State v Nixon, (03-1514) 07/06/2004

NO. COA03-1514

NORTH CAROLINA COURT OF APPEALS

Filed: 6 July 2004

STATE OF NORTH CAROLINA

v .                         Beaufort County
                            Nos. 02 CRS 003947
HARRY FRANKLIN NIXON, JR.            02 CRS 003948
                                02 CRS 053645
                                02 CRS 053646

    On 16 September 2002 defendant presented a prescription from Dr. Bruce Tripp to Timothy Woolard (“Woolard”), pharmacist at Eckerd drugstore in Washington, North Carolina. The prescription was issued to Renee Sprouse (“Renee”) for ten milligram tablets of Lorcet, a controlled substance for pain. The quantity to bedispensed was forty-five tablets. Woolard filled the prescription for forty-five tablets. Defendant signed for the prescription and paid the co-pay fee. On 24 September 2002, defendant presented Josanne Heath (“Heath”), another Eckerd pharmacist, with a second prescription for Lorcet prescribed to Renee. The numerical 15 was altered to reflect 45 tablets. The cursive portion of the prescription called for fifteen tablets. The pharmacist filled the prescription for fifteen tablets and called Dr. Tripp's office the next morning to verify the quantity. The pharmacist learned the original prescription was for fifteen tablets and was obtained as a result of defendant coming into his office and indicating that Renee was in pain. Heath also learned that the numerical 15 on the 16 September 2002 prescription had been altered to reflect 45. The pharmacist informed the police of the alterations.
    On 7 October 2002, defendant presented Heath with yet another Lorcet prescription for Renee. Heath filled the prescription after verifying it with the prescribing doctor. The following day Detective Jonathan Kuhn (“Detective Kuhn”) of the Washington Police Department went to defendant's home. Defendant agreed to go to police headquarters where he was questioned and arrested.
    Defendant expressed dissatisfaction with the court-appointed attorney and moved pretrial to continue to retain other counsel. The trial court denied the motion and found that defendant's motion was an effort to avoid being tried. During jury selection the trial court noticed defendant was “furtively” looking around the courtroom and talking to people other than counsel. The trialcourt excused the jury, explained that it was concerned with defendant's actions and demeanor, and revoked defendant's bond for the duration of the trial. Defendant offered no evidence. The jury found defendant to be guilty of obtaining a controlled substance by fraud or forgery and attempting to obtain a controlled substance by fraud or forgery. Defendant's prior convictions were established through Detective Kuhn in the habitual felon phase of the trial. While reading the predicate felonies to the jury the trial court inadvertently gave the wrong date of offense for one of those felonies. Instead of reinstructing the jury, the court recommended that the district attorney move to have the indictment conform to the evidence. The motion was granted by the court. The jury found defendant to be guilty of having attained habitual felon status.

Defendant argues that the trial court's denial of his motion to continue prejudiced his defense because his court-appointedattorney failed to effectively assist in his defense. “A motion for continuance is ordinarily addressed to the sound discretion of the trial court, and its ruling thereon is not subject to review absent an abuse of discretion.” State v. Baldwin, 276 N.C. 690, 697, 174 S.E.2d 526, 531 (1970). The Supreme Court has held that the right to the assistance of counsel includes the right to counsel of the defendant's choosing. See Glasser v. United States, 315 U.S. 60, 70, 86 L. Ed. 680, 699 (1942). The right to be defended by chosen counsel is not absolute. State v. McFadden, 292 N.C. 609, 612, 234 S.E.2d 742, 745 (1977) (citing People v. Brady, 275 Cal. App. 2d 984, 80 Cal. Rptr. 418 (1969)). “ Due process is not denied every defendant who is refused the right to defend himself by means of his chosen retained counsel; other factors, including the speedy disposition of criminal charges, demand recognition, particularly where defendant is inexcusably dilatory in securing legal representation. . . .” McFadden, 292 N.C. at 612, 234 S.E.2d at 745 (quoting Brady, 275 Cal. App. 2d at 993, 80 Cal. Rptr. at 423). “[W]e do not approve of tactics by counsel or client which tend to delay the trial of cases.” McFadden, 292 N.C. at 616, 234 S.E.2d at 747. “[A]n accused may lose his constitutional right to be represented by counsel of his choice when he perverts that right to a weapon for the purpose of obstructing and delaying his trial.” Id.
Here, the trial court found defendant's motion to continue was an effort to delay trial. Defendant had ample time to secure counsel of his choosing in the five months preceding his trial. The first time defendant expressed dissatisfaction with his counsel occurred on the day of his trial. Defendant did not indicate that he had talked with or retained a specific attorney to represent him. The trial court did not abuse its discretion in denying defendant's motion to continue. This assignment of error is overruled.

