State v. Floyd ( 2014 )


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  • An unpublished opinion of the North Carolina Court of Appeals does not constitute
    controlling legal authority. Citation is disfavored, but may be permitted in accordance
    with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
    NO. COA13-396
    NORTH CAROLINA COURT OF APPEALS
    Filed: 7 January 2014
    STATE OF NORTH CAROLINA
    v.                                      Mecklenburg County
    No. 07 CRS 234510-16
    JAMAL LABAR FLOYD,
    Appeal by defendant from judgment entered 24 May 2012 by
    Judge Forrest D. Bridges in Mecklenburg County Superior Court.
    Heard in the Court of Appeals 26 September 2013.
    Attorney General Roy Cooper, by Special Deputy                      Attorney
    General Daniel Snipes Johnson, for the State.
    James N. Freeman, Jr., for defendant-appellant.
    STEELMAN, Judge.
    The trial court did not err in denying defendant’s motion
    to dismiss based upon an alleged speedy trial violation.                      Where
    defendant’s actions in restraining his victims were separate and
    apart from those inherent in the crime of robbery, the trial
    court did not err in denying defendant’s motion to dismiss the
    charge of kidnapping.           There was evidence in the record that
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    supported the trial court’s instructions to the jury on flight
    and how to consider a statement made by defendant.
    I. Factual and Procedural Background
    On 26 June 2007, a black man wearing a black bandanna,
    dreadlocks,       and   no   shirt   entered     the    Aga    Thyme   store    in
    Charlotte, ordering three women to put their hands up and show
    him where the money was.             Of his face, only his eyes were
    visible.      As he led the women to the rear of the store to
    retrieve    the    cashbox,    one   of    the   women,    Julianna      Canfield,
    observed that what she thought was a gun was a pipe covered in
    tin foil.     After the man took the money from the cashbox, he
    asked about the location of the bathroom.                     He instructed the
    women to go into the bathroom.               The women waited, and after
    hearing nothing for several minutes, they opened the bathroom
    door and called the police.
    Officers with the Charlotte Mecklenburg Police Department
    (CMPD) arrived at the scene in response to reports of a black
    man without a shirt behind a nearby shopping center.                   When they
    arrived,    the    employees    of   Aga    Thyme      informed   them    of   the
    robbery.    Officer Ashley Edmondson was on patrol when she heard
    the report of the robbery and the description of the suspect.
    As she was driving towards the store, she observed a black man
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    with dreadlocks in blue jeans, but when she approached him, he
    fled.
    On 27 June 2007, CMPD patrol officers arrested a suspicious
    black man in a camouflage hoodie, who identified himself as
    Jamal Floyd (defendant).     While being arrested, defendant stated
    that he did not do it, but that he knew who did and where the
    money was.
    On 9 July 2007, Canfield was asked by police to identify
    the robber from a photographic lineup.     She identified defendant
    as the robber.
    On 4 September 2007, defendant was indicted for two counts
    of robbery with a dangerous weapon, four counts of attempted
    robbery with a dangerous weapon, three counts of second-degree
    kidnapping, and one count of assault on a female.         On 6 May
    2008, defendant was taken into custody, and released on bond on
    20 February 2009.       In February of 2011, defendant was again
    arrested and charged with unrelated criminal activity committed
    in 2008.     Defendant remained in custody until trial.
    On 12 March 2012, defendant filed a motion to dismiss for
    violation of his right to a speedy trial.1    On 29 March 2012, the
    trial court denied this motion.
    1
    Defendant contends that a previous motion for speedy trial was
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    On 24 May 2012, a jury found defendant guilty of one count
    of   common     law    robbery,   two     counts      of     attempted   common     law
    robbery, three counts of second-degree kidnapping, and assault
    on   a    female.      The   trial      court    sentenced       defendant     to   two
    consecutive terms of 29-44 months imprisonment, with a third
    sentence of the same duration suspended for thirty months with
    11 months of that sentence to be active.
    Defendant appeals.
    II. Right to a Speedy Trial
    In his first argument, defendant contends that the trial
    court     erred   in   denying    his    motion       to    dismiss    based   upon    a
    violation of his right to a speedy trial.                    We disagree.
