STATE OF NORTH CAROLINA
v
.
LARRY RILEY JONES,
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General
Elizabeth N. Strickland and Special Deputy Attorney General
William P. Hart, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Aaron Edward Carlos, for defendant appellant.
ELMORE, Judge.
Defendant, Larry Riley Jones, was indicted on 2 April 2001 for
the following offenses: felony eluding arrest (00 CRS 56218);
displaying a fictitious registration plate and resisting a public
officer (00 CRS 56219); possession of over half an ounce of
marijuana and possession of drug paraphernalia (00 CRS 56220); and
for being an habitual felon (01 CRS 0070). All of the underlying
cases came on together for trial at the 30 May 2001 criminal
session of Buncombe County Superior Court. After jury selection,
defendant pled guilty in the possession of marijuana and drug
paraphernalia case. The State prosecuted the remaining charges,
and on 31 May 2001 the jury found defendant guilty of felony
eluding arrest and resisting a public officer. The jury was unableto reach a unanimous verdict on the fictitious registration plate
charge, and the State ultimately dismissed that charge. The
habitual felon case came on for trial at the same court session,
and the jury found defendant guilty of having habitual felon status
upon the felony eluding arrest conviction.
The trial court consolidated all the cases for sentencing and
adjudged defendant to be an habitual felon. The parties stipulated
that defendant had twenty-three prior record points and a prior
record level of VI. The trial court sentenced defendant from the
presumptive range to a minimum of 152 and a maximum of 192 months
in prison. Defendant appeals from the convictions for felony
eluding arrest, resisting a public officer, and having the status
of habitual felon.
At trial, the parties presented very different accounts of the
events which gave rise to these charges. The State's lone witness,
Buncombe County Sheriff's Deputy T. K. Bradley (Deputy Bradley),
testified that around dusk on 4 May 2000 he observed defendant
operating a vehicle with a burned-out headlight on Deaverview Road
in Asheville. Deputy Bradley pulled behind defendant in his marked
patrol car, entered defendant's license plate number into his
computer, and determined that the plate was not registered to
defendant's vehicle. Deputy Bradley followed as defendant turned
onto Hi-Alta Avenue, and their speeds increased to “right at
seventy and eighty miles per hour” through a “very highly populated
residential area” with a posted speed limit of thirty miles per
hour. As their speeds increased, Deputy Bradley activated his bluelights and siren and attempted to pull defendant over. Defendant
responded by running a four-way stop on Hi-Alta Avenue and turning
right onto Central Avenue, then left onto Hemlock Lane. Deputy
Bradley testified that these streets were curvy and “very narrow,”
with many cars parked along the roadside and with residences
“fairly close to the street,” and that defendant was “driving very
erratic[ly].” According to Deputy Bradley, he “slowed the [patrol]
car sideways,” “went off the edge of the roadway several times[,]”
and “almost hit several parked vehicles” while pursuing defendant.
At one point, defendant's car almost left the roadway while
rounding a sharp curve; Deputy Bradley testified that had it done
so, it would have crashed into a residence situated near the road.
After pursuing defendant for a total of “approximately eight-
to nine tenths of a mile[,]” Deputy Bradley testified that
defendant's vehicle ran out of gas on Hemlock Lane. Defendant
exited the vehicle and ignored Deputy Bradley's commands to place
his hands on the car, whereupon Deputy Bradley “had to wrestle him
for a few minutes” before placing defendant under arrest. A
subsequent search of defendant's person revealed four syringes and
a small bag of marijuana. Deputy Bradley determined that
defendant's driver's license had been revoked and also issued him
a citation for the misdemeanor offenses of displaying a fictitious
registration plate and resisting a public officer. This citation
was admitted into evidence at trial over defendant's objection, and
was later published to the jury, at the jury's request, duringdeliberations. Defendant stipulated at trial that his license had
been permanently revoked in 1997.
Defendant testified at trial that on the evening in question
he was returning home when he passed two patrol cars parked just
off Deaverview Road. Defendant testified that both of his
headlights were working and he was traveling thirty-five miles per
hour, yet he saw Deputy Bradley look at him and “knew he was coming
after me.” Defendant did not see Deputy Bradley behind him and did
not see any blue lights when he turned onto Hi-Alta Avenue, and he
denied running the four-way stop. As defendant proceeded around
the curves on Hi-Alta, he “might have got [sic] over thirty-five”
but his speed never reached fifty miles per hour, much less seventy
or eighty. Defendant testified that because of the curves and
hills it would be impossible to drive that fast on Hi-Alta. As
defendant was turning onto Central Avenue, the street on which he
lived, he saw Deputy Bradley's blue lights behind him for the first
time. At this point defendant's vehicle ran out of gas, and he
coasted down Central past his house and onto Hemlock Avenue, where
he pulled off the road. According to defendant, he coasted past
his house because he did not want his dying mother to see or hear
him being arrested. Defendant testified that despite exiting the
car with his hands straight up and obeying Deputy Bradley's
instructions, the deputy drew his service weapon, handcuffed him
and “grabbed me by the hair of my head and just slammed me down on
my car.” Defendant presented testimony at trial from three witnesses
who tended to corroborate various portions of defendant's
testimony. Clyde Bugg, defendant's neighbor, testified that he saw
defendant's car pass his house on the evening in question, followed
by a police car flashing its blue lights but without a siren. Bugg
also testified that he has never driven fast on Hi-Alta Avenue
because it is “too crooked.” Geraldine Austin, defendant's sister,
testified that she saw defendant's car pass the house on Central
Avenue she shared with defendant and their sick mother, followed by
a police car with blue lights on but no siren. Austin testified
that she witnessed her brother's arrest and that it occurred in
substantially the manner he described. Theresa Murphy, defendant's
niece, likewise testified that she was at defendant's house and saw
his car pass the house “going no more than twenty or thirty miles
an hour” followed by a police car with blue lights activated, but
no siren.
