Opinion
No. 8530SC1236
Filed 20 May 1986
1. Conspiracy 4.1 — conspiracy to commit larceny — insufficiency of indictment Indictments were insufficient to charge defendants with conspiracy to commit larceny.
2. Criminal Law 171.1 — error relating to one charge — only one sentence imposed Where defendants were convicted of both conspiracy to commit breaking and entering and conspiracy to commit larceny, two crimes of the same grade, and only one sentence was imposed against each of them, any error regarding the conspiracy to commit larceny indictments could not have affected the verdict on the conspiracy to commit breaking or entering charges.
3. Criminal Law 11 — removal of truck from scene after crimes committed — no accessory after the fact Evidence that defendant removed his truck from the scene of the crimes after the truck had been used to facilitate the crimes was insufficient to support the verdict of guilty to accessory after the fact of breaking and entering and larceny.
4. Criminal Law 92.1 — defendants charged with same offense — consolidation proper Where both defendants were convicted of conspiracy to commit the same instance of breaking or entering and larceny, joinder was proper under N.C.G.S. 15A-926 (b) and did not deprive defendant of a fair trial.
5. Criminal Law 10; Conspiracy 3 — conviction for accessory before the fact and conspiracy proper Defendant could be convicted of both accessory before the fact and conspiracy, since accessory before the fact requires actual commission of the contemplated felony while conspiracy does not, and conspiracy requires an agreement while an accessory need not agree to anything.
6. Criminal Law 34.2 — defendant's guilt of other offenses — admission of evidence harmless error In a prosecution of defendant for conspiracy to commit breaking or entering, accessory before the fact to breaking or entering and accessory before the fact to larceny, the trial court's error in allowing an SBI agent to testify that marijuana was found in defendant's house was not prejudicial to defendant in light of the direct evidence against defendant and the utter irrelevance of marijuana possession to the charges on which defendant was ultimately convicted. N.C.G.S. 8C-1, Rule 404 (b).
7. Criminal Law 75.2 — voluntariness of confession — statement by officers There was no merit to defendant's contention that it was error for the trial court to find that there was no inducement for defendant to admit ownership of marijuana when the State's own evidence indicated that police told defendant that both defendant and his girlfriend would be arrested for possession of marijuana based on constructive possession, since there was no evidence in the record indicating that the motivation for defendant's confession originated with anyone other than defendant.
APPEAL by defendants from Burroughs, Judge. Judgments entered 29 August 1984 in Superior Court, HAYWOOD County. Heard in the Court of Appeals 14 April 1986.
Attorney General Lacy H. Thornburg, by Special Deputy Attorney General Joan H. Byers, for the State.
John E. Shackelford for defendant, appellant, Floyd Rufus Fie.
Assistant Appellate Defender Geoffrey C. Mangum for defendant, appellant, Steven Harverson.
Judge MARTIN concurring.
Judge WELLS dissenting.
At trial the State presented evidence tending to show the following: On 15 September 1978, defendant Floyd Fie discussed breaking into Doctor Guy Abbate's office with David Chambers, Mitchell Pakulski, Elliot Rowe, III, and Donna Rowe Porietis. Floyd Fie agreed to fence property stolen from the office. After the discussion with Floyd Fie, Chambers, Pakulski, Rowe and Porietis discussed the plan to break into Doctor Abbate's office with defendant Steve Harverson. Harverson lent his truck to Chambers, Pakulski and Rowe and agreed to break into Doctor Abbate's office. Ultimately Harverson did not directly participate in the break in but did allow his truck to be used. Chambers, Pakulski and Rowe broke into Doctor Abbate's office while Porietis acted as a lookout. During the break in, Willard Setzer, a security guard, was murdered. On the day after the break in, defendant Harverson drove his truck away from the scene of the crime.
Pakulski, Rowe and Porietis were tried separately from defendants in the present case. Chambers was granted immunity for his testimony. From judgments convicting him of conspiracy to commit breaking or entering, conspiracy to commit larceny, accessory before the fact to breaking or entering, accessory before the fact to larceny, accessory after the fact to breaking or entering and accessory after the fact to larceny defendant Harverson appealed. From a judgment convicting him of conspiracy to commit breaking or entering, conspiracy to commit larceny, and accessory before the fact to breaking or entering and accessory before the fact to larceny, defendant Fie appealed.
