State v. Price, COA04-816.
| Decision Date | 03 May 2005 |
| Docket Number | No. COA04-816.,COA04-816. |
| Citation | 611 S.E.2d 891 |
| Parties | STATE of North Carolina v. Shon William PRICE, Defendant. |
| Court | North Carolina Supreme Court |
M. Alexander Charns, Durham, for defendant-appellant.
Shon Price (defendant) was charged on warrants with the misdemeanor offenses of: harboring a fugitive; possession of up to one half ounce of marijuana; possession of drug paraphernalia; resisting a public officer and maintaining a dwelling place to keep controlled substances and was indicted on the felony charges of: delivery of methamphetamine; delivery of marijuana and habitual felon. All charges against the defendant resulted from a series of activities on 4 February 2003. Defendant waived his preliminary hearing on both the felony and misdemeanor charges in district court and the court issued orders transferring the misdemeanor charges to superior court with the felonies as related offenses. Defendant was indicted on the felony charges, but the misdemeanor charges contained in the warrants were never included in an indictment. At a jury trial conducted in superior court defendant was found guilty of possession of marijuana; possession of drug paraphernalia; resisting a public officer; maintaining a dwelling place to keep controlled substances; delivery of methamphetamine and delivery of marijuana. Defendant admitted to the habitual felon charge after his conviction of these charges. The court dismissed the harboring a fugitive charge at the close of the State's evidence.
At trial the State's evidence tended to show that on 4 February 2003 officers went to defendant's mother's house looking for a fugitive. Defendant lived in a shed behind his mother's house. Defendant confronted the officers and ordered them off the property at which time he was handcuffed and patted down. Rolling papers and a marijuana roach were found on defendant's person. Defendant gave two women at the scene, both admitted methamphetamine addicts, drugs to conceal from the police. Defendant gave one woman ten grams of marijuana and the other a pill bottle containing methamphetamine which the women secreted on their persons. When the women discovered that they would be searched and a drug dog was en route, they voluntarily gave the drugs to the officers and stated that defendant had given them the drugs to hide. No drugs were found in defendant's shed. The only evidence presented at trial linking defendant to the drugs found on the women was their testimony that defendant gave the drugs to them.
While in pretrial confinement at the Henderson County detention facility, defendant placed telephone calls to his mother. These calls were recorded, as were all inmate calls at the facility. The evidence presented at trial showed the facility's Evercom system plays a recording to recipients of calls from inmates which states:
Hello, this is a collect call from [Shon] an inmate at the county jail. To accept charges press 0 to refuse charges press... This call is subject to monitoring and recording. Thank you for using Evercom.
In his calls defendant used profanity, made erroneous statements regarding the length of the sentence he was facing, and made disparaging remarks regarding his appointed counsel. Prior to trial, defendant filed a motion to suppress the recordings of his calls from jail. Defendant's motion was heard and denied by the trial court.
Defendant's first argument is that the trial court lacked jurisdiction to try the misdemeanor charges against him as they had not been tried in district court and subsequently appealed to superior court, nor had they been included in an indictment. The North Carolina Constitution provides in part, "[e]xcept in misdemeanor cases initiated in the District Court Division, no person shall be put to answer any criminal charge but by indictment, presentment, or impeachment." N.C. Const., art. I, § 22. A criminal case may be tried in superior court on a warrant only on an appeal from a conviction at trial in a lower court with jurisdiction over the offense. State v. Guffey, 283 N.C. 94, 194 S.E.2d 827 (1973).
Jurisdiction over misdemeanor offenses is set forth in N.C. Gen.Stat. § 7A-271 which states in part:
(a) The superior court has exclusive, original jurisdiction over all criminal actions not assigned to the district court division by this Article, except that the superior court has jurisdiction to try a misdemeanor:
(1) Which is a lesser included offense of a felony on which an indictment has been returned, or a felony information as to which an indictment has been properly waived; or
(2) When the charge is initiated by presentment; or
(3) Which may be properly consolidated for trial with a felony under G.S. 15A-926;
(4) To which a plea of guilty or nolo contendere is tendered in lieu of a felony charge; or
(5) When a misdemeanor conviction is appealed to the superior court for trial de novo, to accept a guilty plea to a lesser included or related charge.
