STATE OF NORTH CAROLINA
v.
HASSON S. FLOYD,
Defendant.
Attorney General Michael F. Easley, by Assistant Attorney
General Staci Tolliver Meyer, for the State.
Haley H. Montgomery, for the defendant-appellant.
HUDSON, Judge.
On 29 July 1999, Defendant was convicted by a jury of one
count of felony larceny, three counts of robbery with a dangerous
weapon, four counts of possession of a firearm by a felon, and one
count of conspiracy to commit robbery with a weapon. Based upon
two prior felony convictions in Florida that qualify in North
Carolina as violent felonies, defendant was indicted as a violent
habitual felon and convicted on four counts for the status of
violent habitual felon. Defendant was sentenced to eleven to
fourteen months for the felony larceny, twenty to twenty-four
months for each of the four counts of possession of a firearm by a
felon, and four life sentences as a violent habitual felon.
Pursuant to N.C. Gen. Stat. § 14-7.12 (1999), defendant's sentences"shall run consecutively with and shall commence at the expiration
of any other sentence being served by the person." Defendant
appeals his convictions and sentences. We find no error.
In defendant's trial, the state's evidence tended to show that
during November 1998 defendant and his accomplice, Andrew
Debellott, went on a crime spree in western North Carolina. The
two men planned and committed numerous offenses including armed
robberies of cash checking businesses, robberies at gunpoint of
individuals, a robbery at gunpoint of an individual's automobile,
and the larceny of a car in a parking lot. Debellott testified
against defendant in the trial, as did more than a dozen other
witnesses. Two officers also testified to defendant's confession
of the multiple crimes upon his arrest. The state presented
physical evidence found after a consensual search of defendant's
girlfriend's home tending to show defendant's involvement in the
crimes with which he was charged. The jury found defendant guilty
of all charges.
At sentencing, the state produced evidence of aggravating
factors involving defendant's violent and threatening behavior
during his stay in the Buncombe County jail. Defendant offered no
evidence of mitigating factors. The court sentenced defendant
within the presumptive range for the current offenses and sentenced
him to the statutorily required life sentences without parole for
each of his convictions as a violent habitual felon. See N.C.G.S.
§ 14-7.12.
Defendant's appointed attorney filed notice of appeal, listingthree assignments of error. Pursuant to defendant's request, the
court assigned him a new attorney on appeal who filed an "Anders
brief" with this court. See Anders v. California, 386 U.S. 738, 18
L. Ed. 2d 493 (1967) (requiring criminal appellate attorneys who
find no merit in their client's case to comply with specific
procedures). Defendant's counsel notes in her brief that, "after
repeated and close examination of the record and extensive review
of relevant law, [she] is unable to identify an issue with
sufficient merit to support a meaningful argument for relief on
appeal." In accordance with Anders, and State v. Kinch, 314 N.C.
99, 331 S.E.2d 665 (1985), defense counsel requests that this court
review the transcript and record on appeal for any "possible
prejudicial error and to determine whether any justiciable issue
has been overlooked by counsel." In compliance with Anders and
Kinch, Defense counsel sent a copy of her brief to defendant, along
with the trial transcript, and a letter explaining defendant's
opportunity to independently file additional arguments with this
court. Defendant has filed two briefs with additional arguments to
support his appeal. See Anders, 386 U.S. 738, 18 L. Ed. 2d 493;
Kinch, 314 N.C. 99, 331 S.E.2d 665.
At the outset we note that defendant has not brought forward
any of the three assignments of error raised in the record on
appeal, and they are therefore deemed abandoned. However, pursuant
to Anders and Kinch, we review these three issues in addition to
the entire record for any legal errors that would require us togrant relief. See Kinch, 314 N.C. at 102-03, 331 S.E.2d at 667.
In addition to the briefs initially filed by defendant and
both counsel, this Court, on its own motion, ordered the parties
"to file and serve briefs to this Court, addressing the following
issue: Are the verdict forms as submitted to the jury sufficient
under applicable law to sustain the defendant's convictions for the
status of violent habitual felon as charged in the indictments . .
. ?" Counsel filed briefs on this issue 19 November 2001; we
conclude there was no plain error in the verdict forms.
In his first assignment of error, defendant challenged the
granting of the State's motion to join for trial all offenses other
than the violent habitual felon charges. Defendant was charged
with committing several offenses during a single two-week period.
In its motion to join, the State argued that, "these occurrences
all fit together in a very short span of time. It's basically a
crime spree by these two Defendants, an armed crime spree. And the
State does not see how we can separate those and try them
individually since the evidence is going to be intertwined between
all of those cases." The court agreed and granted the State's
motion.
