Appeal by defendant from judgment entered 27 October 2000 by
Judge A. Leon Stanback in Wake County Superior Court. Heard in the
Court of Appeals 22 January 2003.
Attorney General Roy Cooper, by Special Deputy Attorney
General Ronald M. Marquette, for the State.
Miles & Montgomery, by Lisa Miles, for defendant-appellant.
MARTIN, Judge.
Defendant was indicted for the first degree murder of Paul
Solis and for being a violent habitual felon. He appeals from a
judgment sentencing him to life imprisonment without parole entered
upon jury verdicts finding him guilty of second degree murder and
being a violent habitual felon.
The evidence presented at trial indicates that at about 10:30
or 11:00 p.m. on 3 August 1999 Paul Solis was shot and killed by
defendant in the back parking lot of the Korner Pocket, a pool hall
in Raleigh, N.C. Testimony by various witnesses indicated that
defendant and Solis were friends prior to 3 August.
Defendant's wife, Patti Wolfe, testified that she and
defendant and their 13-year-old son, Jacob, went to the Korner
Pocket sometime before sundown on 3 August. She stated that shetalked to Solis to ask if something had happened between him and
defendant the night before, but Solis said everything was all
right. While there, Tami Muse, whom Patti knew to be defendant's
“friend,” came in and sat at the bar. Because defendant had
brought Muse over to their house earlier that day while Patti was
at home, Patti was very upset that Muse was at the bar. Patti
stated that Muse and defendant went outside separately several
times, but obviously to talk together. Because Patti was angry,
she talked and danced with others. Defendant, whom Patti described
as “very jealous,” became angry with her and said they had to
leave.
Patti testified that she, defendant and Jacob left via the
front door of the bar and that Jacob pulled defendant some feet
away to say that he wanted them to be like a family. Patti saw
defendant rest his gun on the bumper of a nearby truck and heard
him say to Jacob that Patti was “going to die tonight. She's drunk
and she doesn't know what she's doing and she's going to have to
die.” The three then continued around the side of the building to
the back lot where they had parked Patti's truck. Patti testified
that defendant was calling her names and pushing and tripping her.
She stated that as they came around the back corner of the
building, she saw Solis in the back doorway, but they did not
exchange greetings. When they got to the truck, Jacob suddenly ran
away back around the building. Because she was scared, Patti
followed him into the bar and hid. She stated that by the time she
got to the front corner of the building, she heard a gunshot. Shefurther testified that defendant had taken cocaine that day and had
been doing drugs for a day or so, that they had been drinking since
the afternoon, and she described defendant as “out of control” that
night. Patti also stated that defendant always carried a gun with
him.
Judy Billings, Solis' girlfriend of a few months, testified
that when she arrived at the bar, defendant and his family were
there, as were Muse and Billings' brother and father. She
testified that the situation was “very tense” because both Patti
and Muse were in the bar. She did not think there was tension
between defendant and Solis. Billings stated that at some point
Solis went out back to take a call on his cell phone. She
testified that she knew defendant always carried a gun, but that
Solis never did. According to Billings, Solis was strongly opposed
to violence against women and had indicated that he would intervene
if he knew a man had abused or was abusing a woman.
Hosey Harrington, Jr., Billings' brother, testified that he
noticed no tension between defendant and Solis on 3 August, but did
see defendant and Patti arguing at the bar. When he went outside
to use an outside staircase to meet one of the bartenders upstairs,
Harrington stated that he saw defendant, Patti, and Jacob come
around the side of the building and heard defendant say, “You f----
-- b----, I'll kill you,” and saw Patti fall to the ground. Only
a minute or so after he got to the upstairs room, Harrington heard
mumbling and then a gunshot. He then looked out the window and saw
defendant holding a gun in the air by his truck and shouting, “Woo,woo, woo.” After defendant drove away, Harrington and the
bartender, Barry Seville, went downstairs and found Solis lying on
the ground with a gunshot wound to the head. Although Barry
Seville was not available to testify at trial due to an accident,
Detective Eugene Woodlief, a witness for the defense, testified at
trial to the statement he took from Seville on 9 August 1999.
