STATE v. GINN No. 828SC153.
296 S.E.2d 825 (1982)
STATE of North Carolina v. Ullman Lee GINN.
Court of Appeals of North Carolina.
November 16, 1982.
Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. Blackwell M. Brogden, Jr., Raleigh, for the State.
Reginald L. Frazier, Frazier & King, New Bern, and Bowen C. Tatum, Jr., Jacksonville, for defendant-appellant.
Defendant brings forward seven assignments of error and presents eleven arguments on appeal. These will be considered together with the issues raised in defendant's motion for appropriate relief.
The State's case against defendant consisted primarily of testimony given by Bobby Carraway, an acquaintance of several years of defendant Ginn. Carraway was an accomplice in the marijuana sale in question and testified pursuant to a plea concession with the State.
The evidence tended to show that for some weeks, Bobby Carraway had been buying quinine for resale to a purchaser in New York City. Quinine is not a controlled substance, but it is used to cut heroin. Carraway was looking for quinine, and he was contacted by Drug Enforcement Agent (DEA) Grimes regarding a sale. The agent began supplying Carraway with quinine in early 1980. DEA Agent Grimes put Carraway in touch with SBI Agent Alcox. The agents asked Carraway if he could buy some marijuana for them. Carraway agreed.
Carraway testified that he went to defendant Ginn's house and discussed the purchase with Ginn on 13 January 1980. Carraway and Ginn then made trips to Goldsboro and to Wilmington without finding marijuana. Ginn and Carraway returned to Ginn's house in Snow Hill. Eventually, the deal was set up with Agent Alcox for 14 January 1980, at about 7:00 p.m., in Snow Hill. The marijuana was to be stashed behind a trailer home near Snow Hill, about a mile from Ginn's house.
Carraway met the agents at the designated locations and said there had been a delay. He left the agents and went to Ginn's house to investigate the delay. The arrangement was that only Carraway would transfer the marijuana while his source and his partner watched from a gray jeep parked up the road. While Carraway was investigating the delay, Ginn and another man, Kenneth Claude Howell, Jr., drove up to the agents in a gray Jeep Cherokee and asked where Carraway was. SBI Agent Overton told them that, "Bobby went to the house." Ginn replied, "We will be right back."
At about 2:10 p.m., Carraway returned to where Alcox and Overton were waiting, and Carraway motioned with his hand for the agents to follow him. They did so and were escorted to a remote trailer or mobile home off a rural road. Agent Alcox followed Carraway to the rear of the trailer where three bags of marijuana were laying on the ground. Alcox weighed the bags and contents and began to pay Carraway, but interrupted payment to arrest Carraway. Ginn and his companion, Howell, were in the gray Jeep Cherokee within sight of the transaction. They were arrested by another agent. The bags on the ground contained about 105 pounds of marijuana. The grey Jeep also contained traces of marijuana. Defendant Ginn's motion for dismissal was denied. He rested without presenting evidence and unsuccessfully renewed his motion.
Defendant makes a number of related assignments of error regarding the procedures by which he was tried and convicted. The issues raised are whether the defendant was prejudiced from the delay of the arraignment; whether the defendant's rights to discovery were violated; and whether the State was required to notify defendant of its intended use of an accomplice's testimony.
The following events at trial serve as the factual basis for a number of the issues raised by defendant. During the direct examination of the State's first witness, Bobby Carraway, counsel for the defendant and counsel for the co-defendant, Howell, requested that they be heard on voir dire.
The court then asked if there was a motion for the defendant Ginn. Mr. Roland Braswell, counsel for the defendant stated his motion. Braswell sought to exclude from evidence any "alleged conversation" between his client and the witness on the grounds that the defendant had not been arraigned and that the State had not disclosed that Carraway had been a co-defendant who would testify. In essence, defendant's counsel objected to the failure of the State to provide discovery. However, Mr. Braswell did admit that he knew the witness would testify but not that Carraway had been a co-defendant.
