Opinion
No. COA12–542.
2013-02-5
STATE of North Carolina v. Stephen Eric SNIPES, Defendant.
Roy Cooper, Attorney General, by Laura E. Parker, Assistant Attorney General, for the State. Mark Montgomery, for defendant-appellant.
Appeal by defendant from judgment entered 12 October 2011 by Judge Marvin K. Blount in Chatham County Superior Court. Heard in the Court of Appeals 7 January 2013. Roy Cooper, Attorney General, by Laura E. Parker, Assistant Attorney General, for the State. Mark Montgomery, for defendant-appellant.
MARTIN, Chief Judge.
Defendant was originally convicted of second-degree rape and having attained violent habitual felon status in September 2009. Upon appeal of these convictions, this Court found no error in his conviction of second-degree rape, but ordered a new trial as to his conviction for having attained violent habitual felon status. See State v. Snipes, ––– N.C.App. ––––, 708 S.E.2d 215 (2011) (unpublished). Upon retrial at the 10 October 2011 Criminal Session of Chatham County Superior Court, a jury found defendant to be a habitual violent offender. Defendant appeals from the judgment entered on that verdict. We find no error in his trial.
The State's evidence at trial tended to show that defendant was arrested on 16 April 2008 for second-degree rape. Detective Daniel Tilley of the Chatham County Sheriff's Office filled out an arrest report and collected defendant's fingerprints. The report noted that defendant is a black male who was born on 30 June 1959 in Pennsylvania. The following day, Deputy Sheriff Mike Williams interviewed defendant in connection with the second-degree rape charge. Defendant admitted to Williams that he was a registered sex offender, had assaulted a female in 1977, and had committed a rape in Pennsylvania in 1984.
Robert Barren, an investigator with the Chatham County District Attorney's Office, obtained records from Randolph County, North Carolina, which included a warrant for the arrest of “Steve Snipes” for assault with intent to commit rape and a transcript of a plea entered on 14 November 1977. The record identified defendant as an eighteen-year-old black male in some places and a 23–year–old in other places.
Barren requested and received additional records from the Common Pleas Court of Philadelphia indicating that “Stephen Snipes” was convicted of rape on 10 June 1981. The records associated with this conviction described defendant as a “negroid” male with a date of birth of 30 June 1959, who lived at 851 East Church Street, Philadelphia, Pennsylvania. Barren also received records which indicated that “Steven Snipes” was charged with an attempted rape which occurred on 1 March 1984, and that he pled guilty to the charge, signing the plea form as “Stephen Snipes.” The address, birthday, and race listed on the form matched that of the 1981 charge. Additionally, Barren also obtained photographs and fingerprint cards from the Pennsylvania Department of Corrections which were captioned “Stephen Snipes.” Barren submitted these records, photographs, and fingerprint cards, as well as those from Randolph County, North Carolina, to the North Carolina State Bureau of Investigation (“SBI”).
Leslie Daugherty, a forensic scientist with the SBI State Crime Laboratory, conducted a comparison of fingerprint cards related to this case. She compared the old prints from records submitted by Barren to the electronic fingerprints taken during defendant's most recent arrest on 16 April 2008. Daugherty determined that the right thumbprint on each of the fingerprint cards came from the same source and prepared a lab report to that effect.
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On appeal, defendant contends the trial court erred by (I) allowing the prosecutor to argue that the names on previous court documents are conclusive proof that he committed the previous crimes; (II) finding as a matter of law that the North Carolina and Pennsylvania rape and attempt statutes are substantially similar; (III) admitting jury indictments and pleadings from prior cases into evidence and publishing them to the jury; and (IV) preventing defense counsel from arguing to the jury that defendant would serve a lengthy prison term even if defendant were not found guilty of attaining violent habitual felon status.
I.
Defendant contends the trial court erred in allowing the prosecutor to argue, over defendant's objection, that the names on the court documents evidencing prior convictions are “conclusive proof” that defendant was the person convicted. We disagree.
“The standard of review for improper closing arguments that provoke timely objection from opposing counsel is whether the trial court abused its discretion by failing to sustain the objection.” State v. Jones, 355 N.C. 117, 131, 558 S.E.2d 97, 106 (2002). “Arguments of counsel are largely in the control and discretion of the trial court. The appellate courts ordinarily will not review the exercise of that discretion unless the impropriety of counsel's remarks is extreme and is clearly calculated to prejudice the jury.” State v. Huffstetler, 312 N.C. 92, 111, 322 S.E.2d 110, 122 (1984), cert. denied,471 U.S. 1009, 85 L.Ed.2d 169 (1985).
Under N.C.G.S. § 14–7.10,
[t]he original or certified copy of the court record, bearing the same name as that by which the defendant is charged, shall be prima facie evidence that the defendant named therein is the same as the defendant before the court, and shall be prima facie evidence of the facts set out therein.
