NO. COA02-765
Appeal by defendant from judgment entered 1 March 2001 by
Judge A. Moses Massey in Guilford County Superior Court. Heard in
the Court of Appeals 25 March 2003.
Attorney General Roy Cooper, by Assistant Attorney General
John G. Barnwell, for the State.
Donald E. Gillespie, Jr., for defendant-appellant.
MARTIN, Judge.
Defendant appeals from a judgment imposing a sentence of life
imprisonment without parole entered upon jury verdicts finding him
guilty of assault with a deadly weapon with intent to kill
inflicting serious injury and of being a violent habitual felon.
The convictions arose out of an incident which occurred 15 July
2000 when defendant cut Judy Rickard's throat.
The State's evidence tended to show that Judy Rickard was
defendant's girlfriend; on the date in question defendant went to
the home where Ms. Rickard lived with her elderly father, arriving
at approximately 11:30 p.m. Ms. Rickard, who had already gone to
bed, went out on the front porch, where the two argued about their
relationship for approximately half an hour. Defendant asked Ms.
Rickard to take him home; she refused because he was intoxicated. She testified that defendant pushed her down into a bush by the
front porch and then “started cutting [her] throat” with a knife
which he took from his pocket. Ms. Rickard was transported to the
emergency room where she received stitches to close the wound to
her neck. Her treating physician testified that the wound would
have been fatal had it been a few millimeters deeper. Ms. Rickard
testified she was unarmed at the time of the altercation.
Defendant testified, admitting that he had cut Ms. Rickard's
throat with a knife, but that he had done so in self-defense.
Defendant testified that when he arrived at Ms. Rickard's house,
she came out the front door, and “came toward [him] and it appeared
like she had a revolver or a gun or something in her hand.”
Defendant testified that he instructed Ms. Rickard to put the
weapon down, but that she pointed it at his chest, and he
“reacted,” and “smacked her hand and . . . cut her.” Defendant
testified he was “[b]eing cautious” because he knew that
approximately 21 years ago, Ms. Rickard shot and killed her
husband.
The State introduced into evidence certified copies of
defendant's prior convictions, including an April 1974 conviction
for assault with a deadly weapon inflicting serious injury, and a
March 1976 plea of guilty to the charge of second degree murder,
which defendant testified occurred while he was in prison.
Though defendant references both the first and second
assignments of error contained in the record on appeal followingthe first question stated in his brief, as required by N.C.R. App.
P. 28(b)(6), the argument addresses only his second assignment of
error. Accordingly, because no argument has been advanced in
support of the first assignment of error, it is deemed abandoned.
See N.C.R. App. P. 28(a).
In his second assignment of error, defendant assigns error to
the admission into evidence of certified copies of his prior
convictions under G.S. § 14-7.10, “rather than as exceptions to the
hearsay rule.” G.S. § 14-7.10 provides that records of prior
convictions of violent felonies are admissible in evidence for the
purpose of establishing that the person named therein has been
previously convicted of violent felonies. The statute specifically
provides,
inter alia:
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 (2001). Defendant concedes in his brief
that the State produced the necessary evidence of his prior
convictions, and that although he had the opportunity to do so,
“defendant offered no evidence to rebut the prima facie case
against him.” Defendant has offered no argument or authority in
support of his assertion that the trial court erred in admitting
the certified copies of his prior convictions under G.S. § 14-7.10.
His assignment of error to the contrary is overruled.
By his third and fourth assignments of error, defendantcontends the indictment charging him with being a violent habitual
felon was fatally flawed due to an error in the date of the
predicate felony, and that the trial court erred in allowing the
State to strike the erroneous date from the indictment. Defendant
argues the indictment was fatally flawed because although it
correctly listed the date of the predicate offense as 15 July 2000
at the top of the indictment, the last sentence of the indictment
listed the date of the offense as 18 January 1999. The trial court
allowed the State's motion to strike the last sentence of the
indictment, finding that the sentence was “surplusage, and
unrelated to the above content of the indictment.” The trial court
also noted that defendant could not have been prejudiced by the
erroneous date because the indictment contained all necessary
elements and pertained to a status as opposed to the events of a
certain date. We agree.
G.S. § 14-7.9 provides in relevant part:
The indictment charging the defendant as a
violent habitual felon shall be separate from
the indictment charging the defendant with the
principal violent felony. An indictment that
charges a person with being a violent habitual
felon must set forth the date that prior
violent felonies were committed, the name of
the state or other sovereign against whom the
violent felonies were committed, the dates of
convictions of the violent felonies, and the
identity of the court in which the convictions
took place.
