Opinion
No. 07-1289.
Filed 6 May 2008.
Wake County No. 06CRS39494-97.
Appeal by Defendant from judgments entered 10 January 2007 by Judge J.B. Allen in Wake County Superior Court. Heard in the Court of Appeals 3 April 2008.
Attorney General Roy Cooper, by Assistant Attorney General Tina A. Krasner, for the State. Irving Joyner for Defendant.
Defendant appeals from judgments entered 10 January 2007 convicting Defendant of robbery with a dangerous weapon, felonious possession of stolen goods, first degree kidnapping, and felonious operation of a motor vehicle to elude arrest. We find no error.
The evidence tends to show the following pertinent facts: On 7 May 2006, John Clark (Clark) reported that a 2003 Toyota Camry had been stolen from Akelnovel, a store for which Clark was the District Operations Manager. Clark discovered that a brick had been used to break the glass in the door at Akelnovel, and the Toyota Camry had been stolen.
On 9 May 2006, Althea Shaw-Williams (Shaw-Williams) was driving a Kia Sorento on Capital Boulevard in Raleigh, North Carolina, when Defendant drove next to her in Akelnovel's Camry. At trial she testified as follows: Defendant waved at Shaw-Williams, but Shaw-Williams did not know Defendant so she kept her "chin up" and kept driving. Defendant then swerved his car toward her causing Shaw-Williams to drive into the lane to her right and stop. The driver in the lane beside Shaw-Williams also careened into the far right lane and stopped. At this point, Shaw-Williams called 911. When asked whether Defendant's steering in Shaw-Williams' direction could have been accidental, Shaw-Williams testified, "[n]ot at all. I saw both of [his] hands on the wheel try to hit me."
After Shaw-Williams' initial stop, she "tried to drive away[,] [but] I could tell [Defendant] was . . . driving towards me again, so I was screaming [to the 911 dispatcher] that . . . he's still trying to follow me." The man in the lane to the right of Shaw-Williams left his vehicle and made "gestures" toward Defendant, as if to say, "what are you doing[?]" or "you're blocking traffic[.]" Defendant, in turn, gestured to Shaw-Williams to "come here[,]" to which Shaw-Williams responded by "just shaking my head no." Shaw-Williams again attempted to drive away from Defendant, but "it seemed as if . . . every inch I made, he tried to . . . interrupt me getting away." Shaw-Williams told the 911 dispatcher, "I think he's going to crash into me[.] . . . [I] "wanted to jump out [of the vehicle, but] . . . [the dispatchers] were telling me [not to] get out of the car[.]" Defendant then left his car and "[came] right over to [Shaw-Williams'] car." Defendant opened Shaw-Williams car door, which was unlocked, because Shaw-Williams "wanted to jump out[.]" Shaw-Williams told Defendant "I don't know you[,]" but Defendant replied, "Yes, the f ___ k you do. Get the f ___ k over there." Defendant "shov[ed] me really hard to get over on the passenger side." Then, Defendant "sat on top of me" and "started hitting me on top of my hand[,]" which was on the gear shift. Defendant "wanted to drive [the car] away." Shaw-Williams struggled with Defendant and eventually "push[ed] [herself]" out of the car to escape. Shaw-Williams explained that when she "felt like it was safe . . . for me to take my foot off the brake, I just . . . jumped out[.]"
Officer Robert Fiske (Fiske), of the Raleigh Police Department also testified that when he arrived at the scene, "a vehicle [was] . . . just parked there[, and] . . . [Defendant] had jumped . . . into another vehicle[.]" When he spoke to Shaw-Williams, "[s]he was very shaken[, and] . . . her hands were trembling. Her voice was . . . broken up where she was very upset." Shaw-Williams appeared to have "an anxiety . . . attack, she was so upset[,]" and "she had some scratches on her back." While he spoke to Shaw-Williams, police "located her vehicle[,]" which Defendant "took[,]" and the police "started chasing it."
Sidney Johnson (Johnson), the Deputy Sheriff for the City-County Bureau of Identification in Wake County, testified that he collected photographs of and fingerprints from the 2003 Toyota Camry driven by Defendant, and Agent Andy Parker, the supervisor of the Latent Print Unit of the City-County Bureau of Identification, stated that five of the fingerprint impressions gathered by Johnson were "identified to [Defendant]."
