STATE OF NORTH CAROLINA
v
.
Moore County
No. 03 CRS 56127
05 CRS 2077
05 CRS 51257
STEVEN GARRICK SMITH,
Defendant.
Roy Cooper, Attorney General, by Ashby T. Ray, Assistant
Attorney General, for the State.
Haral E. Carlin, for defendant-appellant.
ELMORE, Judge.
Steven Garrick Smith (defendant) was convicted of felonious
fleeing to elude arrest and found to be a habitual felon on 14
September 2005. Sentencing was postponed because defendant had
disappeared from the proceedings. On 13 December 2005, defendant
pled guilty to assault with a deadly weapon with intent to kill,
discharging a weapon into occupied property, and possession of a
firearm by a felon. Pursuant to defendant's plea agreement, these
cases were consolidated with his 14 September 2005 convictions, and
defendant received a sentence of 93 months to 121 months.
Defendant appeals these convictions. Defendant was driving a burgundy Ford Windstar van in Southern
Pines on 28 December 2003. Jack Austin, a patrol officer with the
Southern Pines Police Department, recognized defendant as the
driver of the van and called in defendant's name to dispatch.
After being informed that defendant's license had been revoked,
Officer Austin pursued defendant's van. As Officer Austin neared
defendant's van, he activated his blue lights and attempted to
initiate a traffic stop. Defendant did not stop, but instead
continued driving, sped through a stop sign, and turned onto South
Gaines Street, which was congested with people. Officer Austin
requested assistance and continued his pursuit. He estimated that
defendant had accelerated to forty-five to fifty miles per hour,
and noted that although his patrol car was traveling at forty miles
per hour in a twenty-five mile per hour zone, he was still unable
to catch up to defendant's vehicle. The speed limit returned to
thirty-five miles per hour further down South Gaines Street.
Defendant turned his van toward a house on South Gaines Street and
skidded twenty-five to thirty feet into the yard before stopping
three feet from the house. Defendant then exited the van and took
off on foot. Other officers arrived to help Officer Austin locate
defendant. Defendant was eventually found hiding under a van.
Defendant was unwilling to come out from under the van, and was
subsequently pepper-sprayed, after which defendant submitted to
arrest.
Defendant first argues that the trial court erred by denying
his motion to dismiss the charge of felonious fleeing to eludearrest based on the destruction of exculpatory evidence by the
State. Defendant further argues that by denying his motion, the
trial court required defendant to testify on his own behalf,
thereby shifting the burden of proof from the State to defendant
and compelling defendant to present incriminating testimony against
himself in violation of the United States and North Carolina
Constitutions. We find these arguments to be without merit.
Before the jury was empaneled, defense counsel filed a motion
with the district attorney's office requesting copies of the
dispatch tape from the afternoon of 28 December 2003, reasoning
that the tape “would be very relevant evidence and perhaps
exculpatory.” The prosecutor stated that when he had requested the
recordings from that day, he was informed that the Southern Pines
Police Department only keeps the recordings for thirty days.
Defendant made his request on 2 September 2005, nearly two years
after the incident. The prosecutor further responded, “Obviously
if it had been requested within thirty days of the incident those
tapes or any recordings would be available, but with the passage of
time and nearly two years or eighteen months approximately the
State is not in possession of . . . the recordings. And I . . .
believe . . . there is also not a written transcription.”
The trial court granted defendant's motion and required the
State “to provide to the defendant a copy of any 911 recording or
dispatch recordings in its possession and to provide such to the
defendant, if any exist.” It appears that there was no 911
recording and the prosecutor stated that “[t]he recording of thepolice dispatch is not in existence. It was at one point and is no
longer. The State has not tried to go around that.” The
prosecutor further stated that neither he nor anybody else on
behalf of the State had listened to the dispatch tape. Defendant
then made another motion to dismiss “pursuant to the fact that the
information [contained on the dispatch tape] is no longer
available.” Defense counsel argued that the evidence was
potentially exculpatory because it might show
that perhaps the chase was much shorter than
indicated and did not reach and could not have
reached the speeds indicated and that there
was not careless and reckless driving. And as
those are key aggravating factors which raise
this from a misdemeanor which is aggravated by
a series of other misdemeanor offenses to
felony level, we would say that that is very,
very relevant information. And there's no way
the defense can contradict the testimony of
the officers with respect to - with respect to
the information that would have been on the
tape.
