State v. Morrow.
| Decision Date | 21 June 2011 |
| Docket Number | NO. COA10-509,COA10-509 |
| Court | North Carolina Court of Appeals |
| Parties | STATE OF NORTH CAROLINA, v. DAMION JERMAINE MORROW. |
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Appeal by defendant from judgments entered 12 December 2008 by Judge Susan C. Taylor in Rowan County Superior Court. Heard in the Court of Appeals 26 October 2010.
Attorney General Roy Cooper, by Assistant Attorney General Catherine F. Jordan, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate Defender Katherine Jane Allen, for Defendant.
Defendant Damion Jermaine Morrow appeals from judgments sentencing him to two consecutive terms of a minimum of ten months and a maximum of twelve months imprisonment in the custody of the North Carolina Department of Correction based upon his convictions for threatening a court officer. In addition, Defendant was sentenced to two consecutive terms of 120 days imprisonment in the custody of the North Carolina Department of Correction, both of whichwere suspended, based upon Defendant's misdemeanor convictions for communicating threats. After careful consideration of Defendant's challenges to the trial court's judgments in light of the record and the applicable law, we find no error in the proceedings leading to the trial court's judgments and conclude that Defendant's motion for appropriate relief on appeal should be denied.
On 17 January 2006, Lieutenant J.R. Schmierer and Officer Phillip Reccardi of the East Spencer Police Department served Defendant with a felony warrant. 1 At the time of his arrest, Defendant became extremely combative and made a number of abusive comments to Lieutenant Schmierer and Officer Reccardi. The arresting officers transported Defendant to an intake facility and commenced the booking process, at which point Defendant stated in the presence of both officers that he was going to look up their addresses and get one of his "mules" to kill them. In addition, Defendant went on to say that he "was going to get [District Attorney] Bill Kenerly's address and that fat ass [Assistant District Attorney] Karen Biernacki, too."
At trial, Officer Reccardi testified that the term "mule" was a drug-related street term which referred to a person's fellow worker or associate. According to Lieutenant Schmierer, a "mule" was someone who worked for you or did your bidding. Both Lieutenant Schmierer and Officer Reccardi knew or were familiar with several of Defendant's associates, whom they believed to be the "mules" mentioned in Defendant's comments. Both officers believed that these "mules" were dangerous and would likely be willing to carry out Defendant's threats. Specific testimony was offered as to the bad acts and past crimes of Defendant's associates of which Lieutenant Schmierer and Officer Reccardi had knowledge.
On 24 April 2006, the Rowan County grand jury returned bills of indictment charging Defendant with a single count of communicating threats against Lieutenant Schmierer and Officer Reccardi, with threatening Mr. Kenerly, and with threatening Ms. Biernacki. On 2 September 2008, the Rowan County grand jury returned superseding indictments charging Defendant with communicating a threat to Lieutenant Schmierer, communicating a threat to Officer Reccardi, threatening Mr. Kenerly, and threatening Ms. Biernacki. In addition, the State notified Defendant that it would seek to establish the existence of the statutory aggravating factors that "[t]he offense was committed for the purpose of [] avoiding orpreventing a lawful arrest;" that "[t]he offense was committed to disrupt the lawful exercise of a governmental function or the enforcement of the laws" or to "hinder the lawful exercise of a governmental function or the enforcement of the laws; " and that Defendant "committed the offense while on pretrial release from another charge," as well as to assess a prior record point because "the offense was committed while the defendant was on supervised or unsupervised probation, parole, or post-release supervision."
The charges against Defendant came on for trial before the trial court and a jury at the 8 December 2008 criminal session of the Rowan County Superior Court. On 12 December 2008, the jury returned verdicts convicting Defendant as charged. On the same date, the jury returned a separate verdict finding that "the defendant committed the offense while on pretrial release" and that "the defendant committed the offense while on probation." At the ensuing sentencing hearing, the trial court found that Defendant had five prior convictions for misdemeanor sentencing purposes and should be sentenced as a Level III misdemeanant; that Defendant had accumulated nine prior record points for felony sentencing purposes and should be sentenced as a Level IV felon; that Defendant should be sentenced in the aggravated range for felony sentencing purposes; that Defendant should be imprisoned in the custody of the North Carolina Department of Correction for two consecutive terms of a minimum often months and a maximum of twelve months based upon his convictions for threatening a judicial officer; and that Defendant should be sentenced to two consecutive terms of 12 0 days imprisonment in the custody of the North Carolina Department of Correction based upon his convictions for communicating threats. However, the trial court suspended Defendant's sentences for communicating threats and placed Defendant on supervised probation for a period of sixty months on the condition that Defendant comply with the usual terms and conditions of probation and that Defendant pay the community service fee; be on intensive probation for six months; perform fifty hours of community service; submit to warrantless searches for stolen goods, controlled substances, contraband, child pornography, paraphernalia, and weapons; not use, possess, or control any controlled substances that had not been prescribed for his use; supply a breath or urine sample for drug testing purposes upon request; and not go near certain persons or upon certain premises. Defendant noted an appeal to this Court from the trial court's judgment. On 21 July 2010, Defendant filed a motion for appropriate relief with this Court pursuant to N.C. Gen. Stat. §§ 15A-1415(b)(3) and 15A-1418(a).
First, Defendant contends that the trial court erred by denying his motion to sever the communicating threats charges from the threatening a court officer charges. We do not believe that Defendant is entitled to appellate relief on the basis of this argument.
"Pursuant to [N.C. Gen. Stat.] § 15A-927(a), a defendant must make a motion for severance of offenses before trial unless the basis for the motion is a ground not previously known." State v. Walters, 357 N.C. 68, 79, 588 S.E.2d 344, 351, cert. denied, 540 U.S. 971, 157 L. Ed. 2d 320, 124 S. Ct. 442 (2003). In the event that a defendant becomes aware of the existence of grounds for making such a motion after the start of trial, "[he or she] may move for severance during trial but no later than the close of the State's evidence." Id. A defendant waives his right to severance "'if the motion is not made at the appropriate time.'" Id. (quoting N.C. Gen. Stat. § 15A-927(a)(1)).
The record clearly establishes that Defendant did not seek a severance before trial and only requested such relief after his trial was well underway. Even so, Defendant argues that his severance motion was made in a timely manner because he moved for severance prior to the close of the State's evidence on the basis of a ground of which he had not previously known and that the trial court erred by making a contrary determination. In essence, Defendant arguesthat the communicating threats cases should have been severed from the threatening a court officer cases because "a substantial amount of evidence regarding [Defendant]'s acquaintances and the bad acts, crimes, and misdeeds of those acquaintances" was presented to the jury at Defendant's trial despite the fact that this evidence was only relevant to the issue of Defendant's guilt of communicating threats. According to Defendant, he "could not make a motion to sever prior to trial [on these grounds]. . . because the State did not provide [him], during discovery, with the acquaintance evidence upon which the State intended to rely." We do not find this argument convincing.
Defendant was charged with two counts of communicating threats in violation of N.C. Gen. Stat. § 14-277.1. In order to obtain Defendant's conviction for committing this offense, the State was required to prove that:
N.C. Gen. Stat. § 14-277.1(a). The evidence upon which Defendant relied in seeking a severance was admitted for the purpose of proving that Defendant's threat was "made in a manner and under circumstances which would cause a reasonable person to believe that the threat [was] likely to be carried out[,] " N.C. Gen. Stat. § 14-277.1(a)(3), and that Lieutenant Schmierer and Officer Reccardi "believe[d] that the threat [would] be carried out." N.C. Gen. Stat. § 14-277.1(a)(4). The indictment charging Defendant with...
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