Appeal by defendant from judgment entered 20 July 2004 by
Judge John O. Craig, III, in Guilford County Superior Court. Heard
in the Court of Appeals 18 May 2005.
Attorney General Roy Cooper, by Assistant Attorney General
Jane T. Hautin, for the State.
James M. Bell for defendant-appellant.
GEER, Judge.
Defendant Julius Kevin Edwards appeals from his conviction for
armed robbery, arguing that the trial court erred in denying his
motion to dismiss based on the sufficiency of the evidence.
Because the record contains ample evidence supporting the elements
of armed robbery, we uphold the trial court's denial of the motion
to dismiss. Defendant also pled guilty to having attained the
status of habitual felon, but contends on appeal that the trial
court improperly coerced him into that guilty plea. Based on our
review of the record, we disagree.
Facts
The State's evidence tended to show the following. On 9
September 2003, Robert Charles Ellis, the manager of a DollarGeneral Store in High Point, North Carolina, observed defendant on
a surveillance monitor shoplifting personal hygiene products.
Ellis sent another employee to call the police while he confronted
defendant. According to Ellis' testimony:
I confronted him at the end of the aisle.
Told him to stand there and wait for the
police. He takes a step back and pulls a
knife out of his back pocket. Has it in an up
over his head type gesture (indicating). I
jumped out of the way, let him have free way
to the door. Once he went out through the
door I came across the register counter,
pulled the silent alarm and was out the door
behind him.
Ellis further testified that he felt threatened by defendant's
gestures even though defendant did not speak during this encounter.
Defendant fled into a wooded area near the shopping center
with Ellis in pursuit. The police soon arrived with a canine unit
and began searching the woods. A police dog, Max, discovered
defendant hiding in a thick patch of kudzu. The police arrested
defendant immediately and found stuffed inside his left pants leg
four sticks of deodorant, two bottles of face wash, and one bottle
of cleanser. After searching the kudzu patch, the police recovered
a steak knife matching Ellis' description of defendant's knife.
Defendant offered no evidence. A jury convicted him of
robbery with a dangerous weapon, and he pled guilty to being a
habitual felon. The trial judge sentenced defendant to 156 to 197
months. Defendant timely appealed to this Court.
Discussion
We first acknowledge that, in addition to the two assignments
of error argued in defendant's appellate brief, defendant acting
pro se has attempted to file further assignments of error as an
addendum to the Record on Appeal, claiming "non-communication from
my [appellate] attorney refusal to assist me on these issues." A
defendant has no right to appear both
pro se and by counsel.
State
v. Grooms, 353 N.C. 50, 61, 540 S.E.2d 713, 721 (2000),
cert.
denied, 534 U.S. 838, 151 L. Ed. 2d 54, 122 S. Ct. 93 (2001).
Because defendant is represented by counsel on appeal, his
pro se
filings are not properly before this Court and we have not
considered them.
The first assignment of error contained in the record on
appeal challenges the trial court's denial of defendant's motion to
dismiss made at the close of the State's evidence. In ruling on a
criminal defendant's motion to dismiss, the trial court must
determine whether the State has presented substantial evidence (1)
of each essential element of the offense and (2) of the defendant's
being the perpetrator.
State v. Robinson, 355 N.C. 320, 336, 561
S.E.2d 245, 255,
cert. denied, 537 U.S. 1006, 154 L. Ed. 2d 404,
123 S. Ct. 488 (2002). "'Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion.'"
State v. Matias, 354 N.C. 549, 552, 556 S.E.2d
269, 270 (2001) (quoting
State v. Brown, 310 N.C. 563, 566, 313
S.E.2d 584, 587 (1984)
).
The trial court must view all of the evidence presented "in
the light most favorable to the State, giving the State the benefit
of every reasonable inference and resolving any contradictions in
its favor."
State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223(1994),
cert. denied, 515 U.S. 1135, 132 L. Ed. 2d 818, 115 S. Ct.
2565 (1995). Specifically, if a reasonable juror could draw an
inference of defendant's guilt from the evidence before him, the
evidence is sufficient to allow the jury to consider the issue.
This standard holds true even if the same evidence may also support
an equally reasonable inference of the defendant's innocence.
Matias, 354 N.C. at 551, 556 S.E.2d at 270.
The elements of robbery with a dangerous weapon under N.C.
Gen. Stat. § 14_87(a) (2003) are: "'(1) the unlawful taking or an
attempt to take personal property from the person or in the
presence of another (2) by use or threatened use of a firearm or
other dangerous weapon (3) whereby the life of a person is
endangered or threatened.'"
State v. Hope, 317 N.C. 302, 305, 345
S.E.2d 361, 363 (1986) (quoting
State v. Beaty, 306 N.C. 491, 496,
293 S.E.2d 760, 764 (1982),
overruled on other grounds by State v.