Mr. Roland Braswell further stated that he had never requested voluntary discovery because "nobody has ever served me with a bill of indictment. And I know that that clicks the rule."
Counsel for the defendant and the Assistant District Attorney disagreed as to whether the defendant was arraigned prior to trial. Mr. Roland Braswell found, in his personal file, an original and copy of a waiver of arraignment in the case. No record of arraignment appeared in the court file. A discussion was held about the aborted attempt to enter a plea at the 12 August 1980 session of Superior Court in Greene County, that had resulted in a continuance at the request of the defendant when Judge Small found the plea unsatisfactory.
The Assistant District Attorney argued that the absence of a record of formal arraignment simply meant the defendant pled not guilty but admitted he might be quoting "some of Judge Small's law." The Clerk stated that some judges did not require that an order of arraignment be filled out. Judge Bruce stated, "I want to go by this in this green book," an obvious reference to the printed General Statutes, and ordered the defendant Ginn arraigned.
Counsel for the defendant replied:
The Court ordered that the record reflect the defendant had plead not guilty. The Court then inquired of counsel for defendant what requirement there was that the State furnish him written or oral statements the defendant might have made before being taken into custody. Mr. Roland Braswell stated that he had been furnished such information in other cases and had never been advised that the State's witness had been a co-defendant. Mr. Braswell further admitted he knew Carraway would testify six months ago but never that he was a co-defendant.
The Court then ruled that the State was not obliged to furnish a copy of any statement of the defendant. The Court further ruled that the rule in Bruton v. U.S., 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) did not apply to operative statements in connection with the crime charged. After a brief colloquy on the Bruton rule, the Court inquired, "anything else?," and received no response from the defendant's attorney. The Court further directed that the arraignment of the defendant relate back to the time that the jury was empaneled.
The defendant contends that the discovery provisions of G.S., Chap. 15A, Art. 48, in particular G.S. 15A-907, and the Sixth and Fourteenth Amendments of the United States Constitution were violated by the pre-trial and trial procedures outlined above. In related arguments, defendant asserts that his rights to full discovery were also violated by the State's failure to comply
On voir dire, defendant's counsel stated that he had not requested voluntary discovery because he was never served with a bill of indictment. The record indicates that defendant Ginn was personally served with a bill of indictment on 4 June 1980.
G.S. 15A-630 does not require that counsel be served with notice of the return of a true bill of indictment. The notice provisions of G.S. 15A-630 are applicable to defendants unless they are then represented by counsel of record.
Defendant next argues that the arraignment process utilized in this case violated his constitutional rights and "North Carolina's prohibition against trial by ambush." Specifically, defendant refers to G.S. 15A-941.
The record reflects that the requirements of G.S. 15A-941 have been met. The transcript contains the following statement by the trial court:
The procedure utilized by the trial court in this case adequately complied with
Contrary to defendant's contentions, the State has no initial duty to disclose the names of witnesses. In North Carolina a defendant does not have the right to discover in advance of trial the names and addresses of the State's prospective witnesses. State v. Myers, 299 N.C. 671, 263 S.E.2d 768 (1980), citing, State v. Dollar, 292 N.C. 344, 233 S.E.2d 521 (1977); State v. Smith, 291 N.C. 505, 231 S.E.2d 663 (1976).
State v. Smith, 291 N.C. at 523, 231 S.E.2d at 674-675.
Defendant urges that State v. Myers, supra, be overruled and that, in addition to the matters covered by G.S., Chap. 15A, Art. 48, and G.S. 15A-1054(c), the prosecution be required to disclose, in advance of trial, the names of the State's prospective witnesses and a summary of expected testimony from those witnesses. He contends that Myers is a "court established rule" out of step with modern trends. In light of the specific requirements of G.S., Chap. 15A, it would appear to be the province of the General Assembly to impose such requirements on the prosecution. Moreover, in this case, defendant's counsel admitted that he knew for some six months prior to trial that Carraway would testify.
