State v. Hill

• Decision Date: 21 May 2013
• Docket Number: No. COA12–1502.,COA12–1502.
• Citation: 741 S.E.2d 911
• Parties: STATE of North Carolina v. James Samuel HILL, Jr., Defendant.
• Court: North Carolina Court of Appeals

741 S.E.2d 911

STATE of North Carolina

v.James Samuel HILL, Jr., Defendant.

No. COA12–1502.

Court of Appeals of North Carolina.

May 21, 2013.

Appeal by defendant from judgment entered 22 August 2012 by Judge W. Robert Bell in Catawba County Superior Court. Heard in the Court of Appeals 22 April 2013.

Roy Cooper, Attorney General, by Thomas H. Moore, Assistant Attorney General, for the State.

Staples Hughes, Appellate Defender, by Jon H. Hunt and Benjamin Dowling–Sendor, Assistant Appellate Defenders, for defendant-appellant.

MARTIN, Chief Judge.

Defendant James Samuel Hill, Jr. was indicted for felonious possession of a dangerous weapon by a prisoner, communicating threats, carrying a concealed weapon, willful and wanton injury to personal property, willful and wanton injury to real property, and of being a habitual felon. The evidence presented at trial tended to show that, just before 11:00 a.m. on 16 July 2011, Deputy Sheriff Johnny Stiles, Deputy Sheriff Linda Anne Rogers, and a third deputy sheriff began to conduct routine cell searches in the “older section” of the Catawba County Detention Facility (“the jail”). When they arrived at defendant's cell, which was located in that section, Deputy Sheriff Stiles removed defendant from the cell in order to allow Deputy Sheriff Rogers and the other officer to conduct the search. Deputy Sheriff Stiles then sat defendant at the table in the adjoining “day room”; a small room adjoining defendant's personal cell to which defendant had regular access which included a table and chair, an additional toilet, and a shower. As a result of their search of defendant's personal cell, the officers found a thermal or knit shirt from which the sleeves had been removed. Because the officers were trained that any such alteration to an authorized item rendered the item contraband, the officers informed defendant that they would have to confiscate the item, at which point defendant “got upset, irate, and started using profanity.” Defendant then told Deputy Sheriff Rogers “that he was going to kick [her] f – –king ass bitch,” and repeated this threat “[t]wo or three times at least.” According to Deputy Sheriff Rogers, she both “believe[d] [defendant] was capable of doing it,” and believed that defendant would carry out his threat if he had the opportunity to do so.

Deputy Sheriff Rogers then prepared a written report documenting the contraband that was removed from defendant's personal cell. About two hours after the contraband had been seized, and at Deputy Sheriff Rogers's request, Deputy Sheriff Stiles brought the report to defendant in order to request defendant's signature on the report, in accordance with jail policy. When the officer arrived at the door to defendant's personal cell, he saw through the twelve-inch-square viewing window in the cell door that defendant “had a type of webbing or cotton or whatever around his hands, which [they] found later came out [sic] was [defendant's] mattress.” When Deputy Sheriff Stiles informed defendant that Deputy Sheriff Rogers had written him up and asked defendant if he would sign the report, defendant looked at the officer and said, “[I]f you come in here, I'll kick your ass.” Deputy Sheriff Stiles then testified that he told defendant, “[W]ell, I guess that means you don't want to sign [the report,]” and walked away with the unsigned report in hand.

Later that same day, around 4:00 p.m., Deputy Sheriff Stiles was making his regular rounds in the jail when he got to defendant's cell and “noticed some sharp looking objects or metal looking objects between [defendant's] fingers” that the officer thought defendant “could use as weapons.” Deputy Sheriff Stiles went back to the control room to inform Deputy Sheriff Rogers about what he observed. When the two officers returned to defendant's cell shortly thereafter, they discovered that defendant had attempted to cover the windows and lights with paper in order to obscure the view into his cell. After Deputy Sheriff Rogers encouraged defendant to remove the paper from the cell door window, the officers observed that defendant had wrapped himself in his bed sheet so that he was “totally covered” and “all you could see was [defendant's] little eyes,” making him “look[ ] like a ninja” “ready for combat.” When Deputy Sheriff Rogers started talking to defendant through the door, defendant “raised his hands” and she observed that “it looked like [defendant] had some like nail clippers, partial nail clippers, in one hand and what looked to [her] to be a razor blade in the other.” Defendant then looked at Deputy Sheriff Rogers and said, “I should have slit your throat when I had the chance,” and made “a slicing motion against his throat.” Deputy Sheriff Rogers then called for assistance. Because defendant was directing his aggression towards Deputy Sheriff Rogers, when the sergeant and the other responding officers arrived at the scene, Deputy Sheriff Rogers was instructed to leave the area.

