State v. McNair

• Decision Date: 06 November 2001
• Docket Number: No. COA00-1202.,COA00-1202.
• Citation: 554 S.E.2d 665,146 NC App. 674
• Parties: STATE of North Carolina v. Dewayne Anthony McNAIR.
• Court: North Carolina Court of Appeals

554 S.E.2d 665

146 NC App. 674

STATE of North Carolina v. Dewayne Anthony McNAIR.

No. COA00-1202.

Court of Appeals of North Carolina.

November 6, 2001.

Attorney General Roy Cooper, by Special Deputy Attorney General Alexander Peters, for the State.

W. David Lloyd, Greensboro, for defendant appellant.

McCULLOUGH, Judge.

Defendant Dewayne Anthony McNair was tried before a jury at the 27 March 2000 Criminal Session of Guilford County Superior Court. The facts shown at trial were that early on the morning of 2 October 1996 two black males, one matching the description of defendant, were picked up by a cab driver for the Red Bird Cab Company in Greensboro. Soon after the cab reached the on-ramp for Interstate 85 Business, one of the men pulled a gun and directed the driver to pull over. After being robbed of her collected fares, the driver was forced to get into the trunk of the cab.

While the driver was in the trunk, defendant and two other men stopped at the Bi-Lo grocery store at approximately 2:00 a.m. Once there, defendant forced two store employees who were stocking shelves into the store's bathroom and robbed them. Defendant then returned to the front of the store and assaulted another store employee until she became unconscious. In the meantime, the two other men with defendant had forced the store's manager and assistant manager to hand over all the store's cash and receipts.

The threesome left the store in the stolen cab. They parked the cab in a well-lit area, got into another car and left, leaving the driver in the trunk.

Defendant was indicted on four counts of robbery with a dangerous weapon, two counts of second degree kidnapping, and one count of first degree kidnapping. The jury convicted defendant on all counts. Defendant was sentenced to minimum terms of 146 months and maximum terms of 185 months for each of the convictions of robbery with a dangerous weapon; a minimum term of 168 months and a maximum term of 211 months for the first degree kidnapping conviction; minimum terms of 119 months and maximum terms of 152 months for each of the second degree kidnapping convictions, of which 60 months was based on the "firearm enhancement" pursuant to N.C. Gen.Stat. § 15A-1340.16A, all to run consecutively.

Defendant asserts that the trial court erred by (I) allowing the State to amend the indictments from Donald Dale Cook to Ronald Dale Cook to comport with the evidence presented at trial on the ground that they were typographical errors; (II) allowing the prosecutor to comment, over defendant's objection, on defendant's failure to present evidence of alibi in violation of his rights under both State and Federal Constitutions; and (III) enhancing each of defendant's sentences for his convictions of second degree kidnapping by 60 months for possession of a firearm during the offense where the jury did not specifically pass on the issue in violation of Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), as plain error.

I.

Defendant's first assignment of error asserts that the trial court erred in allowing the State to amend the indictments against defendant.

N.C. Gen.Stat. § 15A-923(e) (1999) provides that "[a] bill of indictment may not be amended." An amendment within the meaning of this statute is "`any change in the indictment which would substantially alter the charge set forth in the indictment.'" State v. Marshall, 92 N.C.App. 398, 401, 374 S.E.2d 874, 875 (1988) (quoting State v. Price, 310 N.C. 596, 598, 313 S.E.2d 556, 558 (1984)), cert. denied, 328 N.C. 273, 400 S.E.2d 459 (1991).

This Court has held that "[a] change in an indictment does not constitute an amendment where the variance was inadvertent and defendant was neither misled nor surprised as to the nature of the charges." State v. Campbell, 133 N.C.App. 531, 535-36, 515 S.E.2d 732, 735, disc. review denied, 351 N.C. 111, 540 S.E.2d 370 (1999); see also Marshall, 92 N.C.App. 398,

374 S.E.2d 874.

In the Marshall case, the trial court allowed the State to amend the victim's name in a rape indictment from "Regina Lapish" to "Regina Lapish Foster." Marshall, 92 N.C.App. at 401, 374 S.E.2d at 875. In that case there were four separate indictments for different criminal violations. Id. Only the rape indictment used the incorrect name of the victim. The Court, in affirming the trial court, said that "[i]t is clear that the rape indictment inadvertently omitted the last name of Regina Lapish Foster. At no time was defendant misled or surprised as to the nature of the charges against him." Id. at 401, 374 S.E.2d at 876.

In State v. Bailey, 97 N.C.App. 472, 389 S.E.2d 131 (1990), the trial court allowed the State to amend the victim's name on three indictments from "Pettress Cebron" to "Cebron Pettress." Id. at 475, 389 S.E.2d at 133. The Court, citing Marshall, concluded that the errors in the indictments were inadvertent, and said, "We discern no manner in which defendant could have been misled or surprised as to the nature of the charges against him." Bailey, 97 N.C.App. at 476, 389 S.E.2d at 133.

