{ "id": 8527176, "name": "STATE OF NORTH CAROLINA v. GARY DEAN PICKARD", "name_abbreviation": "State v. Pickard", "decision_date": "1992-07-21", "docket_number": "No. 9217SC122", "first_page": "94", "last_page": "101", "citations": [ { "type": "official", "cite": "107 N.C. App. 94" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "9 ALR3d 1180", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "14 ALR4th 227", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "221 S.E.2d 359", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "289 N.C. 223", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567692 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/289/0223-01" ] }, { "cite": "83 L.Ed.2d 78", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1984, "opinion_index": 0 }, { "cite": "469 U.S. 839", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11992065, 11991511, 11991589, 11992134, 11991687, 11991848, 11991914, 11991307, 11991372, 11991758, 11991442, 11991091, 11991990, 11991158 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/us/469/0839-13", "/us/469/0839-06", "/us/469/0839-07", "/us/469/0839-14", "/us/469/0839-08", "/us/469/0839-10", "/us/469/0839-11", "/us/469/0839-03", "/us/469/0839-04", "/us/469/0839-09", "/us/469/0839-05", "/us/469/0839-01", "/us/469/0839-12", "/us/469/0839-02" ] }, { "cite": "311 S.E.2d 256", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "310 N.C. 245", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2399643 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/310/0245-01" ] }, { "cite": "311 S.E.2d 281", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "opinion_index": 0 }, { "cite": "310 N.C. 274", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2403051 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/310/0274-01" ] }, { "cite": "292 S.E.2d 573", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "305 N.C. 590", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572551, 8572522, 8572458, 8572502, 8572474 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/305/0590-05", "/nc/305/0590-04", "/nc/305/0590-01", "/nc/305/0590-03", "/nc/305/0590-02" ] }, { "cite": "289 S.E.2d 588", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "589" } ], "opinion_index": 0 }, { "cite": "56 N.C. App. 692", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523675 ], "year": 1982, "pin_cites": [ { "page": "693-94" } ], "opinion_index": 0, "case_paths": [ "/nc-app/56/0692-01" ] }, { "cite": "282 S.E.2d 430", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "304 N.C. 149", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565443 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/304/0149-01" ] }, { "cite": "291 S.E.2d 653", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "656" } ], "opinion_index": 0 }, { "cite": "306 N.C. 101", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567546 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "104" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0101-01" ] }, { "cite": "389 S.E.2d 119", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "326 N.C. 267", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5306669, 5305653, 5309861 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/326/0267-03", "/nc/326/0267-02", "/nc/326/0267-01" ] }, { "cite": "385 S.E.2d 349", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "96 N.C. App. 235", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521201 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc-app/96/0235-01" ] }, { "cite": "328 S.E.2d 326", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "330" } ], "opinion_index": 0 }, { "cite": "74 N.C. App. 276", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524107 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/74/0276-01" ] }, { "cite": "300 S.E.2d 689", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "307 N.C. 584", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565300 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/307/0584-01" ] }, { "cite": "306 S.E.2d 451", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 214", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4762487 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0214-01" ] } ], "analysis": { "cardinality": 746, "char_count": 16378, "ocr_confidence": 0.79, "pagerank": { "raw": 6.817582058093901e-08, "percentile": 0.41635554814199593 }, "sha256": "ab66ef411c398198ae3381300cff94a364e24200d79e676e7a0e71e49a4c8a5e", "simhash": "1:e108966d522051d0", "word_count": 2715 }, "last_updated": "2023-07-14T14:52:31.872261+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge Hedrick and Judge Johnson concur." ], "parties": [ "STATE OF NORTH CAROLINA v. GARY DEAN PICKARD" ], "opinions": [ { "text": "WYNN, Judge.