STATE OF NORTH CAROLINA
v. Harnett County
Nos. 00CRS5573,
SAMONTANIE GERMIER BUTTS, 00CRS6943
Defendant
Attorney General Roy Cooper, by Assistant Attorney General Amy
C. Kunstling, for the State.
McLeod & Harrop, by Donald E. Harrop, Jr., for defendant-
appellant.
EAGLES, Chief Judge.
Defendant Samontanie Germier Butts was convicted by a jury of
robbery with a dangerous weapon and conspiracy to commit robbery
with a dangerous weapon. He was sentenced to consecutive terms of
103-133 and 34-50 months imprisonment, respectively. Defendant
appeals.
Counsel appointed to represent defendant has filed an Anders
brief indicating that he is unable to identify an issue with
sufficient merit to support a meaningful argument for relief on
appeal. Consequently, defense counsel asks this Court to conduct
its own review of the record for possible prejudicial error. Counsel has filed documentation with this Court showing that he has
complied with the requirements of Anders v. California, 386 U.S.
738, 18 L. Ed. 2d 493, reh'g denied, 388 U.S. 924, 18 L. Ed. 2d
1377 (1967), and State v. Kinch, 314 N.C. 99, 331 S.E.2d 665
(1985), by advising defendant of his right to file written
arguments with this Court and providing him with the documents
necessary for him to do so.
In response, defendant filed two papers with this Court in
which he raised some six pro se arguments. In his first filing,
defendant presented the following arguments: (1) the conspiracy
indictment was fatally defective and should have been dismissed
because it was not signed by the grand jury foreman; (2) the trial
court erred in denying his pro se motion to suppress the money that
the police seized from his pants pockets after the robbery; (3) the
trial court erred in admitting the hearsay testimonies of certain
State's witnesses; and (4) he received ineffective assistance of
counsel. In his second filing, defendant raised the following
additional arguments: (1) the trial court erred in sentencing him
in the aggravated range; and (2) there was insufficient evidence to
prove that a conspiracy to commit a robbery existed.
As to defendant's first argument regarding the grand jury
foreman's failure to sign the conspiracy indictment, G.S. § 15A-
644(a)(5) provides that the grand jury foreman must sign an
indictment to attest to the concurrence of twelve or more grand
jurors in the finding of a true bill of indictment. However, our
Supreme Court has held that § 15A-644(a)(5) is merely directory. See State v. House, 295 N.C. 189, 244 S.E.2d 654 (1978). Here,
substance is “paramount over form.” State v. Midyette, 45 N.C.
App. 87, 89, 262 S.E.2d 353, 354 (1980). Thus, a grand jury
foreman's failure to sign a bill of indictment is a “clerical
error” and “does not affect the substance of the bill.” State v.
Colvin, 92 N.C. App. 152, 156, 374 S.E.2d 126, 130 (1988).
Accordingly, the absence of a grand jury foreman's signature on an
indictment does not render the indictment fatally defective. See
State v. Parker, 119 N.C. App. 328, 337, 459 S.E.2d 9, 14 (1995)
(noting that the signature of a grand jury foreman pursuant to
statute is merely directory and does not invalidate an indictment);
State v. Gary, 78 N.C. App. 29, 33, 337 S.E.2d 70, 73 (1985)
(absence of a grand jury foreman's signature does not render an
otherwise valid indictment fatally defective); State v. Avant, 202
N.C. 680, 683, 163 S.E. 806, 807 (1932) (no error in failure of
grand jury foreman to endorse a bill of indictment).
Generally, the record that the indictment was presented by the
grand jury is sufficient in the absence of evidence to impeach it.
State v. Sultan, 142 N.C. 569, 573, 54 S.E. 841, 842 (1906). Here,
the record does not reveal any challenge to the indictment by
defendant during his trial. In fact, it was the trial court that
raised ex mero motu the issue of the unsigned indictment. Upon the
court's inquiry, the Clerk of Court reviewed the grand jury minutes
from the 12 June 2000 session. This review revealed that the grand
jury returned 162 true bills, and only one “not true bill[].”
