Opinion
No. COA12–546.
2012-12-4
STATE of North Carolina v. Jimmy Boyd STANDRIDGE.
Attorney General Roy Cooper, by Assistant Attorney General Donna B. Wojcik, for the State. Charlotte Gail Blake for defendant.
Appeal by Defendant from judgment entered 5 December 2011 by Judge Alan Z. Thornburg in Cherokee County Superior Court. Heard in the Court of Appeals 9 October 2012. Attorney General Roy Cooper, by Assistant Attorney General Donna B. Wojcik, for the State. Charlotte Gail Blake for defendant.
THIGPEN, Judge.
Jimmy Boyd Standridge (“Defendant”) appeals from a judgment entered upon a jury verdict finding him guilty of possession of a firearm by a felon. We find no error.
I. Factual & Procedural Background
At approximately midnight on or about 23 October 2008, gunshots were fired into a residence owned by Joe Wood in Cherokee County. Joe Wood (“Wood”) is Defendant's uncle and was employed as a lieutenant with the Cherokee County Sheriff's Office at that time. The following day, Defendant informed Wood that he had acquired a firearm, a Colt 357 revolver, that he believed to be stolen and possibly the same firearm used to shoot into Wood's home. Defendant, a convicted felon not authorized to possess a firearm, relinquished the Colt 357 to Wood, but stated that he wanted it back if it could not be traced to the shooting. Search warrants issued and executed for Defendant's residence that day turned up several other firearms and various rounds of ammunition. Defendant testified at trial that these firearms belonged to his late wife and that he did not feel he possessed them.
On 5 January 2009, Defendant was indicted on the charge of possession of a firearm by a felon in violation of N.C. Gen.Stat. § 14–415.1. The indictment was predicated upon Defendant's possession of the Colt 357 revolver. Defendant was also indicted on charges of possessing a stolen firearm and attaining habitual felon status. These matters came on for trial on 28 November 2011, at which time the parties stipulated to the following: that Defendant had been convicted of felony possession of marijuana in 1991; that Defendant provided Wood with a Colt 357 revolver on 24 October 2008; that said handgun had been reported stolen out of Gilmer County, Georgia, but Defendant had not been charged in connection with the theft; that gunshots were fired into Wood's residence on or about 23 October 2008; and that Defendant had been charged in connection with the shooting incident at Wood's residence, but those charges had been dismissed. Following a six-day trial, the jury convicted Defendant on the charge of possession of a firearm by a felon, and Defendant conceded his status as a habitual felon. The jury was unable to reach a verdict as to the charge of possession of a stolen firearm, and the trial court declared a mistrial with respect to that charge. The court assigned Defendant a prior record level of II and imposed a sentence within the presumptive range of 80 to 105 months imprisonment. Defendant appeals.
II. Analysis
A. Admission of Firearms Recovered at Defendant's Residence
Defendant first contends that the trial court erred in allowing the State to introduce into evidence handguns recovered during the search of his residence. This search was conducted pursuant to warrants issued in connection with the shooting incident at Wood's residence. The trial court admitted the handguns into evidence under Rule 404(b) as probative of Defendant's common plan or scheme to own firearms, Defendant's intent to possess the Colt 357 revolver, and Defendant's absence of fear of possessing firearms at his residence. Defendant argues introduction of this evidence was unfairly prejudicial and tended to confuse the issues before the jury because it was, in Defendant's words, “as if [he] were on trial not only for possessing a stolen Colt 357 handgun, but that he was on trial for keeping his late wife's handguns in his home after she died.”
Preliminarily, we note that Defendant challenges only the trial court's admission of the evidence under Rule 403, and we tailor our review accordingly. Rule 403 of the North Carolina Rules of Evidence provides that “[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” N.C. Gen.Stat. § 8C–1, Rule 403 (2011). We review the trial court's decision to admit or exclude evidence under Rule 403 for abuse of discretion. State v. Early, 194 N.C.App. 594, 599, 670 S.E.2d 594, 599 (2009). “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. Thompson, 314 N.C. 618, 626, 336 S.E.2d 78, 82 (1985).
Defendant cites Rule 404(b) in his brief, but makes no argument that the trial court erred in admitting the evidence under Rule 404(b). We accordingly deem the issue abandoned. SeeN.C.R.App. P. 28(b)(6) (2012).
