Opinion
No. COA11–1112.
2012-07-17
STATE of North Carolina v. David Edward GALVIN, Defendant.
Attorney General Roy Cooper, by Assistant Attorney General Scott K. Beaver, for the State. Irving Joyner for defendant-appellant.
Appeal by defendant from judgments entered 12 May 2011 by Judge Jesse B. Caldwell, III in Mecklenburg County Superior Court. Heard in the Court of Appeals 21 February 2012. Attorney General Roy Cooper, by Assistant Attorney General Scott K. Beaver, for the State. Irving Joyner for defendant-appellant.
GEER, Judge.
Defendant David Edward Galvin appeals from his convictions of felony assault inflicting serious bodily injury and misdemeanor interference with emergency communications. Defendant argues on appeal that the trial court erred by joining the offenses for trial, by not granting a continuance, and by not dismissing the interference with emergency communications charge. Because we hold no motion was necessary to join the offenses for trial, and the continuance and motion to dismiss were properly denied, we find no error.
Facts
At trial, the State's evidence tended to show the following facts. Defendant and his ex-wife, Ms. Cynthia Galvin, were both visiting their daughter in Atlanta. When Ms. Galvin returned to Charlotte, where she lived, defendant, who lived in Illinois, followed her.
On 7 July 2009, defendant was at Ms. Galvin's apartment drinking wine when she returned home. Ms. Galvin received a phone call from a male friend. Defendant told Ms. Galvin she could not have anyone calling while he was there. Ms. Galvin went to the bedroom and then the bathroom as defendant followed her and became more agitated.
Ms. Galvin called 911. Defendant yanked the phone from her and hung it up. When the 911 operator called back, defendant answered and indicated that everything was fine. Ms. Galvin, however, picked up an extension in the living room and told 911 not to believe defendant, that she needed help, and that “somebody needs to come.” Ms. Galvin then ran to the front door and opened it, at which point defendant wrapped his arms around her neck and waist and pushed her. Ms. Galvin hit the exterior wall across the hall and heard a “loud crack.”
Mark Collins, one of Ms. Galvin's neighbors, heard a “very, very loud thud” on the exterior wall of his apartment. He opened the door and saw Ms. Galvin leaning against the wall. Mr. Collins asked if anyone needed help. When defendant said “no,” Mr. Collins went back into his apartment. Ms. Galvin, although dazed, knocked on his door and asked him to call for help. He called 911, told the operator what he had observed, and asked for assistance.
Officer Yvette McNeil with the Charlotte–Mecklenburg Police Department responded. Ms. Galvin told Officer McNeil at the scene that she wasn't sure how she had received her injuries, that “she thought it was a dream.” Ms. Galvin was transported to Presbyterian Matthews hospital where she told Officer McNeil that defendant had slammed her face into a wall.
Ms. Galvin's cheek was shattered. Ultimately, she had reconstructive surgery and three metal plates were inserted, one of which forms her eye socket. One of the plates was defective and so she had to undergo a second surgery.
On 9 July 2009, Ms. Galvin spoke with Detective Kamesha Bridges and Detective Teresa Johnson of the Charlotte–Mecklenburg Police Department at Presbyterian Main Hospital. On 13 July 2009, Detective Johnson contacted defendant by phone, in Illinois, “to hear his side of the story.” Defendant stated in the interview that he had grabbed Ms. Galvin around the waist, but couldn't hold her, and she fell and struck her head on the ground.
Defendant was appointed counsel in North Carolina on 20 October 2010. On 13 December 2010, defendant was indicted for assault on a female, assault inflicting serious bodily injury, and interference with emergency communications. Based on the transcript, it also appears that defendant was indicted for assault by strangulation, but that indictment was not included in the record on appeal. Prior to trial, defendant's attorney provided him with copies of the discovery produced by the State, and counsel spoke with defendant by phone.
On 9 May 2011, before trial began, the trial judge inquired if all plea bargain possibilities had been exhausted. The State responded that it “did make an offer of a probationary sentence that was transmitted to Mr. Galvin. He wishes to proceed to trial.” The trial judge then asked if defendant understood he could receive an active jail sentence if convicted. The judge explained that with a probationary sentence, defendant would not go to prison. On the other hand, if defendant proceeded to trial and was convicted, the judge would not be limited to probation and could sentence defendant to as much as 32 months in prison. The trial judge added: “I just want him to know I just don't like people to be blindsided.” Defendant said he understood. The court then said that if defendant had changed his mind about the plea bargain or needed more time to talk to his lawyer, the court was going to take a lunch break.
