STATE OF NORTH CAROLINA
v. Catawba County
Nos. 05CRS006885-86
CEDRIC CARVETTE ARNOLD
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Laura J. Gendy, for the State.
Thorsen Law Office, by Haakon Thorsen, for defendant-
appellant.
HUNTER, Judge.
Defendant appeals from a judgment entered on jury convictions
of uttering a forged instrument, obtaining property by false
pretense, and habitual felon status.
The State presented evidence tending to show that on 4 May
2004, Michael Brannock returned to his apartment in Hickory where
he stayed during weekends and found the door to the apartment open.
He also observed that the contents of a file cabinet were strewn
all over the kitchen area. Among the items in the file cabinet
were blank checks on the bank account of Brannock Masonry, a
business he closed in the early 1990's. He had also closed the
company's bank accounts. On 3 May 2004, a man came into La Milagrosa, a grocery store
in Hickory, and asked to cash a check. Manfredo Montano, who was
working as a cashier in the store at the time, asked the man, whom
he identified as defendant, for identification. Defendant produced
a social security card. Montano made a photocopy of the card and
check and cashed the check. Montano kept the photocopy.
The court admitted the photocopy into evidence. The check,
written on the account of Brannock Masonry, was made payable to
“Cedric Arnold.” The social security card was issued to “Cedric
Carvette Arnold.” Brannock identified the check as one of the
checks that had been in the file cabinet. He did not write the
check, did not sign it, and did not authorize anyone else to sign
it. Although the surname of the signature was his, the first name
was not.
Upon learning the check was dishonored by the bank, Montano
called the telephone number of the “owner of the check” listed on
the check. Brannock answered and explained that someone had broken
into his apartment and stolen checks.
On 18 May 2004 Officer Casey McClelland and another officer of
the Hickory Police Department interviewed defendant at the police
station concerning several break-ins of apartments in the area, as
well as the forgery of the check cashed at La Milagrosa. Defendant
objected to the admission of evidence obtained during the
interview. After conducting a voir dire, the court overruled the
objection. Among other things, defendant provided the officers
with a social security card as identification. Defendant stated tothem that the card had never been stolen or out of his possession.
The officers matched the card presented to them to the card that
was presented to Montano.
Defendant did not present any evidence.
Defendant brings forward four assignments of error. All are
without merit.
First, defendant contends the court erred by denying his
motion to suppress evidence obtained from defendant during the
interview at the police station. He argues the evidence should
have been excluded as the product of a custodial interrogation
without Miranda warnings having been given.
Warnings pursuant to Miranda v. Arizona, 384 U.S. 436, 444, 16
L. Ed. 2d 694, 706 (1966), are required only when a defendant is
subjected to custodial interrogation. State v. Gaines, 345 N.C.
647, 661, 483 S.E.2d 396, 404, cert. denied, 522 U.S. 900, 139 L.
Ed. 2d 177 (1997). As defined in Miranda, custodial interrogation
is “questioning initiated by law enforcement officers after a
person has been taken into custody or otherwise deprived of his
freedom of action in any significant way.” Miranda, 384 U.S. at
444, 16 L. Ed. 2d at 706 (footnote omitted). The determination of
whether a custodial interrogation occurred is a question of law
that this Court fully reviews. State v. Patterson, 146 N.C. App.
113, 121, 552 S.E.2d 246, 253 (2001). The test we must apply is
“whether a reasonable person in the suspect's position would feel
free to leave.” Gaines, 345 N.C. at 662, 483 S.E.2d at 405. In denying the motion in the case at bar, the trial court
found that upon arriving at the police station, defendant was told
that he was not under arrest. Officer McClelland left the
interview room to make a copy of the social security card. When
Officer McClelland returned, defendant had left the interview room
and walked into the lobby. Officer McClelland asked defendant
whether the card had ever been lost or stolen. Defendant responded
that it had not. At that point defendant left the police
department. All of these events occurred within a time span of
fifteen minutes. Based upon these findings, the trial court
concluded that the evidence was not obtained as a result of a
custodial interrogation.
We agree with the trial court's conclusion. Defendant was not
under arrest. He was free to walk about the police station and to
leave, which he did.
Second, defendant contends the court erred by denying his
motion for a mistrial made after the court called to the parties'
attention a statement made to him by a juror during a recess. The
judge related that as he was headed back to chambers, one of the
jurors stated to him: “'Sir, God bless you, I pray for our court
system every day[.]'” Defendant “for the record” moved for a
mistrial and stated “other than that I don't think there's much
else that we can say about it.”
