Opinion
No. 07-1243.
Filed 17 June 2008. This case not for publication.
Hertford County Nos. 06 CRS 50515-17, 06 CRS 50519-22, 06 CRS 50525.
Appeal by Defendant from judgments entered 31 May 2007 by Judge Cy A. Grant in Superior Court. Heard in the Court of Appeals 2 April 2008.
Attorney General Roy Cooper, by Assistant Attorney General Leonard G. Green, for the State. Geoffrey W. Hosford for Defendant.
On 3 July 2006, a grand jury indicted Defendant on one charge each of first-degree rape, robbery with a dangerous weapon, first-degree burglary, and crime against nature, and on four charges of first-degree kidnapping. The kidnapping indictments alleged that Defendant committed the offenses for the purpose of facilitating the commission of a felony, First Degree Rape, First Degree Burglary, armed robbery and larceny of a motor vehicle, facilitating the flight of [Defendant] following [Defendant's] participation in the commission of a felony, First Degree Rape, First Degree Burglary, Armed Robbery and Larceny of a Motor Vehicle[,] and terrorizing [four people].
The case was called for trial on 29 May 2007. That morning, Defendant's trial counsel gave the prosecutor two motions to suppress evidence. Before the jury was selected, the trial court said to the jury pool:
The motions were filed in the clerk's office 15 June 2007.
Jurors, I want to apologize to you on the outset. There's a case that's called for trial. This person is currently housed, as I was told, in the Bertie correctional unit. He's the first case for trial. I was of the impression he would be here by 11:30. We're getting conflicting reports that he's on his way, and now I've just been told he just left, and that's why I kept you here as the jury because we were about to pick a jury in that case.
After the jury was selected, the trial court denied Defendant's suppression motions on the ground that the motions were untimely filed.
The State's first witness, "Cici," testified as follows: around 11:00 p.m. on 5 June 2006, Cici left work, picked up her children from her father's house, and drove home. Cici had three children: ten and eleven-year-old girls, and a five-year-old boy. As the family was getting out of the car in their driveway, Defendant approached and put a gun to Cici's head. The eleven-year-old began to run away, and Defendant said he would shoot Cici if the girl ran or screamed. Defendant put the gun in Cici's back and forced the family into the house. Inside, Defendant instructed one of the children to bring him a garbage bag for valuables. The child got a bag and placed a stereo in it. At Defendant's instruction, the child also brought Defendant some sheets. As Defendant was ripping the sheets into pieces with a knife, Defendant stated that "he had killed his father, and his brother was going to be mad at him because he had killed his father." Defendant tied up all three children with pieces of the sheets and told Cici to go to the front of the house and take off her clothes. After Defendant threatened to harm Cici's son if she did not comply, Cici removed her clothes. Defendant forced Cici to perform oral sex on him, raped her, then tied her up with pieces of the sheets. Defendant took Cici's cell phone and identification and said he would get "one of his boys" to come back and kill her if she went to the police. Defendant drove off in Cici's car. Cici managed to free herself and her children and went to a neighbor's house, and the neighbor called the police.
We use the pseudonym, "Cici," to protect the woman's privacy.
Two of Cici's children, two State Bureau of Investigation agents, a nurse, and three sheriff's deputies also testified for the State. Defendant did not present any evidence.
During closing arguments, the prosecutor argued, in part, as follows:
And can you blame [Cici] for feeling [ashamed and embarrassed]? When you look back in your mind's eye, is there anything more horrifying, anything you could think of worse than after working . . . then you go and pick up your children. And you're making your way home and you're trying to get your children and all their associated items out of your vehicle, in your driveway at your house, and somebody strange that you don't know comes up to you and sticks a gun to your head and then forces you — you and your three children, into the house. Then that person, while you watch, ties your children up while your little child who is crying — I mean crying to beat the band — and he tells you he's going to kill him if he doesn't — if you don't keep him quiet. Can you imagine anything more horrifying than that person then raping [you] in your house. You have to beg him to move you to another part of the house so your little boy can't see.
