State v. Simmons

• Decision Date: 21 December 2004
• Docket Number: No. COA03-1272.,COA03-1272.
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Laquez Eugene SIMMONS, Defendant.

606 S.E.2d 133

167 NC App. 512

STATE of North Carolina v. Laquez Eugene SIMMONS, Defendant.

No. COA03-1272.

Court of Appeals of North Carolina.

December 21, 2004.

Attorney General Roy Cooper, by Assistant Attorney General Daniel P. O'Brien, for the State.

Massengale & Ozer, by Marilyn G. Ozer, Chapel Hill, for the defendant-appellant. ELMORE, Judge.

Laquez Simmons (defendant) was indicted on 15 October 2001 for first degree murder, common law robbery, and possession with intent to manufacture, sell, or deliver cocaine. The State moved to join the offenses for trial, and defendant moved to sever. The trial court granted the State's motion for joinder.

The State's evidence tended to show that defendant and Reginald Lee Edwards (the victim) had an ongoing dispute about defendant's treatment of the victim's female companions. The State offered eyewitness testimony of two incidents involving defendant, the 8 April 2001 shooting of the victim and the 3 April 2001 argument giving rise to the robbery charge. Izetta Young, a guest in the victim's home on 3 April while the victim was away at work, testified that defendant entered the home and threatened to punch her in the face. Lynette Smith, the victim's girlfriend, requested that defendant leave. Clifford Moore, another guest present at the time, brought defendant outside to speak with him. Defendant came back inside and attempted to slap Izetta Young across the face. When Ms. Young raised her hands to protect her face, defendant's contact knocked her cellular phone out of her hand. Defendant picked the phone up off the floor and stated that he had a new phone. Lynette Smith again requested that defendant leave the home, and defendant stated in response that he was going to slap her too. Defendant walked out of the home carrying Ms. Young's phone and began dialing on the phone after he stepped outside. When Clifford Moore demanded that defendant return the phone to Ms. Young, defendant exclaimed, "No ... I'm going to shoot everybody out here." The next day, defendant spoke briefly with John Cooley, a cousin of the victim and the person who had purchased Ms. Young's cell phone. Mr. Cooley asked defendant why he took the phone, and defendant stated that he would return the phone. Defendant did in fact bring the phone back to Mr. Cooley, although not the same day as this conversation. Mr. Cooley testified that defendant returned the phone to him a "[c]ouple days before" the date of the shooting.

Regarding the events of 8 April, the State's evidence tended to show that the victim and several acquaintances approached defendant while he was standing outside of a friend's home located in the same mobile home park as the victim's home. The victim asked defendant to apologize to Lynette Smith for the 3 April incident. Defendant refused, whereupon the victim suggested that he and defendant fight right there on the grass. Defendant declined to fight but stated that he was going inside to get a gun. Defendant threatened, "I'm going to shoot everybody." When he arrived back outside, defendant announced that he was "strapped" and lifted his shirt to reveal a gun in his waistband. The victim stated that he did not have a gun and asked defendant to put his gun down. Defendant pulled his gun out and struck the victim in the forehead with the gun's muzzle. The victim struggled to remove the gun from defendant's hands. John Cooley testified that defendant held the gun on the victim's head and shot him. After firing the shot, defendant pushed the gun against the victim's head, causing the victim to fall on his back. Defendant waved the gun around at the onlookers and then fled the scene in a car. Police detectives arriving on the scene interviewed the witnesses, including Clifford Moore. Mr. Moore told the detectives that there had been an argument between the victim and defendant going "back several days," and that this was the dispute over which the victim offered to fight defendant.

Defendant's girlfriend, Denise Hart, gave a statement about the 8 April incident to Detective Jeff Houston on 30 August 2001. On direct examination by defense counsel, Detective Houston testified to this statement given by Ms. Hart. This testimony tended to show that during the events leading up to the shooting, defendant came inside his friend's home and found a gun. In the presence of Ms. Hart, defendant checked that the gun was loaded. Shortly after defendant went back outside, Ms. Hart heard a shot and then looked outside and saw a body lying on the ground. According to Ms. Hart, defendant later told her that the gun had gone off by accident. On cross-examination by the State, Detective Houston testified that on the two previous occasions when he interviewed Ms. Hart, she made no mention of the shooting being an accident.

