State v. Maness

364 S.E.2d 349 (1988) 321 N.C. 454

STATE of North Carolina
v.
Jerry Carl MANESS.

No. 481A86.

Supreme Court of North Carolina.

February 3, 1988.

Lacy H. Thornburg, Atty. Gen. by George W. Boylan, Sp. Deputy Atty. Gen., Raleigh, for the State.

R. Theodore Davis, Jr., Wilmington, for defendant-appellant.

WEBB, Justice.

In his first assignment of error, the defendant contends the trial court erred in granting the State's motion to consolidate the two offenses for trial. The defendant argues that trying both charges in front of the same jury overwhelmed the jury with evidence against him and prejudiced the jury against him.

N.C.G.S. § 15A-926(a) provides, in pertinent part, "Two or more offenses may be joined ... for trial when the offenses ... are based on the same act or transaction or on a series of acts or transactions connected together or constituting parts of a single scheme or plan." A trial court's ruling on joining cases for trial is discretionary and will not be disturbed absent a showing of abuse of discretion. State v. Hayes, 314 N.C. 460, 334 S.E.2d 741 (1985). Public policy strongly favors joinder because it expedites the administration of justice, reduces the congestion of trial dockets, conserves judicial time, lessens the burden upon citizens who must sacrifice both time and money to serve on juries and avoids the necessity of recalling witnesses who would otherwise be called upon to testify only once. State v. Boykin, 307 N.C. 87, 296 S.E.2d 258 (1982).

In the present case, the evidence shows a common scheme whereby defendant and his accomplice broke and entered an occupied dwelling house at night, armed with a dangerous weapon, intending to steal property therein, and upon entering, used the weapon to threaten the occupant of the house for purposes of taking his personal property. It was clearly no abuse of discretion to hold that this series of acts constituted a single scheme or plan and that the requirements for joinder in N.C. G.S. § 15A-926(a) were satisfied. This assignment of error is overruled.

The defendant next contends the trial court erred in granting the State's motion in limine prohibiting the defendant from eliciting evidence of certain out-of-court exculpatory statements made by the defendant, until he himself testified. The State and the defendant stipulated that if allowed to testify, Officer Hayes of the New Hanover Sheriff's Department would have testified that "the defendant did state that the items in question in the case were not his, were brought there by Doug Smith and that he did not participate in the crime." The court granted the State's motion in limine on the ground that these statements were, among other things, hearsay not covered by any exception to the hearsay rule.

The defendant argues that these statements constituted "present sense impressions," "excited utterances," and "public records and reports," i.e., the police report, and were thus admissible under any of these exceptions to the hearsay rule. We disagree.

In order to constitute a "present sense impression," a statement must have been made "while the declarant was perceiving the event or condition, or immediately thereafter." N.C.G.S. § 8C-1, Rule 803(1). While the record does not make clear exactly when the defendant made his statement to Officer Hayes, it is clear that he made it after Hayes arrested him nine days after the crime. Nine days later cannot be considered "immediately thereafter" and thus the statement was not a present sense impression.

Neither was it an "excited utterance," which is a "statement relating to a startling event or condition made while the defendant was under the stress of excitement caused by the event or condition." N.C.G.S. § 8C-1, Rule 803(2). For this statement to qualify as an excited utterance, "there must be (1) a sufficiently startling experience suspending reflective thought and (2) a spontaneous reaction, not one resulting from reflection or fabrication." State v. Smith, 315 N.C. 76, 86, 337 S.E.2d 833 (1985). The nine-day interval between the event and the statement precludes the statement from being "a spontaneous reaction, not one resulting from reflection or fabrication."

The statement cannot be admitted under the "Public Records and Reports" exception of N.C.G.S. § 8C-1, Rule 803(8), since that rule specifically excludes "in criminal cases matters observed by police officers and other law-enforcement personnel." The defendant's assignment of error has no merit.

The defendant next contends the trial court erred in admitting the testimony of three witnesses concerning property taken from Mr. Millis. At the time the defendant was arrested on 27 March, the arresting officers conducted a search of his apartment and seized a kerosene heater and an oak cabinet which had been stolen from Mr. Millis. Prior to trial, the defendant moved to suppress testimony of the arresting officers as to these two items. During trial, the court conducted a voir dire, and granted the defendant's motion, holding that the items were seized in violation of the defendant's constitutional rights.

The defendant now argues that the court erred in admitting the testimony of three other witnesses. The defendant argues that this testimony must be excluded under the "fruit of the poisonous tree doctrine" because it can be traced back to the illegal seizure on 27 March. We disagree; none of the testimony of these three witnesses can be traced to the 27 March seizure.

Deputy Hayes testified regarding some property seized from the defendant's accomplice Arnold Douglas Smith on 20 March. This property was not the same property that was illegally seized from the defendant seven days later; testimony regarding it cannot be "traced back" to the illegal seizure.

Mr. Smith testified that he and the defendant had loaded the property they took from Mr. Millis onto a pickup truck and had taken it to Mr. Smith's home in Winnabow. Then, the defendant asked for the heater and oak cabinet, and they brought them to his house that night. These were the same heater and oak cabinet that were illegally seized from the defendant on 27 March. However, Mr. Smith's testimony regarding these items was based upon his own participation in the crime and the subsequent distribution of the stolen property, and cannot be "traced back" to the illegal seizure.

Vivian Thomason testified that she had seen kerosene heaters in the defendant's apartment on or after 19 March, when she was paying him a visit as a friend. This testimony cannot be "traced back" to the illegal seizure on 27 March. The defendant's assignment of error has no merit.

The defendant next assigns error to the trial court's denial of his motion to dismiss at the close of all the evidence. The defendant argues that there was insufficient evidence to convict him of the crimes charged.