Can you imagine anything more horrifying after you've been raped, then the person ties you up — ties you up and then takes your car, takes your stereo, takes your [identification], take[s] your car keys, takes your cell phone, and leaves? That's what being violated [is] all about. And if we were honest with ourselves, you know, that's everybody's secret nightmare.
. . . .
So it's time for you to do your job, to go back in the back room back there where y'all have been held from time to time and sit around the table. And when you look [at] each other, you say to yourself: You know what? I believe he did it. I believe he did it that night.
Then I will submit to you that that means that you're fully satisfied. [That] means that you're entirely convinced. That means that you're supposed to return a verdict of guilty. It is time, ladies and gentlemen, for you to do your job. It's time for you, as the jury, to dispense justice for [Cici] and to dispense justice for her children and to dispense justice for the other citizens of Hertford County. It's time for you to do your job to send a message to [Defendant] and anybody else like him that feels like they can just do whatever they want to and run up on people and hurt them in any way. It's time to let him know that that kind of behavior is not going to be tolerated in Hertford County.
Ladies and gentlemen, now that you've been fully satisfied and now that you've been entirely convinced of [Defendant's] guilt, I submit to you it's time for you to do your job. Thank you.
Following closing arguments, the trial court instructed the jury that, on the charges of first-degree kidnapping, it could find Defendant guilty if it found that Defendant "re[s]trained" Cici and her children for the purpose of facilitating [Defendant's] commission of the crime against nature, or it facilitated his flight after the commission of a crime against nature[.]
On the charge of first-degree burglary, the trial court instructed the jury that it could either find Defendant guilty of second-degree burglary or not guilty. The jury found Defendant guilty of second-degree burglary and of all the other crimes charged. The trial court sentenced Defendant to consecutive sentences totaling a minimum of 100 years in prison. On appeal, Defendant presents five arguments for our review.
First, Defendant argues the trial court's jury instructions on first-degree kidnapping amount to plain error. We note that Defendant's trial counsel specifically approved of the challenged instruction. See State v. Weddington, 329 N.C. 202, 210, 404 S.E.2d 671, 677 (1991) ("The defendant will not be heard to complain on appeal when the trial court has instructed adequately on the law and in a manner requested by the defendant."). Nevertheless, a "plain error" is one that is "so fundamental that (i) absent the error, the jury probably would have reached a different verdict; or (ii) the error would constitute a miscarriage of justice if not corrected." State v. Holden, 346 N.C. 404, 435, 488 S.E.2d 514, 531 (1997) (citation omitted), cert. denied, 522 U.S. 1126, 140 L. Ed. 2d 132 (1998). "In deciding whether a defect in the jury instruction constitutes `plain error,' the appellate court must examine the entire record and determine if the instructional error had a probable impact on the jury's finding of guilt." State v. Bell, 359 N.C. 1, 23, 603 S.E.2d 93, 109 (2004) (quotation marks and citation omitted), cert. denied, 544 U.S. 1052, 161 L. Ed. 2d 1094 (2005).
Under section 14-39 of North Carolina's General Statutes:
(a) Any person who shall unlawfully confine, restrain, or remove from one place to another, any other person 16 years of age or over without the consent of such person, or any other person under the age of 16 years without the consent of a parent or legal custodian of such person, shall be guilty of kidnapping if such confinement, restraint or removal is for the purpose of:
(1) Holding such other person for a ransom or as a hostage or using such other person as a shield; or
(2) Facilitating the commission of any felony or facilitating flight of any person following the commission of a felony; or
(3) Doing serious bodily harm to or terrorizing the person so confined, restrained or removed or any other person[.]
N.C. Gen. Stat. § 14-39(a) (2005). "It is well settled that an indictment under N.C. Gen. Stat. § 14-39(a)(2) need not allege the exact type of felony furthered by the restraint or confinement, and any additional language such as `rape or robbery' in the indictment is harmless surplus age, which may properly be disregarded." State v. Jordan, ___ N.C. App ___, ___, 651 S.E.2d 917, 922 (2007) (citing State v. Moore, 284 N.C. 485, 493, 202 S.E.2d 169, 174 (1974)). "Nevertheless, it would be difficult to say that permitting a jury to convict a defendant on a theory not legally available to the state because it is not charged in the indictment or not supported by the evidence is not plain error even under the stringent test required to invoke that doctrine." State v. Tucker, 317 N.C. 532, 540, 346 S.E.2d 417, 422 (1986).
