Opinion
No. COA02-765
Filed 15 April 2003 This case not for publication
Appeal by defendant from judgment entered 1 March 2001 by Judge A. Moses Massey in Guilford County Superior Court. Heard in the Court of Appeals 25 March 2003.
Attorney General Roy Cooper, by Assistant Attorney General John G. Barnwell, for the State. Donald E. Gillespie, Jr., for defendant-appellant.
Guilford County No. 00-CRS-23141; 23153.
Defendant appeals from a judgment imposing a sentence of life imprisonment without parole entered upon jury verdicts finding him guilty of assault with a deadly weapon with intent to kill inflicting serious injury and of being a violent habitual felon. The convictions arose out of an incident which occurred 15 July 2000 when defendant cut Judy Rickard's throat.
The State's evidence tended to show that Judy Rickard was defendant's girlfriend; on the date in question defendant went to the home where Ms. Rickard lived with her elderly father, arriving at approximately 11:30 p.m. Ms. Rickard, who had already gone to bed, went out on the front porch, where the two argued about their relationship for approximately half an hour. Defendant asked Ms. Rickard to take him home; she refused because he was intoxicated. She testified that defendant pushed her down into a bush by the front porch and then "started cutting [her] throat" with a knife which he took from his pocket. Ms. Rickard was transported to the emergency room where she received stitches to close the wound to her neck. Her treating physician testified that the wound would have been fatal had it been a few millimeters deeper. Ms. Rickard testified she was unarmed at the time of the altercation.
Defendant testified, admitting that he had cut Ms. Rickard's throat with a knife, but that he had done so in self-defense. Defendant testified that when he arrived at Ms. Rickard's house, she came out the front door, and "came toward [him] and it appeared like she had a revolver or a gun or something in her hand." Defendant testified that he instructed Ms. Rickard to put the weapon down, but that she pointed it at his chest, and he "reacted," and "smacked her hand and . . . cut her." Defendant testified he was "[b]eing cautious" because he knew that approximately 21 years ago, Ms. Rickard shot and killed her husband.
The State introduced into evidence certified copies of defendant's prior convictions, including an April 1974 conviction for assault with a deadly weapon inflicting serious injury, and a March 1976 plea of guilty to the charge of second degree murder, which defendant testified occurred while he was in prison.
Though defendant references both the first and second assignments of error contained in the record on appeal followingthe first question stated in his brief, as required by N.C.R. App. P. 28(b)(6), the argument addresses only his second assignment of error. Accordingly, because no argument has been advanced in support of the first assignment of error, it is deemed abandoned. See N.C.R. App. P. 28(a).
In his second assignment of error, defendant assigns error to the admission into evidence of certified copies of his prior convictions under G.S. § 14-7.10, "rather than as exceptions to the hearsay rule." G.S. § 14-7.10 provides that records of prior convictions of violent felonies are admissible in evidence for the purpose of establishing that the person named therein has been previously convicted of violent felonies. The statute specifically provides, inter alia:
The original or certified copy of the court record, bearing the same name as that by which the defendant is charged, shall be prima facie evidence that the defendant named therein is the same as the defendant before the court, and shall be prima facie evidence of the facts set out therein.
N.C. Gen. Stat. § 14-7.10 (2001). Defendant concedes in his brief that the State produced the necessary evidence of his prior convictions, and that although he had the opportunity to do so, "defendant offered no evidence to rebut the prima facie case against him." Defendant has offered no argument or authority in support of his assertion that the trial court erred in admitting the certified copies of his prior convictions under G.S. § 14-7.10. His assignment of error to the contrary is overruled.
By his third and fourth assignments of error, defendant contends the indictment charging him with being a violent habitual felon was fatally flawed due to an error in the date of the predicate felony, and that the trial court erred in allowing the State to strike the erroneous date from the indictment. Defendant argues the indictment was fatally flawed because although it correctly listed the date of the predicate offense as 15 July 2000 at the top of the indictment, the last sentence of the indictment listed the date of the offense as 18 January 1999. The trial court allowed the State's motion to strike the last sentence of the indictment, finding that the sentence was "surplusage, and unrelated to the above content of the indictment." The trial court also noted that defendant could not have been prejudiced by the erroneous date because the indictment contained all necessary elements and pertained to a status as opposed to the events of a certain date. We agree.
