation of jury selection, bench conferences, opening statements,
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and closing arguments since these portions of trial are excluded under G.S. 15A-
1241); State v. Clodfelter, 203 N.C. App. 60, 69, 691 S.E.2d 22, 28 (2010) (“This Court
has repeatedly applied [G.S. 15A-1241] to uphold cases in which these statements
and more were omitted from the record.”); State v. Sutton, 169 N.C. App. 90, 94, 609
S.E.2d 270, 274 (2005) (holding that the defendant failed to demonstrate IAC as a
result of defense counsel’s failure to request recordation of the full trial proceedings
since the defendant did not make a specific assertion of improper conduct at trial and
failed to sufficiently demonstrate prejudice); State v. Crawford, 163 N.C. App. 122,
129, 592 S.E.2d 719, 724 (2004) (holding that the defendant failed to demonstrate
IAC as a result of defense counsel’s failure to request recordation of jury selection
since the defendant failed to make a specific allegation of juror partiality and failed
to sufficiently demonstrate prejudice).
In Clodfelter, a prior panel of this Court was faced with a similar task. 203
N.C. App. 60, 691 S.E.2d 22. There, the defendant asserted he received IAC as a
result of his trial attorney’s failure to request that opening and closing statements be
recorded. Id. at 69, 691 S.E.2d at 28. Upon analyzing the issue, this Court reasoned
that a failure to request recordation does not amount to “a severe error by trial
counsel” since the statute does not require such a motion to be made. Id. at 69–70,
691 S.E.2d at 28. The Court further reasoned that the defendant failed to sufficiently
argue prejudice as a result thereof since he relied on the mere possibility that errors
might have been made:
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As to the second requirement—the showing of prejudice— defendant Jessup does not suggest how the omission of the opening and closing statements prejudiced his case, except that various errors might have been made therein upon which an argument might be made on appeal. [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’s failure to request recordation of those items specifically exempted from the recording statute.
Id. at 70, 691 S.E.2d at 28 (cleaned up). Accordingly, the Court overruled the
defendant’s IAC argument for failure to demonstrate error, much less prejudice. Id.
Here, Defendant maintains: “trial counsel’s failure to request . . . [recordation]
constituted [IAC] because appellate counsel has no meaningful record to review to
determine whether trial counsel made Harbison admissions without his consent.”
But Defendant does not allege that a Harbison admission occurred. Instead, he
argues, “it is reasonable to believe a Harbison admission could have occurred here.”
Defendant therefore has failed to make a specific allegation pertaining to an improper
closing argument; instead, like Clodfelter and Sutton, Defendant’s assertions are
rooted in the mere possibility of an error, as he is uncertain whether defense counsel
conceded guilt at any juncture during closing argument without his permission. See
Clodfelter, 203 N.C. App. at 70, 691 S.E.2d at 28 (noting that the “defendant . . . does
not suggest how the omission of the opening and closing statements prejudiced his
case, except that various errors might have been made therein upon which an
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argument might be made on appeal.”); see also Sutton, 169 N.C. App. at 94, 609
S.E.2d at 273 (citation modified) (“Defendant first argues that his attorney was
ineffective in that he failed to request recordation of jury selection, opening
statements, and closing arguments because recording these portions of the trial
would have shown whether the prosecutor used improper argument to persuade the
jury to convict [defendant] of the charges. Defendant does not assert that any such
improper conduct actually occurred at trial.”). Moreover, precedent reveals that a
failure to request recordation of closing arguments does not amount to “a severe error
by trial counsel” since section 15A-1241 does not require such a motion to be made.