When a defendant moves for dismissal, a trial court must determine, for each charge, whether there is substantial evidence of each essential element of the offense charged, and of defendant's being the one who committed the crime. If that evidence is present, the motion to dismiss should be denied. State v. Bullard, 312 N.C. 129, 322 S.E.2d 370 (1984). Substantial evidence is such relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Id. In ruling on a motion to dismiss, the court must consider the evidence in the light most favorable to the State, and the State is entitled to every reasonable inference to be drawn from the evidence. Id. Contradictions and discrepancies must be resolved in favor of the State. Id.

State v. Holden, 321 N.C. 125, 147, 362 S.E.2d 513, 528 (1987).

The defendant in the present case was convicted of first degree burglary and robbery with a dangerous weapon. The essential elements of first degree burglary are: (1) the breaking, (2) and entering, (3) in the nighttime, (4) into a dwelling house or a room used as a sleeping apartment, (5) of another, (6) which is actually occupied at the time of the offense, and (7) with the intent to commit a felony therein. State v. Ledford, 315 N.C. 599, 340 S.E.2d 309 (1986). The essential elements of robbery with a dangerous weapon are (1) the unlawful taking or attempt to take personal property from the person of or in the presence of another, (2) by the use or threatened use of a dangerous weapon, and (3) whereby the life of a person is endangered or threatened. State v. Fields, 315 N.C. 191, 337 S.E.2d 518 (1985).

We conclude that the evidence, as set forth at the beginning of this opinion, is substantial evidence of each essential element of both first degree burglary and robbery with a dangerous weapon, and is substantial evidence that the defendant committed these crimes. The defendant's motion to dismiss was properly denied.

The defendant next contends the trial court erred in failing to submit to the jury the lesser included offenses of the crimes charged. We disagree. A trial court must submit to the jury a lesser included offense when and only when there is evidence from which the jury could find that the defendant committed the lesser included offense. State v. Hall, 305 N.C. 77, 286 S.E.2d 552 (1982). When the State's evidence is positive as to each element of the crime charged and there is no conflicting evidence relating to any element, submission of a lesser included offense is not required. Id. Mere possibility of the jury's piecemeal acceptance of the State's evidence will not support the submission of a lesser included offense. State v. Williams, 315 N.C. 310, 338 S.E.2d 75 (1986). Thus, mere denial of the charges by the defendant does not require submission of a lesser included offense. State v. Horner, 310 N.C. 274, 311 S.E.2d 281 (1984).

In the present case, the defendant presented no evidence of any lesser included offense. The State's evidence was positive as to each element of the crimes charged. The defendant's defense was that he committed no crime at all. Therefore, the trial court properly refused to submit to the jury any lesser included offenses.

The defendant next contends the trial court erred in refusing to instruct the jury on the lack of evidence of prior criminal activity or convictions on the part of the defendant. We disagree. A trial judge is required to declare and explain the law arising on the evidence and to instruct according to the evidence. State v. Strickland, 307 N.C. 274, 298 S.E.2d 645 (1983). He is not required to instruct on the non-existence of evidence. The defendant's assignment of error is without merit.

The defendant next assigns error to the trial court's denial of his motion to set aside the jury's verdict as not supported by the evidence. The decision whether to grant or deny a motion to set aside a verdict is within the sound discretion of the trial judge and is not reviewable absent a showing of abuse of discretion. State v. Wilson, 313 N.C. 516, 330 S.E.2d 450 (1985). Since we have held that the evidence in the present case was sufficient to support the jury's verdict, we can find no abuse of discretion in the trial court's denial of the defendant's motion to set aside the verdict.

The defendant next assigns error to the trial court's failure to find as a mitigating factor that the defendant had been a person of good character or had a good reputation in the community in which he lived. The defendant argues that such a finding was compelled by the testimony of the defendant's friend and neighbor Vivian Thomason. We disagree.

A trial judge's failure to find a statutory mitigating factor is error only where evidence supporting the factor is uncontradicted, substantial, and manifestly credible. State v. Spears, 314 N.C. 319, 333 S.E.2d 242 (1985). Ms. Thomason's testimony on this matter is as follows:

Q. Since you have known Mr. Maness for the time that you testified to, have you had occasion to hear others talk about him?

A. Yes, I have.

Q. Do you have an opinion satisfactory to yourself as to his character and reputation in the community?

A. Yes, I do.

Q. What is your opinion?

A. It's a good opinion.

THE COURT: Pardon me?

A. Good opinion.

Q. Why do you say it's a good opinion?

A. Because I never did see the man do nothing.

We cannot find that this is substantial evidence of defendant's good character or good reputation. Whether Ms. Thomason had ever seen him do anything is irrelevant to his reputation, and "[g]ood character, as the term is used in the Fair Sentencing Act, means something more than the mere absence of bad character." State v. Freeman, 313 N.C. 539, 551, 330 S.E.2d 465, 475 (1985).

Furthermore, the trial judge specifically found that Ms. Thomason's testimony was "inherently incredible," citing her testimony on cross-examination that she knew nothing about his background, where he had lived, or where he worked. The trial judge stated that he had "seldom seen a witness that impressed [him] ... more with their lack of veracity." It was the trial judge's duty to assess Ms. Thomason's testimony and it was his prerogative to believe or disbelieve it. See State v. Taylor, 309 N.C. 570, 308 S.E.2d 302 (1983). The defendant's assignment of error has no merit.

In his final assignment of error, the defendant contends the trial court erred in imposing consecutive sentences. Whether sentences for separate offenses are to run concurrently or consecutively is within the sound discretion of the trial judge. State v. Tolley, 290 N.C. 349, 226 S.E.2d 353 (1976). The defendant has not shown, nor can we find, any abuse of discretion by the trial judge in imposing consecutive sentences in the present case.

NO ERROR.