Opinion
NO. COA12-432
01-15-2013
STATE OF NORTH CAROLINA v. TAD AARON NAVEY
Attorney General Roy Cooper by Special Deputy Attorney General E. Burke Haywood for the State. Appellate Defender Staples S. Hughes by Assistant Appellate Defender Anne M. Gomez for defendant-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
Mecklenburg County
No. 11 CRS 204921
Appeal by defendant from judgment entered 13 October 2011 by Judge F. Lane Williamson in Mecklenburg County Superior Court. Heard in the Court of Appeals 26 September 2012.
Attorney General Roy Cooper by Special Deputy Attorney General E. Burke Haywood for the State.
Appellate Defender Staples S. Hughes by Assistant Appellate Defender Anne M. Gomez for defendant-appellant.
STEELMAN, Judge.
The trial court did not abuse its discretion in not sending a transcript of testimony back to the jury when it was not specifically requested. While the trial court erred in sending an exhibit back to the jury room without defendant's consent, he cannot complain on appeal that the exhibit was not redacted, when he failed to object when the exhibit was offered and received into evidence. Defendant failed to preserve issues pertaining to his cross-examination by the prosecutor. The questions asked by the prosecutor did not constitute plain error. Defendant failed to show that the prosecutor's closing argument was so grossly improper as to require the trial court to intervene ex mero motu. Defendant's argument of ineffective assistance of counsel is dismissed.
I. Factual and Procedural Background
On 29 January 2011, a man picked up Tad Aaron Navey (defendant) and Michael Pugh from a homeless shelter in Catawba County to perform day labor. They were driven from Catawba County to Mecklenburg County. Defendant became worried that the driver wanted him to assist in a crime and requested to be dropped off near a service station. Defendant and Pugh observed a Ford Explorer with the engine running sitting outside of the service station. They got into the vehicle and drove away. The owner of the vehicle observed the theft and requested that the cashier call 911.
Sergeant Luthart of the Huntersville Police Department received a dispatch that the Ford Explorer had been stolen from the service station, that it was occupied by two white males, and headed west on Sam Furr Road. He observed the vehicle drive through a red light "at a very fast speed[.]" Sergeant Luthart gave chase and estimated that the vehicle's speed exceeded 70 miles per hour in a 45 miles per hour zone. The officer pursued the vehicle, and it eventually stopped.
Defendant was indicted for felonious larceny of a motor vehicle, possession of a stolen vehicle, felonious speeding to elude arrest, and being an habitual felon. On 13 October 2011, the jury found defendant guilty of all charges, and he then pled guilty to being an habitual felon. The trial court arrested judgment on the larceny charge. The remaining charges were consolidated for judgment, and defendant was sentenced to an active term of imprisonment of 108-139 months.
Defendant appeals.
II. Jury Request
In his first argument, defendant contends that the trial court erred in failing to exercise its discretion when the jury requested "all evidence" during its deliberations. We disagree.
A. Preservation
Defendant did not object at trial. However, the failure to object at trial does not preclude defendant from seeking appellate review of the trial court's failure to comply with N.C. Gen. Stat. § 15A-1233(a). State v. Pointer, 181 N.C. App. 93, 99, 638 S.E.2d 909, 913 (2007); State v. Ashe, 314 N.C. 28, 331 S.E.2d 652 (1985).
B. Standard of Review
"In order to be entitled to a new trial, defendant must demonstrate that there is a reasonable possibility that a different result would have been reached had the trial court's error not occurred." State v. Nobles, 350 N.C. 483, 506, 515 S.E.2d 885, 899 (1999) (specifically discussing error asserted under N.C. Gen. Stat. § 15A-1233(a)).
C. Analysis
N.C. Gen. Stat. § 15A-1233 provides that when the jury "requests a review of certain testimony or other evidence" the trial court may permit the jury to reexamine the material in the courtroom. N.C. Gen. Stat. § 15A-1233(a) (2011).
In State v. Lewis, 321 N.C. 42, 361 S.E.2d 728 (1987), the jury requested "any evidence that's been presented in the case, either by transcript or by pictures[.]" Lewis, 321 N.C. at 51, 361 S.E.2d at 734. The trial court "told the jurors that they could examine the photographs or other exhibits" and "gave a negative answer to a review of the transcript[.]" Id. Our Supreme Court held that the trial court "properly exercised its discretion in accordance with the statute." Lewis, 321 N.C. at 52, 361 S.E.2d at 734.