Officer A.B. Caruana (Caruana), of the Raleigh Police Department, provided further testimony that he witnessed "[Defendant's] vehicle swerving in between traffic[,]" after he had taken Shaw-Williams' car. Caruana "manipulat[ed] traffic . . . until I got directly behind [Defendant.]" "[A]t that point," Caruana said, "[Defendant] took off at a high rate of speed before I even turned [on] my lights[.]" When asked why Caruana characterized Defendant's speed as "fast[,]" Caruana stated that Defendant sped to "60, [or] 70 miles an hour, [then] accelerat[ed,] . . . reach[ing] speeds from 90 to a hundred miles an hour." The "highest [speed] limit that [the] vehicle should have been traveling" was forty-five miles per hour. Caruana said the "chase went on for approximately 20 [or] 25 minutes[,]" during which time Defendant "[ran] multiple vehicles off the road, [and ran] multiple lights[.]" Finally, Defendant "exited on to Hammond Road going the wrong way . . . where he took a left on to Blount Street." Then, Defendant "sideswiped a vehicle on Blount Street and . . . wreck[ed] his car[,]" after which the car chase ended.
Caruana testified, "[t]here is a video camera that's installed inside the police car[, and] [t]he entire chase was captured on the video." Caruana further identified photographs of the vehicle that "was involved in the carjacking" and "the car chase that ensued." Detective D.R. Williams (Williams), of the Raleigh Police Department, testified that, at the termination of the car chase, Defendant "[tried] to make a right on to [an intersecting] street, but . . . couldn't make the turn in time[.]" Instead, Defendant drove "into Ace's Towing, which is a business . . . at the dead end of Blount Street." Williams "could see [that Defendant's] car had . . . hit the fence[,]" and "his speed was such [that] . . . [Defendant] could [not] stop in time[.]" Defendant "went through another section of another fence inside the lot . . . and . . . [struck] the wrecker . . . behind the [second] fence." The door to the vehicle "was open" when Williams arrived, "but since the vehicle was wedged up against the truck and the fence . . . the door wouldn't come all the way open."
Defendant testified at trial, explaining that Shaw-Williams "looks just like my [fiancé,]" and he believed, in fact, that Shaw-Williams was his fiancé. Defendant stated that "[my fiancé and I] were having a lot of problems[, and] I was depressed at the time, and . . . drinking heavily. I was up the entire night." Defendant admitted that he exited his vehicle and approached Shaw-Williams on the highway, but said, "before I could even get to her door, she jumped out yelling and screaming at me." Defendant explained, "I decided to move the vehicle out of the road[,] . . . when I heard the sirens." Defendant further stated, "I never disputed the fact that I eluded the police[,] . . . [and] [w]hen I seen [sic] the police coming, I panicked[;] . . . I took off." Defendant also admitted, "I was intoxicated. I was up all night[, but] . . . I have nothing to do with the car being stolen[.]" Defendant provided the following alibi with regard to the stolen vehicle: "I got to Virginia in that vehicle, but I wasn't the driver. . . . [A] friend of mine was driving that vehicle[,] . . . and I [drove] to the store to buy more beer, and [sic] that's how I was driving that vehicle."
Defendant's trial began on 8 January and 10 January 2007, the trial court entered judgment consistent with jury verdicts finding Defendant guilty of robbery with a dangerous weapon, felonious possession of stolen goods, first degree kidnapping, and felonious operation of a motor vehicle to elude arrest. The court sentenced Defendant to the following consecutive sentences: 103 to 133 months incarceration for the robbery with a dangerous weapon conviction; 10 to 12 months incarceration for the felonious possession of stolen goods conviction; 116 to 149 months incarceration for the first degree kidnapping conviction, and 10 to 12 months incarceration for the felonious operation of a motor vehicle to elude arrest conviction. From these judgments, Defendant appeals.
Right to Counsel
In his first argument, Defendant contends that the trial court erred in refusing to allow Defendant's motion for substitute counsel and that Defendant's waiver of court-appointed counsel was involuntary. We disagree.
Unquestionably it is the right of an indigent defendant to have competent counsel appointed to represent him at his trial. Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799 (1963); State v. Robinson, 290 N.C. 56, 224 S.E.2d 174 (1976). However, a Defendant's right to assigned counsel does not "include the right to counsel of his choice." State v. Dunlap, 318 N.C. 384, 389, 348 S.E.2d 801, 804 (1986) (citing Morris v. Slappy, 461 U.S. 1, 75 L. Ed. 2d 610 (1983). "[T]he right to competent court-appointed counsel [does not] include the privilege to insist that counsel be removed and replaced with other counsel merely because defendant becomes dissatisfied with his attorney's services." State v. Sweezy, 291 N.C. 366, 371, 230 S.E.2d 524, 528 (1976).
