State v. Johnson ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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
A p p e l l a t e P r o c e d u r e .
NO. COA13-872
NORTH CAROLINA COURT OF APPEALS
Filed: 21 January 2014
STATE OF NORTH CAROLINA,
v. Rowan County
Nos. 11 CRS 054373, 004870
JASON WYLIE JOHNSON,
Defendant.
Appeal by defendant from judgment entered 20 February 2013
by Judge W. Erwin Spainhour in Rowan County Superior Court.
Heard in the Court of Appeals 6 January 2014.
Roy Cooper, Attorney General, by Allison A. Angell,
Assistant Attorney General, for the State.
Richard J. Costanza, for defendant-appellant.
MARTIN, Chief Judge.
Defendant Jason Wylie Johnson was indicted for misdemeanor
larceny and felonious breaking or entering a motor vehicle
(principal felony). He also was later indicted as a habitual
felon. A jury found defendant guilty of the principal felony,
and he then entered a guilty plea to the habitual felon charge.
The facts relevant to the issue on appeal are that Jerry
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Dean, a North Carolina Alcohol Law Enforcement agent, observed
defendant break into a car belonging to Jason Carey. Agent Dean
spoke with Mr. Carey who reported that a GPS, camera, purse, and
car jack were missing from his car. When Agent Dean confronted
defendant, he admitted to taking the items out of Mr. Carey’s
car and said that they were in his vehicle.
During the charge conference for the principal felony
trial, defendant sought to introduce into evidence a signed plea
transcript and have the court accept his guilty plea to the
habitual felon charge. The trial court refused to accept the
signed plea transcript and defendant’s plea. Defendant further
explained that he wanted to introduce the plea so his habitual
felon status would not be speculative, and he could inform the
jury that he faced a minimum of 66 months in prison if found
guilty of the principal felony. The trial court again denied
defendant’s motion.
The jury was instructed as to the elements of the principal
felony and returned a guilty verdict. The trial court then
accepted defendant’s guilty plea to the habitual felon charge
and sentenced him to 90 to 117 months in prison. Defendant
appeals.
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Defendant asserts that during his closing argument for the
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principal felony trial, he should have been allowed to inform
the jury, without mentioning the word “habitual,” that if found
guilty of the principal felony he faced a minimum sentence of 66
months in prison because of his habitual felon status. We
disagree.
Defendant’s argument is based on N.C.G.S. § 7A-97, which
provides that “[i]n jury trials the whole case as well of law as
of fact may be argued to the jury.” N.C. Gen. Stat. § 7A-97
(2013). In this case, the trial court’s ruling involved a
question of law because it refused to allow defendant to argue a
point of law to the jury which N.C.G.S. § 7A-97 allows. As a
result, we apply a de novo standard of review. See State v.
Biber, 365 N.C. 162, 168, 712 S.E.2d 874, 878 (2011). Under de
novo review, we “consider the matter anew and freely substitute
[our] own judgment for that of the lower tribunal.” State v.
Williams, 362 N.C. 628, 632–33, 669 S.E.2d 290, 294 (2008)
(internal quotation marks omitted).
Defendant acknowledges, in his brief, that we have
previously rejected similar arguments in State v. Wilson, 139
N.C. App. 544, 533 S.E.2d 865, disc. review denied, 353 N.C.
279, 546 S.E.2d 394 (2000), appeal after remand, 149 N.C. App.
233, 562 S.E.2d 304 (2002), and State v. Dammons, 159 N.C. App.
284, 583 S.E.2d 606, disc. review denied, 357 N.C. 579, 589
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S.E.2d 133 (2003), cert. denied, 541 U.S. 951, 158 L. Ed. 2d 382(2004). Defendant, however, argues that this case is
distinguishable because he “effectively admitted to his habitual
felon status before closing arguments,” and he did not intend to
use the word “habitual” in his closing argument. To determine
the merits of these distinctions, we review Wilson and Dammons.