Clodfelter, 203 N.C. App. at 69–70, 691 S.E.2d at 28. The cold record reveals that
Defendant has not met the first prong of Strickland. See Fair, 354 N.C. at 166–67,
557 S.E.2d at 524–25.
Defendant argues since closing arguments are unavailable for review in the
absence of recordation, the inability to review for a hypothesized Harbison admission
amounts to prejudice. But even if we were to assume, arguendo, that defense counsel
rendered deficient performance and Defendant made an adequate attempt to
reconstruct the record, “a defendant cannot establish prejudice as a result of defense
counsel’s failure to request recordation of those items specifically exempted from the
recording statute.” Thomas, 187 N.C. App. at 147, 651 S.E.2d at 928 (citing State v.
Price, 170 N.C. App. 57, 67, 611 S.E.2d 891, 898 (2005)); see also Hardison, 326 N.C.
646, 661–62, 392 S.E.2d 364, 373, (wherein, “our Supreme Court held that a
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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.”).
Accordingly, Defendant has neither demonstrated deficient performance nor
prejudice. Todd, 369 N.C. at 711, 799 S.E.2d at 837.
Defendant attempts to distinguish the Clodfelter decision, discussed above, by
relying upon provisions of the IDS Manual. See Danielle M. Carman, Preserving the
Record on Appeal, Indigent Defense Manual Series (John Rubin, ed., 2020) (citation
modified) (noting counsel “should ALWAYS move to have everything recorded under
G.S. 15A-1241(b)”). But unlike the plain language of N.C. Gen. Stat. § 15A-1241(a)–
(b), Hardison, and Hardison’s progeny, the IDS Manual is not binding precedent.
Defendant’s arguments in favor of a departure from Clodfelter are unmeritorious.
We also note that Defendant conflates our IAC precedents about a failure to
request recordation under N.C. Gen. Stat. § 15A-1241 with our precedents dealing
with whether a defendant is denied meaningful appellate review as a result of a
missing transcript. Compare Clodfelter, 203 N.C. App. at 70, 691 S.E.2d at 28
(quoting Thomas, 187 N.C. App. at 147, 651 S.E.2d at 928) (cleaned up) (emphasis
added) (“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.”); with State v. Yates, 262 N.C. App. 139, 141, 821 S.E.2d 650, 652 (2018)
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(first quoting In re Shackleford, 248 N.C. App. 357, 360, 789 S.E.2d 15, 18 (2016)
(then quoting State v. Neely, 21 N.C. App. 439, 441, 204 S.E.2d 531, 532 (1974)
(cleaned up) (“This Court has explained that [o]ur caselaw contemplates the
possibility that the unavailability of a verbatim transcript may in certain cases
deprive a party of its right to meaningful appellate review and that, in such cases,
the absence of the transcript would itself constitute a basis for appeal. . . . To
determine whether the right to a meaningful appeal has been lost, our Courts conduct
a three-step inquiry.”)).
Defendant cites In re Shackleford to support the proposition that a defendant
need not identify a specific error or defect in a missing transcript to demonstrate
prejudice for his IAC claim. 248 N.C. App. 357, 789 S.E.2d 15 (2016). But Shackleford
dealt with whether the respondent was “entitled to a new involuntary commitment
hearing” since the verbatim transcript was missing in its entirety. Id. at 360, 789
S.E.2d at 17. In that case, “no transcript of the hearing could be prepared because
the recording equipment in the courtroom had failed to record the hearing and there
had not been a court reporter present in the courtroom.” Id. As a result, the
defendant maintained he was entitled to a new hearing “because the lack of a
verbatim transcript of the underlying hearing denied him his right to meaningful
appellate review.” Id. Moreover, Shackleford dealt with the requirements of N.C.
Gen. Stat. § 122C-268(i) (2023), which notes, “a copy of all documents admitted into
evidence and a transcript of the proceedings shall be furnished to the respondent on
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request by the clerk upon the direction of a district court judge.” (citation modified).
And unlike this case, the Shackleford decision did not deal with allegations of IAC.
Cf. id. at 360, 789 S.E.2d at 18. Accordingly, Defendant’s reliance upon Shackleford
is misplaced.
Defendant also erroneously relies on Yates for similar reasons. 262 N.C. App.