Without offering any case law in support of his contention on this issue, Defendant essentially contends that the firearms at issue were of little probative value and that their introduction into evidence “could only mislead the jury about the one charge before it of possessing a firearm after being a convicted felon.” We agree the evidence was potentially prejudicial to Defendant in that it promoted confusion of the issues before the jury. Defendant was charged with possession of a firearm, and the revelation that ten other firearms had been recovered from his home would undoubtedly have had an impact on the jury. However, as our Supreme Court has noted, “all evidence offered by the State will have a prejudicial effect on a defendant; however, the prejudicial effect will vary in degree.” State v. Golphin, 352 N.C. 364, 434, 533 S.E.2d 168, 215 (2000). Once the trial court determined that the evidence was admissible under Rule 404(b)—a determination that Defendant does not challenge on appeal—the sole question presented was whether the evidence passed muster under Rule 403's balancing test. State v. DeLeonardo, 315 N.C. 762, 770, 340 S.E.2d 350, 356 (1986). The trial court recognized the potentially prejudicial impact of the contested evidence and issued the following limiting instruction to the jury:
Now, ladies and gentlemen, evidence has been received tending to show that handguns were recovered from the residence of the defendant. This evidence was received solely for the purpose of showing that the defendant had the intent, ... which is a necessary element of a crime charged in this case, that the defendant had the knowledge, which is a necessary element of a crime charged in this case, that there existed in the mind of the defendant, a plan, scheme, system or design involving the crimes charged in this case, the absence of mistake, absence of fear of possessing the 357 Colt revolver, which is the subject of the crimes charged.
Defense counsel thereafter brought to the court's attention that the court had omitted the final sentence of the limiting instruction. This prompted the trial court to re-issue the instruction recited above, adding the final sentence: “I will instruct you that if you believe this evidence, you may consider it but only for the limited purpose for which it was received.” (Emphasis added).
As this Court has previously stated,
[Where] the trial judge [gives] a limiting instruction with regard to the evidence in dispute, it follows that he recognized the potential for prejudice and exercised his discretion in permitting its introduction. This Court will not intervene where the trial court properly appraises the probative and prejudicial values of evidence under Rule 403.
State v. Miller, 197 N.C.App. 78, 91, 676 S.E.2d 546, 554–55 (2009) (citation omitted) (alterations in original). Furthermore, we disagree with Defendant's contention that the trial court's repetition of the limiting instruction “highlighted” the evidence, thereby drawing the jury's attention to it and exacerbating its prejudicial effect. To the contrary, we believe the trial court's re-issuance of the instruction emphasized the importance to the jury of compartmentalizing its use of the evidence for only those purposes for which the evidence was admitted. The trial court issued the limiting instruction to the jury to mitigate any prejudicial effect of the evidence at issue, and we must presume that the jury heeded the instruction. See State v. Jennings, 333 N.C. 579, 618, 430 S.E.2d 188, 208 (1993) (presuming the jury “ ‘attend[s] closely[,] ... strive[s] to understand, ... and follow[s] the instructions given them’ “ (quoting Francis v. Franklin, 471 U.S. 307, 324 n. 9 (1985))). We note the probative value of this evidence in undermining Defendant's testimony that he did not want the Colt 357 in or around his house because he was afraid of having firearms in his home and knew he was not supposed to have them there. We also note that there was other testimony at trial that tended to mitigate the prejudicial impact of this evidence-for instance, testimony that Defendant had stated to an investigator that he would possess handguns if he wanted to. We accordingly hold that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice and that the trial court's admission of the evidence did not amount to an abuse of discretion.
B. The Trial Court's Jurisdiction
Defendant next contends that the trial court erred in conducting court out of session and that this error renders the judgment entered against him a nullity. We disagree.
The issue of subject matter jurisdiction may be raised at any time, even for the first time on appeal. See State v. Wallace, 351 N.C. 481, 503, 528 S.E.2d 326, 341 (2000). The subject matter jurisdiction of the trial court is a question of law, which this Court reviews de novo. Ales v. T.A. Loving Co., 163 N.C.App. 350, 352, 593 S.E.2d 453, 455 (2004).
N.C. Gen.Stat. § 15–167 governs this issue and provides, in pertinent part, as follows:
Whenever a trial for a felony is in progress on the last Friday of any session of court and it appears to the trial judge that it is unlikely that such trial can be completed before 5:00 P.M. on such Friday, the trial judge may extend the session as long as in his opinion it shall be necessary for the purposes of the case, but he may recess court on Friday or Saturday of such week to such time on the succeeding Sunday or Monday as, in his discretion, he deems wise.... Whenever a trial judge continues a session pursuant to this section, he shall cause an order to such effect to be entered in the minutes, which order may be entered at such time as the judge directs, either before or after he has extended the session.
