Appeal by defendant from judgments entered 29 May 2003 by
Judge Beverly T. Beal in Mecklenburg County Superior Court. Heard
in the Court of Appeals 31 August 2004.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Daniel S. Johnson, for the State.
Kevin P. Bradley for defendant-appellant.
HUNTER, Judge.
Darryl DeWayne Tillman (“defendant”) appeals from judgments
dated 29 May 2003 entered consistent with a jury verdict finding
him guilty of felonious larceny and a plea of guilty to habitual
felon status. Defendant was also found guilty of possession of a
stolen vehicle, however judgment was arrested as to that charge.
For the reasons stated herein, we find no error.
The evidence presented at trial tends to show that on 24 July
2001, a man identifying himself as “Tim” inquired about a Saturn
automobile for sale at the A to Z Auto Sales lot from salesman
Fransisco Irizarry (“Irizarry”). As the car would not start,
Irizarry asked the man, whom he later identified as defendant, to
return the following day. On 25 July 2001, defendant returned andIrizarry jump-started the vehicle, then left to put away the
equipment. In Irizarry's absence, defendant drove off in the
Saturn and did not return. Defendant did not pay for the vehicle.
On both occasions, Irizarry spent more than twenty minutes with
defendant.
On 10 August 2001, an officer discovered incorrect tags on a
Saturn automobile and stopped the vehicle, which was identified as
the stolen Saturn. The driver, defendant, produced a North
Carolina identification card, but had no license or registration.
Defendant told the officer he had borrowed the vehicle in order to
take one of the two female occupants in the car to the hospital for
emergency treatment.
Defendant was taken into custody and waived his Miranda
rights, giving an oral statement that he had borrowed the car from
another individual. Defendant then refused to answer further
questions and the interview was concluded.
After recovery of the vehicle on 10 August 2001, a detective
showed a photographic lineup which included defendant to Irizarry.
Irizarry identified defendant from the lineup as the individual who
had inquired about and later driven off in the Saturn.
At trial, defendant testified that he borrowed the vehicle
from a man he had recently met, who he knew only as Tim. Defendant
denied taking the vehicle from A to Z Auto Sales and denied knowing
the Saturn was stolen.
Defendant was charged with felonious larceny of an automobile
and possession of a stolen vehicle and was convicted of bothoffenses. Defendant also pled guilty to habitual felon status.
The trial court arrested judgment on the felony of possession of a
stolen vehicle, and defendant was sentenced on the remaining
charges to a term of 122 to 156 months. Defendant appeals.
I.
By his first assignment of error, defendant contends that the
trial court erred in denying a motion to dismiss for a fatal
variance between the allegations of ownership in the indictment and
the proof of ownership at trial. We disagree.
“An indictment for larceny which fails to allege the ownership
of the property either in a natural person or a legal entity
capable of owning property is fatally defective.”
State v.
Roberts, 14 N.C. App. 648, 649, 188 S.E.2d 610, 611 (1972). “'If
the property alleged to have been stolen . . . is the property of
a corporation, the name of the corporation should be given, and the
fact that it is a corporation stated, unless the name itself
imports a corporation.'”
State v. Thornton, 251 N.C. 658, 662, 111
S.E.2d 901, 903 (1960) (quoting
Nickles v. State, 86 Ga. App. 290,
290, 71 S.E.2d 578, 579 (1952)).
Here, the indictment alleged the owner of the stolen
automobile was “A to Z Auto Sale, L.L.C.” Such an identification
sufficiently indicated the owner was a legal entity capable of
owning property.
See N.C. Gen. Stat. § 55D-20(a)(2) (2003)
(requiring the name of a limited liability company to contain the
words “limited liability company” or the abbreviation “L.L.C.”). “A variance will not be deemed fatal where there is no
controversy as to who in fact was the true owner of the property.”
State v. Ellis, 33 N.C. App. 667, 669, 236 S.E.2d 299, 301 (1977).
In
Ellis, an indictment placed ownership of embezzled funds in the
“'Provident Finance Company,'” but evidence at trial placed
ownership of the funds in the “'Provident Finance Company of
Henderson, Inc.'”
Id. at 668, 236 S.E.2d at 301. The
Ellis Court
found the variance was not so material as to be fatal, as the
defendant was adequately informed of the corporation which was the
accuser and victim.