139, 821 S.E.2d 650. Yates dealt with the fact that “a portion of the trial transcript”
was completely missing. Id. at 141, 821 S.E.2d at 652. Notably, the portion that was
missing involved the State’s direct and cross-examination of the alleged victim. Id.
at 142, 821 S.E.2d at 653. On appeal, the defendant asserted “that he [was] entitled
to a new trial because the incomplete transcript ha[d] deprived him of a meaningful
appeal.” Id. at 141, 821 S.E.2d at 652 (citation modified). However, the Yates decision
did not concern allegations of IAC as a result of a failure to request recordation under
section 15A-1241; it dealt with whether the defendant was “denied a meaningful
appeal because a portion of the trial transcript” was missing. Id. at 141, 821 S.E.2d
at 652.
Finally, Defendant’s reliance on Hardy v. United States, 375 U.S. 277, 84 S. Ct.
424 (1964), and Draper v. Washington, 372 U.S. 487, 83 S. Ct. 774 (1963), is likewise
misplaced. The Hardy decision addressed the inability of a defendant to access a trial
transcript on appeal, including the presentation of the defendant’s case-in-chief and
the trial court’s charge to the jury. Hardy, 375 U.S. at 282, 84 S. Ct. at 428. That
decision did not concern IAC; it dealt with whether an indigent defendant possessed
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a right to a free trial transcript on appeal under the United States Code and the
Federal Rules of Criminal Procedure when submitting “an appeal in forma pauperis.”
Id. at 278–89, 84 S. Ct. at 425–26. Also, the Draper decision concerned petitioners
who did not have “any portion of a stenographic transcript of the jury trial.” 372 U.S.
at 493, 83 S. Ct. at 778. The Draper decision did not involve allegations of IAC;
instead, it dealt with the constitutional rights of indigent defendants to free
transcripts under Washington State law. Id. at 494–95, 83 S. Ct. at 778.
Defendant relies on other precedents in furtherance of his IAC contentions,
including Entsminger v. Iowa, 386 U.S. 748, 752, 87 S. Ct. 1402, 1404 (1967), Mayer
v. Chicago, 404 U.S. 189, 195, 92 S. Ct. 410, 415 (1971), and Britt v. North Carolina,
404 U.S. 226, 227, 92 S. Ct. 431, 433 (1971). Like Hardy and Draper, we fail to see
the relevance of these decisions to the IAC question before us.
For all these reasons, we hold that Defendant has failed to demonstrate IAC
as a result of defense counsel not requesting recordation of closing arguments under
section 15A-1241. Accordingly, Defendant’s IAC claim is overruled.
B. Rule 2
Defendant next asks this Court to invoke N.C. R. App. P. 2 to address whether
defense counsel violated his constitutional right to due process by failing to request
full recordation of the trial proceedings. For the reasons below, we decline to invoke
Rule 2.
It is well settled that “when a defendant fails to raise a constitutional
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argument at the trial court level, it is unpreserved for appellate review pursuant to”
N.C. R. App. P. 10. State v. McClinton, __ N.C. App. __, __, 922 S.E.2d 190, 198 (2025)
(citation modified); State v. Lloyd, 354 N.C. 76, 86–87, 552 S.E.2d 596, 607 (2001)
(noting that “constitutional issues not raised and passed upon at trial will not be
considered for the first time on appeal”).
That said, N.C. R. App. P. 2 “allows us to set aside Rule 10, and consider” a
defendant’s unpreserved constitutional argument when certain criteria are met.
McClinton, __ N.C. App. at __, 922 S.E.2d at 199; State v. Griffin, 298 N.C. App. 85,
93, 914 S.E.2d 8, 13 (2024). Rule 2 states:
To prevent manifest injustice to a party, or to expedite decision in the public interest, either court of the appellate division may, except as otherwise expressly provided by these rules, suspend or vary the requirements or provisions of any of these rules in a case pending before it upon application of a party or upon its own initiative, and may order proceedings in accordance with its directions.