Motion for Substitute Counsel
"The decision to substitute counsel rests solely in the discretion of the trial court." State v. Morgan, 359 N.C. 131, 146, 604 S.E.2d 886, 895 (2004) (citation omitted). However, "[a] trial court is constitutionally required to appoint substitute counsel whenever representation by counsel originally appointed would amount to denial of defendant's right to effective assistance of counsel, that is, when the initial appointment has not afforded defendant his constitutional right to counsel." State v. Thacker, 301 N.C. 348, 352, 271 S.E.2d 252, 255 (1980).
Thus, when it appears to the trial court that the original counsel is reasonably competent to present defendant's case and the nature of the conflict between defendant and counsel is not such as would render counsel incompetent or ineffective to represent that defendant, denial of defendant's request to appoint substitute counsel is entirely proper.
Id. "[A] disagreement over trial tactics generally does not render the assistance of the original counsel ineffective." Id. (citation omitted). The trial court should conduct a hearing to fulfill its obligation "to inquire into defendant's reasons for wanting to discharge his attorneys and to determine whether those reasons were legally sufficient to require the discharge of counsel." State v. Hutchins, 303 N.C. 321, 335, 279 S.E.2d 788, 797 (1981). If it appears that counsel is reasonably competent and there is no conflict between the attorney and client that renders counsel incompetent, the motion is properly denied. State v. Anderson, 350 N.C. 152, 167, 513 S.E.2d 296, 306 (1999).
In the instant case, the court gave Defendant the opportunity to "put on the record whatever you want to, sir[,]" regarding his dissatisfaction with Mr. Cline, and Defendant detailed his reasons for requesting the discharge Mr. Cline for the appointment of substitute counsel: "Your Honor, I'm not saying that Mr. Cline is not competent and able. What I'm saying is that when I asked him about my particular case, he told me that I didn't have any defense[.] . . . I'm facing a lot of time with these charges, and I wouldn't want Mr. Cline to represent me when he's telling me I don't have any defense[.] . . . [H]e's been lying to me, and me and him has been [sic] at each other ever since the beginning of this case." Defendant stated, "Mr. Cline refused to contact any witnesses[, and] . . . Mr. Cline told me I had no out-of-state detainers, when in fact I did have out-of-state detainers[.]"
The trial court allowed Defendant and Mr. Cline to elaborate on the allegations Defendant proffered. Mr. Cline responded, while under oath: [T]he only witness that [Defendant] told me to contact was the wrecker operator at Ace Towing. I went down to Ace Towing . . . [and] [t]he day I went, Mr. Massey, I believe it was his name, was not there. I talked to the lady in the office. She showed me . . . tire marks and showed me where the new portion of the fence had been put up and showed me some damage on the wrecker, which she said was still there from the defendant's driving. . . . I saw some damage. . . . I did tell [Defendant] that I didn't see why he would want him to come to court, because it was just another witness who would put him behind the driver's seat of a stolen car, and that I strongly suggested he not use him; but I did call Mr. Massey, and I gave [Defendant] his name and phone number[.]
The trial court further inquired of Mr. Cline, "[Defendant] made an allegation you lied to him. I want you to respond to that." Mr. Cline stated, "I have not lied to him. I have no reason to lie to him. I did tell him that the defenses he was putting forth didn't sound very good to me, and that, you know, there needs to be some other defense." When asked about the "out-of-state detainers[,]" Mr. Cline responded, "I told him that there was no indication that there was [sic] any. And I checked the Clerk's record and Clerk's computer screen, and I found no fugitive warrants." Several months later, Mr. Cline "was assigned to a fugitive matter from the state of Virginia, where [Defendant] was allegedly wanted for larceny."
We conclude that the trial court did not err by denying Defendant's motion for substitute counsel, because the original counsel was reasonably competent to present Defendant's case and the nature of the conflict between Defendant and counsel was not such as would render counsel incompetent or ineffective to represent Defendant. The disagreements between Defendant and Mr. Cline were analogous to disputes "over trial tactics[,]" which "generally [do] not render the assistance of the original counsel ineffective." Thacker, 301 N.C. at 352, 271 S.E.2d at 255. This assignment of error is overruled.
