IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA22-130-2
Filed 1 October 2024
Ashe County, Nos. 15 CRS 50792-96
STATE OF NORTH CAROLINA
v.
JOSHUA DAVID REBER
Appeal by Defendant from judgments entered 9 August 2021 by Judge Forrest
D. Bridges in Ashe County Superior Court. Originally heard in the Court of Appeals
on 19 October 2022, with opinion issued 16 May 2023 by a divided panel of this Court.
See State v. Reber, 289 N.C. App. 66, 887 S.E.2d 487 (2023), (“Reber I”). By plurality
opinion filed 23 May 2024, the Supreme Court of North Carolina reversed this Court’s
decision and remanded for consideration of the issues not previously addressed in
Reber I. See State v. Reber, 386 N.C. 153, 900 S.E.2d 781 (2024).
Attorney General Joshua H. Stein, by Special Deputy Attorney General Margaret A. Force, for the State.
Daniel M. Blau, for the Defendant.
WOOD, Judge.
This case is before us on remand from the Supreme Court of North Carolina
for the sole purpose of considering Defendant’s two remaining arguments on appeal
not contemplated by this Court in Reber I. Namely, whether Defendant received STATE V. REBER
Opinion of the Court
ineffective assistance of counsel when his attorney failed to move to suppress evidence
obtained from his cell phone pursuant to a search warrant; and whether the trial
court committed structural constitutional error by allowing four disqualified jurors
to serve on Defendant’s trial. After careful consideration of Defendant’s remaining
arguments, we conclude Defendant received a fair trial free from error.
I. Factual and Procedural Background
The factual background and history of this case are fully set forth in Reber I
and the Supreme Court opinion further summarized and addressed the facts relevant
to its holdings on the issues. State v. Reber, 289 N.C. App. 66, 887 S.E.2d 487 (2023),
rev’d and remanded, 386 N.C. 153, 900 S.E.2d 781 (2024). Accordingly, we now
consider only those facts pertinent to Defendant’s two remaining arguments on
appeal.
This case concerns the sexual abuse of a minor child, K.W.1, spanning many
years. The abuse was uncovered when K.W. informed her mother that Joshua Reber
(“Defendant”) had been regularly engaging in sexual acts with her. The sexual abuse
began when K.W. was eight years old and ended around her eleventh birthday in
2015. K.W. testified that for over three years most incidents occurred in private
locations or at nighttime, and included vaginal sex, digital penetration, and oral sex.
1 A pseudonym is used to protect the identity of the juvenile pursuant to N.C. R. App. P.
42(b).
2 STATE V. REBER
K.W. additionally testified that she communicated with Defendant on Facebook
Messenger and Snapchat, where they sent nude photos to one another.
Defendant was arrested on 4 November 2015 for several counts of sexual
offense with a child and rape of a child. Following his arrest, on 19 November 2015,
the investigating law enforcement officer obtained a search warrant for Defendant’s
phone. On 15 March 2016, Agent Anderson of the SBI conducted a forensic
examination of his cell phone. The information extracted from the phone indicated
that the phone had not been “activated” until May 2015, one month after the alleged
abuse stopped. Agent Anderson testified that various applications were installed on
the phone on 15 May 2015, which, in his training and experience, is consistent with
the activation of a new cell phone. Agent Anderson did not find evidence of nude
photograph exchanges or other communications between Defendant and K.W.
Rather, the data extraction contained thousands of text messages between Defendant
and his girlfriend at that time, Danielle. Agent Anderson further testified that an
attempt to conduct a forensic examination of K.W.’s device was unsuccessful due to
technical issues. Thus, the search of both Defendant’s and K.W.’s devices did not
render any evidence indicative of K.W. and Defendant’s relationship. Defendant’s
attorney did not file a motion to suppress the evidence discovered pursuant to the
search warrant.
Defendant came on for a jury trial during the 2 August 2021 criminal session
3 STATE V. REBER
of Ashe County Superior Court. At trial, Defendant testified on his own behalf,
denied ever engaging in any sexual activities with K.W., and denied exchanging nude
photos with K.W. Defendant further testified that he did not buy a new phone to hide
any previous communications between him and K.W. Additionally, he stated that he
had not used Snapchat during the period between 2012 and 2015 to communicate
with K.W. but may have downloaded the application on one occasion in 2015 to chat
with his girlfriend Danielle. On cross-examination, the State questioned Defendant
about his relationship with Danielle and certain text messages exchanged between
them. The first text message exchange introduced at trial concerned a prior sexual
encounter that had occurred between Defendant and Danielle while she was
intoxicated. The other text message exchange concerned their desire to meet at a
motel to engage in sexual activity. Defendant informed Danielle that he would have
to bring his daughter and ask her not to say anything about it to his grandparents
because they are religious and did not condone of sexual activity outside of marriage.