Although Seville's statement corresponded for the most part with
Harrington's, his version indicated that after he and Harrington
heard the gunshot and he looked down through a window to the back
lot, he saw defendant walk to his truck and drive away quickly.
Seville indicated in the statement that he did not see anything in
defendant's hands.
Jennifer Spence, a part-time bartender at the Korner Pocket
and girlfriend of defendant's brother, Robert Wolfe, testified that
she was tending bar on 3 August when defendant, his family, Muse,
and Solis were in the bar. She testified that the atmosphere was
“awkward” because Patti and Muse were both at the bar, but that
there was no tension between defendant and Solis. She stated that
defendant, Patti, and Solis had drunk enough that she was going to
quit serving them alcohol. Spence also testified that she had been
with defendant when he had experienced hallucinations, and that she
had heard him howl like a wolf when he was happy.
Robert Wolfe, defendant's brother, testified that he and the
victim had been friends for about two or three years and that on
the night in question the victim invited him to have a beer with
him at the Korner Pocket. When defendant arrived, he asked hisbrother to step outside a few times and talked about being upset
with the victim due to a wrestling incident between them the night
before. Wolfe testified that defendant told him “he wanted to
knock [the victim] out pretty much.” He noticed that defendant had
a gun on him that night and that he was in a “strange” mood and
“just talking crazy stuff.” Wolfe testified that soon after
defendant and Patti and Jacob left the bar, Jacob came running back
in and told him “to call 911 because [defendant] was going to kill
everybody at the bar.” After hiding Jacob, Wolfe went to look for
defendant and saw the victim laying on the ground in the back lot.
Wolfe stated that he saw defendant driving away in the truck as he
came out the back door and first saw the victim on the ground.
Wolfe also stated that he saw no weapon on or around the victim.
He stated that defendant paged him the next evening and he told
defendant to turn himself in. During their call, defendant said to
his brother, “I had to pop him before he popped me.”
Tami Muse testified that she had become defendant's girlfriend
in June 1999. She stated that on the evening of 3 August, there
was tension due to her presence, and Patti's, at the Korner Pocket.
She eventually left the bar because she did not feel well. She
next heard from defendant before midnight and he asked her to pick
him up at The Doll House. When she arrived, she saw defendant get
out of a van driven by his mother, hug his brother Mike, and say,
“It will be all right.” The next morning they drove to
Fayetteville and stayed with a friend of defendant's. In
Fayetteville, Muse testified, defendant cried and told her that hehad killed Solis on 3 August. Defendant told her that the gun had
been pulled and they fought over it and it went off. After four or
five days, they drove to Wilmington to stay with a friend. There
she heard defendant say that he had “taken somebody out.”
Michael Venable, who had grown up with defendant and Robert
Wolfe and lives in Wilmington, testified that he received a call
from defendant after 3 August asking Venable to meet him nearby.
During their initial conversation, defendant told him:
[he] and his wife were arguing in the parking
lot. A guy come up and told him, “Hey, man,
don't treat her that way. Don't talk to her
that way.” And he said, “F___ you. Mind your
own business. If you don't, you know, I'll
kill you.” And [defendant] said that the guy
went to go for his gun. And when the guy went
for his gun, [defendant] got to his gun a
little bit quicker. Said he _ he cried on my
shoulder. He said he really did not mean to
kill the guy. He said that he was trying to
back the guy away from him and the guy went to
swat the gun like that. And when he swatted
the gun, that the gun went off and caught him
in the side of the head.
