Appeal by defendant from judgment dated 26 March 2003 by Judge
E. Lynn Johnson in Cumberland County Superior Court. Heard in the
Court of Appeals 31 March 2004.
Attorney General Roy Cooper, by Assistant Attorney General Ann
Stone, for the State.
The Kelly Law Firm, by George E. Kelly, III, for
defendant-appellant.
BRYANT, Judge.
Howard Wesley Helton (defendant) appeals a judgment dated 26
March 2003, entered consistent with his conviction for attempted
felonious larceny and having attained the status of habitual felon.
The State's evidence tended to show the following: On 30
November 2000, George Mitchell was working as the security manager
at a Target store located in Fayetteville, North Carolina. At
approximately 9:00 a.m., Mitchell was viewing images from the store
security camera when he saw defendant remove the security tag from
a television. If not deactivated at a cash register, this tag
triggers the alarm system stationed near the exit of the store.
After witnessing removal of the security tag, Mitchell used a zoom
camera to record defendant walking down a back aisle. Defendant pushed his cart toward the front of the store, but
did not attempt to exit through an exit door. Instead, he waited
for someone to open an entrance door and then walked through that
door into the store's outer vestibule. Mitchell stopped defendant,
identified himself as store security, and asked defendant to come
to the security office. Upon stopping defendant, Mitchell
discovered defendant had both a television and a computer in the
cart but did not have a receipt for either item. Once at the
office, defendant became belligerent and refused to give any
identification. Mitchell telephoned the police who took defendant
into custody.
Mitchell checked the price of both the television and computer
using the store's computer system and item 'DPCI' numbers. The
listed price for each item was $259.99 for the television and
$849.00 for the computer. Mitchell double checked the prices with
the prices listed on the shelves. The prices listed in the store's
computer system and on the shelves matched.
At trial, defendant testified he had pushed his cart into the
outer vestibule area to look for his sister, who was planning to
use her credit card to pay for the items. Defendant testified that
he was not attempting to steal either the television or the
computer.
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This appeal involves whether the trial court: (I) committed
plain error in allowing the State to cross-examine defendant
concerning his prior incarceration and criminal convictions; (II)committed plain error by allowing the State to ask defendant about
communications defendant had with his lawyer; (III) committed error
by denying defendant's request for a jury instruction on the
definition of “value”; (IV) committed plain error by not providing
a jury instruction clarifying an element of felonious larceny; and
(V) committed error by denying defendant's motion to dismiss the
habitual felon indictment.
I
First, defendant argues that the trial court committed plain
error by allowing the State to cross-examine him in regard to his
prior imprisonment, his prior criminal convictions, and the fact he
had been taken into custody on a prior occasion by Target store
security.
Plain error
is “a fundamental error so prejudicial that
justice cannot have been done.”
State v. Haselden, 357 N.C. 1, 13,
577 S.E.2d 594, 602-03 (2003). “To prevail, the 'defendant must
convince this Court not only that there was error, but that absent
the error, the jury probably would have reached a different
result.'”
Id. (citation omitted). Plain error review is to be
applied only to exceptional cases.
State v. Walker, 316 N.C. 33,
39, 340 S.E.2d 80, 83 (1986).
N.C. Gen. Stat. § 8C-1, Rule 609 states: “For the purpose of
attacking the credibility of a witness, evidence that the witness
has been convicted of a felony, or of a Class A1, Class 1, or Class
2 misdemeanor, shall be admitted if elicited from the witness or
established by public record during cross-examination orthereafter.” N.C.G.S. § 8C-1, Rule 609 (2003). In addition, N.C.
Gen. Stat. § 8C-1, Rule 404(b) permits such evidence for purposes
of proving intent, motive, lack of mistake, opportunity,
preparation, plan, and identity, while prohibiting admission of
such evidence to prove defendant's character and action in
conformity therewith. N.C.G.S. § 8C-1, Rule 404(b) (2003).
Evidence admitted under Rule 404(b) is also subject to the
requirements of Rule 403.
See N.C.G.S. § 8C-1, Rule 403 (2003)
(“Although relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair
prejudice.”).
In the instant case, defendant testified that he did not
intend to steal either the television or the computer in his cart.
Rather, he pushed his cart to the outer vestibule area only to look
for his sister, who he thought may have been outside smoking,
because she was going to use her credit card to pay for the items.
On cross-examination, the State questioned defendant about his
recent incarceration in prison for obtaining property by false
pretenses and felony larceny. The State further cross-examined
defendant concerning other misdemeanor and felony larceny
convictions, some of which included incidents involving large
retail stores similar to Target. The State also questioned
defendant about having been stopped by store security at the same
Target store in the past. Defendant raised no objection to this
cross-examination by the State.
