An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA04-1351


Filed: 6 September 2005

                                        Lenoir County
v .                                     Nos. 00CRS004217,

    Appeal by defendant from judgment entered 26 April 2001 by Judge Benjamin G. Alford in Lenoir County Superior Court. Heard in the Court of Appeals 7 June 2005.

    Attorney General Roy A. Cooper, III, by Assistant Attorney General Edwin Lee Gavin II, for the State.

    Hall & Hall Attorneys at Law, PC, by Susan P. Hall, for defendant-appellant.

    HUNTER, Judge.

    David Thurston Roberts (“defendant”) appeals from a judgment dated 26 April 2001 entered consistent with a jury verdict finding him guilty of possession of cocaine with intent to sell and deliver, sale of cocaine, and habitual felon status consistent with defendant's guilty plea to that charge. For the reasons stated herein, we find no error.
    The evidence tends to show that on 2 March 2000, Officer Jerry Dennis Ramsey (“Officer Ramsey”) was working as an undercover narcotics officer with the Kinston Police Department. Officer Ramsey, working with Detective Timothy Dilday (“Detective Dilday”), drove into an area of Kinston known for drug transactions in an unmarked red pickup truck. The truck was equipped with amonitoring device to permit Detective Dilday to communicate with Officer Ramsey during undercover transactions.
    While near the Kinston Post Office (“Post Office”) located on Independence Street, Officer Ramsey was flagged down by defendant. Officer Ramsey told defendant he wanted a twenty, a term used on the street for a twenty dollar crack rock. Defendant suggested they go to a different location where better quality drugs could be obtained. Defendant entered the truck and directed Officer Ramsey to several locations in an attempt to obtain drugs. At the third location, Officer Ramsey gave defendant twenty dollars and defendant entered a residence on East Street, returning with a plastic bag containing what Officer Ramsey believed to be crack cocaine. Officer Ramsey took defendant back to the Post Office, reported the transaction to Detective Dilday, and turned over the drugs. Detective Dilday observed defendant exit the truck at the Post Office and recognized him from previous visits to the community where defendant lived. Detective Dilday confirmed the identification by visiting defendant's residence later that day. Defendant was arrested on 13 April 2000 at the conclusion of the undercover operation.
    At trial, defendant gave notice that he wished to represent himself pro se. The trial court questioned defendant and informed him of the charges and potential sentences for the offenses, then permitted defendant to proceed pro se with stand-by counsel. The jury found defendant guilty of the charges of possession of cocaine with intent to sell and deliver, and of sale of cocaine. Defendantadmitted his habitual felon status. Defendant's offenses were consolidated for sentencing purposes and defendant was sentenced to a term of 151 to 191 months. Defendant appeals.


    Defendant first contends that the indictment for the principal felony offenses did not support sentencing defendant as an habitual felon. Defendant argues that as the indictment for the felony crimes failed to recite that defendant had attained habitual felon status, it was insufficient under N.C. Gen. Stat. § 14-7.3 (2003) to sustain a conviction as an habitual felon. We disagree.
    In State v. Hodge, 112 N.C. App. 462, 466, 436 S.E.2d 251, 254 (1993), the defendant was charged in one bill of indictment with felonious possession of cocaine, and in a separate bill of indictment with habitual felon status. The defendant contended that such separate indictments did not comply with N.C. Gen. Stat. § 14-7.3 and thus rendered the indictments invalid. Id. This Court stated that the Habitual Felon Act “'[p]roperly construed . . . clearly contemplates that when one who has already attained the status of an habitual felon is indicted for the commission of another felony, that person may then be also indicted in a separate bill as being an habitual felon.'” Hodge, 112 N.C. App. at 467, 436 S.E.2d at 254 (quoting State v. Allen, 292 N.C. 431, 433, 233 S.E.2d 585, 587 (1977)).
    Here, defendant was indicted on 2 October 2000 for the felonies of possession with intent to sell and deliver a controlled substance and sale of a controlled substance. A separateindictment was returned on the same day for habitual felon status, based on three previous convictions. Therefore, the separate indictments were sufficient under section 14-7.3 to sustain defendant's conviction as an habitual felon. See Hodge, 112 N.C. App. at 466-67, 436 S.E.2d at 254.