Defendant argues the trial court committed plain error in instructing the jury that, in order to find Defendant guilty of the charges of first-degree kidnapping, it must find that Defendant committed the offenses for the purpose of facilitating a crime against nature, a felony not specified in the kidnapping indictments. In support of his argument, Defendant primarily relies on three cases.
First, Defendant relies on State v. Taylor, 301 N.C. 164, 270 S.E.2d 409 (1980), in which the indictment alleged defendant "remov[ed]" a woman "for the purpose of facilitating the commission of the felony of rape and for the purpose of facilitating the flight of the defendant . . . following the commission of a felony." Id. at 168, 270 S.E.2d at 412. The trial court instructed the jury, however, that it could find defendant guilty if it found "defendant confined or restrained [the woman] for the purpose of facilitating his flight from apprehension for another crime, or to obtain the use of her vehicle." Id. at 169, 270 S.E.2d at 412-13. The Supreme Court held that because "the instructions presented to the jury several possible theories of conviction which were not charged in the bill of indictment[,]" id. at 170, 270 S.E.2d at 413, the instruction amounted to plain error. Next, Defendant relies on State v. Odom, 316 N.C. 306, 341 S.E.2d 332 (1986), in which the indictment alleged defendant confined and removed a woman "for the purpose of facilitating the commission of a felony, rape." Id. at 315, 341 S.E.2d at 337. The trial court instructed the jury, however, that it could find defendant guilty if it found that defendant confined and removed the woman " for the purpose of facilitating his flight after committing rape." Id. (emphasis in original). The trial court specifically instructed the jury that it could not find defendant guilty if the confinement or removal was done for the purpose of committing rape. The Supreme Court concluded that the instruction was erroneous but did not apply the plain error rule because it granted a new trial on other grounds.
Finally, Defendant relies on State v. Ellis, 90 N.C. App. 655, 369 S.E.2d 642 (1988), in which the indictment alleged defendant committed the offense for the purpose of facilitating his commission of a felony pursuant to N.C. Gen. Stat. § 14-39(a)(2). The trial court instructed the jury, however, that it could find defendant guilty of the offense if it found defendant committed the offense for the purpose of using a person "as a shield." N.C. Gen. Stat. § 14-39(a)(1) (2005). This Court concluded that the variance between the indictment and the instruction constituted plain error and ordered a new trial.
We agree with the State that these cases are distinguishable from the present case and do not support Defendant's position. In this case, the theory on which the jury was allowed to convict Defendant of first-degree kidnapping was alleged in the indictments and supported by the evidence. First, the theory of the kidnapping charges as presented in the indictments was that Defendant "confin[ed] and restrain[ed]" Cici and her children for the purpose of committing a felony or facilitating his flight after committing a felony. The trial court instructed the jury that it could find Defendant guilty if Defendant "re[s]trained" Cici and her children for the purpose of committing a felony or facilitating his flight after committing a felony. Second, Cici testified that Defendant forced her to perform oral sex on him, and the jury convicted Defendant of the offense of crime against nature. See State v. Stiller, 162 N.C. App. 138, 140, 590 S.E.2d 305, 307 ("[T]he offense [of crime against nature] is broad enough to include all forms of oral and anal sex. . . ."), appeal dismissed and disc. review denied, 358 N.C. 240, 596 S.E.2d 19 (2004). Thus, we cannot conclude that the trial court's instruction amounts to plain error. The assignments of error upon which Defendant's argument is based are overruled.
Second, Defendant argues the trial court deprived him of a fair and impartial jury by advising the jury pool that he was in the custody of the Department of Corrections. Defendant neither objected to the court's statement nor asked the trial court to take any corrective action. Nevertheless, Defendant now asserts that he is entitled to a new trial because the trial court's statement "suggested to the prospective jurors that [Defendant] was a dangerous individual and a court had decided that he needed to be incarcerated pending trial, or that he had a criminal record[,]" and that "the jurors, prior to hearing any of the facts of this case, probably developed an opinion that [Defendant] was guilty of the charges[.]" We are unpersuaded.
