State v. Reber, ___ N.C. App. ___ (Oct. 1, 2024)

In this Ashe County case, defendant appealed of his convictions for rape of a child and sex offense with a child, arguing (1) ineffective assistance of counsel by failing to move to suppress evidence obtained from defendant’s cell phone, and (2) structural constitutional error by allowing four disqualified jurors to serve on defendant’s trial. The Court of Appeals found no error.

This opinion represents the second time the Court of Appeals considered defendant’s appeal; in the first instance, State v. Reber, 289 N.C. App. 66 (2023), the court found error in admitting certain prejudicial testimony, ordering a new trial. The Supreme Court then took up the State’s appeal, and reversed and remanded in State v. Reber, 386 N.C. 153 (2024). The current opinion represents the remaining issues not disposed of by the Supreme Court’s opinion.

For (1), defendant argued that he received ineffective assistance of counsel because his attorney did not move to suppress the results of a search of his phone. The court noted the applicable two-part test under Strickland v. Washington, 466 U.S. 668 (1984), and determined defendant could not establish the second prong, prejudice from counsel’s deficient performance. The basis for defendant’s argument was the search warrant application, specifically that it lacked identifying details about the timeline of his communications with the victim and how the police came to possess the phone and connect it to his interactions with the victim. The court noted that a magistrate may draw reasonable inferences when considering an application for a search warrant, and after reviewing the application and affidavit in support of the warrant, concluded “the affidavit set out the underlying circumstances from which the issuing judge could find that probable cause existed” and “the issuance of the warrant was proper.” Slip Op. at 13.

Moving to (2), defendant argued that it was structural constitutional error for the trial judge to allow six jurors who had already served on a case that day to participate in voir dire for defendant’s case because they were disqualified under G.S. 9-3. One of the qualifications for jurors in G.S. 9-3 is that the person “has not served as a juror during the preceding two years,” which defendant argued was violated here by the jurors participating in an earlier trial that day. Id. at 15. Defendant’s case was called to trial on August 3, 2021; earlier that day the jurors in question had served on a misdemeanor stalking case, finding the defendant in that matter not guilty. Afterwards, the judge asked jurors to stay and participate in defendant’s trial. Defense counsel was aware these jurors had served earlier in the day, and four of the six jurors were empaneled for defendant’s jury. Defense counsel did not object to the inclusion of the jurors and used only two of his six peremptory strikes. The court first noted that defendant could not demonstrate prejudice in the jury selection process because “[t]o establish prejudice in jury selection, the defendant must have exhausted all peremptory challenges.” Id. at 17. The court then noted that defendant did not preserve the error for appeal, and this issue did not fall under the structural error framework identified by the U.S. Supreme Court. Regardless of whether defendant successfully preserved his error on appeal, defendant was “unable to show that he was prejudiced by the alleged error or that it deprived him of a fair trial.” Id. at 19.