Volume 195 — North Carolina Court of Appeals Reports

<bold>1. Confessions and Incriminating Statements — invocation of right to</bold> <bold>counsel — phone call to grandmother from police station — failure to</bold> <bold>show grandmother acting as agent of police — subsequent written</bold> <bold>confession</bold> <block_quote> Officers did not continue to interrrogate defendant after he invoked his right to counsel when they placed a telephone call to defendant's grandmother in Honduras to inform her that defendant was in custody and allowed defendant to speak with his grandmother by speaker phone, and defendant's subsequent written confession resulting from his conversation with his grand-mother was not obtained in violation of his <cross_reference>Fifth Amendment</cross_reference> right to counsel, because: (1) the record was devoid of any evidence tending to show the phone call to defendant's grandmother was made for the purpose of eliciting incriminating statements from defendant or that she was acting as an agent of the police; (2) a suspect in defendant's position would not have felt coerced to incriminate himself by being permitted to speak with his grandmother via speaker phone in the presence of a detective and an interpreter; (3) State questioning or interrogation ceased once defendant invoked his right to counsel; and (4) even if defendant felt pressured into waiving his right to counsel and confessing to police as a result of his conversation with his grand-mother, the <cross_reference>Fifth Amendment</cross_reference> is not concerned with moral and psychological pressures to confess emanating from sources other than official coercion.</block_quote><page_number>Page 182</page_number> <bold>2. Confessions and Incriminating Statements — motion to suppress written</bold> <bold>statements — Vienna Convention on Consular Relations</bold> <block_quote> The trial court did not err in a first-degree murder case by denying defendant's motion to suppress both his 13 September and 15 September written statements based on an alleged violation of his rights to the Vienna Convention on Consular Relations when defendant was a Honduran citizen and was not advised of his right to contact the Honduran consulate under Article 36 of the Vienna Convention because: (1) the applicability of the Vienna Convention to state court proceedings is often limited since even though states may have an obligation to comply with the provisions of the Vienna Convention, the Supremacy Clause of the United States Constitution does not convert violations of treaty provisions into violations of constitutional rights; (2) treaties are contracts between or among independent nations, and thus generally do not create rights that are enforceable in the courts, but instead are rights of the sovereign and not the individual; and (3) the purpose of the Vienna Convention is not to benefit individuals but to ensure the efficient performance of functions by consular posts on behalf of their respective States, and courts have refused to hold suppression of evidence as a remedy for an Article 36 violation.</block_quote> <bold>3. Discovery — statements disclosed on morning of trial — failure to show</bold> <bold>abuse of discretion</bold> <block_quote> The trial court did not abuse its discretion in a first-degree murder case by allowing defendant's roommate and an interpreter to testify at trial as to certain inculpatory statements allegedly made to them by defendant when the State disclosed the testimony on the morning of trial because: (1) the court's findings indicated that it did not believe the State violated the discovery statutes by not providing these statements to defense until the morning of trial since the State obtained one statement on the prior evening and the other statement that morning; and (2) even assuming arguendo that the State did violate the discovery statute provisions, there was no abuse of discretion when defendant did not request a recess or continuance to address this newly disclosed evidence.</block_quote><page_number>Page 183</page_number> <bold>4. Jury — Allen instruction — absence of any indication of deadlock or</bold> <bold>coercion</bold> <block_quote> The trial court did not coerce a verdict by giving an <italic>Allen</italic> instruction pursuant to N.C.G.S. § <cross_reference>15A-1235</cross_reference>(c) at the beginning of the jury's second day of deliberations after the jury had deliberated only three hours on the first day before taking an end-of-day recess where there was no indication that the jury was deadlocked or in any other way open to pressure by the trial court to force a verdict.</block_quote>

