Opinion
No. COA12–226.
2012-09-18
STATE of North Carolina v. Stacie Harrell PITTMAN.
Attorney General Roy Cooper, by Assistant Attorney General Karissa J. Davan, for the State. Merritt, Webb, Wilson & Caruso, PLLC, by Andrew L. Farris, for Defendant.
Appeal by Defendant from judgments entered 12 September 2011 by Judge Arnold O. Jones, II, in Wayne County Superior Court. Heard in the Court of Appeals 29 August 2012. Attorney General Roy Cooper, by Assistant Attorney General Karissa J. Davan, for the State. Merritt, Webb, Wilson & Caruso, PLLC, by Andrew L. Farris, for Defendant.
STEPHENS, Judge.
Facts and Procedural History
On 4 April 2010, Defendant Stacie Harrell Pittman pled guilty to eight counts of obtaining property by false pretense. The trial court entered three judgments. The judgment in file numbers 09 CRS 50120–23 imposed an active sentence. The convictions in file numbers 09 CRS 50177–78 (“case 50177”) were consolidated for judgment, as were those in file numbers 10 CRS 1981–82 (“case 1981”). The judgments in cases 50177 and 1981 imposed consecutive sentences of 10 to 12 months, which the court then suspended, and placed Defendant on supervised probation for 18 months. A special condition of probation imposed in each case prohibited Defendant from maintaining a checking account. In addition, Defendant was ordered to pay restitution in case 50177. No restitution was ordered in case 1981.
On 15 June 2011, Defendant's probation officer filed probation violation reports in cases 50177 and 1981, alleging that Defendant had violated the special condition by writing checks. The report in case 50177 also alleged that Defendant had failed to pay probation supervision fees and to make restitution payments.
Following a probation revocation hearing on 12 September 2011, the trial court found Defendant in willful violation of the terms and conditions of her probation in both cases. The court revoked Defendant's probation and activated her consecutive sentences in both cases. Defendant appeals.
Discussion
On appeal, Defendant argues four errors in her probation revocation hearing: that the trial court (1) lacked subject matter jurisdiction to revoke her probation because the State failed to prove that she received written notice of the conditions of her probation; (2) failed to make specific findings of fact showing consideration of evidence regarding her inability to pay supervision and restitution fees; (3) failed to intervene ex mero motu in response to certain remarks during the State's closing argument; and (4) made additional findings of fact after she had been remanded to custody. We affirm.
Subject Matter Jurisdiction
Defendant first argues that the trial court lacked subject matter jurisdiction to revoke her probation because the State failed to prove that she received written notice of the conditions of her probation. We disagree.
“A defendant released on supervised probation must be given a written statement explicitly setting forth the conditions on which he is being released.” N.C. Gen.Stat. § 15A–1343(c) (2011). “Oral notice to [a] defendant of his conditions of probation is not a satisfactory substitute for the written statement required by [the] statute.” State v. Lambert, 146 N.C.App. 360, 369, 553 S.E.2d 71, 78 (2001) (vacating special condition of probation that was imposed orally at trial but not provided to the defendant in a written statement), appeal dismissed and disc. review denied, 355 N.C. 289, 561 S.E.2d 271 (2002). Accordingly, a probation condition is invalid if the record does not demonstrate that a defendant received written notification of it. Id. at 368,553 S.E.2d at 78.
Here, the record shows that Defendant was given written notice of the conditions of her probation in the form of the written judgments that suspended her sentences in cases 50177 and 1981. Those judgments clearly set forth the conditions of Defendant's probation, including the special condition which prohibited her from maintaining a checking account. In her testimony at the hearing, Defendant admitted that copies of the judgments were sent with her to the North Carolina Correctional Institution for Women, where she began serving an active sentence in another case on 5 April 2010. Defendant testified that, because she was not allowed to carry paperwork in prison, she mailed the judgments to her mother's house, where they were subsequently thrown away. However, section 15A–1343(c) only requires that a defendant receive written notice of the conditions of probation; what a defendant chooses to do with the written notice after its receipt is beyond consideration of the statute or this Court. Certainly, a defendant who has violated the conditions of her probation cannot escape the trial court's jurisdiction by misplacing the written notice. This meritless argument is overruled.
Findings of Fact About Defendant's Inability to Pay
Defendant also argues that, in case 50177, the trial court failed to make specific findings of fact showing that the court considered evidence regarding her inability to pay supervision and restitution fees. We need not address this argument.
Assuming arguendo that the trial court erred in failing to make certain findings of fact about Defendant's failure to pay restitution and other fees, Defendant cannot demonstrate prejudice. “Our courts have consistently held that violation of a single requirement of probation is sufficient to warrant revocation of that probation.” State v. Belcher, 173 N.C.App. 620, 625, 619 S.E.2d 567, 570 (2005) (citations omitted). The trial court found that Defendant was in willful violation of three conditions of her probation in case 50177, including the special condition prohibiting her from maintaining a checking account. Because sufficient evidence supports the court's findings of fact regarding the other alleged probation violations, the court did not err by revoking Defendant's probation and activating her sentences in case 50177. This argument is therefore overruled.