Id. at 669, 236 S.E.2d at 301.
Further, numerous North Carolina appellate cases have found
that minor corporate name discrepancies are not fatal variances
when no prejudice arises.
See, e.g., State v. Wilson and State v.
Poole, 264 N.C. 595, 142 S.E.2d 180 (1965) (finding no error when
the indictment referred to the property owner as “B.M. Hancock &
Son, a corporation” and evidence at trial referred to the
corporation as “B. M. Hancock & Son's Feed Mill, Inc.,” “B. M.
Hancock & Son, Inc.,” “B. M. Hancock & Son's,” and “B. M. Hancock's
Feed Mill”),
State v. Morris, 156 N.C. App. 335, 576 S.E.2d 391
(2003) (finding no error when the indictment referred to employer
as “AAA Gas and Appliance Company, Inc.” and evidence at trial
referred to the corporation as “AAA Gas and Appliance Company,”
“AAA Gas,” or “AAA”).
In this case, at trial, a financing contract for the vehicle
was offered as proof of ownership that the property belonged to “A
to Z Auto, LLC. d.b.a A to Z Auto Sale,” rather than “A to Z AutoSale, L.L.C.” Testimony offered by Irizarry and Ziad Nasrallah,
owner and manager of A to Z Auto Sales, also identified the car as
belonging to “A to Z Auto Sales” and “A to Z Auto Sale, LLC.”
Defendant fails to show how the slight variance in the victim's
corporate name created prejudice to defendant. Therefore the trial
court did not err in denying the motion to dismiss on these
grounds.
II.
By his next assignment of error, defendant contends the trial
court erred in denying defendant's motion to suppress evidence from
the photographic line-up. We disagree.
A motion to suppress evidence must be made prior to trial in
superior court when a defendant is given reasonable opportunity to
do so.
See N.C. Gen. Stat. § 15A-975(a) (2003). When no exception
to the statute applies, failure to make a timely motion to suppress
is a waiver of any right to challenge the admissibility of such
evidence on constitutional grounds.
See State v. Maccia, 311 N.C.
222, 228, 316 S.E.2d 241, 244 (1984).
Here, defendant was provided with copies of the photographic
lineup during the discovery procedure, but made no motion to
suppress such evidence until the time of trial. Defendant
therefore waived his right to contest the admissibility of the
lineup on the grounds that it was unreasonably suggestive.
However even if considered on the merits, defendant's claim
fails to demonstrate that the photographic identification was
unduly suggestive and therefore a violation of due process. “Whether an identification procedure is unduly suggestive
depends on the totality of the circumstances.”
State v. Rogers,
355 N.C. 420, 432, 562 S.E.2d 859, 868 (2002). Pertinent aspects
of the array, such as similarity of appearance and attributes which
tend to focus the attention of the witness on a particular person
therein, are factors considered in determining whether the
identification procedures are impermissibly suggestive.
Id. Where
the defendant fails to show that the procedures were impermissibly
suggestive, the trial court need not exclude the evidence.
See
State v. Smith, 134 N.C. App. 123, 127, 516 S.E.2d 902, 905 (1999).
Here, defendant contends the identification procedure was
unduly suggestive due to the degree of glare in each photograph.
A careful review of the line-up reveals photographs of six African-
American males of similar age, complexion and appearance. Four of
the males were attired in dark shirts, one a white shirt and one,
the defendant, wore a patterned shirt. All of the photographs had
similar backgrounds and some degree of light glare and none of the
men appeared particularly distinctive in comparison with the
others. Thus, as the lineup was not unduly suggestive based on the
totality of the circumstances, the motion to suppress the evidence
was properly dismissed.
III.
Defendant contends ineffective assistance of counsel in his
next assignment of error, based on defense counsel's failure to
object to the admission of certain evidence. As the recordestablishes sufficient facts to show that such failure to object
did not constitute ineffective assistance of counsel, we disagree.
In order to reverse a conviction on the basis of ineffective
assistance of counsel, a defendant must show that counsel's conduct
fell below an objective standard of reasonableness.
See Strickland
v. Washington, 466 U.S. 668, 687-88, 80 L. Ed. 2d 674, 693 (1984).