    A. Standard of Review
    “This Court reviews the trial court’s denial of a motion to
    dismiss de novo.” State v. Smith, 
    186 N.C. App. 57
    , 62, 
    650 S.E.2d 29
    , 33 (2007).
    “The   standard     of   review        for        alleged    violations      of
    constitutional rights is de novo.” State v. Graham, 
    200 N.C. App. 204
    , 214, 
    683 S.E.2d 437
    , 444 (2009), appeal dismissed and
    disc. review denied, 
    363 N.C. 857
    , 
    694 S.E.2d 766
     (2010); see
    filed in July of 2010, but had never been heard.   The trial
    court acknowledged this in its findings.   However, no such
    motion is found in the record.
    -5-
    also Piedmont Triad Reg’l Water Auth. v. Sumner Hills Inc., 
    353 N.C. 343
    , 348, 
    543 S.E.2d 844
    , 848 (2001) (“[D]e novo review is
    ordinarily appropriate in cases where constitutional rights are
    implicated.”).
    B. Analysis
    In the case of Barker v. Wingo, 
    407 U.S. 514
    , 
    33 L.Ed.2d 101
     (1972), the United States Supreme Court set forth a four-
    part test for determining if a defendant had been denied his
    constitutional right to a speedy trial.          These four elements are
    (1) the length of the delay, (2) the reason for the delay, (3)
    the defendant’s assertion of his right to a speedy trial, and
    (4) prejudice to defendant resulting from the delay.              Barker at
    530-32, 
    33 L. Ed. 2d at 117-18
    .             Our Supreme Court held that
    this analysis applies when a defendant asserts a violation of
    North Carolina’s speedy trial law.           State v. Grooms, 
    353 N.C. 50
    , 62, 
    540 S.E.2d 713
    , 721 (2000).          There is no exact calculus
    in balancing these factors; rather, they are to be considered
    together   on   a   case-by-case   basis,    with   no   one   factor   being
    outcome-determinative.      State v. Washington, 
    192 N.C. App. 277
    ,
    282-83, 
    665 S.E.2d 799
    , 803 (2008).          If a defendant establishes
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    that the factors weigh in his favor, the charges against him
    should be dismissed.       Id. at 297-98, 
    665 S.E.2d at 812
    .
    The first of the four Barker factors is the length of the
    delay.     In the instant case, defendant was arrested and indicted
    in 2007, and tried in 2012.         We have previously held that “[a]
    defendant’s right to a speedy trial attaches upon being formally
    accused of criminal activity, by arrest or indictment.                      The
    period relevant to speedy trial analysis ends upon trial.                    If
    the   length   of   delay     approaches    one     year,   we    examine   the
    remaining three factors in Barker.” State v. Friend, ___ N.C.
    App. ___, ___, 
    724 S.E.2d 85
    , 90 (2012) (citations omitted).
    Since the delay in this case was approximately five years, we
    must examine the remaining Barker factors.
    With regard to the second Barker factor, the reason for the
    delay, defendant bears the burden of “presenting prima facie
    evidence     that   the     delay   was    caused     by    the   neglect    or
    willfulness” of the State.          Washington, 192 N.C. App. at 283,
    
    665 S.E.2d at 804
    .        In the instant case, the trial court found:
    9.   That    during the period of 2008 through
    2012 the      Defendant has had, for various
    reasons,    three attorneys representing him,
    including    his current attorney appointed in
    August of   2011.
    10. That one of his previous attorneys was
    allowed to withdraw as a result of a
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    complaint made by the Defendant to the State
    Bar giving rise to an inability of the
    attorney   to   adequately   represent   the
    Defendant.
    11. That in addition the Defendant's cases
    were delayed for approximately nine months
    as a result of a medical leave taken by the
    attorney originally appointed to represent
    the Defendant.
    12. That these matters have been scheduled
    for multiple pre-trial readiness conferences
    with the various attorneys representing the
    Defendant.
    . . .
    17. That the reasons for the delay in the
    trial of all of the Defendant’s charges
    include the change of attorneys by the
    Defendant, the medical leave by a previous
    attorney, the failure of the cases to be
    reached on the trial calendar, efforts by
    the   State    to   try   matters   involving
    Defendants who are in [sic] incarcerated
    rather than released on bond (including
    electronic   monitoring)   and  the   general
    backlog of criminal Superior Court cases.
