An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-74


Filed: 6 December 2005


v .                         Wayne County
                            No. 03 CRS 54530
LOURETHA MAE KING                 03 CRS 57326
                             03 CRS 57578

    Appeal by defendant from judgment entered 22 July 2004 by Judge D. Jack Hooks, Jr. in Wayne County Superior Court. Heard in the Court of Appeals 22 September 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Robert K. Smith, for the State.

    Appellate Defender Staples Hughes, by Geoffrey W. Hosford, for defendant-appellant.

    ELMORE, Judge.

    Louretha Mae King (defendant) appeals from her convictions for five counts of obtaining property by false pretenses, forgery and uttering, felony worthless check, financial identity fraud, felonious conspiracy, and violation of license provision. She argues that the trial court erred in joining her offenses, denying her Batson challenge, and denying her motion to suppress a statement. We determine that defendant received a trial free from prejudicial error and affirm her convictions.
    Defendant's charges arose out of several criminal transactions involving different victims and investigative officers, therefore the facts of each incident are laid out separately. On 3 April 2003 defendant met James Ham (Ham) to purchase his 1993 OldsmobileCutlass Sierra. Defendant agreed to purchase the car for $2,500.00 and wrote Ham a personal check bearing her name but also stating that she was doing business as “House of Faith.” When Ham attempted to cash the check, he learned defendant's account contained insufficient funds. After several more attempts at cashing the check during April, May, and June, Ham took the check to the Wayne County Sheriff's Department. During the time Ham was attempting to cash defendant's check, defendant asked him to hold the check, claiming that she was awaiting a tax refund.
    Investigating defendant's apparent worthless check to Ham, Detective Sergeant Morris (Morris) spoke with defendant when she voluntarily came to the Sheriff's Office to provide a statement on 12 May 2003. When defendant arrived at the office, Morris told her that she was not under arrest, showed her the location of the restrooms, and typed her statement as she spoke seated beside his desk. Defendant admitted she did not have sufficient funds to cover the $2,500.00 check she wrote to Ham.
    Defendant's next criminal incident involved Marie Hopp Scott (Scott), who met defendant through defendant's work with the House of Faith. Scott wanted to secure a home for her disabled brother. Scott agreed to place her brother at the House of Faith for $150.00 a month. Scott wrote a check for $150.00, left the payee section blank, and gave the check to her brother to give it to the defendant. Scott also gave defendant $100.00 cash after defendant informed her that the rent would be $250.00 instead of $150.00. Scott later learned that her check had been altered before beingdeposited. The check had been made out to Paula Summerville and the amount had been changed to $250.00. Defendant told Scott that she did not alter the check and did not know Paula Summerville.
    Scott contacted Mike Moore with the Goldsboro Police Department (Moore). Moore investigated the drivers license number written on the check by the cashier when it was cashed. Moore retrieved the image of the Summerville license, and based on his previous experience, he knew the photo to be that of defendant. On 20 August 2003 defendant gave a statement to Moore at the police department. She admitted that Scott's check had been altered and that she had cashed the check with Paula Summerville's identification. Moore arrested defendant immediately after her statement.
    The third incident involved Deborah Hood (Hood), who testified that she lost her wallet which included her license, credit cards, social security card, checkbook, and various forms of identification. Later, Hood learned that someone had cashed some of her checks and obtained credit in her name at various businesses. Hood received calls from collection agencies and had several problems with retailers after checks were written on her account with insufficient funds. She filed a complaint with the Wayne County Sheriff's Office which was investigated by Detective Sergeant Roscoe (Roscoe). Roscoe began by investigating the leads he had from the retailers who had interacted with the person using Deborah Hood's identification.    Jessica Blizzard accepted a credit application at Lowe's Home Improvement on 28 June 2003. She testified that the primary applicant was a white female and that the applicant presented a drivers license bearing the name Deborah Hood. A videotape showed Laurie Lemaster applying for credit at Lowe's with defendant standing nearby and making contact several times with Lemaster. The video also portrayed defendant purchasing something at the cash register and both women leaving with various purchases.