In Wilson, the defendant argued that he should have been
allowed to inform the jury during his closing argument at the
principal felony trial that if found guilty of the principal
felony he might face a maximum of 210 months in prison because
of his habitual felon status. Wilson, 139 N.C. App. at 547, 533
S.E.2d at 868. In Wilson, we concluded that the defendant could
not “argue to the jury the punishment he might receive as a[]
habitual felon if found guilty of the principal offense.” Id.
at 549, 533 S.E.2d at 869. In reaching this conclusion, we
observed that a defendant does have “the right to inform the
jury of the punishment that may be imposed upon conviction of
the crime for which he is being tried.” Id. at 548, 533 S.E.2d
at 868 (emphasis added) (internal quotation marks omitted).
However, this principle does not stand for the proposition that
a defendant can “inform the jury, during a principal felony
trial, of the possible maximum sentence which might be imposed
upon a[] habitual felon adjudication.” Id.-5-
We further noted that, N.C.G.S. § 14-7.5 requires
bifurcation of the principal felony trial and the habitual felon
trial. Id. This bifurcation achieves three purposes. First,
it prevents arguments relating to habitual felon status during
the principal felony trial because the habitual felon
“indictment [is] revealed to the jury only upon conviction of
the principal felony.” Id. Second, bifurcation avoids
potential prejudice “and further precludes the jury from
contemplating what punishment might be imposed were defendant
convicted of the principal felony and subsequently adjudicated
a[] habitual felon.” Id. at 548, 533 S.E.2d at 868–69.
Finally, bifurcation allows for two different standards of proof
in the principal felony trial and the habitual felon trial. Id.
at 549, 533 S.E.2d 869.
In Dammons, the defendant sought to inform the jury during
his closing argument that if found guilty of the principal
felony he would be sentenced as a Class C felon because of his
status as a habitual felon. Dammons, 159 N.C. App. at 295, 583
S.E.2d at 613. The defendant argued that his situation differed
from Wilson because he had been previously adjudicated a
habitual felon, and, as a result, he could not relitigate his
habitual felon status. Id. at 296, 583 S.E.2d at 613. The
defendant in Dammons, however, did litigate his habitual felon
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status, and we held that Wilson’s holding that a defendant
cannot argue the punishment he might receive if found guilty of
a principal felony precluded the defendant’s argument. Id.While defendant argues that his case is unlike Wilson and
Dammons because he “effectively admitted to his habitual felon
status before closing arguments” in the principal felony trial
by introducing a plea transcript and his plea to the habitual
felon charge, we do not find that this distinction warrants a
different result. In Wilson, we clearly recognized that
N.C.G.S. § 14-7.5 establishes an order of proceedings which
requires that the principal felony trial take place before the
habitual felon trial. Wilson, 139 N.C. App. at 548, 533 S.E.2d
at 868. Therefore, defendant’s distinction is without merit
because he could not plead to the habitual felon charge before
the completion of the principal felony trial.
Defendant further attempts to distinguish Wilson by
asserting that the concern in Wilson was that the defendant
would reveal the existence of the habitual felon indictment to
the jury, and, in this case, defendant was not going to use the
word “habitual” in his closing argument. While in Wilson we did
note that a habitual felon indictment is revealed to a jury only
after a defendant is found guilty of the principal felony, this
observation was used to explain that there must be a verdict in
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the principal felony trial before addressing a defendant’s
habitual felon status. Hence, this distinction is without merit
regardless of whether the word “habitual” is used, because the
language of N.C.G.S § 14-7.5 “logically preclude[s] argument of
issues pertaining to the habitual felon proceeding, specifically
and particularly including punishment, during the principal
felony trial.” Id. Therefore, defendant’s attempts to
distinguish his case are without merit and we find no error.
No Error.
Judges ERVIN and McCULLOUGH concur.
Report per Rule 30(e).