N.C. Gen.Stat. § 15–167 (2011). This Court's prior holdings have relaxed this provision's requirement that the trial judge “shall cause an order [extending the session of court] to be entered in the minutes[.]” In State v. Locklear, for example, the trial court extended a felony trial from a Friday, the last day of the court session, to the following Monday without entering a written order extending the session. 174 N.C.App. 547, 550–51, 621 S.E.2d 254, 256–57 (2005). Rejecting the defendant's argument that the judgment entered against him was a nullity, we held the following:
[T]here are sufficient statements made by the trial court in the record to comply with N.C. Gen.Stat. § 15–167 and to effectively extend the court session. The trial court had several discussions with counsel and the jury in open court, in which the trial court clearly referenced the extension of the session.... While it would have been the better practice for the trial court to expressly set forth in the minutes a formal order extending the court session, we hold that the trial court, in making repeated announcements in open court without objection from defendant, satisfied N.C. Gen.Stat. § 15–167.
Id. We reaffirmed this view more recently in State v. Hunt, holding that the trial court had sufficiently complied with N.C. Gen.Stat. § 15–167 where, although the trial court did not enter a formal order extending the term of the court, it “repeatedly announced that it was recessing court, with no objection by Defendant.” 198 N.C.App. 488, 495, 680 S.E.2d 720, 724–25 (2009).
Here, the session of court for Defendant's trial was scheduled for Monday, 28 November 2011, through Friday, 2 December 2011. As of that Friday at 5 p.m., however, the jury remained divided and was unable to reach a verdict as to the possession of a stolen firearm charge. The trial court excused the jurors and instructed them to return the following Monday, 5 December 2011, to resume deliberations. Defendant's trial was completed that Monday.
Although there is no indication in the record that the trial court entered a written order extending the session, our review of the trial transcript from Friday, 2 December 2011, reveals that the following exchange occurred in open court:
THE COURT: All right. We have all our jurors here. Ladies and gentlemen, thank you for your hard work thus far. We'll let you go and come back Monday morning and let you sleep on all this. I know you have other obligations, but this is certainly one of them. And I'm going to remind you again—you're tired of hearing me say this but it's very important over the weekend that you don't talk with anyone about this case. Don't let anybody ask you any questions. Don't talk to anybody. Don't communicate with anybody including members of your family about the case. That includes parties, witnesses, counsel, anybody in the community. That includes each other. Don't talk with each other. The only place you can talk about this case is in there in the jury room while you're deliberating. Avoid reading or watching or listening to any accounts of this trial and any media, and don't go to anyplace that's been referenced in this case. Anything from counsel that I forgot to tell the jury before we go home for the weekend?
[THE STATE]: No, Your Honor, thank you.
[THE STATE]: No, Your Honor.
[DEFENSE COUNSEL]: No.
THE COURT: All right, ladies and gentlemen, you'll be dismissed. We'll see you back here at 9:30 on Monday morning.... For the record, the verdict sheets have been retained by the clerk, and we'll be in recess until 9:30 Monday morning.
This exchange is similar to the open court exchange that transpired in Locklear, supra, which this Court held sufficient to extend the session of court and which consisted of the following:
THE COURT: ... It is Friday afternoon, after three o'clock[.] ... So, in my discretion, and I do apologize that you will need to come back on Monday, but, in my discretion, I'm going to let you go for the day but you will need to be back here on Monday. Now, on Mondays, we don't start at 9:30. We start at 10:00. And what will happen on Monday, that should be the last day, one way or the other in this case. But, as I told you at the outset, I can't make any guarantees, one way or the other, but you do need to be here Monday. You do need to be here at 10:00 o'clock.... As I indicated, please be mindful that the starting time on Monday is 10:00 instead of 9:30. When you come back on Monday, I ask that you come back to the same room that you've been coming back to.
....
THE COURT: It will give you an opportunity over the weekend to look at it to just make sure there's no error, omission or anything else that we need to clarify Monday morning. Anything else we need to take up today? State or Defendant?
[THE STATE]: No, Your Honor.
[DEFENSE]: No, Your Honor.
THE COURT: All right then, as I understand it, Monday morning we will basically conclude the charge conference and at that time move forward.
Locklear, 174 N.C.App. at 550–51, 621 S.E.2d at 256–57.
We are not persuaded by Defendant's attempt to distinguish Locklear from the case now before us. Analogous to the trial court in Locklear, the court below extended the court session from Friday through the following Monday without entering a written order referencing N.C. Gen.Stat. § 15–167 or indicating the extension. Just as in Locklear, the trial court here made statements in open court as to the extension, and the parties did not object to the extension. Thus, guided by precedent, we hold that the statements by the trial court here were sufficient to extend the session of court in compliance with N.C. Gen.Stat. § 15–167.
III. Conclusion
For the foregoing reasons, we find no error.
NO ERROR. Judges McGEE and BRYANT concur.
Report per Rule 30(e).