The following exchange then ensued between the trial judge and
defense counsel:
THE COURT: Well, as I understand it, you're
saying your client can testify and contradict
the officers' testimony?
[DEFENSE COUNSEL]: Yes, Your Honor, but that
subjects him to cross examination and --
THE COURT: Well, of course it does, just like
you're going to cross examine the officers, I
mean. So it seems to me that's not quite an
accurate statement to say that the defendant
doesn't --
[DEFENSE COUNSEL]: Well --
THE COURT: _ have any evidence to present to -
to --
[DEFENSE COUNSEL]: that's true, Your Honor.
However --
THE COURT: _- to counteract the testimony of
the officer. Go ahead.
[DEFENSE COUNSEL]: However, my point would be,
Your Honor, that that would be evidence that
is not biased; it is not my client speaking;
it is not - it is not the officers'
recollection. It is what it is in terms of
the length of the chase, you know, what the
information was that was initially reported
and what the information that was reported in
at the conclusion of the matter and key
information that was reported along the way.
That would be very definitive, very clear; it
would be what it is. And it would be evidence
that would be helpful to the defendant and -
in preparing for the case and also in use for
cross examination purposes and also to raise
reasonable doubts.
THE COURT: The defendant's oral motion to
dismiss for the reasons stated by counsel is
denied.
Fleeing to elude arrest is a Class 1 misdemeanor if a person
“operate[s] a motor vehicle on a street . . . while fleeing or
attempting to elude a law enforcement officer who is in the lawful
performance of his duties.” N.C. Gen. Stat. § 20-141.5(a) (2005).
If two or more aggravating factors are present at the time the
violation occurs, then fleeing to elude arrest becomes a Class H
felony. N.C. Gen. Stat. § 20-141.5(b) (2005). These aggravating
factors include “[s]peeding in excess of 15 miles per hour over the
legal speed limit”; “[r]eckless driving as proscribed by G.S. 20-
140”; and “[d]riving when the person's drivers license is revoked.”
Id.
Defendant argues that the trial court committed reversible
error by “informing defense counsel that he would have to put hisclient on the witness stand and have him subjected to cross
examination . . . [which] shifted the burden of proof from the
State to prove the defendant's guilt beyond a reasonable doubt to
the defendant to prove his innocence.” We must disagree.
Defendant has not demonstrated how either the trial court's
statement or its denial of defendant's motion to dismiss shifted
the burden of proof. The dispatch recording was simply
unavailable, through no devious act by the prosecution. “Unless a
criminal defendant can show bad faith on the part of the police,
failure to preserve potentially useful evidence does not constitute
a denial of due process of law.” State v. Hunt, 345 N.C. 720, 725,
483 S.E.2d 417, 420 (1997) (citations omitted). The judge's
suggestion, that if defendant had a different recollection of the
chase he was welcome to testify to that effect, did not shift the
State's burden or infringe upon defendant's right to remain silent.
Defendant next argues that the trial court erred by denying
defendant's motion to dismiss the habitual felon indictment.
Defendant avers that as a result, he was improperly subjected to
double jeopardy and given a punishment grossly disproportionate to
the crime committed. Defendant argues that his conviction for
felony fleeing to elude arrest “is at it's [sic] base a
misdemeanor” because fleeing to elude arrest is a misdemeanor, as
are the two aggravating factors that elevated the crime to a
felony, driving while license is revoked and reckless driving.