Defendant stayed with Venable for a few days until a U.S. Marshal
came to the house, asked everyone for identification, and defendant
turned himself in. During his stay, Venable heard defendant
bragging about the 3 August incident. On cross-examination,
defense counsel read to Venable a statement he had made to lead
investigator Angelia Duckworth about what defendant had said to
him. His statement did not state that defendant told Solis, “I'll
kill you.” It also mentioned that defendant thought someone had
probably taken cocaine and a gun from Solis' possession before the
police arrived at the scene. On re-cross examination, Venableclarified that defendant had only told him that Solis “went to go
for his gun,” but “never said he saw [a gun].”
Jeffrey Royal, who had been in jail with defendant while he
awaited trial, testified that defendant told him two versions of
what happened on 3 August 1999. In the first version, which
corresponded generally with testimony by other witnesses, defendant
stated that when Solis tried to talk to him about his wife, he told
him to mind his own business and shot him, then drove away. Royal
testified that defendant showed no remorse about Solis' death.
Dr. James Edwards, the pathologist who performed the autopsy
on Solis testified that he died from a single gunshot wound to his
head. In response to questions, he stated that he did not make a
note in his report of any “stippling” effect on Solis' face or head
from gunpowder. Such stippling, he stated, would have indicated to
him that the shot happened at close range.
Crime scene agent Kathleen Myers testified that she took
gunshot residue samples from Solis' hands at the scene on 3 August.
Special Agent Tim Luper, a witness for the defense, testified that
when he analyzed the gunshot residue samples taken from Solis, they
revealed some residue on his hands. From the evidence gathered,
Luper testified he could not make any conclusions as to whether
Solis handled or shot the gun. Luper stated the results were “not
consistent with [Solis] having fired a gun, but I can't eliminate
that fact. I mean it's a possibility [Solis' hand was] in close
proximity [to a gun].”
Other evidence or events at trial pertinent to this appeal areset out below.
__________________________________
In his brief, defendant has presented arguments in support of
only seven of the thirty assignments of error contained in the
record on appeal. Assignments of error not addressed in an
appellant's brief are deemed abandoned and will not be considered
by this Court. N.C.R. App. P. 28(a), (b)(6) (2002). The
assignments of error brought forward in defendant's brief are
presented in three main arguments. Defendant contends that the
trial court erred in (1) handling procedural and substantive issues
relating to defendant's capacity to stand trial that arose during
jury selection, (2) denying defendant's request to instruct the
jury on the doctrine of self-defense, and (3) denying defendant's
motion to dismiss the violent habitual felon charge and failing to
instruct the jury that the State must prove defendant's identity
with respect to that charge beyond a reasonable doubt. We disagree
with all three arguments and hold that defendant received a fair
trial.
I.
Defendant first argues the trial court erred in (a) failing to
afford him a proper competency hearing at the start of trial, (b)
denying his motion to continue when counsel indicated during the
second day of jury selection that defendant appeared unable to
assist in his defense, (c) failing to strike the jurors that had
been accepted while defendant was incompetent, and (d) finding
defendant competent to proceed with trial. The events relevant tothese various arguments are summarized together. On 19 May 2000,
Dr. George Corvin issued a report stating that defendant was
suffering mental impairment and was not capable of making a plea at
that time. On motion of the State, defendant was committed on 26
May 2000 to Dorothea Dix Hospital for examination regarding his
competency to proceed with trial. On 10 August 2000, Dr. Robert
Rollins of Dorothea Dix Hospital issued a report indicating that
defendant was competent to proceed. On 2 October 2000, the first
day scheduled for defendant's trial, the trial court reviewed Dr.
Rollins' report and found defendant was competent to proceed.
Jury selection began on 3 October; four jurors were accepted
by the parties. On 4 October, counsel for defendant indicated to
the trial court that defendant could not concentrate, assist in his
defense, or remember selection of jurors from the day before.
Defendant moved for a continuance in order to have defendant
evaluated. The trial court denied the motion to continue but
allowed counsel for defendant to try to find a physician to examine
defendant. Jury selection continued and two prospective jurors
were excused. Counsel for defendant was unable to locate a
physician to examine defendant and again moved for a continuance.
