1. Indictment and Information-_superior court--misdemeanor offenses-_failure to
include offenses in indictment
The trial court did not have jurisdiction over the misdemeanor charges against defendant
for harboring a fugitive, possession of one half ounce of marijuana, possession of drug
paraphernalia, resisting a public officer, and maintaining a dwelling place to keep controlled
substances, and the judgments entered on those charges are vacated because: (1) although
defendant's misdemeanor charges could properly be joined with the felony charges pending in
superior court under N.C.G.S. § 15A-926 as they arose from the same series of acts or
transactions as the felony charges, charges must be before the superior court on presentment,
information, or indictment; and (2) these misdemeanor charges were never included in an
indictment and were before the superior court on warrants only.
2. Courts--criminal trial during civil session--erroneous designation on transcript
The trial court did not err as a matter of law by conducting defendant's criminal trial
during a civil session of court because in spite of the erroneous designation on the cover page of
the official court transcript, there was ample evidence in the record to show the session of court
during which defendant's trial took place was both a criminal and civil session.
3. Judges--trial judge's commission to conduct criminal court
Although defendant contends for the first time on appeal in a drug case that the trial
judge did not have a commission to conduct criminal court in Henderson County for the 15
September 2003 session of court, defendant presents no evidence to suggest the judge did not
have such a commission and the judge explained at trial that the Chief Justice of the North
Carolina Supreme Court had assigned him to hold court in Henderson County that week as
permitted by N.C. Const. art. IV, § 11.
4. Drugs--delivery of methamphetamine--delivery of marijuana--motion to dismiss--
sufficiency of evidence
The trial court did not err by denying defendant's motions made at the close of the State's
evidence and again at the close of all evidence to dismiss the felony charges of delivery of
methamphetamine and delivery of marijuana, because: (1) the State presented evidence of
defendant's delivery of controlled substances at trial through the testimony of two females who
were found in possession of the drugs that defendant allegedly had given them to conceal; and
(2) the credibility and the weight given to the testimony of these witnesses is a matter for the
jury.
5. Evidence_-recordings of telephone calls--pretrial detainee--wiretapping
The trial court did not err in a drug case by denying defendant's motion to suppress
evidence of recordings of telephone calls made by defendant to his mother that were intercepted
while defendant was a pretrial detainee, because: (1) under both our state and federal
wiretapping laws, the interception of telephone calls does not violate the statutory prohibitions
so long as at least one party to the communication consents; (2) both parties to the conversationheard the recorded warning that the call was subject to monitoring and recording and thus they
consented, at least impliedly, by continuing with the conversation in the face of that warning;
and (3) defendant's constitutional arguments have not been properly preserved for appeal.
6. Evidence--motion to suppress_-recorded phone conversations--Rule 403
The trial court did not err in a drug case by failing to suppress statements contained in the
recorded phone conversations between defendant and his mother allegedly in violation of
N.C.G.S. § 8C-1, Rule 403, because: (1) there is no evidence in the record that defendant ever
identified to the trial court the specific statements he contends are unduly prejudicial or that he
requested the trial court to suppress the allegedly prejudicial statements after the trial court
denied his motion to suppress the evidence in its entirety; and (2) defendant never raised Rule
403 as a basis for his motion to suppress the phone call evidence in the motion itself or in his
oral arguments before the court regarding the motion.
7. Criminal Law-_recordation of trial--jury selection--arguments of counsel--bench
conferences
Jury selection in noncapital cases and the opening and closing arguments of counsel must
be recorded upon the motion of either party or on the judge's own motion. However, routine
private bench conferences between the trial judge and attorneys are not required to be recorded.
N.C.G.S. § 15A-1241(b).
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Newton G. Pritchett, Jr., for the State.
M. Alexander Charns, for defendant-appellant.
JACKSON, Judge.
Shon Price (defendant) was charged on warrants with the
misdemeanor offenses of: harboring a fugitive; possession of up to
one half ounce of marijuana; possession of drug paraphernalia;
resisting a public officer and maintaining a dwelling place to keep
controlled substances and was indicted on the felony charges of:
delivery of methamphetamine; delivery of marijuana and habitual
felon. All charges against the defendant resulted from a series ofactivities on 4 February 2003. Defendant waived his preliminary
hearing on both the felony and misdemeanor charges in district
court and the court issued orders transferring the misdemeanor
charges to superior court with the felonies as related offenses.