When the officers opened defendant's cell door, they saw “a mess of cotton, pieces of mattress, pieces of sheets and blankets” inside the cell, and found defendant wearing the sheet wrapped around his head and holding the tattered mattress against his body and wrapped around his hands. Once the officers were able to restrain defendant and removed him to the booking area of the jail, the officers conducted a search of defendant's personal cell and the adjoining day room. In defendant's cell, the officers found a razor blade taken from a pencil sharpener on the window ledge, as well as pieces of nail clippers. In the adjoining day room to which defendant had regular access, the officers found a hollowed out pencil sharpener and the other part of the nail clippers underneath the sink and toilet unit, and found a razor blade stuck to the underside of the table where defendant had been seated during the search of his personal cell earlier in the day.

At the close of the State's evidence, defendant's motion to dismiss the charges of injury to personal property and real property was allowed; the motion was denied with respect to the remaining charges. Defendant offered no evidence and his renewed motion to dismiss was denied. The jury found him guilty of felonious possession of a dangerous weapon by a prisoner, communicating threats, carrying a concealed weapon, and of being a habitual felon. He purports to appeal from a judgment consolidating the offenses and sentencing him to a term of 120 months to 153 months imprisonment to begin at the expiration of all sentences defendant is presently obligated to serve.

Defendant sought to enter a pro se written notice of appeal from the judgment entered against him by completing a form made available to him in the jail, which form was filed with the trial court the day following the entry of judgment. However, the form that defendant used to appeal to this Court was a form indicating only that the signing inmate intended to give notice of appeal from district court to superior court. Additionally, although he indicated his intent to appeal from convictions for “possess weapon [sic] by prisoner, concealed weapon, habitual felon,” defendant correctly identified only one of the two file numbers indicated on the judgment from which he purportedly seeks to appeal. Moreover, the record does not reflect that defendant's purported notice of appeal was served upon the district attorney's office. Because defendant concedes that, for these reasons, his written notice of appeal does not conform to the requirements for giving notice of appeal from a judgment in a criminal action, seeN.C.R.App. P. 4, he petitions this Court to issue a writ of certiorari to allow review of his appeal. SeeN.C.R.App. P. 21(a)(1)(“The writ of certiorari may be issued ... to permit review of the judgments and orders of trial tribunals when the right to prosecute an appeal has been lost by failure to take timely action....”). In our discretion, we allow defendant's petition for writ of certiorari.

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I.

Defendant first contends the trial court violated his constitutional right to a unanimous jury verdict on the charge of communicating threats.

As a threshold matter, we first note that defendant did not raise this issue at trial. Although, “[a]s a general rule, defendant's failure to object to alleged errors by the trial court operates to preclude raising the error on appeal,” State v. Ashe, 314 N.C. 28, 39, 331 S.E.2d 652, 659 (1985), “where the error violates the right to a unanimous jury verdict under Article I, Section 24, it is preserved for appeal without any action by counsel.” State v. Wilson, 363 N.C. 478, 484, 681 S.E.2d 325, 330 (2009); see alsoN.C.R.App. P. 10(a)(1) (“Any such issue ... which by rule or law was deemed preserved or taken without any such action ... may be made the basis of an issue presented on appeal.”). Such “[i]ssues of unanimity have usually arisen in the appellate courts when the trial court gave a disjunctive jury instruction.” State v. Davis, 188 N.C.App. 735, 740, 656 S.E.2d 632, 635,cert. denied,362 N.C. 364, 664 S.E.2d 313 (2008); see also State v. Sargeant, 206 N.C.App. 1, 26, 696 S.E.2d 786, 802 (2010) (Ervin, J., dissenting) (“The issues that have been addressed by the Supreme Court and this Court in cases involving alleged violations of Article I, section 24 of the North Carolina Constitution have included claims such as those involving the use of disjunctive jury instructions; the delivery of instructions to a single juror instead of to the entire jury; issues arising from questions posed by the trial court to the jury during deliberations in which the trial court allegedly coerced the jury into reaching a verdict; issues involving jury misconduct; and issues involving jury polling.” (citations omitted)), aff'd as modified on other grounds,365 N.C. 58, 707 S.E.2d 192 (2011).

However, “[a]lthough defendant relies upon...