The trial court denied the motion but permitted the State to call
Dr. Rollins. While awaiting the arrival of Dr. Rollins, the State
questioned and accepted juror Marcia Dibens. Counsel for defendant
advised that defendant was unable to give input as to juror Dibens.
When Dr. Rollins arrived, the trial court took a short recess for
the evaluation. Dr. Rollins then testified that defendant washaving significant problems with concentration and recommended that
defendant receive a week's treatment followed by a reevaluation.
Without making any express findings as to defendant's competence,
the trial court recessed for a week. On 10 October 2000, Dr.
Rollins testified that defendant seemed less depressed and could
assist counsel, but was still having problems with concentration
and mental focus. Dr. Rollins stated that defendant's medication
had not had time to take full effect and that a few weeks would
produce significant change. Defense counsel then indicated to the
trial court that defendant did not seem rational and moved for a
continuance until the medication could take full effect. The court
denied the motion and found defendant competent to proceed. Jury
selection continued and the first four jurors, as well as juror
Dibens, who was questioned and accepted by defendant on 10 October,
were seated on the jury.
“It has long been accepted that a person whose mental
condition is such that he lacks the capacity to understand the
nature and object of the proceedings against him, to consult with
counsel, and to assist in preparing his defense may not be
subjected to trial.”
Drope v. Missouri, 420 U.S. 162, 171, 43 L.
Ed. 2d 103, 112-13 (1975). In North Carolina, G.S. § 15A-1002
outlines the procedure used to determine whether a defendant has
the capacity to stand trial:
(a) The question of the capacity of the
defendant to proceed may be raised at any time
on motion by the prosecutor, the defendant,
the defense counsel, or the court. The motion
shall detail the specific conduct that leads
the moving party to question the defendant'scapacity to proceed.
(b) When the capacity of the defendant to
proceed is questioned, the court shall hold a
hearing to determine the defendant's capacity
to proceed. If an examination is ordered . .
., the hearing shall be held after the
examination. Reasonable notice shall be given
to the defendant and prosecutor, and the State
and the defendant may introduce evidence.
N.C. Gen. Stat. § 15A-1002 (2002).
The question of whether a
defendant has the capacity to stand trial is one within the trial
court's discretion and, if supported by the evidence, its
determination is conclusive on appeal.
State v. Heptinstall, 309
N.C. 231, 306 S.E.2d 109 (1983);
State v. Willard, 292 N.C. 567,
234 S.E.2d 587 (1977).
Defendant first contends the trial court failed to conduct a
hearing as contemplated by G.S. § 15A-1002(b) before its 2 October
ruling that he was competent to stand trial. He argues that he did
not receive reasonable notice of the hearing, defense counsel did
not receive a copy of Dr. Rollins' 10 August report until the
hearing, Dr. Rollins' report did not address the bases given for
Dr. Corvin's 19 May opinion, and Dr. Rollins was not available for
cross-examination at the hearing. It appears from the record that
defense counsel raised the issue of a competency hearing by
explaining to the trial court that he had never received a report
from the examination ordered on 26 May and had determined that
defendant had never been taken to Dorothea Dix Hospital for
examination. After determining that the State's counsel also had
not received a copy of the report, the trial court located the
report in the case file and allowed both counsel to review and copyit. At that point, defense counsel asserted that having just
received the report, and given the reasonable notice required for
a competency hearing under the statute, he needed time to review
the report and discuss it with Dr. Corvin or another mental health
professional. However, the trial court proceeded with a competency
hearing at that time. Defense counsel did not offer any evidence
of conduct by defendant which had given counsel concern about
defendant's competency, but argued that Dr. Rollins' report seemed
very cursory, did not address the issues raised by Dr. Corvin's
report, and that Dr. Rollins was not available for cross-
examination. The trial court then stated that it had “conducted a
hearing pursuant to the information that's been given concerning
[defendant's] competency to stand trial,” considered arguments of
counsel and the two physicians' reports, and concluded “that the
defendant is competent to stand trial . . . .”
