Opinion
No. 07-537.
Filed March 4, 2008.
Bladen County No. 05CRS52870.
Appeal by Defendant from judgment dated 1 February 2007 by Judge Jack A. Thompson in Superior Court, Bladen County. Heard in the Court of Appeals 10 December 2007.
Attorney General Roy Cooper, by Special Deputy Attorney General Elizabeth N. Strickland, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Matthew D. Wunsche, for Defendant-Appellant.
Chester B. Sykes (Defendant) was convicted by a jury of felony cruelty to animals on 1 February 2007. The trial court, finding Defendant to have a prior record level of II, sentenced Defendant to a term of six to eight months in prison, but suspended the sentence and placed Defendant on supervised probation for thirty-six months. The trial court also ordered Defendant to serve an active term of sixty days in the county jail. Defendant appeals.
An arrest warrant was issued for Defendant on 1 November 2005. The arrest warrant stated that there was probable cause to believe that on or about 8 October 2005 in Bladen County, Defendant "unlawfully, willfully and feloniously . . . DID MALICIOUSLY KILL AN ANIMAL, BY SHOOTING IT WITH A COMPOUND BOW, A DOG NAMED `REBEL' OWNED BY JAMES WAYNE CALLAHAN." The next day, 2 November 2005, Defendant appeared in court on this warrant. Defendant was advised of the charge against him and signed a waiver of counsel form.
Defendant was indicted on 17 January 2006 on the charge of cruelty to animals. The indictment stated that "on or about the 19th day of November, 2005, in [Bladen] County . . . [D]efendant . . . unlawfully, willfully and feloniously did maliciously torture, mutilate, maim, cruelly beat, disfigure, poison, or kill an animal to wit: a dog. This act was in violation of North Carolina General Statutes Section 14-32(b)."
Defendant again signed waiver of counsel forms on 6 March 2006 and on 10 April 2006. A grand jury returned a superceding indictment dated 1 May 2006 that corrected the date of the offense and the statutory citation. The superceding indictment stated that "on or about October 8, 2005, and in [Bladen] [C]ounty . . . [D]efendant . . . unlawfully, and feloniously did maliciously torture, mutilate, maim, cruelly beat, [disfigure], poison, or kill an animal to wit: a dog. This act was in violation of North Carolina General Statutes Section 14-360(b)."
At a hearing on 21 June 2006, the trial court had the following exchange with Defendant:
COURT: . . . Are you ready to go forward with all these [pre-trial motions] today?
[DEFENDANT]: Yes, your Honor.
COURT: Okay. You're not represented, sir; is that correct?
[DEFENDANT]: That's right — that's correct, your Honor.
COURT: And you signed a waiver with regard to these charges?
[DEFENDANT]: Yes, your Honor.
COURT: Okay. You can proceed.
Defendant represented himself at trial. The evidence at trial tended to show that Bladenboro Police Officers Kendall Kelly (Officer Kelly) and Jonathan Rising (Officer Rising) responded to a 911 call from Defendant on 8 October 2005. When the officers arrived at Defendant's house, they saw Defendant holding a fully drawn compound bow in his hands. Defendant was pointing the bow into some bushes. After Officer Kelly ordered Defendant to put down the bow, Defendant fired an arrow. Both officers testified that Defendant fired the arrow into the bushes, but Defendant testified that he fired the arrow into his garden. The officers checked the bushes and found a wounded pit bull dog with three arrow wounds. Because the dog had blood coming from his nose and ears and was struggling to breathe, Officer Kelly told Officer Rising to shoot the dog to end its suffering. Officer Rising shot the dog, killing it.
Defendant told the officers that the incident began when the dog appeared in his yard and lunged at him while he was taking out his trash. Defendant then threw the trash at the dog and retreated to his porch, where Defendant had his compound bow leaning inside the front door in preparation for a hunting trip. The dog lunged again and Defendant fired the first arrow. The dog lunged once again and Defendant shot a second arrow at the dog, at which point the dog retreated into some bushes. Defendant asked his neighbor, Michael Guyton (Mr. Guyton), to call 911. Mr. Guyton gave his cell phone to Defendant, and Defendant called 911. Mr. Guyton stated that during his conversation with Defendant, the dog remained in the bushes and acted scared. Mr. Guyton also testified that after he had spoken with Defendant for approximately ten minutes, Defendant shot an arrow into the bushes.