\nDefendant was charged in a proper bill of indictment with second degree burglary and felonious larceny. The State\u2019s evidence presented at trial tends to show: On 2 January 1991, Michael Todd Minor and his half-brother, Harry Tate, went to visit defendant at his home at approximately 2:30 p.m. Minor was driving his 1968 Ford pickup truck which was lime green with primer spots on it. After eating dinner at defendant\u2019s home, Minor asked defendant if he could use the telephone. Defendant told Minor that his telephone was not hooked up but that defendant could take his telephone over to his next-door neighbors and \u201chook it up\u201d to their box. Defendant stated that his neighbors, Joe and Vickie Fayne, were not at home because they worked second shift and they would not get home until approximately 11:00 or 11:30 p.m. Minor, Tate, and defendant walked to the Fayne residence at approximately 8:30 p.m. Defendant began to \u201chook the phone up\u201d and then he asked Tate and Minor if they wanted to break into the Faynes\u2019 home. Tate and Minor agreed. Either defendant or Tate kicked or pushed the door in and the three men went inside. The men took a VCR, a shotgun, a pistol, and some binoculars from the home and put them in Minor\u2019s truck which was parked at defendant\u2019s residence. Defendant and Tate went back to the Fayne residence and returned with a television, a radio, and a jewelry box. The two men put those items into the back of Minor\u2019s truck. The men then attempted to pick up some items, including jewelry and shotgun shells, which had fallen out into the yard as Tate and defendant were carrying things to Minor\u2019s truck. The men then got into Minor\u2019s truck and took the stolen items to Jimmy Baize\u2019s house and left the items on his porch. Tate thought that Baize might be able to sell the stolen property for them. Minor took defendant home at approximately 10:00 or 10:30 p.m. because defendant wanted to be home when the Faynes got home from work.\nVickie Fayne testified that on the day in question, she and her husband left for work between 2:15 and 2:25 p.m. As she was leaving, Vickie Fayne noticed two young men getting out of a lime green truck at defendant\u2019s home. She identified the men as Tate and Minor. Fayne further testified that she returned home at approximately 11:30 p.m. and realized that some items were missing from her home. She called her husband and then the sheriff\u2019s department. Officer Johnny Hodges, an employee of the Caswell County Sheriff\u2019s Department, arrived at the scene. Fayne told Hodges what items were missing, including her jewelry box. She also told him that the jewelry box contained various items of jewelry and some receipts for items that she had purchased. During his investigation, Hodges and another officer found a trail of jewelry and receipts which went diagonally across the yard toward defendant\u2019s residence. The trail of items ended in defendant\u2019s driveway approximately thirty or forty feet from the entrance to defendant\u2019s residence.\nDefendant was convicted as charged and was sentenced to twenty-eight years imprisonment for the second degree burglary offense and nine years imprisonment for the larceny offense. Defendant appealed.\nDefendant first contends the trial court erred in finding as an aggravating factor that defendant induced others to participate in the burglary and larceny. He asserts that the evidence was not sufficient to support the finding of this aggravating factor because according to Minor\u2019s testimony, defendant merely \u201csuggested\u201d or \u201casked\u201d Minor and Tate if they wanted to break into the Fayne residence.\nThe State bears the burden of persuasion on aggravating factors if it seeks a term greater than the presumptive. State v. Jones, 309 N.C. 214, 306 S.E.2d 451 (1983). The trial judge\u2019s finding of an aggravating factor must be supported by a preponderance of the evidence introduced at the sentencing hearing. N.C. Gen. Stat. \u00a7 15A-1340.4(a), (b) (1988); State v. Ahearn, 307 N.C. 584, 300 S.E.2d 689 (1983). Under N.C. Gen. Stat. \u00a7 15A-1340.4(a)(l)a, a sentencing judge may find as an aggravating factor that \u201c[t]he defendant induced others to participate in the commission of the offense or occupied a position of leadership or dominance of other participants.