Closing Remarks by the Prosecutor
Defendant next argues that the trial court erred by failing to intervene ex mero motu in response to certain remarks during the State's closing argument. Defendant's argument is unavailing.
“The standard of review for assessing alleged improper closing arguments that fail to provoke timely objection from opposing counsel is whether the remarks were so grossly improper that the trial court committed reversible error by failing to intervene ex mero motu.” State v. Jones, 355 N.C. 117, 133, 558 S.E.2d 97, 107 (2002) (citation omitted). Counsel have wide latitude in making closing arguments, “and control of [those] arguments is in the discretion of the trial court.” State v. Soyars, 332 N.C. 47, 60, 418 S.E.2d 480, 487 (1992) (citations omitted). “In determining whether the prosecutor's argument was grossly improper, this Court must examine the argument in the context in which it was given and in light of the overall factual circumstances to which it refers.” State v. Tyler, 346 N.C. 187, 205, 485 S.E.2d 599, 609 (1997) (citation omitted). Further, for an inappropriate prosecutorial comment to justify a new trial, it “must be sufficiently grave that it is prejudicial.” State v. Britt, 291 N.C. 528, 537, 231 S.E.2d 644, 651 (1977).
Defendant contends the prosecutor improperly challenged her credibility as a witness by making the following remarks:
Judge, I think all the evidence is clear that this lady was in court, Judge Thigpen told her not to have a checking account, and she did have a checking account, so much so that she continued to scam people even after she was put on probation. I don't know what kind of alternative universe she lives in, Your Honor, but I think it's very clear that the truth is not in this lady.
She has lied time and time and time again, to the victims, to the Court.
Although a prosecutor may argue to a jury that it should not believe a witness, we have held it improper for the prosecutor to refer to a defendant as a “liar.” See, e.g., State v. Sexton, 336 N.C. 321, 363, 444 S.E.2d 879, 903,cert. denied,513 U.S. 1006, 130 L.Ed.2d 429 (1994). However, Defendant cites no case in which the appellate courts of this State have found that a reference to a defendant as a “liar” alone is so grossly improper as to require the trial court to intervene of its own accord, and we know of none. We also note that here the remark was made, not to a jury, but rather to a trial judge. Just as we presume that a trial judge sitting as the finder of fact in a bench trial will disregard incompetent evidence, see, e.g., In re McMillon, 143 N.C.App. 402, 411, 546 S.E.2d 169, 175 (citation omitted), disc. review denied, 354 N.C. 218, 554 S.E.2d 341 (2001), we see no evidence that Judge Arnold was swayed to Defendant's prejudice by the prosecutor's passing remarks. Accordingly, this argument is overruled.
Findings of Fact
In her final argument, Defendant contends that the trial court erred by making additional findings of fact after she had been remanded to custody. We disagree.
Defendant cites State v. Dubose for the proposition that a criminal defendant has the right to be present when new findings of fact are made by a trial court. 208 N.C.App. 406, ––––, 702 S.E.2d 330, 335 (2010) (citation omitted). In Dubose, the trial court made a specific finding of fact outside Defendant's presence that the defendant had engaged in criminal street gang activity. Id. Because that finding could be used against the defendant in future criminal prosecutions and civil proceedings, this Court held that it represented a “ ‘substantive change’ “ in the judgment “that was required to be made in [the] defendant's presence where he would have had an opportunity to be heard.” Id. As a result, we vacated the defendant's judgment and remanded the case for a new sentencing hearing. Id.
We note that a probation revocation hearing “is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations.” Morrissey v. Brewer, 408 U.S. 471, 480, 33 L.Ed.2d 484, 494 (1972). However, we need not address the question of whether the legal reasoning of Dubose applies to probation revocation hearings.
Our review of the record reveals that the trial court made no additional findings of fact outside Defendant's presence. Rather, the court simply restated a finding of fact that had already been made in Defendant's presence, to wit, that Defendant had been prohibited from maintaining a checking account as a special condition of her probation. After Defendant was taken into custody, the trial court stated that it simply wanted to ensure “the record [wa]s clean” on this finding. Moreover, Defendant's counsel was present at the time and raised no objection. The trial court's remarks made outside Defendant's presence amounted to nothing more than a clarification of the terms encompassed in Defendant's written judgments, and accordingly, we overrule this argument.
Defendant's probation revocation hearing was free from prejudicial error. Accordingly, the judgments are
AFFIRMED. Judges CALABRIA and ELMORE concur.
Report per Rule 30(e).