N.C. Gen. Stat. § 14-7.9 (2001). The statute contains no
requirement that reference be made, in the violent habitual felon
indictment, to the predicate substantive felony.
See State v.
Patton, 342 N.C. 633, 636, 466 S.E.2d 708, 710 (1996) (interpretingidentical language in G.S. § 14-7.3, providing requirements for
habitual felon indictment); s
ee also 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).
The violent habitual felon indictment in the present case
complied with all requirements of G.S. § 14-7.9; it was a separate
indictment from the principal violent felony; it set forth the
dates on which both prior violent felonies occurred; it alleged the
prior crimes were committed against the State of North Carolina; it
provided the dates of convictions for both prior crimes; and it set
forth the courts in which defendant was convicted of those prior
crimes. Since the violent habitual felon indictment was not
required to refer to the assault on Ms. Rickard, the predicate
substantive felony for which defendant was being tried, the last
sentence of the indictment which set forth the incorrect date of
that assault was surplusage, not critical to the validity of the
indictment, and defendant has shown no prejudice resulting
therefrom. These assignments of error are overruled.
By his fifth assignment of error, defendant maintains the
trial court erred in preventing him from introducing evidence that
Ms. Rickard had been convicted of second degree murder arising out
of the death of her former husband. He contends the evidence was
relevant to show that Ms. Rickard “had a history of shooting men
with whom she had previously had relationships . . . .”
The State elicited Ms. Rickard's testimony that she was
convicted of second degree murder in 1980, and defendant waspermitted to cross-examine her about the conviction. Defendant has
not directed our attention to any portion of that cross-examination
in which he was prevented from questioning Ms. Rickard on the
subject. Although defendant appears to argue in his brief that
further evidence of the crime should have been admitted under G.S.
§ 8C-1, Rule 404(b), he has not cited to any place in the
transcript where he sought to offer further evidence of her prior
conviction under Rule 404(b); the cite to the transcript contained
in defendant's assignment or error is not relevant to this issue.
Accordingly, his assignment of error is overruled.
In his sixth assignment of error, defendant contends the trial
court erred by granting the prosecutor's request for, and giving,
the following jury instruction during the violent habitual felon
phase of the trial:
[T]here is evidence that tends to show that
the defendant has admitted a fact relating to
the crime charged in this case. If you find
that the defendant made that admission or
admissions, then you should consider all of
the circumstances in which it was made in
determining whether it was a truthful
admission, and the weight you will give to it.
We find no error in the instruction.
“'If a request is made for a jury instruction which is correct
in itself and supported by the evidence, the trial court must give
the instruction at least in substance.'”
State v. Frazier, 150
N.C. App. 416, 418, 562 S.E.2d 910, 912 (2002) (citation omitted).
The instruction given by the trial court conformed to the pattern
jury instruction contained in
N.C.P.I. Crim 104.60 and was
supported by the evidence. Defendant stated that “he took theblame for” the 1974 assault conviction and admitted to having been
convicted of that charge. He also admitted to having been
convicted of second degree murder in 1976. Accordingly, the trial
court did not err in instructing the jury that it could consider
defendant's admission of facts relating to the charge of being a
violent habitual felon.
Defendant purports to combine his seventh and eighth
assignments of error into one final argument, but fails to address
the seventh assignment of error in the argument. Accordingly, the
seventh assignment of error is deemed abandoned and we do not
consider it.
See N.C.R. App. P. 28(a). In his eighth assignment
of error, defendant asserts the violent habitual felon statute is
unconstitutional on its face. We note, as the State argues, that
defendant has failed to show he has preserved this issue for
appellate review by specifically contending so at trial or by
asserting plain error on appeal. Regardless, this Court has held
that the violent habitual felon statute is not unconstitutional on
its face.
See Mason, 126 N.C. App. at 321, 484 S.E.2d at 820
.
Defendant also attempts to argue that the statute is
unconstitutional as applied to him; however, there is no assignment
of error of record which corresponds to this argument and it is
therefore not properly presented for review.
See N.C.R. App. P.
10(a).
Finally, defendant has not referenced his ninth assignment of
error in his brief, nor has he presented any argument in support
thereof. It is therefore deemed abandoned.
See N.C.R. App. P.28(a).
No error.
Judges HUDSON and ELMORE concur.
Report per Rule 30(e).
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