Copyright 1997 - N.C. Administrative Office of the Courts


STATE OF NORTH CAROLINA v. CLAUDE EDWARD DAMMONS

No. COA97-31

(Filed 2 December 1997)

1. Criminal Law § 143 (NCI4th Rev.)-- 1973 guilty plea -- failure to inform defendant of certain constitutional rights -- voluntary plea -- no Boykin v. Alabama violation

    Defendant's 1973 guilty plea was not obtained in violation of Boykin v. Alabama, 395 U.S. 238, because the court that accepted the plea failed to inform defendant of his constitutional right to trial by jury, his right to confront his accusers, and his privilege against self-incrimination, where the evidence supported the trial court's finding that the 1973 plea was freely, voluntarily and understandingly entered by defendant.

2. Evidence and Witnesses § 344 (NCI4th)-- aggravated assault -- details of other assaults -- cross-examination proper

    In a prosecution for assault with a deadly weapon with intent to kill inflicting serious injury, the State's cross- examination of defendant about the names of other women he had been convicted of shooting, his relationship with those other women, and the type of weapons he had used was proper under Rule 404(b) to show that defendant had a history of shooting women with whom he had previously had relationships. N.C.G.S. § 8C-1, Rule 404(b).

3. Searches and Seizures § 45 (NCI4th)-- unlawful detention -- seizure after subsequent lawful arrest

    Even if defendant's detention in a patrol car was an unlawful arrest, officers lawfully searched defendant without a warrant and properly seized his overcoat and gunshot residue from his hand after his lawful arrest at the sheriff's office based upon probable cause.

4. Criminal Law § 925 (NCI4th Rev.)-- polling of jury -- failure to state full verdict -- unanimous verdict

    The jury returned a unanimous verdict, even though the clerk of court did not state the full verdict of "guilty of assault with a deadly weapon inflicting serious injury" when polling the individual jurors but just stated "guilty of assault with a deadly weapon," where only one crime was charged and submitted to the jury, and the clerk correctly stated the charge when originally asking the foreperson about the verdict.

5. Criminal Law § 1313 (NCI4th Rev.)-- habitual felon charge -- underlying conviction -- collateral attack

    Defendant could not collaterally attack the validity of an underlying conviction that supported an habitual felon charge; rather, the original conviction could be properly attacked only by appropriate post-trial relief motions.

    Appeal by defendant from an order and judgment dated 4 March 1996 and from judgment dated 6 March 1996 by Judge Wiley F. Bowen in Lee County Superior Court. Heard in the Court of Appeals 22 October 1997.

    Attorney General Michael F. Easley, by Assistant Attorney General Wm. Dennis Worley, for the State.

    Staton, Perkinson, Doster, Post, Silverman, Adcock & Boone, by Norman C. Post, Jr. and Michelle A. Cummins, for defendant appellant.

    GREENE, Judge.

    Claude Dammons (defendant) appeals from: (1) the trial court's denial of his motion for appropriate relief from a 1973 conviction of voluntary manslaughter (72 CRS 7307); (2) the trial court's denial of his motion for appropriate relief from a 1994 conviction of assault with a deadly weapon with intent to kill inflicting serious injury as a habitual felon (94 CRS 1031 and 94 CRS 2227); (3) the trial court's re-sentencing in 94 CRS 1031 and 94 CRS 2227; (4) a 1996 conviction of assault with a deadly weapon inflicting serious injury as a habitual felon (93 CRS 1969 and 93 CRS 2813).

    The relevant facts for each motion and the conviction are as follows:

Motion for Appropriate Relief in 72 CRS 7307

    On 22 March 1973, the defendant was convicted of voluntary manslaughter in 72 CRS 7307 pursuant to a guilty plea. The transcript from this conviction reveals that the trial court asked the defendant the following questions concerning his guilty plea:

        The court:     Do you understand you are charged with the offense of murder and you are tendering a plea of guilty to the offense of voluntary manslaughter?

        The defendant: Yes, sir.

        The court:     Have these charges been explained to you by your attorney and are you ready for this hearing upon your plea?

        The defendant:    Yes, sir.

