STATE OF NORTH CAROLINA
No. 05 CRS 66800
GENARD ERIC MORGAN
Appeal by Defendant from judgment entered 27 July 2006 by
Judge Ronald E. Spivey in Guilford County Superior Court. Heard in
the Court of Appeals 10 September 2007.
Attorney General Roy Cooper, by Assistant Attorney General Diane Martin Pomper, for the State.
Sue Genrich Berry, for Defendant-Appellant.
Q: Now, you haven't had any communications
with [Defendant] of any sort, Is that
A: No, sir. . . .
Q: Have you spoken with him?
A: No, I haven't spoken to him, but he hasn't said anything to me, but, like, stuff out loud.
On redirect, counsel for the State asked Moon:
Q: What do you mean by he said stuff out
A: Like walking past.
Q: What did he say?
A: When we first walked past him, he was, like, This [n-----] got his attorney escorting him, like stuff like that, pointing. . . . Yesterday when we were coming through here, and I was just scared 'cause I thought maybe _ . . .
Q: Did . . . you overhear him saying anything else towards you? . . .
A: These girls don't know _ they don't know me. . . .
Q: Did he call you any name? . . .
We believe Moon's fear of Defendant was relevant to bolster Moon's credibility. Moon did not identify Defendant on the night of the crime, and Moon's fear of Defendant supplies a reason for her silence.
Furthermore, we conclude that there was not a reasonable probability that a different result would have been reached at trial had Moon's testimony pertaining to her fear of Defendant not been admitted. A careful review of the transcript discloses the insignificance of this section of Moon's testimony in relation to the trial proceedings as a whole. The case did not turn on this evidence, but rested instead on the testimony of four witnesses to the shooting, two of whom identified Defendant and heard gunshots, and two of whom saw Defendant with a gun. Mills testified that Defendant and two men came around the corner and just started shooting. . . . I [saw] [Defendant] fire and another guy [fire]. Mills testified that, as he lay in the field wounded, Defendant stood over me and told me I'd better not be playing dead and pulled the trigger two more times. In light of the overwhelming incriminating evidence against Defendant, we find the admission of Moon's testimony relating to her fear of Defendant, even if error, to be harmless. This assignment of error is overruled.
In the instant case, when asked by the court, do you now
stipulate that [Defendant is] a Level III for sentencing
purposes[,] defense counsel stated, [w]e would so stipulate.
Primarily, we note that Defendant's stipulation to his Prior Record
Level based on the substantial similarity of his out-of-state
convictions to offenses in North Carolina, was ineffective. This
is because our Court has determined that whether an out-of-state
offense is substantially similar to a North Carolina offense is a
question of law that must be determined by the trial court[.]
State v. Hanton, 175 N.C. App. 250, 254, 623 S.E.2d 600, 604
(2006). Determining a defendant's prior record involves 'a
complicated calculation of rules and statutory applications[.]'Id. (quoting State v. Van Buren, 123 Wn. App. 634, 98 P.3d 1235,
1241 (Wash. Ct. App. 2004)). We reasoned that:
The comparison of the elements of an out-of-state criminal offense to those of a North Carolina criminal offense does not require the resolution of disputed facts. Rather, it involves statutory interpretation, which is a question of law.
Hanton, 175 N.C. App. at 254-255, 623 S.E.2d at 604 (internal quotation marks and citations omitted). 'Stipulations as to questions of law are generally held invalid and ineffective, and not binding upon the courts, either trial or appellate. . . . This rule is more important in criminal cases, where the interests of the public are involved.' Id. (quoting State v. Prevette, 39 N.C. App. 470, 472, 250 S.E.2d 682, 683 (1979)).
However, even though a defendant's stipulation as to his prior record level is ineffective when the determination requires the legal conclusion that an out-of-state conviction is substantially similar to an offense in North Carolina, a defendant's ability to stipulate to the existence of the prior out-of-state convictions is not foreclosed. See State v. Morgan, 164 N.C. App. 298, 308, 595 S.E.2d 804, 811 (2004) (stating that [a]lthough . . . [d]efendant stipulated to the existence of the prior convictions, such stipulation did not extend to whether the out-of-state offenses were substantially similar to the respective North Carolina offenses).
Here, to show that Defendant's out-of-state convictions should be classified as Class I felonies, the State submitted three exhibits containing indictments, pleas, affidavits, and judgmentsagainst Defendant, as evidence of Defendant's prior criminal convictions from New York. The State also stated the following with regard to defendant's convictions:
. . . I would elaborate on what his convictions actually were. I believe [defendant convictions were] . . . Class I felonies. I believe sincerely that they could be proven as higher felonies, in that the first conviction . . . for the attempted first-degree assault . . . was part of a four- count indictment, of which the first count was attempted murder, second-degree, then assault, first-degree[.] . . . They took a plea of guilty to that in connection with those charges. So there was a significant charge there. The allegations, according to the indictment that I sent for, included that they had the intent to cause offense to one [M.D.], by beating, stabbing and kicking [M.D.], thereby inflicting serious wounds and injuries. . . . [T]hat is a certified copy of the file from New York.
I additionally have a judgment citing that as the first record violent felony for his second . . . violent felony conviction. And that was again an attempted assault in the first- degree. . . . Noting for the file again that this is a second violent conviction. . . . And then lastly, he was initially charged with robbery in the first degree[.] . . . That was reduced by way of plea to attempted robbery in the first degree. He pled guilty[.] . . . And the file accordingly indicates in that . . . the defendant at that point had displayed what appeared to be a pistol or other firearm in connection with that matter.
T he court then concluded pursuant to G.S. § 15A-1340.14(e), that the convictions in New York were properly classified as Class I felonies in North Carolina, by stating the following:
When it's an out-of-state conviction, there's some attempt to equate it to whatever it might be, had it happened in North Carolina, to make a determination of the value, if you will, of that prior conviction. In this case, theparties have just stipulated that it would be a Class I offense, even though there could be argument that they would be more severe, which would make a more severe punishment possible . But the Court will find that any irregularities would inure to the benefit of the defendant and will find them all to be Class I's, and eight record level points, for Prior Record Level III.
We conclude that Defendant's stipulation was effective as to his prior convictions. We further conclude that the State submitted sufficient evidence to satisfy by a preponderance of the evidence that Defendant's prior convictions were properly classified as Class I felonies pursuant to G.S. § 15A-1340.14(e). We find no error.
Defendant expressly abandons his remaining assignment of error, and we do not address it.
Chief Judge MARTIN and Judge STROUD concur.
Report per Rule 30(e).
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