               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA15-71

                              Filed: 6 October 2015

Guilford County, No. 12 CRS 97726

STATE OF NORTH CAROLINA

            v.

EZEKIEL ELIGHA GAMBLE, Defendant.


      Appeal by Defendant from judgment entered 28 August 2014 by Judge Ronald

E. Spivey in Guilford County Superior Court. Heard in the Court of Appeals 12

August 2015.


      Attorney General Roy Cooper, by Assistant Attorney General Douglas W.
      Corkhill, for the State.

      Attorney Ryan McKaig, for Defendant-Appellant.


      HUNTER, JR., Robert N., Judge.


      Ezekiel Gamble (“Defendant”) appeals following a jury verdict convicting him

of armed robbery in which he received a sentence of 80 to 108 months’ imprisonment.

On appeal, Defendant argues the trial court committed plain error in allowing

eyewitness testimony in violation of the North Carolina Eyewitness Identification

Reform Act of 2007 (“EIRA”).      Defendant also argues he received ineffective

assistance of counsel at trial. After review we find the court committed no error,

much less plain error in admitting the eyewitness testimony. We dismiss Defendant’s
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ineffective assistance of counsel claim without prejudice to the right of Defendant to

refile a motion for appropriate relief in the trial court.

                            I. Factual and Procedural History

      On 20 May 2013, Defendant was indicted for armed robbery. Represented by

appointed counsel, Wayne T. Baucino, Defendant pled not guilty, and trial began on

26 August 2014 in Guilford County Superior Court.

      The State’s evidence tended to show the following: On 11 December 2012,

Maurice Stimpson lived in an apartment complex in Greensboro, North Carolina.

While cleaning inside his home during the early afternoon, he heard the sound of

another person outside his home. Mr. Stimpson went outside and saw Defendant

running around the building searching for someone.           Mr. Stimpson watched

Defendant run around for fifteen minutes, and went back inside to finish his cleaning.

Shortly thereafter, Defendant knocked on Mr. Stimpson’s door. Defendant asked Mr.

Stimpson where “Rob” lived, and Mr. Stimpson pointed out Rob’s apartment. Then

Defendant left with another man in a white Lexus.

      About thirty minutes later, Defendant knocked on Mr. Stimpson’s door again,

asking about Rob. Mr. Stimpson walked outside to talk with Defendant. Once

outside, Mr. Stimpson turned and saw a second man standing beside the front door.

The second man was holding, but not pointing, a gun. Defendant told Mr. Stimpson

to call Rob, and Mr. Stimpson obliged, telling Rob to come home and that two men



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were looking for him. As soon as Mr. Stimpson hung up, Defendant became upset

and “got in [Mr. Stimpson’s] face.” Defendant insisted on being taken to Rob, but Mr.

Stimpson refused. Defendant responded by demanding Mr. Stimpson’s wallet. Mr.

Stimpson protested to keep his money and reluctantly took out his wallet. Defendant

took the wallet from Mr. Stimpson’s hand, and removed all of the money, saying,

“Somebody got to take the loss today.” Defendant then returned the cashless wallet

to Mr. Stimpson. The second man with the gun told Mr. Stimpson to take out his I.D.

and put it in the man’s pocket, which Mr. Stimpson did.          Defendant and his

accomplice left, and Mr. Stimpson went inside his home and called the police. During

Mr. Stimpson’s direct testimony, he identified Defendant as his assailant three times.

This testimony elicited no objection from defense counsel.

      Officer M. L. Schlanger of the Greensboro Police Department responded to the

911 call, and met with Mr. Stimpson. Mr. Stimpson detailed the events leading up

to the robbery, the .38 caliber handgun used in the robbery, and the white Lexus he

saw earlier that day. Mr. Stimpson described the robber as an African-American

male in his early twenties, with dreadlock style hair, and a white t-shirt. Officer

Schlanger and other officers canvassed the apartment complex and found a witness

who gave them the license plate number for the suspect’s white Lexus. Officer

Schlanger ran the license plate number and found it registered to Tynisha Fordham

of Thomasville, North Carolina. Officer Schlanger spoke with Detective Curry of the



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Thomasville Police Department, and informed him of the armed robbery, and asked

him to be on the lookout for the suspects and the white Lexus. Detective Curry knew

the Lexus owner, Tynisha Fordham, and her brother, Johnston. Detective Curry

stated Defendant knew Johnston and Fordham, and Defendant fit the description of

the robber. Using this information Officer Schlanger suspected Defendant as a target

for further investigation.

