State v. Dammons

• Decision Date: 11 October 1977
• Docket Number: No. 81,81
• Citation: State v. Dammons, 293 N.C. 263, 237 S.E.2d 834 (N.C. 1977)
• Parties: STATE of North Carolina v. Claude Edward DAMMONS.
• Court: North Carolina Supreme Court

Page 834

237 S.E.2d 834

293 N.C. 263

STATE of North Carolina v.Claude Edward DAMMONS.

No. 81.

Supreme Court of North Carolina.

Oct. 11, 1977.

Defendant appeals from judgment of Crissman, J., at the 30 August 1976 Session of Guilford Superior Court.He was tried and convicted, upon proper bills of indictment, of aggravated kidnapping (76-CR-22707) and assault with a deadly weapon with intent to kill inflicting serious injury (76-CR-41561).The two cases were consolidated for trial.Sentences were imposed of 25 years to life imprisonment in the kidnapping case and 20 years imprisonment in the assault case.Although initially filed in the Court of Appeals, the case was transferred to this Court because life imprisonment was imposed as the maximum term of an indeterminate sentence on the kidnapping conviction.We allowed defendant's motion to bypass the Court of Appeals on the felonious assault conviction.Argued as No. 51 at the Spring Term 1977.

Rufus L. Edmisten, Atty. Gen. by Elizabeth C. Bunting, Asst. Atty. Gen., Raleigh, for the State.

Anne B. Lupton, Asst. Public Defender, Greensboro, for defendant-appellant.

EXUM, Justice.

Most of defendant's nineteen assignments of error argued in his brief are directed to his contentions that the trial court erred in: (1) denying his motion to dismiss all charges on the ground that certain of defendant's statutory rights to a speedy trial had been denied; (2) instructing the jury; and (3) denying his motion for arrest of judgment in the assault case.We find no merit in defendant's arguments regarding speedy trial, no error prejudicial to him in the court's instructions on the felonious assault charge, and no error in the denial of his motion for arrest of judgment.We do, however, find error prejudicial to defendant in the court's instructions on aggravated kidnapping under the new statute, General Statute 14-39.We hold, therefore, that defendant is entitled to a new trial in the kidnapping case.

I

Defendant urges error in the trial court's denial of his pre-trial motion to dismiss all charges on the ground that his right to a speedy trial was denied under applicable statutory provisions.He relies essentially upon General Statute 15-10.2(a) which provides:

"Mandatory disposition of detainers request for final disposition of charges; continuance; information to be furnished prisoner.(a) Any prisoner serving a sentence or sentences within the State prison system who, during his term of imprisonment, shall have lodged against him a detainer to answer to any criminal charge pending against him in any court within the State, shall be brought to trial within eight months after he shall have caused to be sent to the district attorney of the court in which said criminal charge is pending, by registered mail, written notice of his place of confinement and request for a final disposition of the criminal charge against him; said request shall be accompanied by a certificate from the Secretary of Correction stating the term of the sentence or sentences under which the prisoner is being held, the date he was received, and the time remaining to be served; provided that, for good cause shown in open court, the prisoner or his counsel being present, the court may grant any necessary and reasonable continuance."