These text messages, discovered pursuant to the search warrant, were referenced
again during the prosecutor’s closing argument.
The jury was tasked with weighing K.W.’s detailed testimony against
Defendant’s blanket denial, as there were no witnesses or physical evidence of the
alleged abuse. Ultimately, on 9 August 2021, the jury found Defendant guilty of four
counts of rape of a child and six counts of sex offense with a child. The trial court
4 STATE V. REBER
consolidated the charges and Defendant was sentenced to two consecutive terms of
300 to 420 months of imprisonment. Defendant gave oral notice of appeal in open
court and filed a written notice of appeal on 13 August 2021.
In Reber I, Defendant argued before this Court that (1) the trial court
committed plain error by allowing the State to introduce into evidence the text
message exchanges between Defendant and Danielle; (2) the trial court erred by
failing to intervene ex mero motu in response to certain statements made by the State
during the prosecutor’s closing argument; (3) the search warrant to access
Defendant’s phone was deficient and Defendant received ineffective assistance of
counsel when his attorney failed to file a motion to suppress the evidence obtained
therein; and (4) the trial court committed structural constitutional error by allowing
multiple disqualified jurors to serve on Defendant’s trial. State v. Reber, 289 N.C.
App. 66, 74, 887 S.E.2d 487, 495 (2023). On 23 May 2024, a divided Supreme Court
issued an opinion which reversed this Court’s majority opinion and remanded with
instruction for consideration of Defendant’s remaining arguments on appeal. State
v. Reber, 386 N.C. at 166, 900 S.E.2d at 791 (2024).
II. Analysis
We now consider (1) whether Defendant received ineffective assistance of
counsel when his attorney failed to move to suppress the search warrant granting
access to Defendant’s cell phone records because it was not supported by probable
5 STATE V. REBER
cause; and (2) whether the trial court committed structural constitutional error when
it allowed four jurors, who were empaneled on a preceding case during the same
session of the court, to serve on Defendant’s trial.
A. Ineffective Assistance of Counsel
Whether a Defendant received ineffective assistance of counsel is reviewed de
novo on appeal. State v. Wilson, 236 N.C. App. 472, 475, 762 S.E.2d 894, 896 (2014)
(citation omitted). “[T]he Appellate Rules generally require that parties take some
action to preserve an issue for appeal. Exceptions exist, however, allowing a party to
raise an issue on appeal that was not first presented to the trial court.” State v.
Meadows, 371 N.C. 742, 746, 821 S.E.2d 402, 405 (2018) (citation omitted). Among
these exceptions is a claim for ineffective assistance of counsel, allowing a party to
assert this type of claim for the first time on 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, 262 N.C. App. 284, 285, 821 S.E.2d 860, 861 (2018) (citation omitted). When
this Court reviews this type of claim on direct appeal, the claim “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) (citations omitted).
6 STATE V. REBER
To establish a claim for ineffective assistance of counsel, the defendant carries
the burden of satisfying a two-part test. State v. Braswell, 312 N.C. 553, 562, 324
S.E.2d 241, 248 (1985). This well-established test requires that
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.
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). The first
prong is measured under an objective, reasonableness standard and requires the
defendant to “overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.” State v. Stroud, 147 N.C.
App. 549, 555, 557 S.E.2d 544, 548 (2001) (cleaned up). “Counsel is given wide
latitude in matters of strategy, and the burden to show that counsel's performance
fell short of the required standard is a heavy one for defendant to bear.” State v.
Fletcher, 354 N.C. 455, 482, 555 S.E.2d 534, 551 (2001). Under the second prong,
establishing prejudice, the test asks “whether there is a ‘reasonable probability’ that,
absent the errors, the result of the proceeding would have been different.” Reber, 386
N.C. at 159, 900 S.E.2d at 787 (citation omitted). “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” State v. Allen, 360
7 STATE V. REBER
N.C. 297, 316, 626 S.E.2d 271, 286 (2006) (cleaned up).