<bold>Evidence — prior trial attorney's testimony — alleged privileged</bold> <bold>communications — communication made for purpose of being conveyed by</bold> <bold>attorney to others</bold> <block_quote> The trial court did not err in a second-degree murder and first-degree burglary case by admitting the testimony of defendant's prior trial counsel at the hearing on defendant's motion to withdraw his guilty plea even though defendant contends it violated his attorney-client privilege because: (1) our Supreme Court has noted that if it appears that a communication was not regarded as confidential or that the communication was made for the purpose of being conveyed by the attorney to others, the communication is not privileged; (2) defendant provided the 15 November 2004 information to the attorney precisely for the purpose of conveying it to the prosecutor, and thus that conversation was not a confidential communication to which the attorney-client privilege attached; and (3) in regard to the 30 January 2004 conversation, even assuming without deciding that the conversation was privileged and that defendant did not waive the privilege, defendant failed to demonstrate that he was prejudiced by the disclosure.</block_quote> <bold>2. Criminal Law — refusal to allow withdrawal of guilty plea" delay in</bold> <bold>time — prejudice to State</bold> <block_quote> The trial court did not err in a second-degree murder and first-degree burglary case by refusing to allow defendant to withdraw his guilty plea because: (1) in regard to whether defendant maintained his innocence, defendant's statement that "I ain't completely innocent, but I ain't completely guilty" was equivocal;<page_number>Page 216</page_number> (2) although defendant contends he never gave his prior attorney the information contained in the 24 November 2004 proffer of testimony, defendant's argument relying on his own testimony is foreclosed by the trial court's unchallenged finding that defendant provided the attorney with the answers to the prosecutor's questions on 15 November 2004; (3) the State's forecast of evidence included defendant's proposed testimony submitted to the prosecutor, evidence of consistent statements and proposed testimony of his codefendants, and evidence of a detective's investigation that implicated defendant; (4) defendant's delay in requesting the withdrawal of his plea far exceeded the lapse in time in other cases in which our appellate courts have upheld denials of motions to withdraw; (5) despite defendant's claims to the contrary, the trial court found there was absolutely no indication that defendant did not fully understand the consequences of his plea; (6) the multiple discussions and review of the plea bargain over several months indicated the absence of haste or coercion in defendant's original decision to plead guilty; and (7) the State demonstrated that its case would be prejudiced if defendant were allowed to withdraw his guilty plea as all the codefendants had already been sentenced and thus could not be relied upon to testify against defendant at trial.</block_quote> <bold>3. Constitutional Law; Sentencing — ex post facto law — change in</bold> <bold>classification of prior conviction — prior record level</bold> <block_quote> The trial court did not err in a second-degree murder and first-degree burglary case by calculating defendant's prior record level by treating a prior conviction for a sale of cocaine as a Class H felony as it was classified at the time of sentencing rather than as a Class G Felony as it was classified at the time of the offense, resulting in defendant's being a Level IV rather than a Level III offender, because: (1) contrary to defendant's argument, there was no ambiguity in the statute which provides that the classification of an offense at the time of sentencing should be used in calculating the prior record level, N.C.G.S. § <cross_reference>15A-1340.14</cross_reference>(c); and (2) the constitutional prohibition on ex post facto laws was not implicated by application of N.C.G.S. § <cross_reference>15A-1340.14</cross_reference>(c) when defendant's increased sentence due to the change in the classification of his prior conviction served only to enhance his punishment for the present offenses and not to punish defendant for his prior conviction.</block_quote><page_number>Page 217</page_number>

<bold>1. Civil Procedure — motion to dismiss not converted into motion for</bold> <bold>summary judgment — no consideration of matters beyond pleadings</bold> <block_quote> The trial court did not improperly convert defendant's motion to dismiss for failure to state a claim into a motion for summary judgment because: (1) the trial court's order indicated that it dismissed the complaint under N.C.G.S. § <cross_reference>1A-1</cross_reference>, Rule 12(b)(6) and did not mention any of the evidentiary matters appropriately considered on a motion for summary judgment; and (2) nothing in the record established that the trial court considered matters beyond the pleadings.</block_quote> <bold>2. Statutes of Limitation and Repose — Tolling Agreement — Interim</bold> <bold>Funding Agreement</bold> <block_quote> The trial court did not err in an indemnification case arising out of the negligent construction of a walkway by concluding the statutes of limitation and repose did not bar plaintiff's claims, and alternatively, that defendant was equitably estopped from asserting those defenses based on its agreement to waive them in the<page_number>Page 297</page_number> Tolling Agreement and Interim Funding Agreement because: (1) the Tolling Agreement expressly remained effective through and including 1 January 2006, and the statute of limitations did not bar the action when plaintiff filed suit less than two years after the tolling agreement expired; (2) the statute of repose did not bar the action since the Interim Funding Agreement operated to toll the statute of repose through the filing of plaintiff's complaint; and (3) assuming argument that plaintiff breached the Agreement by filing this action before the South Carolina litigation concluded, even a material breach by plaintiff would not have caused it to lose the benefit of the tolling provisions in the Interim Funding Agreement.</block_quote> <bold>3. Indemnity — express contract — implied-in-law theory unavailable</bold> <block_quote> The trial court did not err in an indemnification case arising out of the negligent construction of a walkway by concluding that plaintiff was not entitled to implied-in-law indemnity from defendant because: (1) an implied-in-law theory of indemnification is generally not available where there is an express contract; (2) the parties executed an express indemnification provision covering only injuries occurring during the performance of defendant's work on the walkway; and (3) plaintiff cannot be entitled to indemnity from defendant's active negligence when it was adjudicated as having no passive tortious liability for defendant's negligent act.</block_quote>