    Ruby Smith testified about a credit application at Friedman's Jewelers. Smith testified that Lemaster and defendant came to Friedman's on 28 June 2003. Lemaster completed a credit application and presented a drivers license bearing the name Deborah Hood. She then purchased a diamond tennis bracelet and left with defendant. Later that same day, defendant took an air conditioner and bracelet to Quality Jewelry and Pawn for sale. The name on the pawn ticket and the store computer was Paula Summerville. Bobby Reavis testified that he had done business with defendant under the names King and Summerville. On 2 July 2003, defendant again presented an air conditioner for sale but went to the pawn shop alone. The name Paula Summerville appeared on the pawn ticket again.
    Roscoe returned to Friedman's Jewelers after the store reported to Hood that the women who had previously used her identification had returned to the store to make another purchase. Roscoe was unable to locate defendant at this time but found an incomplete credit application at another mall retailer which borethe drivers license number of Paula Summerville. Roscoe was unable to locate Summerville and asked other detectives if anyone recognized her picture. Detective Morris advised that he thought the photo on Summerville's license was defendant. After confirming this, Roscoe arrested defendant and advised her of her Miranda rights. Defendant provided a voluntary statement on 11 August 2003 stating that Lemaster found Hood's wallet and asked her if she needed anything. Lemaster advised that she was applying for credit in Hood's name at Lowe's and Friedman's. Defendant said that she and Lemaster purchased one or more air conditioners and jewelry on those accounts.
    Based on all that was before them, the jury found defendant guilty on all charges. From judgments entered consistent with those verdicts, defendant appeals. First, defendant argues that the State committed purposeful racial discrimination during jury selection in violation of the Equal Protection Clause of the Fourteenth Amendment. See Batson v. Kentucky, 476 U.S. 79, 89, 90 L. Ed. 2d 69, 83 (1986). The trial court in the case at bar ruled that defendant failed to show a prima facie case of discrimination in the State's peremptory challenges and that, alternatively, the State had offered acceptable race neutral reasons for its use of peremptory challenges against two African American women. The State informed the trial court that it dismissed the first potential juror because she held three jobs that could pose time constraints on her ability to serve on the jury. The State then excused the second juror due to her difficulty in comprehending thequestions posed to her. Defendant argues on appeal that the State's reasons were not facially valid since the State never explained how such factors would limit the jurors ability to be fair and impartial.
    Batson was applied in this state by State v. Lawrence, 352 N.C. 1, 14, 530 S.E.2d 807, 815-16 (2000). Batson and Lawrence set forth a three part test for determining whether the State has engaged in purposeful racial discrimination in jury selection.
        First, the defendant must establish a prima facie case that the State has exercised a peremptory challenge on the basis of race. . . . Second, once the prima facie case has been established by the defendant, the burden shifts to the State to rebut the inference of discrimination by offering a race-neutral explanation for attempting to strike the juror in question. . . . The explanation must be clear and reasonably specific, but need not rise to the level justifying exercise of a challenge for cause. . . . The prosecutor is not required to provide a race-neutral reason that is persuasive or even plausible. . . . The issue at this stage is the facial validity of the prosecutor's explanation; and unless a discriminatory intent is inherent in the explanation, the reason offered will be deemed race-neutral. . . . Our courts also permit the defendant to introduce evidence at this point that the State's explanations are merely a pretext. . . . Third, and finally, the trial court must make the ultimate determination as to whether the defendant has carried his burden of proving purposeful discrimination. . . . As this determination is essentially a question of fact, the trial court's decision as to whether the prosecutor had a discriminatory intent is to be given great deference and will be upheld unless the appellate court is convinced that the trial court's determination is clearly erroneous.

