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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 2 October 2007
STATE OF NORTH CAROLINA
Nos. 03 CRS 239047
MARVIN COVINGTON 03 CRS 239050
03 CRS 241344
03 CRS 241346
03 CRS 241350
03 CRS 241674-76
03 CRS 241679-80
06 CRS 016344
Appeal by Defendant from judgments entered 27 April 2006 by
Judge James W. Morgan in Mecklenburg County Superior Court. Heard
in the Court of Appeals 22 August 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Chris Z. Sinha, for the State.
Geoffrey W. Hosford for Defendant.
In August 2003, Defendant twice kidnapped his former
(See footnote 1)
raping her during the second kidnapping.
After a trial by jury, Defendant was convicted of two counts of
first-degree kidnapping, first-degree rape, robbery with a
dangerous weapon, and multiple misdemeanors stemming from the
abductions. The jury also found that Defendant had obtained thestatus of a violent habitual felon. Defendant was sentenced to
life imprisonment without parole. Defendant appeals.
The State's evidence at trial tended to show that Defendant
and Julie began dating in 2001 and that in 2002 Defendant moved
into Julie's apartment in Charlotte where she lived with her son .
After the relationship deteriorated, Julie asked Defendant to move
out of the apartment. Defendant refused, Julie and her son thus
moved out in July 2003, and Julie obtained a domestic violence
protective order against Defendant in early August 2003 .
While at work on 15 August 2003, Julie called her son at their
new apartment and told him she would be returning home to have
lunch with him. As they were eating lunch, Defendant emerged from
the apartment's laundry room carrying a knife and threatening Julie
and her son. Defendant told the son that he would not hurt Julie
if the son did not call the police. Defendant forced Julie out of
the apartment with the knife and told Julie not to try
anything[.] Defendant made Julie drive him away from her
apartment in her car, but at some point thereafter Defendant and
Julie switched positions in the car so that Defendant was driving.
Defendant drove the car to a wooded area outside of Concord, north
of Charlotte. Defendant told Julie that he was going to kill
[her][.] Defendant made Julie take off her clothes, grabbed her
wrist, and began leading her away from the car into the woods.
When Defendant let go of her wrist, Julie ran back to the car,
grabbed the keys off the car's trunk, and escaped. Julie contactedthe police and returned to Charlotte . She did not see Defendant
again until 28 August 2003 .
On 28 August 2003, Defendant approached Julie while she was
working, placed his arm around her neck, and said, Let's go.
Defendant told Julie he had a knife. He forced Julie into her car
and drove the car to the end of a dead-end road in Charlotte.
Defendant brandished the knife and told Julie to remove her clothes
and to get in the backseat . Defendant raped Julie in the backseat .
Afterwards, Defendant drove the car to another location, took money
from Julie's purse, and told Julie she could leave.
Defendant was arrested on 29 August 2003 . On 22 September
2003, Defendant was indicted on multiple charges arising out of the
kidnappings . On 13 March 2006, Defendant was indicted for being a
violent habitual felon . Defendant was tried between 24 April and
27 April 2006, thirty-one months after being indicted in 2003.
Defendant first argues that the trial court erred by denying
his pro se motion in which he asserted a violation of his right to
a speedy trial as guaranteed by the Sixth and Fourteenth Amendments
to the United States Constitution and Article I, Section 18, of the
North Carolina Constitution. In response, the State contends that
Defendant was not entitled to a hearing on his pro se motion
because, at the time the motion was filed, Defendant was
represented by appointed counsel. See State v. Grooms, 353 N.C.
50, 61, 540 S.E.2d 713, 721 (2000) (Having elected for
representation by appointed defense counsel, defendant cannot alsofile motions on his own behalf or attempt to represent himself.
Defendant has no right to appear both by himself and by counsel.),
cert. denied, 534 U.S. 838, 151 L. Ed. 2d 54 (2001). It appears
from our review of the record that Defendant was represented by
counsel at the time he filed his pro se motion; consequently,
Defendant never properly raised his constitutional issue in the
trial court and has therefore waived appellate review of this
issue. Grooms, 353 N.C. 50, 540 S.E.2d 713.
Assuming arguendo that the speedy trial issue was properly
raised in the court below, Defendant's right to a speedy trial was
The United States Supreme Court has identified
four factors which courts should assess in
determining whether a particular defendant has
been deprived of his right to a speedy trial
under the federal constitution. Barker v.