      Detective Scott Russell of the Greensboro Police Department contacted Mr.

Stimpson on 12 December 2012 to arrange a meeting to conduct a photographic

lineup. Detective Russell used the information Officer Schlanger had put together to

select photographs of eight African-American men in their early twenties with

dreadlocks, including Defendant. Detective Russell prepared the photographic lineup

before meeting with Mr. Stimpson on 13 December 2012 as follows:

             I had eight photographs, but I only used six of those
             photographs. And what I do, I take one photograph of the
             possible suspect and five filler photographs of other
             individuals of similar color, weight, characteristics. And
             what I do, prior to arriving at Mr. Stimpson’s house, I place
             one photograph in six separate [plain manila] folders. At
             that point, what I do is I shuffle those. . . . That’s so I don’t
             know which photograph is going to be the suspect. . . . I
             don’t make any gestures or inferences to the victim in this
             case trying to pick out an alleged suspect.

Detective Russell arrived at Mr. Stimpson’s residence to conduct the lineup.

Detective Russell began by reading the instructions found in section 15A-284.52(b)(3)

of the EIRA. Following the instructions, Detective Russell told Mr. Stimpson that he


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should not feel compelled to make an identification, that it is important to exclude

innocent persons, and that the investigation would continue whether or not an

identification was made. Both men signed, acknowledging the instructions on a form.

Detective Russell reshuffled the folders with photos. He then showed the photos to

Mr. Stimpson. When Mr. Stimpson came to Defendant’s picture, he said, “That’s the

one.” Detective Russell asked Mr. Stimpson how sure he was on a scale of one to ten

and Mr. Stimpson answered, “10 out of 10.” The State offered all eight photos and

the signed instruction sheet into evidence. This testimony elicited no objection from

defense counsel.


      Following Detective Russell’s photographic lineup, an arrest warrant was

issued charging Defendant with armed robbery. Defendant was arrested and served

with the warrant on 27 January 2013. Defendant posted bond shortly thereafter.


      Officer Zach Trotter of the High Point Police Department testified to

Defendant’s second arrest, stemming from a traffic stop while Defendant was out on

bond for the armed robbery charge. On 9 February 2013, Defendant drove alone in

High Point, North Carolina. Officer Trotter noticed the car had expired registration

tags, and pulled it over.   After stopping the car, Defendant fled on foot.     In a

subsequent search of the car, police found a chrome .38 caliber revolver underneath

the front passenger seat. Following the traffic stop, Defendant was arrested and

charged with crimes unrelated to the current appeal. While being processed at the

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jail for these charges, Defendant voluntarily told Officer Trotter the following:

             Man, I can’t take this gun charge. I’m going to trial for a
             robbery in Greensboro soon and they are going to think
             that the gun—that gun is the gun I used in the robbery
             because it’s the same gun— I mean, it’s the same type of
             gun that was used.

Defense counsel cross-examined Officer Trotter about the statement, focusing

primarily on Officer Trotter’s note taking. The revolver was admitted into evidence

during Officer Trotter’s direct examination without objection.


      The State rested its case and defense counsel moved to dismiss the armed

robbery charge on grounds of insufficient evidence.          The trial court denied

Defendant’s motion to dismiss.


      Defendant did not testify in his own defense.        However, defense counsel

recalled Officer Trotter to ask additional questions about his note taking. Defendant

called several witnesses for the defense, including Helen Mock, Defendant’s mother,

Tynisha Fordham, the Lexus owner, and Brittany Davis, Defendant’s former

girlfriend. Defendant rested his case, and at the close of evidence, he renewed his

motion to dismiss for insufficient evidence. The trial court denied the renewed motion

and began the charge conference.

