State v. Henderson, COA24-223, ___ N.C. App. ___ (May. 7, 2025)

In this Mecklenburg County case, defendant appealed his convictions for carrying a concealed gun, possession of a firearm by a felon, and having attained habitual felon status, arguing (1) error in failing to instruct defense counsel when an absolute impasse occurred; (2) failing to declare a mistrial ex mero motu; and (3) ineffective assistance of counsel. The Court of Appeals found no error in (1)-(2), and dismissed without prejudice the ineffective assistance claim.

In October of 2021, defendant was pulled over by Charlotte-Mecklenburg Police after officers determined defendant had an outstanding warrant for a parole violation. During the traffic stop, officers frisked defendant and found a .38 revolver in his pocket. A passenger was in the vehicle, and one officer’s body-worn camera captured a conversation with the passenger. This video later became the subject of an agreement between defense counsel and the State to mute the video due to the hearsay discussion between the officer and the passenger. When discussing this agreement, defense counsel informed the trial court that defendant disagreed with the strategy and wanted all of the video to be heard. At one point defendant expressed the desire to speak to the trial court, and the trial court cautioned defendant that he should first discuss his issues with defense counsel. Excerpts of the transcript for this discussion appear on pages 6-9 of the slip opinion.

Taking up (1), the Court of Appeals explained that defense counsel wanted the video muted because it referenced defendant’s parole violation, while defendant wanted the video unmuted because the passenger said “no” when asked if she knew defendant “had that gun on him the whole time.” Slip Op. at 13. The court did not see an absolute impasse based on the record, noting that defense counsel alerted the trial court and defendant had an opportunity to discuss issues with counsel after the colloquy with the trial court. The court concluded “[t]his record shows an initial disagreement between Defendant and his defense counsel, but not an ‘absolute impasse.’” Id. at 15.

Moving to (2), defendant argued it was error not to declare a mistrial after the State introduced inadmissible evidence that defendant had suspected marijuana and a stack of temporary license plates. The court dispensed with this argument by noting defendant did not object at trial, and did not specifically contend plain error, meaning he abandoned the argument.

For (3), the court concluded it could not determine the ineffective assistance of counsel claim “based on the cold record” and dismissed without prejudice to permit a motion for appropriate relief in the trial court. Id. at 18.