STATE OF NORTH CAROLINA
v
.
ADRIAN DEVON MURRAY
Attorney General Roy Cooper, by Assistant Attorney General
Anne M. Middleton, for the State.
Brian Michael Aus, for defendant-appellant.
CAMPBELL, Judge.
Adrian Devon Murray (“defendant”) was indicted on 31 July 2000
for being an habitual felon and on 2 July 2001 on two counts of
felonious possession of stolen goods. In August 2001, defendant
was tried by a jury on the charges of felonious possession of
stolen goods and misdemeanor possession of stolen goods. After
being convicted of both charges, defendant was found to be an
habitual felon. Defendant appeals the final judgment pursuant to
N.C. Gen. Stat. § 7A-27(b). On appeal, defendant argues that the
trial court erred: I. In denying defendant's motion to dismiss due
to insufficient evidence; II. In not discharging his defense
counsel; III. By not inquiring of defendant whether his failure to
testify was an intelligent, knowing and voluntary waiver of hisright to testify in his defense; IV. By proceeding with the
habitual felon phase when the habitual felon indictment predates
the indictment for the predicate felony; V. By ordering closure of
the courtroom; and VI. In sentencing defendant due to the incorrect
dates on the judgment and commitment and not providing credit for
time served. Upon review of the record, we find that the trial
court committed no error as to its final judgment. Accordingly, we
affirm the judgment of the lower court. We do, however, remand for
correction of the clerical error noted below.
Through the testimony of the victims, Deborah Wall (“Ms.
Wall”) and Michelle Martin (“Ms. Martin”), the State's evidence
showed the following. Ms. Wall, who is from Virginia, was visiting
a friend in Thomasville, North Carolina on 27 May 2000. Ms. Wall
parked her 1985 Chrysler New Yorker near the back door of her
friend's house, where she spent the night. When she went outside
the next morning, 28 May 2000, Ms. Wall saw that her car was
missing and reported the theft of her car to the police. Then, on
29 May 2000, Ms. Martin, who lived in Greensboro, went out to her
1990 Suzuki Sidekick and noticed that it had been broken into and
vandalized. Nearly $300 worth of textbooks and a black bookbag
worth about $100 were missing from inside the car. In addition,
the car stereo and ignition switch were broken and the interior
passenger side door was torn. Ms. Martin reported the incident to
the High Point Police.
On 31 May 2000, Officer Donnie Rowe (“Officer Rowe”), who was
assigned to investigate Ms. Wall's stolen car responded to an areaof Thomasville in reference to a report of a vehicle matching a
description of Ms. Wall's stolen vehicle. Officer Rowe saw “a blue
Chrysler with Virginia license plates” parked in front of Apartment
L at a complex on Liberty Drive. The door to that apartment was
open and “a black male [was] standing in front inside the [storm]
door.” Officer Rowe testified, “I had already confirmed that the
vehicle was stolen. I set up on the vehicle and later when the
black male got into the vehicle I stopped the vehicle down the
street.” Inside the car, the assisting officers found textbooks
with “the name of Michelle Martin [written] inside of the books.”
Officer Rowe “contacted [the] High Point Police Department and
later it was confirmed that they had a breaking and entering into
a motor vehicle prior to this and [the books] belonged to the
victim out of High Point,” Michelle Martin.
I. Denying defendant's motion to dismiss
Defendant first argues that the trial court's refusal to
dismiss the charge of felonious possession of stolen goods was
error since the victim of the larceny did not identify the stolen
vehicle that was in defendant's possession. “In ruling upon a
motion to dismiss, the trial court must determine if the State has
presented substantial evidence of each essential element of the
offense.” State v. Reid, ___ N.C. App. ___, 565 S.E.2d 747 (2002)
(citation omitted). “Whether the evidence presented is substantial
is a question of law for the court.” State v. Siriguanico, ___ N.C.
App. ___, 564 S.E.2d 301 (2002) (citation omitted). “Evidence is
substantial if it is relevant and adequate to convince a reasonablemind to accept a conclusion.” State v. Robinson, 355 N.C. 320,
336, 561 S.E.2d 245, 255 (2002), cert. denied, ___ U.S. ___, 123 S.
Ct. 488, ___ L.Ed.2d ___ (2002) (citation omitted). When
considering a criminal defendant's motion to dismiss, the trial
court must view all of the evidence presented “in the light most
favorable to the State, and the State is entitled to all reasonable
inferences which may be drawn from the evidence.” State v. Davis,
130 N.C. App. 675, 679, 505 S.E.2d 138, 141 (1998) (citation
omitted). The trial court correctly denies a motion to dismiss
“[if] there is substantial evidence of every element of the offense
charged, or any lesser offense, and of defendant being the
perpetrator of the crime.” State v. Ramseur, 338 N.C. 502, 507,
450 S.E.2d 467, 471 (1994) (citation omitted).
Applying this standard of review, we find that there exists
substantial evidence of every element of felonious possession of
stolen goods and that defendant was the perpetrator of the offense.