      During the charge conference, Defendant requested an instruction on the

identification of Defendant as the perpetrator of the crime under N.C.P.I.—Crim.

104.90. The court granted Defendant’s request, instructing the jury:

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             I instruct you that the State has the burden of proving the
             identity of the defendant as the perpetrator of the crime
             charged beyond a reasonable doubt. This means that you,
             the jury, must be satisfied beyond a reasonable doubt that
             the defendant was the perpetrator of the crime charged
             before you may return a verdict of guilty.

Although N.C.P.I.—Crim. 105.65 could have been used, Defendant did not request

any other instructions pertaining to the EIRA, and did not object to the omission of

any EIRA instructions. After closing arguments, the trial court charged the jury and

sent the jury out for deliberation. During deliberation, the jury requested the eight

photos from the lineup and Defendant raised no objection. The trial court gave the

photos to the jury, and deliberation continued for approximately three hours before

the jury reached a unanimous guilty verdict.


      The court held the sentencing hearing the next morning, on 28 August 2014.

Both parties stipulated to Defendant’s prior record level III, for two prior robberies

in 2009 and 2011. Defendant delivered his allocution to the court, maintaining his

innocence and providing brief insights into his prior robbery convictions. The court

imposed a sentence within the presumptive range of the Class D armed robbery

felony, sentencing Defendant to 80 to 108 months’ imprisonment.            Defendant

immediately entered his notice of appeal by oral motion, and requested appointed

appellate counsel. The court appointed the Appellate Defender.

                              II. Standard of Review

      On appeal, Defendant claims the trial court committed plain error in allowing

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Detective Russell’s testimony, the evidence from the photographic lineup, Mr.

Stimpson’s in-court identification, and jury instructions that did not discuss the

EIRA. Defendant did not preserve any of these claims by objection at trial. On appeal

he asked that we review the admission of eyewitness testimony for plain error.

             In criminal cases, an issue that was not preserved by
             objection noted at trial and that is not deemed preserved
             by rule or law without any such action nevertheless may be
             made the basis of an issue presented on appeal when the
             judicial action questioned is specifically and distinctly
             contended to amount to plain error.

N.C.R. App. P. 10(a)(4); see also State v. Goss, 361 N.C. 610, 622, 651 S.E.2d 867, 875

(2007), cert. denied, 555 U.S. 835, 172 L. Ed. 2d 58 (2008). Plain error review is to be

"‘applied cautiously and only in the exceptional case . . . ’ [meaning] the error will

often be one that ‘seriously affect[s] the fairness, integrity or public reputation of

judicial proceedings.’” State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334

(2012) (quoting State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)).


       “The North Carolina plain error standard of review . . . requires the defendant

to bear the heavier burden of showing that the error rises to the level of plain error.”

Lawrence, 365 N.C. at 516, 723 S.E.2d at 333. “For an error to constitute plain error,

a defendant must demonstrate that a fundamental error occurred at trial.” Id. at

518, 723 S.E.2d at 334. Next, “a defendant must establish prejudice—that, after

examination of the entire record, the error ‘had a probable impact on the jury’s finding

that the defendant was guilty.’” Id. (quoting Odom, at 307 N.C. 660, 300 S.E.2d at

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378).


                                     III. Analysis

        “[E]yewitness identification evidence has a powerful impact on juries. Juries

seem most receptive to, and not inclined to discredit, testimony of a witness who

states that he saw the defendant commit the crime.” Watkins v. Sowders, 449 U.S.

341, 352, 101 S. Ct. 654, 661, 66 L.Ed.2d 549 (1981) (Brennan, J., dissenting). North

Carolina courts have long recognized this impact, and provided neutral lineup and

confrontation procedures to protect suspects’ Due Process rights under the Fifth and

Fourteenth Amendments of the United States Constitution and Art. I § 19 of the

North Carolina Constitution. State v. Hannah, 312 N.C. 286, 290, 322 S.E.2d 148,

151 (1984); see also State v. Harris, 308 N.C. 159, 301 S.E.2d 91 (1983).

