Opinion
No. 07-1117.
Filed 1 July 2008. This case not for publication.
Gaston County No. 03 CRS 50595, 50598-99.
Appeal by defendant from judgment entered 20 April 2007 by Judge Nathaniel J. Poovey in Gaston County Superior Court. Heard in the Court of Appeals 2 April 2008.
Attorney General Roy Cooper, by Assistant Attorney General John P. Barkley, for the State. Mary March W. Exum, for defendant.
On 13 January 2003, Steven Maurice Williams (defendant) and Patrick Artis entered North Marietta Jewelry and Pawn, claiming to be looking for a ring for defendant's girlfriend. The two waited until there were no other customers in the store, then asked the manager, Terry Cable, to come to the front of the counter and show them a ring. Once Cable emerged from behind the counter, Artis got behind him and produced a pistol, demanding that Cable "give it up." Around that time, a customer entered the store and defendant grabbed him, put him in a headlock, and attempted to rob him. Shortly thereafter, two more customers came in, observed what was happening, and fled. Defendant and Artis panicked, grabbed some money and about nine necklaces, and ran away.
Defendant was indicted for two counts of robbery with a dangerous weapon and one count of felony conspiracy to commit robbery with a dangerous weapon. On 22 August 2003, a jury found defendant guilty of one count of attempted robbery with a dangerous weapon, one count of robbery with a dangerous weapon, and one count of felony conspiracy. Although defendant was present at the time the jury was impaneled, he had left the area by the time the first witness testified; he did not return for the remainder of the trial. Defendant was therefore convicted in abstentia, and sentencing was delayed. The authorities eventually located defendant and returned him to Gaston County, and on 20 April 2007, the trial court sentenced defendant to sixty-four to eighty-six months' imprisonment for the attempted robbery conviction and an additional sixty-four to eighty-six months' imprisonment at the expiration of the first term for the consolidated robbery and conspiracy convictions. Defendant now appeals.
In his first argument, defendant claims that the trial court abused its discretion by denying his trial counsel's motion for a continuance. He argues that the denial violated his constitutional right to effective assistance of counsel because his trial counsel stated that he was not prepared to try the case. We disagree, and find this argument meritless.
As this Court recently noted,
[a] motion for a continuance is ordinarily within the sound discretion of the trial court, and its ruling thereon is not subject to review absent an abuse of discretion. Where the motion raises a constitutional issue, the trial court's action upon it involves a question of law which is fully reviewable by an examination of the particular circumstances of each case.
State v. Hewson, 182 N.C. App. 196, 210, 642 S.E.2d 459, 469 (2007) (quotations and citations omitted).
Although defendant represents that his trial counsel "explicitly informed the court that he was unprepared to try the case," an examination of the transcript reveals this to be untrue. Defendant's trial counsel stated that although he was told "some weeks ago [that] this matter would be put on the trial calendar, [his] impression was that it was for potential resolution but not necessarily for trial." He continued, "We're not really in an ideal position to go forward. I know the discovery, and I can go forward." Defendant's attorney also stated that he had another trial scheduled and that he would prefer to complete that trial first. The State responded that one of its key witnesses was very ill, but was currently available to testify. The court, in its discretion, denied the motion.
Defendant attempts to rely upon State v. Maher, 305 N.C. 544, 545, 290 S.E.2d 694 (1982). In Maher, our Supreme Court found both error and prejudice in a trial court's denial of a motion to continue. However, in that case, "[t]he attorney who represented the defendant at trial . . . had not prepared the case, had not met with the defendant prior to the morning of trial, and was given little time in which to prepare a defense." Id. at 548-49, 290 S.E.2d at 697. The Maher court held that
[u]nder these circumstances, where counsel is retained only four days prior to trial through no fault of defendant's, is concurrently involved in another trial, and is allowed only a few minutes to confer with his client prior to trial, failure of the trial court to grant a continuance denied defendant effective assistance of counsel.
Id. at 549, 290 S.E.2d at 697.
