116 N.C. App. 396 | N.C. Ct. App. | 1994
Four cases against defendant, David Lewis Netcliff, were consolidated for trial at the 7 June 1993 session of Cumberland County Superior Court. In case Nos. 92CRS27793 and 92CRS27794, defendant was indicted and charged for conspiracy to traffic a controlled substance. In case No. 92CRS27795, defendant was indicted and charged with the offense of trafficking in a controlled substance by possession, sale and delivery of cocaine. In case No. 92CRS27796, defendant was indicted and charged with a second count of trafficking in a controlled substance by possession, sale and delivery of cocaine. Defendant was also charged in each of four special indictments as an habitual felon pursuant to North Carolina General Statutes § 14-7.1 (1993).
Evidence for the State presented at trial tended to show the following: From approximately May 1988 until November 1990, the Investigative Grand Jury Task Force of Cumberland County conducted undercover narcotics operations in the Fayetteville, North Carolina area. On 19 July 1989, Special Agent Phil Sweatt was working undercover as a drug dealer, and agreed to meet Jorge Segarra at the A & H Cleaners on Murchison Road in Fayetteville around 6:00 p.m. to purchase two ounces of cocaine. When Agent Sweatt arrived at the cleaners, Segarra introduced him to defendant, a person named David. Agent Sweatt did not know defendant’s last name, but saw that defendant had the word “Margaret” tattooed on his left arm. Agent Sweatt and defendant briefly discussed details of a cocaine deal. The men then drove to an apartment complex to pick up the cocaine. When they arrived at the apartment complex, Jerry Johnny Brown drove up in a Saab; defendant and Agent Sweatt stepped into the car with Brown where they exchanged money and two clear plastic bags containing cocaine. Brown handed the cocaine to Agent Sweatt and defendant confirmed the price. Agent Sweatt gave $2,200.00 to defendant who then gave $1,850.00 to Brown. Before leaving, defend
On the afternoon of 28 July 1989, Agent Sweatt called the phone number and arranged with defendant to purchase three ounces of cocaine. A meeting was scheduled for 4:00 or 4:30 p.m. later that day at the Barbeque House on Murchison Road in Fayetteville. When Agent Sweatt arrived at the Barbeque House, defendant was standing outside and motioned for Agent Sweatt to pull over into the Kemplate Beauty Shop parking lot. Defendant approached Agent Sweatt’s car and sat down in the front seat before telling Agent Sweatt that he had to go inside the beauty shop to find out when the cocaine would arrive. While defendant was inside, Agent Sweatt saw a truck drive up and saw Jerry Johnny Brown step out of the truck and go inside the beauty shop. Agent Sweatt noticed that the Saab which Brown had driven on 19 July 1989 was in the parking lot. Defendant came out of the beauty shop and told Agent Sweatt to follow Brown and defendant, who were now in the Saab, to Bain Drive. When they arrived at Bain Drive, Agent Sweatt got out of his car and got into the Saab with Brown and defendant. Brown then handed Agent Sweatt a clear plastic bag with three plastic bags of cocaine inside. Defendant took $3,000.00 from Agent Sweatt as payment for the cocaine. The bags of cocaine which Agent Sweatt obtained during these transactions were later analyzed by Special Agent J. D. Sparks, a forensic chemist with the State Bureau of Investigation, and found to be seventy to seventy-five percent cocaine in hydrochloride form.
The Investigative Grand Jury did not identify defendant by his full name until the summer of 1991 when Jerry Johnny Brown was apprehended. On 20 August 1991, Agent Sweatt, now employed by the Richmond County Sheriffs Department, first identified defendant as the person from whom he purchased cocaine on 19 July 1989 and 28 July 1989; Agent Sweatt recognized defendant from a photographic lineup arranged by Special Agent Mark Francisco. Defendant was apprehended in New Jersey and extradited to North Carolina.
The jury returned a guilty verdict in each case and the trial judge adjudicated defendant as an habitual felon and consolidated the convictions for judgment, sentencing defendant to two consecutive life terms and ordering defendant to pay fines. Defendant appealed to our Court.
Defendant first argues on appeal that the trial court committed reversible error in denying defendant’s motion to dismiss pursuant to North Carolina General Statutes § 15A-954(a)(3) (1988).
*400 North Carolina General Statutes § 15A-954(a)(3) states:
(a) The court on motion of the defendant must dismiss the charges stated in a criminal pleading if it determines that:
(3) The defendant has been denied a speedy trial as required by the Constitution of the United States and the Constitution of North Carolina.
Defendant argues that “ [defendant Netcliff was not actually served with [the warrants against defendant issued December 1991] until July of 1992, three years after the alleged illegal drug transactions.” Defendant further contends “that the State intentionally delayed issuing the indictment in order to impair his ability to prepare a formidable defense and [in order] to gain an advantage in the prosecution of their case against him.”