In the present case, the trial court allowed the State to amend two of seven indictments. Specifically, in case 00 CRS 23235, Count I indicts defendant for robbery with a deadly weapon of the victim, Ronald Dale Cook. It refers to the victim properly twice, but it refers to a "Donald Dale Cook" once. In case 00 CRS 23236, Count II indicts defendant for two counts of second degree kidnapping of the victim, who was also Ronald Dale Cook. However, in this Count, the indictment only refers to a "Donald Dale Cook." At trial, the "D's" were amended to "R's" so that both indictments read "Ronald" throughout.

The errors in the indictments were inadvertent. The correct name of the victim appears twice on the indictment for robbery with a deadly weapon. The defendant could not have been misled or surprised as to the nature of the charges against him, and the indictments were correct in all other respects. We hold that "`the amendment to the indictment was permissible because it did not substantially alter the charge in the original indictment.'" State v. Bowen, 139 N.C.App. 18, 27, 533 S.E.2d 248, 254 (2000) (quoting State v. Brinson, 337 N.C. 764, 767, 448 S.E.2d 822, 824 (1994)).

We note that there is a line of cases by our Supreme Court which hold that "[a] change in the name of the victim substantially alters the charge in the indictment." See State v. Abraham, 338 N.C. 315, 340, 451 S.E.2d 131, 144 (1994)

("Where an indictment charges the defendant with a crime against someone other than the actual victim, such a variance is fatal."). Id. The Abraham case held that a change from Carlose Antoine Latter to Joice Hardin was such a change that substantially altered the indictment, and was fatal. Id. at 339, 451 S.E.2d at 143; see also State v. Call, 349 N.C. 382, 424, 508 S.E.2d 496, 522 (1998) (holding that a change from Gabriel Hernandez Gervacio to Gabriel Gonzalez was fatal); State v. Bell, 270 N.C. 25, 29, 153 S.E.2d 741, 744 (1967) (holding that a change from Jean Rogers to Susan Rogers was fatal); and State v. Overman, 257 N.C. 464, 468, 125 S.E.2d 920, 924 (1962) (holding that a change from Frank E. Nutley to Frank E. Hatley was fatal). The defendant argues that our cases of Bailey and Marshall are irreconcilable with these cases. We disagree.

Our Court has recently cited Abraham for the proposition that a change in the defendant's name substantially alters the indictment. See Bowen, 139 N.C.App. 18,

533 S.E.2d 248; State v. Grigsby, 134 N.C.App. 315, 517 S.E.2d 195 (1999),

reversed on other grounds, 351 N.C. 454, 526 S.E.2d 460 (2000). Likewise, the Supreme Court has cited the Baileycase and its holding permitting the change of a defendant's name with approval in State v. Snyder, 343 N.C. 61, 68, 468 S.E.2d 221, 225 (1996). We do not believe the Supreme Court intended the Abraham holding to be a blanket prohibition on changing the name of the victim in a criminal indictment. Correcting inadvertent mistakes in an indictment, which was done here and in the previous Bailey and Marshall cases, does not undermine the holding in Abraham. These cases can be read in harmony, rather than in opposition.

This assignment of error is overruled.

II.

Defendant next assigns error to the trial court's overruling of his objection to the State's closing argument, and argues that it was an impermissible comment on defendant's decision not to testify. At the end of the State's closing, the following transpired:

[Mr. PANOSH: State]: And there has not been one shred of evidence to say that the defendant was not there that night, robbing the Bi Lo. Ask yourself, ladies and gentlemen of the jury, if you lived 800, 900 miles away from Greensboro, somewhere in Florida, and you were accused of something you didn't do on October the 2nd of 1996, don't you think you'd have one neighbor, one—

Mr. LLOYD: Objection, Your Honor. Improper comment on the defendant's decision not to testify or present evidence.

THE COURT: Overruled.

MR. PANOSH:—one girlfriend, one wife, one fellow employee, one person who knows that you were down there in Florida, and not robbing the Bi-Lo? Couldn't you have that one person here to explain to this jury that it's all a big mistake?

The State's evidence is totally uncontroverted, and there's not been one shred of evidence to say he was anywhere but at the Bi-Lo, robbing the Bi-Lo, that he was anywhere but in Greensboro and High Point, planning the abduction, the kidnapping and the robbery of Ms. Martin and taking part in it. Not one shred of evidence consistent with innocence.

To put this into context, the parties had discussed on the record with the trial court their respective strategies before closing arguments were given. The State expressed its displeasure with the fact that defendant had forecasted an alibi in his...