\u201d In State v. SanMiguel, 74 N.C. App. 276, 328 S.E.2d 326 (1985), this Court stated:\nInduce is defined by Black\u2019s Law Dictionary ... as \u201c[t]o bring on or about, to affect, cause, to influence to an act or course of conduct, lead by persuasion or reasoning, incite by motives, prevail on.\u201d Webster\u2019s New Collegiate Dictionary . . . similarly defines induce as \u201cto lead on: move by persuasion or influence,\u201d to \u201cbring about by influence,\u201d and to \u201ceffect, cause.\u201d\nId. at 281, 328 S.E.2d at 330.\nIt is clear from the preponderance of the evidence presented in this case, that defendant induced Minor, a 16-year-old at the time of trial, and Tate to a course of conduct. Minor had merely asked to use defendant\u2019s telephone when defendant, a 24-year-old adult, told him that defendant could hook his telephone up to the Faynes\u2019 line while they were not at home. While Minor agreed to that plan, it is apparent that he and Tate had not considered burglary until defendant asked them if they wanted to break into the Fayne residence. Defendant also had supplied the information that the Faynes worked second shift and would not be home until at least 11:00 p.m. As such, defendant\u2019s conduct \u201cbrought about,\u201d \u201ccaused,\u201d or \u201cinfluenced\u201d Minor to commit the offenses. Thus, we hold that the trial court did not err in finding this aggravating factor. This assignment of error is without merit.\nDefendant next contends the trial court erred \u201cin considering evidence of the defendant\u2019s prior convictions in sentencing and in finding that such convictions constituted an aggravating factor as such convictions were obtained upon defendant\u2019s pleas of guilty and the record does not reflect that such pleas were voluntary and knowing.\u201d At the sentencing hearing, the State offered a certified copy of a consolidated judgment suspending defendant\u2019s sentence for convictions of two counts of contributing to the delinquency of a minor, attempted breaking or entering a coin operated machine, and misdemeanor breaking or entering and larceny. This judgment was entered on 11 September 1984 pursuant to defendant\u2019s pleas of guilty. The judgment reflects that defendant was represented by retained counsel, Wade Harrison, and that defendant \u201cfreely, voluntarily, and understandingly pled guilty\u201d to the offenses. Defendant asserts the trial court could not consider these prior convictions in aggravation of his sentence because defendant testified at the sentencing hearing that he had \u201cno recollection of being advised of his rights by the judge before entering guilty pleas\u201d and the State could not produce \u201cmore detailed court records\u201d which would show that the trial judge \u201cproperly discharged his function . . . .\u201d In an attempt to support his argument, defendant cites several cases dealing with a defendant\u2019s right to counsel, none of which are applicable to this case.\nIt is evident from the judgment entered on 11 September 1984 and from defendant\u2019s testimony at the sentencing hearing on 27 June 1991 that defendant was represented by and satisfied with counsel when he pled guilty to the prior offenses. Additionally, at the sentencing hearing, defendant stated, \u201cI was guilty then and I plea bargained and took a lesser sentence because I done it.\u201d This Court in State v. Smith, 96 N.C. App. 235, 385 S.E.2d 349 (1989), disc. review denied, 326 N.C. 267, 389 S.E.2d 119 (1990), noted a distinction between a defendant\u2019s right to counsel and the right of a defendant to enter pleas knowingly and voluntarily. In Smith, the Court stated that under N.C. Gen. Stat. \u00a7 15A-980, where the defendant proves that a prior conviction was obtained in violation of a defendant\u2019s right to counsel, the trial judge must suppress the use of the prior conviction. However, the Court went on to hold that where the defendant had counsel at the time that the guilty pleas were entered, the State does not bear the burden of proving the validity of a plea of guilty in a prior criminal matter before the conviction may be used to impeach the defendant or to aggravate his sentence. Thus, we conclude the trial court did not err in using the challenged prior convictions to aggravate defendant\u2019s sentence. This assignment of error is meritless.