We note initially that the case sub judice deals with a preindictment delay. United States v. Lovasco, 431 U.S. 783, 52 L.Ed.2d 752, reh’g denied, 434 U.S. 881, 54 L.Ed.2d 164 (1977) involved a prein-dictment delay of eighteen months, and “[t]he Court held the Speedy Trial Clause of the Sixth Amendment was not applicable, as it applied only to delay following indictment, information or arrest. [The remedy for the defendant in Lovasco was] pursuant to the due process clause of the Fifth and Fourteenth Amendments.” State v. Davis, 46 N.C. App. 778, 781, 266 S.E.2d 20, 22 (1980). The United States Supreme Court in Lovasco noted that “proof of prejudice is generally a necessary but not sufficient element of a due process claim, and . . . the due process inquiry must consider the reasons for the delay as well as the prejudice to the accused.” 431 U.S. at 790, 52 L.Ed.2d at 759. The preindictment delay in Lovasco was because of investigation by the government before seeking indictments. The Court held that “investigative delay is fundamentally unlike delay undertaken by the Government solely ‘to gain tactical advantage over the accused[.]’ ” 431 U.S. at 795, 52 L.Ed.2d at 762, quoting United States v. Marion, 404 U.S. 307, 324, 30 L.Ed.2d 468, 481 (1971). The Court further held that “to prosecute a defendant following investigative delay does not deprive him of due process, even if his defense might have been somewhat prejudiced by the lapse of time.” 431 U.S. at 796, 52 L.Ed.2d at 763.
Based on Lovasco, our Court in State v. Davis, 46 N.C. App. 778, 266 S.E.2d 20, disc. review denied, 301 N.C. 97 (1980) held that for a defendant “to carry the burden on his motion to dismiss for prein-
Defendant next argues that the trial court committed reversible error in overturning defendant’s motion to dismiss the felon counts. Defendant notes that he had a 1983 felony murder conviction, and then had two escape convictions which are ordinarily misdemeanor offenses but became felony offenses pursuant to statute because at the time of the escape, defendant was serving a sentence for a felony conviction. See North Carolina General Statutes § 14-266 (1993). Defendant claims that using these three convictions as prior “felony” convictions is a violation of the double jeopardy clause of the United States Constitution and the North Carolina Constitution because the State “used the same conviction to convert the two escape offenses into felonies in order that they might satisfy the two additional felony convictions needed to charge [defendant . . . with being a habitual felon.” We disagree.
We first note that North Carolina General Statutes § 14-7.1 et seq., our habitual felon statute, is clearly constitutional. See State v. Todd,
An indictment which charges a person who is an habitual felon within the meaning of G.S. 14-7.1 with the commission of any felony under the laws of the State of North Carolina must, in order to sustain a conviction of habitual felon, also charge that said person is an habitual felon. The indictment charging the defendant as an habitual felon shall be separate from the indictment charging him with the principal felony. An indictment which charges a person with being an habitual felon must set forth the date that prior felony offenses were committed, the name of the state or other sovereign against whom said felony offenses were committed, the dates that pleas of guilty were entered to or convictions returned in said felony offenses, and the identity of the court wherein said pleas or convictions took place... .
In the instant case, the indictments charging defendant as an habitual felon were separate from the indictment charging defendant with the principal felony. These indictments set forth the date that the prior felony offenses were committed, the name of the state or other sovereign against whom the felony offenses were committed, the dates that pleas of guilty were entered to or convictions returned in said felony offenses, and the identity of the court wherein said pleas or convictions took place. Defendant had previously been found guilty of three distinct felonies. One felony was for second degree murder, and two felonies were for his two escape convictions pursuant to North Carolina General Statutes § 14-256. We find the trial court properly overturned defendant’s motion to dismiss these habitual felon counts.
Defendant next contends the trial court erred by overruling defendant’s motion in limine regarding statements made by defendant during his transportation from New Jersey to North Carolina. We have reviewed these statements and find that they were not prejudicial to defendant. N.C.R. Evid. 403.
Defendant next argues the trial court committed reversible error in forcing defendant to exhibit to the jury a tatoo on his arm, but not scars on his hand. We note that the trial judge was simply allowing the exhibition of the tatoo for the purpose of corroborating witness Agent Sweatt’s identification of defendant. Defendant’s argument is meritless.
Finally, defendant asserts the trial court committed reversible error in allowing witness Van Parker to testify about why he did not take a picture of the person identified as the defendant. We agree with the trial judge and find this was relevant, non-prejudicial evidence. See N.C.R. Evid. 402 and 403.
No error.