The State's 26 May motion raised the question of defendant's
competency to proceed; an examination having been ordered, G.S. §
15A-1002(b) required the trial court to conduct a hearing, after
the examination, to determine whether defendant was competent to
proceed. There is no indication in the record that such a hearing
was held prior to 2 October.
Although a trial court is required to hold a hearing after
reasonable notice to the parties, “'it is a general rule that a
defendant may waive the benefit of statutory or constitutional
provisions by express consent, failure to assert it in apt time, or
by conduct inconsistent with a purpose to insist upon it.'”
Statev. Young, 291 N.C. 562, 567, 231 S.E.2d 577, 580 (1977) (citation
omitted). In this case, defendant asserted his right to the
statutorily required hearing and reasonable notice; the trial court
provided defendant notice shortly before commencing the hearing.
The operative question is whether such notice was reasonable.
The statute at issue does not define “reasonable notice.”
However, in
State v. Burney, 302 N.C. 529, 276 S.E.2d 693 (1981),
our Supreme Court upheld the denial of the defendant's motion to
continue on facts similar to those in the instant case. In
Burney,
defendant made a motion about a month prior to trial questioning
his capacity to proceed and a psychiatric examination was ordered
pursuant to G.S. § 15A-1002, with provision that a copy of the
examination report be sent to defense counsel.
Id. at 531, 276
S.E.2d at 694. The report stated that the defendant was competent
to stand trial.
Prior to trial [] defendant moved for a
continuance on the ground that a copy of the
hospital's report had not been sent to his
attorney as had been ordered . . . . The
trial judge informed defense counsel that he
had received a copy of the report that day and
would be glad to furnish him a copy of it.
Counsel stated that he felt that he was
entitled to an opportunity to study the report
at length, and to have defendant's own experts
examine it.
Upon inquiry from the court, counsel stated
that he had been informed previously that the
report was in the clerk's office in a sealed
envelope addressed to the presiding judge. He
further stated that the clerk had suggested
that he ask the presiding judge for a copy.
Before ruling on the motion for a continuance,
the court gave counsel time to read the report
and go over it with defendant.
Id. at 531-32, 276 S.E.2d at 694-95 (footnotes omitted). In a
footnote, the Court noted that the record did not indicate exactly
when the defendant made the motion to continue, so the Court
assumed it was the first day of trial.
Id. at 531 n.1, 276 S.E.2d
at 694 n.1. The Court also mentioned in another footnote that
“[w]hile we cannot justify the . . . failure to send defendant's
counsel a copy of the report as ordered . . ., we must note that
with a minimum of effort counsel could have obtained a copy of the
report sent to the presiding judge.”
Id. at 532 n.2, 276 S.E.2d at
695 n.2. Although there were other factors involved in the Court's
holding that the trial court had not erred in denying the motion to
continue, it is clear that the Court was not persuaded by the
argument that defense counsel was entitled to a continuance because
he had not received a copy of the report until the day of his
motion to continue, presumably the first day of trial.
In the present case, the 26 May order for examination of
defendant provided that copies of the examination report be sent to
defendant's attorney and the clerk of court. On 2 October, the
first day of trial, counsel for defendant stated to the court that
he had asked defendant several times whether he had been taken to
Dorothea Dix Hospital and he replied that he had not. The State
indicated that it had spoken with employees at Dorothea Dix and
learned that defendant had been examined, although not at the
hospital, and the report sent to defendant and the clerk of court.
Although there may have been miscommunication between defendant and
his counsel concerning the facts of the examination, it does notappear that defense counsel made any further efforts to determine
whether an examination had been conducted and a report made. As in
Burney, minimal efforts such as a telephone call to the clerk or to
Dorothea Dix Hospital would likely have turned up the report.
Therefore, considering that counsel for defendant could have gotten
access to Dr. Rollins' report earlier, had a chance to look it over
before the hearing, and had no evidence to present on the issue of
defendant's competency other than Dr. Corvin's 19 May report, we
cannot agree that the notice defendant received in this case was
not reasonable.