\nBy his next assignment of error, defendant argues the trial court erred \u201cin denying defendant\u2019s motion to continue because such failure prohibited defendant\u2019s counsel from fully preparing to impeach the testimony of the State\u2019s chief prosecuting witness and denied the defendant a fair trial.\u201d Prior to trial, defendant moved for a continuance based on the grounds that it was necessary for the preparation of defendant\u2019s trial to have a transcript from the trial of Harry Tate. Defendant specifically asserts that he did not receive a fair trial because he was unable to effectively cross-examine Todd Minor concerning Minor\u2019s prior testimony in the State\u2019s case against Harry Tate.\nIt is well established that a motion for a continuance, even when filed in a timely manner pursuant to N.C. Gen. Stat. \u00a7 15A-952 (1991), is ordinarily left to the sound discretion of the trial judge whose ruling thereon is not subject to review absent an abuse of such discretion. State v. Branch, 306 N.C. 101, 291 S.E.2d 653 (1982). However, it is equally well established that when a motion for a continuance raises a constitutional issue, the trial court\u2019s action upon it involves a question of law which is fully reviewable by an examination of the particular circumstances of each case. State v. Searles, 304 N.C. 149, 282 S.E.2d 430 (1981). Even where the motion raises a constitutional question, its denial is grounds for a new trial only upon a showing by the defendant that the denial was erroneous and also that his case was prejudiced as a result of the error. Branch, 306 N.C. at 104, 291 S.E.2d at 656 (1982). \u201cA continuance is proper if there is a belief that material evidence will come to light and such belief is reasonably grounded on known facts, but a mere intangible hope that something helpful to the litigant may possibly turn up affords no sufficient basis for delaying a trial.\u201d State v. Pollock, 56 N.C. App. 692, 693-94, 289 S.E.2d 588, 589, disc. review denied and appeal dismissed, 305 N.C. 590, 292 S.E.2d 573 (1982). A trial judge should not grant a continuance unless the reasons therefore are fully established. State v. Horner, 310 N.C. 274, 311 S.E.2d 281 (1984). Therefore, an affidavit showing sufficient grounds should be filed in support of a motion to continue. Id.\nIn the present case, defendant did not support his motion with an affidavit. In his motion, he merely asserted that it was \u201cnecessary for the defendant\u2019s preparation and for the handling of his trial that he have a trial transcript from the Harry Tate trial.\u201d Prior to trial, defense counsel told the trial judge that he had seen the Tate transcript except for Minor\u2019s testimony. He also stated:\nWe were here for the entire [Tate] trial. I have some notes from that trial, but my only problem is that, if he deviates from what I remember him saying, I have no way to verify that under oath without the transcript. There may be some discrepancies. I don\u2019t know. We would, Your Honor, for the record, renew the motion to continue on that basis.\nEven assuming that the trial court erred in denying his motion for .a continuance, we believe that defendant has failed to show any prejudicial error. Defendant\u2019s mere intangible hope that something helpful to defendant may have turned up in Minor\u2019s testimony did not afford him a basis for delaying trial. This assignment of error is overruled.\nLastly, defendant contends the trial court erred \u201cin denying the defendant\u2019s motion for final argument to the jury, such denial denying the defendant his constitutional right to due process of law and a fair trial.\u201d We disagree.\nWhere a defendant offers evidence at trial, the prosecution has a right to make the opening and closing argument to the jury. Superior and District Court Rule 10; See also State v. Hinson, 310 N.C. 245, 311 S.E.2d 256, cert. denied, 469 U.S. 839, 83 L.Ed.2d 78 (1984); State v. Taylor, 289 N.C. 223, 221 S.E.2d 359 (1976). This contention, like the others, is without merit.\nDefendant had a fair trial free from prejudicial error.