    Defendant next contends the trial court committed plain error in allowing non-testimonial identification procedures. Defendant contends that an out-of-court photographic identification of defendant by Officer Ramsey was plain error because of the extreme likelihood of misidentification under the circumstances. We disagree.
    “'The plain error rule applies only in truly exceptional cases. Before deciding that an error by the trial court amounts to “plain error,” the appellate court must be convinced that absent the error the jury probably would have reached a different verdict.'” State v. Riddle, 316 N.C. 152, 161, 340 S.E.2d 75, 80 (1986) (citations omitted). “'In other words, the appellate court must determine that the error in question “tilted the scales” and caused the jury to reach its verdict convicting the defendant.'” Id. at 161, 340 S.E.2d at 80 (citations omitted).
    In Neil v. Biggers, 409 U.S. 188, 199-200, 34 L. Ed. 2d 401, 411 (1972), the United States Supreme Court held that the factors to be considered in evaluating the likelihood of misidentification from an unnecessarily suggestive confrontation
        include the opportunity of the witness to view the criminal at the time of the crime, thewitness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.

    Here, Detective Dilday testified, “I believe there was a photograph obtained from the Lenoir County jail, but I'm not positive[,]” when questioned as to whether Officer Ramsey was shown a photograph of defendant. However, Detective Dilday further testified that when he saw defendant exit the vehicle at the Post Office, he “knew him by face[,]” and that after conversing with other detectives, he identified defendant's name. Detective Dilday testified that in order to verify defendant's identity, within an hour he went to the boarding house where defendant resided, knocked on his door, and confirmed defendant's identity. Defendant does not challenge Detective Dilday's identification of defendant as the perpetrator of the crime. Therefore, even assuming arguendo that admission of Detective Dilday's statement as to Officer Ramsey's identification was error as an unreliable photographic identification, Detective Dilday's own testimony provided evidence of a reliable identification of defendant. Thus, it cannot be said that such admission, even if error, “'“tilted the scales” and caused the jury to reach its verdict convicting the defendant.'” Riddle, 316 N.C. at 161, 340 S.E.2d at 80 (citations omitted). We, therefore, find the trial court did not commit plain error in admitting Detective Dilday's testimony.
    Defendant next contends the trial court prejudiced defendant by admonishing defendant repeatedly in front of the jury to follow the rules of evidence while representing himself pro se. We disagree.
    N.C. Gen. Stat. § 8C-1, Rule 611(a) (2003) requires that the court “exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence[.]” Id. However, N.C. Gen. Stat. § 15A-1222 (2003) also requires that “[t]he judge may not express during any stage of the trial, any opinion in the presence of the jury on any question of fact to be decided by the jury.” Id. Our Supreme Court has held that “[i]n evaluating whether a judge's comments cross into the realm of impermissible opinion, a totality of the circumstances test is utilized.” State v. Larrimore, 340 N.C. 119, 155, 456 S.E.2d 789, 808 (1995). A defendant has the burden of showing prejudice in order to receive a new trial when claiming that he was deprived of a fair trial by the judge's remarks. See State v. Barnard, 346 N.C. 95, 105-06, 484 S.E.2d 382, 388 (1997).
    Here, defendant cites several instances where the trial court instructed defendant while cross-examining Officer Ramsey to ask questions rather than make statements, and instructed the jury to disregard some of defendant's comments made during cross- examination. Defendant concedes the trial court made no comment as to the evidence in the case. A careful examination of the trial transcript shows no prejudice to defendant from the trial court's remarks. The trial court supervised and controlled the course ofthe trial and the scope and manner of witness examination with care and prudence. See State v. Gell, 351 N.C. 192, 207-08, 524 S.E.2d 332, 342-43 (2000). We therefore find defendant's assignment of error to be without merit.