<bold>1. Criminal Law — instruction — entrapment</bold> <block_quote> The trial court did not err in a possession with intent to sell or deliver a controlled substance and sale of a controlled substance case by refusing to instruct the jury on the affirmative defense of entrapment because: (1) viewed in the light most favorable to defendant, the evidence failed to show acts by the undercover officer to persuade, trick or fraudulently induce defendant to sell him drugs; (2) there is no entrapment when an officer merely affords a defendant the opportunity to commit the crime; and (3) the fact that the undercover officer drove by defendant waiving money out of the window, with defendant subsequently selling cocaine to the undercover officer, was insufficient evidence to show inducement on the part of the undercover officer.</block_quote><page_number>Page 424</page_number> <bold>2. Sentencing — habitual felon — indictments for three felonies</bold> <block_quote> The trial court did not err in a drug case by admitting into evidence the indictments for the three felonies supporting defendant's habitual felon status during the habitual felon portion of defendant's trial because: (1) the prohibition in N.C.G.S. § <cross_reference>15A-1221</cross_reference>(b) does not prohibit publication during the sentencing proceeding of indictments from cases not currently before the jury; and (2) the indictments were from cases not currently before the jury.</block_quote> <bold>3. Sentencing — habitual felon — prior record level</bold> <block_quote> The trial court did not err in a drug case by sentencing defendant at a record level VI on the grounds that there were alleged errors in the sentencing worksheet and in the calculation of his prior criminal record because: (1) defendant stipulated that this record level was correct and further stipulated that the worksheet used by the State to determine his prior record level was correct; (2) while defendant is correct that an habitual felon conviction cannot be counted in the calculation of a prior record level, contrary to defendant's argument it is unclear whether the trial court treated the 1998 conviction as a Class C felony in its calculation of sentencing points; (3) even without the habitual felon conviction included in the calculation of defendant's prior record points, defendant would still have at least nineteen prior record points and would have properly been assigned a prior record level of VI; (4) although defendant challenged the evidentiary basis of three of the prior convictions on the grounds that no file numbers are listed for those convictions on the worksheet, the lack of a file number is not determinative; (5) although defendant contends the record contained insufficient evidence of his 1976 conviction for attempted robbery with a dangerous weapon, his stipulation to the accuracy of the prior conviction worksheet was sufficient to satisfy the State's evidentiary burden of proof of this conviction; and (6) the certified copy of defendant's criminal record that was requested in June 2008, six months after defendant was convicted and sentenced, was not before the trial court and will not be considered on appeal.</block_quote>

<bold>Domestic Violence — protective order — insufficient evidence</bold> <block_quote> The trial court erred by issuing a Domestic Violence Protective Order (DVPO) where there was no competent evidence that defendant caused or attempted to cause bodily injury or committed any sex offense against a minor child in plaintiff's custody, or placed a member of plaintiff's family in fear of imminent serious bodily injury or continued harassment that rose to the level of substantial emotional distress. The fact of a DSS investigation of abuse was not relevant to whether defendant actually committed acts of domestic violence, a statement by plaintiffs son was admitted for the limited purpose of explaining plaintiff's actions and was not competent to support a finding of domestic violence, and plaintiffs testimony was not sufficient to support the court's finding of previous violence. Moreover, a DVPO is authorized only upon a showing of acts which the court may bring about a halt.</block_quote>

