State v Murray, (02-653) 04/01/2003

Appeal by defendant from judgment entered 10 January 2002 by Judge L. Todd Burke in Superior Court, Guilford County. Heard in the Court of Appeals 12 March 2002.

Attorney General Roy Cooper, by Assistant Attorney General Emery E. Milliken, for the State.

Robert W. Ewing, for the defendant-appellant.

    WYNN, Judge.

    Defendant Adrian Devon Murray appeals (1) his conviction for common law robbery, and (2) his guilty plea to a habitual felon status. He contends the trial court committed plain error by permitting him to proceed pro se without complying with the statutory mandates of N.C. Gen. Stat. § 15A-1242 (2002), and by denying his motions to suppress evidence and identification testimony. Furthermore, Murray contends the trial court erred, and his guilty plea to habitual felon status should be vacated, because the trial court failed to comply with N.C. Gen. Stat. § 15A-1022. After carefully reviewing the record, we find no error.
    At trial, the State's evidence tended to show that on 2 December 2000, Ms. Oteal Brock, while working as a manager at RackRoom Shoe Store in High Point, North Carolina, noticed a young male with a backpack outside the store window. When the man entered the store, Ms. Brock thought it suspicious that he left his backpack on the sidewalk. As the man walked down an aisle, Ms. Brock formed the opinion that he might attempt to steal a pair of shoes. Accordingly, Ms. Brock picked up the telephone to call the authorities. However, as she was placing the call, the man brandished a pistol and told her, “hang up the phone . . . . Give me the money, I don't want to hurt you, I have a gun.” Ms. Brock gave the man the cash in the register, and the man ran from the store.
    Ms. Brock called the police, and she described the assailant as an African-American male, wearing a tan hat, blue jeans, and a ball cap. Officer Terrence Garrison arrived at the scene within minutes. As he patrolled the surrounding area, Officer Garrison observed the defendant in a local bar. After back-up arrived, the defendant was taken outside and frisked. At that time, Officer Garrison noticed black paint, and an imprint of a handgun's butt, on defendant's abdomen. Officer Garrison cuffed defendant, and entered the bar to retrieve defendant's backpack.
    Officer Garrison testified that he searched the backpack, without a warrant, because defendant had brandished a gun and the officer was concerned for his safety. From the backpack, Officer Garrison recovered a plastic pistol painted black, a pair of blue jeans, and a can of black spray paint. Thereafter, defendant, within five to twenty minutes of allegedly robbing the store, wasdriven back to the Rack Room in a police cruiser. Ms. Brock, and another employee, identified defendant as the assailant and later testified, without objection, that they had no doubt that defendant was the robber.
    In pretrial proceedings, defendant made motions to suppress (1) the items seized from his backpack, and (2) his pretrial identification by the employees of the Rack Room. These motions were denied. Thereafter, defendant made a request to proceed pro se. Initially, the trial court denied this request. Ultimately, the trial court permitted defendant to proceed pro se. At the trial's conclusion, the jury returned a guilty verdict. Thereafter, defendant pled guilty on the habitual felon charge. The trial court sentenced defendant in the presumptive range to a minimum of 96 months and to maximum of 125 months. Defendant appeals.
                I.    Proceeding Pro Se
    By his first three assignments of error, defendant contends the trial court committed plain error by not complying with the statutory mandate of N.C. Gen. Stat. § 15A-1242 in allowing him to proceed pro se. We disagree.
    “A criminal defendant's right to representation by counsel in serious criminal matters is guaranteed by the Sixth Amendment to the United States Constitution and Article I, §§ 19, 23 of the North Carolina Constitution.” State v. Hyatt, 132 N.C. App. 697, 702, 513 S.E.2d 90, 94 (1999) (citing Gideon v. Wainwright, 372 U.S. 335 (1963)). “It is well-settled that a criminal defendantcan waive his right to be represented by counsel so long as he [or she] voluntarily and understandingly does so.” Hyatt, 132 N.C. App. at 700, 513 S.E.2d at 93 (citation omitted). To insure that this right is secured in a voluntary and knowing manner, the North Carolina General Assembly enacted N.C. Gen. Stat. § 15A-1242, which provides:
        A defendant may be permitted at his election to proceed in the trial of his case without the assistance of counsel only after the trial judge makes thorough inquiry and is satisfied that the defendant: (1) Has been clearly advised of his right to the assistance of counsel, including his right to the assignment of counsel when he is so entitled; (2) Understands and appreciates the consequences of this decision; and (3) Comprehends the nature of the charges and proceedings and the range of permissible punishments.