    Defendant next contends defendant's due process rights were violated by the State's failure to provide discovery until the trial was about to begin. We disagree.
    N.C. Gen. Stat. § 15A-903(a) (2003) requires the State, upon motion of the defendant, to disclose certain evidence to the defendant, including statements, documents, test results, and the defendant's prior record. Id. The trial court is given discretion under N.C. Gen. Stat. § 15A-910 (2003) “whether to impose sanctions for a failure to comply with discovery requirements, including whether to admit or exclude evidence, and the trial court's decision will not be reversed by this Court absent an abuse of discretion.” State v. McClary, 157 N.C. App. 70, 75, 577 S.E.2d 690, 693 (2003). “An abuse of discretion results from a ruling so arbitrary that it could not have been the result of a reasoned decision or from a showing of bad faith by the State in its noncompliance.” Id.
    Here, on 16 August 2000, defendant's first attorney requested disclosure by the State of files involved in defendant's prosecution. No evidence in the record indicates that the State failed to comply with this request. The record does reflect, however, that subsequent to this request a motion to suppressevidence of statements made to police by defendant was made on 16 October 2000, and a motion to dismiss containing information regarding police analysis of defendant's case was made on 17 April 2001. Prior to trial, defendant's first and second assigned counsel were permitted to withdraw and a third counsel was assigned to defendant, who served as stand-by counsel during the trial.
    At trial, defendant gave notice that he wished to represent himself without assistance of counsel, then moved to dismiss the indictments for lack of a speedy trial. Defendant argued that he had not been presented with evidence against him, and that he had “asked for whatever evidence they _- to look at the files about what the statement says and stuff and I haven't received none [sic] of that.” Defendant further stated that, “I mean I asked these -- each one of these individual lawyers, let me see what they['re] saying. And they bring me nothing. They['re] telling me what they read on an open file policy. At this point I'm my own representative so can I see the open file?” The trial court denied defendant's motion to dismiss, but stated, “I don't know what  . . . this defendant was provided with or what his counsel was provided with, but if we could have some copies of that?” The State responded:
        Out of an abundance of caution, Judge, I'm going to have copies now -- the complete -- my complete file . . . . I'll have two copies, Judge. One that I will hand deliver to [defendant], and one for the court to include in the file in this case to document what he's received today, Judge.
Copies were presented to defendant later that day, and the trial court provided defendant an opportunity to review the documents with the assistance of stand-by counsel.
    Defendant fails to show that the trial court abused its discretion in failing to grant a continuance or other sanction for failure to comply with defendant's request in a timely manner. The evidence of record is inconclusive as to whether or not the State had, in fact, complied with the earlier request. Defendant further makes no showing of bad faith by the State if, in fact, the State failed to comply. Additionally, the trial court provided defendant with an opportunity to review the materials with the assistance of stand-by counsel before arguments began. As there was no showing of abuse of discretion, defendant's assignment of error is without merit.

    Defendant next contends that he was denied the right to a speedy trial. We disagree.
    The United States Supreme Court, in the case of Barker v. Wingo, 407 U.S. 514, 33 L. Ed. 2d 101 (1972), held that four factors should be considered in determining whether a defendant has been deprived of a speedy trial: “Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.” Id. at 530, 33 L. Ed. 2d at 117 (footnote omitted). Our Supreme Court has applied the same analysis when reviewing such claims under Article I, Section 18 of the North Carolina Constitution. See State v. Flowers, 347 N.C. 1, 27, 489S.E.2d 391, 406 (1997). “Defendant bears the burden of showing that the delay was caused by the neglect or willfulness of the prosecution.” State v. Allen, 166 N.C. App. 139, 145, 601 S.E.2d 299, 304 (2004).
    Here, defendant was arrested on 13 April 2000, indicted on 2 October 2000, and brought to trial on 25 April 2001. Defendant was appointed new counsel on three separate occasions in the six months between his indictment and trial after appointed counsel's motions to withdraw were granted by the trial court. Defendant was further evaluated for fitness to stand trial at the request of his third counsel. The trial court found that defendant's own actions were a significant factor in delay of the trial. As defendant failed to present any evidence that the delay was “'purposeful or oppressive'” or could have been avoided by reasonable effort by the prosecutor, we find no merit to this assignment of error. Allen, 166 N.C. App. at 146, 601 S.E.2d at 304 (citation omitted).

    Defendant next contends the trial court erred in denying defendant's motion for a change of venue made prior to jury selection. We disagree.
    N.C. Gen. Stat. § 15A-957 (2003) permits a defendant to move for change of venue on the grounds that prejudice against the defendant is so great that he cannot obtain a fair and impartial trial in that county. Id. “'The burden of proof in a hearing on a motion for change of venue due to existing prejudice in the county in which a prosecution is pending is upon the defendant.'” State v. Farmer, 138 N.C. App. 127, 130, 530 S.E.2d 584, 587 (2000) (citation omitted). “The defendant must demonstrate that there is a reasonable likelihood he will not receive a fair trial as a result of such prejudice.” Id. “The determination of whether the defendant has carried his burden rests within the sound discretion of the trial court, and will not be disturbed on appeal absent a showing of abuse of discretion.” Id.
    Here, defendant alleged that an incident fifteen years prior, in which he was accused of stealing a car belonging to the Lenoir County Clerk of Superior Court, prevented him from receiving a fair trial in Lenoir County. Defendant presented no evidence of a trial or conviction on such a charge to the trial court. Our Supreme Court has held that “[o]nly in the most extraordinary cases can an appellate court determine solely upon evidence adduced prior to the actual commencement of jury selection that a trial court has abused its discretion by denying a motion for change of venue due to existing prejudice against the defendant.” State v. Madric, 328 N.C. 223, 227, 400 S.E.2d 31, 34 (1991). As the record does not reveal extraordinary circumstances compelling a change of venue, the trial court's decision should not be disturbed and we find defendant's assignment of error to be without merit.

