State v. Daniels, No. 802SC456

No. 802SC456 | N.C. Ct. App. | Apr 7, 1981

WHICHARD, Judge.

We note at the outset that defendant’s brief does not comply with North Carolina Rules of Appellate Procedure, Rule 28(b)(3), in that it does not state the questions presented separately with a reference following each question to the assignments of error and exceptions pertinent thereto. Nor does it comply with Appellate Rule 28(b)(4) which requires “[a] short conclusion stating the precise relief sought.” We nevertheless consider the contentions presented pursuant to our inherent residual power expressed in Appellate Rule 2 to suspend the requirements of our rules “[t]o prevent manifest injustice to a party.”

Defendant contends that his rights to a speedy trial under the North Carolina Speedy Trial Act, G.S. 15A-701 et seq., and the constitutions of the United States and the State of North Carolina have been violated. The record indicates that criminal process was served on defendant on 17 July 1979. The time limitations for trial imposed by the Speedy Trial Act commenced to run on that date. G.S. 15A~701(al)(l). Defendant was tried at a session which commenced on 17 December 1979. Thus, 153 days elapsed between service of criminal process and commencement of trial. Nothing else appearing, the court should have dismissed the charges against defendant for the State’s failure to bring him to trial within 120 days of service of criminal process as required by G.S. 15A-701(al)(l). The trial court, however, excluded the time between 11 September 1979, the date on which an order was entered by Judge James Strickland continuing defendant’s case, and 15 October 1979, the date on which the next session of criminal court in Beaufort County commenced. This period was excluded pursuant to G.S. 15A-701(b)(7) which in pertinent part provides for the exclusion of

[a]ny period of delay resulting from a continuance granted by any judge if the judge granting the continuance finds that the ends of justice served by granting the continuance outweigh the best interests of the public and the defendant in a speedy trial and sets forth in writing in the record of the case the reasons for so finding.

G.S. 15A-701(b)(7) (Supp. 1979). The court made the requisite finding “that the ends of justice would be served by granting the continuance and outweigh the best interests of the public and the defendant in a speedy trial.” It also found that the “order of continuance ... was to protect the interests of the defendant so that he would not be prejudiced by testimony heard during the companion case [of Patricia Harris], and the defendant has not been prejudiced by such delay as it was in his interest.” These findings support the exclusion of the period between 11 September 1979 and 15 October 1979 from the Speedy Trial Act computation. With this exclusion, defendant was tried within 120 days as required by the Act. While defendant contends that the order of continuance was entered ex parte without affording him opportunity to be heard, nothing in the record supports his contention except his own allegations; and the order recites that the court “heard arguments of counsel.” Further, we can ascertain no prejudice to defendant from the granting of the motion. On the contrary, it appears to have been for his benefit. We thus find no merit in the contention that defendant’s rights under the North Carolina Speedy Trial Act were violated. Nor do we find merit in his contention that his constitutional rights to a speedy trial were violated. The time period between service of criminal process and commencement of trial was well within constitutionally permissible limits. See Barker v. Wingo, 407 U.S. 514" court="SCOTUS" date_filed="1972-06-22" href="https://app.midpage.ai/document/barker-v-wingo-108590?utm_source=webapp" opinion_id="108590">407 U.S. 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972); State v. Moore, 51 N.C. App. 103" court="N.C. Ct. App." date_filed="1981-03-03" href="https://app.midpage.ai/document/harris-v-harris-1250154?utm_source=webapp" opinion_id="1250154">51 N.C. App. 103, 275 S.E.2d 257" court="N.C. Ct. App." date_filed="1981-03-03" href="https://app.midpage.ai/document/state-v-moore-1249947?utm_source=webapp" opinion_id="1249947">275 S.E. 2d 257 (1981), State v. Hartman, 49 N.C. App. 83" court="N.C. Ct. App." date_filed="1980-10-07" href="https://app.midpage.ai/document/state-v-hartman-1315350?utm_source=webapp" opinion_id="1315350">49 N.C. App. 83, 270 S.E. 2d 609 (1980).

Defendant contends that his constitutional rights have been violated by improper admission of evidence obtained from a non-testimonial identification in a prior case in another county. Specifically, he argues the court erred in admitting fingerprint cards and handwriting samples obtained from defendant by an S.B.I. agent on 22 February 1979 pursuant to an order issued by a district court judge in Wilson County in another case.