Both defendants contend the trial court erred in submitting the conspiracy to commit larceny charges to the jury because defendants were never properly indicted for these crimes. The indictments in question are identical except for defendants' name:
THE GRAND JURORS FOR THE STATE UPON THEIR OATH PRESENT, That [defendant], Mitchell, John Pakulski, Elliott Clifford Rowe III, Donna Rowe (now Porietis), David Chambers and others, late of the County of Haywood on the 17th day of September 1978, with force and arms, at and in the County aforesaid, did unlawfully, wilfully, and feloniously agree, plan, combine, conspire and confederate, each with the other, to unlawfully, wilfully, and feloniously break and enter into a building occupied by Dr. Guy Abbate at 122 Church Street, Waynesville, N.C., used as a doctor's office with the intent to commit a felony therein, to-wit: Larceny.
The indictment form used gives reasonable notice of the conspiracy to commit felonious breaking and entering charge. It does not, however, charge defendant with conspiracy to commit larceny. It is elementary that a valid bill of indictment is essential to the jurisdiction of the trial court. State v. Sturdivant, 304 N.C. 293, 283 S.E.2d 719 (1981). Therefore, the conspiracy to commit larceny judgments against both defendants must be arrested.
Arresting the conspiracy to commit larceny judgments does not affect the ten-year prison sentences imposed when the trial court consolidated the conspiracy to commit larceny judgments with the conspiracy to commit breaking and entering judgments. The circumstances before us are analogous to the circumstances in State v. Daniels, 300 N.C. 105, 265 S.E.2d 217 (1980). In Daniels, our Supreme Court held that "[w]here the jury renders a verdict of guilty on each count of a bill of indictment, an error in the trial or in the charge of the court as to one count is cured by the verdict on the other count where the offenses which are charged are of the same grade and punishable alike, only one sentence is imposed, and the error relating to one count does not affect the verdict on the other." Id. at 115, 265 S.E.2d at 222-23. In the present case, defendants Harverson and Fie were convicted of both conspiracy to commit breaking and entering and conspiracy to commit larceny, two crimes of the same grade, and only one sentence was imposed against each of them. Any error regarding the conspiracy to commit larceny indictments could not have affected the verdict on the conspiracy to commit breaking or entering charges. The conspiracy to commit larceny judgments are arrested. We find no prejudicial error in the ten-year prison sentences entered on the conspiracy verdicts.
Defendant Harverson contends the trial court committed three more reversible errors. Defendant Harverson first argues that the trial court committed plain error in instructing the jury on conspiracy to commit larceny. Because the conspiracy to commit larceny judgment has been arrested, we need not address this issue.
Defendant Harverson next contends that the evidence supporting charges of accessory after the fact of breaking or entering and larceny is insufficient as a matter of law. The evidence shows that Harverson removed his truck from the scene of the crimes after the truck had been used to facilitate the crimes. This evidence is insufficient to support the verdict. See State v. Earnhardt, 307 N.C. 62, 296 S.E.2d 649 (1982). Although we must reverse defendant Harverson's conviction for acting as an accessory after the fact, we do not reverse the ten-year sentence imposed on Harverson. The trial court consolidated the judgments for acting as an accessory before the fact and acting as an accessory after the fact. The judgment for acting as an accessory before the fact is sufficient to support the sentence imposed. See State v. Daniels, 300 N.C. 105, 265 S.E.2d 217 (1980).
We need not address defendant Harverson's final contention, that the trial court committed plain error in instructing the jury on the charge of accessory after the fact because the conviction for acting as an accessory after the fact is reversed.
Defendant Fie raises fourteen issues on appeal. Fie first contends that the trial court erred in consolidating the trial of Fie and Harverson. Joining the charges against multiple defendants for a consolidated trial rests within the sound discretion of the trial judge. State v. Porter, 303 N.C. 680, 281 S.E.2d 377 (1980). Both defendants were convicted of conspiracy to commit the same instance of breaking or entering and larceny. Thus, joinder was proper under G.S. 15A-926 (b) and did not deprive defendant of a fair trial. State v. Slade, 291 N.C. 275, 229 S.E.2d 921 (1976).
Fie next contends that a defendant cannot be convicted of both accessory before the fact and conspiracy. Our Supreme Court has held that conspiracy and accessory before the fact are separate crimes which do not merge because accessory before the fact requires actual commission of the contemplated felony while conspiracy does not, and conspiracy requires an agreement while an accessory need not agree to anything. State v. Looney, 294 N.C. 1, 240 S.E.2d 612 (1978).
Fie also argues that he was denied a fair trial because the trial court allowed the district attorney's office to represent the State, and because Judge Downs failed to disqualify Judge Burroughs from presiding. Fie asserts that the trial court erred by allowing Assistant District Attorneys Jerry Townson and Bert Neal to represent the State when Roy Patton, another Assistant District Attorney, had at one time represented defendant Harverson on the charges at issue. Assistant District Attorney Patton took no part in the State's investigation and prosecution of the defendants in this case. Defendant's assignment of error is overruled.
