State v. Talley

429 S.E.2d 604, 110 N.C. App. 180, 1993 N.C. App. LEXIS 438

• Court: Court of Appeals of North Carolina
• Decided: May 18, 1993
• Docket: No. 9226SC478
• Status: Published

Opinion

EAGLES, Judge.

Defendant raises nine separate arguments on appeal. We find no error.

I

Defendant first argues that the trial court impermissibly sentenced him to the maximum punishment allowable because the defendant gave notice of his intent to appeal and exercised his right to trial by jury. The District Court sentenced the defendant to one year imprisonment, suspended for three years, with a $500 fine. Upon trial de novo and conviction in Superior Court, the court fined defendant $1500 and sentenced him to one year imprisonment.

A defendant’s rights are not violated by the imposition of a more severe sentence by the superior court upon trial de novo from district court. The imposition of a longer sentence than was given in district court is not an unreasonable condition absent an indication the second sentence was increased to penalize a defendant for exercising his rights. The burden is on the defendant to overcome the presumption that a court acted with proper motivation in imposing a more severe sentence.

State v. Daughtry, 61 N.C. App. 320, 324, 300 S.E.2d 719, 721, disc. review denied and appeal dismissed, 308 N.C. 388, 302 S.E.2d 253 (1983) (citations omitted).

During the sentencing hearing the trial judge in open court afforded the defendant the opportunity to choose between two different sentences. The first sentence offered would impose a one year prison term, suspended for three years except for ninety days during which the defendant was eligible for work release. It also would place defendant on supervised probation for a three year period which included inter alia the following special conditions: (1) that defendant reimburse $1,269.25 for the costs of treating Persian Flame; (2) that defendant provide 200 hours of service to the Charlotte Mecklenburg Animal Control Department; (3) that defendant read books etc. on the care and treatment of horses as assigned by his probation officer; and (4) that he write a fifteen page paper entitled Proper Care, Treatment and Appreciation of Horses. The second sentence offered would impose a one year prison term with a $1,500 fine. After setting out the alternative sentences, the trial judge asked the defendant which sentence he would prefer. The defendant did not respond. The trial judge then asked the defendant:

I put you on probation under that condition, but if you want me to strike it out and just make it a year, which is the Court’s intention to do that, I’ll be happy to strike the probation part out and just let you go ahead and serve the one year, whichever choice you want; that’s up to you.

(Emphasis added). The defendant did not respond to the judge’s request. The defendant then conferred privately with his counsel in a conference room. When the defendant returned to the court room, he announced that he wanted to appeal. The trial judge again asked if the defendant would make a choice between the sentence alternatives. Defendant’s counsel informed the judge that the defendant did not choose either sentence but instead wanted to serve notice of appeal. The trial judge announced that defendant had rejected probation, and sentenced defendant to the one year active term. He then entered notice of appeal on defendant’s behalf.

Defendant argues that the trial judge acted vindictively by imposing the active sentence because he gave notice of appeal and had asked for a trial by jury. We see nothing in the record to support defendant’s argument. The record discloses merely that the trial judge offered the defendant alternative sentences which included less active time but also included conditions attached to the probationary period. Defendant failed to accept the probationary sentence with its conditions. Based on the record before us we conclude that the defendant has failed to “overcome the presumption that [the] court acted with proper motivation in imposing a more severe sentence.” Id. Accordingly, this argument is overruled.

II

Defendant next argues that the trial court erred by denying his motion to suppress all evidence resulting from seizure of Persian Flame. Specifically, defendant argues that department employees allegedly failed to follow the mandates of G.S. § 19A-46, G.S. § 19A-3 and G.S. § 19A-4.

G.S. § 15A-977 requires inter alia that all motions to suppress be in writing, be served upon the State and be accompanied by an affidavit containing facts supporting the motion. Here, the trial court specifically denied defendant’s motion because it did not comply with the statute’s requirements. The trial court ruled:

THE COURT: All right. Let the record show, first of all, that the motion, not meeting the requirements of Statute 15A 977(a) gives rise to being dismissed summarily by the Court. Therefore the motion to suppress is DENIED.

However, the Court in an effort to expedite the matter after counsel for the defendant has entered a plea of not guilty, the Court did hear evidence and from the evidence will make additional findings in addition to its previous ruling . . . .

Despite the fact that the court heard evidence and made findings, the Court made it clear that the basis for its decision to deny defendant’s motion to suppress was defendant’s failure to comply with the requirements of G.S. § 15A-977. This was permissible. See e.g., State v. Harris, 71 N.C. App. 141, 321 S.E.2d 480 (1984) (a motion to suppress which is not accompanied by an affidavit is subject to being summarily dismissed.) The record does not disclose precisely which violation of the statute the trial court relied upon, although it appears that the motion to suppress was oral and appears not to have been accompanied by an affidavit.

III

Defendant next argues that the trial court erred by not providing him and his counsel with a pre-appeal hearing on the defendant’s motion for appropriate relief. The trial court summarily dismissed defendant’s motion because defendant failed to attach an affidavit to the motion.

N.C.R. App. P. 9 provides, in pertinent part:

(3) Composition of the Record in Criminal Actions. The record on appeal in criminal actions shall contain:

* * *

(i) copies of all other papers filed and statements of all other proceedings had in the trial courts which are necessary for an understanding of all errors assigned, unless they appear in a verbatim transcript of proceedings which is being filed with the record pursuant to Rule 9(c)(2) ....

Here, the record on appeal does not include (1) a copy of defendant’s motion for appropriate relief or (2) any supporting documents that might have been filed with that motion. Accordingly, we have no basis on which to review the trial court’s summary dismissal of the motion. This assignment is overruled.