The trial court did not err in allowing the State to impeachdefendant's credibility by use of his prior convictions.
See
N.C.G.S. § 8C-1, Rule 609. In addition, Rule 404(b) permitted use
of defendant's prior convictions and other bad acts to show intent,
lack of mistake, and a common plan. Defendant has not shown the
probative value of the evidence was substantially outweighed by the
danger of unfair prejudice. Accordingly, this assignment of error
is overruled.
II
Second, defendant argues that the trial court committed plain
error by allowing the State to ask defendant if he had given his
lawyer certain information following his arrest, as this line of
questioning violates defendant's attorney-client privilege.
“It is well settled that communications between an attorney
and a client are privileged under proper circumstances.”
State v.
Bronson, 333 N.C. 67, 76, 423 S.E.2d 772, 777 (1992). “The
attorney-client privilege belongs to the defendant and may be
waived by him.”
Id.
In the instant case, defendant contends that the computer was
on sale for $499.00 instead of the $899.00 list price. Defendant
was asked if he had gone back to the store to confirm the sale
price, to which he answered “no,” because he was not allowed back
on Target's premises. Defendant was then asked whether he had told
his attorney that the item was on sale and whether he had told his
attorney to “[g]o check it right then and there.” Defendant
answered “no,” because his attorney at the time repeatedly
postponed meeting with or contacting defendant for a month or so. Defendant failed to object to the question and did not raise
the attorney-client privilege, but voluntarily answered all of the
State's questions. Therefore, defendant waived the attorney-client
privilege.
See Id. This assignment of error is overruled.
III
Third, defendant argues that the trial court erred by denying
his request for a jury instruction on the definition of “value,” as
the term is used in the sixth element of the crime of felonious
larceny.
When a defendant presents a request for a special jury
instruction, that request must be granted if warranted by the facts
of the case and if the requested instruction accurately states the
law.
State v. Golden, 143 N.C. App. 426, 434, 546 S.E.2d 163, 168
(2001). In the instant case, defendant requested a special jury
instruction as to the term “value,” an element of felonious
larceny. The transcript reveals the following colloquy:
[DEFENSE]: Your Honor, with regard to the
explanation in the charge of felonious
larceny, one of the elements -- the sixth
element being the value of the property, Your
Honor, I would ask that there be some
additional explanation or definition of the
term value for the jury. . . .
Your Honor, first of all, it being that
the words [sic] value from State v. Haney does
not mean the price at which the owner would
sell but it means fair market value. The
State v. Williams case being -- distinguishing
the Haney case between private citizens and
merchants and that because the Williams case
involved merchants, at that point that the
distinction between that the selling price is
some evidence of value but that does not
necessarily mean -- it's sufficient at that
point to survive a motion to dismiss, but thatalone from this wouldn't appear to be
sufficient. It's just a selling price, Your
Honor, and that's the reason I would ask for
some clarification as to value.
THE COURT: I'm not sure I follow you.
[DEFENSE]: Your Honor, what they said
here is that the -- in the previous cases, the
selling price was not competent as evidence of
value for purposes of General Statute 14-72.
Here the court held that, however, that
whether a merchant has determined a retail
price of merchandise which he is willing to
accept as the worth of the item offered for
sale, such a price constitutes evidence of
fair market value sufficient to survive a
motion to dismiss. And at that point, Your
Honor, what I'm asking is that that's not --
that is not necessarily prima facie of the
price.
[PROSECUTION]: I think that's exactly
what prima facie is, Your Honor.
[DEFENSE]: Of the value.
THE COURT: Maybe I missed something but
it is what a willing seller will sell at and
what a willing buyer will buy at is the
historic definition of the fair market value
and both of you can argue that to your heart's
content. Otherwise, the request is denied.
Our Court has clearly stated:
The “market value” of the stolen item is
generally used in determining whether the
crime is felonious or nonfelonious. Thus, in
the case of common articles having a market
value, the courts have . . . declared the
proper criterion to be the price which the
subject of the larceny would bring in open
market -- its 'market value' or its
'reasonable selling price,' at the time and
place of the theft, and in the condition in
which it was when the thief commenced the acts
culminating in the larceny.
State v. Dees, 14 N.C. App. 110, 112, 187 S.E.2d 433, 435 (1972)
(footnote omitted) (citations omitted). See State v. Hall, 57 N.C.App. 544, 547, 291 S.E.2d 873, 876 (1982) (“'[M]arket value' of a
stolen item is the criterion used to determine the worth of
personal property which was the subject of a larceny.”).