In the instant case, the written note sent from the jury stated: "All evidence."
The trial court granted the request as to the exhibits that were introduced into evidence, but declined to submit a transcript of the testimony, which was not specifically requested. In Lewis, the jury specifically requested the transcript. Lewis, 321 N.C. at 51, 361 S.E.2d at 734. The trial court in this case properly exercised its discretion under N.C. Gen. Stat. § 15A-1233.
This argument is without merit.
III. Admission of Testimony
In his second argument, defendant contends that the trial court committed plain error in allowing testimony from Sergeant Luthart that "a defendant's license is not revoked if he is not present in court." We disagree.
A. Standard of Review
We review this issue for plain error only. State v. Rourke, 143 N.C. App. 672, 675-76, 548 S.E.2d 188, 190 (2001).
[T]he plain error rule . . . is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a "fundamental error, something so basic, so prejudicial, so lacking in itsState v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (alterations in original) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982) (footnotes omitted)).
elements that justice cannot have been done," or "where [the error] is grave error which amounts to a denial of a fundamental right of the accused," or the error has "'resulted in a miscarriage of justice or in the denial to appellant of a fair trial'" or where the error is such as to "seriously affect the fairness, integrity or public reputation of judicial proceedings" or where it can be fairly said "the instructional mistake had a probable impact on the jury's finding that the defendant was guilty."
To show plain error, "a defendant must demonstrate that a fundamental error occurred at trial. To show that an error was fundamental, a defendant must establish prejudice—that, after examination of the entire record, the error had a probable impact on the jury's finding that the defendant was guilty." State v. Lawrence, __ N.C. __, __, 723 S.E.2d 326, 334 (2012) (internal citation and quotation marks omitted).
A defendant who fails to object to evidence at trial bears the burden of proving that the trial court committed plain error. Rourke, 143 N.C. App. at 676, 548 S.E.2d at 190. "[T]he test for 'plain error' places a much heavier burden upon the defendant than that imposed by N.C.G.S. § 15A-1443 upon defendants who have preserved their rights by timely objection." State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986).
B. Analysis
On redirect examination of Sergeant Luthart by the State, the following exchange took place.
[Prosecutor]. And [you have] been present in court for a number of Defendants being tried or pleading guilty to driving while license revoked?
[Sergeant Luthart]. I don't think I've ever had a revoked trial but I've had many pleas for revoked licenses.
Q. Can you think of any occasions where that's taken place and the Defendant wasn't present in court?
A. I don't recall any, no, sir.
Defendant contends that this testimony was improperly used by the State to show that defendant had notice of his prior convictions for driving while license was revoked. We hold this to be an overly broad reading of this testimony. The extent of Sergeant Luthart's testimony was that he did not recall having been involved in trial for the charge of driving while license revoked. As to the guilty pleas to that charge, he did not recall any occasions where defendant was not present in court. This testimony pertained to court proceedings in general and not as to any specific notice received by this defendant. The admission of this testimony did not constitute plain error.
This argument is without merit.
IV. Exhibits in Jury Room
In his third argument, defendant contends that the trial court erred by allowing defendant's driving record to be sent to the jury deliberation room without his consent. We disagree.
N.C. Gen. Stat. § 15A-1233(b) states that: "[u]pon request by the jury and with consent of all parties, the judge may in his discretion permit the jury to take to the jury room exhibits and writings which have been received in evidence." N.C. Gen. Stat. § 15A-1233(b). Defendant now asserts that it was error for the trial court to send an unredacted version of his driving record back to the jury deliberation room. When the trial court received the note from the jury it asked counsel if there was any objection to sending the exhibits back to the jury room. The State had no objection. Defendant's counsel gave an equivocal response: "If -- my preference would be to know if they want something specific." The trial court then stated that "[i]f there's no objection to the exhibits going back," that it would send the exhibits back. The following exchange then took place between the trial court and defense counsel:
[DEFENSE COUNSEL]. I just would put on the record I know that that driving record was not redacted in any way, so I don't know that that's a potential issue.Defense counsel did not object to the driving record being sent to the jury; neither did she consent to it being sent to the jury. Since there was no express consent from defendant, the trial court erred in sending the driver's record back to the jury.