    In reviewing the trial court’s findings with regard to the
    reasons for the delay, it appears that while some of the delay
    may have been caused by the actions or inaction of the State, a
    substantial   amount   of   the   delay   was   caused   by   defendant’s
    decision to change lawyers, defense counsel’s medical leave, and
    the unfortunate backlog of cases in our state’s Superior Courts.
    We hold therefore that the delay was not caused primarily by the
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    neglect or willfulness of the State, and the trial court did not
    err in so holding.
    With regard to the third factor, defendant’s assertion of
    his right to a speedy trial, our Supreme Court has held that a
    “[d]efendant’s failure to assert his right to a speedy trial, or
    his failure to assert his right sooner in the process, does not
    foreclose his speedy trial claim, but does weigh against his
    contention[.]”   Grooms, 
    353 N.C. at 63
    , 
    540 S.E.2d at 722
    .   In
    the instant case, the trial court found:
    15. That in July of 2010 a separate motion
    for speedy trial was filed by a previous
    attorney for the Defendant but was not heard
    by the Court.
    16. That it is unknown to the State or the
    Defendant's attorney why the previously
    filed motion for a speedy trial was not
    heard.
    The trial court further observed that defendant’s present
    “motion for a speedy trial, motion to dismiss were properly
    noticed and before the Court.”
    In Grooms, the defendant’s assertion of his right to speedy
    trial came nearly three years after indictment, and the Court
    held that this delay weighed against his claim.   In the instant
    case, as in Grooms, we hold that this three-year delay weighs
    against defendant.
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    With regard to the fourth factor, prejudice to defendant
    resulting from the delay, the trial court         made no findings.
    Defendant contends that he was prejudiced by the unavailability
    of “key witness” Kaylah Roberson, but does not suggest how her
    testimony would have had a probable impact on the result of the
    case.
    In its conclusions of law, the trial court held:
    3.   That the reasons for the length of the
    delay were a combination of the failure of
    the cases to be reached on the trial
    calendars as well as delays resulting from
    Defendant’s decision to change attorneys on
    two occasions since his original arrest and
    the lengthy medical leave.
    4.   That based on these factors the Court
    concludes that the delay in the trial of
    this matter is not due to willfulness of the
    State or any administrative neglect on the
    part of the State but rather due to a
    combination of factors for which both the
    State and the Defendant are responsible.
    5.   That in balancing the factors including
    the length of the delay, the time in which
    the Defendant filed this motion, the reasons
    for the delay and the lack of any showing of
    prejudice   by  the   Defendant,  the   Court
    concludes that Defendant’s constitutional
    right to a speedy trial has not been denied.
    Despite    offering   arguments   with   regard   to   the   Barker
    factors, defendant does not challenge the trial court’s findings
    of fact.   Findings of fact that are not challenged are binding
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    on appeal.    Koufman v. Koufman, 
    330 N.C. 93
    , 97, 
    408 S.E.2d 729
    ,
    731 (1991).
    We hold that (1) the delay was presumptively prejudicial,
    meriting an examination of the other Barker factors; (2) the
    State’s willful or negligent actions were not the cause of the
    delay; (3) defendant’s three-year delay in asserting his right
    to speedy trial weighs against him; and (4) defendant has not
    adequately argued that absent the delay, the jury would have
    returned a different verdict.         Accordingly, we hold that the
    trial court did not err in denying defendant’s motion to dismiss
    based upon an alleged violation of defendant’s right to a speedy
    trial.
    This argument is without merit.
    III. Motion to Dismiss
    In his second argument, defendant contends that the trial
    court erred in denying his motion to dismiss the kidnapping
    charges   because   the   restraint   involved   in   those   charges   was
    inherent to the robbery charges.       We disagree.
    A. Standard of Review
    “This Court reviews the trial court’s denial of a motion to
    dismiss de novo.” State v. Smith, 
    186 N.C. App. 57
    , 62, 
    650 S.E.2d 29
    , 33 (2007).