Additionally, the evidence tended to show that although the grandjury foreman had not signed the conspiracy indictment, the
indictment was signed by the prosecutor, had the name of the
witness listed, was denominated as a true bill, and was dated 12
June 2000. Significantly, the robbery with a dangerous weapon
indictment, which was signed by the grand jury foreman, was
returned on the same date, listed the same witness, and was signed
by the same prosecutor as the conspiracy indictment.
In light of these facts, we conclude that the foreman in this
case inadvertently failed to sign defendant's conspiracy
indictment. This “clerical error” in no way affected the substance
of the bill, defendant failed to impeach the validity of the bill,
and therefore, this argument fails.
Defendant's second argument that the trial court erred in
denying his pro se motion to suppress the money seized from his
pockets also fails. Because defendant was represented by counsel
prior to and at trial, he was not entitled to proceed on his pro se
motion. See State v. Williams, 319 N.C. 73, 75, 352 S.E.2d 428, 430
(1987) (stating that a defendant may appear through counsel or in
propria persona, but not both).
Nevertheless, the trial court allowed defendant to proceed
with his motion. In so doing, the trial court heard extensive
testimony on voir dire related to defendant's pro se motion to
suppress; the court made findings of fact; and the court reached
conclusions of law before denying the motion. Aside from his own
self-serving theory that he was “set up” by the police, defendant
provided neither evidence nor law to support this argument. Aftera careful review of the record, we conclude that the trial court's
findings are supported by the evidence; those findings support the
court's conclusions; and in light of existing law, those
conclusions are proper. Hence, the trial court did not err in
denying defendant's pro se motion to suppress.
Defendant next challenges the testimony of the State's
witnesses Frances Marino, April Dehart, Laura Norris, and Lee
Francisco, as being inadmissible hearsay. Hearsay is defined as “a
statement, other than one made by the declarant while testifying at
the trial or hearing, offered in evidence to prove the truth of the
matter asserted.” N.C.R. Evid. 801(c) (emphasis added). Having
thoroughly reviewed the testimony of each of these witnesses, we
conclude that none of the subject testimony contains inadmissible
hearsay. Furthermore, to the extent that defendant alleges that
the contradictions or discrepancies in the witnesses' testimony
bars its admission, this argument likewise fails. See State v.
Smith, 300 N.C. 71, 78, 265 S.E.2d 164, 169 (1980)
(“[c]ontradictions and discrepancies are for the jury to resolve
and do not warrant dismissal”).
Defendant's next argument is that he received ineffective
assistance of counsel. We conclude that defendant has failed to
make the requisite showing for an ineffective assistance of counsel
claim under the two-part test set forth in Strickland v.
Washington, 466 U.S. 668, 80 L. Ed. 2d 674, reh'g denied, 467 U.S.
1267, 82 L. Ed. 2d 864 (1984), and adopted by this state in Statev. Braswell, 312 N.C. 553, 324 S.E.2d 241 (1985). Accordingly,
defendant's ineffective assistance of counsel argument fails.
Finally, we reject defendant's two arguments raised in his
second filing as being wholly without merit. First, defendant was
not sentenced within the aggravated range. For both convictions,
defendant was sentenced “within the presumptive range of sentences
under G.S. 15A-1340.17(c).” Second, the record provides plenary
evidence to support defendant's conviction for conspiracy to commit
a robbery with a dangerous weapon.
In sum, after examination of defendant's pro se arguments, we
are unpersuaded. Having fully examined the record and transcript
for possible prejudicial error, we conclude that defendant received
a fair trial free from prejudicial error.
No error.
Judges TIMMONS-GOODSON and McCULLOUGH concur.
Report per Rule 30(e).
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