To assess whether Defendant received ineffective assistance of counsel when
his counsel failed to challenge the search warrant through a motion to suppress, we
first must determine whether the issuance of the warrant was lawful. See State v.
Hernandez, 899 S.E.2d 899, 913 (N.C. Ct. App. 2024) (“Had Defendant's trial counsel
objected to the [search warrant], the result of the proceeding would have been the
same. Thus, we can discern from the Record on appeal that Defendant was not
prejudiced . . . and he did not receive [ineffective assistance of counsel].”). Defendant
argues that the search warrant and supporting affidavit contain “multiple
deficiencies”, including failure to establish temporal proximity and failure to
establish probable cause.
“Pursuant to N.C. Gen. Stat. § 15A-244, an application for a search warrant
must contain a statement of probable cause and allegations of fact supporting the
statement of probable cause. The statements must be supported by one or more
affidavits particularly setting forth the facts and circumstances establishing probable
cause.” State v. Eddings, 280 N.C. App. 204, 209, 866 S.E.2d 499, 503 (2021) (cleaned
up). The supporting affidavit “is sufficient if it supplies reasonable cause to believe
that the proposed search for evidence probably will reveal the presence [of] . . . the
items sought and that those items will aid in the apprehension or conviction of the
offender.” State v. Arrington, 311 N.C. 633, 636, 319 S.E.2d 254, 256 (1984) (citation
8 STATE V. REBER
omitted). In other words, “[t]he affidavit must establish a nexus between the objects
sought and the place to be searched.” State v. Parson, 250 N.C. App. 142, 152, 791
S.E.2d 528, 536 (2016) (citations omitted). Whether probable cause exists is viewed
under the “totality of the circumstances” test. Id. at 151, 791 S.E.2d at 536 (citation
omitted). The totality of the circumstances test requires a “common-sense decision
based on all the circumstances that there is a fair probability that contraband or
evidence of a crime will be found in a particular place.” State v. McCoy, 100 N.C. App.
574, 576, 397 S.E.2d 355, 357 (1990) (cleaned up).
To establish probable cause for the issuance of a search warrant, the
determination “is grounded in practical considerations” and “does not mean actual
and positive cause nor import absolute certainty.” State v. Steen, 352 N.C. 227, 243,
536 S.E.2d 1, 11 (2000) (cleaned up). Rather, “[a] magistrate may draw such
reasonable inferences as he will from the material supplied to him by applicants for
a warrant.” State v. Riggs, 328 N.C. 213, 221, 400 S.E.2d 429, 434 (1991) (cleaned up).
The issuing magistrate is tasked with “mak[ing] a practical, common-sense decision”
and “great deference should be paid to a magistrate’s determination of probable
cause.” State v. Dexter, 186 N.C. App. 587, 592, 651 S.E.2d 900, 904 (2007) (cleaned
up).
In the present case, the affidavit attached to the search warrant application
includes under “item to be searched”:
9 STATE V. REBER
Verizon cell phone having cell number 828-514-1208 seized from the property of inmate Joshua David Reber, currently incarcerated in the Ashe County Detention Center, on ______________. The phone has remained in the custody of Your Affiant since the seizure.
The affiant, Captain Gentry, indicated under “items to be seized”, that she sought
discovery of electronically stored information, such as telephone calls, text messages,
contact list, photographs, and billing information. Captain Gentry’s probable cause
statement, detailed her training, experience, and expertise as to child sexual abuse
cases, explaining that it is a “common practice” for one alleged with the commission
of this offense to use a cell phone to store evidence of criminal activity, such as the
exchanging of nude photographs or text messages about sexual acts. Further,
Captain Gentry explained,
Based on information provided hereafter, this Affiant believes that probable cause exists to conclude that the pertinent information may be found on the aforementioned device, described earlier in this application. Specifically, the alleged child victim has reported that the Defendant Joshua David Reber did send nude photos to her using such programs as SNAPCHAT via his cell phone. Defendant Reber would also send text messages containing sexual conduct involving the alleged victim and himself.
Ultimately, the warrant issued and the cell phone was searched, but the evidence
sought was not found. The search indicated that the phone did not contain data prior
to May 2015, one month after the alleged abuse stopped.
Defendant contends the search warrant application was deficient because (1)
10 STATE V. REBER
it is not clear how or when the phone came into the officers’ possession; (2) there is
no time frame provided for when the illegal activity allegedly took place; and (3) there
is no indication that K.W. provided investigators with the phone number that
Defendant used to communicate with her, so it is impossible to confirm that the seized
phone was the same phone Defendant used to commit the alleged offense. Defendant
argues that, due to these errors, the warrant was unsupported by probable cause.