IV

By his next assignment defendant claims that the trial court erred by failing to vacate his conviction because there was no showing that he acted willfully. We disagree.

“To be punishable as a violation of G.S. 14-360, the act must first be willful. Willful means more than intentional. It means without just cause, excuse, or justification.” State v. Fowler, 22 N.C. App. 144, 147, 205 S.E.2d 749, 751 (1974) (citations omitted). “[TJhis act does not require the allegation or proof of torture or cruelty, except as involved in unnecessary suffering, knowingly and wilfully permitted.” State v. Porter, 112 N.C. 887, 888, 16 S.E. 915, 916 (1893).

Here, the record is replete with evidence from which the jury could find that the defendant acted willfully. For example, Ms. Lambiotte testified that Persian Flame was 300 to 500 pounds underweight and that it would have taken more than six months for the mare to become so emaciated. Mr. Redfearn testified that he asked the defendant to remove his horses from his pasture several times (more than three or four) because there was not any food in the pasture. Each time the defendant said that he would do it right away. However, defendant ignored Mr. Redfearn’s requests. This assignment is without merit.

V

Defendant next argues that the trial court erred by allowing in defendant’s post-arrest statements after earlier granting the defendant’s motion to suppress post-arrest statements. Specifically, defendant argues it was error for the trial court to admit the following: (1) defendant’s statement that he had heard if you kick a horse in the hip it will stand up; (2) that defendant agreed that Persian Flame needed to be euthanized; and (3) defendant’s statement that his horses had not been seen by a vet. Based on the record before us we conclude these statements were not the result of an impermissible custodial interrogation in violation of his Miranda rights. Moreover, assuming, arguendo, that it was error for the trial court to admit the statements, any error was harmless given the overwhelming evidence presented against the defendant. This argument is overruled.

VI

Defendant next argues that the trial court committed reversible error by making remarks adverse to the defendant in front of the jury. Defendant contends the trial court erred by telling the jury that he was speaking loudly because he understood that defense counsel was hard of hearing. Defendant also contends that the trial court erred when it told the jury, after the jury returned to the court room during its deliberations, that “we are waiting for Mr. Bell and his client, Mr. Talley. I do not know where they are. We’ll wait for them.” Defendant’s contentions are without merit.

[T]he test of prejudice resulting from a judge’s remarks is whether a juror might reasonably infer that the judge expressed partiality or intimated an opinion as to a witness’ credibility or as to any fact to be determined by the jury. The effect on the jury of the remark and not the judge’s motive in making it, is determinative. Even if it cannot be said that a remark or comment is prejudicial in itself, an. examination of the record may indicate a general tone or trend of hostility or ridicule which has a cumulative effect of prejudice. If so, a new trial must be allowed.

State v. Staley, 292 N.C. 160, 165, 232 S.E.2d 680, 684 (1977) (citations omitted). Here, after careful examination of the record before us, we conclude that the statements made by the trial court were not prejudicial. The record does not reveal a cumulative effect of prejudice resulting from any general tone or trend of hostility or ridicule. This argument is without merit.

VII

By his next argument defendant contends that the trial court erred by failing to allow the jury to see documents requested during its deliberations. The relevant colloquy is quoted below.

In regard to the second question, may we also see the yellow sheet of paper, vet’s certification of health for transportation, from the defendant.

Are you referring, Mr. Foreman, and members of the jury, to Defendant’s Exhibit 3 which I hold in my hand?

MR. WILLIAMS: Yes, sir.

The COURT: Let the record show that Defendant’s Exhibit 3 was marked, offered into evidence, was received into evidence. Your request to see that is allowed.

The trial court then instructed the bailiff to give the exhibit to the jury, which he did. After the jury had retired to the jury room to continue their deliberations, the following transpired:

Mr. BELL: We had another paper that was offered into evidence that was marked Defendant’s Exhibit Number 2.

THE COURT: Yes, sir, but they did not request that. They referred to a yellow piece of paper. What you have is not yellow, and the jurors indicated what they requested was Exhibit 3 when I asked them.

Defendant argues that “it appears that the jury also wanted to review Defendant’s exhibit No. 2 of the health certificate relative to the transportation of defendant’s horse, ‘Persian Flame,’ into the State of Florida which was admitted into evidence. . . .” The transcript does not support defendant’s argument. It is clear that the jury received the document they requested. We hold that the trial court did not abuse its discretion by submitting only Exhibit 3 to the jury. G.S. § 15A-1233.

VIII

Defendant next argues that the trial court erred by failing to consider as mitigating factors, the defendant’s honorable discharge from the South Carolina National Guard, his education, his lack of a prior criminal record, his character, his standing in the community and contributions to the community. We note that the offense charged here is a misdemeanor punishable by a maximum term of one year. Accordingly, it is not within the scope of the Fair Sentencing Act. In addition, there is nothing in the record to indicate that the trial court failed to consider these items as mitigating factors. Accordingly, this argument is overruled.

IX

Finally, defendant argues that the trial court erred by failing, sua sponte, to disqualify himself due to his own bias against the defendant. We have carefully reviewed defendant’s arguments under this assignment and find them to be without merit. See State v. Vega, 40 N.C. App. 326, 253 S.E.2d 94, review denied and appeal dismissed, 297 N.C. 457, 256 S.E.2d 809, cert. denied, 444 U.S. 968, 62 L. Ed. 2d 382 (1979). Accordingly, this argument is overruled.

X

Defendant’s remaining assignments have been abandoned pursuant to N.C.R. App. P. 28(b)(5).

No error.

Judges MARTIN and JOHN concur.