    Defendant next argues that the trial court erred in revoking defendant's bond without motion by the State. N.C. Gen. Stat. § 15A-534(f) (2003) provides that a trial judge may at any time revoke an order of pretrial release for good cause shown. “A ruling committed to the trial court's discretion will be upset on appeal only when defendant shows that the ruling could not have been the result of a reasoned decision.” State v. Suggs, 130 N.C. App. 140, 142, 502 S.E.2d 383, 385 (1998) (citing State v. Cameron, 314 N.C. 516, 519, 335 S.E.2d 9, 11 (1985)).
        Before exercising its discretionary power to order a criminal defendant into custody during the trial of a case, a trial court should, at a minimum, carefully consider whether there is some indication that defendant will fail to reappear if not placed in custody; whether there is a danger of injury to, or intimidation of, witnesses if defendant remains free; whether there are less restrictive alternatives to incarceration, such as requiring a secured bond which would guarantee the defendant's appearance as required; and whether incarceration of defendant during the trial would unduly interfere with the ability of defendant to consult with counsel or to prepare his defense.

Suggs, 130 N.C. App. at 142, 502 S.E.2d at 385 (citing State v.Albert, 312 N.C. 567, 575, 324 S.E.2d 233, 238 (1985)).
    The transcript reveals that defendant was “furtively” looking around the courtroom and talking to people other than his counsel during jury selection. The judge excused the jury and informed defendant that he was concerned about defendant's actions and demeanor at trial and believed revocation of bond was necessary. At trial defendant did not present any evidence. Defendant was not prejudiced by being placed into custody for the duration of the one day trial. The trial court had the ability to observe the accused's demeanor and behavior to determine whether to revoke bond. We give deference to the trial court's decision. This assignment of error is overruled.

Defendant argues that the indictments charging defendant with having habitual felon status are fatally defective in that they do not allege the state or other sovereign against whom defendant committed the felony offenses. N.C. Gen. Stat. § 14-7.3 (2003) provides that an indictment charging a person with having habitual felon status must set forth “the name of the state or other sovereign against whom said felony offenses were committed.” Defendant concedes that this Court has previously held that “the name of the state need not be expressly stated if the indictment sufficiently indicates the state against whom the felonies were committed.” State v. Mason, 126 N.C. App. 318, 323, 484 S.E.2d 818, 821 (1997) (citing State v. Williams, 99 N.C. App. 333, 334- 35, 393 S.E.2d 156, 157 (1990)).
In the present case, the indictments charging defendant with the status of habitual felon clearly state that all three felonies were filed in the Superior Court of Beaufort County within the State of North Carolina. This assignment of error is overruled.

During the habitual felon phase of the bifurcated trial, the State presented evidence that defendant committed the offense of obtaining property by false pretenses on 29 November 1997. The trial court instructed the jury that this offense occurred on 6 November 1997. Instead of reinstructing the jury on the correct date, the court advised the prosecutor to move to amend the indictment to allege that this offense occurred on 6 November 1997. The trial court has a duty to ensure that the jury instructions presented at trial are consistent with the information contained in the indictment and the evidence presented at trial. See State v. Lucas, 353 N.C. 568, 590, 548 S.E.2d 712, 727 (2001). The State concedes that the trial court should not have attempted to cure the instructional error by amending the indictment. This portion of the bifurcated trial is reversed and remanded to the trial court for a new trial solely on the issue of defendant's status as an habitual felon.

In his final assignment of error defendant contends that the trial court's failure to give limiting instructions concerning the admissibility of corroborating testimony constitutes reversible error. Defendant objected to the testimony of Woolard regarding aconversation with Heath. The trial court overruled the objection, subject to the testimony of Heath. After the court ruled on defendant's objection, defendant never asked for a limiting instruction on the admissibility of Woolard's testimony.
Rule 105 of the North Carolina Rules of Evidence states, “[w]hen evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.” N.C. Gen. Stat. § 8C-1, Rule 105 (2003) (emphasis supplied). “The admission of evidence which is competent for a restricted purpose will not be held error in the absence of a request by the defendant for limiting instructions.” State v. Hamilton, 150 N.C. App. 558, 565, 563 S.E.2d 292, 296 (2002) (quoting State v. Maccia, 311 N.C. 222, 228-29, 316 S.E.2d 241, 245 (1984)). Defendant failed to request a limiting instruction concerning the admissibility of Woolard's testimony and waived his right to appellate review. N.C.R. App. P. 10(b)(1) (2004). This assignment of error is dismissed.

    Defendant failed to show that the trial court abused its discretion in denying his motion to continue and revoking his bond for the duration of the one day trial. Defendant also failed to show that the indictments charging him with habitual felon status are defective. The trial court did not err in failing to give a limiting instruction on Woolard's hearsay testimony in the absenceof a request by defendant.
    The trial court erred in amending the habitual felon indictments rather than reinstructing the jury on the proper date of the defendant's prior offense. That case is reversed and remanded for a new trial solely on the issue of defendant's status as an habitual felon.
    No error in part - Docket numbers 02 CRS 053645, 02 CRS 053646. Reversed and remanded in part - Docket numbers 02 CRS 003947; 02 CRS 003948.
    Judges BRYANT and STEELMAN concur.
    Report per Rule 30(e).