Under N.C. Gen. Stat. § 14-71.1, “[t]he essential elements of
feloniously possessing stolen property are (1) possession of
personal property, (2) valued at more than $400.00, (3) which has
been stolen, (4) the possessor knowing or having reasonable grounds
to believe the property to have been stolen, and (5) the possessor
acting with a dishonest purpose.” State v. Davis, 302 N.C. 370,
373, 275 S.E.2d 491, 493 (1981); see N.C. Gen. Stat. § 14-71.1
(2001). Defendant maintains that although Ms. Wall testified that
her car was missing the morning after she parked it outside her
friend's house in Thomasville and as to the value of her car being$1,995.00, she did not testify as to the color of her vehicle nor
to any other identifying feature. Further, Officer Rowe's
testimony that he confirmed with Ms. Wall that the Chrysler New
Yorker he stopped was in fact her vehicle is inadmissible hearsay
under N.C. Gen. Stat. § 8C-1, Rule 802. Therefore, no competent
evidence exists to link defendant's possession of a blue 1985
Chrysler New Yorker to Wall's stolen vehicle.
Contrarily, the State argues that ample evidence existed from
which a reasonable mind could infer that the car in defendant's
possession was Ms. Wall's stolen vehicle. We agree. When viewed
in the light most favorable to the State, a jury could reasonably
conclude that the blue Chrysler New Yorker with Virginia plates
found by Officer Rowe in defendant's possession belonged to Ms.
Wall. In addition to testifying about his response to a sighting
of the stolen car, Officer Rowe identified pictures of the blue
Chrysler with Virginia plates that had been reported stolen and
that defendant was driving. Moreover, our review of the transcript
shows that defendant did not object to this testimony being
admitted at trial and, therefore, it was properly considered in
determining the sufficiency of the evidence. As this Court has
held, “The [trial] court must consider all evidence which is
admitted which is favorable to the State[.]” State v. France, 94
N.C. App. 72, 77, 379 S.E.2d 701, 703 (1989).
II. Not discharging the defense counsel
According to the record, before defendant was brought in for
his trial, defense counsel informed the trial court that he hadbeen removed as counsel for this defendant in all other pending
cases involving defendant. Further, defense counsel stated, “I was
not allowed to be removed from this case.” The trial court made no
inquiry into the matter and defense counsel did not move to
withdraw from this case. In fact, the record reflects that
defendant was then brought into the courtroom and defense counsel
proceeded with another motion concerning defendant's case.
Defendant argues that the trial court should have removed defense
counsel from representation in this case ex mero motu and pursuant
to Rule 1.16 of the Revised Rules of Professional Conduct. We
disagree. Nowhere in North Carolina case law or our general
statutes do we find any law requiring that a trial court remove
counsel in cases such as this where the defendant does not make
such a request. Rule 1.16 does not apply as it refers to cases
where a lawyer is discharged from a case by his client. The rule
does not require a court to discharge an attorney from all of a
defendant's pending cases. Here, defendant made no motions prior
to or during trial that his attorney be discharged. Defendant's
reliance on State v. Poindexter, 69 N.C. App. 691, 318 S.E.2d 329,
(1984), cert. denied, 312 N.C. 497, 322 S.E.2d 563 (1984) and State
v. McGee, 60 N.C. App. 658, 299 S.E.2d 796 (1983) is misplaced as
those cases involve situations highly unlike the one before us. We
find defendant's contention to be without merit and, therefore, we
overrule this assignment of error.
III. Not inquiring of defendant regarding his failure to testify At the close of the State's evidence, defense counsel
indicated that no evidence would be offered by defendant.
Defendant argues that the trial court erred by not asking defendant
whether he wished to present evidence or testify on his own behalf.
While we agree with defendant that a criminal defendant has a
constitutional right to testify on his own behalf, we do not find
that the trial court must initiate an inquiry into defendant's
failure to testify. Although defendant cites ample authority
regarding a defendant's right to testify, he fails to cite
authority supporting his contention that a trial court has an
affirmative duty to ensure that a defendant has been adequately
informed of his right to testify on his own behalf. In State v.
Poindexter, the defendant argued that the trial court erred in not
informing him of his right not to testify under the fifth
amendment. This Court held:
The fifth amendment privilege, belatedly
claimed by defendant, says no more than a
person shall not be compelled to speak. It
does not place upon the trial court the duty
of informing a pro se defendant of his rights
and privileges.
Poindexter at 694, 318 S.E.2d at 331. We find the Poindexter
Court's analysis applicable here as defendant poses the same type
of argument before us: that a trial court errs in failing to
inform a criminal defendant of his constitutional rights. The
Fourth Amendment to the United States Constitution and Article I,
§ 23 of the North Carolina Constitution provide a criminal
defendant with the right to testify, but do “not place upon thetrial court the duty of informing a pro se [or represented]
defendant” of this right. Id.
