An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in a ccordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA13-1261
                        NORTH CAROLINA COURT OF APPEALS

                            Filed: 16 September 2014


STATE OF NORTH CAROLINA

      v.                                      Mecklenburg County
                                              No. 11 CRS 250932
JEREMIAH LAMONT LUKE



      Appeal by Defendant from judgment entered 1 May 2013 by

Judge C. Thomas Edwards in Mecklenburg County Superior Court.

Heard in the Court of Appeals 11 August 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Alvin W. Keller, Jr., for the State.

      Anne Bleyman, Chapel Hill, for Defendant.


      DILLON, Judge.

      Jeremiah Lamont Luke (“Defendant”) appeals from a judgment

entered upon a jury verdict finding him guilty of first-degree

murder     and   from   a   subsequent     order    denying     his   motion    for

appropriate relief (“MAR”).

                                 I. Background
                                        -2-
      On the evening of 14 November 2011, Defendant shot and

killed Mikal LeGrande (“Mr. LeGrande”) in the parking lot of an

apartment complex in Charlotte.

      The State’s evidence tended to show that moments before the

shooting, Mr. LeGrande was at the apartment complex with two

acquaintances, Mr. Maye and Mr. McManus.                Defendant approached

the scene, whereupon Defendant and Mr. LeGrande began arguing.

However,     Mr.   Maye    broke   up    the    argument,    at   which        point

Defendant stated “I got something for you,” and walked towards

his truck.

      Shortly after Defendant left, Mr. LeGrande walked with Mr.

Maye and Mr. McManus towards Mr. Maye’s apartment, which was in

the   same   general      direction     as    Defendant’s    truck.       As    Mr.

LeGrande and his two acquaintances moved through the parking

lot, Defendant reached into his vehicle, after which Defendant

approached     Mr.   LeGrande,     and       engaged   Mr.   LeGrande     in     an

argument.     Mr. LeGrande put his hands in the air, but he was not

holding a weapon or any other object, whereupon Defendant shot

Mr. LeGrande.        Mr. Maye ran from the scene and reported the

incident to police two hours later.                Mr. LeGrande died as a

result of the gunshot.         Police investigating the shooting found
                                                -3-
a    box    cutter     with   the     blade      sticking      up    in     Mr.    LeGrande’s

pocket.

       Defendant took the stand in his own defense.                           He testified

that       he   was    walking       towards      his     truck      when    Mr.     LeGrande

approached       him,    threatening           him     with    a    knife.         Defendant,

therefore,       reached      into    his      truck     for   his    gun    and    shot   Mr.

LeGrande        in    self-defense,            without     intending         to    kill    Mr.

LeGrande.        Defendant stated that after shooting Mr. LeGrande, he

drove away, throwing his gun out of the window of his truck; and

that he hid from police for seven days, not returning to his

home.

       Defendant was indicted for murder, and his case was tried

before Judge C. Thomas Edwards.                   The jury found Defendant guilty

of     first-degree       murder,         so    Judge     Edwards      entered       judgment

sentencing           Defendant       to        life     imprisonment         without       the

possibility of parole.                That same day, Defendant entered his

notice of appeal.

       A week after the trial, Defendant served an MAR, seeking

relief for matters related to the trial.                            Defendant’s MAR was

ultimately denied by Judge Richard D. Boner.1                             Defendant noted



1
  Defendant’s MAR was initially dismissed by Judge W. Robert
Bell. This Court ordered the trial court to reconsider the MAR,
whereupon the MAR went before Judge Boner.
                                          -4-
his appeal from both Judge Edwards’ judgment and Judge Boner’s

order denying the MAR.

                                  II.     Argument

      On appeal, Defendant argues that his MAR, which sought a

new trial, should have been allowed.                Defendant also argues that

the indictment charging him with murder is fatally defective.

For the following reasons, we find no error.

                                        A. MAR

      In his MAR, Defendant argues that he should be granted a

new   trial    because    his     trial    counsel       failed     to   follow    his

instruction to move for a mistrial when it was discovered that

one of the jurors had spoken to the mother of one of the State’s

witnesses (Mr. Maye) during a recess in the trial proceedings.

      The contact in question was reported to the trial court

after the jury had been charged and had retired to select a

foreperson.        Specifically,          during     the   recess,       Defendant’s

brother witnessed a juror engage in a conversation with Mr.

