State v. Simmons

• Decision Date: 06 December 1983
• Docket Number: No. 8325SC60,8325SC60
• Citation: 65 N.C.App. 294,309 S.E.2d 493
• Parties: STATE of North Carolina v. Stephen Douglas SIMMONS. STATE of North Carolina v. Hal Stacey HALLMAN.
• Court: North Carolina Court of Appeals

Page 493

309 S.E.2d 493

65 N.C.App. 294

STATE of North Carolina v. Stephen Douglas SIMMONS.

STATE of North Carolina v. Hal Stacey HALLMAN.

No. 8325SC60.

Court of Appeals of North Carolina.

Dec. 6, 1983.

Atty. Gen. Rufus Edmisten by Associate Atty. Gen. Floyd M. Lewis, Raleigh, for the State.

Rodney S. Toth, Charlotte, for defendant Stephen Douglas Simmons.

Beverly T. Beal, P.A., by Beverly T. Beal, Lenoir, for defendant Hal Stacey Hallman.

BECTON, Judge.

I

The dispositive issues on appeal relate to the joinder of defendants' cases for trial and to effective assistance of counsel. Both defendants have appealed, but because we are granting defendant Simmons's motion for appropriate relief, we need not consider the merits of his appeal.

II

The State presented evidence tending to show that on 7 January 1982, around 7:00 p.m., Raymond Duff arrived at the residence of Clyde Coulter, and noticed a Volkswagen Beetle parked adjacent to the house. Shortly afterward, defendant Hal Hallman arrived at the residence, talked with Coulter for a while, and left. Approximately fifteen minutes after Hallman's departure, Duff and Coulter left. Duff drove the Volkswagen Beetle and Coulter drove a green station wagon which Duff had not seen upon his arrival. Duff and Coulter drove to an abandoned white house where Coulter left the station wagon. Coulter then drove the Volkswagen Beetle to a post office where he and Duff met Hallman and Charles Lay, who were in a Volkswagen Rabbit. Hallman and Coulter conversed, after which Coulter and Duff returned to the abandoned white house where they were subsequently joined by Hallman and Lay. Again Hallman and Coulter conversed. Shortly afterward, Hallman drove the green station wagon out of the driveway and was followed by the Volkswagen Rabbit and the Volkswagen Beetle to a Hickory parking lot where Hallman, Lay, and Coulter all got out and talked. Hallman returned from making a telephone call and talked again with Coulter and Lay, after which they all returned to their cars and left in the same procession until the lead green station wagon pulled over onto the shoulder of the road at a bridge. Hallman got into the Rabbit and the two vehicles proceeded to a convenience store where there was a parked yellow Capri containing defendant Stephen Simmons.

In the car with Simmons was S.B.I. Agent W.M. Campbell. Campbell testified that as he and Simmons were discussing the proposed purchase of 63 pounds of marijuana from Simmons, a bronze Volkswagen Rabbit and blue Volkswagen Beetle arrived in the parking lot of the convenience store. Campbell nervously asked Simmons who those people were, and Simmons assured him that "everything was all right," that those people "were just friends." After talking with Hallman, who was a passenger in the Rabbit, Simmons returned and told Campbell that the vehicle carrying the marijuana ran out of gas at a bridge, and that the transaction could not be completed at the agreed upon wildlife access area. After Campbell balked at "doing the deal" at the abandoned vehicle, Simmons agreed to pick up the marijuana from the station wagon and deliver it to the access area.

Raymond Duff testified that he observed Simmons remove some garbage bags from the station wagon, and that he and Coulter followed Simmons to the wildlife access area. When Simmons opened the rear of the car, exposing the large garbage bags, law enforcement officers raided the vehicle.

Simmons, Duff, and Coulter were arrested at the scene. Hallman and Lay were arrested at the convenience store. The large garbage bags contained 63 one-pound bags of a green vegetable matter, subsequently analyzed to be marijuana.

Defendant Hallman did not testify and presented no evidence, except to show, through cross-examination, that he was not at the access area, that no marijuana was found on his person, and that his fingerprints were not found on the bags. Defendant Simmons presented evidence that an informant, against whom the State had agreed to drop charges, pressured him into committing the offense.

