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State v. Stroud

Court of Appeals of North Carolina

May 1, 2018


          Heard in the Court of Appeals 8 January 2018.

          Appeal by defendant from judgment entered 20 February 2017 by Judge Robert C. Ervin in Cleveland County No. 15 CRS 50052 Superior Court .

          Attorney General Joshua H. Stein, by Special Deputy Attorney General M. Denise Stanford, for the State.

          Anne Bleyman for defendant-appellant.

          DAVIS, Judge.

         In this appeal, we consider whether (1) the defendant's indictment was fatally defective because it misspelled his middle name and misidentified his race and date of birth; (2) the State presented sufficient evidence of an agreement between the defendant and another person to rob the victim in order to support a conspiracy charge; and (3) the defendant's right to due process was violated by the compelled appearance of the mother of his child as a witness for the prosecution. Dominic Rashaun Stroud ("Defendant") appeals from his convictions for robbery with a dangerous weapon and conspiracy to commit robbery with a dangerous weapon. After a thorough review of the record and applicable law, we conclude that Defendant received a fair trial free from error.

         Factual and Procedural Background

         The State presented evidence at trial tending to establish the following facts: On 4 January 2015 at approximately 5:00 p.m., Terry Maddox, Jr. went to Optimist Park in Shelby, North Carolina to meet a woman that he knew only though Facebook as "Shay." Following his arrival at the park, the two of them sat on benches in the picnic shelter area, and Maddox prepared to smoke marijuana that the woman had brought with her.

         Maddox was suddenly struck on the head and fell to the ground. He saw two masked men holding firearms. One of them held a rifle, and the other possessed a handgun. One of the men told Maddox to remove his shoes, and he did so. The men then took his car keys, cell phone, and gold watch.

         That afternoon, Officer Donald Bivins of the Shelby Police Department was dispatched to a house at 904 Hampton Street - which was located approximately 100 yards from Optimist Park - after dispatch received a call of "shots fired" in the area of the park. Upon entering the house, Officer Bivins and another officer observed a white male and a black male in the living room. The officers also encountered a black male sleeping in one bedroom and a white female lying on the floor of another bedroom.

         As a means of securing the house, the officers instructed the occupants of the home to go into the living room. While in the living room, Officer Bivins observed a bullet from a rifle on the floor next to the couch. When he leaned down to inspect the bullet, he discovered that a rifle was also present underneath the couch. Officer Bivins further observed a second bullet located between the cushions of a loveseat in the living room. Behind the loveseat was a .9 millimeter Glock handgun that was not loaded. Under a blanket in the carport, Officer Bivins found a .45 caliber Glock handgun.

         Officer Matthew Dyer of the Shelby Police Department was also dispatched to the Optimist Park area that evening. He encountered Maddox, who informed Officer Dyer that he could identify the persons who had robbed him. After coordinating with the officers at 904 Hampton Street, Officer Dyer took Maddox to the residence "for a show-up to identify the suspects that robbed him." An officer stationed at the home directed three persons to step outside the house, and Maddox identified all three of the individuals as the persons who had robbed him. The persons identified by Maddox were Defendant, Abreanne LaShea Bowen (the mother of Defendant's child), and Joey Raborn (a friend of Defendant). All three were placed into custody and taken to the Shelby Police Department for questioning.

         Shortly thereafter, Bowen was interviewed by Detective Matt Styers of the Shelby Police Department. During the interview, she admitted that she was with Defendant at 904 Hampton Street prior to contacting Maddox and arranging a meeting with him at Optimist Park. She stated that she had set up the meeting in order to retaliate against Maddox for having previously robbed her cousin. Bowen told Detective Styers that she, Defendant, and Raborn had all been present at Optimist Park earlier that day. She further stated that when she saw Defendant and Raborn approaching the bench where she and Maddox were sitting she immediately ran back to the house at 904 Hampton Street.

         Bowen also told Detective Styers that by the time Defendant and Raborn returned to 904 Hampton Street from Optimist Park "the police were already circling the block." During his interview with Detective Styers, Defendant agreed to Bowen's account of the events, stating: "That's what happened. She said we did it for her cousin, so that's what happened."

         Detective Lee Farris also investigated the incident. He examined the picnic shelter area and found a small amount of marijuana, a .45 caliber shell casing, and a damaged gold watch.

         Detective Farris subsequently executed a search warrant on the house located at 904 Hampton Street. Inside the residence, he discovered a piece of a gold watchband matching the damaged watch he had found at Optimist Park.

         Defendant was indicted by a grand jury on 12 January 2015 for robbery with a dangerous weapon and conspiracy to commit robbery with a dangerous weapon. A jury trial was held beginning on 16 February 2017 before the Honorable Robert C. Ervin in Cleveland County Superior Court. At the close of the State's evidence, Defendant moved to dismiss both charges, and the trial court denied the motion. He renewed his motion to dismiss at the close of all the evidence, which was also denied.