Maye’s    mother   in    the    smoking    area     of   the   courthouse.        Upon

learning about the contact, the trial court made inquiry of the

juror, out of the presence of the other eleven jurors; and of

Mr. Maye’s mother separately, out of the presence of all twelve

jurors.       During    the    inquiry,    the     juror   stated    that   she   had
                                        -5-
spoken with Mr. Maye’s mother; that she did not know the person

she spoke to was Mr. Maye’s mother; that she was wearing her

juror   badge;    that    the     conversation    involved     the    attire     of

someone passing by and the cold weather; that the conversation

did not involve anything about the trial in any manner; and that

the conversation would have no effect on her ability to be fair

and impartial.

      Mr.   Maye’s     mother    testified    that    she    did   not    see   the

juror’s badge because the juror was wearing a coat; that the

conversation involved the attire of someone passing by and of

the location of the smoking area; and that the conversation did

not involve anything about the trial in any manner.

      At the conclusion of this testimony, prior to the jury’s

verdict, neither Defendant’s trial counsel nor counsel for the

State moved for a mistrial.

      During     the   MAR    hearing    before      Judge   Boner,      Defendant

testified that he had instructed his trial counsel to move for a

mistrial based on the conversation between Mr. Maye’s mother and

the   juror;   that     his     trial   counsel   refused     to   move    for    a

mistrial; and that he did not speak up at trial regarding his

desire that his trial counsel move for a mistrial because he
                                        -6-
believed he did not have the right to speak except through his

attorney.

       Defendant’s    trial      counsel    likewise      testified      at   the    MAR

hearing, stating that Defendant did not insist or demand that he

move for a mistrial; that he thought that the trial was going

well; that he told Defendant that they were in as good of a

position    as   could      be   expected     at   that    point;   that      he    told

Defendant that he did not think they would win a motion for

mistrial; and that Defendant deferred to him with respect to the

decision not to move for a mistrial.

       Judge Boner entered a written judgment, with findings and

conclusions, denying the MAR.

       Both parties in their briefs acknowledge that our standard

of review relative to an order denying an MAR is “whether the

findings of fact are supported by the evidence, whether the

findings of fact support the conclusions of law, and whether the

conclusions      of   law    support    the    order      entered   by    the      trial

court.”     State v. Stevens, 305 N.C. 712, 720, 291 S.E.2d 585,

591 (1982).

       On   appeal,    Defendant       challenges      two    of    Judge     Boner’s

findings.     However, there is evidence to support both findings;

and,   therefore,     Defendant’s      arguments       are   overruled.         First,
                                          -7-
Defendant      challenges     Judge       Boner’s      finding    concerning     the

testimony of Mr. Maye’s mother.               Specifically, Judge Boner found

that Mr. Maye’s mother confirmed the juror’s recollection of

their conversation.         Regarding the juror’s recollection, Judge

Boner’s order contains an unchallenged finding that the juror

admitted having a conversation with Mr. Maye’s mother; that the

conversation was about clothing; and that the conversation did

not reference the trial in any way.                   While the recollection of

Mr.    Maye’s     mother    may     not     have      been     identical   to    the

recollection of the juror regarding the conversation, our review

of the transcript shows that the differences are trivial; and

that Mr. Maye’s mother did confirm the juror’s recollection that

they spoke about the attire of a passerby and that they did not

talk   about     anything   to    do   with     the   trial.      Accordingly,    we

sustain Judge Boner’s finding.

       Second,    Defendant      challenges      Judge    Boner’s    finding    that

Defendant did not insist that his trial attorney move for a

mistrial but that he had deferred to the decision of his trial

counsel.    While there is conflicting evidence on this point, the

testimony of Defendant’s trial counsel at the MAR hearing is

sufficient to sustain this finding.
                                      -8-
      Defendant    also    challenges     two   conclusions     of   law,   which

this Court reviews de novo.          State v. Graham, 200 N.C. App. 204,

214, 683 S.E.2d 437, 444 (2009).               First, Defendant argues that

the   findings    “are    insufficient    to    support   the   trial   court’s

conclusion of law that [Defendant] was not denied trial by a

fair and impartial jury as guaranteed by [the North Carolina and

Federal Constitutions].”          Specifically, Defendant argues that he

had reached an impasse with his trial counsel about moving for a

mistrial and that he “could not trust [the juror] after her

conversation with the biased and unforthcoming [mother of Mr.