Defendant's 10 May 2001 statement given to Detective Jeff Houston was admitted at trial without any objection from defendant. This statement contained defendant's account of the two incidents, including his slapping Ms. Young during the phone incident on 3 April. The jury found defendant guilty of first degree murder and common law robbery and not guilty of possession with intent to manufacture, sell, or distribute cocaine. Defendant appeals from judgments entered on the verdicts.

I.

Defendant's first assignment of error relates to the trial court's joinder of the common law robbery charge with the first degree murder charge. Defendant contends that joining these two offenses, separated in time by several days and involving different victims, was prejudicial error. We disagree.

Two or more offenses may properly be joined for trial if the offenses are "based on the same act or transaction or on a series of acts or transactions connected together or constituting parts of a single scheme or plan." N.C. Gen.Stat. § 15A-926(a) (2003) (emphasis added). This Court has held that in ruling upon a motion for joinder, a trial judge must utilize a two-step analysis: (1) a determination of whether the offenses have a transactional connection and (2) if there is a connection, a consideration of whether the accused can receive a fair hearing on the consolidated offenses at trial. State v. Montford, 137 N.C.App. 495, 498, 529 S.E.2d 247, 250, cert. denied, 353 N.C. 275, 546 S.E.2d 386 (2000). The motion to join is within the sound discretion of the trial judge, and the trial judge's ruling will not be disturbed absent an abuse of discretion. State v. Perry, 142 N.C.App. 177, 181, 541 S.E.2d 746, 749 (2001). However, if there is "no transactional connection, then the consolidation is improper as a matter of law." Id. (quoting State v. Owens, 135 N.C.App. 456, 458, 520 S.E.2d 590, 592 (1999)).

We cannot say that joinder of the two offenses was improper as a matter of law. In determining whether offenses are part of the same series of transactions, the following factors must guide the court: "(1) the nature of the offenses charged; (2) any commonality of facts between the offenses; (3) the lapse of time between the offenses; and (4) the unique circumstances of each case." Montford, 137 N.C.App. at 498-99,529 S.E.2d at 250. No single factor is dispositive. Id. Here, the offenses both involved defendant striking another person during an argument; the offenses involved the same dispute between defendant and the victim's female friends; and the time lapse between the offenses was only 5 days. The fact that the victim was not present at the scene of the 3 April events is not a crucial factor in the analysis because the nature of the consolidated offenses is only one factor to be considered.

At the pre-trial hearing on the State's motion for joinder, the trial judge considered several factors, including the factual connection between the two offenses and the time lapse of 5 days. The trial judge found that the confrontation between defendant and the victim on 8 April arose out of defendant's treatment of Ms. Young and Ms. Smith over the past few weeks. The trial judge stated his observations that the two incidents shared the same underlying dispute between the parties and that this dispute "culminated in the acts of [April] 8th." The record indicates that the events of 3 April constituted a critical point in the ongoing dispute between the victim and defendant, which resulted in the argument and struggle on 8 April. As such, we hold that the trial judge did not err in finding a transactional connection between the two offenses.

We must next address whether defendant has shown that the joinder deprived him of a fair hearing on the murder charge. In making this determination, we are mindful that "the question posed is whether the offenses are so separate in time and place and so distinct in circumstances as to render a consolidation unjust and prejudicial to an accused." State v. Bowen, 139 N.C.App. 18, 28, 533 S.E.2d 248, 254 (2000). In the context of joinder of charges, this Court has explained that "[w]hile the admissibility of [the] evidence pursuant to Rule 404(b) is not conclusive evidence of the absence of prejudice, it is a factor that we may consider." Bowen, 139 N.C.App. at 29, 533 S.E.2d at 255. If the offenses had not been joined, then evidence of the 3 April incident would have been admissible at the trial of the first degree murder charge pursuant to N.C.R. Evid. 404(b) for the purpose of showing intent. Rule 404(b) provides that while evidence of a person's prior bad acts is not admissible to show propensity, this evidence may be admissible "for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident." N.C. Gen.Stat. § 8-C1, Rule 404(b) (2003). Our Supreme Court has held that Rule 404(b) is a general rule of inclusion of other bad acts of the defendant, "subject to the single exception that such evidence must be excluded if its only probative value is to show that defendant has the...