State v. Boltinhouse , 49 N.C. App. 665 ( 1980 )

272 S.E.2d 148 (1980)

STATE of North Carolina
v.
Frank M. BOLTINHOUSE.

No. 8012SC523.

Court of Appeals of North Carolina.

December 2, 1980.

Atty. Gen. Rufus L. Edmisten by Sp. Deputy Atty. Gen. Ann Reed, Raleigh, for the State.

Downing, David, Vallery, Maxwell & Hudson by Edward J. David, Fayetteville, for defendant-appellant.

WHICHARD, Judge.

By his first assignment of error defendant contends the trial court erred in denying his motion to dismiss the indictment for the State's failure to afford him a speedy trial in accordance with G.S. 15A-701.

G.S. 15A-701(a1)(3) provides:

When a charge is dismissed, other than under G.S. 15A-703, or a finding of no probable cause pursuant to G.S. 15A-612, and the defendant is afterward charged with the same offense or an offense based on the same act or transaction or on the same series of acts or transactions connected together or constituting parts of a single scheme or plan, [his trial shall commence] within 120 days from the date that the defendant was arrested, served with criminal process, waived an indictment, or was indicted, whichever occurs last, for the original charge.^[1]

Defendant contends that the 24 May 1979 warrant charged him with receiving and having the same stolen goods which were the subject of his 24 September 1979 indictment for felonious possession; that he was therefore "afterward charged [in the 24 September 1979 indictment] with ... an offense based on the same act or transaction or on the same series of acts or transactions" (as were involved in the 24 May 1979 arrest warrant) within the meaning of that phrase as used in G.S. 15A-701(a1)(3); that he was indicted 122 days after the "original charge" within the meaning of that phrase as used in G.S. 15A-701(a1)(3); and that therefore his motion to dismiss for non-compliance with the statute, by failure to bring him to trial within 120 days of the "original charge", should have been granted.

The phrase "or a finding of no probable cause pursuant to G.S. 15A-612" was inserted in G.S. 15A-701(a1)(3) by amendment of the 1979 General Assembly. The placement of the amendment within the statute, and the language used, render the statute ambiguous; and it is admittedly subject to the interpretation for which defendant contends. It is equally subject, however, to an interpretation that when a finding of no probable cause is entered pursuant to G.S. 15A-612, the computation of time for the purpose of applying the Speedy Trial Act commences with the last of the listed items ("arrested, served with criminal process, waived an indictment, or was indicted") relating to the new charge rather than the original charge.

G.S. 15A-612(B) clearly provides that a finding of no probable cause at a probable-cause hearing does not preclude the State from instituting a subsequent prosecution for the same offense. It is well established that

[s]tatutes dealing with the same subject matter must be construed in pari materia, and harmonized, if possible, to give effect to each. Any irreconcilable ambiguity should be resolved so as to effectuate the true legislative intent.

12 Strong's North Carolina Index 3d, Statutes § 5.4, pp. 69-70, and cases cited. Construing the ambiguity in G.S. 15A-701(a1)(3) in light of the clearly expressed policy in G.S. 15A-612(b) of permitting subsequent prosecution for the same offense when a finding of no probable cause has been entered, we find the construction of G.S. 15A-701(a1)(3) for which defendant contends untenable. We do not believe the General Assembly intended by the 1979 amendment to G.S. 15A-701(a1)(3) to carve out an exception to the clear intent of G.S. 15A-612(b) to permit subsequent prosecution for the same offense where a finding of no probable cause has been entered; and, as here, that would often be the result if we construed the intent of the phrase "or a finding of no probable cause pursuant to G.S. 15A-612" in G.S. 15A-701(a1)(3) as defendant contends we should. On the contrary, we believe the General Assembly must have intended, in amending the statute to include this phrase, to preserve the policy set forth in G.S. 15A-612(b) of permitting prosecution for the same offense after a finding of no probable cause has been entered.