The dog belonged to James Callihan (Mr. Callihan), who lived in a house a short distance from Defendant. Mr. Callihan lived in the house with his girlfriend, Angela Hester (Ms. Hester), who was Defendant's ex-wife, and with Jessica Sykes (Ms. Sykes), who was the daughter of Defendant and Ms. Hester. Ms. Sykes testified at trial that she had seen the dog chained up that morning before she left the house.
The trial court frequently had to admonish Defendant during trial for inappropriate conduct and procedure in representing himself. Most of these incidents occurred outside the presence of the jury. Defendant often demanded that the State or the trial court give legal reasons for objections to Defendant's conduct and questions to witnesses. As the trial court's warnings continued with more frequency and the disruptions grew longer, Defendant moved for a mistrial several times. The trial court denied Defendant's motions. Defendant appeals.
I.
Defendant first argues the trial court lacked jurisdiction to enter judgment because neither indictment alleged any specific act committed in violation of N.C. Gen. Stat. § 14-360(b). Our Courtconducts a de novo review of the validity of an indictment. See State v. Sturdivant, 304 N.C. 293, 283 S.E.2d 719 (1981).
"An indictment or criminal charge is constitutionally sufficient if it apprises the defendant of the charge against him with enough certainty to enable him to prepare his defense and to protect him from subsequent prosecution for the same offense. The indictment must also enable the court to know what judgment to pronounce in the event of conviction."
State v. Hall, 173 N.C. App. 735, 737, 620 S.E.2d 309, 310 (2005) (quoting State v. Coker, 312 N.C. 432, 434-35, 323 S.E.2d 343, 346 (1984)).
In support of his argument, Defendant cites State v. Walker, 249 N.C. 35, 37, 105 S.E.2d 101, 103 (1958):
[W]hile it is a general rule prevailing in this State that an indictment for a statutory offense is sufficient if the offense be charged in the words of the statute, S. v. Jackson, 218 N.C. 373, 11 S.E.2d 149, the rule is inapplicable where as here the words do not in themselves inform the accused of the specific offense of which he is accused, so as to enable him to prepare his defense or plead his conviction or acquittal as a bar to further prosecution for the same offense, as where the statute characterizes the offense in mere general or generic terms, or does not sufficiently define the crime or set forth all its essential elements. In such situation the statutory words must be supplemented by other allegations which so plainly, intelligibly and explicitly set forth every essential element of the offense as to leave no doubt in the mind of the accused and the court as to the offense intended to be charged.
In the present case, Defendant challenges the following language contained in both the original and superceding indictments: Defendant "did maliciously torture, mutilate, maim, cruelly beat, disfigure, poison, or kill an animal to wit: a dog." Defendant asserts that this language, taken directly from N.C. Gen. Stat. § 14-360(b), is general and/or generic language and is insufficient under Walker. In further support of this argument, Defendant cites State v. Watkins, 101 N.C. 702, 8 S.E. 346 (1888), where our Supreme Court held that an indictment was insufficient to confer jurisdiction on the trial court because it quoted the following language from the cruelty to animals statute in force in North Carolina at the time: "torture, torment, and act in a cruel manner towards a certain animal, to wit, a hog[.]" Id. at 703-05, 8 S.E. at 346-47. Our Supreme Court held that the terms of the statute cited in the indictment are not precise in their meaning; they designate,
rather than define the offense or suggest the acts that constitute it; they do not, of themselves, import what is meant by the statute; in pleading, they need to be aided by charging acts that certainly imply what is meant by the terms torture and torment[.]
Id. at 705, 8 S.E. at 347.
Defendant's reliance on Watkins, however, is unavailing. The specific terms that were determined to be too vague in Watkins were "torture" and "torment." However, the Court in Watkins also recognized that "the words `beat,' `cruelly beat,' `wound,' and `kill,' of themselves respectively, taken in the proper connection, imply sufficiently the act forbidden and the offense charged." Id. at 704, 8 S.E. at 347. In the present case, the term "maim" applies to Defendant's actions and defines a specific act with clarity: "To disable or disfigure, usu. by depriving of the use of a limb or bodily member[.]" Webster's II New College Dictionary 675 (3d ed. 2005). The term "kill" also applies to Defendant's actions with necessary clarity, as "kill" is commonly defined as: "To deprive of life[.]" Webster's II New College Dictionary 621. Accordingly, we hold the language of the indictment and the superceding indictment sufficiently apprised Defendant of the specific offense with which he was charged. We overrule this assignment of error.