The record reveals these events leading up to defendant's trial, which began on 30 August 1976: On 9 December 1975 a warrant was issued charging defendant with kidnapping Colia Thomas on 20 September 1975.On 22 December 1975 a warrant was issued charging him with assault with a deadly weapon, to wit, a small caliber pistol, with intent to kill, inflicting serious injury on Mrs. Thomas.Defendant was at the time serving a prior sentence for voluntary manslaughter.On 14 January 1976 a detainer was filed with the Department of Correction against defendant in the kidnapping and assault cases.On 23 January defendant sent a handwritten petition addressed to the "Judge Presiding of Guilford County, District Court Division: Greensboro, North Carolina.ATTENTION: District Solicitor."The petition, received and filed in Guilford County on 28 January, liberally construed, requested that defendant be speedily tried or that all charges against him be dismissed.This petition was accompanied by an application to proceed in forma pauperis and by a certificate signed by Ben L. Baker, Supervisor of Combined Records, and stating the defendant's existing sentence, his approximate release date and his location.On 8 April a new warrant was issued charging the same assault as before, but with a shotgun.Charges under the older warrant for assault with a pistol were dismissed.On 16 April a writ of habeas corpus ad prosequendum was issued requesting delivery of defendant to Guilford County on 21 April for trial calendared to begin on 22 April.Defendant was apparently brought to Guilford County and the new warrant for assault served upon him there on 22 April.On 29 April a preliminary hearing was held and probable cause found in the kidnapping case and the assault case.Indictments were returned in those cases on 3 May.However, a new indictment in the kidnapping case was returned on 7 June alleging for the first time the elements of aggravated kidnapping.On 30 August the cases proceeded to trial.

During the argument on 30 August on defendant's speedy trial motion, it appeared that the cases had been earlier calendared for trial on 1 June 1976 but on the state's motion a continuance was allowed on the ground of the absence of James Willie Dammons, a crucial state's witness then in FBI custody in Washington, D. C., on two armed robbery charges.

We note first that defendant's pro se request for trial was not sent by registered mail.Even if it had been, defendant was tried within eight months of the request.The state therefore complied with General Statute 15-10.2(a).

Defendant next invokes the provisions of General Statute15A-711 which provide in pertinent part as follows:

"Securing attendance of criminal defendants confined in institutions within the State; requiring solicitor to proceed.(a) When a criminal defendant is confined in a penal or other institution under the control of the State or any of its subdivisions and his presence is required for trial, the solicitor may make written request to the custodian of the institution for temporary release of the defendant to the custody of an appropriate law-enforcement officer who must produce him at the trial.The period of the temporary release may not exceed 60 days.The request of the solicitor is sufficient authorization for the release, and must be honored, except as otherwise provided in this section.

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"(c)A defendant who is confined in an institution in this State pursuant to a criminal proceeding and who has other criminal charges pending against him may, by written request filed with the clerk of the court where the other charges are pending, require the solicitor prosecuting such charges to proceed pursuant to this section.A copy of the request must be served upon the solicitor in the manner provided by the Rules of Civil Procedure,G.S. 1A-1, Rule 5(b).If the solicitor does not proceed pursuant to subsection (a) within six months from the date the request is filed with the clerk, the charges must be dismissed."

Defendant's contention is that this statute required him to be tried within six months of his 23 January petition.Assuming, without deciding, that defendant's petition constitutes a "written request" within the meaning of General Statutes 15A-711(c) served in accordance with this subsection, we nevertheless conclude that the state has complied with this statute.The statute provides that following defendant's request the state must proceed within six months "pursuant to subsection (a)," that is, not to trial but to request a defendant's temporary release for trial which "temporary release may not exceed 60 days."The legislature envisioned that trial following a request under General Statute 15A-711(c) would be held within eight months the six-month period provided by subsection (c) plus the 60-day release period provided by subsection (a).This coincides with the eight-month period set out in General Statute 15-10.2(a).Here the state requested the appearance of the defendant for trial well within six months following defendant's request for trial.Defendant's trial was initially scheduled to begin on 1 June.This was within the 60-day maximum authorized for a temporary release.After the trial was continued defendant was presumably returned to the custody of the State Department of Correction.In any event he does not complain on appeal that the temporary release provisions of General Statute 15A-711(a) were violated.

Finally defendant contends that Article 38 of Chapter 15A entitled " Interstate Agreement on Detainers" required that he be brought to trial within six months of his written request.He relies on Article III of the Interstate Agreement which provides:

"Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within 180 days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint: Provided that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.The request of the prisoner shall be accompanied by a certificate of the...