For similar reasons, we also consider defendant's other
contentions with regard to the 2 October hearing to be without
merit. Defendant had an opportunity to be heard on Dr. Rollins'
report at the hearing. Although the trial court did not make
specific findings in its ruling, defendant does not assign error to
this aspect of the order, and it is not clear from the brief that
he contends the evidence presented at the hearing, i.e., the two
reports, did not support the trial court's conclusion that
defendant was competent to stand trial. In any event, Dr. Rollins'
report clearly supports the trial court's conclusion and thus we
may not disturb it on appeal.
Heptinstall,
supra;
Willard,
supra.
Next, defendant contends the trial court erred in denying his
motion to continue after defense counsel questioned his competency
to proceed during jury selection on 4 October 2000. However,
during the period between the trial court's ruling on the motion
and the evaluation by Dr. Rollins, the only proceedings that tookplace were the State's questioning and excusal of a prospective
juror for cause, the excusal of another prospective juror by the
trial court based on his work schedule, and the State's questioning
and acceptance of juror Dibens. Therefore, it appears that the
trial court's ruling on the motion to continue was not the source
of any prejudice to defendant. N.C. Gen. Stat. § 15A-1443 (2002).
Moreover, after the evaluation, the trial court granted a week's
recess for treatment of defendant, with a follow-up evaluation on
10 October.
Defendant also contends the trial court erred in failing to
strike
ex mero motu the four jurors selected on 3 October. First,
because defendant did not move to strike the jurors at trial, this
issue is not properly preserved for appellate review. N.C.R. App.
P. 10(b)(1) (2002). Defendant requests plain error review of the
issue, but the plain error doctrine is limited to errors in jury
instructions and the admission of evidence.
State v. Greene, 351
N.C. 562, 528 S.E.2d 575,
cert. denied, 531 U.S. 1041, 148 L. Ed.
2d 543 (2000); N.C.R. App. P. 10(c)(4) (2002).
Second, it is not
clear from the record that defendant was not competent on 3
October. To the extent the trial court reviewed any evidence other
than Dr. Rollins' testimony after his evaluation of defendant on 4
October, we note that counsel for defendant, who initiated the
evaluation, had clearly stated that defendant's “mental condition
this morning is fundamentally different from how it was on Monday
and how it was yesterday.” Counsel for defendant also made no
assertions on 3 October that defendant was not communicating withthem adequately. This argument is without merit.
Lastly, defendant argues the trial court erred in denying his
motion to continue on 10 October to allow the medication to take
full effect. In the relevant assignment of error, defendant did
not assign error to the denial of his motion to continue, but
rather to the trial court's finding of competence as unsupported by
the evidence. N.C.R. App. P. 10(a) (2002). However, Dr. Rollins
stated specifically:
Mr. Wolfe's depression is less in my view. He
has more trouble focusing on things that are
currently distressing than things in the past
that are less distressing. But it's my view
that he is able to concentrate and communicate
sufficiently as to be able to proceed.
This statement is competent evidence that supports the trial
court's finding of competence. In sum, we find no reversible error
was committed by the trial court with respect to the competency
determinations in this case and related motions and hearings.
II.
Defendant next contends the trial court erred in denying his
request for a jury instruction on self-defense because the evidence
supported such an instruction. “[A] defendant is entitled to a
self-defense instruction 'if there is any evidence in the record
from which it can be determined that it was necessary or reasonably
appeared to be necessary for him to kill his adversary in order to
protect himself from death or great bodily harm.'”
State v.
Nicholson, 355 N.C. 1, 30, 558 S.E.2d 109, 130,
cert. denied, ___
U.S. ___, 154 L. Ed. 2d 71 (2002) (quoting
State v. Bush, 307 N.C.
152, 160, 297 S.E.2d 563, 569 (1982)). Defendant asserts the evidence that Solis owned guns and was
known by defendant to own guns and the fact that Solis had gunshot
residue on his hands indicating that he may have handled or fired
a gun just prior to his death supports the theory of self-defense.