N.C. R. App. P. 2.
“The text of Rule 2 provides two instances in which an appellate court may
waive compliance with the appellate rules: (1) ‘[t]o prevent manifest injustice to a
party’; or (2) ‘to expedite decision in the public interest.’” State v. Hart, 361 N.C. 309,
315, 644 S.E.2d 201, 205 (2007) (cleaned up). “Rule 2 relates to the residual power of
our appellate courts to consider, in exceptional circumstances, significant issues of
importance in the public interest or to prevent injustice which appears manifest to
the Court and only in such instances.” Id. at 315–16, 644 S.E.2d at 205 (cleaned up).
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“The exercise of Rule 2 [is] intended to be limited to occasions in which a fundamental
purpose of the appellate rules is at stake, which will necessarily be rare occasions.”
Id. at 316, 644 S.E.2d at 205 (cleaned up).
“This assessment—whether a particular case is one of the rare instances
appropriate for Rule 2 review—must necessarily be made in light of the specific
circumstances of individual cases and parties, such as whether substantial rights of
an appellant are affected.” State v. Campbell, 369 N.C. 599, 603, 799 S.E.2d 600, 602
(2017). That is, “precedent cannot create an automatic right to review via Rule
2. Instead, whether an appellant has demonstrated that his matter is the rare case
meriting suspension of our appellate rules is always a discretionary determination to
be made on a case-by-case basis.” Id. at 603, 799 S.E.2d at 603.
In this case, Defendant contends that this Court should invoke Rule 2 since his
substantial rights have been impacted. Defendant maintains: “This case is unlike
the run-of-the [mill] case where a defendant has made generalized allegations of error
due to a missing transcript but is unable to show any specific prejudice,” citing to
State v. Hardison, 326 N.C. at 661–62, 391 S.E.2d at 373. Defendant further argues
that the gravity of the charge, the severity of the punishment, and the age of
Defendant must be taken into consideration, as they “weigh heavily in favor of Rule
2 review.” In Defendant’s view, denying Rule 2 review under these circumstances
would amount to manifest injustice.
Our review leads us to conclude that Defendant has failed to demonstrate
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sufficient error warranting our discretionary invocation of Rule 2 to prevent manifest
injustice. Contrary to Defendant’s urging, we have already concluded that he failed
to make a specific assertion of error like the defendants in Hardison and Clodfelter—
illustrated in section A of this opinion. Defendant’s argument to this effect merely
amounts to a recitation of his argument pertaining to IAC. Moreover, when
addressing the defendant’s similar IAC argument in Verrier, our Court concluded
that the defendant’s due process rights were not violated in light of defense counsel’s
failure to request recordation of matters not required under N.C. Gen. Stat. § 15A-
1241. See Verrier, 173 N.C. App. at 130, 617 S.E.2d at 680 (overruling the defendant’s
argument—that his due process rights were violated as a result of defense counsel’s
failure to request recordation of the full trial proceedings—since recordation of
opening statements, closing arguments, and jury selection is permissive as opposed
to mandatory under section 15A-1241, and it is not the Court’s function “as the
judiciary to modify statutory law”).
Defendant has failed to establish error to sufficiently warrant the invocation
of Rule 2. See Griffin, 298 N.C. App. at 93, 914 S.E.2d at 14 (“Although a
constitutional right is a substantial right, Defendant has failed to demonstrate error
relating to a substantial right.”); see also State v. Bishop, 255 N.C. App. 767, 770, 805
S.E.2d 367, 370 (2017). Accordingly, we decline to invoke Rule 2 in our discretion.
III. Conclusion
For the reasons above, we conclude that Defendant has failed to show that he
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received ineffective assistance of counsel from his trial attorney. We also decline to
invoke Rule 2.
NO ERROR.
Judges ZACHARY and FLOOD concur.
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