Wingo, 407 U.S. 514, 530, 33 L. Ed. 2d 101,
117 (1972). These factors are: (1) the
length of the delay, (2) the reason for the
delay, (3) the defendant's assertion of [the]
right to a speedy trial, and (4) prejudice
resulting from the delay. State v. Willis,
332 N.C. 151, 164, 420 S.E.2d 158, 163 (1992).
We follow the same analysis in reviewing
speedy trial claims under Article I, Section
18 of the North Carolina Constitution. See
State v. Jones, 310 N.C. 716, 314 S.E.2d 529
(1984) and State v. Avery, 95 N.C. App. 572,
383 S.E.2d 224 (1989), disc. rev. denied, 326
N.C. 51, 389 S.E.2d 96 (1990).
State v. Webster, 337 N.C. 674, 678, 447 S.E.2d 349, 351 (1994).
First, [t]he length of the delay is not per se determinative
of whether a speedy trial violation has occurred. Id. (citing
State v. Pippin, 72 N.C. App. 387, 392, 324 S.E.2d 900, 904, disc.
review denied, 313 N.C. 609, 330 S.E.2d 615 (1985)). The length ofthe delay in this case, [w]hile not enough in itself to conclude
that a constitutional speedy trial violation has occurred, . . . is
clearly enough to cause concern and to trigger examination of the
other [Barker] factors. Id. at 679, 447 S.E.2d at 351 (citing
State v. McKoy, 294 N.C. 134, 141, 240 S.E.2d 383, 388 (1978));
see also Grooms, 353 N.C. 50, 540 S.E.2d 713 (holding that delay of
three years and 326 days from indictment to trial triggered
examination of other Barker factors).
Second, defendant has the burden of showing that the delay
was caused by the neglect or willfulness of the prosecution.
Grooms, 353 N.C. at 62, 540 S.E.2d at 721. The record on appeal
does not clearly establish the reason for the delay. In his pro se
motion, Defendant contends that the delays were due to the
assignment of four different assistant district attorneys to his
case in a deliberate attempt to delay the trial[.] Nothing in
the record supports Defendant's assertion. The record contains
only two documents filed in the case between the date of
Defendant's arraignment and the trial: Defendant's pro se motion
and a motion in limine filed the day the trial began. From our
review of the transcript, we are able to determine only that the
matter was continued once in 2006 at the request of defense counsel
due to his wife's illness . In sum, Defendant has not met his
burden of showing that the delay was caused by the neglect or
willfulness of the State.
Third, as stated above, defense counsel never filed any
motions asserting Defendant's right to a speedy trial. While thefailure to assert the speedy trial claim does not foreclose the
claim, it does weigh against [Defendant's] contention that he has
been denied his constitutional right to a speedy trial. Id. at
63, 540 S.E.2d at 722 (citing Webster, 337 N.C. at 680, 447 S.E.2d
Fourth, in considering whether Defendant has been prejudiced
by a delay between indictment and trial, our Supreme Court has
noted that a speedy trial serves
(i) to prevent oppressive pretrial
incarceration; (ii) to minimize anxiety and
concern of the accused; and (iii) to limit
the possibility that the defense will be
impaired. Of these, the most serious is the
last, because the inability of a defendant
adequately to prepare his case skews the
fairness of the entire system.
Webster, 337 N.C. at 681, 447 S.E.2d at 352 (quoting Barker, 407
U.S. at 532, 33 L. Ed. 2d at 118). Regarding this factor,
Defendant argued in his pro se motion that [t]he unreasonable
delays have given [Julie] opportunity to change and tailor her
story. We note, however, that Julie's testimony at trial was
substantially similar to the statements she gave to the police
immediately after the kidnappings.
Upon balancing the Barker factors, we hold that Defendant's
constitutional right to a speedy trial was not violated.
Defendant's argument is overruled.
Defendant next argues that the trial court erred in (1)
denying his pre-trial motion in limine and (2) permitting Julie totestify about statements purportedly made to her by [Defendant].
In his motion in limine, Defendant asked the trial court to
suppress statements Julie gave to police officers after the
kidnappings . At a hearing on the motion, the trial court ordered
portions of the statements redacted, but ruled that the statements
as modified could be admitted into evidence . At trial, Defendant
did not object to the admission of the statements . Our Supreme
Court has consistently held that '[a] motion in limine is
insufficient to preserve for appeal the question of the
admissibility of evidence if the defendant fails to further object
to that evidence at the time it is offered at trial.' State v.