Waiver of Right to Court-Appointed Counsel
Defendant next argues that his waiver of court appointed counsel was not voluntary. We disagree.
A defendant "`has a right to handle his own case without interference by, or the assistance of, counsel forced upon him against his wishes.'" State v. Fulp, 355 N.C. 171, 174, 558 S.E.2d 156, 158 (2002) (quoting State v. Thomas, 346 N.C. 135, 138, 484 S.E.2d 368, 370 (1997)). "However, `before allowing a defendant to waive in-court representation by counsel, . . . the trial court must insure that constitutional and statutory standards are satisfied.'" Fulp, 355 N.C. at 174-75, 558 S.E.2d at 159 (quoting State v. Thomas, 331 N.C. 671, 673, 417 S.E.2d 473, 475 (1992)). The defendant's "waiver of the right to counsel and election to proceed pro se must be expressed `clearly and unequivocally.'" Thomas, 331 N.C. at 673, 417 S.E.2d at 475 (quoting State v. McGuire, 297 N.C. 69, 81, 254 S.E.2d 165, 173 (1979)). "[I]n order to satisfy constitutional standards, the trial court must determine whether defendant `knowingly, intelligently, and voluntarily' waives his right to counsel." Fulp, 355 N.C. at 175, 558 S.E.2d at 159 (quoting Thomas, 331 N.C. at 674, 417 S.E.2d at 476). N.C. Gen. Stat. § 15A-1242 satisfies any constitutional requirements of the thorough inquiry which must be conducted by the trial court by adequately setting forth the parameters of such inquiries. State v. Gerald, 304 N.C. 511, 519, 284 S.E.2d 312, 317 (1981). Pursuant to N.C. Gen. Stat. § 15A-1242 (2007), a defendant may elect to represent himself at trial,
without the assistance of counsel only after the trial judge makes thorough inquiry and is satisfied that the defendant:
(1) Has been clearly advised of his right to the assistance of counsel, including his right to the assignment of counsel when he is so entitled;
(2) Understands and appreciates the consequences of this decision; and
(3) Comprehends the nature of the charges and proceedings and the range of permissible punishments.
In the instant case, Defendant's court-appointed counsel, Mr. Cline, made a motion to withdraw as counsel, stating that "[D]efendant has asked counsel to withdraw herein, and [D]efendant has stated that he will waive counsel and wishes to represent himself in these proceedings." On 11 September 2006, the trial court held a pre-trial hearing on counsel's motion to withdraw, during which the court explained the following to Defendant:
Sir, let me explain this to you. Mr. Cline has been practicing in Wake County for a long time. He's a very good criminal defense lawyer. I'm telling you that, don't hesitate to put that on the record. He's been appointed to represent you. You're charged with some serious felonies that carry a long, long, long time in prison: Robbery with a dangerous weapon, a Class D felony, a maximum of 229 months. Possession of stolen property is a Class H felony. That carries a maximum punishment of 30[] month[s]. First degree kidnapping is a Class C felony. That carries a maximum punishment of 261 months. And speeding to elude is a Class H felony carrying a maximum punishment of 30 months. Now, you do have the right to have a lawyer. And the Court has appointed a very good lawyer to represent you. You also have the right to hire your own lawyer. And you have the right to represent yourself. I will tell you that the Court is of the opinion that you need a lawyer. Do you understand what I have told you about the maximum punishment of the charges that you are charged with?
Defendant responded, "Yes, I do, Your Honor." Defendant thereafter made a motion for substitute counsel, which the court denied, stating the following:
The Court: So, your motion to remove Mr. Cline [and] get another court appointed lawyer is denied. And Mr. Cline will continue to be your [attorney.]
Defendant: I'm going to represent myself. I'm going to exercise my constitutional right to represent myself, or I'll . . . be my own attorney.
Thereafter, the following colloquy transpired:
The Court: We'll not continue the scheduled court date.
Defendant: I do not want the continuance. There's a motion for a speedy trial, and I'd like for my motion for speedy trial to go through. I do not want the continuance at all.
At a second pre-trial hearing on 6 November 2006, the court advised Defendant to again consider Mr. Cline, the court-appointed lawyer:
The Court: [Defendant], let me say this to you. You are charged with some serious felonies and I know Mr. Cline. I know him to be a good lawyer. . . . [Y]ou can represent yourself or you can hire your own lawyer. The Court will not appoint you another lawyer. If you choose to represent yourself, I am going to order Mr. Cline to be standby counsel for you. . . .