"The judge may not express during any stage of the trial, any opinion in the presence of the jury on any question of fact to be decided by the jury." N.C. Gen. Stat. § 15A-1222 (2005). Moreover, trial judges
must be careful in what they say and do because a jury looks to the court for guidance and picks up the slightest intimation of an opinion. It does not matter whether the opinion of the trial judge is conveyed to the jury directly or indirectly as every defendant in a criminal case is entitled to a trial before an impartial judge and an unbiased jury.State v. Jenkins, 115 N.C. App. 520, 524-25, 445 S.E.2d 622, 625, disc. review denied, 337 N.C. 804, 449 S.E.2d 752 (1994) (quotation marks and citation omitted). "Whether the judge's comments, questions or actions constitute reversible error is a question to be considered in light of the factors and circumstances disclosed by the record, the burden of showing prejudice being upon the defendant." State v. Blackstock, 314 N.C. 232, 236, 333 S.E.2d 245, 248 (1985) (citations omitted). "[I]n a criminal case it is only when the jury may reasonably infer from the evidence before it that the trial judge's action intimated an opinion as to a factual issue, the defendant's guilt, the weight of the evidence or a witness's credibility that prejudicial error results." Id. (citation omitted). In this case, we do not believe that a juror could reasonably infer that the judge's statement amounted to an expression of an opinion as to defendant's guilt or innocence, any issue to be decided by the jury, the weight of the evidence, or the credibility of any witness. Thus, although we agree with the State that the trial court "provided more information than necessary" to the jury pool, we do not think the statement entitles Defendant to a new trial. We disagree with Defendant's suggestion that the statement is as egregious as compelling a defendant to appear at trial garbed in prison attire. See Estelle v. Williams, 425 U.S. 501, 48 L. Ed. 2d 126 (stating that it is unconstitutional to compel an accused to stand trial before a jury while dressed in identifiable prison clothes), reh'g denied, 426 U.S. 954, 49 L. Ed. 2d 1194 (1976); N.C. Gen. Stat. § 15-176 (2005) ("It shall be unlawful for any sheriff, jailer or other officer to require any person imprisoned in jail to appear in any court for trial dressed in the uniform or dress of a prisoner or convict. . . ."). As the United States Supreme Court explained, the danger in such instances is that "the constant reminder of the accused's condition implicit in such distinctive, identifiable attire may affect a juror's judgment." Estelle, 425 U.S. at 504-05, 48 L. Ed. 2d at 131. In this case, the judge's comment did not create such a danger. See State v. Fowler, 157 N.C. App. 564, 566, 579 S.E.2d 499, 501 (2003) (finding that judge's statement to jury during trial that the defendant was incarcerated did not "create the same prejudice to the defendant as that raised when a defendant appears in court in shackles or prison garb.") (citations omitted). This assignment of error is overruled.
Third, Defendant argues the trial court abused its discretion in denying his motions to suppress evidence on the ground that the motions were not timely filed. A motion to suppress evidence may be made at any time prior to trial except that
[i]f the State gives notice not later than 20 working days before trial of its intention to use evidence and if the evidence is of a type listed in G.S. 15A-975(b), the defendant may move to suppress the evidence only if its motion is made not later than 10 working days following receipt of the notice from the State.
N.C. Gen. Stat. § 15A-976(b) (2005). A defendant has the burden of establishing that a motion to suppress was timely filed. State v. Satterfield, 300 N.C. 621, 268 S.E.2d 510 (1980).
In this case, the evidence Defendant sought to suppress was "of a type listed in G.S. 15A-975(b)[.]" N.C. Gen. Stat. § 15A-976(b). Defendant's trial counsel first gave the suppression motions to the State on 29 May 2007, the morning trial began. The prosecutor told the trial court that the State gave Defendant notice of its intent to use the evidence on 5 September 2006. Defense counsel neither disputed the prosecutor's contention nor made any argument concerning the timeliness of the motions. Moreover, on the affidavits attached to the suppression motions, defense counsel acknowledged receiving notice of the State's intent to use the evidence at trial. We conclude that Defendant did not meet his burden of showing that the motions were timely filed. Defendant's argument is overruled. Fourth, Defendant argues the trial court should have intervened ex mero motu during the prosecutor's closing argument. Specifically, Defendant argues that by asking the jurors to put themselves in Cici's place and to "imagine" what her experience was like, and by telling the jury to "do [its] job," the prosecutor's statements were grossly improper and warrant a new trial.