The introduction of fingerprint identification cards may be objectionable as violative of the rule prohibiting introduction of evidence showing that the accused has committed another separate, independent offense. It is not objectionable or prejudicial per se, however. See State v. Jackson, 284 N.C. 321" court="N.C." date_filed="1973-12-12" href="https://app.midpage.ai/document/state-v-jackson-1212950?utm_source=webapp" opinion_id="1212950">284 N.C. 321, 331-334, 200 S.E.2d 626" court="N.C." date_filed="1973-12-12" href="https://app.midpage.ai/document/state-v-jackson-1212950?utm_source=webapp" opinion_id="1212950">200 S.E. 2d 626, 632-634 (1973); State v. McNeil, 28 N.C. App. 347" court="N.C. Ct. App." date_filed="1976-01-07" href="https://app.midpage.ai/document/state-v-mcneil-1301334?utm_source=webapp" opinion_id="1301334">28 N.C. App. 347, 220 S.E. 2d 869, review denied 289 N.C. 618" court="N.C." date_filed="1976-04-06" href="https://app.midpage.ai/document/state-v-lewis-6703395?utm_source=webapp" opinion_id="6703395">289 N.C. 618, 223 S.E. 2d 395 (1976). The admissibility of handwriting comparison evidence has been established in this jurisdiction by statute. G.S. 8-40. Nothing in this record indicates that the introduction of the exhibits in question resulted in placing before the jury evidence of separate, independent offenses committed by defendant. Nor do we find merit in defendant’s contention that this evidence should have been excluded by virtue of the State’s failure to comply with the statutory requirement that “the subject of nontestimonial identification procedures or his attorney must be provided with a copy of any reports of test results as soon as the reports are available.” G.S. 15A-282. The trial court found that the reports were received by the S.B.I. on or about 26 March 1979; that between the date of defendant’s arrest on 17 July 1979 and the date of his probable cause hearing on 29 August 1979, copies of the reports were given to the attorney representing defendant in the Wilson County case; and that on 4 September 1979 copies of the reports were given to his attorney in this case. It also found that any delay between receipt of the reports by the S.B.I. agent and furnishing the reports to defendant’s attorneys did not result in prejudice to defendant. In view of the fact that defendant’s attorney here received the reports on 4 September 1979, some 3Yz months before trial commenced, we agree with the trial court’s determination that defendant has failed to sustain his burden of showing prejudice as a result of any delay in providing his attorney with copies of these reports. G.S. 15A-1443.

Defendant next contends the indictment fails to charge an offense. The gravamen of his argument appears to be as follows: The indictment is fatally defective in that it fails to allege the value of the property stolen. The jury acquitted defendant on the breaking and entering count. The larceny thus cannot be felonious on the ground that it was committed pursuant to a breaking and entering in violation of G.S. 14-54, as provided in G.S. 14-72(b)(2). Because the larceny was not committed pursuant to a breaking and entering, and because the value of the property stolen was not alleged, the indictment does not properly charge a felony and thus cannot properly charge the lesser included misdemeanor offense.

Defendant’s brief contains no citation of authorities in support of this argument. Appellate Rule 28(b)(3). Nor do we find supporting authority for or merit to the contention. The indictment clearly and properly alleges the felony of larceny of twenty-eight blank company checks, the personal property of National Spinning Company. “[T]he misdemeanor of larceny is a less[er] degree of the felony of larceny within the meaning of G.S. 15-170.” State v. Cooper, 256 N.C. 372" court="N.C." date_filed="1962-02-28" href="https://app.midpage.ai/document/state-v-cooper-1321081?utm_source=webapp" opinion_id="1321081">256 N.C. 372, 380, 124 S.E. 2d 91, 97 (1962). This Court, speaking through Judge Clark, has stated: “It is established in the criminal law that the greater crime includes the lesser, so that where an offense is alleged in an indictment, and the jury acquits as to that one, it may convict of the lesser offense when the charge is inclusive of both offenses.” State v. Craig, 35 N.C. App. 547" court="N.C. Ct. App." date_filed="1978-03-07" href="https://app.midpage.ai/document/state-v-craig-1333578?utm_source=webapp" opinion_id="1333578">35 N.C. App. 547, 549, 241 S.E. 2d 704, 705 (1978). Thus, the indictment alleging felonious larceny sufficed to sustain the conviction of misdemeanor larceny.