II.
Defendant next assigns as error the trial court's failure to comply with N.C. Gen. Stat. § 15A-1242 to ensure that Defendant knowingly and voluntarily waived his right to counsel. N.C. Gen. Stat. § 15A-1242 (2007) provides:
A defendant may be permitted at his election to proceed in the trial of his case 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.
This assignment of error presents a question of law, which we review de novo. See State v. Connley, 297 N.C. 584, 586, 256 S.E.2d 234, 236, cert. denied, 441 U.S. 929, 60 L. Ed. 2d 657 (1979). Prior to trial, Defendant signed three waiver of counsel forms on 2 November 2005, on 6 March 2006, and on 10 April 2006. Defendant signed all of these waiver of counsel forms prior to 1 May 2006, the date of the superceding indictment. Defendant agrees that a previous valid waiver of counsel would excuse the trial court from conducting an additional inquiry at the time of trial. See State v. Kinlock, 152 N.C. App. 84, 88-90, 566 S.E.2d 738, 740-42 (2002), aff'd per curiam, 357 N.C. 48, 577 S.E.2d 620 (2003). However, because the original indictment cited an incorrect statute number and because the language in the indictment came directly from the cruelty to animals statute, Defendant asserts that any waiver of counsel form signed before these errors were corrected could not have been knowing and voluntary as required by N.C.G.S. § 15A-1242.
For the reasons that follow, we find Defendant was validly indicted by the original indictment and therefore validly waived his right to counsel prior to trial. Defendant argues that the original indictment was invalid because it recited an incorrect statute number. Defendant also asserts that the language of the original indictment, taken directly from N.C. Gen. Stat. § 14-360(b), is general and/or generic language and is insufficient under Walker. We have already held that the language of the original indictment sufficiently apprised Defendant of the offense with which he was charged. Moreover, "an indictment's improper statutory citation is immaterial when the language of the indictment sufficiently apprises a defendant of the charge at issue." State v. Lockhart, 181 N.C. App. 316, 320, 639 S.E.2d 5, 8, disc. review denied, 361 N.C. 365, 644 S.E.2d 556 (2007). In the present case, because the language of the original indictment was sufficient to apprise Defendant of the charge at issue, the incorrect statutory citation was immaterial.
Because neither the misquoted statute number nor the language taken directly from the cruelty to animals statute invalidated the original indictment, the three waivers that Defendant signed prior to trial were sufficient to meet the requirements of N.C.G.S. § 15A-1242. Therefore, we overrule this assignment of error.
III.
Defendant also argues the trial court abused its discretion by denying his motions for a mistrial. Defendant contends the trial court's decision to allow Defendant to continue to represent himself, despite the repeated disruptions that his self-representation caused, resulted in substantial and irreparable prejudice to Defendant. Defendant's argument is without merit.
"The decision whether or not to grant a mistrial is within the sound discretion of the trial judge. A mistrial is appropriate only when there are such serious improprieties as to make it impossible for a fair and impartial verdict to be rendered." State v. Marino, 96 N.C. App. 506, 507, 386 S.E.2d 72, 73 (1989) (citation omitted). "`Abuse of discretion results where the court's ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.'" State v. Campbell, 359 N.C. 644, 673, 617 S.E.2d 1, 19 (2005) (quoting State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988)), cert. denied, 547 U.S. 1073, 164 L. Ed. 2d 523 (2006).
In the present case, the trial court determined that the improprieties committed by Defendant did not make an impartial verdict impossible, and we cannot say that the trial court's ruling was unsupported by reason. The trial court's ruling seems particularly appropriate given the substantial evidence presented of Defendant's guilt. See Marino, 96 N.C. App. at 507, 386 S.E.2d at 73. We overrule this assignment of error.
Defendant has failed to set forth argument pertaining to his remaining assignments of error and we deem them abandoned. See N.C.R. App. P. 28(b)(6).
No error.
Chief Judge MARTIN and Judge STEPHENS concur.
Report per Rule 30(e).