The record does not reveal that defendant at any time requested voluntary discovery nor filed a motion before the court for discovery. Therefore, defendant's contention that the State violated its continuing duty to provide disclosure and discovery
Defendant relies upon State v. Hatfield, W.Va., 286 S.E.2d 402 (1982), to establish both a constitutional and statutory duty upon the State to disclose evidence regardless of defense counsel's lack of demand.
However, the Hatfield court correctly noted that the State's affirmative duty of voluntary disclosure applies to evidence that is exculpatory from a constitutional standpoint, citing, United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). Id. at 411. The evidence defendant Ginn complains of—the fact that Carraway had been indicted in the same matter and granted a plea concession in return for his testimony—is material only to the issue of Carraway's credibility as a witness. In United States v. Agurs, supra, the Supreme Court announced the following standard for evaluating whether the failure to disclose evidence would reach a constitutional dimension such that the prosecutor would be required to disclose it absent a request:
427 U.S. at 112-13, 49 L.Ed.2d at 355, 96 S.Ct. at 2402.
We need not reach the issue of whether the credibility evidence was exculpatory from a constitutional standpoint in this case, as the record reveals that it was not omitted from defendant Ginn's trial. A copy of the plea agreement was provided defense counsel at trial, and witness Carraway was cross-examined regarding the matter. Therefore, the verdict returned already reflected the impact of the "additional" evidence regarding Carraway's credibility, and defendant was not prejudiced by the prosecutor's failure to voluntarily disclose the evidence.
The court in State v. Hatfield, supra, stated that the relevant inquiry under a statutory disclosure duty is "prejudice to the defendant resulting from either surprise on a material issue or where the non-disclosure hampers the preparation and presentation of the defendant's case." 286 S.E.2d at 412.
Defendant contends that the State's failure to comply with the notice provisions of G.S. 15A-1054(c) regarding advance notice that Carraway had been a co-defendant in the same matter, prejudiced his discovery rights, his rights to effective assistance of counsel, and denied that defendant's right to test the credibility of witness, Bobby Carraway.
The defendant correctly contends that advance notice of the State's plea arrangement with Carraway should have been provided to defense counsel pursuant to G.S. 15A-1054(c). The failure on the part of the State to so provide constitutes a violation of defendant's statutory discovery rights. However, while defense counsel may have been surprised, the failure was
We note at the outset that the remedy for failure to give advance notice on the part of the prosecution is for defendant or his counsel to compel the granting of a recess. G.S. 15A-1054(c). Defense counsel remained silent when the time came for him to claim this relief, not wanting to prejudice any rights his client may have acquired by the breach of statutory duty. The State ultimately provided defense counsel a written copy of the transcript of the plea agreement with Carraway which was used in the cross-examination.
Any rights under G.S. 15A-1054 have either been waived or adequately protected by actual production of the transcript of the plea and the opportunity seized upon by defense counsel to cross-examine the witness concerning the plea.
The cross and recross-examinations of Carraway and of the SBI Agents Alcox and McLeod clearly elicited the negotiated plea of Carraway, inconsistent statements between Carraway's testimony and the statements he made to the SBI Agents during the course of the investigation prior to his arrest, and Carraway's history of dealings with persons in the heroin trade in New York City.
In view of the damaging cross-examinations conducted, the defendant cannot claim to have been deprived of any benefits that might reasonably have been expected from the advance written disclosure required by G.S. 15A-1054. The defendant waived any right to the recess allowed by statute to apprise himself of the material contained in the plea agreement. The record contains no errors prejudicial to the defendant regarding arraignment and discovery.
The foregoing discussion of defense counsel Braswell's pretrial and trial conduct in this case amply demonstrates that defendant Ginn's counsel conducted an active and thorough defense at the trial. However, defendant's appellate counsel argues that defendant's trial counsel failed to adequately represent the defendant's interests by failing to conduct pretrial discovery, not making adequate investigation prior to trial, waiving an opening statement at the empaneling of the jury and failing to perfect an appeal. Defendant's most serious contentions relate to inadequate discovery and pre-trial preparation, resulting in defense counsel's entering a contested trial "ignorant of the prosecution's evidence."