        The court:     Do you understand that you have a right to plead not guilty of any offense and have your cause heard by a jury?

        The defendant: Yes, sir.

                    . . . .

        The court:    Now, if you did serve witnesses, have you had an opportunity to obtain those witnesses?

        The defendant: No, sir.

        The court:     Do you want witnesses for this hearing?

        The defendant:    I had like --

        The court:     Has anyone prohibited you from obtaining witnesses you might want?

        The defendant: No, sir.

        The court:     I take it the answer to the question is yes, you had a chance to get witnesses if you want one [sic]?

        The defendant: Yes, sir.

        The court:     Have you had an opportunity to confer with your attorney and have you conferred with him and are you satisfied with his services?

        The defendant: Yes, sir.

        The court:     Now, has the solicitor, your attorney, any policeman, et cetera, or any other person made any promise to you or any threat to influence you to plead guilty?

        The defendant: No, sir.

        The court:     Do you contend or say that anyone has violated any of your constitutional rights with respect to this case?

        The defendant: No, sir.

        The court:     Do you now freely understand and voluntarily authorize and instruct your attorney to enter a plea of guilty in your behalf?

        The defendant: Yes, sir.

    

    In 1996, the defendant made a motion for appropriate relief from 72 CRS 7307 and asserted that conviction was obtained in violation of his federal constitutional rights as defined by Boykin v. Alabama, 395 U.S. 238, 23 L. Ed. 2d 274 (1969), because the record fails to show that the defendant's guilty plea had been made freely and voluntarily and with full understanding of the constitutional rights he had waived. The trial court denied the motion for appropriate relief, stating that the "written transcript of plea clearly shows the plea to be 'freely, voluntarily, and understandingly' made, and that the defendant had been 'fully advised of his rights.'"

Motion for Appropriate Relief in 94 CRS 1031 and 94 CRS 2227

    In May of 1994 the defendant was convicted of assault with a deadly weapon inflicting serious injury and of being a habitual felon in 94 CRS 1031 and 2227. The defendant appealed and this Court granted a re-sentencing because of errors in the sentencing phase of the habitual felon trial. In March of 1996, the defendant asked for a motion for appropriate relief in 94 CRS 1031 and 2227 on the basis that he was given ineffective assistance of counsel in the initial proceedings of 94 CRS 1031 and 2227 because his counsel allowed him to plead guilty to habitual felon status in 94 CRS 2227 and failed to challenge the 72 CRS 7307 conviction as being in violation of Boykin. The trial court denied this motion for appropriate relief and concluded that the ineffective counsel allegations were not "supported by credible factual evidence," and even if the counsel's actions were "marginally deficient . . . they produced no prejudice to the petitioner."

Conviction in 93 CRS 1969 and 93 CRS 2813

    In March 1994, the defendant was convicted of assault with a deadly weapon with intent to kill inflicting serious injury in 93 CRS 1969 and was convicted of being a habitual felon in 93 CRS 2813. The defendant had pled not guilty to the charges. After the conviction, the defendant appealed to this Court and was granted a new trial. This new trial in 93 CRS 1969 and 2813 was held in March of 1996 and the defendant was again convicted of assault with a deadly weapon with intent to kill inflicting serious injury and of being a habitual felon. The defendant appeals from this second trial. These convictions are based on the following facts:

    On 27 February 1993, the defendant, Mary McLaughlin (McLaughlin), and Eloise Headen (Headen), were driving a gray four- door automobile. They stopped at a country church where the defendant and Headen proceeded to walk to the cemetery. Later that morning, Lee County Sheriff's Department Detective, Billy Baker (Detective Baker), responded to a call in reference to a shooting in front of the Short Stop convenience store in Lee County. When Detective Baker arrived at the Short Stop, a large gray Buick was parked outside; Headen was inside the automobile with gunshot wounds. The clerk from the Short Stop had stated to Officer Kenneth Womack and Deputy Loren Lewis (Officers) that a black male had driven a gray Buick into the parking lot and then came inside and told him (the clerk) to call the rescue squad. The black male then went to the adjoining barbershop. When the Officers approached the barbershop, they observed the defendant, who matched the clerk's description, leaving the barbershop. The Officers asked the defendant a few questions but he did not answer and continued to walk away. He was then handcuffed and placed in the patrol car. When Detective Baker arrived, the defendant got out of the patrol car in handcuffs and proceeded to walk away. Detective Baker stopped the defendant and put him back in the patrol car. The defendant was then transported to the Lee County Sheriff's Department where he was placed under arrest and a long beige overcoat was taken from him and his hands were wiped for gunshot residue. No blood was observed on the defendant's clothes nor were any weapons found in his possession.