G.S. § 14-7.9 provides in relevant part:
The indictment charging the defendant as a violent habitual felon shall be separate from the indictment charging the defendant with the principal violent felony. An indictment that charges a person with being a violent habitual felon must set forth the date that prior violent felonies were committed, the name of the state or other sovereign against whom the violent felonies were committed, the dates of convictions of the violent felonies, and the identity of the court in which the convictions took place.
N.C. Gen. Stat. § 14-7.9 (2001). The statute contains no requirement that reference be made, in the violent habitual felon indictment, to the predicate substantive felony. See State v. Patton, 342 N.C. 633, 636, 466 S.E.2d 708, 710 (1996) (interpreting identical language in G.S. § 14-7.3, providing requirements for habitual felon indictment); s ee also State v. Mason, 126 N.C. App. 318, 484 S.E.2d 818 (1997), cert. denied, 354 N.C. 72, 553 S.E.2d 208 (2001).
The violent habitual felon indictment in the present case complied with all requirements of G.S. § 14-7.9; it was a separate indictment from the principal violent felony; it set forth the dates on which both prior violent felonies occurred; it alleged the prior crimes were committed against the State of North Carolina; it provided the dates of convictions for both prior crimes; and it set forth the courts in which defendant was convicted of those prior crimes. Since the violent habitual felon indictment was not required to refer to the assault on Ms. Rickard, the predicate substantive felony for which defendant was being tried, the last sentence of the indictment which set forth the incorrect date of that assault was surplusage, not critical to the validity of the indictment, and defendant has shown no prejudice resulting therefrom. These assignments of error are overruled.
By his fifth assignment of error, defendant maintains the trial court erred in preventing him from introducing evidence that Ms. Rickard had been convicted of second degree murder arising out of the death of her former husband. He contends the evidence was relevant to show that Ms. Rickard "had a history of shooting men with whom she had previously had relationships . . . ."
The State elicited Ms. Rickard's testimony that she was convicted of second degree murder in 1980, and defendant was permitted to cross-examine her about the conviction. Defendant has not directed our attention to any portion of that cross-examination in which he was prevented from questioning Ms. Rickard on the subject. Although defendant appears to argue in his brief that further evidence of the crime should have been admitted under G.S. § 8C-1, Rule 404(b), he has not cited to any place in the transcript where he sought to offer further evidence of her prior conviction under Rule 404(b); the cite to the transcript contained in defendant's assignment or error is not relevant to this issue. Accordingly, his assignment of error is overruled.
In his sixth assignment of error, defendant contends the trial court erred by granting the prosecutor's request for, and giving, the following jury instruction during the violent habitual felon phase of the trial:
[T]here is evidence that tends to show that the defendant has admitted a fact relating to the crime charged in this case. If you find that the defendant made that admission or admissions, then you should consider all of the circumstances in which it was made in determining whether it was a truthful admission, and the weight you will give to it.
We find no error in the instruction.
"`If a request is made for a jury instruction which is correct in itself and supported by the evidence, the trial court must give the instruction at least in substance.'" State v. Frazier, 150 N.C. App. 416, 418, 562 S.E.2d 910, 912 (2002) (citation omitted). The instruction given by the trial court conformed to the pattern jury instruction contained in N.C.P.I. Crim 104.60 and was supported by the evidence. Defendant stated that "he took the blame for" the 1974 assault conviction and admitted to having been convicted of that charge. He also admitted to having been convicted of second degree murder in 1976. Accordingly, the trial court did not err in instructing the jury that it could consider defendant's admission of facts relating to the charge of being a violent habitual felon.
Defendant purports to combine his seventh and eighth assignments of error into one final argument, but fails to address the seventh assignment of error in the argument. Accordingly, the seventh assignment of error is deemed abandoned and we do not consider it. See N.C.R. App. P. 28(a). In his eighth assignment of error, defendant asserts the violent habitual felon statute is unconstitutional on its face. We note, as the State argues, that defendant has failed to show he has preserved this issue for appellate review by specifically contending so at trial or by asserting plain error on appeal. Regardless, this Court has held that the violent habitual felon statute is not unconstitutional on its face. See Mason, 126 N.C. App. at 321, 484 S.E.2d at 820. Defendant also attempts to argue that the statute is unconstitutional as applied to him; however, there is no assignment of error of record which corresponds to this argument and it is therefore not properly presented for review. See N.C.R. App. P. 10(a).
Finally, defendant has not referenced his ninth assignment of error in his brief, nor has he presented any argument in support thereof. It is therefore deemed abandoned. See N.C.R. App. P. 28(a).
No error.
Judges HUDSON and ELMORE concur.
Report per Rule 30(e).