Defendant brings forth thirteen assignments of error and
argues that his habitual felon conviction should be vacated, and
that he should receive a new trial on the felony eluding arrest and
misdemeanor resisting a public officer charges. For the reasons
discussed below, we agree.
Defendant assigns error to the admission into evidence, and
subsequent publication to the jury, of the citation Deputy Bradley
issued to defendant for resisting a public officer and displaying
a fictitious registration plate. Defendant interposed a timely
objection to both the admission and publication of this citation;the trial court overruled defendant's objections, admitted the
citation, and allowed its publication to the jury without a
limiting instruction. On appeal, defendant argues that the trial
court's actions were analogous to admitting an indictment into
evidence and publishing it to the jury and were therefore
prohibited by N.C. Gen. Stat. § 15A-1221(b), and that these errors
precluded defendant from receiving a fair trial. We agree.
Section 15A-1221(b) of the North Carolina General Statutes
provides that “[a]t no time during the selection of the jury or
during trial may any person read the indictment to the prospective
jurors or to the jury.” N.C. Gen. Stat. § 15A-1221(b) (2001). Our
Supreme Court has articulated the rationale behind this prohibition
as follows: “The legislature apparently intended that jurors not
be given a distorted view of the case before them by an initial
exposure to the case through the stilted language of indictments
and other pleadings.” State v. Leggett, 305 N.C. 213, 218, 287
S.E.2d 832, 836 (1982) (emphasis added); see also State v. Flowers,
347 N.C. 1, 35, 489 S.E.2d 391, 411 (1997), cert. denied, 522 U.S.
1135, 140 L. Ed. 2d 150 (1998).
In the case at bar, the citation stated in pertinent part
that:
The undersigned officer has probable cause to believe
that on or about [4 May 2000] . . . the named defendant
did unlawfully and willfully operate a (motor) vehicle on
a (street or highway) . . . [while] display[ing] a
registration plate number knowing the same to be
fictitious . . . and . . . the named defendant did
unlawfully and willfully resist, delay or obstruct a
public officer in discharging or attempting to discharge
a duty of his office[,] to wit: fighting with officer andarguing while being taken into custody after fleeing from
officer in a vehicle pursuit.
Moreover, the following language appeared in a section of the
citation entitled “MAGISTRATE'S ORDER-MISDEMEANOR ONLY[:]”
The named defendant has been arrested without a warrant
and there is probable cause for the defendant's detention
on the stated charges. This Magistrate's Order is issued
upon information furnished under oath by the named
officer.
Finally, in a section of the citation entitled “COURT USE ONLY” a
handwritten instruction to “Transfer to S. Crt[.] w/ related fel[.]
case” appears, under signature of District Court Judge Pope.
We hold that N.C. Gen. Stat. § 15A-1221(b), and our Supreme
Court's interpretation of the statute as a means of protecting
jurors from being influenced by “the stilted language of
indictments and other pleadings[,]” render the admission and
publication of the instant citation erroneous. Leggett, 305 N.C.
at 218, 287 S.E.2d at 836. We are mindful of our legislature's
provision that a citation may serve as the State's pleading in all
criminal cases save those initiated in the superior court division.
N.C. Gen. Stat. § 15A-921 (2001); N.C. Gen. Stat. § 15A-923(a)
(2001). While a citation is not an indictment, we find no
distinction between the potential for prejudice resulting from the
language of this citation and that found in “indictments and other
pleadings.”
The citation in the case sub judice contains much of the same
“stilted language” commonly found in indictments and pleadings. In
fact, the language used in this citation is almost identical to
that employed in defendant's later indictment for these offenses. The citation states there is “probable cause to believe” defendant
“did unlawfully and willfully operate” his car with a fictitious
registration plate, and that he resisted, delayed or obstructed “a
public officer in discharging or attempting to discharge a duty of
his office” by fighting and arguing with Deputy Bradley “while
being taken into custody after fleeing from [an] officer in a
vehicle pursuit.”
We hold that the citation's recitation of the charges against
defendant, phrased in the “stilted” language commonly found in
indictments, gave the jury a “distorted view” of the case against
defendant. We find it significant that the citation also contained
a signed portion entitled “MAGISTRATE'S ORDER-MISDEMEANOR ONLY”
stating “there is probable cause for the defendant's detention on
the stated charges[,]” as well as a section entitled “COURT USE
ONLY” with what appear to be instructions to transfer these
offenses to superior court along with the related felony eluding
arrest charge, since the jury could interpret these statements by
two different judicial authorities as conclusive evidence that
defendant is guilty of the offenses mentioned therein. This is
especially true where, as here, no limiting instruction was given.
