State v. Floyd

• Court: Court of Appeals of North Carolina
• Decided: January 7, 2014
• Docket: 13-396
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 -2- 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 -3- 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 -4- 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. -5- 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 -6- 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 -7- 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 -8- 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. -9- 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 -10- 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.

S.E.2d 29, 33 (2007). -11- 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, -12- 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 -13- 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.

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.

“[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 -14- supporting evidence, a new trial is required.” State v. Porter,

340 N.C. 320, 331, 457 S.E.2d 716, 721 (1995).

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. -15- 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 -16- 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.

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 -17- 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.

NO ERROR.

Judges HUNTER, ROBERT C. and BRYANT concur.

Report per Rule 30(e).