When court resumed, defense counsel stated that after discussing the evidence with defendant at lunch, counsel felt he needed to put on the record that he had just learned that defendant read at a seventh grade level and had not been able to go through the discovery counsel had sent him. However, defense counsel told the judge that defendant was now aware of the evidence against him.
When the judge asked whether defense counsel needed more time to confer with defendant, counsel responded that he did not need more time. Defendant himself confirmed that he did not need more time to review the State's evidence, although he contended the victim's statements were not true. Defendant also assured the judge that he was satisfied with his defense attorney and announced, in response to a question from the judge, that he was ready to go ahead and start the case. The judge, therefore, commenced jury selection.
The next day, defendant asked for a continuance to obtain private counsel. The trial judge asked defendant for his reasons, and defendant stated: “I just don't feel comfortable with the lawyer I got now.” After the judge confirmed how long defense counsel had been representing defendant, defendant, in response to the judge's question, admitted that he had never expressed any dissatisfaction with defense counsel to the court. Defendant explained that he had not done so for “one reason”: “Because I didn't have the money at the time. Now my family, they're going to pitch in and help me get a lawyer.”
The trial judge then noted that defendant was free at any time to hire a lawyer, but that “[t]he question is will the proceedings, will the trial be postponed or continued or held up while that's done.” The judge then asked defendant why he should continue the case on the second day of trial when defendant had never expressed any reservation about his court-appointed lawyer before. Defendant responded: “I actually didn't know how serious the case were.” After the trial judge pointed out that even after defendant learned that he was facing up to 32 months in prison and had reviewed the discovery provided by the State, defendant had stated that he was ready to go to trial. The trial judge then denied the motion to continue.
The jury convicted defendant of assault on a female, assault inflicting serious bodily injury, and interference with emergency communication. Although the transcript indicates the jury found defendant not guilty of assault by strangulation, that verdict sheet was not included in the record on appeal. The trial court sentenced defendant to a presumptive-range term of 16 to 20 months imprisonment for the charge of assault inflicting serious bodily injury. The court then suspended that sentence and placed defendant on supervised probation for 36 months, but required that defendant, as a special condition of probation, serve a five-month active jail sentence. The court also imposed a 30–day sentence for the interference with emergency communication charge to be served following the assault sentence. The court arrested judgment on the assault on a female charge. Defendant timely appealed to this Court.
I
Defendant first argues that the superior court lacked jurisdiction over the misdemeanor charges of assault on a female and interference with emergency communications because the State did not file a motion to join those charges for trial with the felonies of assault inflicting serious bodily injury and assault by strangulation. Defendant does not argue that they could not be joined—he contends only that joinder was impermissible in the absence of an oral or written motion by the State.
By statute, the jurisdiction of the superior court includes “jurisdiction to try a misdemeanor: ... (3) Which may be properly consolidated for trial with a felony under G.S. 15A–926 ....“ N.C. Gen.Stat. § 7A–271(a) (2011). N.C. Gen.Stat. 15A–926 (2011) (emphasis added) provides with respect to joinder of offenses and defendants:
(a) Joinder of Offenses.— Two or more offenses may be joined in one pleading or for trial when the offenses, whether felonies or misdemeanors or both, are based on the same act or transaction or on a series of acts or transactions connected together or constituting parts of a single scheme or plan. Each offense must be stated in a separate count as required by G.S. 15A924.
(b) Separate Pleadings for Each Defendant and Joinder of Defendants for Trial.
(1) Each defendant must be charged in a separate pleading.
(2) Upon written motion of the prosecutor, charges against two or more defendants may be joined for trial [.]
....
(c) Failure to Join Related Offenses.
(1) When a defendant has been charged with two or more offenses joinable under subsection (a) his timely motion to join them for trial must be granted unless the court determines that because the prosecutor does not have sufficient evidence to warrant trying some of the offenses at that time or if, for some other reason, the ends of justice would be defeated if the motion were granted. A defendant's failure to make this motion constitutes a waiver of any right of joinder of offenses joinable under subsection (a) with which the defendant knew he was charged.
Therefore, the State must file a written motion to join for trial charges against two or more defendants. A defendant must file a timely motion to join two or more offenses for trial or waive the right of joinder. With respect to joinder of offenses by the State, the statute specifies only that offenses meeting the factual requirements each “must be stated in a separate count....” Id .