“The provisions of this statute are mandatory and failure to conduct this inquiry constitutes prejudicial error.” Hyatt, 132 N.C. App. at 703, 513 S.E.2d at 94 (citing State v. Godwin, 95 N.C. App. 565, 572, 383 S.E.2d 234, 238 (1989)). Accordingly, “[t]he record must reflect that the trial court is satisfied regarding each of the three inquiries listed in the statute.” State v. Stanback, 137 N.C. App. 583, 586, 529 S.E.2d 229, 230 (2000) (citing State v. Callahan, 83 N.C. App. 323, 324, 350 S.E.2d 128, 129 (1986), disc. review denied, 319 N.C. 225, 353 S.E.2d 409 (1987)).
    In the case sub judice, defendant concedes that the trial court satisfied the first two prongs of Section 15A-1242. However, defendant argues “the record does not indicate that the trial court made any inquiry to satisfy itself that defendant comprehended 'thenature of the charges and proceedings and the range of permissible punishments.'” Consequently, defendant requests a new trial.
    However, the record reflects that the trial court made the defendant aware of the nature of the charges, proceedings, and the range of permissible punishments. For instance, before defendant requested to proceed pro se, the trial court made the following statement to defendant with respect to a plea offered by the State:
    Court:    You are facing a possible sentence of 116 months. That's all I want you to be certain of that . . . if you do not prevail . . . you could today . . . be facing another 116 month sentence.

The substance of this statement was reiterated to defendant on numerous occasions. The trial court attempted to dissuade defendant from proceeding pro se, and expressly advised him of the possible punishments if he did not accept the State's plea. Although this discussion occurred prior to the trial court's decision to allow defendant to proceed pro se, this does not invalidate the inquiry. See State v. Carter, 338 N.C. 569, 451 S.E.2d 157 (1994) (holding that neither case law nor statute “set forth any specific guidelines relating to how the statutorily mandated inquiry must proceed. Rather, the critical issue is whether the statutorily required information has been communicated in such a manner that defendant's decision to represent himself is knowing and voluntary”). In the present case, it is eminently clear that the trial court complied with statutory mandate and, moreover, that defendant's waiver was knowing and voluntary. Accordingly, the associated assignments of error are without merit.
                II.    Evidentiary Rulings
    Next, defendant contends the trial court committed plain error by denying his motions (1) to suppress evidence, and (2) to suppress identification testimony.   (See footnote 1) After carefully reviewing the record, we find no error.
    The plain error rule provides “that errors or defects affecting substantial rights may be addressed even though they were not brought to the attention of the trial court.” State v. Cummings, 346 N.C. 291, 313, 488 S.E.2d 550, 563 (1997). This Court, as well as our Supreme Court, “review such unpreserved issues for plain error when Rule 10(c)(4) of the Rules of Appellate Procedure has been complied with and when the issue involves either errors in the trial judge's instructions . . . or rulings on the admissibility of evidence.” Id. Under plain error analysis, however, our standard of review is limited to whether:
        it can be said the claimed error is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done, or where [the error] is grave error which amounts to a denial of a fundamental right of the accused,or the error has resulted in a miscarriage of justice or in the denial to appellant of a fair trial.