Tutt, 171 N.C. App. 518, 520, 615 S.E.2d 688, 690 (2005) (quoting
State v. Hayes, 350 N.C. 79, 80, 511 S.E.2d 302, 303 (1999) (per
curiam)); see also State v. Oglesby, __ N.C. __, 648 S.E.2d 819
(2007) (discussing this Court's decision in Tutt); N.C. R. App. P.
10(b)(1). Defendant's argument that the statements were
erroneously admitted is without merit.
Defendant's additional contention that the trial court erred
in allowing Julie to testify as to certain statements allegedly
made by Defendant is similarly without merit. Specifically,
Defendant argues that the trial court erred in allowing Julie to
testify that (1) during the 15 August 2003 kidnapping, Defendant
told me to call [my son] and tell him that I had dropped
[Defendant] off downtown at the bail bondsman's office[,] and (2)
during the 28 August 2003 kidnapping, [Defendant] had told meverbally that he had killed before. At trial, however, Defendant
offered no objection to Julie's testimony concerning the bail
bondsman, and thus Defendant's argument to this Court is misplaced .
See N.C. R. App. P. 10(b)(1) (In order to preserve a question for
appellate review, a party must have presented to the trial court a
timely request, objection or motion, stating the specific grounds
for the ruling the party desired the court to make[.]).
On the other hand, Defendant's objection to Julie's testimony
concerning Defendant's statement about prior killings properly
preserved that issue for our review. The standard of review for
this Court assessing evidentiary rulings is abuse of discretion.
State v. Boston, 165 N.C. App. 214, 218, 598 S.E.2d 163, 166 (2004)
(citing State v. Meekins, 326 N.C. 689, 696, 392 S.E.2d 346, 350
(1990)). 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. Hayes,
314 N.C. 460, 471, 334 S.E.2d 741, 747 (1985) (citing State v.
Wilson, 313 N.C. 516, 330 S.E.2d 450 (1985)).
One of the misdemeanors for which Defendant was indicted was
communicating threats in violation of N.C. Gen. Stat. § 14-277.1(a)
(2003). The essential elements of this offense are:
(1) A willful threat to physically injure
another person . . . ;
(2) The threat is communicated to the other
person orally, in writing, or by any other
(3) The threat is made in a manner and under
circumstances which would cause a reasonable
person to believe that the threat is likely to
be carried out; and (4) The person being threatened believes that
the threat will be carried out.
Id. Immediately after Defendant's objection to Julie's testimony
about Defendant's prior killings, the trial court instructed the
jury that the statement was being allowed to show her state of
mind that she may have been frightened by [Defendant], not to
believe that [Defendant] committed some other crime. That Julie
may have been frightened goes to the fourth element of the offense.
Accordingly, we discern no abuse of discretion in the trial court's
ruling. Defendant's argument is overruled.
By his final argument, Defendant asserts that the trial court
erred in denying his motion to dismiss the violent habitual felon
indictment because the predicate felonies were not Class A through
E felonies at the time Defendant was convicted of the predicate
N.C. Gen. Stat. § 14-7.7(b) (2005) (stating that for
purposes of the violent habitual felon statute, violent felony
includes [a]ll Class A through E felonies). The predicate
offenses for which Defendant achieved violent habitual felon status
were Class H felonies at the time of his convictions for those
crimes but, at the time of his conviction in the present case, had
been reclassified by the Legislature as Class A through E
felonies. Defendant concedes that prior convictions . . . that
did not qualify as predicate felonies for violent habitual felon
status at the time of conviction but that do at present may be used
to achieve violent habitual felon status. See
, State v.
, 157 N.C. App. 22, 37, 577 S.E.2d 655, 665 (holding thatoffenses which have been upgraded by the General Assembly may be
used to achieve violent habitual felon status), appeal dismissed
and disc. review denied
, 357 N.C. 255, 583 S.E.2d 289 (2003).
Defendant's argument is without merit, and we decline his request
to reconsider and reverse the holding in Wolfe
. See In re Civil
, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (Where a
panel of the Court of Appeals has decided the same issue, albeit in
a different case, a subsequent panel of the same court is bound by
that precedent, unless it has been overturned by a higher court.).
In Defendant's trial, we find
Judges McGEE and SMITH concur.
Report per Rule 30(e).
We use the pseudonym, Julie, to protect the former
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