White, 322 N.C. 491, 293 S.E.2d 760 (1982)
). In this case,
defendant argues that the State offered no evidence of the third
element: that the life of any person was endangered or threatened
during the robbery. We disagree.
Defendant first contends that "[a]ssuming, arguendo, that the
Appellant actually had a knife in his hand, there is no evidence
that he did anything other than flee from the store as the manager
stepped aside." Ellis, however, specifically testified that
defendant raised a knife, that Ellis felt threatened, and that the
threat caused Ellis to move aside and allow defendant to flee. This evidence is sufficient to constitute substantial evidence to
meet the third element of armed robbery.
Defendant also contends that any threat perceived by Ellis was
not concomitant with the robbery, since defendant had already taken
the shoplifted items and concealed them on his person before he
ever pulled out his knife. As our Supreme Court has held, "to be
found guilty of armed robbery, the defendant's use or threatened
use of a dangerous weapon must precede or be concomitant with the
taking, or be so joined with it in a continuous transaction by time
and circumstances as to be inseparable."
Id. at 306, 345 S.E.2d at
364. In other words, "the defendant's use of force or intimidation
must necessarily precede or be concomitant with the taking before
the defendant can properly be found guilty of armed robbery. That
is, the use of force or violence must be such as to
induce the
victim to part with his or her property."
State v. Richardson, 308
N.C. 470, 477, 302 S.E.2d 799, 803 (1983).
As the
Hope opinion explains, however, "'the exact time
relationship, in armed robbery cases, between the violence and the
actual taking is unimportant as long as there is one continuing
transaction amounting to armed robbery with the elements of
violence and of taking so joined in time and circumstances as to be
inseparable.'"
317 N.C. at 305_06, 345 S.E.2d at 363_64 (quoting
State v. Lilly, 32 N.C. App. 467, 469, 232 S.E.2d 495, 496-97,
cert. denied, 292 N.C. 643, 235 S.E.2d 64 (1977))
. Here, the
continuous transaction requirement is met because the State showed
that defendant used the threat posed by his knife to clear apathway out of the store in order to remove the shoplifted items
from the premises.
State v. Gaither, 161 N.C. App. 96, 100, 587
S.E.2d 505, 508 (2003) ("The evidence also supports a finding that
while defendant's use of intimidation occurred after the taking of
property, defendant's effort to avoid apprehension by store and
mall security officers is an action continuous with the taking and
therefore constitutes a part of the robbery attempt."),
disc.
review denied, 358 N.C. 157, 593 S.E.2d 83 (2004). Defendant's
first assignment of error is, therefore, overruled.
In his second assignment of error, defendant argues that the
trial judge exerted undue pressure on defendant to enter a guilty
plea as to his habitual felon status. Specifically, defendant
contends that the trial court coerced him into pleading guilty to
the habitual felon charge, then made further coercive statements
designed to prevent him from withdrawing his guilty plea. We
analyze each set of statements separately.
While the jury was deliberating on the armed robbery charge,
the trial judge addressed defendant as follows:
Now, Mr. Edwards, I want to say to you
that I feel like I have been very fair in
making sure that the jury has all of the
possible options available to it in trying to
decide how to determine the outcome of your
case. However, as I'm sure Ms. Smith [defense
counsel] has explained to you, if the jury
finds you guilty of a felony, we must go to a
second phase in which we would have to
determine whether or not you qualify as an
habitual felon.
I want to say to you that because I have
been, have gone out of my way in an effort to
be fair to you, I would like for perhaps you
to consider returning the favor, and if theydetermine that you are guilty of a felony, I
would ask that you confer with Ms. Smith and
look into the possibility of going ahead and
pleading guilty to the habitual felon status,
because in my view it is merely a formality
that we have to go through . . . .
After the jury returned a guilty verdict, defense counsel indicated
that defendant was pleading guilty to the habitual felon charge,
whereupon the judge replied, "All right. Thank you very much, Mr.
Edwards. I appreciate that."
While we are concerned that the trial judge's remarks could be
read to inappropriately suggest that the judge's fair treatment of
defendant bestowed a favor on defendant, as opposed to having been
his right, we are unpersuaded, based on our review of the record,
that the trial judge exerted improper pressure upon defendant in
order to obtain a guilty plea.
See N.C. Gen. Stat. § 15A_1021(b)
(2003) ("No person representing the State or any of its political
subdivisions may bring improper pressure upon a defendant to induce
a plea of guilty or no contest.").
State v. Pait, 81 N.C. App.