\nNo error.\nChief Judge Hedrick and Judge Johnson concur.", "type": "majority", "author": "WYNN, Judge." } ], "attorneys": [ "Attorney General Lacy H. Thornburg, by Assistant Attorney General William H. Borden, for the State.", "Wishart, Norris, Henninger & Pittman, P.A., by D. Thomas Lambeth, Jr., and June K. Allison, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. GARY DEAN PICKARD\nNo. 9217SC122\n(Filed 21 July 1992)\n1. Criminal Law \u00a7 1133 (NCI4th)\u2014 aggravating factors \u2014 inducement of others \u2014evidence sufficient\nThe evidence was sufficient in a prosecution for burglary and larceny for the trial court to find the aggravating factor that defendant induced others to participate where Minor, a 16 year old at the time of trial, asked to use defendant\u2019s telephone; defendant, a 24 year old adult, told him that defendant could hook his telephone to his neighbors\u2019 line while they were not at home; it is apparent that Minor and Tate had not considered burglary until defendant asked them if they wanted to break into the neighbors\u2019 residence; defendant also supplied the information that the neighbors, the Faynes, worked second shift and would not be home until at least 11:00 p.m.; and defendant\u2019s conduct \u201cbrought about,\u201d \u201ccaused,\u201d or \u201cinfluenced\u201d Minor to commit the offenses. N.C.G.S. \u00a7 15A-1340.4(a)(l)a.\nAm Jur 2d, Burglary \u00a7 72.5; Criminal Law \u00a7\u00a7 163 et seq.\n2. Criminal Law \u00a7 1185 (NCI4th)\u2014 aggravating factors \u2014prior convictions \u2014guilty pleas \u2014validity of pleas\nThe trial court did not err by using prior convictions to aggravate defendant\u2019s sentences for burglary and larceny where the State offered a certified copy of a consolidated judgment which had been entered pursuant to guilty pleas and which reflected that defendant was represented by retained counsel and had pled guilty freely, voluntarily, and understandingly. Although defendant asserted that the court could not consider these prior convictions because defendant testified that he had no recollection of being advised of his rights by the judge before entering his plea and the State could not produce more detailed court records, it is evident from the judgment and from defendant\u2019s testimony that he had been represented by and was satisfied with counsel, defendant stated at the sentencing hearing that he had pleaded guilty because he was guilty, and the State does not bear the burden of proving the validity of a guilty plea in a prior criminal matter where defendant had counsel at the time the guilty pleas were entered.\nAm Jur 2d, Burglary \u00a7 63; Larceny \u00a7 153.\nAdequacy of defense counsel\u2019s representation of criminal client regarding prior offenses and convictions. 14 ALR4th 227.\n3. Criminal Law \u00a7 263 (NCI4th|\u2014 burglary and larceny \u2014 continuance denied \u2014prior testimony \u2014lack of time to review transcript\nThe trial court did not err in a prosecution for burglary and larceny by denying defendant\u2019s motion for a continuance where defendant asserted that he did not receive a fair trial because he did not have the transcript of the prior trial of an accomplice and was unable to effectively cross-examine another accomplice concerning the accomplice\u2019s testimony in the prior trial. Defendant\u2019s mere intangible hope that something helpful to defendant may have turned up in the accomplice\u2019s testimony did not afford him a basis for delaying trial.\nAm Jur 2d, Continuance \u00a7\u00a7 65, 70, 107.\nAdmissions to prevent continuance sought to secure testimony of absent witness in criminal case. 9 ALR3d 1180.\n4. Criminal Law \u00a7 414 (NCI4th)\u2014 burglary and larceny \u2014 right to conclude argument\nThe trial court did not err in a burglary and larceny prosecution by denying defendant\u2019s motion for final argument to the jury where defendant had offered evidence.\nAm Jur 2d, Trial \u00a7 71.\nAppeal by defendant from judgments entered 28 June 1991 in CASWELL County Superior Court by Judge Joseph R. John. Heard in the Court of Appeals 19 June 1992.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General William H. Borden, for the State.\nWishart, Norris, Henninger & Pittman, P.A., by D. Thomas Lambeth, Jr., and June K. Allison, for defendant-appellant." }, "file_name": "0094-01", "first_page_order": 122, "last_page_order": 129 }