State v Gordon, 156 NC App 698 (02-140) 03/18/2003

Appeal by defendant from judgment entered 13 August 2001 by Judge Marcus Johnson in Gaston County Superior Court. Heard in the Court of Appeals 21 January 2003.

Attorney General Roy Cooper, by Special Deputy Attorney General Karen E. Long, for the State.

Robert T. Newman, Sr., for defendant appellant.

    McCULLOUGH, Judge.

    Defendant Christopher O'Neal Gordon was indicted on the charges of assault with a deadly weapon inflicting serious injury (98 CRS 5415), robbery with a dangerous weapon (98 CRS 5411) and first degree kidnapping (98 CRS 5414) on 4 May 1998. Defendant was also indicted as an habitual felon on 7 May 1998 (01 CRS 11115), based on the underlying assault with a deadly weapon inflicting serious injury charge. Defendant's trial began on 8 August 2001 during the 6 August 2001 Criminal Session of Gaston County Superior Court.
    These charges arose out of an incident that took place on 31 December 1997. The evidence at trial tended to show that on this date, Hue Luu was sitting in his car near the home of hisgirlfriend. An ex-boyfriend of Mr. Luu's girlfriend had stopped by her house, and his girlfriend asked him to step out for a little while. Mr. Luu had been watching her house for approximately twenty minutes when a man, later identified as defendant, approached the driver's side of his car from behind. Defendant asked Mr. Luu to roll down the window, which he did. Defendant asked Mr. Luu if he had any money and at some point showed Mr. Luu a gun defendant had in his possession.
    Defendant told Mr. Luu to get out of his car, which he did. Defendant asked Mr. Luu if he was a “cop or FBI.” Mr. Luu indicated he was not. Defendant then hit Mr. Luu on the head with the gun, causing Mr. Luu to drop his car keys and what little money he had on him. Defendant then forced Mr. Luu to a nearby house. After some conversation and physical threats lasting from 45 minutes to an hour, defendant shot Mr. Luu in the left leg, and then went and laid down in a bedroom. Mr. Luu ran out of the house, found his spare key to his car, and attempted to drive away. However, Mr. Luu passed out from his wound and crashed into a fence.
    The robbery with a dangerous weapon charge in 98 CRS 5411 was amended to an attempt charge. On 13 August 2001, the jury found defendant not guilty of attempted robbery with a dangerous weapon. The jury further found defendant not guilty of first degree kidnapping, but guilty of the lesser included offense of false imprisonment in 98 CRS 5414. The jury did find defendant guilty of assault with a deadly weapon inflicting serious injury in 98 CRS5415. Defendant was then tried on the habitual felon indictment and found guilty. The convictions were consolidated (with each other and previous convictions of defendant from April of 2001, and defendant was sentenced to a minimum of 135 months and a maximum of 171 months. Defendant appeals.
    Defendant makes numerous assignments of error and presents the following questions on appeal: Did the trial court commit reversible error by (I) denying defendant's speedy trial motions and motion to dismiss, as defendant was in Department of Corrections custody at the time he filed his speedy trial motion and was not tried within six months as required by N.C. Gen. Stat. § 15A-711(c) (2001); (II) admitting into evidence the photo identification line-ups which included defendant, and admitting testimony concerning defendant's inclusion in one of the line-ups, the use of three photo line-ups to identify defendant, the in-court identification of defendant, and other inadmissible testimony concerning the photo line-ups, over defendant's objections and without limiting instructions, and after denying defendant's motions to suppress and for a mistrial; (III) admitting into evidence, over defendant's objections, exhibits (1-18) and allowing a witness to use such in his testimony without a proper foundation and limiting instruction that they were for illustrative purposes only; (IV) not dismissing defendant's conviction as an habitual felon, as there was no inquiry as to whether defendant was indigent at prior criminal proceedings used to declare him an habitual felon, and if so, whether he was represented by counsel or ifrepresentation by counsel was properly waived, as required by N.C. Gen. Stat. § 14-7.1 (2001); (V) denying defendant's motion to dismiss and speedy trial motion for failure of the State to try defendant on the habitual felon indictment within the time period required by N.C. Gen. Stat. § 15A-711(c); and (VI) convicting defendant as an habitual felon, as that statute is unconstitutional under both State and Federal Constitutions?