“It is well settled that ‘[w]here the language of a statute is clear and unambiguous, there is no room for judicial construction and the courts must construe the statute using its plain meaning.’ “ In re Estate of Lunsford, 359 N.C. 382, 391, 610 S.E.2d 366, 372 (2005) (quoting Burgess v. Your House of Raleigh, Inc., 326 N.C. 205, 209, 388 S.E.2d 134, 136 (1990)). Because the General Assembly expressly required a motion in subsections (b) and (c), but not in (a), we must presume the legislature did not intend to require the State to make a motion to join offenses for trial. Under subsection (a), the State need only meet the pleading requirements. We cannot accept defendant's invitation to insert a motion requirement because this Court has “no power to add to or subtract from the language of the statute.” Ferguson v. Riddle, 233 N.C. 54, 57, 62 S.E.2d 525, 528 (1950).
Defendant cites State v. Rawlinson, 198 N.C.App. 600, 679 S.E.2d 878 (2009), for the proposition that, at a minimum, an oral motion is required to join offenses. In Rawlinson, the State made an oral motion to join a misdemeanor charge with several felonies. Id. at 601–02, 605, 679 S.E.2d at 879, 881. The defendant did not object to the joinder. Id. at 605, 679 S.E.2d at 881. On appeal, the defendant argued that joinder was improper because the State did not file a written motion.
In rejecting this argument, this Court noted that a “ ‘joinder motion need not be written if made at a hearing, and, in the judge's discretion, the motion may be made orally even at the beginning of trial.’ “ Id. (quoting In re R.D.L., 191 N.C.App. 526, 534, 664 S.E.2d 71, 76 (2008)). However, in In re R.D.L ., the basis for the quote on which defendant in this case relies, addressed the requirement for joinder for trial of two juveniles' cases—joinder that requires a written motion under N.C. Gen.Stat. § 15A–926(b). In re R.D.L., 191 N.C.App. at 527, 664 S.E.2d at 72.
Rawlinson addressed only the question before it: whether the State was required to make a written motion. Because the State in Rawlinson had made an oral motion, there was no need to consider whether the State was required to make any motion at all. We decline to read Rawlinson as requiring a motion when that issue was not raised in that case and when the plain language of the pertinent part of the statute includes no such requirement. As defendant makes no further argument regarding joinder, we hold that the trial court had jurisdiction over the misdemeanor offenses.
II
Defendant next contends that the trial court erred in denying his motion to continue. “Ordinarily, a motion to continue is addressed to the discretion of the trial court, and absent a gross abuse of that discretion, the trial court's ruling is not subject to review.” State v. Taylor, 354 N.C. 28, 33, 550 S.E.2d 141, 146 (2001). “When a motion to continue raises a constitutional issue, the trial court's ruling is fully reviewable upon appeal.” Id.
Defendant contends that he “sought to continue his trial in order to hire a private attorney to represent him” in accordance with his Sixth Amendment right to obtain counsel of choice. In support of his contention, defendant cites State v. McFadden, 292 N.C. 609, 234 S.E.2d 742 (1977). In McFadden, the defendant hired private counsel to represent him. Id. at 610, 234 S.E.2d at 743. When the case was called for trial, one of the junior associates of the retained counsel appeared, asking for a continuance as the retained defense counsel was engaged in a trial in the United States District Court for the Middle District of North Carolina. Id. The junior associate also stated that the retained counsel “was the only person prepared to try the case” and “that defendant indicated to him that morning that he wanted his retained counsel” to represent him. Id. The trial court directed the junior associate to represent defendant and denied the motion for a continuance. Id., 234 S.E.2d at 744. The defendant was found guilty. Id.
On appeal, the Supreme Court ordered a new trial, holding “that under the circumstances of this case, the trial court erred by denying defendant's motion for a continuance, thereby depriving him of a reasonable time in which to obtain counsel of his choice.” Id. at 617, 234 S.E.2d at 747. The Court summarized the circumstances it found dispositive:
In [the] instant case defendant timely exercised his right to select counsel of his choice long before the case was called for trial. The record does not disclose that he had in any way contributed to his counsel's absence. The fact that his counsel had accepted other employment which prevented his presence at the trial cannot be charged to defendant so as to deny him his constitutional right to counsel of his own choice. We find nothing in this record that indicates that defendant exercised his right to select counsel of his choice in a manner calculated to disrupt or obstruct the orderly progress of the court.
Id. at 615, 234 S.E.2d at 746–47.
The Supreme Court, however, specifically stressed that “the right to be defended by chosen counsel is not absolute.” Id. at 612, 234 S.E.2d at 745. The Court cited favorably People v. Brady, 275 Cal.App.2d 984, 80 Cal.Rptr. 418 (1969), in which a defendant decided on the night preceding the date set for trial to replace his retained counsel because, as our Supreme Court explained, “he thought he would fare better with a local, white attorney.” McFadden, 292 N.C. at 612–13, 234 S.E.2d at 745. Our Supreme Court found persuasive the reasoning that the motion for a continuance was correctly denied and not a violation of due process “in light of defendant's own inexcusable delay.” Id. at 613, 234 S.E.2d at 745.