Id. (internal citations and quotations omitted) (emphasis added). In determining whether defendant has established a prima facie caseof racial discrimination, courts may take a number of factors into consideration including: a pattern of strikes against black jurors, the prosecutor's questions and statements, and a disproportionate number of challenges striking African Americans from the jury pool. See Batson, 476 U.S. at 96-97, 90 L. Ed. 2d at 87-88; State v. Ross, 338 N.C. 280, 285, 449 S.E.2d 556, 561 (1994).
    In light of these factors, defendant's claim has no merit. Defendant offers no explanation as to how the State might have engaged in a systematic exclusion of African Americans from the jury pool. Although Batson states that a defendant may make a showing of racial discrimination based solely on the facts concerning jury selection in his case, the defendant in this case has offered no such evidence. See Batson, 476 U.S. at 95, 90 L. Ed. 2d at 87. Four African Americans in all were excused from the jury while one African American woman was admitted to serve. Moreover, defendant conceded to the dismissal of the first two based on their previous criminal convictions. The striking of more than one African American potential juror cannot alone constitute a prima facie case of purposeful discrimination. See State v. Walls, 342 N.C. 1, 36, 463 S.E.2d 738, 755 (1995) (no prima facie showing where prosecution excused 10 potential jurors, seven of whom were African American); State v. Ross, 338 N.C. 280, 286, 449 S.E.2d 556, 561 (1994) (“The mere facts that defendant is a member of a cognizable racial group and that the prosecutor used one peremptory challenge to exclude a member of defendant's race do not raise the necessary inference of discrimination on account of thejuror's race.”); State v. Beach, 333 N.C. 733, 740, 430 S.E.2d 248, 252 (1993) (peremptory challenge of sixty three percent of African American jurors does not by itself make a prima facie case of discrimination). Because we conclude that defendant failed to make a prima facie case of purposeful racial discrimination, we do not need to address the validity of the State's explanation for its use of peremptory challenges. See State v. Cofield, 129 N.C. App. 268, 275, 498 S.E.2d 823, 828 (1998) (“If the prima facie case is not established, it follows that the peremptory challenges are allowed.”).
    Second, defendant claims that the trial court abused its discretion when it joined the three incidents for a single trial. Joinder of two or more offenses is permissible when the offenses “are based on the same act or transaction or on a series of acts or transactions connected together or constituting parts of a single scheme or plan.” N.C. Gen. Stat. § 15A-926(a) (2003). Defendant, citing to State v. Holmes, 120 N.C. App. 54, 61, 460 S.E.2d 915, 920 (1995), argues that when there is no transactional connection between the offenses, then the ruling on joinder may be improper as a matter of law. Indeed, joinder may be improper when “the offenses are 'so separate in time and place and so distinct in circumstances as to render [a] consolidation unjust and prejudicial to defendant.'” State v. Miller, 61 N.C. App. 1, 4, 300 S.E.2d 431, 435 (1983) (emphasis in original) (quoting State v. Johnson, 280 N.C. 700, 704, 187 S.E.2d 98, 101 (1972)). And defendant here argues that the elapsed time between each offense was too great andthat the only common feature between each offense was the investigating police officer and identity of the defendant. Defendant cites State v. Corbett, 309 N.C. 382, 307 S.E.2d 139 (1983), as support for the trial court's error in joining crimes with different victims on different days without a showing of any common scheme for all crimes other than that the crimes have similar circumstances. But while the Court in Corbett did find error in joining several rape charges under N.C. Gen. Stat. § 15A-926(a), it also stressed that the trial court's error did not constitute prejudicial error, one that would have deprived the defendant of his ability to present a defense to the charges. See Corbett, 309 N.C. at 387-89, 307 S.E.2d at 143-44.
    Similarly in this case, defendant did not bring anything forth which shows that her defense was hindered or prejudiced by joining her offenses for trial. Defendant points to the guilty verdict as dispositive evidence of prejudice, but this is not enough. Without more, defendant has failed to demonstrate a manifest abuse of discretion by the trial court in joining the offenses. See State v. Montford, 137 N.C. App. 495, 499-00, 529 S.E.2d 247, 250-51 (2000); see also State v. Williams, 41 N.C. App. 287, 290, 254 S.E.2d 649, 652 (1979); State v. Wheeler, 34 N.C. App. 243, 247, 237 S.E. 2d 874, 877 (1977).
    Third, defendant argues that the trial court erred in denying her motion to suppress a statement she made on 20 August 2003 to Detective Moore. Defendant claims that she was in custody on 20 August 2003 during her conversation with Detective Moore and thatbecause she was not free to leave, Moore should have administered Miranda warnings prior to obtaining her statement.
    At trial, defendant objected to the introduction of her statement regarding altering the check from Scott. The trial court conducted a voir dire hearing on the statement's admissibility. Moore testified that defendant was not in custody at the time of the statement and therefore he did not administer Miranda warnings to her. At the time he spoke to defendant, Moore had already obtained a warrant charging defendant with forgery and uttering. Moore went to defendant's home in an unmarked police car and asked her would she mind coming to the police department for an interview. Moore informed her that he wanted to discuss the check that Scott had written to her. Defendant agreed, and was ultimately seated in an interview room with the door open and Moore told her that she could leave at any point. Moore wrote down what defendant told him, and afterwards defendant signed the statement.
    The trial court denied defendant's motion to suppress the 20 August 2003 statement first because the motion was untimely, since the State had given notice of its intent to use the statement in February and the defendant had not filed a pre-trial motion to suppress. Second, the trial court found that defendant gave her statement freely and voluntarily.
    N.C. Gen. Stat. § 15A-975(a) (2003) generally requires that a defendant move to suppress evidence of her statements via a pre-trial motion. “A motion to suppress may be made for the first time during trial when the State has failed to notify thedefendant's counsel . . . sooner than 20 working days before trial, of its intention to use the evidence[.]” N.C. Gen. Stat. § 15A- 975(b) (2003). The State gave notice to defendant on 26 February 2004 of its intention to use her statement to Moore, over four months prior to trial. Defendant failed to file a timely response to the notice within ten working days, see N.C. Gen. Stat. § 15A- 976(b), and without falling within an exception to the general rule has thus waived her ability to bring the motion or argue it on appeal.
        [W]hen the motion to suppress is based on [constitutional or procedural grounds] . . . then the motion to suppress must be made in limine. . . . When the motion to suppress must be made in limine, . . . but the defendant fails to make the motion at the proper time, then he has waived his right to contest the admissibility of the evidence at trial or on appeal on constitutional grounds.

State v. Tate, 300 N.C. 180, 183, 265 S.E.2d 223, 225-26 (1980).
    Therefore, for the reasons mentioned supra, we find no prejudicial error in defendant's trial.
    No error.
    Judges HUDSON and SMITH concur.
    Report per Rule 30(e).

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