We are not persuaded by the State's argument that admission of
the citation near the end of Deputy Bradley's direct examination,
and its publication at the jury's request only after deliberations
had begun, is not an “initial exposure to the case” and therefore
takes the citation outside the purview of N.C. Gen. Stat. § 15A-
1221(b) and Leggett. See Flowers, 347 N.C. at 35, 489 S.E.2d at411 (holding that the statute is applicable “during the jury
selection and guilt/innocence phases of criminal trials” and
“[o]nce a case has reached the sentencing proceeding after the
trial, fear that the jury's initial exposure to the case will
result in a distorted view is no longer a concern”).
Having concluded that the trial court erred by admitting the
citation into evidence and publishing it to the jury, we must now
determine whether the error was prejudicial and thus warrants a new
trial. The test for prejudicial error is whether there is a
“reasonable possibility that, had the error in question not been
committed, a different result would have been reached at the
trial[.]” N.C. Gen. Stat. § 15A-1443(a) (2001); State v. Frazier,
344 N.C. 611, 617, 476 S.E.2d 297, 300 (1996).
After a thorough review of the record, we find that defendant
has satisfied his burden of showing prejudicial error. The
evidence in this case, which consisted almost entirely of witness
testimony, was not overwhelmingly in favor of defendant's guilt on
either the speeding to elude arrest or resisting a public officer
charges. The State's lone witness, Deputy Bradley, presented a
very different account of what happened after defendant's car
passed him on Deaverview Road than did defendant and his three
witnesses. The jury's verdicts essentially turned on which account
the jury believed.
Section 20-141.5 of the North Carolina General Statutes
defines “speeding to elude arrest” as follows:
(a) It shall be unlawful for any person to operate a
motor vehicle on a street, highway, or public vehiculararea while fleeing or attempting to elude a law
enforcement officer who is in the lawful performance of
his duties. Except as provided in subsection (b) of this
section, violation of this section shall be a Class 1
misdemeanor.
(b) If two or more of the following aggravating factors
are present at the time the violation occurs, violation
of this section shall be a Class H felony.
. . .
(3) Reckless driving as proscribed by G.S. 20-140.
. . .
(5) Driving when the person's drivers license is
revoked.
N.C. Gen. Stat. § 20-141.5 (2001). Our General Statutes also
provide that “[i]f any person shall willfully and unlawfully
resist, delay or obstruct a public officer in discharging or
attempting to discharge a duty of his office, he shall be guilty of
a Class 2 misdemeanor.” N.C. Gen. Stat. § 14-223 (2001).
In convicting defendant of felony eluding arrest, the jury
obviously believed Deputy Bradley's testimony that defendant knew
he was being pursued by Deputy Bradley and that defendant drove
recklessly in attempting to elude him. Likewise, defendant's
conviction for resisting a public officer indicates the jury
believed Deputy Bradley's testimony that defendant was belligerent
and uncooperative when Deputy Bradley tried to arrest him. The
citation's language tended to corroborate Deputy Bradley's
testimony with respect to each charge. Moreover, the very fact
that it was issued by a police officer and contained comments
attributed to both a magistrate and a district court judge imbued
the citation with the imprimatur of the State, a circumstancelikely to give it undue influence with the jury. Given the almost
total reliance by both parties in this case on testimonial
evidence, and the conflicting nature of that testimony, we find it
reasonably possible that the citation's improper admission and
publication was a factor in the jury believing Deputy Bradley's
testimony, thus tipping the scales in favor of conviction on the
resisting a public officer and felony eluding arrest charges.
Accordingly, we hold that defendant is entitled to a new trial on
the felony eluding arrest and misdemeanor resisting a public
officer convictions.
Next, we turn to defendant's conviction for having habitual
felon status, which was predicated on defendant's conviction on the
felony eluding arrest charge. It is well settled that:
[t]he only reason for establishing that an accused is an
habitual felon is to enhance the punishment which would
otherwise be appropriate for the substantive felony which
he has allegedly committed while in such a status. . . .
Being an habitual felon is not a crime but is a status
the attaining of which subjects a person thereafter
convicted of a crime to an increased punishment for that
crime. The status itself, standing alone, will not
support a criminal sentence.
State v. Allen, 292 N.C. 431, 435, 233 S.E.2d 585, 588 (1977)
(citations omitted). Since we hold that defendant is entitled to
a new trial on the felony eluding arrest charge, which served as
the “substantive felony” underlying his conviction for having
habitual felon status, defendant's habitual felon conviction must
be vacated.
Because we hold that defendant is entitled to a new trial on
his convictions for felony eluding arrest (00 CRS 56218) andresisting a public officer (00 CRS 56219), and that defendant's
conviction for having habitual felon status (01 CRS 0070) must be
vacated, we do not address defendant's remaining assignments of
error.
New trial in part; vacated in part.
Judges HUNTER and BRYANT concur.
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