Thus, under defendant's reasoning, the three misdemeanors should
add up to another misdemeanor, rather than the H felony specifiedin N.C. Gen. Stat. § 20-141.5(b). This particular argument has
already been addressed by this Court, and it was untenable then as
it is now:
Defendant suggests that the finding of
aggravating factors merely changes the level
of punishment, and not the actual definitional
classification of the crime. However, as the
SUPREME COURT OF NORTH CAROLINA recently noted
in State v. Jones, 358 N.C. 473, 598 S.E.2d
125 (2004), “'[w]hen the language of a statute
is clear and unambiguous, there is no room for
judicial construction, and the courts must
give it its plain and definite meaning.'”
Jones, 358 N.C. at 477, 598 S.E.2d at 128
(citation omitted). . . . Here, the statutory
language of N.C. Gen. Stat. § 20-141.5(b)
contains no ambiguity whatsoever, clearly
stating that the violation is a felony when
two or more aggravating factors are found.
State v. Scott, 167 N.C. App. 783, 786-87, 607 S.E.2d 10, 13
(2005).
Defendant further argues that the habitual felon law subjects
him to double jeopardy because he was “convicted once of driving
while licensed revoked and . . . [t]hat conviction [was] used once
again to enhance his level of punishment to the felony of fleeing
to elude arrest and then the third time to use the felony of
fleeing to elude arrest to enhance his sentence to a Class C felon
under the habitual felon statute.” However, “[o]ur courts have
determined that elements used to establish an underlying conviction
may also be used to establish a defendant's status as a habitual
felon.” State v. Glasco, 160 N.C. App. 150, 160, 585 S.E.2d 257,
264 (2003) (citing State v. Misenheimer, 123 N.C. App. 156, 158,
472 S.E.2d 191, 192-93 (1996). Defendant was properly convicted of felony fleeing to elude
arrest, and that felony conviction, in concert with three other
felony convictions, properly served as the basis for defendant's
habitual felon status. “When an habitual felon . . . commits any
felony under the laws of the State of North Carolina, the felon
must, upon conviction . . . be sentenced as a Class C felon.” N.C.
Gen. Stat. § 14-7.6 (2005). Accordingly, we find no error in
defendant's sentence.
Defendant next argues that the trial court committed
reversible plain error by not dismissing the habitual felon charge
because the State failed to prove beyond a reasonable doubt that
defendant was the same person alleged to have committed the other
felonies underlying the habitual felon charge. Defendant notes
that this error was not preserved by objection at trial, and
therefore argues plain error. Plain error, however, only applies
to jury instructions and evidentiary matters. State v. Freeman,
164 N.C. App. 673, 677, 596 S.E.2d 319, 322 (2004) (citations
omitted). “[P]lain error review is inappropriate as this
assignment of error concerns the sufficiency of the evidence, not
an instructional error or an error concerning the admissibility of
evidence.” State v. Bartley, 156 N.C. App. 490, 494, 577 S.E.2d
319, 322 (2003). Accordingly, this assignment of error is
dismissed.
Defendant next argues that the trial court erred by allowing
the State to amend the habitual felon indictment after empanelling
a jury. Defendant objected to this amendment, and argues that theamendment substantially altered and materially changed the charges
set forth in the indictment, thereby prejudicing defendant by
depriving him of the opportunity to adequately present his defense.
Again, we disagree.
One of the indictments incorrectly listed the date of
conviction as 18 November 1987, with an offense date of October,
1996. When the State submitted its certified copies of the prior
convictions, the parties discovered the error. The true date of
conviction was 18 November 1997. Defendant submitted that the
indictment was therefore “fatally flawed.” The State argued that
“the 1987 is nothing more than a typographical or a clerical error
which should be 1997.” The State explained that defendant had
“received notice as far as the offense date and the conviction as
far as it being off by one number, one numerical digit.” The State
moved to correct the typographical error, and the trial court
allowed it.
Generally, an indictment may not be amended. N.C. Gen. Stat.
