State v. Floyd

An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
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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
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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.
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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
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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).