Defendant further contends, with respect to the bill of indictment, that he was not served with a copy thereof and that “[t]his raises serious question as to whether or not the defendant actually had sufficient notice of the charges pending against him.” He apparently relies on the incomplete Officer’s Return on the “Notice of Return of Bill of Indictment.” The record indicates, however, that on 23 August 1979 defendant waived arraignment and entered a plea of not guilty. “[T]he purpose of an arraignment is to advise the defendant of the crime with which he is charged.” State v. Carter, 30 N.C. App. 59" court="N.C. Ct. App." date_filed="1976-07-07" href="https://app.midpage.ai/document/state-v-carter-6733206?utm_source=webapp" opinion_id="6733206">30 N.C. App. 59, 61, 226 S.E. 2d 179, 180 review denied 290 N.C. 664" court="N.C." date_filed="1976-09-01" href="https://app.midpage.ai/document/state-v-carter-6703514?utm_source=webapp" opinion_id="6703514">290 N.C. 664, 228 S.E.2d 455" court="N.C." date_filed="1976-09-01" href="https://app.midpage.ai/document/state-v-green-1417007?utm_source=webapp" opinion_id="1417007">228 S.E. 2d 455 (1976). The defendant, having waived the proceeding designed to advise of the charges against him, cannot sustain his burden of showing prejudice from insufficient notice resulting from the technicality of an incomplete officer’s return on the bill of indictment.

By a single sentence in his brief defendant attempts to bring forward numerous exceptions and assignments of error to the trial court’s evidentiary rulings. It will suffice to say that we have examined the errors alleged, and we find that neither singly nor (as defendant contends) in their “accumulative effect” do the matters alleged establish error “so prejudicial as to amount to a denial of the defendant’s rights to a fair trial.”

Defendant contends the court erred in denying his motions to dismiss at the close of the State’s evidence and at the close of all the evidence.

Defendant introduced evidence, and by doing so waived his right to except on appeal to the denial of his motion for [dismissal] at the close of the State’s evidence. G.S. 15-173. His exception to the denial of his motion for [dismissal] made at the close of all the evidence raises the question of the sufficiency of all the evidence to go to the jury.

State v. Rigsbee, 285 N.C. 708" court="N.C." date_filed="1974-10-10" href="https://app.midpage.ai/document/state-v-rigsbee-1306705?utm_source=webapp" opinion_id="1306705">285 N.C. 708, 715, 208 S.E. 2d 656, 661 (1974). See also State v. Jones, 296 N.C. 75" court="N.C." date_filed="1978-11-28" href="https://app.midpage.ai/document/state-v-jones-1213185?utm_source=webapp" opinion_id="1213185">296 N.C. 75, 77, 248 S.E. 2d 858, 859 (1978). Without considering evidence which defendant contends should have been excluded, there was plenary evidence, when considdered in the light most favorable to the State, “to establish each essential element of the offense charged and the defendant as the perpetrator thereof.” State v. Rogers, 49 N.C. App. 337" court="N.C. Ct. App." date_filed="1980-11-04" href="https://app.midpage.ai/document/state-v-rogers-8903672?utm_source=webapp" opinion_id="8903672">49 N.C. App. 337, 345, 271 S.E.2d 535" court="N.C. Ct. App." date_filed="1980-11-04" href="https://app.midpage.ai/document/state-v-rogers-1308545?utm_source=webapp" opinion_id="1308545">271 S.E. 2d 535, 540 review denied 301 N.C. 530" court="N.C." date_filed="1980-12-02" href="https://app.midpage.ai/document/taylor-v-hayes-6705136?utm_source=webapp" opinion_id="6705136">301 N.C. 530, 273 S.E.2d 464" court="N.C." date_filed="1980-12-16" href="https://app.midpage.ai/document/state-v-rogers-6705133?utm_source=webapp" opinion_id="6705133">273 S.E. 2d 464 (1980). This contention is without merit.

Defendant finally contends that certain portions of the charge were erroneous and prejudicial. We have examined the portions complained of, and we find no prejudicial error.

Defendant’s failure to comply with the Rules of Appellate Procedure considerably enhanced the difficulty of our task in reviewing the errors alleged. We nevertheless have examined carefully the contentions presented, both in the document captioned “Motion to Dismiss Pursuant to G.S. 15A-954” set forth at the commencement of defendant’s brief, and in the brief itself. On the basis of this examination we deny the motion, and we find that defendant had a fair trial free from prejudicial error.

No error.

Judges Clark and Webb concur.