         On 20 February 2017, the jury found Defendant guilty of both charges. The trial court sentenced Defendant to a term of 72 to 99 months imprisonment. Defendant gave oral notice of appeal.


         I. Sufficiency of Indictment

         In his first argument on appeal, Defendant contends that the trial court lacked jurisdiction to enter judgment against him because his indictment was fatally defective. He asserts that because the indictment misspelled his middle name and incorrectly identified his race and date of birth, it failed to "clearly and positively identify [Defendant] as the perpetrator of the charged offense."

         Defendant did not challenge the sufficiency of the indictment at trial. However, it is well-established that "when an indictment is alleged to be facially invalid, thereby depriving the trial court of its jurisdiction, it may be challenged at any time, notwithstanding a defendant's failure to contest its validity in the trial court." State v. Call, 353 N.C. 400, 429, 545 S.E.2d 190, 208 (citation omitted), cert. denied, 534 U.S. 1046, 151 L.Ed.2d. 548 (2001). We review the sufficiency of an indictment de novo. State v. Marshall, 188 N.C.App. 744, 748, 656 S.E.2d 709, 712 (citation omitted), disc. review denied, 362 N.C. 368, 661 S.E.2d 890 (2008).

         This Court has held that "[a] valid bill of indictment is essential to the jurisdiction of the Superior Court to try an accused for a felony . . . ." State v. Moses, 154 N.C.App. 332, 334, 572 S.E.2d 223, 226 (2002) (citation omitted). An indictment "is constitutionally sufficient if it apprises the defendant of the charge against him with enough certainty to enable him to prepare his defense and to protect him from subsequent prosecution of the same offense." State v. Jones, 188 N.C.App. 562, 564, 655 S.E.2d 915, 917 (2008) (citation and quotation marks omitted).

         In the present case, Defendant's middle name was incorrectly spelled in the indictment as "Rashawn." His actual middle name is "Rashaun." Our Supreme Court has held that "[a]n indictment must clearly and positively identify the person charged with the commission of the offense." State v. Simpson, 302 N.C. 613, 616, 276 S.E.2d 361, 363 (1981) (citation omitted). "The name of the defendant, or a sufficient description if his name is unknown, must be alleged in the body of the indictment; and the omission of his name, or a sufficient description if his name is unknown, is a fatal and incurable defect." Id. (citation omitted).

         In State v. Higgs, 270 N.C. 111, 153 S.E.2d 781 (1967), our Supreme Court held that minor mistakes in the spelling of a defendant's name in an indictment do not - without more - render the indictment defective. Id. at 113, 153 S.E.2d at 782. In that case, the defendant's given name was Burford Murril Higgs. However, the indictment listed his name as Beauford Merrill Higgs. Id. In ruling that the indictment was sufficient, the Supreme Court concluded as follows:

On the trial, no point was made of the slight variance in the given names of Beauford and Burford and of the slight variance in the spelling of the middle name, and defendant will not now be heard to say that he is not the man named in the bill of indictment. Where defendant is tried without objection under one name, and there is no question of identity, he will not be allowed on appeal to contend that his real name was different.

Id. (citation and quotation marks omitted); see also State v. Vincent, 222 N.C. 543, 544, 23 S.E.2d 832, 833 (1943) ("Here, the two names, 'Vincent' and 'Vinson, ' sound almost alike. . . . He was tried under the name of Vincent, without objection or challenge, and sentenced under the same name. There being no question as to his identity, he may retain the name for purposes of judgment." (citation omitted)).

         In the present case, the misspelling of Defendant's middle name in the indictment differed by only one letter from the correct spelling. As shown above, our appellate courts have made clear that such minor spelling errors do not render an indictment defective absent a showing that the defendant was prejudiced by the error in preparing his defense. See Higgs, 270 N.C. at 113, 153 S.E.2d at 782. Defendant has made no such showing here.

         In addition to the misspelling of his middle name, the indictment also contained two other mistakes. First, it listed his race as white despite the fact that he is black. Second, his date of birth was set out in the indictment as 31 August 1991 when, in fact, his correct birth date is 2 October 1991. Neither of these mistakes, however, caused Defendant's indictment to be defective.

         "Allegations beyond the essential elements of the crime sought to be charged are irrelevant and may be treated as surplusage." State v. Taylor, 280 N.C. 273, 276, 185 S.E.2d 677, 680 (1972). This Court has held that "a mistake in such information which is mere surplusage may be ignored if its inclusion has not prejudiced defendant." State v. Sisk, 123 N.C.App. 361, 366, 473 S.E.2d 348, ...

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