Maye].”       Regarding the supposed impasse between Defendant and

his trial counsel, we are bound by Judge Boner’s finding that

Defendant deferred to his trial counsel concerning the issue, a

finding which is supported by the testimony of Defendant’s trial

counsel.      Regarding Defendant’s argument that he could not trust

the juror, there was no evidence that the juror was biased or

otherwise incapable of impartiality.               Rather, as Judge Boner

found, Judge Edwards questioned both the juror and Mr. Maye’s

mother regarding the incident and there was no indication that

any   issue    regarding    the   trial   was    discussed.      In   State   v.

Johnson, our Supreme Court stated that “[t]he circumstances must

be such as not merely to put suspicion on the verdict, because
                                           -9-
there was an opportunity and a chance for misconduct, but that

there was in fact misconduct.”                   295 N.C. 227, 234, 244 S.E.2d

391, 396 (1978).         Further, the Court stated that “[c]learly, a

conversation between a juror and a third party which was of a

harmless character, unrelated to the matter in issue, and not

tending to influence or prejudice the jury in their verdict,

will not afford cause for a new trial.”                   Id. at 234, 244 S.E.2d

at 395.

      Second, Defendant argues that Judge Boner’s findings do not

support the conclusion that Defendant was not denied his right

to   effective       assistance    of     counsel.       Specifically,        Defendant

argues that his counsel was ineffective by failing to move for a

mistrial.       We disagree.          Our Supreme Court has held that to

establish       an    ineffective       assistance       of    counsel      claim,         a

defendant must show that his counsel committed an error and that

“there     is   a    reasonable    probability        that,    but    for     counsel’s

errors,     there     would    have     been      a   different      result       in    the

proceedings.”        State v. Braswell, 312 N.C. 553, 563, 324 S.E.2d

241, 248 (1985).

      In    the      present      case,     Judge      Boner      found     that        the

conversation between the juror and Mr. Maye’s mother did not

contain     any      reference    to      any    issue    concerning        the        trial
                                           -10-
whatsoever and that it was “highly unlikely” that Judge Edwards

would have granted a mistrial had a motion been made.                              These

findings support Judge Boner’s conclusion that Defendant did not

receive ineffective assistance of counsel.                        See Johnson, 295

N.C.   at   234,   244    S.E.2d      at    396     (holding      that   “[g]enerally

speaking, neither the common law nor statutes contemplate as

ground for a new trial a conversation between a juror and a

third person unless it is of such a character as is calculated

to impress the case upon the mind of the juror in a different

aspect than was presented by the evidence in the courtroom, or

is of such a nature as is calculated to result in harm to a

party on trial”) (emphasis in original).                       Therefore, assuming,

arguendo, that the decision by Defendant’s trial counsel not to

move for a mistrial was error, Defendant cannot show that, but

for the error, it is reasonably probable that the trial court

would have granted the motion.

       Accordingly,      we   hold    that        Judge   Boner    did   not   err   by

denying Defendant’s MAR.

                                     B. Indictment

       In   Defendant’s       final    argument,          he    contends    that     the

indictment    charging        him    with     murder      was     fatally   defective

because it did not sufficiently allege the essential elements of
                                       -11-
first-degree murder.        Specifically, Defendant argues that the

short-form indictment that was used only alleged the elements of

second-degree murder.       Defendant, however, acknowledges in his

brief that our Supreme Court has held that the language in the

short-form   indictment     is   not    defective,   see,   e.g.,   State   v.

Braxton, 352 N.C. 158, 175, 531 S.E.2d 428, 437-38 (2000), and

that he is raising the issue “for preservation purposes so as

not to be considered to have been abandoned[.]”              As this Court

is bound to follow the holdings of our Supreme Court “until

otherwise    ordered   by   []   [our]    Supreme    Court[,]”   Andrews    v.

Haygood, 188 N.C. App. 244, 248, 655 S.E.2d 440, 443 (2008), we

hold that the indictment in this case was sufficient.

                             III. Conclusion

    We have thoroughly reviewed the record and the arguments of

the State and of Defendant, and we find no error.

    NO ERROR.

    Judge ERVIN and Judge McCULLOUGH concur.

    Report per Rule 30(e).