State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (emphasis omitted) (citations omitted). In examining the record in this case, we find no plain error in the trial court's denial of defendant's suppression motions.
    First, defendant contends the trial court committed plain error in denying his motion to suppress the contents of his backpack. However, pursuant to the United States Supreme Court's analysis Terry v. Ohio, 392 U.S. 1 (1968), and this Court's analysis in State v. Braxton, 90 N.C. App. 204, 208, 368 S.E.2d 56, 59 (1988), the “so-called 'stop and frisk' rule allows an officer investigating suspicious behavior by an individual at close range to determine whether the suspicious person is armed and to neutralize any threat if the officer has a reasonable belief that the suspect is armed or presently dangerous.” At the suppression hearing, and in the trial court's findings of facts denying defendant's motion, the Court heard testimony from Officer Garrison that he searched the bag because he was still concerned for his safety since defendant purportedly brandished a gun during the robbery. This is competent evidence. Accordingly, without even entering a plain error analysis, the trial court's findings of fact are binding on appeal. State v. Turner, 305 N.C. 356, 361, 289 S.E.2d 368, 371 (1982). Therefore, this assignment of error is without merit.
    Second, defendant assigns plain error to the trial court'sdenial of his motion to suppress the pretrial identification of the defendant based upon a “show up” procedure. Although this Court, as well as our Supreme Court, has expressed extreme disconcert with “show up” procedures, a review of the record does not indicate error.
    “Even though a pretrial procedure is found to be unreliable, an in-court identification of independent origin is admissible.” State v. McMillian, 147 N.C. App. 707, 711, 557 S.E.2d 138, 142 (2001). “If shown that the pretrial identification procedures were so suggestive as to create a very substantial likelihood of irreparable misidentification, the in-court identification evidence must be suppressed.” Id. “Our Supreme Court [has] identified several factors to determine the existence of irreparable misidentification: (1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witness' degree of attention, (3) the accuracy of the witness' prior description of the perpetrator, (4) the level of certainty demonstrated by the witness at the confrontation, and (5) the length of time between the crime and the confrontation.” Id. (citing State v. Powell, 321 N.C. 364, 368-69, 364 S.E.2d 332, 335 (1988)).
    In the case sub judice, defendant argues the trial court failed to make the appropriate findings of fact to determine the substantial likelihood of misidentification. This argument lacks merit. The trial court made the following findings of fact: (1) the witnesses had the opportunity to view the defendant for “some time” while he was in the store; (2) the employees were attentiveto defendant's actions because “one of the attendants felt that he was going to seize [a pair of] shoes and run out with them”; (3) that although “defendant's attire did not meet the description given by the witnesses, [the] description of his face, his size, [and] height [were] consistent”; and (4) that the witnesses “were quite confident” that defendant was the culprit. Moreover, the undisputed evidence in the record is that the time between the crime and confrontation was less than twenty minutes. Accordingly, the trial court did make the appropriate findings of fact, and, consequently, this assignment of error is overruled.
                III.    Guilty Plea
    Finally, defendant contends the trial court erred by sentencing him as a habitual felon because the record does not reflect the trial court's compliance with N.C. Gen. Stat. § 15A- 1022 in ascertaining whether he was aware of the consequences of his alleged guilty plea.   (See footnote 2) Accordingly, defendant requests thisCourt to vacate his guilty plea.
    Prior to accepting a guilty plea, N.C. Gen. Stat. § 15A-1022 provides that:
        [A] superior court judge may not accept a plea of guilty or no contest from the defendant without first addressing him personally and: (1) Informing him that he has a right to remain silent and that any statement he makes may be used against him; (2) Determining that he understands the nature of the charge; (3) Informing him that he has a right to plead not guilty; (4) Informing him that by his plea he waives his right to trial by jury and his right to be confronted by the witnesses against him; (5) Determining that the defendant, if represented by counsel, is satisfied with his representation; [and] (6) Informing him of the maximum possible sentence on the charge for the class of offense for which the defendant is being sentenced, including that possible from consecutive sentences, and of the mandatory minimum sentence, if any, on the charge. . . .

This Court, however has held that:
        [Simply] because the trial court failed to comply with the strict statutory requirements does not entitle defendant to have his plea vacated. Defendant must still show that he was prejudiced as a result. N.C. Gen. Stat. § 15A-1443(a). . . . In analyzing the prejudicial error standard, our courts have “refused to adopt a technical, ritualistic approach” in the context of section 15A-1022 violations. State v. Richardson, 61 N.C. App. 284, 289, 300 S.E.2d 826, 829 (1983). Instead, we must look to the totality of the circumstances and determine whether non-compliance with the statute either affected defendant's decision to plead or undermined the plea's validity. Williams, 65 N.C. App. [472,] 481, 310 S.E.2d [83, 88 (1983)].

State v. Hendricks, 138 N.C. App. 668, 669-70, 531 S.E.2d 896-98 (2000).    Even assuming that the trial court did not comply precisely with statutory mandate, the totality of the circumstances in the record reflect a knowing, voluntary, and valid guilty plea. The trial court and defendant undertook lengthy discussions pertaining to a plea agreement offered to the defendant by the State. For over twenty pages in the trial transcript, the trial court sought to dissuade defendant from proceeding with a trial or proceeding pro se. Within these discussions, the trial court informed defendant of his right to a jury, the sentence he could face as a habitual felon, defendant's prior record level, and more. Defendant's argument that the trial court did not comply with Section 15A-1022 is without merit. Accordingly, the associated assignments of error are overruled.
    No Error.
    Judges TIMMONS-GOODSON and LEVINSON concur.
    Report per Rule 30(e).

Footnote: 1