        When “lineup and confrontation procedures [are] so impermissibly suggestive

as to give rise to a very substantial likelihood of irreparable misidentification [they]

violate due process and are constitutionally unacceptable.” State v. Smith, 278 N.C.

476, 481, 180 S.E.2d 7, 11 (1971) (citation and quotation marks omitted). Under a

Due Process analysis, the North Carolina Supreme Court has provided a two-part

framework:

              First we must determine whether an impermissibly
              suggestive procedure was used in obtaining the out-of-
              court identification. If this question is answered in the
              negative, we need proceed no further. If it is answered
              affirmatively, the second inquiry is whether, under all the
              circumstances, the suggestive procedures employed gave

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             rise to a substantial           likelihood   of   irreparable
             misidentification.

Hannah, 312 N.C. at 290, 322 S.E.2d at 151 (citations omitted).

      The North Carolina Supreme Court has developed a totality of the

circumstances test to determine if a pretrial procedure was impermissibly suggestive,

defining impermissible suggestiveness as “so unnecessarily suggestive and conducive

to irreparable mistaken identity as to offend fundamental standards of decency and

justice.” Id. (citations omitted). In making this determination courts consider several

factors: (1) the witness’s opportunity to view the criminal at the time of the crime; (2)

the witness’s degree of attention; (3) the accuracy of the witness’s prior description of

the criminal; (4) the level of certainty demonstrated by the witness at the

confrontation; and (5) the length of time between the crime and the confrontation.

Harris, at 308 N.C. 164, 301 S.E.2d at 95; see also State v. Johnson, 161 N.C. App.

68, 73, 587 S.E.2d 445, 448 (2003).


      Following our Supreme Court’s decisions, the North Carolina General

Assembly recognized the need to protect Due Process rights during identification

procedures and passed the North Carolina Eyewitness Identification Reform Act of

2007 (“EIRA”). N.C. Gen. Stat. § 15A-284.52. The EIRA was enacted “to help solve

crime, convict the guilty, and exonerate the innocent in criminal proceedings by

improving procedures for eyewitness identification of suspects.” N.C. Gen. Stat. §

15A-284.51. Originally the EIRA only applied to photographic lineups, defining a

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photographic lineup as a “procedure in which an array of photographs is displayed to

an eyewitness for the purpose of determining if the eyewitness is able to identify the

perpetrator of a crime.” N.C. Gen. Stat. § 15-284.52(a)(7). The General Assembly

recently expanded the EIRA’s scope, now applying it to in-person show-ups in

addition to photographic lineups. Act of August 11, 2015, ch. 15A, sec. 284.52, 2015

N.C. Sess. Laws 2015-212.

A. North Carolina Eyewitness Identification Reform Act of 2007

      The EIRA directs all “State, county, and other local law enforcement” to follow

specific requirements in conducting a photographic lineup. N.C. Gen. Stat. § 15-

284.52(b).   The EIRA requirements vary in detail based on whether the lineup

administrator is independent or non-independent.

      The EIRA provides greater detail for independent administrators under

section 15-284.52(b). An independent administrator must give specific instructions

to the eyewitness before the lineup: the perpetrator might or might not be present in

the lineup; the administrator does not know the suspect’s identity; the eyewitness

should not feel compelled to make an identification; it is as important to exclude

innocent persons as it is to identify the perpetrator; and the investigation will

continue whether or not an identification is made. N.C. Gen. Stat. § 15-284.52(b)(3).

The suspect’s photo must “resemble the suspect’s appearance at the time of the

offense.” N.C. Gen. Stat. § 15-284.52(b)(4). The independent administrator must also



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use photos of other persons, called “filler photos.” N.C. Gen. Stat. § 15-284.52(a)(2).