N.C. Gen.Stat. § 14–7.10 (2011) (emphasis added). “Prima facie” means “sufficient to establish a fact or raise a presumption unless disproved or rebutted” and is commonly translated as “on its face.” Black's Law Dictionary 1310 (9th ed.2009); see also Cameron v. Cameron, 231 N.C. 123, 128, 56 S.E.2d 384, 388 (1949) (internal quotation marks omitted) (stating “the term prima facie is said to mean ... on its face”). This Court has held under the habitual felon statute, N.C.G.S. § 14–7.4, which has identical language to that of N.C.G.S. § 14–7.10 above, that “absolute identity of name is not required under this statute.” State v. Petty, 100 N.C.App. 465, 470, 397 S.E.2d 337, 341 (1990); see also State v. Wolfe, 157 N.C.App. 22, 36, 577 S.E.2d 655, 665 (applying Petty to a case involving N.C.G.S. § 14–7.10), appeal dismissed and disc. review denied,357 N.C. 255, 583 S.E.2d 289 (2003). In Petty, this Court noted that because other statutes explicitly require “absolute identity or a specific degree of identity between names,” the Court will “decline to expand the plain meaning of the statute,” which simply says “same name,” “to encompass a greater degree of specificity than the plain meaning would require.” Petty, 100 N.C.App. at 470, 397 S.E.2d at 341.
Here, the prosecutor correctly stated the law, noting that defendant's name on prior judgments is “ on its face proof of those prior convictions,” not that it is conclusive proof, as defendant claims. The variation in spelling of defendant's name and the age discrepancy related to the 1977 charge go to the weight to be given to the evidence. See id. Thus, the trial court was correct in overruling the objection because it was a correct statement of law.
Moreover, contrary to defendant's contention, the Court did not “endorse” an incorrect interpretation of the law by simply overruling defendant's objection. See State v. Weeks, 322 N.C. 152, 158, 367 S.E.2d 895, 899 (1988) (holding that a trial judge generally is not impermissibly expressing an opinion when he or she makes ordinary rulings during the course of the trial). Therefore, this argument is overruled.
II.
Defendant next contends the trial court erred in determining as a matter of law that the North Carolina and Pennsylvania rape and attempt statutes are substantially similar. We disagree.
Under N.C.G.S. § 14–7.7, “[a]ny person who has been convicted of two violent felonies in any federal court, in a court of this or any other state of the United States, or in a combination of these courts is declared to be a violent habitual felon.” N.C. Gen.Stat. § 14–7.7(a) (2011). A “violent felony” includes:
(1) All Class A through E felonies.
(2) Any repealed or superseded offense substantially equivalent to the offenses listed in subdivision (1).
(3) Any offense committed in another jurisdiction substantially similar to the offenses set forth in subdivision (1) or (2).
N.C. Gen.Stat. § 14–7.7(b). Defendant argues, and the State appears to agree, that the proper approach is to compare the elements of the specific offenses in North Carolina and Pennsylvania, pointing to prior case law which takes this approach to calculate prior record level in cases which involve convictions from multiple states. Calculating a prior record level pursuant to N.C.G.S. § 15A–1340.14, however, is somewhat different than determining habitual offender status; the issue in the ordinary felony sentencing proceeding is whether the out-of-state offense is substantially similar to a North Carolina offense assigned a specific number of prior record points, see State v. Fortney, 201 N.C.App. 662, 671, 687 S.E.2d 518, 525 (2010), while the issue in a violent habitual felon prosecution, is whether the out-of-state conviction is substantially similar to any “Class A through E felony” in North Carolina—one which the legislature has deemed a serious, violent felony. With that difference, however, we believe that an elements-based approach should be used in both situations.
A.
The Pennsylvania statute states that a person commits rape when
he or she engages in sexual intercourse with a complainant:
(1) By forcible compulsion.
(2) By threat of forcible compulsion that would prevent resistance by a person of reasonable resolution.
(3) Who is unconscious or where the person knows that the complainant is unaware that the sexual intercourse is occurring.
(4) Where the person has substantially impaired the complainant's power to appraise or control his or her conduct by administering or employing, without the knowledge of the complainant, drugs, intoxicants or other means for purpose of preventing resistance.
(5) Who suffers from a mental disorder which renders complainant incapable of consent.
18 Pa. Cons.Stat. Ann. § 3121 (West 2012). This statute is nearly identical to the Class C felony of second-degree sexual offense in North Carolina. SeeN.C. Gen.Stat. 14–27.5(a) (2011). Therefore, the trial court did not err in determining that the Pennsylvania rape statute is substantially similar to a Class C felony, which falls under N.C.G.S. § 14–7.7(b)(1), and in allowing the Pennsylvania rape charge to support the violent habitual felon charge.
B.