    Defendant's first assignment of error was to the trial court's denial of his motions to dismiss.
    While serving time on unrelated charges, defendant made a pro se motion to dismiss all charges pending against him on 1 October 2000 based upon a violation of his right to a speedy trial pursuant to N.C. Gen. Stat. § 15A-954(a)(3) (2001). This motion was heard on 2 November 2000, at which defendant was represented by counsel. In the 6 November 2000 order denying defendant's motion to dismiss, the trial court found that there had been several problems between defendant and his numerous attorneys that had a direct effect on the scheduling of his trial. The trial court found that the “defendant has not suffered a denial of his right to a speedy trial as a result of any action or lack thereof by the State of North Carolina,” and ordered that defendant's current counsel and the district attorney “meet and select a date for the trial[.]”
    Defendant was tried on some of his pending charges on 30 April 2001. These were unrelated to the charges on appeal, as they arose out of other circumstances. He was convicted of those charges. Apparently, as defendant alleged, the assistant district attorney was not planning on trying defendant on the current charges until defendant elected to appeal his convictions of 30 April. Yet there was no formal agreement on the record to dismiss, and the charges remained pending.
    Defendant, through counsel, on 6 August 2001 made another motion to dismiss the charges for violation of speedy trial. At the hearing of this motion on 7 August 2001, defendant, through counsel, apparently argued that the State had violated N.C. Gen. Stat. § 15A-711(c), though not by name. The trial court noted that no motion for consolidation was made as to the pending charges in the 30 April 2001 trial, and denied the motion as he found that defendant had suffered no undue prejudice. On 8 August 2001, defendant, through counsel, renewed his earlier motion based on delay, which was also denied. We note that both of these motions are properly before this Court.
    Defendant argues in his brief only that defendant's rights under N.C. Gen. Stat. § 15A-711(c) have been violated, and the trial court erred by not dismissing the charges. We cannot agree.
    The problem with defendant's argument is that there are two different rights to a speedy trial being discussed. First, there is the constitutional right to a speedy trial. N.C. Gen. Stat. § 15A-954(a)(3) codifies a defendant's Sixth Amendment right to a speedy trial by stating:
            (a) The court on motion of the defendant must dismiss the charges stated in a criminal pleading if it determines that:
            . . . .

            (3)    The defendant has been denied a speedy trial as required by the Constitution of the United States and the Constitution of North Carolina.

Id.
        [Our Supreme] Court has held that four interrelated factors must be considered and balanced in deciding whether a defendant's Sixth Amendment right to a speedy trial has been violated. These factors are: “(1) the length of the delay, (2) the reason for the delay, (3) the defendant's assertion of his right to a speedy trial, and (4) prejudice resulting from the delay.”

State v. Pickens, 346 N.C. 628, 649, 488 S.E.2d 162, 174 (1997) (quoting State v. McCollum, 334 N.C. 208, 231, 433 S.E.2d 144, 156 (1993)).
    Second, North Carolina provides a statutory right to a speedy trial, codified in N.C. Gen. Stat. § 15A-711(c). This statutory right is as follows:
            A defendant who is confined in an institution in this State pursuant to a criminal proceeding and who has other criminal charges pending against him may, by written request filed with the clerk of the court where the other charges are pending, require the prosecutor prosecuting such charges to proceed pursuant to this section. A copy of the request must be served upon the prosecutor in the manner provided by the Rules of Civil Procedure, G.S. 1A-1, Rule 5(b). If the prosecutor does not proceed pursuant to subsection (a) [prosecutor must procure confined defendant's presence for trial] within six months from the date the request is filed with the clerk, the charges must be dismissed.

N.C. Gen. Stat. § 15A-711(c).     While these rights are similar, they address entirely different interests and are mutually exclusive. The constitutional right to a speedy trial entails a factual determination focusing on prejudice to a defendant. The statutory right to a speedy trial is much more definitive. When a confined defendant notifies the appropriate clerk of court and prosecutor that he or she wishes to have all pending charges dealt with, the prosecutor must request the defendant be released for no more than 60 days to the appropriate local law enforcement officer for purposes of trial within six months of the request. N.C. Gen. Stat. § 15A-711(a). If the defendant is not tried within this eight-month window, the charges “must” be dismissed. State v. Dammons, 293 N.C. 263, 266- 67, 237 S.E.2d 834, 837-38 (1977).
    Thus, to avail himself of the statutory right, a defendant must specifically invoke its provisions. Indeed, we have held previously that a defendant's “motion and request for dismissal of charge” was not the equivalent of a request to proceed under N.C. Gen. Stat. § 15A-711. State v. Davis, 66 N.C. App. 137, 140, 310 S.E.2d 424, 426, cert. denied, 311 N.C. 765, 321 S.E.2d 148 (1984).
    In the present case, defendant did not invoke the statutory right under N.C. Gen. Stat. § 15A-711(c), and is therefore not entitled to relief thereunder. Nor do we consider defendant's motion to dismiss the equivalent of such a motion. See id. This assignment of error is overruled.