Here, in contrast to McFadden but like Brady, defendant did not exercise his right to select private counsel long before trial, but rather waited until the second day of trial. Up until the second day, defendant had never expressed any dissatisfaction with his counsel and even immediately before commencement of the trial, he assured the court that he was content with his attorney and ready to proceed. Like Brady, the delay in the exercise of defendant's right to select his own counsel was solely due to defendant and would have disrupted the orderly progress of the court proceedings.
Defendant's only explanation for his delay was that he was-a day after expressing satisfaction—uncomfortable with his appointed counsel; that although he previously did not have the money to hire counsel, his family were now going to help him; and that he had not previously understood how serious the charges were against him. A trial court is not required to grant a continuance simply because defendant and his family did not take serious charges seriously until the trial court forced them to do so.
Given that the case had been pending a significant amount of time, defendant acknowledged having conferred with counsel during that time, and the trial judge explained the seriousness of the charges to defendant at a point when defendant could exercise his choice without disrupting the proceedings, we cannot conclude that the trial court erred in determining that defendant's reasons did not justify defendant's delaying until the second day of trial before seeking a continuance to obtain retained counsel. See State v. Foster, 105 N.C.App. 581, 584, 414 S.E.2d 91, 92 (1992) (finding no error in denying motion to continue when defendant's father had supposedly retained private counsel the day before trial, but court-appointed defense counsel appeared ready to proceed with trial); State v. Little, 56 N.C.App. 765, 768–69, 290 S.E.2d 393, 395–96 (1982) (finding no error in denial of motion to continue when court-appointed counsel was ready to represent defendant, defendant's mother had only retained private counsel on day of trial, and trial court found defendant dilatory in securing private counsel). Here, “in light of defendant's own inexcusable delay, the refusal of his motion for continuance did not violate due process.” McFadden, 292 N.C. at 613, 234 S.E.2d at 745.
III
Lastly, defendant contends that the trial court erred in denying his motion to dismiss the charge of interfering with an emergency communication. When considering a motion to dismiss, the trial court must determine whether the State presented substantial evidence of each element of the crime and of the defendant's being the perpetrator. State v. Robinson, 355 N.C. 320, 336, 561 S.E.2d 245, 255 (2002).
“ ‘Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ “ State v. Matias, 354 N.C. 549, 552, 556 S.E.2d 269, 270 (2001) (quoting State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984)). The evidence must be viewed “in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994).
The elements of interference with emergency communications are: (1) defendant interfered with an emergency communication; (2) defendant acted intentionally and with knowledge that the communication was an emergency communication; and (3) defendant was not, at that time, making an emergency communication himself. N.C. Gen.Stat. § 14–286.2 (2011). Defendant argues that the State did not present sufficient evidence of either the first element or the second element.
With respect to the first element, Ms. Galvin testified that defendant was “getting more and more agitated” and that she “kept trying to get away from him.” Ms. Galvin also testified that when 911 called back, after defendant had hung up the phone, she told them that she needed help and “somebody needs to come.” A reasonable juror could find that there was an emergency and Ms. Galvin's call to 911 was an emergency communication.
The second element has also been met. “Intentional interference” is defined as including
forcefully removing a communications instrument or other emergency equipment from the possession of another ... providing false information to cancel an earlier call or otherwise falsely indicating that emergency assistance is no longer needed when it is, and any other type of interference that makes it difficult or impossible to make an emergency communication or that conveys a false impression that emergency assistance is unnecessary when it is needed.
N.C. Gen.Stat. § 14–286.2(b1)(2).
In addition to Ms. Galvin's testimony that defendant took the phone from Ms. Galvin and hung up, Detective Johnson testified about her interview of defendant. Defendant admitted he “was aware that she had called [911]. [Defendant] advised at some point in time he snatched the phone out of her hand and hung the phone up.” Defendant also admitted that Ms. Galvin told him that 911 would call back after the hang up and, if there was no answer, the police would come. According to Ms. Galvin, when the 911 operator did call back, defendant told them everything was fine. This evidence is sufficient to establish that defendant interfered with the emergency communication and “falsely indicat[ed] that emergency assistance [was] no longer needed when it [wa]s.” Id.
Given that sufficient evidence of both elements exists, we hold that the charge of interfering with an emergency communication was properly submitted to the jury. Therefore, the trial court did not err in denying defendant's motion to dismiss.
No error. Judges McGEE and McCULLOUGH concur.
Report per Rule 30(e).