In considering Defendant’s argument, we note an issuing magistrate is
permitted to draw “reasonable inferences” from the warrant application. Riggs, 328
N.C. at 221, 400 S.E.2d at 434. As to Defendant’s first issue, Captain Gentry clearly
states how the cell phone came into the officers’ possession in the affidavit—it was
“seized from the property of inmate [Defendant], currently incarcerated in the Ashe
County Detention Center.” Thus, the magistrate could reasonably infer that the cell
phone was seized at the time of Defendant’s arrest. Second, although Defendant
correctly states that the affidavit does not include a time frame of when the alleged
illegal activity took place, it does indicate that this matter concerns an “on-going
investigation” and it is “common practice” to “store information of criminal activity”
on a cell phone. Further, it states that K.W. informed law enforcement that
Defendant sent nude photos of himself to her over snapchat and sent text messages
referencing sexual activity to her. Thus, the warrant application and affidavit
contained information sufficient for a magistrate judge to conclude Captain Gentry
11 STATE V. REBER
sought information stored on Defendant’s cell phone related to K.W.’s statement. The
magistrate could reasonably infer that the “time frame” would be established by
evidence recovered from Defendant’s phone. Lastly, Defendant’s contention regarding
the impossibility of confirming, prior to the search, that Defendant used that
particular phone to communicate with K.W., lacks merit. Again, it is reasonable for
a magistrate to have inferred that the phone in Defendant’s possession at the time of
his arrest and incarceration was in fact the same phone used to contact K.W. and
evidence of the alleged crime would have potentially been stored on that cell phone.
Accordingly, these inferences are “grounded in practical considerations” and the
affidavit was not deficient for any of the three reasons raised by Defendant on appeal.
Steen, 352 N.C. at 243, 536 S.E.2d at 11.
This Court has held, “[p]robable cause cannot be shown, however, by affidavits
which are purely conclusory, stating only the affiant's or an informer's belief that
probable cause exists without detailing any of the underlying circumstances upon
which that belief is based.” State v. Rayfield, 231 N.C. App. 632, 651, 752 S.E.2d 745,
759 (2014) (cleaned up). An affidavit is not purely conclusory when it details “some
connection or nexus linking the [property] to illegal activity” and that “direct evidence
is not always necessary to establish probable cause.” State v. Bailey, 374 N.C. 332,
335-36, 841 S.E.2d 277, 280-81 (2020) (citation omitted). Here, Captain Gentry’s
affidavit established a connection linking Defendant’s cell phone to illegal, sexual
12 STATE V. REBER
activity with K.W. The affidavit did not simply state Captain Gentry’s belief that
probable cause exists, rather, it explained, her background and training on this type
of criminal activity; how, in her experience, it is “common practice” for information
related to the illegal activity to be stored on a cell phone; how Defendant allegedly
sent nude photos to K.W. via snapchat; how Defendant sent text messages involving
sexual conduct to K.W.; and that the purpose of the warrant was to find evidence of
phone calls, text messages, emails, pictures, and videos. Thus, it sufficiently details
that a search of Defendant’s cell phone may reveal evidence of illegal sexual activity
with a child. Accordingly, because the affidavit set out the underlying circumstances
from which the issuing judge could find that probable cause existed to search
Defendant’s cell phone, we conclude that the issuance of the warrant was proper.
Having determined that probable cause existed to support the issuance of the
search warrant, we now conclude that “[h]ad Defendant's trial counsel objected to the
[search warrant], the result of the proceeding would have been the same.” Hernandez,
899 S.E.2d 899, 913 (N.C. Ct. App. 2024). See Braswell, 312 N.C. at 563, 324 S.E.2d
at 249 (Under the second prong of the ineffective assistance of counsel test, a
defendant must show a “reasonable probability that in the absence of counsel's
alleged errors the result of the proceeding would have been different.”). Stated
differently, had Defendant’s counsel moved to suppress the evidence obtained from
the search warrant, the motion would have been properly denied since the warrant
13 STATE V. REBER
was sufficient to establish probable cause. Thus, Defendant is unable to show the
requisite prejudice to support a “reasonable probability that in the absence of
counsel's alleged errors the result of the proceeding would have been different.”
Braswell, 312 N.C. at 563, 324 S.E.2d at 241.