Defendant must show first that counsel's performance was deficient,
and second that the deficient performance prejudiced the defendant
in a manner so serious as to deprive the defendant of a fair trial.
Id. at 687, 80 L. Ed. 2d at 693.
Defendant offers three instances of conduct falling below an
objective standard of reasonableness which deprived him of a fair
trial. First, defendant argues counsel's failure to object to
hearsay testimony as to a damage estimate given by Irizarry of the
vehicle's condition on recovery was deficient. Defendant contends
that without this testimony, the State would have been unable to
establish the value of the property.
The failure to exclude such evidence, even if hearsay, was not
prejudicial to defendant, as the value of the vehicle was
established through testimony by both the salesman and owner as to
the retail selling value of the automobile.
See State v. Williams,
65 N.C. App. 373, 375, 309 S.E.2d 266, 267 (1983) (holding evidence
of retail selling price offered by merchant to establish value
sufficient to survive motion to dismiss). Irizarry testified that
the sales price of the vehicle was $4,995.00, sufficient evidence
to establish the value of the vehicle as more than the one thousanddollar minimum for felonious larceny of an automobile under N.C.
Gen. Stat. § 14-72(a) (2003).
Defendant next contends counsel was deficient in failing to
object to hearsay testimony by the arresting officer as to the lack
of medical complaints by the passengers in the vehicle driven by
defendant. Defendant argues such testimony was used to
substantiate the knowledge requirement of the possession of stolen
vehicle charge and identity for the felonious larceny charge.
The failure to exclude such evidence, even if hearsay, was not
prejudicial as testimony and identification of defendant by
Irizarry offered sufficient independent evidence of defendant's
knowledge and identity. Defendant's argument is unconvincing that
admission of such testimony was so serious an error as to deprive
defendant of a fair trial.
Finally defendant contends counsel was deficient in failing to
object to testimony that defendant stopped police interrogation and
refused to answer further questions, as this infringed on
defendant's constitutional rights against self-incrimination.
During a custodial interrogation, the accused has the right
“at any time prior to or during questioning [to] indicate[] that he
wishes to stop answering questions or to consult with an attorney
before speaking further, [and] the interrogation must cease.”
State v. Riddick, 291 N.C. 399, 408, 230 S.E.2d 506, 512 (1976).
While admission of evidence that defendant chose to exercise
his constitutional rights may not be used against him at trial,
such a violation will not warrant a new trial if the error is foundharmless beyond a reasonable doubt.
See N.C. Gen. Stat. § 15A-
1443(b) (2003). Such a mention of termination of the interview by
defendant in testimony of a chronological nature is not prejudicial
error unless the State further emphasizes the testimony with
additional questions or comments.
See State v. Elmore, 337 N.C.
789, 792-93, 448 S.E.2d 501, 502-03 (1994). As the State did not
cross-examine defendant with regards to the termination, nor
reference the incident in closing arguments, such an admission is
de minimis and harmless beyond a reasonable doubt.
Defendant fails to show that counsel's performance prejudiced
the defendant in a manner so serious as to deprive the defendant of
a fair trial. We therefore find no ineffective assistance of
counsel.
IV.
Defendant, by his final assignment of error, argues that the
trial court lacked jurisdiction to sentence defendant as a habitual
felon. We disagree.
Defendant contends that one of the three felonies alleged as
the basis for the habitual felony indictment, possession of
cocaine, is defined by statute as a Class 1 misdemeanor and not a
felony, based on the holding of
State v. Jones, 161 N.C. App. 60,
67, 588 S.E.2d 5, 11 (2003) (holding that the plain language of the
statute stated possession of cocaine was a misdemeanor punishable
as a felony and therefore could not be used to support a habitual
felon indictment),
rev'd,
State v. Jones, 358 N.C. 473, 598 S.E.2d
125 (2004). Our Supreme Court has since reversed this decision
, holding
that possession of cocaine is a felony which can serve as an
underlying felony to a habitual felon indictment.
See Jones, 358
N.C. at 476, 598 S.E.2d at 127. Therefore the trial court had
jurisdiction to sentence defendant as to the habitual felon
indictment.
No error.
Judges TIMMONS-GOODSON and McCULLOUGH concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***