You are your own lawyer. You are foolish to do this. With these serious criminal charges you need a lawyer. Mr. Cline is a good lawyer. I have known him for several years. I have tried many cases with him. He is a good lawyer. So the choice is what you want to do. . . .
Defendant asked the court several questions, including "how I would address the Court for [a] motion if I represent myself." Thereafter, Defendant decided, "Okay. I will represent myself." The court clarified, "You are going to waive your rights to have a lawyer . . . and you are going to represent yourself?" Defendant responded, "Yes." Again, the court reiterated the possible punishments Defendant faced upon guilty verdicts on his four indictments, and the court asked, "[do y]ou understand that?" Defendant responded, "Yes, I do."
In addition to the foregoing hearings, the record indicates that Defendant refused to sign a waiver of counsel on 9 September 2006, but executed a written waiver of all counsel on 6 November 2006, which stated that "I waive my right to all assistance of counsel which includes my right to assigned counsel and my right to the assistance of counsel. In all respects, I desire to appear in my own behalf, which I understand I have the right to do." When a written waiver has been signed by a defendant and certified by the court, this Court must presume the waiver of counsel was knowing, intelligent and voluntary unless the record indicates otherwise. State v. Evans, 153 N.C. App. 313, 315, 569 S.E.2d 673, 675 (2002). We conclude that the trial court engaged Defendant in a thorough inquiry regarding his waiver of counsel, following the parameters set forth in N.C. Gen. Stat. § 15A-1242. Defendant's waiver of counsel was knowing and voluntary. This assignment of error is overruled.
Motion to Dismiss
The standard of review of a motion to dismiss for insufficient evidence is whether the State presented substantial evidence of each element of the offense and "defendant's being the perpetrator." State v. Nettles, 170 N.C. App. 100, 102-03, 612 S.E.2d 172, 174 (2005) (citations omitted). Substantial evidence is relevant evidence that a reasonable person might accept as sufficient to support a conclusion. Id. (citation omitted). The court reviews the evidence in the light most favorable to the State, giving every reasonable inference arising from that evidence to the State, even if the same evidence supports reasonable inferences of the defendant's innocence. State v. Scott, 356 N.C. 591, 596, 573 S.E.2d 866, 869 (2002); Nettles, 170 N.C. App. at 103, 612 S.E.2d at 174.
Robbery with a Dangerous Weapon
In his next argument, Defendant contends that the trial court erred in denying Defendant's motion to dismiss the charge of robbery with a dangerous weapon.
N.C. Gen. Stat. § 14-87 (2007), provides that the elements of the crime of robbery with a dangerous weapon are the following: "(1) the unlawful taking or attempted taking of personal property from another, (2) the possession, use or threatened use of a firearm or other dangerous weapon, and (3) danger or threat to the life of the victim." State v. Hill, 182 N.C. App. 88, 91, 641 S.E.2d 380, 384 (2007).
Defendant argues that he could not be guilty of robbery with a dangerous weapon because the evidence was insufficient to prove that Defendant had a dangerous weapon in his possession at the time he obtained the vehicle. "For a conviction of the crime of robbery with a dangerous weapon, the perpetrator, or his accomplice, must possess, use or threaten the use of a firearm or other dangerous weapon to endanger the life of the victim." Id. However, "[t]he weapon used [does] not have to be a firearm to be a life-threatening weapon." State v. Funderburk, 60 N.C. App. 777, 778, 299 S.E.2d 822, 823 (1983). "[A] motor vehicle, when driven in such a manner as to endanger the life of another, may be considered to be a dangerous weapon." Hill, 182 N.C. App. at 91, 641 S.E.2d at 383. See also State v. Eason, 242 N.C. 59, 86 S.E.2d 774 (1955) and State v. Spellman, 167 N.C. App. 374, 605 S.E.2d 696 (2004). "[T]he determinative question is whether the evidence was sufficient to support a jury finding that a person's life was in fact endangered or threatened [by the use of that instrument]." State v. Alston, 305 N.C. 647, 650, 290 S.E.2d 614, 616 (1982).