Construing the ambiguous language of G.S. 15A-701(a1)(3) in light of the clear intent of G.S. 15A-612(b), we find that the period for computation of the time within which trial must be commenced under G.S. 15A-701(a1)(3) began to run from the date of defendant's indictment on the new charge rather than from the date of his arrest on the "original charge", as he contends. The 24 September 1979 indictment of defendant thus constituted the last in the relevant sequence of events, and 24 September 1979 rather than 24 May 1979 (the date of the original arrest warrant) was the date on which the 120 day period prescribed by G.S. 15A-701(a1)(3) for commencement of trial began to run. Defendant's trial commenced 7 January 1980, 105 days later. The State, therefore, complied with the 120 day requirement imposed by the Speedy Trial Act as we interpret it. See State v. Brady, 299 N.C. 547, 264 S.E.2d 66 (1980); State v. Rice, 46 N.C.App. 118, 264 S.E.2d 140 (1980). This assignment of error is overruled.

Defendant asserts in his second assignment of error that his motion for dismissal should have been granted because the State failed to prove that he possessed the stolen items of property "for a dishonest purpose of resale." The stolen property for the possession of which defendant was indicted was located by its rightful owners subsequent to its disappearance at a pawn shop which was operated by the defendant. The basis of defendant's argument is that he was merely an employee of the pawn shop and had no ownership interest. The record contains ample evidence, however, that defendant, rather than the corporation which employed him, possessed the stolen items and that he possessed them for the purpose of resale. Evidence for the State tended to establish defendant's extensive involvement with a theft ring, in which he often directed the actual perpetrators of the thefts as to which houses they should break and enter. The perpetrators then brought the goods stolen from those houses to defendant's home, where defendant purchased them for the purpose of resale. This assignment of error is without merit and is overruled.

Defendant's third assignment of error is that the trial court erred in not adequately and fairly instructing the jury on "non-felonious possession of stolen property." While under the evidence in this case the trial court may not have been required to charge the jury on non-felonious possession, it did so; and we find the instructions entirely adequate. See N.C.P.I.-Criminal 216.46. This assignment of error is overruled.

By his fourth assignment of error defendant contends that the trial court erred in sentencing him as a felon, in that the evidence did not establish a value of the stolen goods in excess of $400. The record contains plenary evidence from which the jury could have found that defendant possessed the stolen goods knowing them to have been stolen by a breaking and entering in violation of G.S. 14-54. Such possession is a felony "without regard to the value of the property in question." G.S. 14-72(c). This assignment of error is overruled.

Defendant by his fifth assignment of error contends that he was prejudiced by the District Attorney's comments to the jury "that the case was important, and had wide-ranging implications" and that the jury should "use their sixth sense" to find the facts. Our Supreme Court has consistently held that counsel must be allowed wide latitude in argument. "Whether counsel abuses this privilege is a matter ordinarily left to the sound discretion of the trial judge, and we will not review the exercise of this discretion unless there be such gross impropriety in the argument as would be likely to influence the verdict of the jury." State v. Covington, 290 N.C. 313, 328, 226 S.E.2d 629, 640 (1976).

The comments of the District Attorney here regarding the importance of the case were not abusive or inflammatory. They did not suggest conclusions to the jury which were impermissible under the evidence. Further, the trial court found as a fact that on its own motion it had sustained its objection to that argument and instructed the jury to disregard it.

As to the comment that the jury should "use their sixth sense" to find the facts, the trial court instructed the members of the jury that it was their duty to follow the court's instructions and not be guided by what the attorneys argued to them. We find no abuse of discretion in the trial court's having dealt with the comment in this manner.

Finally, in view of the extensive evidence against the defendant, we do not believe he could have been prejudiced by either of the District Attorney's comments to which error is assigned. This assignment of error is overruled.

We find that the defendant had a fair trial free from prejudicial error.

No error.

CLARK and WEBB, JJ., concur.

NOTES

[1] This provision applied, at the time of defendant's indictment, to a defendant "who is arrested, served with criminal process, waives an indictment or is indicted, on or after October 1, 1978, and before October 1, 1980." Defendant here was indicted 24 September 1979.