Defendant was indicted on the felony charges, but the misdemeanor
charges contained in the warrants were never included in an
indictment. At a jury trial conducted in superior court defendant
was found guilty of possession of marijuana; possession of drug
paraphernalia; resisting a public officer; maintaining a dwelling
place to keep controlled substances; delivery of methamphetamine
and delivery of marijuana. Defendant admitted to the habitual
felon charge after his conviction of these charges. The court
dismissed the harboring a fugitive charge at the close of the
State's evidence.
At trial the State's evidence tended to show that on 4
February 2003 officers went to defendant's mother's house looking
for a fugitive. Defendant lived in a shed behind his mother's
house. Defendant confronted the officers and ordered them off the
property at which time he was handcuffed and patted down. Rolling
papers and a marijuana roach were found on defendant's person.
Defendant gave two women at the scene, both admitted
methamphetamine addicts, drugs to conceal from the police.
Defendant gave one woman ten grams of marijuana and the other a
pill bottle containing methamphetamine which the women secreted on
their persons. When the women discovered that they would be
searched and a drug dog was en route, they voluntarily gave thedrugs to the officers and stated that defendant had given them the
drugs to hide. No drugs were found in defendant's shed. The only
evidence presented at trial linking defendant to the drugs found on
the women was their testimony that defendant gave the drugs to
them.
While in pretrial confinement at the Henderson County
detention facility, defendant placed telephone calls to his mother.
These calls were recorded, as were all inmate calls at the
facility. The evidence presented at trial showed the facility's
Evercom system plays a recording to recipients of calls from
inmates which states:
Hello, this is a collect call from [Shon] an
inmate at the county jail. To accept charges
press 0 to refuse charges press . . . This
call is subject to monitoring and recording.
Thank you for using Evercom.
In his calls defendant used profanity, made erroneous statements
regarding the length of the sentence he was facing, and made
disparaging remarks regarding his appointed counsel. Prior to
trial, defendant filed a motion to suppress the recordings of his
calls from jail. Defendant's motion was heard and denied by the
trial court.
[1] Defendant's first argument is that the trial court lacked
jurisdiction to try the misdemeanor charges against him as they had
not been tried in district court and subsequently appealed to
superior court, nor had they been included in an indictment. The
North Carolina Constitution provides in part,“[e]xcept inmisdemeanor cases initiated in the District Court Division, no
person shall be put to answer any criminal charge but by
indictment, presentment, or impeachment.” N.C. Const., art. I, .
22. A criminal case may be tried in superior court on a warrant
only on an appeal from a conviction at trial in a lower court with
jurisdiction over the offense. State v. Guffey, 283 N.C. 94, 194
S.E.2d 827 (1973).
Jurisdiction over misdemeanor offenses is set forth in N.C.
Gen. Stat. . 7A-271 which states in part:
(a) The superior court has exclusive, original
jurisdiction over all criminal actions not assigned to
the district court division by this Article, except that
the superior court has jurisdiction to try a misdemeanor:
(1) Which is a lesser included offense of a felony
on which an indictment has been returned, or a
felony information as to which an indictment
has been properly waived; or
(2) When the charge is initiated by presentment;
or
(3) Which may be properly consolidated for trial
with a felony under G.S. 15A-926;
(4) To which a plea of guilty or nolo contendere
is tendered in lieu of a felony charge; or
(5) When a misdemeanor conviction is appealed to
the superior court for trial de novo, to
accept a guilty plea to a lesser included or
related charge.
(b) Appeals by the State or the defendant from the
district court are to the superior court. The
jurisdiction of the superior court over misdemeanors
appealed from the district court to the superior court
for trial de novo is the same as the district court had
in the first instance, and when that conviction resulted
from a plea arrangement between the defendant and the
State pursuant to which misdemeanor charges were
dismissed, reduced, or modified, to try those charges in
the form and to the extent that they subsisted in the
district court immediately prior to entry of the
defendant and the State of the plea arrangement.
(c) When a district court is established in a district,
any superior court judge presiding over a criminal
session of court shall order transferred to the district
court any pending misdemeanor which does not fall withinthe provisions of subsection (a), and which is not
pending in the superior court on appeal from a lower
court.