THE COURT: Well, they've heard it. I don't think it's going to make any real difference. They've heard -- I don't think there's anything on there that should have been redacted that they didn't already hear, and probably not focusing on all that anyway.
However, this does not end our inquiry. Defendant must not only show error, but that he was prejudiced by the error. N.C. Gen. Stat. § 15A-1443(a). This prejudice must be such that if the error had not been committed, a different result would have been reached at trial. State v. Poe, 119 N.C. App. 266, 273, 458 S.E.2d 242, 247 (1995). See also State v. Thomas, 132 N.C. App. 515, 518-19, 512 S.E.2d 436, 438 (1999). Three charges were submitted to the jury. Defendant's driving record was only relevant to the charge of felony fleeing to elude arrest, where one of the two aggravating factors submitted to the jury was that defendant was driving when his license was revoked.
The State offered and the trial court admitted into evidence a certified copy of defendant's driving record from the North Carolina Division of Motor Vehicles. At the time that this exhibit was offered, the trial court specifically asked defense counsel: "Any objection?", to which defense counsel responded, "No, your Honor." At that point defendant's driving record was received into evidence, with no modifications or redactions.
On appeal, defendant argues that he was prejudiced by the submission of the complete 11 pages of his driving record to the jury without his consent. This record showed that defendant had committed numerous offenses for no operator's license and driving while license revoked, spanning the time period from 1992 to 2010, including 12 permanent revocations and 17 indefinite suspensions of his privilege to operate a motor vehicle in the State of North Carolina. During the cross-examination of defendant by the State, he admitted convictions for assault, two convictions for possession of a stolen motor vehicle, breaking or entering a motor vehicle, felony larceny, and at least two counts of driving while impaired. Defendant could not recall any of his convictions for driving while license revoked, but acknowledged that he did not have a valid driver's license on the date that he stole the vehicle in the instant case. He did recall having a state-issued identification, rather than a driver's license, at some point in time.
In order to establish this aggravating factor, the State was required to prove that defendant was driving while his driving license was revoked. (N.C. Gen. Stat. § 20-141.5). This required a showing that: (1) defendant operated a motor vehicle; (2) upon a highway; and (3) that at the time of the operation of the motor vehicle, his license was revoked, and that defendant has knowledge of the revocation. N.C. Gen. Stat. § 20-28(a). See also State v. Atwood, 290 N.C. 266, 271, 225 S.E.2d 543, 545 (1976). Only the third element of this aggravating factor is relevant to this issue.
The record that was received into evidence contained 11 pages of defendant's driving convictions and suspensions, along with 49 letters sent by the Division of Motor Vehicles to defendant, at two different addresses, notifying defendant of his license suspensions or revocation. The suspension/revocation letters ran from 28 April 1995 to 21 May 2010. Defendant argues that he was prejudiced by the sending of the record back to the jury deliberation room because while it was received into evidence, it was not published to the jury, and that much of the record was not testified to by the State's witnesses.
However, Sergeant Luthart testified, without objection, that defendant's license was permanently suspended as of 19 May 2010 and that defendant was mailed a notice of the permanent revocation on 21 May 2010. On appeal, defendant does not challenge this testimony under plain error or otherwise.
Since the only issue to which the record was relevant was the fact of revocation and defendant's knowledge of the revocation, we cannot say that defendant was prejudiced by the record being submitted to the jury during deliberations. The record was merely cumulative to the testimony of Sergeant Luthart in court. While the record was certainly voluminous, the number of pages is not determinative of its prejudicial effect.
This argument is without merit.
V. Improper Cross Examination
In his fourth argument, defendant contends that the trial court erred by allowing the prosecutor to insinuate facts not in evidence in the course of the cross-examination of defendant. We disagree.
A. Preservation
"In order to preserve an issue 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 if the specific grounds were not apparent from the context." N.C.R. App. P. 10(a)(1).
Defendant testified at trial. On appeal, defendant complains about questions that the prosecutor asked of the defendant. Defendant objected to the first question, but failed to state the specific ground for its objection. Defendant failed to object to the second question.
[Prosecutor]. And in May of 2004 do you remember a judge telling you not to drive unless you were properly licensed after you got the DWI? [Defense Attorney]: Objection. THE COURT: Overruled. [Defendant]. No, sir. Q. And in March of 2005 do you remember a judge telling you not to drive until properly licensed? THE COURT: I'm sorry, did you answer, sir? A. No, sir, no, I
Defendant failed to preserve this issue for appellate review.