“[A] motion for mistrial must be granted if there occurs an
incident of such a nature that it would render a fair and impartial
trial impossible under the law.” State v. McCraw, 300 N.C. 610,620, 268 S.E.2d 173, 179 (1980). However, “[a] mistrial should be
granted only when there are improprieties in the trial so serious
that they substantially and irreparably prejudice the defendant's
case and make it impossible for the defendant to receive a fair and
impartial verdict.” State v. Laws, 325 N.C. 81, 105, 381 S.E.2d
609, 623 (1989), judgment vacated on other grounds, 494 U.S. 1022,
108 L. Ed. 2d 603 (1990). “In the event of some contact with a
juror it is the duty of the trial judge to determine whether such
contact resulted in substantial and irreparable prejudice to the
defendant. It is within the discretion of the trial judge as to
what inquiry to make.” State v. Willis, 332 N.C. 151, 173, 420
S.E.2d 158, 168 (1992). “The determination of the existence and
effect of jury misconduct is primarily for the trial court whose
decision will be given great weight on appeal.” State v. Bonney,
329 N.C. 61, 83, 405 S.E.2d 145, 158 (1991).
The decision whether or not to declare a mistrial is
addressed to the discretion of the trial court. State v. Upchurch,
332 N.C. 439, 453, 421 S.E.2d 577, 585 (1992). “A trial court may
be reversed for an abuse of discretion only upon a showing that its
ruling was so arbitrary that it could not have been the result of
a reasoned decision.” State v. Wilson, 313 N.C. 516, 538, 330
S.E.2d 450, 465 (1985).
In denying the motion, the judge stated that he did not see
the remark being made in the presence of other jurors. He also
noted that “[i]t was a totally neutral comment in the sense that it
didn't say anything about this case or show any predisposition orbias on the part of this case to say that she prays for the court
system every day and so I will deny the motion for mistrial.” We
find no abuse of discretion.
Third, defendant contends he was denied effective assistance
of counsel because counsel failed to request examination of the
juror who made the statement to the judge. To prevail on a claim
of ineffective assistance of counsel, a defendant must show (1)
counsel's performance was seriously deficient, and (2) his defense
was so prejudiced by counsel's deficient performance that it is
reasonably probable that had the errors not been made, the outcome
of the proceeding would have been different. State v. Braswell,
312 N.C. 553, 562-63, 324 S.E.2d 241, 248-49 (1985). Defendant did
not make this showing. The juror's statement failed to suggest any
bias or expression of opinion as to defendant's guilt or innocence.
The evidence of defendant's guilt is also overwhelming. This
assignment of error is overruled.
Finally, defendant contends the court erred by denying his
motion to dismiss the habitual felon indictment because it failed
to allege the name of the state against whom the prior felony
offenses were committed. He argues the present indictment never
mentions the offenses were committed against the State of North
Carolina or in violation of North Carolina statutes. He
acknowledges, however, that the indictment does contain references
to “NC” and “NCGS.”
N.C. Gen. Stat. § 14-7.3 (2005) provides in pertinent part
that “[a]n indictment which charges a person with being an habitualfelon must set forth . . . the name of the state or other sovereign
against whom said felony offenses were committed . . . .” Id.
Strict compliance with this requirement has not been mandated by
the appellate courts because the purpose of the habitual felon
indictment “is simply to provide notice to the defendant that he
will be tried as a recidivist.” State v. Montford, 137 N.C. App.
495, 500, 529 S.E.2d 247, 251, cert. denied, 353 N.C. 275, 546
S.E.2d 386 (2000). We have stated “the name of the state need not
be expressly stated if the indictment sufficiently indicates the
state against whom the felonies were committed.” State v. Mason,
126 N.C. App. 318, 323, 484 S.E.2d 818, 821 (1997), cert. denied,
354 N.C. 72, 553 S.E.2d 208 (2001). We have also held that an
habitual felon indictment which charges each underlying conviction
as a violation of an enumerated North Carolina General Statute “is
a sufficient statement of the name of the state or sovereign
against whom the felonies were committed to comport with the
requirements of [N.C. Gen. Stat.] § 14-7.3[.]” State v. Williams,
99 N.C. App. 333, 335, 393 S.E.2d 156, 157 (1990).
A representative allegation in the indictment at bar charges
that “[o]n or about DECEMBER 14, 1988[,] the above named defendant
did commit the felony of BREAKING AND ENTERING, in violation of
NCGS 14-54, and that on or about FEBRUARY 15, 1989[,] the above
named defendant was convicted of the felony of BREAKING AND
ENTERING in the Superior Court of MECKLENBURG County, NC[.]” We
conclude the usage of generally accepted and understood
abbreviations to refer to North Carolina and the North CarolinaGeneral Statutes is sufficient to comply with the requirements of
N.C. Gen. Stat. § 14-7.3.
We hold defendant received a fair trial, free of prejudicial
error.
No error.
Chief Judge MARTIN and Judge McGEE concur.
Report per Rule 30(e).
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