State v. Mandina, 8710SC631

• Decision Date: 01 November 1988
• Docket Number: No. 8710SC631,8710SC631
• Citation: 91 N.C.App. 686,373 S.E.2d 155
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Sam Frank MANDINA.

Page 155

373 S.E.2d 155

91 N.C.App. 686

STATE of North Carolina v. Sam Frank MANDINA.

No. 8710SC631.

Court of Appeals of North Carolina.

Nov. 1, 1988.

Atty. Gen. Lacy H. Thornburg by Sp. Deputy Atty. Gen. James B. Richmond and Asst. Atty. Gen. John F. Maddrey, Raleigh, for the State.

John T. Hall, Raleigh, for defendant-appellant.

COZORT, Judge.

Defendant was tried, along with codefendant Gary Gene Williams, not a party to this appeal, on six counts of second-degree burglary, six counts of felonious larceny, one count of safecracking, and one count of conspiracy. Except for the conspiracy charge, which alleged a conspiracy to commit burglary between 10 June 1982 and 26 February 1983, all of the charges stemmed from six break-ins occurring on the weekend of 28, 29, and 30 January 1983. At trial, the State's evidence consisted principally of the testimony of William Nobe, an alleged co-conspirator who testified pursuant to a plea arrangement. Nobe testified that defendant and other individuals came to Raleigh from Missouri on several occasions, including the January weekend in question, when they burglarized homes in expensive neighborhoods and stole items of sterling silver, jewelry, guns, and other valuable antiques. The owners of the residences burglarized on the January weekend testified, as did victims of burglaries that took place in August of 1982 and February of 1983. The State also presented various items of physical evidence, including fiber evidence seized from a 1978 Oldsmobile Cutlass allegedly driven by defendant to Missouri following the burglaries, which was compared with fibers taken from a Raleigh motel where defendant allegedly stayed.

From judgments imposing sentences totaling 153 years in prison, following conviction on all counts, defendant appeals. We affirm.

Defendant presents fifteen assignments of error, which, he contends, entitle him to a new trial.

Three assignments of error challenge the sufficiency of several of the indictments under which defendant was tried. First, defendant assigns as error the entry of judgment and commitment for conspiracy because the judgment and commitment refer to a case numbered 85CRS73210, whereas the bill of indictment is numbered 85CRS73610. He argues that, absent a valid bill of indictment numbered 85CRS73210, he is entitled to an arrest of judgment on the conspiracy charge and, further, that without the umbrella charge of conspiracy, joinder of offenses occurring on separate dates was improper. We find no error.

Defendant was charged with conspiracy under a proper bill of indictment numbered 85CRS73610. He alleges no defects in that bill. Thus, there is no "absence" of a valid charge of conspiracy as defendant claims. Furthermore, the record indicates that the parties conducted pretrial and trial proceedings under the impression that the bill of indictment charging defendant with conspiracy was numbered 73210 rather than 73610. Defendant's waiver of arraignment and plea of not guilty referred to 73210, as did his other motions, including motion for a change of venue and motion to sever. Defendant clearly had notice of the crime charged and was able to prepare his defense. State v. Hicks, 86 N.C.App. 36, 39, 356 S.E.2d 595, 597 (1987). Therefore, the trial court's misrecital of the indictment number did not prejudice defendant and does not constitute grounds for arrest of judgment. The assignment of error is overruled.

Defendant also contends that he is entitled to arrest of judgment on the burglary charges on the ground that the indictments were fatally defective because of errors or omissions as to the date or time of the offense alleged. Each count of burglary charged defendant with breaking and entering an identified dwelling "during the nighttime between the hours of 8:30 pm and 12:00 am" on a specific month, day, and year--except for case numbered 83CRS39436A, which alleges that the burglary occurred on "the 28th day of January 19__." Defendant contends that there is no hour of "12:00 am" as opposed to "12:00 midnight" and that that error, as well as the omission of year in 83CRS39436A, renders each indictment invalid on its face. This contention has no merit.

N.C.Gen.Stat. § 15-155 provides: "No judgment upon any indictment for felony or misdemeanor ... shall be stayed or reversed ... for omitting to state the time at which the offense was committed in any case where time is not of the essence of the offense, nor for stating the time imperfectly...." Although nighttime is clearly "of the essence" of the crime of burglary, an indictment for burglary is sufficient if it avers that the crime was committed in the nighttime. State v. Wood, 286 N.C. 248, 254, 210 S.E.2d 52, 55 (1974). Therefore, failure to allege the hour the crime was committed, id., or the specific year, see State v. Hawkins, 19 N.C.App. 674, 199 S.E.2d 746 (1973), is not grounds for arrest of judgment. Similarly, the judgment will not be arrested because the indictment imperfectly refers to the hour of midnight as "12:00 am." We therefore overrule this assignment of error.

