Appeal by defendant from judgments entered 29 July 2005 by
Judge Orlando F. Hudson in Alamance County Superior Court. Heard
in the Court of Appeals 16 October 2006.
Attorney General Roy Cooper, by Special Deputy Attorney
General Kay Linn Miller Hobart, for the State.
Brannon Strickland, PLLC, by Anthony M. Brannon, for
Kevin Levant Phillips (defendant) was found guilty by a jury
of robbery with a dangerous weapon, assault with a deadly weapon
inflicting serious injury, and assault by pointing a gun. In a
separate proceeding, the jury found defendant to have attained the
status of a violent habitual felon. The trial court consolidated
defendant's two felony convictions and sentenced him as a violent
habitual felon to life imprisonment. See N.C. Gen. Stat. § 14-7.12
(2005). The court imposed a consecutive 150-day sentence for the
misdemeanor assault. Defendant gave notice of appeal in open court
from judgments entered 29 July 2005.
Defendant raises two issues on appeal
(See footnote 1)
, whether the trial
court erred: (I) by denying defendant's motion for a mistrial in
light of a pretrial newspaper article released during jury
selection; and (II) by allowing the State to amend a date on
defendant's habitual felon indictment.
Defendant first claims the trial court abused its discretion
by denying his motion for mistrial due to the jury venire's
exposure to an inflammatory and prejudicial article published
during jury selection on the front page of the
local newspaper, the
, on the morning of 26 July 2005. In denying the motion,
the court noted it had instructed the prospective jurors not to
read any news accounts of the case, and that there was no
indication that any member of the venire had read the article.
Therefore, rather than declaring a mistrial, the court allowed
defense counsel to ask the members of the venire if any of them had
been exposed to the article and to question any member so exposed
on voir dire
, as follows:
THE COURT: I think what you do, . . . I guess
you have a right to ask the people in the box.
[DEFENSE COUNSEL]: Yes, sir.
THE COURT: And I would ask that you find out
by way of a show of hands if someone had read
[DEFENSE COUNSEL]: Yes, sir. THE COURT: And then the way we can isolate
those jurors and then you may have to question
them individually. That's the best way to do
it. Just have to find a place to separate the
jurors, and those who have indicated that they
did read something, I think you have a right
to question them.
But the best way to do it would be to conduct
individual voir dire
which I think the case
law supports that in that kind of situation
when you're trying to determine if jurors have
read about the case and what it is they've
[DEFENSE COUNSEL]: That's all.
THE COURT: I'm not going to prevent you from
proceeding in that fashion, but make sure you
preface it so if somebody does raise their
hand, we'll take the names as we always do and
then we'll do individual voir dire on that.
[DEFENSE COUNSEL]: Thank you, Your Honor.
The subsequent jury selection proceedings are not included in the
stenographic trial transcript. An [a]ppellant may also designate
that the verbatim transcript will be used to present voir dire or
other trial proceedings where those proceedings are the basis for
one or more assignments of error and where a verbatim transcript of
those proceedings has been made. N.C. R. App. P. 9(c)(2). Here,
the record on appeal does not include the transcript of the portion
of the proceedings defendant assigns as error. Accordingly, we
have no basis on which to review the trial court's denial of
defendant's motion for a mistrial. See State v. Talley
, 110 N.C.
App. 180, 190, 429 S.E.2d 604, 609 (1993) (assignment of error
overruled where there was no basis _ either documents reflecting
the proceedings or verbatim transcript _ on which to review the
trial court's dismissal of defendant's motion). We review the trial court's denial of a mistrial in these
circumstances only for abuse of discretion. State v. Bonney
N.C. 61, 73, 405 S.E.2d 145, 152 (1991); State v. Cameron
, 283 N.C.