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    B. Analysis
    Our Supreme Court has held that the “restraint” which is
    “an    inherent,      inevitable       element    of    another    felony,   such     as
    armed       robbery     or    rape,”     cannot        support    the     offense     of
    kidnapping, thus permitting conviction and punishment for both
    crimes arising from a single act.                 State v. Irwin, 
    304 N.C. 93
    ,
    102,    
    282 S.E.2d 439
    ,    446    (1981).        Rather,    that    “restraint”
    needed to constitute a kidnapping must be separate and apart
    from that inherent in the commission of another felony.                           State
    v. Johnson, 
    337 N.C. 212
    , 221, 
    446 S.E.2d 92
    , 98 (1994).
    Defendant relies on Irwin, in which the defendant forced
    the victim at knifepoint to walk to the prescription counter and
    safe.       In that case, the Supreme Court held that the victim’s
    removal to the safe at the back of the store was an integral
    part of the attempted robbery, the objective of which was to
    obtain drugs.
    In     the   instant     case,    however,      defendant    did    more     than
    merely remove the women to the back of the store while he opened
    the cashbox.        Having completed the robbery, he then removed them
    to the bathroom.         These facts are similar to those in State v.
    Davidson, 
    77 N.C. App. 540
    , 
    335 S.E.2d 518
    , disc. review denied,
    
    314 N.C. 670
    , 
    337 S.E.2d 583
     (1985).                     In Davidson, defendant,
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    while robbing a store, removed the occupants of the store to a
    dressing room.         We held that:
    Since none of the property was kept in the
    dressing room, it was not necessary to move
    the victims there in order to commit the
    robbery. Removal of the victims to the
    dressing room thus was not an inherent and
    integral part of the robbery. Rather, as in
    Newman, it was a separate course of conduct
    designed to remove the victims from the view
    of passersby who might have hindered the
    commission of the crime. The evidence thus
    was sufficient under N.C. Gen. Stat. 14-39
    to sustain the kidnapping convictions, and
    the court properly denied defendant's motion
    to dismiss the kidnapping charges.
    Davidson at 543, 
    335 S.E.2d at 520
    .                   See also State v. Joyce,
    
    104 N.C. App. 558
    , 567, 
    410 S.E.2d 516
    , 521 (1991), disc. review
    denied,    
    331 N.C. 120
    ,   
    414 S.E.2d 764
       (1992)     (holding      that
    removals    which      were   “not   an    integral    part   of    the   crime   nor
    necessary to facilitate the robberies” were more comparable to
    Davidson than to Irwin).
    Defendant contends that the kidnapping charges should have
    been dismissed because the women in the Aga Thyme store were not
    subjected to any greater danger than from the robbery by being
    removed    to    the    bathroom.      Nonetheless,      we   are    bound   by   the
    precedent found in Davidson and Joyce.                In re Civil Penalty, 
    324 N.C. 373
    , 384, 
    379 S.E.2d 30
    , 37 (1989).                      We hold that this
    second removal, subsequent to the completion of the robbery, was
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    a     distinct     act,   separate      and     apart     from    defendant’s        acts
    integral to the robbery.            We hold that the trial court did not
    err    in   denying    defendant’s      motion      to    dismiss     the    kidnapping
    charges.
    This argument is without merit.
    IV. Jury Instructions
    In his third argument, defendant contends that the trial
    court erred or committed plain error by giving instructions to
    the jury which were not supported by the evidence.                     We disagree.
    A. Standard of Review
    “[Arguments]       challenging         the    trial       court’s      decisions
    regarding jury instructions are reviewed de novo by this Court.”
    State v. Osorio, 
    196 N.C. App. 458
    , 466, 
    675 S.E.2d 144
    , 149
    (2009). “The prime purpose of a court’s charge to the jury is
    the    clarification      of    issues,       the   elimination       of     extraneous
    matters, and a declaration and an application of the law arising
    on    the   evidence.”    State    v.    Cameron,        
    284 N.C. 165
    ,    171,    
    200 S.E.2d 186
    , 191 (1973), cert. denied, 
    418 U.S. 905
    , 
    41 L. Ed. 2d 1153
     (1974). “[A] trial judge should not give instructions to
    the jury which are not supported by the evidence produced at the
    trial.”      
    Id.
        “Where      jury    instructions           are    given     without
    -14-
    supporting evidence, a new trial is required.” State v. Porter,
    
    340 N.C. 320
    , 331, 
    457 S.E.2d 716
    , 721 (1995).