III Defendant Hallman's Appeal

Defendant Hallman contends that the trial court erred in denying his motion for severance of his trial from that of Simmons. For the following reasons, we agree and grant Hallman a new trial.

A trial judge's ruling on a motion for severance is discretionary and will not be disturbed on appeal unless there is a showing that a defendant has been denied a fair trial by joinder. State v. Brower, 289 N.C. 644, 224 S.E.2d 551 (1976). Each case turns on its own facts, however, and an abuse of discretion may be shown when the defenses of the co-defendants are antagonistic, and "the conflict in the defendants' respective positions at trial is of such a nature that, considering all of the other evidence in the case, a defendant was denied a fair trial." State v. Nelson, 298 N.C. 573, 587, 260 S.E.2d 629, 640 (1979); N.C.Gen.Stat. § 15A-927(c)(2) (1978).

Defendant Simmons asserted an entrapment defense in which he testified that he was pressured into committing the offense by a police informant. On the other hand, Hallman did not testify because of a perceived weak case against him.

The State's evidence, in its case in chief against Hallman, was not only circumstantial, but it was also sparse. Other than Duff's and S.B.I. Agent Campbell's testimony that, on a couple of different occasions, they saw, but did not hear, Hallman talk with Coulter or Simmons, and Duff's further testimony that Hallman was one of two people he saw driving the green station wagon on the night in question, no direct references to Hallman were made in the State's case. Of course, S.B.I. Agent Campbell was allowed to testify over Hallman's objection that Simmons told him (Campbell) that "the vehicle that had the marijuana in it had run out of gas and was located at the bridge." It is also true that Hallman, according to Duff, was the person driving the green station wagon when it ran out of gas on a bridge. But it was dark at all relevant times the green station wagon was being driven; neither Duff nor Campbell ever looked inside the green station wagon; and the green station wagon was left unobserved for a period of time. Further, the facts and declarations of Coulter and Simmons provided the State with no additional ammunition against Hallman since the parties were not charged with conspiracy.

The State's strongest case against Hallman was presented when codefendant Simmons testified. Simmons first sought to show that he was entrapped by a police informant, Bruce Garavagila, who, incidentally, owned the green station wagon. Simmons later testified that he had talked with Hallman at the convenience store about the plan--the dope deal. Hallman told him that the station wagon had run out of gas and that Simmons had to go get it. Hallman had also advised him that Coulter and Duff would be there. As a result of his conversation with Hallman, Simmons drove to the abandoned station wagon and retrieved the garbage bags. (Note--Agent Campbell had already testified that Simmons told him, after talking with Hallman, that the station wagon carrying the marijuana had run out of gas.)

Had the trials not been joined, the jury may not have heard the foregoing testimony against defendant Hallman. In a separate trial, Simmons could not have been compelled to testify against Hallman, and Campbell's testimony would have been inadmissible. The evidence at trial against Hallman was circumstantial. There was no evidence that marijuana was in the station wagon when he drove it, and the evidence showed that the station wagon was abandoned, and left unobserved, for a period of time. Hallman was not at the access area when the raid occurred and the marijuana was seized from Simmons's Capri. No marijuana was found on Hallman's person and his fingerprints were not on the bags.

For the foregoing reasons, we conclude that Hallman was denied a fair trial by the joinder. Because we are ordering a new trial, we need not consider Hallman's remaining assignments of error as they are not likely to recur at a new trial.

IV Defendant Simmons's Motion for Appropriate Relief

Defendant Simmons contends that he was denied effective assistance of counsel because his attorney did not advise him of a plea bargain offer.

According to affidavits filed by the assistant district attorney prosecuting this case and by counsel representing three co-defendants, they were all present, along with counsel representing defendant Simmons, at a pre-trial conference in Judge Johnson's chambers at which defendants Hallman and Simmons were offered the opportunity to plead guilty to felonious possession of marijuana. No defendants were present at this conference. According to the affidavit filed by counsel for defendant Simmons, when counsel questioned why defendant Hallman was being offered a plea of felonious possession and not his client, the district attorney replied, "If I gave it to Bev's client (Hallman), I would give it to you." Simmons' counsel...