§ 15A-923(3) (2005). However, this Court has defined “amendment,”
as used in N.C. Gen. Stat. § 15A-923(3), as “any change in the
indictment which would substantially alter the charge set forth in
the indictment.” State v. Locklear, 117 N.C. App. 255, 260, 450
S.E.2d 516, 519 (1994) (quoting State v. Price, 310 N.C. 596, 598,
313 S.E.2d 556, 558 (1984)). Our Supreme Court has upheld an
amendment to an indictment as long as there was no “change in the
essential element of the offense.” State v. Snyder, 343 N.C. 61,
67, 468 S.E.2d 221, 225 (1996). “The failure to state accuratelythe date or time an offense is alleged to have occurred does not
invalidate a bill of indictment nor does it justify reversal of a
conviction obtained thereon.” State v. Cameron, 83 N.C. App. 69,
72, 349 S.E.2d 327, 329 (1986) (citation omitted). Accordingly,
the trial court did not err by allowing the typographical error on
the indictment to be corrected.
Defendant finally argues that the trial court committed
reversible plain error by allowing the State to present testimony
that the neighborhood in which the crime was committed had a
reputation as being a high crime area. The particular exchange to
which defendant now objects occurred between the prosecutor and
Officer Kyle Marsh, who responded to Officer Austin's request for
assistance.
[PROSECUTOR]: Do you recall where you were and
what you were doing when that call first came
over?
OFFICER MARSH: I was at the Southern Pines
Town Garage. I was actually performing K-9
training at the time with narcotics. Officer
Austin has just checked out on patrol. We had
a specific code for checking out in high crime
areas. Officer Austin had done that and
advised the specific zone he was in. I heard
him come over the radio and ask communications
to check for a [10-27], a driver's license
check on Steven Garrick Smith.
Defendant avers that this “testimony was clearly hearsay.”
“Defendant is correct that the 'applicable general rule is that in
a criminal prosecution evidence of the reputation of a place or
neighborhood is ordinarily inadmissible hearsay.'” State v. Ligon,
332 N.C. 224, 235, 420 S.E.2d 136, 142 (1992) (quoting State v.
Weldon, 314 N.C. 401, 408, 333 S.E.2d 701, 705 (1985)). Nevertheless, we must disagree in this situation, and hold that
this testimony was not hearsay.
“Hearsay” is “a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.” N.C. Gen.
Stat. § 8C-1, Rule 801(c) (2005). A “statement” is defined as “(1)
an oral or written assertion or (2) nonverbal conduct of a person,
if it is intended by him as an assertion.” Id., Rule 801(a). Rule
802 prohibits the use of hearsay as evidence “except as provided by
statute or by these rules.” Id., Rule 802. In Ligon, our Supreme
Court held that the trial court did not err in admitting evidence
of the reputation of a defendant's neighborhood as “an area where
drugs are frequently bought and sold.” Ligon, 332 N.C. 224 at 235,
420 S.E.2d at 142. The Court held that such testimony was not
hearsay, but had been offered to explain “why the victim went there
in the first place and why the defendant was at the scene.” Id. at
235-36.
Officer Marsh offered information about the neighborhood's
reputation not for the truth of the matter asserted, that the
neighborhood was a “high crime area,” but to explain why he had
responded to Officer Austin's dispatch. “[O]ut of court statements
offered for purposes other than to prove the truth of the matter
asserted are not considered hearsay.” State v. Thomas, 350 N.C.
315, 339, 514 S.E.2d 486, 501 (1999). In addition, “statements of
one person to another to explain subsequent actions taken by the
person to whom the statement was made are admissible as nonhearsayevidence.” Id. We therefore hold that Officer Marsh's statement
about the neighborhood's reputation was not offered for the truth
of the matter asserted and is therefore admissible under our rules
of evidence. Accordingly, defendant's final argument is overruled.
No error.
Judges TYSON and GEER concur.
Report per Rule 30(e).
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