Additionally, however, N.C. Gen. Stat. . 15A-922(g) provides,
“[w]hen the prosecution of a misdemeanor is initiated in the
superior court as permitted by G.S. 7A-271, the prosecution must be
upon information or indictment.” (Emphasis added).
Here, defendant's misdemeanor charges properly could be joined
with the felony charges pending in superior court under N.C. Gen.
Stat. . 15A-926 as they arose from the same series of acts or
transactions as the felony charges. This allows the misdemeanor
charges to be tried in superior court rather than district court,
however, as discussed supra, charges must be before the superior
court on presentment, information or indictment. These misdemeanor
charges never were included in an indictment and were before the
superior court on warrants only. This precluded the superior court
from exercising jurisdiction over the misdemeanor charges. Because
the trial court did not have jurisdiction over the misdemeanor
charges against defendant we vacate the judgments entered on those
charges.
[2] Defendant next contends the trial court erred as a matter
of law by conducting his criminal trial during a “civil session” of
court. “For sessions of court designated for the trial of civil
cases only, no grand juries shall be drawn and no criminal process
shall be made returnable to any civil session.” N.C. Gen. Stat. .
7A-49.2(b)(2004). Defendant's argument is based solely on the cover page of the
official court transcript which indicates it is a transcript of
proceedings which occurred during the “September 15th, 2003 Civil
Session . . . .” In spite of this designation there is ample
evidence in the record to show the session of court during which
defendant's trial took place was both a criminal and civil session.
The Master Court Calendar for the Fall Sessions 2003 published by
the Administrative Office of the Courts (AOC) designates the 15
September 2003 session of Superior Court of Henderson County as
criminal and civil, a point conceded by defendant in his brief.
Also, in his introduction to the jury pool, the trial judge stated
“Good afternoon, ladies and gentlemen, I'd like to welcome you to
your jury service for this - part of this week here in Henderson
County Criminal Superior Court.” Accordingly, we find it clear
that the transcript cover sheet designation of the session as civil
was simply a scrivener's error. This assignment of error has no
merit and therefore is overruled.
[3] Defendant also asserts that the trial judge, the Honorable
E. Penn Dameron, did not have a commission to conduct criminal
court in Henderson County for the 15 September 2003 session of
court. Although defendant failed to object to Judge Dameron's
commission status at trial his assertion constitutes a
jurisdictional issue which may be raised for the first time on
appeal. N.C.R. App. P. 10(a). The defendant also failed to assign
error to this issue. However, even in the absence of an assignment
of error, our Supreme Court has continued to apply the old rule ofappellate procedure allowing the issue of lack of subject matter
jurisdiction to be raised for the first time on appeal. See State
v. Wallace, 351 N.C. 481, 503, 528 S.E.2d 326, 341, cert. denied,
531 U.S. 1018, 148 L. Ed. 498 (2000)(allowing amendment to the
record on appeal adding an assignment of error regarding lack of
subject matter jurisdiction that had not been assigned as error in
the Court of Appeals).
Defendant presents no evidence to suggest Judge Dameron did
not have such a commission, however. The Administrative Office of
the Court's Master Court Calendar for the Fall 2003 sessions of
court shows that the 15 September 2003 session of superior court in
Henderson County was to be conducted by a judge “to be assigned.”
In his opening remarks to the jury Judge Dameron also explained
that, although he actually was assigned to a different district,
the Chief Justice of the North Carolina Supreme Court had assigned
him to hold court in Henderson County that week. The North
Carolina Constitution provides that: “[t]he Chief Justice of the
Supreme Court, acting in accordance with rules of the Supreme
Court, shall make assignments of Judges of the Superior Court . .
. .” N.C. Const. art. IV, § 11. Accordingly, we hold there was no
error.
[4] Defendant further assigns as error the denial of the
motions he made at the close of the State's evidence and again at
the close of all evidence to dismiss the felony charges due to
insufficient evidence. In reviewing the denial of a criminal
defendant's motion to dismiss for insufficient evidence we mustdetermine whether the State has offered substantial evidence to
show the defendant committed each element required to be convicted
of the crime charged. State v. Williams, 154 N.C. App. 176, 178,
571 S.E.2d 619, 620 (2002). Our Supreme Court has defined
substantial evidence as relevant evidence sufficient to persuade a
rational juror to accept a conclusion. State v. Frogge, 351 N.C.