    At trial, Headen testified that the defendant had shot her three times at the graveyard. Evidence was introduced which showed that Headen was intoxicated that day and that she had used cocaine on the morning of the shooting. In his own defense, the defendant denied shooting Headen at the cemetery and testified that an individual named Pulley came to the cemetery and argued with Headen. The defendant testified that he left Headen and Pulley at the cemetery. Because the defendant lived behind the Short Stop, when he observed a crowd gathered there, he walked to the store. He was then handcuffed and put in the patrol car. On cross- examination the State was allowed, over the objection of the defendant, to ask the defendant about his prior criminal convictions and particular details of the past convictions.

    The defendant filed a motion to suppress evidence seized from his person (the beige overcoat and gunshot residue) on the grounds that his detention in the patrol car amounted to an unlawful arrest that was not based on probable cause and therefore the evidence seized from him was illegally obtained. The trial court concluded that there existed probable cause to arrest the defendant at the Lee County Sheriff's Department and denied the defendant's motion.

    The jury returned a verdict of guilty in 93 CRS 1969. The transcript reveals that the following transpired:

        Clerk:        Members of the jury, will you please stand. Members of the jury, you have returned as your unanimous verdict to the defendant, Claude Edward Dammons, guilty of assault with a deadly weapon inflicting serious injury. Is this your verdict?

        Foreperson:    It is.

        Clerk:        Is this still your verdict?

        Foreperson:    Yes.

The verdict sheet in 93 CRS 1969 indicated that the jury found the defendant guilty of assault with a deadly weapon inflicting serious injury. Thereafter, however, the defendant's attorney asked that the jury be polled. In polling the jury, the clerk of court did not fully state the whole charge against the defendant and instead, stated the following:

        If you'll be seated, when I call your name if you'll stand and answer the questions that I ask you. And I'll start with the foreperson, Mr. Parkerson. Mr. Parkerson, you have returned as your verdict, guilty of assault with a deadly weapon to Claude Dammons, is this your verdict?

    

The foreperson assented to the question and each juror answered that the verdict given by the foreperson was still his or her verdict.

    The trial court denied the defendant's motion to suppress his 72 CRS 7307 conviction in his sentencing as a habitual felon in 94 CRS 2227 and 93 CRS 2813.

_____________________________________________

    The issues are whether: (I) the conviction in 72 CRS 7307 was obtained in violation of Boykin v. Alabama; (II) the defendant's conviction as a habitual felon in 94 CRS 2227 resulted from ineffective assistance of counsel; (III) the State was allowed to exceed the permissible scope of cross-examination in 93 CRS 1969; (IV) Detective Baker had authority to seize the defendant's beige overcoat and obtain gunshot residue from the defendant's hand; (V) the clerk of court's misstatement of the verdict when polling the jury constituted reversible error; and (VI) the defendant's conviction in 72 CRS 7307 was appropriately used for sentencing purposes in 94 CRS 2227 and 93 CRS 2813.

         


Footnote: 1    Pursuant to a statute now in place (not effective at the time the defendant pled guilty in 1973) a superior court judge may not accept a plea of guilty or no contest from a defendant ("[e]xcept in the case of corporations or in misdemeanor cases in which there is a waiver of appearance . . .") "without first addressing him personally . . . and [i]nforming him that [among other things] he has a right to remain silent and that any statement he makes may be used against him; . . ."; he has a right to a trial by jury and waives that right by pleading guilty; and he has a "right to be confronted by the witnesses against him . . . ." N.C.G.S. § 15A-1022(a) (Supp. 1996).

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