Defendant also seeks to rely on State v. McFadden, 292 N.C. 609, 234 S.E.2d 742 (1977), in which the trial court forced an associate unfamiliar with the case, who had come to court only to seek a continuance, to try the case. In holding that the trial court erred in denying the defendant's motion to continue, our Supreme Court noted that the defendant in McFadden,
met and talked with [the associate] for the first time about ninety minutes before the case was called for trial. [The associate] had practiced law for eighteen months and had previously tried only one jury case. He knew nothing about this case until he arrived in court. All of the preliminary hearings and preparations for trial had been handled exclusively by [the partner].
Defendant's reliance on these cases is misplaced; the cases are clearly distinguishable. Defendant had more than adequate time to prepare with his attorney; the attorney had been actively involved in the case for months. Moreover, by defendant's counsel's own admission, he was prepared to go forward. The trial court did not abuse its discretion, and defendant's constitutional rights were not impinged. Defendant next argues that the trial court's denial of his motion to dismiss the all white jury panel, and its refusal to dismiss an individual juror for cause, constitute error. We disagree.
Defendant, who is an African American, claims that the all white jury pool did not constitute a jury of his peers. Defendant acknowledges that he failed to comply with the requirements of N.C. Gen. Stat. § 15A-1211 (2007) by neglecting to raise his challenge prior to beginning his examination of the jurors, and when he did raise the issue, not doing so in writing. Defendant's only excuse for his failure is that trial counsel was afraid that bringing up the issue in open court would cause further damage to his jury. Defendant also claims, without citing to any authority, "that the statute is still subject to constitutional requirements."
The statute states, in relevant part, that a challenge to a jury panel "(1) May be made only on the ground that the jurors were not selected or drawn according to law. (2) Must be in writing. (3) Must specify the facts constituting the ground of challenge. (4) Must be made and decided before any juror is examined." N.C. Gen. Stat. § 15A-1211(c) (2007)
Assuming without deciding that defendant is correct in his assertion, we still find no error in the trial court's denial of defendant's motion.
In order to establish a prima facie case that there has been a violation of the requirement that a jury be composed of persons who represent a fair cross-section of the community, defendant must document that the group alleged to have been excluded is a distinctive group; that the representation of the group in question within the venire is not fair and reasonable with respect to the number of such persons in the community; and that this under representation is due to systematic exclusion of the group in the jury selection process.
State v. Price, 301 N.C. 437, 445, 272 S.E.2d 103, 109 (1980) (citing Duren v. Missouri, 439 U.S. 357, 58 L. Ed. 2d 579 (1979)) (additional citations omitted). We find no evidence of any systemic exclusion of minority jurors in this case. As our Supreme Court recently noted, "The fact that a particular jury or a series of juries does not statistically reflect the racial composition of the community does not in itself make out an invidious discrimination forbidden by the [Equal Protection] Clause." State v. Williams, 355 N.C. 501, 549-50, 565 S.E.2d 609, 638 (2002) (quotations and citations omitted).
Indeed, defendant himself seems unable to point to any specific indicia of systemic exclusion. He states, without authority of any kind, only that "[f]or a jury selection process to exclude all minorities, in a county with a significant percentage of minorities, systemic exclusion, whether electronic, human, or of some other variety, is obviously taking place." What is obvious to defendant is considerably less so to this Court; we can discern no evidence whatsoever of any systemic exclusion. Defendant's argument is entirely without merit.
Defendant also argues that the trial court should have removed an individual juror for cause.
We review a trial court's ruling on a challenge for cause for abuse of discretion. A trial court abuses its discretion if its determination is manifestly unsupported by reason and is so arbitrary that it could not have been the result of a reasoned decision. In our review, we consider not whether we might disagree with the trial court, but whether the trial court's actions are fairly supported by the record. Our review is deferential because [t]he trial court holds a distinct advantage over appellate courts in determining whether to allow a challenge for cause.
State v. Lasiter, 361 N.C. 299, 301-02, 643 S.E.2d 909, 911 (2007) (quotations and citations omitted) (alteration in original).
Although this portion of the jury selection process was not recorded, it appears that the prospective juror, David Collette, volunteered that he was not sure that he could be fair because he had been the victim of several crimes in which the perpetrators were black males. Upon subsequent questioning, it appears that Collette stated that he could be fair. Later, upon voir dire, the following colloquy took place:
Q. If the state failed to prove that [defendant] was guilty beyond a reasonable doubt, even if you had some doubt as to where the truth lay, would you find [defendant] not guilty?