These fillers must “generally resemble the eyewitness’s description of the

perpetrator, while ensuring that the suspect does not unduly stand out from the

fillers.” N.C. Gen. Stat. § 15-284.52(b)(5). The photographic lineup must include a

minimum of five filler photos in addition to the photo of the suspect.           Id.   No

“information concerning any previous arrest, indictment, or conviction of the suspect

shall be visible or made known to the eyewitness.” N.C. Gen. Stat. § 15-284.52(b)(7).

Lastly, the independent administrator “shall seek and document a clear statement

. . . as to the eyewitness’s confidence level that the person identified in a given lineup

is the perpetrator.” N.C. Gen. Stat. § 15-284.52(b)(12). If the eyewitness successfully

identifies the perpetrator, the administrator “shall not [provide] any information

concerning the [perpetrator] before the lineup administrator obtains the eyewitness’s

confidence statement about the selection.” N.C. Gen. Stat. § 15-284.52(b)(13).

      Conversely, section 15A-284.52(c) of the EIRA provides greater breadth for

non-independent administrators:

             Alternative Methods for Identification if Independent
             Administrator Is Not Used.—In lieu of using an
             independent administrator, a photo lineup eyewitness
             identification procedure may be conducted using an
             alternative method specified and approved by the North
             Carolina Criminal Justice Education and Training
             Standards Commission. Any alternative method shall be
             carefully structured to achieve neutral administration and
             to prevent the administrator from knowing which
             photograph is being presented to the eyewitness during the


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                identification procedure. Alternative methods may include
                any of the following:
                       (1) Automated computer programs that can
                automatically administer the photo lineup directly to an
                eyewitness and prevent the administrator from seeing
                which photo the witness is viewing until after the
                procedure is completed.
                       (2) A procedure in which photographs are placed in
                folders, randomly numbered, and shuffled and then
                presented to an eyewitness such that the administrator
                cannot see or track which photograph is being presented to
                the witness until after the procedure is completed.
                       (3) Any other procedures that achieve neutral
                administration.

N.C. Gen. Stat. § 15A-284.52(c).

      Lastly, the EIRA provides remedies for noncompliance in section 15A284.52(d).

Courts must consider noncompliance while hearing motions to suppress or claims of

eyewitness misidentification. N.C. Gen. Stat. § 15A-284.52(d)(1)–(2). The EIRA

maintains similar scrutiny in jury trials, stating “[w]hen evidence of compliance or

noncompliance with the requirements . . . has been presented at trial, the jury shall

be instructed that it may consider credible evidence of compliance or noncompliance

to determine the reliability of eyewitness identification.” N.C. Gen. Stat. § 15A-

284.52(d)(3).

      In this case, Detective Russell is a non-independent administrator subject to

the broader requirements for alternative lineups under section 15A-284.52(c).

Detective Russell testified in detail about his use of the approved folder method,

randomizing manila folders so that he could not track any photo. N.C. Gen. Stat. §


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15A-284.52(c)(2). He achieved neutral administration by using the statutory method.

Id. Detective Russell met the additional requirements of the EIRA, instructing Mr.

Stimpson with a signed instruction form mirroring the EIRA, using one photo of

Defendant and five filler photos of similar looking men, and documenting Mr.

Stimpson’s confidence in the identification without providing information on any one

suspect. N.C. Gen. Stat. § 15A-284.52(b). We have examined all of the seven filler

photos used in this case and we agree with the trial court that they are similar to

Defendant’s photo. We hold Detective Russell’s administration of the photographic

lineup met the statutory requirements; thus there was no error in admitting this

testimony, much less any plain error.

B. Defendant’s Argument

      Defendant contends the trial court plainly erred in allowing Detective Russell’s

testimony because Detective Russell could not identify the specific five filler photos

he used, out of the seven filler photos he selected for the lineup. Defendant elaborates

on this point as follows:

             Here, Detective Russell brought eight photographs [seven
             fillers and one photo of Defendant] but only used six of
             them. It is impossible to know which six photographs he
             used. Detective Russell testified that he didn’t remember
             which of the [filler] photographs he used. As stated above,
             it is impossible for the photographs used to be admitted
             into evidence when the detective himself is unsure which
             ones were used. The eight photographs were admitted into
             evidence but no one, including Detective Russell, can know
             which of those were used in the photographic lineup.