Here, the evidence tends to show that Defendant drove the vehicle in such a manner as to endanger Shaw-Williams' life. When Shaw-Williams ignored Defendant's attempts on Capital Boulevard to catch her attention, Defendant "swerved at me." Shaw-Williams said this caused her to "swerve [, which forced over] [s]omeone else in the next lane[.]" Shaw-Williams explained, "he just swerved . . . fast. I could just tell he was just too close." When asked "how much he swerved[,]" Shaw-Williams responded, "Hard. Just like . . . he wanted to do it. . . . When he swerved, he went over a lane. That's how hard he swerved." Shaw-Williams stated that traffic on Capital Boulevard at that time "[was] very busy[,] and [people] were yelling at me . . . move, go." "People were driving . . . in between and just . . . zooming past."
When Shaw-Williams stopped her car, Defendant then "slammed on brakes[,]" and motioned for Shaw-Williams to "come here to him[.]" When Shaw-Williams tried to "drive away[,]" Defendant "[drove] towards [her] again." "[E]very inch [Shaw-Williams] made," Defendant "attempt[ed] to interrupt [her] getting away." At one point, Defendant drove in front of Shaw-Williams "and [put] his car in reverse and . . . back[ed toward] me." Shaw-Williams believed Defendant was "going to crash into me."
In the foregoing scenario, traffic "zoom[ed]" past at high speeds as Defendant drove his vehicle dangerously and erratically toward Shaw-Williams. Defendant "swerv[ed] . . . hard" toward Shaw-Williams, traveling rapidly from one lane to another, and reversed his car, backing toward Shaw-Williams on the busy freeway. The evidence here is sufficient to support a jury finding that Shaw-Williams' life was in fact endangered or threatened by the use of a dangerous weapon, the vehicle which Defendant drove. This assignment of error is overruled.
Kidnapping
In his next argument, Defendant contends that the trial court erred in denying Defendant's motion to dismiss the charge of first degree kidnapping.
"Any person who unlawfully confines, restrains, or removes from one place to another any other person sixteen years of age or older without the latter's consent is guilty of kidnapping if the confinement, restraint, or removal is done for the purpose of facilitating the commission of any felony." State v. Johnson, 337 N.C. 212, 221, 446 S.E.2d 92, 97 (1994); N.C. Gen. Stat. § 14-39(a)(2) (2007).
Nearly three decades ago [our Supreme] Court recognized that, as written, this statute presents the potential for a defendant to be prosecuted twice for the same act. See State v. Fulcher, 294 N.C. 503, 523-24, 243 S.E.2d 338, 352 (1978) (noting that to avoid such a consequence, "the restraint, which constitutes the kidnapping [must be] a separate, complete act, independent of and apart from the other felony").
State v. Boyce, 361 N.C. 670, 672, 651 S.E.2d 879, 881 (2007). "[W]here the removal [or restraint] of the victim was `an inherent and integral part of [the underlying felony],' it would be `insufficient to support conviction for a separate kidnapping offense.'" State v. Parker, 81 N.C. App. 443, 447, 344 S.E.2d 330, 332-333 (1986) (quoting State v. Irwin, 304 N.C. 93, 103, 282 S.E.2d 439, 446 (1981)). "The key question is whether the victim is exposed to greater danger than that inherent in the . . . robbery itself or `subjected to the kind of danger and abuse the kidnapping statute was designed to prevent.'" Johnson, 337 N.C. at 221, 446 S.E.2d at 98 (quoting Irwin, 304 N.C. at 103, 282 S.E.2d at 446).
Our Supreme Court reasoned "this Court long ago dispelled the importance of distance and duration [of a victim's removal or restraint]." Boyce, 361 N.C. at 675, 651 S.E.2d at 883 (citing Fulcher, 294 N.C. at 522, 243 S.E.2d at 351 (stating that "resort to a tape measure or a stop watch [is] unnecessary in determining whether the crime of kidnapping has been committed").
In his brief to the Court, Defendant argues, citing State v. Parker, 81 N.C. App. 443, 344 S.E.2d 330 (1986), that "[t]he struggle for control of the car was not a separate and distinct act from the robbery[.]" We disagree and believe the instant case is analogous to Johnson, in which our Supreme Court held that "there was ample evidence of restraint not inherent in the armed robbery to support the charges of kidnapping." Johnson, 337 N.C. at 222, 446 S.E.2d at 98 In Johnson, the Court reasoned that "[a]fter [the victim's] life was threatened, it was not necessary to remove him from one room to another in order to commit the robbery." Id. Moreover, the Court reasoned that "the evidence showed clearly [that the victim] was exposed to further danger by his removal and further restraint in the living room[.]" Id.
