257 N.C. App. 516
N.C. Ct. App.2018Background
- On July 14, 2015 Charles Adam Friend stabbed André Douglas Gay; Friend was charged with first‑degree burglary and assault with a deadly weapon inflicting serious injury.
- Gay testified Friend forced entry (broke a side window, pushed open the door) and threatened/attacked while inside; physical evidence (broken window glass outside, broken knife) tended to support Gay’s account.
- Police recorded a custodial videotaped interrogation in which Friend contradicted himself, admitted forcing entry, and acknowledged Gay likely put down his knife before being stabbed.
- A jury convicted Friend of first‑degree burglary and assault with a deadly weapon; the court imposed prison sentences and entered a $1,750 civil money judgment for attorneys’ fees under N.C. Gen. Stat. § 7A‑455.
- Friend appealed; the Court of Appeals granted certiorari to reach the merits. The court addressed (1) admissibility of the videotape (plain error review), (2) ineffective assistance claim (decided not to reach on direct appeal), and (3) whether the trial court afforded Friend personal notice and an opportunity to be heard before entering the attorneys’ fees judgment.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Friend) | Held |
|---|---|---|---|
| Admissibility of custodial videotape (no contemporaneous objection) | Tape was properly admitted; physical evidence and testimony corroborated guilt. | Admission was erroneous; Friend challenges voluntariness/admission (but conceded plain error review). | No plain error: Friend failed to show the alleged error probably changed the verdict. |
| Ineffective assistance for failing to move to suppress/object to videotape | State says record lacks clarity on counsel’s strategy; issue better resolved below. | Counsel was ineffective for failing to suppress/ object; claim suitable for direct review. | Dismissed without prejudice: claim raises factual/strategic questions unsuitable for direct appeal; may be pursued via MAR. |
| Civil money judgment for court‑appointed counsel fees under § 7A‑455 | Fees may be awarded but trial courts must follow statutory procedure. | Trial court violated right to notice and opportunity to be heard because Friend was not personally asked if he wished to be heard. | Vacated and remanded: trial courts must ask indigent defendant personally (not just counsel) whether they wish to be heard before entering § 7A‑455 money judgments; absent colloquy, record must show defendant knew and waived the opportunity. |
| Appellate jurisdiction/certiorari | State did not contest review; certiorari appropriate to address meritorious fee issue. | Friend sought certiorari to reach both criminal and civil judgments despite procedural defaults. | Court exercised discretionary certiorari to review both the criminal judgment and the attorneys’ fees issue. |
Key Cases Cited
- State v. Lawrence, 365 N.C. 506 (plain error standard, prejudice requirement)
- State v. Thompson, 359 N.C. 77 (ineffective assistance on direct appeal; cold record rule)
- State v. Jacobs, 172 N.C. App. 220 (requirement of notice and opportunity to be heard before imposing counsel fee judgments)
- State v. Crews, 284 N.C. 427 (same: defendants must have notice and opportunity to be heard before fee judgment)
- State v. McCoy, 171 N.C. App. 636 (use of certiorari to reach untimely criminal appeals)