Defendant's requested jury instruction did not encompass a
correct statement of law as to the definition of value, and
therefore, the trial court properly denied defendant's request.
This assignment of error is overruled.
IV
Fourth, defendant argues that the trial court committed plain
error by not providing a jury instruction on the definition of
“worth” as the term was used in the court's instruction on non-
felonious and felonious larceny.
In
State v. Barton, our Supreme Court held that trial courts
are not required to frame its jury instructions with any greater
particularity than is necessary for a jury to understand and apply
the law.
State v. Barton, 335 N.C. 696, 703, 441 S.E.2d 295, 298
(1994). Therefore, it is only necessary for the trial court to
give jury instructions so complete and with enough precision so as
to allow the jury to apply the law to the facts as they find them
to be.
In the instant case, the trial court instructed the jury as
follows:
For you to find the defendant guilty of
attempted felonious larceny, the state must
prove two things beyond a reasonable doubt.
First, that the defendant intended to commit
felonious larceny. And at this time I'm going
to give you the elements of that offense in
respect to felonious larceny or the attempt to
commit felonious larceny. First, that thedefendant attempted to take property belonging
to another person. Secondly, that the
defendant attempted to carry away property.
Thirdly, that the victim did not consent to
the attempted taking and carrying away of the
property. Fourth, that at the time of the
attempted taking, the defendant intended to
deprive the victim of its use permanently.
Fifth, that the defendant knew he was not
entitled to take the property.
And six, that
the property was worth more than $1000.
. . . .
. . . If you do not find -- so find or if
you have a reasonable doubt as to one or more
of these things, you will not return a verdict
of guilty of attempted felonious larceny but
must determine whether the defendant is guilty
of the lesser[-]included offense of attempted
nonfelonious larceny.
Attempted nonfelonious larceny differs
from attempted felonious larceny in that the
property need not be worth more than $1000.
(emphasis added).
This instruction is a reflection of the North Carolina Pattern
Jury instruction for felonious larceny, which reads:
Now I charge that for you to find the
defendant guilty of felonious larceny, the
State must prove six things beyond a
reasonable doubt:
First, that the defendant took property
belonging to another person.
Second, that the defendant carried away
the property.
Third, that the victim did not consent to
the taking and carrying away of the property.
Fourth, that at the time of the taking,
the defendant intended to deprive the victim
of its use permanently.
Fifth, that the defendant knew he was not
entitled to take the property.
And sixth, that the property was worth
more than $1000.
. . . .
If you do not find the defendant guilty
of felonious larceny, you must determine
whether he is guilty of non-felonious larceny.
Non-felonious larceny differs from felonious
larceny in that the property need not be worth
more than $1000.
1 N.C.P.I. --Crim. 216.10 (1991).
Defendant has not shown that the jury instruction was so void
of precision that the jury could not understand the concept of
“worth,” and apply that concept to the facts of this case. This
assignment of error is overruled.
V
Last, defendant argues that the trial court committed error by
denying his motion to dismiss the habitual felon indictment,
because the indictment violates his constitutional rights as the
prosecution had unfettered discretion in determining whether to
present the indictment.
Our courts have held the procedures set
forth in the Habitual Felon Act comport with a
criminal defendant's federal and state
constitutional guarantees. Further, the clear
mandate of North Carolina Constitution art.
IV, § 18, stating the District Attorney shall
. . . be responsible for the prosecution on
behalf of the State of all criminal actions in
the Superior Courts of his district, N.C.
Const. art. IV, § 18, is that “the
responsibility and authority to prosecute all
criminal actions . . . is vested solely,”
[. . .] with the various elected district
attorneys.
It is well established that there may be
selectivity in prosecutions and that the
exercise of this prosecutorial prerogativedoes not reach constitutional proportion
unless there be a showing that the selection
was deliberately based upon “an unjustifiable
standard such as race, religion or other
arbitrary classification.”
For defendant to have prevailed on his
motion, therefore, he must have shown that the
instant “prosecutorial system was motivated by
a discriminatory purpose and had a
discriminatory effect.”
State v. Wilson, 139 N.C. App. 544, 550-51, 533 S.E.2d 865, 870
(2000) (citations omitted) (some alterations in the original),
cert. denied, 537 U.S. 956, 154 L. Ed. 2d 306 (2002).
Upon review of the record, we hold defendant has failed to
present any evidence reflecting an improper motive by the
prosecutor in its decision to present the habitual felon
indictment. This assignment of error is overruled.
No error.
Judges McCULLOUGH and ELMORE concur.
Report per Rule 30(e).
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