Fie contends that Judge Downs should have disqualified Judge Burroughs because Judge Burroughs wrote a letter to the District Attorney suggesting a grand jury investigation of Fie and Harverson because of evidence which came to light during the Willard Setzer murder trial. Judge Downs concluded that the letter did not constitute "such direct action against [the defendants] so as to warrant a recusal." We agree. See Lowder v. All Star Mills, Inc., 60 N.C. App. 699, 300 S.E.2d 241 (1983).
Defendant Fie asserts that the trial court erred in not allowing defense counsel to examine a juror concerning possible misconduct after jury selection. In the absence of controlling statutory provisions or established rules, all matters relating to the orderly conduct of the trial or which involve the proper administration of justice in the courts are within the trial judge's discretion. State v. Young, 312 N.C. 669, 325 S.E.2d 181 (1985). The scope of the trial court's discretion regarding investigations of possible jury improprieties is particularly wide. State v. Selph, 33 N.C. App. 157, 234 S.E.2d 453 (1977).
In the present case, the trial court conducted a voir dire of the juror suspected of misconduct. It was not an abuse of discretion for the trial court to question the juror instead of allowing defense counsel to conduct the questioning.
Defendant Fie's arguments regarding errors made during the opening statements are also without merit. The trial court was well within its discretion to limit each defense counsel's opening statement to fifteen minutes. Defendant's contention that the trial court erred in "permitting the Prosecuting Attorney to tell the jury in his opening statement what a witness would testify to" borders on the frivolous.
By his twelfth assignment of error defendant argues that the trial court erred in allowing State Bureau of Investigation Agent Crawford to testify that there were ladies' shoes, handbags and marijuana in defendant's house when it was searched. Defendant's contention with respect to the marijuana has merit. Evidence of other crimes such as possession of marijuana is not admissible to prove the character of a defendant although it may be admissible to prove such factors as motive, intent or identity. G.S. 8C-1, Rule 404 (b). At trial, the following colloquy occurred:
Q. (Prosecutor) Did you see anything else there at Mr. Fie's?
MR. SHACKELFORD: Objection.
THE COURT: Overruled.
A. Yes, sir, some marijuana.
Q. Where did you find the marijuana?
A. In the basement.
MR. SHACKELFORD: Objection.
THE COURT: Overruled.
The first question drawing an objection was not improper. Only the answer to the question was improper. The second objection was made late. Technically, by failing to make a motion to strike the first answer regarding the marijuana, defendant waived any objection based on G.S. 8C-1, Rule 404 (b). H. Brandis, Brandis on North Carolina Evidence Sec. 27 (2d ed. 1982). We do not base our holding on this technicality. Instead, in the light of the direct evidence against defendant and the utter irrelevance of marijuana possession to the charges on which defendant was ultimately convicted, we hold that no prejudicial error occurred.
By his next assignment of error defendant contends it was error for the trial court to find that there was no inducement for defendant to admit ownership of the marijuana when the State's own evidence indicated the police told defendant that both defendant and defendant's girlfriend would be arrested for possession of marijuana based on constructive possession. Mental or psychological pressure brought to bear against a defendant so as to overcome his will and induce a confession can render such a confession involuntary and inadmissible. State v. Morgan, 299 N.C. 191, 261 S.E.2d 827, cert. denied, 446 U.S. 986, 64 S.Ct. 2971, 64 L.Ed.2d 844 (1980). "Confession or admissions have not been held inadmissible in evidence merely because the accused in making the confession or admission be motivated by a desire to protect a relative threatened with arrest or in custody when such motivation originated with the accused and was not suggested by law enforcement officials." State v. Branch, 306 N.C. 101, 108, 291 S.E.2d 653, 658 (1982). There is no evidence in the record indicating that the motivation for defendant's confession originated with anyone other than defendant. Defendant's assignment of error is therefore overruled.
Defendant cited no law in support of his four remaining assignments of error. We have reviewed these assignments of error and find them to be without merit.
The judgments against both defendants concerning conspiracy to commit larceny are arrested. The judgment against defendant Harverson concerning acting as an accessory after the fact is reversed.
In the cases wherein defendants were tried for conspiracy to commit breaking or entering and accessory before the fact to breaking or entering and larceny, we find no error. We find no prejudicial error in the sentences imposed.
No error in part, judgment arrested in part and reversed in part.
Judge MARTIN concurs.
Judge WELLS dissents.