<bold>1. Appeal and Error — appealability — denial of motion to dismiss —</bold> <bold>public duty doctrine</bold> <block_quote> While the denial of a motion to dismiss is interlocutory, an appeal based on the public duty doctrine involves a substantial right warranting immediate appellate review.</block_quote> <bold>2. Police Officers — liability — public duty doctrine — sheriffs promise</bold> <bold>of protection</bold> <block_quote> In a wrongful death action against a sheriff that followed the shooting of a spouse who had obtained a domestic violence protective order, the non-specific nature of the sheriff's promises of protection and to enforce the protective order, with the attendant circumstances, were not sufficient to state a claim as an exception to the public duty doctrine. The trial court erred by not dismissing the portions of plaintiffs' complaint based on general promises of protection and to enforce the protective order.</block_quote> <bold>3. Police Officers</bold> — <bold>liability — promise to seize weapons — public duty</bold> <bold>doctrine</bold> <block_quote> In a wrongful death action against a sheriff that followed the shooting of a spouse who had obtained a domestic violence protective order, the sheriff's promise to procure the surrender of the husband's firearms was sufficient to state an exception to the public duty doctrine, and the ruling of the trial court denying defendants' motion to dismiss in this regard was affirmed.</block_quote><page_number>Page 571</page_number>

<bold>Child Support, Custody, and Visitation — grandmother — motion to</bold> <bold>intervene — lack of standing</bold> <block_quote> The trial court did not err by dismissing intervenor's motion to intervene in a custody proceeding between her daughter and the father of her granddaughter based on lack of standing because: (1) while intervenor satisfied the definition of "other person" since she was the primary caregiver since birth and she had a close familial relationship with the minor child, the grandmother was still required to allege parental unfitness; (2) despite the broad language of N.C.G.S. § <cross_reference>50-13.1</cross_reference>, nonparents do not have standing to seek custody against a parent unless they overcome the presumption that the parents has the superior right to the care, custody, and control of the minor child; (3) although intervenor contends she only needed to set forth a claim to demonstrate a change of circumstances since there was a motion for custody ongoing between the parents, that standard is for a grandparent seeking visitation instead of custody; (4) there has been no substantial change in circumstances since the entry of the 8 February 2006 order, and the trial court reinforced its indication that both parents were fit and proper persons for the care of the minor child; and (5) the assertion that intervenor would be able to afford the minor child a higher standard of living was not relevant to the issue of the parents' constitutionally protected parental interest.</block_quote>