    Defendant next contends his prior record level was incorrectly calculated. Defendant alleges that the trial court erred in including felony convictions obtained in the same week as felonyconvictions used for defendant's indictment as an habitual felon in calculating defendant's prior record total. We disagree.
    In State v. Truesdale, 123 N.C. App. 639, 473 S.E.2d 670 (1996), this Court held that a trial court is not prohibited “from using one conviction obtained in a single calendar week to establish habitual felon status and using another separate conviction obtained the same week to determine prior record level.” Id. at 642, 473 S.E.2d at 672.
    Here, defendant was convicted on 2 July 1984 and 3 July 1984 of the felonies of possession of stolen goods, larceny, and felony hit and run. The conviction for larceny was used to support defendant's indictment as an habitual felon. The trial court properly used a separate felony conviction from July 1984, in addition to five prior felonies, to find a total of six prior felony convictions in calculating defendant's prior record level. We, therefore, find no error in the calculation of defendant's prior record level.

    Defendant finally contends the trial court erred in determining defendant was capable of proceeding to trial, as reasonable notice of a competency hearing was not given and defendant did not have the opportunity to present evidence to the trial court. We disagree.
    N.C. Gen. Stat. § 15A-1002 (2003) states that the question of a defendant's capacity may be raised at any time, and that when such a motion is made, the court shall hold a hearing to determinethe defendant's capacity to proceed. Id. If the trial court orders an examination, the statute requires that the hearing be held after the examination is completed, with reasonable notice to the defendant and prosecutor, and the opportunity for both to introduce evidence. Id. The determination of “whether a defendant has the capacity to stand trial is one within the trial court's discretion and, if supported by the evidence, its determination is conclusive on appeal.” State v. Wolfe, 157 N.C. App. 22, 30, 577 S.E.2d 655, 661 (2003). “The trial court has not erred if it does not make findings of fact where the evidence would compel the ruling made, but the better practice is to make findings and conclusions. In order to reverse, the defendant must show the trial court abused its discretion.” State v. O'Neal, 116 N.C. App. 390, 395-96, 448 S.E.2d 306, 311 (1994) (citations omitted).
    In State v. Young, 291 N.C. 562, 231 S.E.2d 577 (1977), our Supreme Court considered the issue of a trial court's failure to hold a required competency hearing. In Young, defense counsel made a motion as to the defendant's competency and a psychiatric evaluation was ordered by the trial court. Id. at 566, 231 S.E.2d at 580. The evaluation found no evidence of incompetency; however, no hearing was held by the trial court following receipt of the evaluation. Id. at 567, 231 S.E.2d at 580. The defendant did not object to the trial court's failure to conduct the hearing. Id. The Young Court noted that, “'it is a general rule that a defendant may waive the benefit of statutory or constitutional provisions by express consent, failure to assert it in apt time, or by conductinconsistent with a purpose to insist upon it.'” Id. (citation omitted). The Court further stated the corollary that “'“generally, in order for an appellant to assert a constitutional or statutory right in the appellate courts, the right must have been asserted and the issue raised before the trial court. Further, it must affirmatively appear on the record that the issue was passed upon by the trial court.”'” Id. (citations omitted). As the defendant had not previously raised the issue of lack of a competency hearing prior to his appeal, Young held that his statutory right to such a hearing had been waived. Id. at 567-68, 231 S.E.2d at 581.
    Here, defendant's counsel made a motion as to defendant's capacity and the trial court ordered an evaluation to be performed at Dorothea Dix Hospital. At trial, the State asked that the trial court make findings as to defendant's competency, and the trial court questioned defendant and made findings of competency after reviewing the letter from Dorothea Dix finding defendant competent to proceed to trial. Defendant did not object to the lack of notice or attempt to offer additional evidence, but responded affirmatively to questions by the trial court regarding his competency. Therefore, we find defendant's statutory right to notice and opportunity to present evidence at a competency hearing has been waived.
     In sum, we find no error in defendant's indictment as an habitual felon or in the trial court's admission of defendant's identification, denial of defendant's motion for change of venue,and admonishments of defendant in controlling questioning. We further conclude defendant's due process rights were not violated and that defendant's prior record level was properly calculated. Finally, we determine defendant waived his statutory right to notice and opportunity to present evidence at a competency hearing. We, therefore, find no error in defendant's trial and sentencing.
    No error.
    Judges McGEE and LEVINSON concur.
    Report per Rule 30(e).

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