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State v. Blizzard4/5/2005
claim may be brought on direct review "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.2d500, 524, motion denied, 354 N.C. 576, 558 S.E.2d 861 (2001), cert. denied, 535 U.S. 1114, 153 L.Ed. 2d 162 (2002).
Here, the record is insufficient for this Court to consider defendant's claim. From our review of the transcripts and record, we cannot determine whether defense counsel's actions or inaction defendant cites to resulted from trial tactics, strategy, lack of preparation, or unfamiliarity with the legal issues. Further, defendant acknowledges in his brief that he "is unable, on the present record, to litigate any of those claims for [IEAC]."
Our dismissal of this assignment of error is without prejudice for defendant to move for appropriate relief and request a hearing to determine whether he received effective assistance of counsel. See State v. Dockery, 78 N.C. App. 190, 192, 336 S.E.2d 719, 721 (1985) ("The accepted practice is to raise claims of [IEAC] in post-conviction proceedings, rather than direct appeal."). This assignment of error is dismissed without prejudice for defendant to file a motion for appropriate relief in superior court.
VIII. Conclusion
The trial court properly denied defendant's motion to dismiss the charge of first-degree kidnapping. The admission of Dr. Reese's medical expert opinion testimony that the victim was "believable" was error, but not prejudicial to defendant. The trial court properly admitted the poem from the victim's boyfriend as relevant evidence to corroborate testimony given by other witnesses for the State. Sufficient evidence was proffered to warrant an instruction to the jury on the element of "seriouspersonal injury " for the charge of first-degree rape. We decline to consider defendant's claim of IEAC and dismiss the assignment of error without prejudice for defendant to file a motion for appropriate relief. Defendant received a fair trial free from prejudicial error.
No prejudicial error.
Judges MCGEE and GEER concur.
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