"N.C. Gen.Stat. § 15A-926 (1999) permits the joinder of
offenses within the discretion of the trial court, and such joinder
will only be disturbed on appeal where defendant demonstrates that
joinder denies him a fair trial." State v. Beckham, ___ N.C. App.
___, ___, 550 S.E.2d 231, 236 (2001) (citing State v. Wilson, 108N.C. App. 575, 424 S.E.2d 454, appeal dismissed, disc. review
denied, 333 N.C. 541, 429 S.E.2d 562 (1993)). This statute allows
the joinder of offenses when they "are based on the same act or
transaction or on a series of acts or transactions connected
together or constituting parts of a single scheme or plan." N.C.
Gen. Stat. § 15A-926 (1999). The Supreme Court, in State v.
Bracey, explained that "[t]here must be some sort of 'transactional
connection' between cases consolidated for trial." 303 N.C. 112,
117, 277 S.E.2d 390, 394 (1981) (quoting State v. Powell, 297 N.C.
419, 255 S.E.2d 154 (1979)). There, the Court concluded that
joinder was proper where the trial judge found "common issues of
fact" in the three robberies committed over a ten day period. See
Bracey, 303 N.C. at 117, 277 S.E.2d at 394.
The Supreme Court also pointed out that "[t]he question before
the court on a motion to sever is whether the offenses are so
separate in time and place and so distinct in circumstances as to
render consolidation unjust and prejudicial." Id. at 117, 277
S.E.2d at 394. Here, as in Bracey, the trial court joined the
charges based on its conclusion that they were connected
transactionally, and the evidence was overlapping. This joinder
did not "unjustly or prejudicially" hinder defendant's ability to
defend himself. See id. We overrule this assignment of error.
Defendant's second assignment of error concerns the trial
court's admission of evidence pursuant to North Carolina Rule ofEvidence 404(b). The defendant objected to the State's
presentation of evidence of an armed robbery of a Wachovia bank
allegedly committed by defendant and Debellott during the same two-
week period as the charged offenses. Defendant was not on trial
for the Wachovia robbery here because he was charged for this
robbery under federal, rather than state, law. However, the State
offered the testimony of a bank employee, who described the
incident in detail.
Evidence of other crimes, wrongs, or acts
is not admissible to prove the character of a
person in order to show that he acted in
conformity therewith. It may, however, be
admissible for other purposes, such as proof
of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of
mistake, entrapment or accident.
N.C. R. Evid. 404(b). Under Rule 404(b), such evidence is not
admissible "if its only probative value is to show that the
defendant has the propensity or disposition to commit an offense of
the nature of the crime charged." State v. Coffey, 326 N.C. 268,
279, 389 S.E.2d 48, 54 (1990). Here, the evidence of the Wachovia
robbery was not introduced to show defendant's propensity to commit
the crime, but as part of a scheme or plan to commit such offenses
during the applicable two-week period, and the court did not err in
admitting it as such.
Defendant contends in his last assignment of error, that the
trial court erred by failing to declare a mistrial when a juror saw
the defendant in restraints shortly after finding him guilty of the
offenses. The jury had already reached its verdict of guilty onthe substantive offenses, but had not yet considered the violent
habitual felon charges. Defendant's trial counsel did not argue
that there was prejudice and under these circumstances, we see
none. The trial court noted the following on this point,
this jury is aware, having just returned
verdicts of guilty of several serious felony
charges, that this individual has been this
morning convicted of those charges. The Court
would find that to a reasonable person, it
might not appear unusual for such an
individual to have been placed into custody
over the lunch break.
In State v. White, 349 N.C. 535, 508 S.E.2d 253 (1998), cert.
denied, 527 U.S. 1026, 144 L. Ed. 2d 779 (1999), the Supreme Court
found no abuse of discretion where the trial judge ordered the
defendant shackled in the courtroom, after he made a threatening
comment. These events transpired following a guilty verdict, but
before capital sentencing began with the same jury. See id.; see
also N.C. Gen. Stat. § 15A-1031 (1999) "Custody and restraint of
defendant and witnesses" (specifically allowing the restraint of
the defendant in the courtroom under specific restrictions and with
certain precautions). If there was no abuse of discretion in
White, certainly there was none here. The trial court's denial of
a mistrial will not be disturbed absent an abuse of discretion, and
we find none. See State v. Upchurch, 332 N.C. 439, 453-54, 421
S.E.2d 577, 585 (1992) (citing State v. Barts, 316 N.C. 666, 682,
343 S.E.2d 828, 839 (1986)).
Upon order of this Court, the parties filed separate briefsaddressing the sufficiency of the verdict forms to sustain
defendant's convictions for the status of violent habitual felon as
charged in the indictments. After reviewing the parties'
arguments, we conclude that although there was error in the verdict
sheets, the error does not require a new trial. See State v. Odom,
307 N.C. 655, 300 S.E.2d 375 (1983) (holding when an objection is
not raised at trial, the review is by the "plain error" standard of
review). Reversal for plain error is only appropriate where the
error is so fundamental that it undermines the fairness of the
trial, or where it had a probable impact on the guilty verdict.