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We are not persuaded. Although the reliability of Detective Russell’s testimony is

initially a consideration for the trial judge, the weight to be given his testimony is a

question for the jury. We do not hold Detective Russell’s failure to recall which five

filler photos were used to be of such significance as to render his testimony

inadmissible. Rather, his failure to recall goes to the weight to be accorded to his

testimony.

      The witness’s credibility is a matter for the court “when the only testimony

justifying submission of the case to the jury is inherently incredible and in conflict

with the . . . State’s own evidence.” State v. Wilson, 293 N.C. 47, 51, 235 S.E.2d 219,

221 (1977) (citations omitted). No such conflict exists here. Any issue concerning

Detective Russell’s credibility, or the weight to be given to his testimony, was a matter

for the jury. The trial court therefore did not err, much less commit plain error, in

admitting this testimony.

      Next, Defendant argues the reliability of Mr. Stimpson’s in-court identification

of Defendant was tainted by the procedures used by Detective Russell.                 “The

credibility of a witness’s identification testimony is a matter for the jury’s

determination, and only in rare instances will credibility be a matter for the court’s

determination.” State v. Green, 296 N.C. 183, 188, 250 S.E.2d 197, 200–201 (1978)

(citations omitted). Finding no EIRA violations in the photographic lineup, “there is

no   danger   [the   lineup   identification]      impermissibly   tainted   the   in-court



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identification[s].” State v. Lawson, 159 N.C. App. 534, 539, 583 S.E.2d 354, 358 (2003)

(citations omitted). During his direct testimony, Mr. Stimpson identified Defendant

as his assailant three times. Given Mr. Stimpson’s repeated identifications, and the

failure of defense counsel to elicit any evidence of improper suggestions made during

the lineup, we can discern no plain error in this proceeding.

       Lastly, we have reviewed all eight photos from the photographic lineup,

marked State’s exhibit numbers 1-A, 1-B, 1-C, 1-D, 1-E, 1-F, 1-G, and 1-H. None of

the photos contain “information concerning any previous arrest, indictment, or

conviction . . .” nor do they conspicuously depict a jail setting or jail clothing. N.C.

Gen. Stat. § 15-284.52(b)(7). All seven filler photos, State’s exhibit numbers 1-B, 1-

C, 1-D, 1-E, 1-F, 1-G, 1-H, “generally resemble” Mr. Stimpson’s description of the

perpetrator, and ensure that Defendant’s photo, State’s exhibit 1-A, “does not unduly

stand out from the fillers.” N.C. Gen. Stat. § 15-284.52(b)(5). The photos did not taint

any in-court identification at trial, and the trial court did not err in admitting the

photos.

C. Ineffective Assistance of Counsel

       Defendant contends that he received ineffective assistance of counsel from his

trial counsel. We dismiss this argument without prejudice to the right of Defendant

to file a motion for appropriate relief in the trial court.

       “In general, claims of ineffective assistance of counsel should be considered



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through motions for appropriate relief and not on direct appeal.” State v. Stroud, 147

N.C. App. 549, 553, 557 S.E.2d 544, 547 (2001) (citations omitted). “Our Supreme

Court has instructed that should the reviewing court determine the [ineffective

assistance of counsel] claims have been prematurely asserted on direct appeal, it shall

dismiss those claims without prejudice to the defendant's rights to reassert them

during a subsequent MAR proceeding.” Id. at 554, 557 S.E.2d at 547 (quotation

marks and citation omitted).

      The record does not disclose whether the actions of trial counsel, which

Defendant contends deprived him of an effective defense, were part of a broader trial

strategy. We cannot resolve this question without a fuller record on appeal in which

all evidence can be presented. We therefore dismiss this claim without prejudice to

the right of Defendant to file a motion for appropriate relief at a later date.

                                   IV. Conclusion

      For the foregoing reasons, we find

      NO ERROR.

      Chief Judge McGEE and Judge DAVIS concur.




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