<bold>1. Rape — statutory rape — motion to dismiss — sufficiency of evidence —</bold> <bold>age — testimony</bold> <block_quote> The trial court did not err by denying defendant's motion to dismiss the charges of statutory rape even though defendant contends the State failed to produce substantial evidence of the ages of both the victim and defendant at the time of the alleged crime because: (1) nothing in N.C.G.S. § <cross_reference>14-27.7A</cross_reference>(a) or other precedent requires that these elements be proven by the introduction of birth certificates or other certified copies of birth records; and (2) the testimony of the victim and the victim's mother that the<page_number>Page 645</page_number> victim was thirteen years old at the pertinent time, and defendant's testimony that he was twenty-one years old at the pertinent time, was sufficient evidence.</block_quote> <bold>2. Rape — statutory rape — motion to dismiss — sufficiency of evidence —</bold> <bold>continuous course of conduct not recognized in North Carolina</bold> <block_quote> The trial court did not err by denying defendant's motion to dismiss one of the two statutory rape charges even though defendant contends the two acts were in the nature of a continuous transaction rather than separate and distinct crimes because: (1) defendant's reliance on <italic>Clark</italic>, <cross_reference>161 N.C. App. 316</cross_reference>, is misplaced when defendant in that case did not assign error to the number of charges against him and thus that issue was not addressed; and (2) the Court of Appeals has previously held that North Carolina law does not recognize the continuous course of conduct theory.</block_quote> <bold>3. Confessions and Incriminating Statements — recorded interview —</bold> <bold>voluntariness</bold> <block_quote> The trial court did not err in a double statutory rape case by denying defendant's motion to suppress a recorded interview conducted by a detective that defendant contends improperly induced a confession through promises of a more favorable out-come because: (1) there was ample evidence in the record to support the trial court's findings that no improper promises or threats were made to defendant to induce an involuntary confession; and (2) the trial court's findings support its conclusion that, under the totality of circumstances, defendant's will was not overborne and that his statement was freely and voluntarily given.</block_quote> <bold>4. Evidence — prior crimes or bad acts — cross-examination</bold> <block_quote> The trial court did not abuse its discretion in a double statutory rape case by allowing the district attorney to cross-examine defendant about unrelated charges and criminal activity because: (1) defendant lost the benefit of an objection to this testimony since the State's cross-examination did not go outside the scope of the evidence introduced by defendant, but instead explained and rebutted defendant's testimony; and (2) defendant failed to show a reasonable possibility that a different result would have been reached had this line of questioning been prohibited.</block_quote><page_number>Page 646</page_number> <bold>5. Appeal and Error; Sentencing — preservation of issues — cruel and</bold> <bold>unusual punishment argument — failure to raise below — rational</bold> <bold>legislative policy</bold> <block_quote> Defendant's sentence in a double statutory rape case of two consecutive terms of 336-413 months did not constitute cruel and unusual punishment under the <cross_reference>Eighth</cross_reference> and <cross_reference>Fourteenth Amendments to the United States Constitution</cross_reference> and article <cross_reference>I</cross_reference>, sections <cross_reference>19</cross_reference> and <cross_reference>27</cross_reference> of the North Carolina Constitution because: (1) defendant did not present this argument at trial, and is it well-established that appellate courts ordinarily will not pass upon a constitutional question unless it was raised in the court below; and (2) even assuming <italic>arguendo</italic> that defendant adequately preserved the issue for appeal, the Court of Appeals has previously held that the sentencing scheme under N.C.G.S. § <cross_reference>14-27.7A</cross_reference> reflects a rational legislative policy, is not disproportionate to the crime, and is therefore constitutional.</block_quote>

<bold>1. Zoning — amended ordinance — standing — failure to follow procedures</bold> <block_quote> The trial court did not err by concluding that plaintiff had standing to institute this declaratory judgment action challenging an amended zoning ordinance, even though it had not sought a<page_number>Page 728</page_number> permit to develop its land and had no active plans to build multi-family units on its land, because: (1) plaintiff's challenge to the amended zoning ordinance was based on the alleged failure of the county to follow the proper procedures to enact the zoning ordinance, which was an attack on the validity of the amended zoning ordinance instead of an "as-applied" challenge; (2) plaintiff's use of its land was limited by the zoning regulations; and (3) to require a plaintiff to demonstrate a direct injury in order to challenge a zoning regulation would allow counties to make zoning decisions without complying with the statutory requirements of Article 18 of Chapter <cross_reference>153A</cross_reference> of the General Statutes.</block_quote> <bold>2. Zoning — Multi-Family Dwelling Ordinance — failure to follow</bold> <bold>procedures</bold> — <bold>notice</bold> <block_quote> A Multi-Family Dwelling Ordinance was passed without proper notice and was thus invalid because: (1) although the county claims the Multi-Family Dwelling Ordinance was enacted under N.C.G.S. § <cross_reference>153A-121</cross_reference>, a county may not evade the legislative notice requirements imposed by N.C.G.S. § <cross_reference>153A-323</cross_reference> by labeling the zoning act as an exercise of police power; and (2) the ordinance substantially affected plaintiffs use of its property, and the county had to comply with the notice requirements since the ordinance was the type authorized by Article 18.</block_quote>

<bold>Criminal Law — defenses — automatism — felony murder — underlying</bold> <bold>kidnapping voluntary</bold> <block_quote> The trial court did not err by failing to give an instruction on the defense of automatism in a prosecution for felony murder based on kidnapping where the defendant's expert evidence was that he was in a dissociative state, precluding a voluntary act, but not until the murder. In felony murder, the underlying offense provides the voluntary act if the elements of both offenses occur in a time frame that can be perceived as a single transaction, as here. Defendant was also not entitled to an instruction that a person found not guilty based on automatism could be involuntarily committed as being mentally ill.</block_quote>