Furthermore, as did the defendant in Poindexter, defendant
claims this constitutional right at a belated stage in the
proceedings. After the jury returned the guilty verdicts,
defendant, referring to his trial counsel, stated: “He wouldn't
let me testify. He didn't go get the evidence. There's a ticket
in High Point proving that I couldn't steal that car, proving my
innocence.” Defendant argues that the trial judge should have
treated defendant's post-verdict statements as a motion to reopen
the evidence. We disagree. First, N.C. Gen. Stat. § 15A-1226
states: “The judge in his discretion may permit any party to
introduce additional evidence at any time prior to verdict.” N.C.
Gen. Stat. § 15A-1226(b) (2001) (emphasis added). In fact, our
state Supreme Court “has long recognized that the trial court has
the discretion to allow either party to recall witnesses to offer
additional evidence, even after jury arguments.” State v. Goldman,
311 N.C. 338, 350, 317 S.E.2d 361, 368 (1984) (citation omitted)
(emphasis added). Yet, the applicable statute and case law are
clear that any additional evidence must be introduced prior to
entry of the verdict. Since defendant's statements alluding to his
wish to testify were made after the verdict, the trial judge had no
discretion to consider allowing defendant's testimony. Secondly,
assuming arguendo that the trial judge had the duty to inform
defendant of his right to testify on his own behalf, such a failure
was harmless error, as it does not have any reasonable possibilityof affecting the outcome of the trial. Defendant's statements
after the verdict indicated that he wished to testify as to
evidence that he “couldn't steal that car.” Defendant was charged
with felonious possession of a stolen car, not with stealing the
car. Thus, defendant's statement as to what he would testify is
irrelevant to the offense with which he was charged and of which
the jury found him guilty.
IV. Proceeding with the habitual felon phase
Defendant next assigns error to the trial court's proceeding
with the habitual felon phase of the trial when the habitual felon
indictment predates the indictment for the predicate felony. Thus,
defendant argues, the habitual felon indictment is not ancillary to
any predicate felony as required in State v. Allen because the
habitual felon indictment predates the underlying felony for which
defendant was convicted. In Allen, our Supreme Court held:
Properly construed [the Habitual Felons Act]
clearly contemplates that when one who has
already attained the status of an habitual
felon is indicted for the commission of
another felony, that person may then be also
indicted in a separate bill as being an
habitual felon. It is likewise clear that the
proceeding by which the state seeks to
establish that defendant is an habitual felon
is necessarily ancillary to a pending
prosecution for the “principal,” or
substantive, felony. The act does not
authorize a proceeding independent from the
prosecution of some substantive felony for the
sole purpose of establishing a defendant's
status as an habitual felon.
State v. Allen, 292 N.C. 431, 433-34, 233 S.E.2d 585, 587 (1977).
In this case, defendant was originally indicted for felony larceny
of a motor vehicle and as an habitual felon. Because feloniouspossession of stolen goods turned out to be an easier offense to
prove at trial, defendant was later indicted for possessing the
stolen vehicle. Merely because these events caused the date on the
habitual felon indictment to predate that on the substantive felony
indictment does not mean that there did not exist a pending
prosecution to which the habitual felon proceeding was ancillary.
In fact, defendant was tried at the same session of criminal court
by the same jury on the predicate felonious possession of stolen
goods charge and then on the habitual felon charge. Our review of
the record shows that on 28 August 2001, the jury entered a guilty
verdict on the underlying felony and on 29 August 2001, the jury
entered a verdict finding defendant to be an habitual felon. Thus,
defendant's habitual felon indictment complies with the Habitual
Felons Act set forth in N.C. Gen. Stat. § 14-7.1, as well as with
Allen. This assignment of error is overruled.
V. Ordering closure of the courtroom
We find no merit in defendant's argument that the trial court
erred in telling unidentified spectators to leave and closing the
courtroom due to defendant's threats. N.C. Gen. Stat. § 15A-1034
states: “The presiding judge may impose reasonable limitations on
access to the courtroom when necessary to ensure the orderliness of
courtroom proceedings or the safety of persons present.” N.C. Gen.
Stat. § 15A-1034(a) (2001). Contending that the disposition of
criminal cases should be conducted before the public in open court,
defendant argues that the trial court committed plain error by
using broader limitations than necessary to protect the interest ofpublic safety. See State v. Moctezuma, 141 N.C. App. 90, 96, 539
S.E.2d 52, 57 (2000). We find that the trial court's closing of
the courtroom was a sound decision and one that had no effect on
defendant's trial as it was done after the verdict was rendered.
In no manner does the trial court's acting to protect spectators
from defendant constitute plain error, where defendant threatened
to hurt someone in the courtroom and to have someone help him
escape and where defendant had a history of attempting to escape
and injuring law enforcement officials. This assignment of error
is overruled.
VI. Incorrect dates on the judgment and commitment and not
providing credit for time served
Defendant fails to establish that he deserves credit for time
served when, during trial, he was serving time for other offenses.
Defendant correctly maintains, however, that the judgment in this
matter contains clerical errors. The judgment should reflect the
date of the offense of felonious possession of stolen goods on the
indictment as amended according to the State's motion to amend.
Likewise, the date on the habitual felon judgment should be
corrected.
No error in the trial. Remanded for correction of clerical
errors.
Judges WALKER and McCULLOUGH concur.
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