In addition, defendant points to the testimony by his brother
Robert and Michael Venable as to statements by defendant indicating
that he shot Solis before Solis could shoot him as evidence that
defendant believed it was necessary to shoot Solis to defend
himself. However, the evidence showed that Solis did not carry a
gun, that no gun was found on or near him on 3 August, and, amongst
defendant's various versions of the incident, he never claimed that
he saw Solis with a gun. The evidence is insufficient to raise the
issue of whether defendant
reasonably believed he had to shoot
Solis to protect himself from death or great bodily harm;
therefore, the trial court did not err in denying the request for
a self-defense instruction.
III.
Defendant contends, in his final argument, that the trial
court erred by denying his motion to dismiss the violent habitual
felon indictment at the close of the evidence and by not
instructing the jury that the State must prove defendant's identity
with respect to this charge beyond a reasonable doubt.
In ruling upon a motion to dismiss, the trial
court must examine the evidence in the light
most favorable to the State, giving the State
the benefit of all reasonable inferences which
may be drawn from the evidence. The court
must determine whether substantial evidence
supports each essential element of the offense
and the defendant's perpetration of thatoffense. If so, the motion must be denied and
the case submitted to the jury. “'Substantial
evidence' is that amount of relevant evidence
that a reasonable mind might accept as
adequate to support a conclusion.”
State v. Hairston, 137 N.C. App. 352, 354, 528 S.E.2d 29, 30 (2000)
(citations omitted). G.S. § 14-7.7 defines a violent habitual
felon as:
(a) Any person who has been convicted of two
violent felonies . . ., in a court of this or
any other state of the United States, . . . is
declared to be a violent habitual felon. . . .
(b) For purposes of this Article, “violent
felony” includes the following offenses:
(1) All Class A through E felonies.
(2) Any repealed or superseded offense
substantially equivalent to the offenses
listed in subdivision (1).
(3) Any offense committed in another
jurisdiction substantially similar to the
offenses set forth in subdivision (1) or (2).
N.C. Gen. Stat. § 14-7.7 (2002). G.S. § 14-7.10 explains how the
State may prove that a defendant has prior convictions of violent
felonies:
A prior conviction may be proved by
stipulation of the parties or by the original
or a certified copy of the court record of the
prior conviction. The original or certified
copy of the court record, bearing the same
name as that by which the defendant is
charged, shall be prima facie evidence that
the defendant named therein is the same as the
defendant before the court, and shall be prima
facie evidence of the facts set out therein.
N.C. Gen. Stat. § 14-7.10 (2002).
Defendant first argues that the State's proof was not
substantial evidence that defendant had two prior felony
convictions. The State submitted certified copies of two judgmentsentered upon felony convictions of a person named “Eldridge Frank
Wolfe,” thus establishing a
prima facie case under G.S. § 14-7.10.
However, defendant argues the proof is insufficient to show that he
is the same person named in the judgments because, in one of the
judgments the convicted person's race is noted as black, while
defendant is white. “In creating this statutory
prima facie case,
the General Assembly has dictated what amount of evidence is
sufficient for the judge to submit an habitual felon case to the
jury.”
Hairston, 137 N.C. App. at 354-55, 528 S.E.2d at 31.
Therefore, because the State has met the
prima facie requirement,
any discrepancies in other details contained in the judgments are
for the jury to consider in weighing the evidence.
State v. Petty,
100 N.C. App. 465, 397 S.E.2d 337 (1990). The trial court did not
err in denying defendant's motion to dismiss on this basis.
Defendant also argues, based on this discrepancy in race, the
trial court erred in denying defendant's request that the jury be
instructed that it must find beyond a reasonable doubt that
defendant is the “Eldridge Frank Wolfe” named in both judgments.