576, 584, 528 S.E.2d 893, 899, cert. denied, 531 U.S. 994, 148 L.
Ed.2d 459, 121 S. Ct. 487 (2000). Evidence must be considered in
the light most favorable to the State in deciding a motion to
dismiss for insufficient evidence. State v. Brown, 310 N.C. 563,
566, 313 S.E.2d 585, 587 (1984).
The North Carolina Controlled Substances Act defines
“'[d]eliver' or 'delivery'” to mean “the actual constructive, or
attempted transfer from one person to another of a controlled
substance, whether or not there is an agency relationship.” N.C.
Gen. Stat. § 90-87(7)(2004). We have held the crime of delivery of
a controlled substance under N.C. Gen. Stat. . 90-95(a)(1) to be
complete upon the transfer of a controlled substance from one
person to another. State v. Pevia, 56 N.C. App. 384, 387, 289
S.E.2d 135, 137, cert. denied, 306 N.C. 391, 294 S.E.2d 218 (1982).
The State presented evidence of defendant's delivery of
controlled substances at trial through the testimony of the two
females who were found in possession of the drugs that defendant
allegedly had given them to conceal. The credibility and the
weight given to the testimony of these witnesses is a matter for
the jury. State v. Upright, 72 N.C. App. 94, 100, 323 S.E.2d 479,484 (1984), cert. denied, 313 N.C. 610, 332 S.E.2d 82 (1985).
Their testimony that defendant had given them the controlled
substances, if believed by the jury, was sufficient to establish
the elements required for conviction of the offense of delivery of
a controlled substance. Consequently, we find no error in the
trial court's denial of defendant's motions to dismiss the felony
charges.
[5] Defendant next assigns as error the trial court's allowing
evidence of recordings of telephone calls made by defendant to his
mother. These calls were intercepted while he was a pre-trial
detainee. Defendant filed a motion to suppress this evidence prior
to trial. The trial court heard defendant's motion to suppress and
denied that motion. The standard of review in evaluating a trial
court's ruling on a motion to suppress is whether the court's
findings of fact are supported by competent evidence and if those
findings of fact support the trial court's conclusions of law.
State v. Pulliam, 139 N.C. App. 437, 439-40, 533 S.E.2d 280, 282
(2000).
Defendant has made only one assignment of error pertaining to
the intercepted phone calls as follows:
The trial court erred in allowing evidence of
the recording and interception of defendant's
phone calls while he was a pre-trial detainee,
in violation of the Due Process Clause of the
Fourteenth Amendment, U.S. Constitution, and
parallel provisions of the N.C. Constitution,
including Art. I, Sec.s 18, 19, 20, 21, 22,
23, 24, 35 and 36, and state and federal
electronic surveillance statutes.
This argument fails to assign error to any of the trial court's
findings of fact. If error is not assigned to any of the trial
court's particular findings of fact, those findings are presumed to
be supported by competent evidence and are therefore binding on
appeal. Anderson Chevrolet/Olds, Inc. v. Higgins, 57 N.C. App.
650, 653, 292 S.E.2d 159, 161 (1982). Consequently, our review in
this case is limited to whether the trial court's findings of fact
support its conclusions of law. Pulliam, 139 N.C. App. at 439-40,
533 S.E.2d at 282 (2002).
In his ruling from the bench on defendant's motion to suppress
the recordings of his intercepted phone calls, the trial judge
found as fact the following pertinent information:
(1) That there was a system in place on the Henderson County
Jail telephones which automatically records all outgoing
telephone calls;
(2) the system automatically gave notice to the persons
participating in the telephone calls from jail;
(3) the notice was in the form of a statement given prior to
accepting a call which states (in part) “This call is
subject to monitoring and recording. Thank you for using
Evercom.”;
(4) the warning was given before the conversation in
question;
(5) the parties that participated in the call (defendant and
his mother) consented, at least impliedly, to the
recording of the call.Based on these findings of fact, the trial court concluded as a
matter of law there were no violations of applicable North Carolina
or federal wiretapping laws and the recordings of the telephone
conversations were admissible.
The North Carolina and federal wiretapping laws, which are
substantially similar, generally prohibit the interception of other
parties telephone conversations. 18 U.S.C. . 2511 (2004); N.C.