See id. We do not believe that this was such an error.
Although the statutes do not specify what constitutes a proper
verdict sheet, they contain "no requirement that a written verdict
contain each element of the offense to which it refers." State v.
Sanderson, 62 N.C. App. 520, 524, 302 S.E.2d 899, 902 (1983); see
also N.C. Gen. Stat. § 15A-1237 (1999). Nor have our Courts
required the verdict forms to match the specificity expected of the
indictment.
The indictment must, by contrast, "charge all the essential
elements of the alleged criminal offense." State v. Lewis, 58 N.C.
App. 348, 354, 293 S.E.2d 638, 642 (1982), cert. denied, 311 N.C.
766, 321 S.E.2d 152 (1984). If the charge is a statutory offense,
the indictment is sufficient "when it charges the offense in the
language of the statute." State v. Norwood, 289 N.C. 424, 429, 222
S.E.2d 253, 257 (1976) (citing State v. Penley, 277 N.C. 704, 178S.E.2d 490 (1971)); N.C. Gen. Stat. § 15A-644 (1999). At issue
here are defendant's four convictions of violent habitual felon.
The indictments are sufficient: each one lists two prior
convictions for felonies in Florida that meet the requirements
under North Carolina law for violent habitual felon status, and
each specifies a different one of the current offenses as an
underlying substantive charge. This satisfies the statutory
requirements for "Charge of violent habitual felon" pursuant to
N.C. Gen. Stat. § 14-7.9 (1999). The question before us is whether
the verdicts sufficiently reflect convictions on these charges.
To convict of the status of violent habitual felon, "the State
must prove beyond a reasonable doubt that the defendant has been
convicted of two prior violent felonies . . . ." State v. Safrit,
___ N.C. App. ___, ___, 551 S.E.2d 516, 524 (2001). The jury must
determine "whether the defendant who has just been convicted of the
underlying substantive felony is the same person as the individual
the State alleges has two prior violent felony convictions . . . ."
Id. at ___, 551 S.E.2d at 524. Here, each verdict sheet gives the
jury the option of finding the defendant: guilty based on each new
violent felony conviction, or not guilty. For example, the verdict
sheet for charge 99 CRS 4907 reads: "We the jury unanimously find
the defendant, Hasson Sermon Floyd: ( ) guilty of the status of
violent habitual felon based on robbery with a dangerous weapon on
or about November 17, 1998 (re: Tony Barnes, D/B/A Cash Advance) or
( ) Not guilty[.]"
In State v. Sanderson, defendant argued that the trial courterred by omitting an essential element of the charge from the
verdict form, raising a question about whether the jury actually
found that defendant had committed that element of the crime. See
62 N.C. App. at 523, 302 S.E.2d at 902. This Court found that even
though the verdict forms improperly omitted an essential element of
the crime charged, "the form itself . . . sufficiently identified
the offenses found by the jury to enable the court to pass judgment
on the verdict and sentence defendant appropriately." Id. at 524,
302 S.E.2d at 902.
Here, the indictments properly allege all elements of the
charge, and the trial judge correctly instructed the jury on each.
However, the verdict sheets, as noted above, only mention the most
recent underlying substantive felony, not the two prior violent
felony convictions. In State v. Connard, this Court held that a
verdict sheet is sufficient "if the verdict can be properly
understood by reference to the indictment, evidence and jury
instructions." 81 N.C. App 327, 336, 344 S.E.2d 568, 574 (1986),
aff'd, 319 N.C. 392, 354 S.E.2d 238 (1987). Standing alone, the
verdict sheets erroneously appear to permit conviction based on
only one offense. See id. at 336, 344 S.E.2d at 574. In light of
the extensive evidence of defendant's guilt, and the trial court's
proper instructions to the jury, we do not believe the
circumstances here amounted to plain error.
After carefully reviewing all of the briefs and the entire
record, we find no error warranting the reversal of defendant'sconvictions or the reduction of his sentences.
NO ERROR.
Judges EAGLES and HUNTER concur.
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