    Defendant next makes numerous arguments involving thephotographic exhibits used by the State and accompanying testimony. We deal with all of them here.
    Initially, defendant made a motion to suppress the in-court identification of defendant by the victim. The thrust of this motion was that the victim was unable to identify defendant based upon the observations he made on the night of the alleged offense. The trial court denied this motion, ruling that the victim's identification was based on actual observation. Defendant states that this was error and that the line- up was impermissibly suggestive. Defendant does not argue this issue in his brief and cites no legal authority. Indeed the line-ups are not part of the record. However, reviewing the record and transcript, we find no error in the order denying defendant's motion to suppress on the grounds that the victim based his in-court identification on his actual observation. We deem any other objections to this ruling as abandoned. N.C.R. App. P. 28(6) (2003).
    During the trial, defendant objected to the introduction of the photographic line-ups by the State. These were the photo line- ups that were shown to the victim. Two of the line-ups did not include defendant, the third and final line-up did. The photos of defendant and another person had their names on the backs of them, and defendant's photo also had the word “suspect.” The trial court redacted the writing with tape and then allowed the pictures to be published to the jury. Defendant now apparently argues that the redaction was never explained during testimony, and thus could be misconstrued by the jury. Again, the argument by defendant on thisissue fails to cite any legal authority and is deemed abandoned. In any event, we see no evidence of any prejudice to defendant.
    During the testimony of Detective Arndt, the State was focusing on the exchanges between the detective and the victim when the victim was shown the photo line-ups. As stated before, the first two line-ups shown to the victim did not include defendant. The third line-up did include defendant. When asked why a picture of defendant was included in the third line-up, the detective responded, “Because of some information that I had received.” Defendant objected to this statement and made a motion to strike. The objection was sustained and the motion to strike was granted. Later, however, defendant made a motion for a mistrial, claiming that the damage was already done and could not be corrected. In addition, there was not an accompanying instruction to the jury to ignore the stricken testimony. This argument has no merit. The trial court sustained his objection and granted the motion to strike. The jury was instructed at the beginning of the trial to disregard stricken testimony. There was no prejudice to defendant by the jury hearing the statement regardless, as they could reasonably infer that the detective had some reason for including defendant's photograph.
    Finally, defendant argues that the photo line-ups and all other photographs used by the State were admitted without proper foundation. Defendant argues that the witnesses never testified that the photos would illustrate their testimony, and it was never specifically stated that the photographs were being admitted forillustrative purposes only. See State v. Lee, 348 N.C. 474, 492-93, 501 S.E.2d 334, 346 (1998). After reviewing the transcript, we agree with the trial court that the photographic evidence was admissible as illustrative of the victim's testimony. N.C. Gen. Stat. § 8-97 (2001).
    These assignments of error are overruled.

    Next, defendant contends that the trial court erred by not dismissing his conviction as an habitual felon. Defendant argues the trial court failed to make an inquiry as to whether he had proper representation at the prior criminal proceedings which resulted in the convictions used to establish his habitual felon status. Defendant relies on State v. Canipe, 64 N.C. App. 102, 306 S.E.2d 548 (1983), in which this Court stated:
            Before prior convictions may properly be considered, the trial court must determine whether the defendant was indigent at the prior proceeding, and if so, whether he was represented by counsel or properly waived assistance. . . . In the recent case of State v. Thompson, it was decided that it was up to the State to show that the defendant was not indigent or that he had waived counsel at the time of his prior conviction.

Id. at 106, 306 S.E.2d at 551.
    Our review of the Habitual Felons Act and accompanying case law does not reveal such a requirement. N.C. Gen. Stat. § 14-7.1 sets forth the necessary requirements and qualifications for felony convictions that can be used to establish one's status as an habitual felon. N.C. Gen. Stat. § 14-7.4 (2001) sets forth theprocedure for proving those prior convictions. A requirement that the trial court make an inquiry as to the representation of the defendant in those prior convictions is not included within these statutes nor the rest of the act. We note that the procedures set forth in N.C. Gen. Stat. §§ 14-7.1 through -7.6 comport with defendant's federal and state constitutional rights. See State v. Todd, 313 N.C. 110, 117-18, 326 S.E.2d 249, 253 (1985), cert. dismissed, 547 S.E.2d 39 (2001).
    Further, the Canipe case is not controlling in this case. That case dealt with a provision from the Fair Sentencing Act which has been repealed. See N.C. Gen. Stat. § 15A-1340.4(e) (repealed 1993) (dealing with trial court responsibilities when aggravating a sentence by use of prior convictions). Its protections were not carried over into the Structured Sentencing Act. See N.C. Gen. Stat. § 15A-1340.16 (2001). If a defendant wishes to challenge the use of a prior conviction on the basis that it was obtained in violation of his right to counsel, he may do so at the trial level via a motion to suppress under N.C. Gen. Stat. § 15A-980 (2001). The onus is upon the defendant under this procedure. “Where a defendant stands silent and, without objection or motion, allows the introduction of evidence of a prior conviction, he deprives the trial division of the opportunity to pass on the constitutional question and is properly precluded from raising the issue on appeal.” State v. Thompson, 309 N.C. 421, 426, 307 S.E.2d 156, 160 (1983); see also State v. Turner, 103 N.C. App. 331, 337, 406 S.E.2d 147, 150 (1991).     Defendant did not raise this objection below, and thus this assignment of error is overruled.