B. Standard of Review
We review this issue for plain error only. Rourke, supra.
C. Analysis
As previously noted, the State contended that one of the aggravating factors supporting a conviction for felony speeding to elude arrest was that defendant was operating a motor vehicle while his license was revoked. Defendant's argument on appeal is that his driving record does not show a conviction for driving while impaired in May of 2004. However, during his testimony, defendant admitted to a conviction for driving while impaired on 26 May 2004 in Gaston County, and another on 9 March 2005 in Catawba County. The questions now complained of on appeal were follow-up questions going to whether defendant had knowledge of the revocation of his license. These questions were asked by the prosecutor after defendant had testified that he has no knowledge of his license having been revoked.
We hold that the overruling of the objection of defendant did not constitute error, much less plain error. This argument is without merit.
VI. Closing Argument
As part of his fourth argument, defendant also contends that the trial court erred by failing to intervene ex mero motu during the State's closing argument to the jury. We disagree.
A. Standard of Review
Defendant failed to object to the State's jury argument. "The standard of review when a defendant fails to object at trial is whether the argument complained of was so grossly improper that the trial court erred in failing to intervene ex mero motu." State v. Trull, 349 N.C. 428, 451, 509 S.E.2d 178, 193 (1998).
B. Analysis
A prosecuting attorney may not "inject into the trial of a cause to the prejudice of the accused by argument or by insinuating questions supposed facts of which there is no evidence." State v. Phillips, 240 N.C. 516, 524, 82 S.E.2d 762, 767 (1954).
Defendant appeals the following argument.
More importantly you heard that the officer said when somebody is on trial for driving while license revoked they're in the courtroom and they're present for that. I want you to think about that for just a second, to be convicted of driving while license revoked, as the Defendant was numerous times in the past ten years, you not only have to be in court for your trial but you must have been served with a ticket of some kind by an officer telling you your license was revoked. In the past ten years this Defendant has been told numerous times by the police that his license was revoked. That's knowledge. That's not a letter sent to an address where he may or may not be,
that's being told by the police, by the court system, by the judge that your licensed [sic] is revoked.
Defendant's prior convictions for driving while license revoked were admitted into evidence. The argument did not inject "supposed facts of which there is no evidence." Phillips, 240 N.C. at 524, 82 S.E.2d at 767. The argument was not so grossly improper that the trial court erred in failing to intervene ex mero motu.
This argument is without merit.
VII. Ineffective Assistance of Counsel
In his fifth and final argument, defendant contends that he is entitled to a new trial based upon the ineffectiveness of his trial counsel. We disagree.
"In general, claims of ineffective assistance of counsel should be considered through motions for appropriate relief and not on direct appeal." State v. Stroud, 147 N.C. App. 549, 553, 557 S.E.2d 544, 547 (2001). "In order to determine whether a defendant is in a position to adequately raise an ineffective assistance of counsel claim, we stress this Court is limited to reviewing this assignment of error only on the record before us[.]" Stroud, 147 N.C. App. at 554, 557 S.E.2d at 547. We are "without the benefit of information provided by defendant to trial counsel, as well as defendant's thoughts, concerns, and demeanor[,] that could be provided in a full evidentiary hearing on a motion for appropriate relief." Stroud, 147 N.C. App. at 554-55, 557 S.E.2d at 547 (alteration in original) (internal citation and quotation marks omitted).
"Our Supreme Court has instructed that should the reviewing court determine the IAC claims have been prematurely asserted on direct appeal, it shall dismiss those claims without prejudice to the defendant's rights to reassert them during a subsequent MAR proceeding." Stroud, 147 N.C. App. at 554, 557 S.E.2d at 547 (internal quotation marks omitted).
Based on the record before us, the claim of ineffective assistance of counsel cannot properly be decided on the merits. "Trial counsel's strategy and the reasons therefor are not readily apparent from the record, and more information must be developed to determine if defendant's claim satisfies the Strickland test." State v. Al-Bayyinah, 359 N.C. 741, 753, 616 S.E.2d 500, 509-10 (2005). We dismiss this issue without prejudice to the right of defendant to raise this claim in a motion for appropriate relief.
NO ERROR IN PART, DISMISSED WITHOUT PREJUDICE IN PART.
Judges HUNTER, Robert C. and BRYANT concur.
Report per Rule 30(e).