191, 196-97, 195 S.E.2d 481, 485 (1973). [I]n the absence of any
showing of prejudice, no abuse of discretion is shown. Error will
not be presumed. State v. McVay
, 279 N.C. 428, 433, 183 S.E.2d
652, 655 (1971) (citations omitted). We find no abuse of
discretion here. Although defendant now asserts that [t]he trial
court denied defense counsel the ability to question the jurors
about the offending article, his claim is contradicted by the
portion of the transcript excerpted above. Moreover, [t]he record
does not indicate that any prospective juror had read the newspaper
article or had seen or heard any other news releases pertaining
to [this] case[.] Nothing in the record shows that any juror had
been influenced in any manner by this publicity. State v.
, 283 N.C. 462, 465, 196 S.E.2d 736, 738 (1973).
Accordingly, defendant's assignment of error is overruled.
Defendant next raises two related arguments challenging the
trial court's decision to allow the prosecutor to amend the violent
habitual felon indictment at the conclusion of the evidence to
reflect the correct date of conviction of one of the two prior
violent felonies alleged therein. Over objection, the State was
allowed to alter the alleged date of defendant's conviction of
second-degree murder in 89 CRS 23556 from on or about 13 February
1990 to 7 February 1990. Citing the statutory proscription againstamended indictments, N.C. Gen. Stat. § 15A-923(e) (2005), defendant
first avers he was surprised, misled and prejudiced in his
preparation in defense of the habitual felon indictment. In his
second argument, defendant contends that the altered date of the
prior conviction was a substantive change to the charge against him
and amounted to the issuance of a de facto
indictment. He claims he was denied his right to an arraignment on
the superseding indictment, see
N.C. Gen. Stat. § 15A-941 (2005),
and his right not to be tried in the same week as the arraignment,
N.C. Gen. Stat. § 15A-943 (2005).
We find no error by the trial court. Although N.C. Gen. Stat.
§ 15A-923(e) provides that [a] bill of indictment may not be
amended[,] our courts have interpreted this provision to forbid
only those changes which would substantially alter the charge set
forth in the indictment. State v. Price
, 310 N.C. 596, 598, 313
S.E.2d 556, 558 (1984). A change in an indictment does not
constitute an amendment where the variance was inadvertent and
defendant was neither misled nor surprised as to the nature of the
charges. State v. Campbell
, 133 N.C. App. 531, 535-36, 515 S.E.2d
732, 735, disc. rev. denied
, 351 N.C. 111, 540 S.E.2d 370 (1999).
In State v. Locklear
, 117 N.C. App. 255, 260, 450 S.E.2d 516,
519 (1994), this Court held that a change in the date of a prior
conviction alleged in an habitual felon indictment does not
substantially alter the charge so as to constitute an amendment
to the indictment proscribed by N.C. Gen. Stat. § 15A-923(e).
Rather, we found that it was the fact that another felony wascommitted, not its specific date, which was the essential question
in the habitual felon indictment. Id.
; accord State v. Lewis
N.C. App. 277, 284-85, 590 S.E.2d 318, 324 (2004). Although
defendant was indicted as a violent habitual felon under N.C. Gen.
Stat. § 14-7.7 (2005), rather than an habitual felon under N.C.
Gen. Stat. § 14-7.1 (2005), we see no basis to distinguish Locklear
based on this difference. In each case, it is the fact and nature
of the prior convictions, rather than their specific dates, which
form the gravamen of the charge. See id
. Accordingly, the change
allowed by the court did not amend the indictment for purposes of
N.C. Gen. Stat. § 15-923(e). Id
Moreover, inasmuch as the change
did not substantially alter the charge alleged in the violent
habitual felon indictment, defendant's assertion of a right to a
new arraignment on the superseding charge is without merit.
To the extent defendant claims surprise or a lack of notice of
the charge based on the altered date of his prior conviction for
second-degree murder, we observe that the indictment as originally
issued accurately alleged the offense and county of the conviction,
the superior court file number, and the date he committed the
offense. Moreover, it identified the date of conviction as on or
about 13 February 1990, by no means excluding the amended
conviction date of 7 February 1990. On these facts, we hold that
the indictment sufficiently notified defendant of the particular
conviction that was being used to support his status as a[violent]
habitual felon. Lewis
, 162 N.C. App. at 284-85, 590 S.E.2d at
324. No error.
Judges TYSON and LEVINSON concur.
Report per Rule 30(e).