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.
I.
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.
II.
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.
Id.
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.
III.
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.
IV.
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.
V.
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).
VI.
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.
VII.
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.
VIII.
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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