A. No.
Q. So you would not be able to find him not guilty if the state couldn't prove guilt?
A. No.
The trial court then clarified the question, and Collette stated that he could return a verdict of not guilty. In response to further questions from defense counsel, Collette stated that he understood that it was the State's burden to prove guilt beyond a reasonable doubt and that he would not require defendant to prove that he was not guilty. Based on these facts, the trial court did not abuse its discretion in refusing to excuse Collette for cause. Moreover, defendant's characterization of Collette's statements as "racially inflammatory" is wholly unfounded. Accordingly, we hold that the jury panel was not tainted, as defendant contends, and that the trial court was under no obligation to excuse the entire panel.
Defendant next argues that the trial court erred by refusing to instruct the jury on the lesser included offenses of felony larceny or conspiracy to commit larceny. Preliminarily, we note and agree with the State's contention that because defendant failed to make any argument regarding the alleged error in refusing to issue the instruction on conspiracy to commit larceny, he has abandoned that assignment of error. N.C.R. App. P. 28(b)(6) (2007).
As to defendant's contention that the trial court erred in refusing to submit the lesser included offense of larceny, we are guided in our deliberations by our Supreme Court:
To convict of larceny, there must be proof that defendant (a) took the property of another; (b) carried it away; (c) without the owner's consent; and (d) with the intent to deprive the owner of his property permanently. However, as we have often stated, [a] trial court must submit and instruct the jury on a lesser included offense when, and only when, there is evidence from which the jury could find that defendant committed the lesser included offense. The test in every case involving the propriety of an instruction on a lesser grade of an offense is not whether the jury could convict defendant of the lesser crime, but whether the State's evidence is positive as to each element of the crime charged and whether there is any conflicting evidence relating to any of these elements.
State v. Cummings, 346 N.C. 291, 326-27, 488 S.E.2d 550, 571 (1997) (quotations and citations omitted) (alteration in original). We therefore examine whether the State proved each element of robbery with a dangerous weapon and whether there was any conflicting evidence with regard to any of those elements.
Defendant suggests that because he did not specifically threaten Cable with a "gun, violence or threat," the evidence is conflicting. We disagree. Defendant, acting with Artis, who the undisputed evidence showed did have a gun, demanded the necklaces and took them away. The fact that defendant himself might not have had a gun is irrelevant. The State proceeded on a theory of acting in concert. "Acting in concert means that the defendant is present at the scene of the crime and acts together with another who does the acts necessary to constitute the crime pursuant to a common plan or purpose to commit the crime." State v. Graham, ___ N.C. App. ___, ___, 650 S.E.2d 639, 649 (2007). It is undisputed that Artis had a gun and that Cable was in fear because of it. Cable stated that he gave defendant the necklaces "[b]ecause Mr. Artis had a gun on me telling me to give it to him." The trial court did not err.
Defendant also argues that the trial court erred by denying his motion for a copy of the trial transcript at sentencing. As the trial court noted, because there were no aggravating factors alleged and defendant's attorney had the opportunity to speak with defendant regarding any mitigating factors, there was no reason to grant defendant a copy of the transcript. Defendant cites no authority on point. This assignment of error is without merit.
Finally, defendant claims that the trial court abused its discretion by sentencing him to the maximum level within the presumptive range. Defendant engages in rank speculation, suggesting that the trial judge was angry at him for not being present at the trial. The only evidence to which defendant points in support of this contention is one comment from the trial court, in which the court stated, "Part of the problem that your client faces he brought upon himself. . . ." The trial court made the comment in connection with its denial of defendant's request for a transcript. However, we are mindful that "a trial court is not required to justify a decision to sentence a defendant within the presumptive range by making findings of aggravation and mitigation." State v. Fowler, 157 N.C. App. 564, 567-68, 579 S.E.2d 499, 502 (2003) (quotations and citation omitted). The trial court did not abuse its discretion.
Having conducted a thorough review of the briefs and record, we conclude that defendant received a fair trial, free from error.
No error.
Judges HUNTER and STROUD concur.
Report per Rule 30(e).