State v. Misenheimer, 304 N.C. 108, 121, 282 S.E.2d 791, 799-800 (1981). (Footnotes omitted)
As in State v. Misenheimer, the defendant here is unable to meet the burden imposed upon him by either test of the denial of "constitutionally effective counsel." McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763, 773 (1970) required only that counsel advising a guilty plea do so "within the range of competence demanded of attorneys in criminal cases."
The absence of pretrial motions or discovery must be viewed in light of the entire transcript of the trial, especially the portions connected with the testimony of Bobby Carraway. Mr. Roland Braswell conducted a thorough and effective cross-examination of Carraway, utilizing the plea concessions provided him at trial. It cannot
The foregoing discussions of the events at trial concerning arraignment and discovery reveal that Braswell was fully aware of the charges against Ginn and the fact that Carraway would testify for the State.
Braswell made a tactical decision to "say nothing" at the time Judge Bruce ordered defendant to be arraigned at trial and a plea of not guilty entered. Braswell's stated reason for this decision being: "I can do so and then that way I have not waived any rights that my client might have by being caught in the mess we are now caught in."
A reading of the transcript as a whole shows that counsel was attempting to build a record for appeal and wanted to avoid waiving any rights or curing any prejudice. Defendant's counsel performed a creditable cross-examination which demonstrated knowledge of the case and the issues involved. No evidence is alleged to have been overlooked by Mr. Braswell to defendant's detriment. That Braswell chose one strategem over another in this matter does not render his assistance ineffective. Defendant has not demonstrated that Braswell's choices denied him the presentation of some matter that would have aided his defense. Defendant has not been denied his Sixth Amendment right to effective assistance of counsel.
Defendant's motion for appropriate relief filed with this Court raises the issue of whether defendant Ginn was denied his right of due process of law by the use of the perjured testimony of Bobby Carraway. Defendant argues that Carraway committed perjury and "perpetrated a fraud upon the courts of this State" during cross-examination.
Defendant's allegation is not supported by the record in this case. The purported perjury concerning Carraway's testimony was that his only prior convictions were a "D.U.I. charge and maybe one speeding ticket." At this point, defense counsel asked whether Carraway had "ever been convicted of any drug related offense prior to this occasion." To which Carraway replied, "No, sir."
Defendant contends this was perjury because Carraway had entered a plea of guilty in the same matter approximately six months prior to Ginn's trial. However, upon defense counsel's continued probing, Carraway admitted that he plead guilty and entered into a plea bargain with the State. After a recess, counsel was provided with a certified copy of Carraway's plea bargain with the State indicating that Carraway plead guilty to felonious possession of marijuana and was placed on unsupervised probation for a term of three years, which Carraway admitted having signed.
It is clear from the record that whatever harm was done defendant by Carraway's initial response regarding drug related offenses was effectively dispelled by Braswell's continued cross-examination. The statements of Carraway's cited by defendant simply do not rise to the level of fraud upon the court. Defendant's claim of prejudice resulting thereby to the entire trial is without merit.
Defendant combines two assignments of error relating to the sufficiency of the State's evidence and argues that the State failed to prove each and every essential element of the crimes charged. In particular, defendant argues that the State's case of circumstantial evidence fails to connect the defendant with the actual placing of the marijuana behind the trailer.
State v. Fletcher, 301 N.C. 515, 517, 271 S.E.2d 913, 914 (1980).
The evidence shows that undercover agents had attempted to purchase marijuana. In those efforts they contacted one Bobby Carraway, known to be involved in the purchase for resale of legal ingredients used in the dilution of heroin for unlawful distribution. Carraway and Ginn began to look for marijuana for the agents. Carraway eventually arranged a drug "buy." Following Carraway's instructions, the agents proceeded to a remote rural intersection where they met with Carraway. Carraway departed to check with his "source." In the interim, the defendant Ginn drove up and asked the agents where Carraway was. Ginn was not known to the agents nor did he have any apparent reason to know that they were waiting for or knew Carraway. Ginn left and Carraway returned later to lead the agents to a remote trailer in the woods. The agents knew that Carraway's partner and source would be watching from a nearby jeep. Contraband was then sold and delivered by Carraway to the agents. Ginn and another person were arrested within 100 yards of the transaction. Contraband was found in the vehicle under Ginn's control. Carraway identified Ginn as his accomplice in the transaction, testifying that each was to receive $1,500.00 profit from the sale. Considered in the light most favorable to the State, the State's evidence would support a finding that Ginn was directly involved in the illegal transaction. Denial of defendant's motions was proper.