Applying the foregoing principles, there was ample evidence here of restraint not inherent in the robbery to support the charges of kidnapping. Shaw-Williams' restraint by Defendant in her vehicle was not an inherent and integral part of Defendant's robbery of Shaw-Williams' vehicle. When Defendant opened Shaw-Williams' car door, she said, "I don't know you[,]" and Defendant replied, "Yes, the f ___ k you do. Get the f ___ k over there." Furthermore, Defendant "[took] my shirt, . . . [and] shov[ed] me really hard to get over on the passenger side." For the duration of the exchange, Shaw-Williams repeated, "I don't know you[, and] [Defendant] was telling me that I did." Then, Defendant "sat [on] top of" Shaw-Williams, and Shaw-Williams put her hand on the gear shift to "get [the car] back in park." Defendant "start[ed] hitting me on top of my hand. He wanted to drive away." Shaw-Williams realized "he was trying to [drive away] with me, instead of just . . . sitting on me[,]" and Shaw-Williams then attempted "to get out of the car." Defendant "was getting ready to drive away," and he continued to restrain Shaw-Williams by "grip[ping] on my shirt [and] holding me." Shaw-Williams stated, "I even have a scar on my back from where he ripped some of my skin off with the shirt." At last, Shaw-Williams forcefully pushed herself away from the car and Defendant with her legs.
We conclude that Defendant's kidnapping of the victim here was a separate criminal transaction, because Shaw-Williams' restraint was not "an inherent and integral part" of any other felony. Irwin, 304 N.C. at 103, 282 S.E.2d at 446. Shaw-Williams was "exposed to greater danger than that inherent in the . . . robbery itself or `subjected to the kind of danger and abuse the kidnapping statute was designed to prevent.'" Johnson, 337 N.C. at 221, 446 S.E.2d at 98 (citation omitted). This assignment of error is overruled.
Discovery
In his fourth and final argument, Defendant contends that the State violated N.C. Gen. Stat. § 15A-903(a)(1) by failing to provide, or timely provide, to Defendant the following discovery materials: (1) copies of photographs of the vehicles; (2) the videotape depicting the police chase of the car allegedly driven by Defendant; (3) the audio tape of Shaw-Williams' 911 call; and (4) copies of written statements and reports differing from those previously provided to Defendant prior to trial. Defendant argues that N.C. Gen. Stat. § 15A-903(a)(1) and his constitutional right to due process were violated by the State's failure to disclose, or timely disclose, the foregoing discovery materials. We conclude that any error was not prejudicial, but harmless beyond a reasonable doubt.
"`The right to . . . discovery is a statutory right.'" State v. Taylor, 178 N.C. App. 395, 401, 632 S.E.2d 218, 223 (2006) (quoting State v. Phillips, 328 N.C. 1, 12, 399 S.E.2d 293, 298 (1991)). N.C. Gen. Stat. § 15A-903(a)(1) (2007), provides, in pertinent part, the following:
Upon motion of the defendant, the court must order the State to: . . . Make available to the defendant the complete files of all law enforcement and prosecutorial agencies involved in the investigation of the crimes committed or the prosecution of the defendant. The term "file" includes the defendant's statements, the codefendants' statements, witness statements, investigating officers' notes, results of tests and examinations, or any other matter or evidence obtained during the investigation of the offenses alleged to have been committed by the defendant.
"Last minute or `day of trial' production to the defendant of discoverable materials the State intends to use at trial is an unfair surprise and may raise constitutional and statutory violations." State v. Castrejon, ___ N.C. App. ___, ___, 635 S.E.2d 520, 526 (2006), disc. review denied, 361 N.C. 222, 642 S.E.2d 709 (2007). "[N]on-production or a `sandbag' delivery of relevant discoverable materials and documents by the State[,]" cannot be condoned. Id. "[T]he purpose of discovery under our statutes is to protect the defendant from unfair surprise by the introduction of evidence he cannot anticipate." State v. Payne, 327 N.C. 194, 202, 394 S.E.2d 158, 162 (1990).
"A prosecutor does have a duty, however, to provide a defendant with evidence favorable to him or her that is material as to guilt or punishment." State v. Elliott, 360 N.C. 400, 415, 628 S.E.2d 735, 745-46 (2006) (citing Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215 (1963)). "[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady, 373 U.S. at 87, 10 L. Ed. 2d at 218. However, every nondisclosure does not automatically constitute reversible error; "prejudicial error must be determined by examining the materiality of the evidence." State v. Howard, 334 N.C. 602, 605, 433 S.E.2d 742, 744 (1993). "`The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A `reasonable probability' is a probability sufficient to undermine confidence in the outcome.'" State v. Tirado, 358 N.C. 551, 589, 599 S.E.2d 515, 540 (2004) (quoting United States v. Bagley, 473 U.S. 667, 682, 87 L. Ed. 2d 481, 494 (1985)).