In North Carolina, attempt is a common law offense. “The two elements of an attempt to commit a crime are: first, the intent to commit the substantive offense; and, second, an overt act done for that purpose which goes beyond mere preparation but falls short of the completed offense.” State v. Smith, 300 N.C. 71, 79, 265 S.E.2d 164, 169–70 (1980). Pennsylvania defines attempt as when a person “with intent to commit a specific crime ... does any act which constitutes a substantial step towards the commission of that crime.” 18 Pa. Cons.Stat. Ann. § 901 (West 2012). Both definitions of attempt have the same first element—that the person had the specific intent to commit the crime. The second elements both require the party to do more than merely plan or prepare to commit a crime—for defendant to take definitive action that puts the crime near, or on its way toward, completion. See Commonwealth v. Gilliam, 273 Pa.Super. 586, 589–90, 417 A.2d 1203, 1205 (1980) (“The substantial step test broadens the scope of attempt liability by concentrating on the acts the defendant has done and does not any longer focus on the acts remaining to be done before actual commission of the crime.”). Therefore, the trial court did not err in determining that the North Carolina and Pennsylvania offenses were substantially similar, and this argument is overruled.
III.
Defendant contends it was error for the trial court to admit jury indictments and court records from prior cases into evidence and publish them to the jury. Under N.C.G.S. § 14–7.10,
the records of prior convictions of violent felonies shall be admissible in evidence, but only for the purpose of proving that the person has been convicted of former violent felonies. A prior conviction may be proved by stipulation of the parties or by the original or a certified copy of the court record of the prior conviction.
N.C. Gen.Stat. § 14–7.10. Thus, the statute specifically prescribes the introduction of court “records”—not simply prior judgments—to prove the prior violent felonies. In fact, admitting these records is the only way to prove the conviction save the defendant stipulating to it.
Here, the prosecution introduced records such as judgments, warrants, indictments, and guilty plea transcripts into evidence to substantiate defendant's prior convictions. In this case, in particular, it was necessary to introduce more than simply the judgments with regard to some of the convictions because there were name and age discrepancies among the documents which were important for the jury to consider while weighing the evidence and determining if defendant was the person convicted of those offenses.
Moreover, because copies of these records are not testimonial in nature, as defendant suggests, and are admissible as official writings, there is no violation of the Confrontation Clause. N.C. Gen.Stat. § 8–34 (2011). Furthermore, an evidentiary error is harmless unless “there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises.' “ State v. Melvin, 86 N.C App. 291, 297, 357 S.E.2d 379, 383 (1987) (quoting N.C. Gen.Stat. § 15A–1443(a) (2011)). We do not believe that defendant has proven that there is any reasonable possibility that the jury would have failed to find that defendant was a violent habitual felon had the evidence in question not been admitted.
IV.
Defendant further contends it was error for the trial court to prevent defendant from arguing to the jury that he would serve a lengthy prison term even if he were not found guilty of the violent habitual offender charge. At trial, defendant's attorney told the jury during closing argument,
[i]f you find him not guilty of the three charges, he is not going to escape punishment. You have received a judgment which indicates that there is a conviction for a Class C felony of second degree rape.... If you find him guilty, life in prison without parole. If you find him not guilty, prison for at least nine years and five months and possibly up to 17 years and 11 months.
The prosecutor objected and the trial court sustained the objection. Defendant argues that the trial court's decision to sustain this objection “had the effect of communicating to the jury that the defendant would not face a lengthy period of incarceration unless it found him to be a habitual violent felon.”
While a defendant is permitted to “inform the jury of the punishment prescribed for the offense for which defendant is being tried,” State v. Walters, 294 N.C. 311, 313, 240 S.E.2d 628, 630 (1978), this was not the case here. This Court has held that a trial court did not err in prohibiting a defendant from arguing the potential punishment for habitual felon status during his trial for the underlying felony, reasoning that prosecutions for habitual felon status are statutorily required to be a bifurcated proceeding so as to “[avoid] possible prejudice to the defendant and confusion by the jury considering the principal felony with issues not pertinent to guilt or innocence of such offense ....“ State v. Wilson, 139 N.C.App. 544, 548, 533 S.E.2d 865, 868–69,appeal dismissed and disc. review denied, 353 N.C. 279, 546 S.E.2d 394 (2000). The instant case involves defendant attempting to do the inverse: tell the jury about the potential punishment if he is not convicted of obtaining violent habitual felon status and is instead only punished for the underlying felony. Counsel's attempt to argue the punishment for second-degree rape seems to have been calculated to encourage jury nullification, by suggesting that punishment for the underlying charge alone was sufficient in and of itself. See State v. Wilson, 293 N.C. 47, 57, 235 S.E.2d 219, 225 (1977) (holding that it was improper for counsel to ask the jury to consider the punishment as part of its substantive deliberations because the punishment would be too severe based on the specific facts of the case). Therefore, this argument is overruled.
No error. Judges ERVIN and DILLON concur.
Report per Rule 30(e).