Since it is understood that “there is no reason for a court deciding an ineffective
assistance of counsel claim to . . . address both components of the inquiry if the
defendant makes an insufficient showing on one[,]” we need not address the first
prong under the test. Strickland, 466 U.S. at 697, 104 S. Ct. at 2069. We hold that
Defendant did not satisfy the second prong of prejudice, that his “counsels errors were
so serious as to deprive [him] of a fair trial.” Id. at 687, 104 S. Ct. at 2064.
Accordingly, Defendant did not receive ineffective assistance of counsel when his
counsel failed to file a motion to suppress the evidence obtained from the search of
his cell phone.
B. Disqualified Jurors
Defendant next argues that the trial court committed structural constitutional
error by allowing certain jurors to serve on his trial. From 2 August 2021 to 3 August
2021, the Ashe County Superior Court conducted a jury trial on a different case
involving misdemeanor stalking. In that case, the jury returned a verdict of not guilty
on the morning of 3 August 2021. Following the verdict, the judge, who also presided
over Defendant’s trial, addressed the jury. The judge informed the jurors that their
14 STATE V. REBER
service on the misdemeanor stalking case was complete, but since the jurors were
already summoned for the week, the judge asked them to stay until he figured out
what the State’s next case was. In the afternoon of 3 August 2021, during the same
session of court, Defendant’s case was called for trial. Six of the jurors from the
preceding case were selected to participate in voir dire for Defendant’s case. During
the selection process, Defendant’s counsel was aware that these six jurors had sat
and rendered a not-guilty verdict on the case heard that same morning. Defendant’s
counsel did not raise any objection, and none of the jurors were challenged for cause.
Ultimately, four of the six jurors were empaneled for Defendant’s trial.
N.C. Gen. Stat. § 9-3 provides the qualifications of prospective jurors. It states,
in relevant part, “[a] person is qualified to serve as a juror” who is “a resident of the
State” and “a resident of the county[,]” who “has not served as a juror during the
preceding two years” and “[a] person not qualified under this section is subject to
challenge for cause.” N.C. Gen. Stat. § 9-3 (emphasis added). On appeal, Defendant
argues that the trial court acted contrary to N.C. Gen. Stat. § 9–3 when it seated the
four jurors who had served on the previous case. He argues that these jurors were
not permitted to serve on his case, as once the jurors sat and rendered a verdict on
the previous case, they were disqualified from further service. Without
disqualification, Defendant argues, the statutory mandate of “who have not served as
jurors during the preceding two years” is violated. Defendant contends that this
15 STATE V. REBER
improper selection amounts to a structural constitutional error that warrants
automatic reversal of the verdict rendered by the jury. Further, Defendant asserts,
without evidence, that because the jurors had already returned a not guilty verdict
in the previous case, the four jurors “were more likely to convict [Defendant]” and
thus the error was prejudicial to his trial.
Defendant argued three separate grounds upon which this issue should be
reviewed on appeal, each will be addressed in turn. First, Defendant argues that
“when a trial court acts contrary to a statutory mandate regarding jury selection, the
error is preserved even if the defendant did not object below.” We disagree. “N.C.
Gen. Stat. § 9–3 specifically provides that persons not qualified to be jurors are
subject to challenge for cause.” State v. Davis, 191 N.C. App. 535, 545, 664 S.E.2d 21,
27 (2008) (citation omitted). Defendant’s “sole recourse under the statute was to
challenge the juror for cause. Having failed to do so at trial, he has not preserved the
issue for appellate review.” Id. (citation omitted). The court did not bar Defendant
from challenging for cause and it was incumbent on Defendant to use peremptory
challenges appropriately.
However, presuming, without deciding, that the trial court did violate a
mandate in N.C. Gen. Stat. § 9–3, Defendant must prove more than a statutory
violation. “This Court has consistently required that defendants claiming error in
jury selection procedures show prejudice in addition to a statutory violation before
16 STATE V. REBER
they can receive a new trial.” State v. Garcia, 358 N.C. 382, 406–07, 597 S.E.2d 724,
743 (2004) (citations omitted). To establish prejudice in jury selection, the defendant
must have exhausted all peremptory challenges. State v. Lawrence, 352 N.C. 1, 13,
530 S.E.2d 807, 815 (2000) (citations omitted). If peremptory challenges are unused,
and the defendant makes no challenge for cause, then he cannot be said to have been
forced to accept an undesirable juror. Garcia, 358 N.C. at 408, 597 S.E.2d at 743–44
(citation omitted). N.C. Gen. Stat. § 15A-1217 provides that, in noncapital cases, the
“defendant is allowed six challenges.” N.C. Gen. Stat. § 15A-1217(b). Defendant does
not claim to have exhausted all challenges and the transcript indicates only two of
six strikes were used. Consequently, Defendant cannot establish prejudice in the jury
selection process.