    B. Analysis
    During the jury charge conference, defendant objected to
    proposed jury instructions on flight and on defendant’s alleged
    admission upon his arrest on 27 June 2007.            The trial court
    overruled these objections and instructed the jury on flight, as
    follows:
    One of the circumstances that the State
    contends and the defendant denies in this
    case is that the defendant fled. I instruct
    you   that   evidence   of  flight  may   be
    considered by you together with all other
    facts and circumstances in this case in
    determining     whether    those    combined
    circumstances amount to an admission or show
    a consciousness of guilt. I instruct you,
    however, that proof of this circumstance --
    that is, a circumstance of fleeing or flight
    -- is not sufficient in itself to establish
    guilt.
    Defendant argued at trial, and contends on appeal, that
    this instruction was erroneous, because Officer Edmondson did
    not positively identify defendant as the man who fled from her.
    Our Supreme Court has held that “an instruction on flight
    is justified if there is ‘some evidence in the record reasonably
    supporting   the   theory   that    the   defendant   fled   after   the
    commission of the crime charged.’”        State v. Blakeney, 352 N.C.
    -15-
    287, 314, 
    531 S.E.2d 799
    , 819 (2000) (quoting State v. Allen,
    
    346 N.C. 731
    , 741, 
    488 S.E.2d 188
    , 193 (1997)).
    In the instant case, there was evidence other than Officer
    Edmondson’s     testimony        that    defendant         expeditiously    left        the
    scene of the robbery.             Specifically, evidence tended to show
    that the police arrived promptly, that they canvassed the area
    with dogs and a helicopter, and that they were unable to find
    the robber.     Evidence that an exhaustive search failed to reveal
    a defendant may support a jury instruction on flight.                       See State
    v.   Patterson,     
    332 N.C. 409
    ,       420,    
    420 S.E.2d 98
    ,   104    (1992)
    (holding     that   evidence      of     an    exhaustive      twelve-year        police
    search for defendant “clearly supports the inference that the
    defendant     was    avoiding       apprehension,            thus    supporting         the
    instruction on flight.”).
    This    evidence,     taken       as    a     whole,   tends    to   show        that
    defendant quickly fled from the scene of the robbery.                                  Even
    assuming     arguendo     that    Officer      Edmondson’s      testimony        was    not
    sufficient to support the flight instruction, we hold that there
    was other evidence in the record sufficient to support the trial
    court’s flight instruction.
    The trial court also instructed the jury that:
    The State also contends and the defendant
    denies that the defendant has admitted one
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    or more facts relating to the crime charged
    in this case. I instruct you that if you
    find from the evidence that the defendant
    has admitted any fact relating to the crime
    charged in this case, then you should
    consider all of the circumstances under
    which that admission was made in determining
    whether it was a truthful admission and the
    weight that you will give to it.
    Defendant argued at trial, and contends on appeal, that
    this instruction was erroneous.                   The statement that defendant
    allegedly gave upon his arrest was “I didn’t do it, but I know
    who   did    and   where       the   money      is.”    Defendant     contends    that
    nowhere is “it” identified as the crime in this case, and thus
    that this admission was not “relating to the crime charged in
    this case.”
    “An admission is a statement of pertinent facts which, in
    light of other evidence, is incriminating.”                      State v. Trexler,
    
    316 N.C. 528
    ,       531,   
    342 S.E.2d 878
    ,   879-80   (1986).     In    the
    instant case, defendant was apprehended the day after the money
    was   stolen,      in    the    same    neighborhood,      and   he   informed    the
    apprehending officer that he “didn’t do it[,]” whatever “it”
    might be, but he “knew where the money [was].”                      In light of the
    circumstances of his arrest, this statement raised a sufficient
    question of fact for a jury to be instructed upon it.                      Further,
    the trial court’s instruction did not compel the jury to find
    -17-
    that the statement was an admission, but rather permitted the
    jury to decide whether there was an admission and the weight to
    be given to the statement.   We hold that there was sufficient
    evidence presented by the State to support the trial court’s
    instruction.
    This argument is without merit.
    NO ERROR.
    Judges HUNTER, ROBERT C. and BRYANT concur.
    Report per Rule 30(e).