286, 343 S.E.2d 573 (1986), offers an example of improper pressure
exerted by the trial judge. In that case, when defendant entered
a plea of not guilty, the trial judge "became visibly agitated,"
"said in what appeared to be an angry voice that he was tired of
'frivolous pleas,'" and "directed counsel to confer with defendant
and return with an 'honest plea.'"
Id. at 287_88, 343 S.E.2d at
575. On appeal, this Court observed: "That a trial judge's
unguarded remarks may unduly affect jurors is commonly known by the
profession and has been noted by our courts many times; it is just
as well known that such remarks can also unduly affect those whosepunishment, if any, for crime will be determined by the one making
the remarks."
Id. at 290, 343 S.E.2d at 576. The
Pait Court
ultimately held that the defendant's guilty plea was involuntary.
Id.
The challenged remarks in this case do not rise to the level
of the judge's remarks in
Pait. The trial judge's remarks cannot
be construed as demanding a guilty plea or as being overtly result-
oriented. Instead, the judge simply requested that defendant
confer with his counsel and "look into the possibility of going
ahead and pleading guilty to the habitual felon status." Defendant
was not rushed in making his decision since the judge made his
suggestion immediately after the jury began deliberating and
defendant did not express his intent to plead guilty until at least
an hour and 20 minutes later. For these reasons, defendant's
assignment of error is overruled with respect to the trial court's
comments while the jury was deliberating.
Defendant also challenges a series of remarks following
defendant's acknowledgment to the trial judge that he would plead
guilty to being a habitual felon and the court's dismissal of the
jury. Once defendant indicated his desire to plead guilty, the
trial judge asked counsel to work on the plea transcript while he
met with the jury in the jury room. After the trial judge returned
from dismissing the jury, counsel for defendant raised a question
regarding whether the habitual felon warrant had been properly
served. The following colloquy then took place: THE COURT: . . . . [I]f he's pleading
guilty to the habitual felon charge[,] service
is really immaterial at this point.
MS. SMITH: And if he withdraws that plea,
Judge, what's the status? I have to ask,
Judge. You know I have to ask.
THE COURT: Well, we would have to convene
a jury to _
MS. SMITH: On the basis of his not having
been officially served.
THE COURT: Well, we'd serve him. Then
we'd have to call in another jury. We'd have
a very short trial. It would be the same
result. And I frankly, based on the fact that
Mr. Edwards, while the jury was deliberating
Mr. Edwards indicated his willingness to plead
guilty in the event the jury found him guilty
of a felony and he again said that after the
verdict was returned, I would not be too happy
with your client, frankly.
The prosecutor then announced that a jury could be brought in the
next day and the trial judge agreed: "Yeah. We can still have a
jury come in tomorrow." After the prosecutor stated that an order
for arrest for the habitual felon indictment was being brought
over, defense counsel stated: "Judge, he'll continue with the plea
as indicated." The trial judge then asked defendant himself
whether he intended to go forward with pleading guilty and
defendant stated, "Yes, sir."
Defendant was sworn and the trial judge proceeded to make the
necessary inquiries required by the plea transcript. Defendant
stated that he understood that he had a right to plead not guilty
and to be tried by a jury as to the habitual felon charge. He also
stated that no promises or threats had been made to cause him to
enter into the guilty plea against his wishes and that he was doingso of his own free will, fully understanding what he was doing.
Following this inquiry, the trial judge indicated that he would not
sentence defendant that day because of questions regarding the
calculation of his prior record level, but would wait until the
next day to allow time to further consider the prior record level
question.
The next morning, during the sentencing hearing, defendant
expressed no interest in withdrawing his guilty plea, but instead
asked that the trial court take it into consideration during
sentencing: "And [defendant] asked that I remind the Court that on
yesterday the Court had indicated something to the effect that it
would take into consideration the fact that he would not put the
Court through having to have him served as an habitual felon and
then that being heard and brought back. And I ask the Court to
remind you of that and to take that into consideration."
Subsequent to sentencing, defendant asked to speak to the court
about two issues regarding jury selection and the State's closing
argument. The trial judge allowed defendant to make his arguments
personally and fully. At no time did defendant express any concern
about his guilty plea.
Whether the remarks at issue following dismissal of the jury
are viewed as occurring before the guilty plea or after the plea
had already been entered,
(See footnote 1)
it appears that the trial judge wasexpressing irritation about the issue of service being raised
following dismissal of the jury. Based on a review of all the
proceedings following the remarks, we cannot see how the trial
judge's comments can be viewed as coercing defendant into pleading
guilty or depriving defendant of his option to pursue a withdrawal
of his plea, had he chosen to do so. We, therefore, find no basis
for granting defendant a new trial on his habitual felon charge.
No error.
Judges HUNTER and HUDSON concur.
Report per Rule 30(e).
Footnote: 1