Gen. Stat. . 15A-287 (2004). Both statutory schemes provide
certain exceptions, however. N.C. Gen. Stat. . 15A-287(a) provides
a person is guilty of a class H felony if that person intercepts
the wire or electronic communications of another in any of several
ways “without the consent of at least one party to the
communication.” The federal statute provides:
It shall not be unlawful under this chapter
for a person acting under color of law to
intercept a wire, oral, or electronic
communication, where such person is a party to
the communication or one of the parties to the
communication has given prior consent to such
interception.
18 U.S.C. . 2511(2)(c). Therefore, it is clear, under both the law
of our State and federal law, that the interception of telephone
calls does not violate the statutory prohibitions so long as at
least one party to the communication consents. Here, the trial
court found that both parties to the conversation heard the
recorded warning that the call was subject to monitoring and
recording and that they consented, at least impliedly, by
continuing with the conversation in the face of that warning. In his assignment of error on this issue defendant also
assigned error as to the admission of this evidence on the basis it
violated his constitutional rights under the Due Process Clause of
the Fourteenth Amendment of the U.S. Constitution and its parallel
provisions of the North Carolina Constitution. However, in his
brief, the only constitutional argument defendant raises is a
violation of his Fourth Amendment rights. Generally a
constitutional question not raised at trial and ruled upon by the
trial court will not be considered on appeal. State v. Cooke, 306
N.C. 132, 136, 291 S.E.2d 618, 620-21 (1982). At trial the sole
basis for defendant's motion to suppress evidence regarding the
intercepted phone calls was a violation of N.C. Gen. Stat. . 15A-
286. Consequently, defendant's constitutional arguments have not
been properly preserved for appeal and are not considered.
Accordingly, we find the trial court's findings of fact to
support its conclusions of law and hold no error in the admission
of the recordings of defendant's telephone conversations.
[6] Next, defendant argues the trial court erred in not
suppressing unduly prejudicial statements contained in the recorded
phone conversations with his mother in violation of Rule 403 of the
N.C. Rules of Evidence. There is no evidence in the record,
however, that defendant ever identified to the trial court the
specific statements he contends are unduly prejudicial or requested
the trial court to suppress the allegedly prejudicial statements
after the trial court denied his motion to suppress the evidence in
its entirety. In fact, defendant never raised Rule 403 as a basisfor his motion to suppress the phone call evidence in the motion
itself or in his oral arguments before the court regarding the
motion. Defendant's only mention of the allegedly inflammatory
statements was:
There also, your Honor, are many inflammatory
aspects about this evidence. And I would ask
you to consider whether its probative value
can outweigh its prejudicial effects. There
are many, many aspects of it which are not
relevant, and which are nothing more than
inflammatory.
This clearly refers to the evidence as a whole, does not specify
what is contended to be inflammatory and unduly prejudicial and
does not request that the trial court suppress anything other than
the evidence in its entirety. As defendant did not make a motion
to suppress only those portions of the evidence that were allegedly
inflammatory or object to the introduction of the evidence on the
basis that it violated Rule 403, this assignment of error was not
properly preserved for appeal and therefore, is overruled.
[7] Finally, defendant argues the trial court erred as a
matter of law by not ensuring there was a complete recordation of
jury selection, the verbatim jury instructions from the court,
bench conferences and arguments of counsel. It is the trial
judge's responsibility to ensure the court reporter makes a true,
complete, and accurate record of all statements from the bench and
other proceedings except for (1) jury selection in noncapital
cases; (2) opening and closing statements of counsel to the jury;
and (3) arguments of counsel on questions of law. N.C. Gen. Stat.
. 15A-1241(a). Jury selection in noncapital cases and the openingand closing arguments of counsel to the jury must be recorded upon
the motion of either party or on the judge's own motion. N.C. Gen.
Stat. . 15A-1241 (b). Routine, private bench conferences between
the trial judge and attorneys are not “statements from the bench”
and are not required to be recorded. State v. Cummings, 332 N.C.
487, 497-8, 422 S.E.2d 692, 697-8 (1992).
Defendant correctly concedes in his brief that the law does
not presently support his argument and that he is unable to show
prejudice from this alleged error. Therefore this assignment of
error is overruled.
Judgments on misdemeanor charges are vacated for lack of
subject matter jurisdiction in the trial court. No error on the
remaining issues.
Vacated in part; no error in part.
Judges HUNTER and CALABRIA concur.
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