Where, as here, defendant failed to object to the arguments at trial, defendant must establish that the remarks were so grossly improper that the trial court abused its discretion by failing to intervene ex mero motu. To establish such an abuse, defendant must show that the prosecutor's comments so infected the trial with unfairness that they rendered the conviction fundamentally unfair.
State v. Davis, 349 N.C. 1, 23, 506 S.E.2d 455, 467 (1998) (citing State v. Rose, 339 N.C. 172, 202, 451 S.E.2d 211, 229 (1994), cert. denied, 515 U.S. 1135, 132 L. Ed. 2d 818 (1995)), cert. denied, 526 U.S. 1161, 144 L. Ed. 2d 219 (1999).
An argument asking jurors "`to put themselves in place of the victims will not be condoned[.]'" State v. McCollum, 334 N.C. 208, 224, 433 S.E.2d 144, 152 (1993) (quoting United States v. Pichnarcik, 427 F.2d 1290, 1292 (9th Cir. 1970)), cert. denied, 512 U.S. 1254, 129 L. Ed. 2d 895, reh'g denied, 512 U.S. 1278, 129 L. Ed. 2d 924 (1994). As Defendant acknowledges, however, our Supreme Court "has consistently allowed arguments where the prosecution has asked the jury to imagine the emotions and fear of a victim." State v. Wallace, 351 N.C. 481, 529, 528 S.E.2d 326, 356 (citing State v. Warren, 348 N.C. 80, 109, 499 S.E.2d 431, 447, cert. denied, 525 U.S. 915, 142 L. Ed. 2d 216 (1998)), cert.denied, 531 U.S. 1018, 148 L. Ed. 2d 498 (2000), reh'g denied, 531 U.S. 1120, 148 L. Ed. 2d 784 (2001).
We disagree with Defendant's assertion that the prosecutor asked the jurors to put themselves in Cici's place. The prosecutor merely asked the jurors to imagine Cici's emotions and fears, and such an argument was not so grossly improper as to warrant the trial court's intervention ex mero motu. Defendant cites no authority for the proposition that the trial court should have intervened when the prosecutor told the jury to do its job, and we are not of the opinion that such an argument, either alone or in tandem with the request to "imagine" Cici's emotions and fears, so infected the trial with unfairness as to render the conviction fundamentally unfair. Defendant's assignment of error is overruled.
Finally, Defendant argues the trial court abused its discretion in allowing Cici to testify that Defendant said he had killed his father and that his brother was going to be mad. Defendant's assertion to the contrary, this evidence was relevant and was properly admitted. Defendant was charged with first-degree rape, one of the elements of which is the use of force. N.C. Gen. Stat. § 14-27.2(a)(2) (2005). "The use of force may be established by evidence that submission was induced by fear, duress or coercion." State v. Owen, 133 N.C. App. 543, 551, 516 S.E.2d 159, 165 (citation omitted), disc. review denied, 351 N.C. 117, 540 S.E.2d 744 (1999). Defendant's statement to Cici is probative of whether he forced Cici to have sex with him. Moreover, no evidence was offered that Defendant's father had been killed. On the contrary, the evidence established that local law enforcement agencies had received no information involving Defendant's father. We agree with the State that it is unlikely the jury considered Defendant's statement for any purpose other than to show the fear felt by Cici and her lack of consent to the sexual acts forced on her by Defendant. We thus conclude that the probative value of the evidence is not substantially outweighed by any prejudicial effect of the evidence. N.C. Gen. Stat. § 8C-1, Rule 403 (2005). This assignment of error is overruled. In the trial of Defendant, we find
NO PREJUDICIAL ERROR.
Judges McGEE and TYSON concur.
Report per Rule 30(e).