The jury was instructed as follows:
Now, I charge that for you to find the
defendant guilty of being a violent habitual
felon the State must prove two things beyond a
reasonable doubt. First, that on or about
December 11, 1985, Eldridge Frank Wolfe did
commit the violent felony of voluntary
manslaughter. And that on or about March 18,
1987, Eldridge Frank Wolfe was convicted of
the violent felony of voluntary manslaughter .
. . . Second, the State must prove beyond a
reasonable doubt that on or about August 3
rd,
1995, Eldridge Frank Wolfe did commit the
violent felony of assault with a deadly weapon
inflicting serious injury and that on or aboutMarch 12, 1996, Eldridge Frank Wolfe was
convicted of assault with a deadly weapon
inflicting serious injury . . . .
Defendant contends that this instruction would allow the jury to
find him guilty of being a violent habitual felon if someone named
Eldridge Frank Wolfe, but not necessarily the same person as
defendant, had been convicted of those offenses. We are not
persuaded by this argument; the references to Eldridge Frank Wolfe
in the jury instruction as given could only have been understood by
the jurors to refer to the defendant, who was on trial.
Lastly, defendant argues the trial court erred in failing to
dismiss the violent habitual felon charge because one of the
felonies presented by the State, a 1987 voluntary manslaughter
conviction, does not qualify for use as an underlying felony under
G.S. § 14-7.7. Defendant contends that although voluntary
manslaughter was a Class D felony at the time the instant case went
to trial, it was a Class F felony in 1987. Defendant asserts that
the State is not “authorized to elevate an offense classification
from its previous class for purposes of satisfying violent habitual
felony status.” On the contrary, the State is specifically
authorized by subsection (b)(2) of G.S. § 14-7.7 to use “[a]ny
repealed or superseded offense substantially equivalent to the
offenses listed in subdivision (1) [Class A through E felonies].”
Voluntary manslaughter is exactly such a superseded offense, having
been upgraded by the General Assembly to a Class D felony. N.C.
Gen. Stat. § 14-18 (2002);
State v. Mason, 126 N.C. App. 318, 484
S.E.2d 818 (1997),
cert. denied, 354 N.C. 72, 553 S.E.2d 208(2001).
Defendant also contends that the use of the 1987 voluntary
manslaughter judgment also violates the
ex post facto provisions of
the state and federal constitutions. U.S. Const., Art. I, §§ 9(3)
and 10(1); N.C. Const., Art. I, § 16. “[A]n impermissible
ex post
facto law is one which, among other things, aggravates a crime or
makes it a greater crime than when committed, or changes the
punishment of a crime to make the punishment greater than the law
permitted when the crime was committed.”
Mason, 126 N.C. App. at
324, 484 S.E.2d at 821. Because defendant's violent habitual felon
status will only enhance his punishment for the second degree
murder conviction in the instant case, and not his punishment for
the underlying voluntary manslaughter felony, there is no violation
of the
ex post facto clauses.
Id.
Defendant further argues the holding in
State v. Mason was
incorrect because the violent habitual felon statute allows the use
of felony judgments for enhancing punishment “when such action
occurred on or after July 6, 1967,” yet the statute was enacted in
1994. N.C. Gen. Stat. § 14-7.7 (2002). 6 July 1967 is the date
the habitual felon statute, now G.S. § 14-7.1
et seq., was enacted
and the statute uses that date as a cut-off point for the felonies
that can be used under it to enhance punishment. N.C. Gen. Stat.
§ 14-7.1 (2002). Thus, defendant argues that the violent habitual
felon statute is an
ex post facto law to the extent that it
authorizes use of felonies committed between 1967 and 1994 to
enhance punishment because offenders were not on notice between1967 and 1994 that their offenses might thus be used in the future.
We reject the argument. Although the violent habitual felon
statute was not enacted until 1994, perpetrators were on notice
between 1967 and 1994, pursuant to the habitual felon statute, that
certain crimes could be used to enhance punishment for later
crimes.
Defendant received a fair trial and was sentenced according to
law.
No error.
Judges STEELMAN and GEER concur.
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