There is likewise no merit to defendant's argument that the indictments for felonious larceny are invalid for failure to allege the essential elements of the offense. Each larceny count, which follows the corresponding second-degree burglary count in each of the six bills of indictment, is in the following language:

AND THE JURORS FOR THE STATE UPON THEIR OATH PRESENT that on or about the (date of the offense) in Wake County Sam Frank Mandina unlawfully and wilfully did feloniously steal, take and carry away (see xeroxed copy attached hereto as Exhibit A and incorporated herein by reference), the personal property of (name of owner-victim) pursuant to a violation of Section 14-51 of the General Statutes of North Carolina. This larceny was in violation of the following law: N.C.G.S. 14-72(b)(2).

Defendant appears to argue that, since he was tried and convicted of larceny pursuant to a burglary, the indictment was required to set forth not only facts supporting the elements of common law larceny and the statutory basis for punishment as a felony, but also facts supporting the elements of common law burglary. The counts in question, however, charge defendant with felony larceny, not burglary; the burglary charges are set forth in separate counts. N.C.Gen.Stat. § 15A-924(a)(5) states that a criminal pleading must contain "[a] plain and concise factual statement in each count which ... asserts facts supporting every element of a criminal offense and the defendant's commission thereof with sufficient precision clearly to apprise the defendant or defendants of the conduct which is the subject of the accusation." In order to charge a defendant with felony larceny, without regard to the value of the property stolen, the bill of indictment must contain, in addition to the elements of common law larceny, one or more of the following statutory elements set forth in § 14-72(b):

(1) From the person;

(2) Committed pursuant to a violation of G.S. 14-51, 14-53, 14-54 or 14-57;

(3) Of any explosive or incendiary device or substance;

(4) Of any firearm; or

(5) Of any record or paper in custody of the N.C. Archives.

See N.C.Gen.Stat. § 14-72(b) (1987); State v. Cleary, 9 N.C.App. 189, 192, 175 S.E.2d 749, 751 (1970). Section 14-72 "relates solely to punishment for the separate crime of larceny," State v. Brown, 266 N.C. 55, 63, 145 S.E.2d 297, 303 (1965) (Bobbitt, J., concurring), and does not change the nature of the common law offense. State v Smith, 66 N.C.App. 570, 576, 312 S.E.2d 222, 226, disc. rev. denied, 310 N.C. 747, 315 S.E.2d 708 (1984). The allegation that the larceny was committed "pursuant to a violation of G.S. 14-51" is in the language of § 14-72(b) and was sufficient to apprise defendant that he was charged with larceny punishable as a felony because it was committed pursuant to a burglary. This assignment of error is overruled.

Defendant further assigns as error the trial court's pretrial rulings on a motion for discovery, a motion for change of venue, and two motions, a motion to suppress and a motion in limine, aimed at excluding fiber evidence taken from the vehicle allegedly driven by defendant following commission of the burglaries. We note at the outset that defendant's brief does not comply with Rule 28(b)(5) of the Rules of Appellate Procedure, as defendant has failed to state separately each question presented followed by the assignment of error and exception pertinent to the question. Nonetheless, we have elected, in our discretion, to consider the arguments.

The record discloses that prior to trial defendant made a motion for the production of several items, including the criminal record, parole record and reports, and results of handwriting samples of William Nobe, an alleged co-conspirator and a chief witness for the State. The motion was denied. We find no prejudicial error.

N.C.Gen.Stat. § 15A-903 sets forth the types of information discoverable from the State. Neither this statute nor the common law gives a defendant the right to discover the criminal record of a witness for the State. State v. Ford, 297 N.C. 144, 148, 254 S.E.2d 14, 17 (1979). We think the same rule should apply to a witness's parole record.

The discovery statute would, however, allow a defendant access to reports of handwriting analysis made in connection with a case. See N.C.Gen.Stat. § 15A-903(e) (1987). It was arguably error to deny defendant's motion to produce results of analyses of Nobe's handwriting. Nevertheless, defendant has made no showing that the trial court's ruling affected the preparation or presentation of his defense, to his prejudice, as required by N.C.Gen.Stat. §§ 15A-1442, -1443 (1987). Specifically, defendant has not alleged how the handwriting analysis report was material to his case, or whether or how the State intended to use the information at trial. Defendant has...