(b) Appeals by the State or the defendant from the district court are to the superior court. The jurisdiction of the superior court over misdemeanors appealed from the district court to the superior court for trial de novo is the same as the district court had in the first instance, and when that conviction resulted from a plea arrangement between the defendant and the State pursuant to which misdemeanor charges were dismissed, reduced, or modified, to try those charges in the form and to the extent that they subsisted in the district court immediately prior to entry of the defendant and the State of the plea arrangement.
(c) When a district court is established in a district, any superior court judge presiding over a criminal session of court shall order transferred to the district court any pending misdemeanor which does not fall within the provisions of subsection (a), and which is not pending in the superior court on appeal from a lower court.
Additionally, however, N.C. Gen.Stat. § 15A-922(g) provides, "[w]hen the prosecution of a misdemeanor is initiated in the superior court as permitted by G.S. 7A-271, the prosecution must be upon information or indictment." (Emphasis added).
Here, defendant's misdemeanor charges properly could be joined with the felony charges pending in superior court under N.C. Gen.Stat. § 15A-926 as they arose from the same series of acts or transactions as the felony charges. This allows the misdemeanor charges to be tried in superior court rather than district court, however, as discussed supra, charges must be before the superior court on presentment, information or indictment. These misdemeanor charges never were included in an indictment and were before the superior court on warrants only. This precluded the superior court from exercising jurisdiction over the misdemeanor charges. Because the trial court did not have jurisdiction over the misdemeanor charges against defendant we vacate the judgments entered on those charges.
Defendant next contends the trial court erred as a matter of law by conducting his criminal trial during a "civil session" of court. "For sessions of court designated for the trial of civil cases only, no grand juries shall be drawn and no criminal process shall be made returnable to any civil session." N.C. Gen.Stat. § 7A-49.2(b)(2004).
Defendant's argument is based solely on the cover page of the official court transcript which indicates it is a transcript of proceedings which occurred during the "September 15th, 2003 Civil Session...." In spite of this designation there is ample evidence in the record to show the session of court during which defendant's trial took place was both a criminal and civil session. The Master Court Calendar for the Fall Sessions 2003 published by the Administrative Office of the Courts (AOC) designates the 15 September 2003 session of Superior Court of Henderson County as criminal and civil, a point conceded by defendant in his brief. Also, in his introduction to the jury pool, the trial judge stated "Good afternoon, ladies and gentlemen, I'd like to welcome you to your jury service for this — part of this week here in Henderson County Criminal Superior Court." Accordingly, we find it clear that the transcript cover sheet designation of the session as civil was simply a scrivener's error. This assignment of error has no merit and therefore is overruled.
Defendant also asserts that the trial judge, the Honorable E. Penn Dameron, did not have a commission to conduct criminal court in Henderson County for the 15 September 2003 session of court. Although defendant failed to object to Judge Dameron's commission status at trial his assertion constitutes a jurisdictional issue which may be raised for the first time on appeal. N.C.R.App. P. 10(a). The defendant also failed to assign error to this issue. However, even in the absence of an assignment of error, our Supreme Court has continued to apply the old rule of appellate procedure allowing the issue of lack of subject matter jurisdiction to be raised for the first time on appeal. See State v. Wallace, 351 N.C. 481, 503, 528 S.E.2d 326, 341, cert. denied, 531 U.S. 1018, 121 S.Ct. 581, 148 L.Ed.2d 498 (2000) ().
Defendant presents no evidence to suggest Judge Dameron did not have such a commission, however. The Administrative Office of the Court's Master Court Calendar for the Fall 2003 sessions of court shows that the 15 September 2003 session of superior court in Henderson County was to be conducted by a judge ...
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