Defendant also argues that "the entrapment question was ignored at trial. There was no instruction given on the law of entrapment." While not stated explicitly in defendant's brief, defendant apparently bases his argument on the theory that the evidence revealed entrapment as a matter of law and therefore the trial court was required to dismiss the charges as a matter of law.
"Like other defenses, entrapment is generally an issue for the jury to decide unless the court finds from the evidence presented that the police entrapped the defendant as a matter of law." State v. Grier, 51 N.C. App. 209, 212, 275 S.E.2d 560, 562 (1981). The court can find entrapment as a matter of law only where the undisputed testimony and required inferences compel a finding that the defendant was lured by the officers into an action he was not predisposed to take. State v. Stanley, 288 N.C. 19, 32, 215 S.E.2d 589, 597 (1975). See also State v. Walker, 295 N.C. 510, 513, 246 S.E.2d 748, 750 (1978).
The defendant has failed to elicit evidence of entrapment in this case. Again, denial of these motions by the trial court was proper.
Defendant's next argument is addressed to the revocation of probation in 79CrS265. Defendant contends that the trial court committed reversible error in revoking his probationary sentence in 79CrS265 before the adjudication of a final determination in 80CrS85 and 80CrS86 on the grounds that no criminal judgment is considered final until it has been affirmed or denied on appeal as provided by the Criminal Procedure Act of North Carolina. The probationary sentence in 79CrS265 was revoked on the basis of the testimony and evidence before the trial judge in the case on appeal. The court then imposed consecutive sentences. Defendant cites no case in support of his argument.
The trial court did not err in revoking probation based upon evidence presented before the court in a trial in which defendant was convicted and appealed. Revocation of probation is a matter of discretion with the trial court. In making the determination as to whether the conditions of probation have been violated the "evidence need be such that reasonably satisfies the trial judge in the exercise of his sound discretion that the defendant has violated a valid condition on which the sentence was suspended." State v. Freeman, 47 N.C. App. 171, 266 S.E.2d 723, cert. denied, 301 N.C. 99, 273 S.E.2d 304 (1980).
A nearly identical set of facts was presented in State v. Hill, 266 N.C. 107, 145 S.E.2d 349 (1965). There, the defendant was found guilty of assault. The solicitor then prayed for judgment activating a previously suspended sentence on the specific ground of defendant's conviction for assault. The revocation hearing was held before the same judge the day after defendant's assault trial. The issue on appeal was whether the trial judge based the revocation upon the evidence presented at that trial or upon evidence offered of other convictions of defendant. The Supreme Court held that the trial judge had actual knowledge as well as judicial notice of the trial, verdict, and judgment in the assault case and affirmed the revocation of probation based upon that judicial knowledge of the offense committed.
The trial judge had before him sufficient knowledge and notice of the commission of the acts leading up to defendant Ginn's conviction for the possession and sale of marijuana to have reasonably concluded that Ginn violated a valid condition of his probation. Significantly, defendant's probation was not revoked because of his conviction; rather, revocation was based upon the trial court's consideration of evidence that defendant possessed and sold marijuana. We conclude that defendant's probation in the 79CrS265 case was properly revoked.
We have carefully considered defendant's other assignments of error and find them to be without merit. The judgment pronounced in Causes Nos. 80CrS85 and 80CrS86 and the judgment activating the sentence in Cause No. 79CrS265 are affirmed.
MORRIS, C.J., and BECTON, J., concur.
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