Second, Defendant claims that “this Court and our Supreme Court have also
reviewed unpreserved structural error despite a defendant’s failure to object at trial.”
“Structural error is a rare form of constitutional error resulting from structural
defects in the constitution of the trial mechanism which are so serious that a criminal
trial cannot reliably serve its function as a vehicle for determination of guilt or
innocence.” Garcia, 358 N.C. at 409, 597 S.E.2d at 744 (cleaned up). Since the United
States Supreme Court first identified structural error in 1991, “that Court has
identified only six instances of structural error to date.” Id. (citations omitted).
Improper selection of jurors in violation of state statute is not one of the six instances
17 STATE V. REBER
identified by the Court. Id. Furthermore, “the United States Supreme Court
emphasizes a strong presumption against structural error.” Id. at 409-10, 597 S.E.2d
at 744-45 (citations omitted). Our Supreme Court “has recently declined to extend
structural error analysis beyond the six cases enumerated by the United States
Supreme Court.” Id. at 410, 597 S.E.2d at 745 (citation omitted).
Defendant claims that this Court has previously “reviewed unpreserved
structural error.” However, both cases provided by Defendant are distinguishable
from the current case. In State v. Colbert, the defendant was deprived of his “right to
counsel.” State v. Colbert, 311 N.C. 283, 286, 316 S.E.2d 79, 81 (1984). In State v.
Veney, the Court similarly reviewed whether the defendant was deprived of his right
to counsel. State v. Veney, 259 N.C. App. 915, 920, 817 S.E.2d 114, 118 (2018).
Deprivation of counsel is one of the six structural errors identified by the United
States Supreme Court, unlike jury selection issues. Garcia, 358 N.C. at 409, 597
S.E.2d at 744. Defendant states that even if this Court does not find structural error,
“the error was still prejudicial and requires a new trial,” regardless of the standard
applied. However, as discussed supra, Defendant has failed to establish prejudice in
the jury selection process under the facts of his case.
Lastly, Defendant asserts that this Court should review this issue “under
Appellate Rule 2” to “prevent manifest injustice to a party.” The exercise of Rule 2
was intended to be limited to “rare occasions.” State v. Hart, 361 N.C. 309, 316, 644
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S.E.2d 201, 205 (2007) (citations omitted). This Court has tended to invoke Rule 2 in
“circumstances in which [the] substantial rights of an appellant are affected.” Id.
(citation omitted). Defendant asserts, without evidence, that his right to a fair and
impartial jury was violated because four jurors who had been empaneled, despite
their prior service, were more likely to find him guilty. However, Defendant has
failed to demonstrate that his right to a fair and impartial jury was adversely
affected. “A defendant is not entitled to any particular juror. His right to challenge
is not a right to select but to reject a juror.” State v. Harris, 338 N.C. 211, 227, 449
S.E.2d 462, 470 (1994). In Harris, failure to exhaust peremptory challenges
evidenced “satisfaction” with the jury. Id. (citation omitted). Defendant had four
remaining peremptory strikes but failed to use them. Defendant’s decision to not
exhaust his peremptory strikes does not deprive him of any substantial right that
would justify invoking Rule 2.
Defendant does not satisfy any of the three grounds upon which the issue
would be preserved on appeal. Presuming arguendo that it was preserved, Defendant
is unable to show that he was prejudiced by the alleged error or that it deprived him
of a fair trial.
III. Conclusion
For the foregoing reasons, we conclude that Defendant did not receive
ineffective assistance of counsel when his counsel failed to file a motion to suppress
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because the search warrant was proper and supported by probable cause. Further,
Defendant is unable to satisfy the two-part test, as set forth in Strickland, to
demonstrate ineffective assistance of counsel. Strickland, 466 U.S. at 687, 104 S. Ct.
at 2064. We also hold that Defendant’s jury selection argument, was not properly
preserved for consideration by this Court. Accordingly, we hold that Defendant
received a fair trial free from error.
NO ERROR.
Chief Judge DILLON and Judge COLLINS concur.