N.C. Gen. Stat. § 15A-1443(a) (2007), provides that "[a] defendant is prejudiced by errors relating to rights arising other than under the Constitution of the United States when there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises." Id. "The burden of showing such prejudice under this subsection is upon the defendant." Id. However, "[a] violation of the defendant's rights under the Constitution of the United States is prejudicial unless the appellate court finds that it was harmless beyond a reasonable doubt." N.C. Gen. Stat. § 15A-1443(b) (2007). "The burden is upon the State to demonstrate, beyond a reasonable doubt, that the error was harmless." Id. "One way this Court has determined whether an error is harmless beyond a reasonable doubt is by viewing the totality of the evidence against the defendant and determining if the independent non-tainted evidence is `overwhelming.'" State v. Peterson, 361 N.C. 587, 594-95, 652 S.E.2d 216, 222 (2007) (citing Tirado, 358 N.C. at 581, 599 S.E.2d at 536).
Our review of the record reveals that, on 19 July 2006, Defendant filed a general "Request for Voluntary Discovery," pursuant to N.C. Gen. Stat. § 15A-903(a), in which he sought "the complete files of all law enforcement and prosecutorial agencies[.]" On 18 October 2006, Defendant filed a separate motion requesting "evidence of the original 911 tape[.]" The parties agree that Defendant "did not properly challenge the untimely delivery of discovery [at trial,]" nor did Defendant raise the issue of whether his constitutional right to due process had been violated due to the State's untimely delivery of discovery. However, we nonetheless review for a determination of whether any alleged statutory or constitutional error here was prejudicial to the outcome of the trial or harmless beyond a reasonable doubt.
Here, the record reveals that although the State did not provide Defendant with "full-sized, color photographs" of the vehicles at issue here, the State did provide "smaller[,]" black and white photographs to Defendant. The State provided Defendant with the audio tape of the 911 call made by Shaw-Williams; however, Defendant received the tape while in jail on the Friday preceding the Monday on which the trial began. At trial, Defendant complained that Defendant's words in the 911 audiotape were "inaudible" and that the jury will only hear "what [Shaw-Williams] said." With regard to the videotape of the police chase, Defendant did not specifically request discovery of the videotape prior to trial, and the matters that transpired on the videotape were corroborated by the testimony of multiple eyewitnesses. Furthermore, Defendant argued to the trial court that statements provided within the original discovery documents conflicted to statements later provided to Defendant at trial. The prosecutor explained, "One of the officers did bring me a complete copy of their report, which I haven't even looked at. I just got my assistant to copy it and give it to [Defendant], but it all should be things he had before. Of course, if it's new, I didn't have it before, and that's why he has it. . . . I don't know what statement [Defendant is] talking about that's conflicting."
Although the prosecution's manner of providing, or failing to provide, Defendant with necessary discovery materials for his trial preparation is not appropriate, we nonetheless conclude that any error here was harmless. See Tirado, 358 N.C. at 590, 599 S.E.2d at 541; see also State v. Patterson, 335 N.C. 437, 454, 439 S.E.2d 578, 588 (1994) (holding that the prosecution's failure to comply with the discovery statutes was harmless error, because the defendant could not have been unfairly surprised by the same testimony the defendant himself elicited from a different witness); State v. Payne, 327 N.C. 194, 202, 394 S.E.2d 158, 162 (1990) (stating that "the purpose of discovery under our statutes is to protect the defendant from unfair surprise by the introduction of evidence he cannot anticipate"). The evidence in this case incriminating Defendant is overwhelming: fingerprints, photographs and the testimony of multiple eyewitnesses — including police officers, the victim of Defendant's attack, and Defendant himself — provide evidence of Defendant's inculpatory actions in this case. There is no reasonable probability that timely, providing the foregoing discovery materials, would have affected the outcome of Defendant's trial. We therefore conclude that any alleged error here was not prejudicial but harmless beyond a reasonable doubt. This assignment of error is overruled.
For the foregoing reasons, we find no error.
No error.
Judges McCULLOUGH and STEELMAN concur.
Report per Rule 30(e).