{
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  "name": "STATE OF NORTH CAROLINA v. KENNETH KING",
  "name_abbreviation": "State v. King",
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    "judges": [
      "Judge STEELMAN concurs.",
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      "STATE OF NORTH CAROLINA v. KENNETH KING"
    ],
    "opinions": [
      {
        "text": "TYSON, Judge.\nKenneth King (\u201cdefendant\u201d) appeals from (1) his convictions for possession without lawful excuse of implements of housebreaking, felonious possession of stolen goods and three counts of felonious breaking and entering and (2) his plea to being an habitual felon. We find no error.\nI. Background\nAt approximately 10:45 pm on 11 July 1998, a homeowner called the sheriffs department reporting suspicious activity in his subdivision. Upon the deputies\u2019 arrival, the homeowner described a man, who had run out of the homeowner\u2019s garage, and told the deputies about a vehicle parked behind a vacant house next door. The deputies determined the vehicle was stolen. Subsequently, the deputies arrested defendant when he approached the stolen car and placed his hand on the door handle. The deputies found two screwdrivers, a pair of pliers, brown gloves, and tissue paper inside a baggie during a search of defendant.\nUpon further investigation, the deputies determined the screwdriver had been stolen from another resident\u2019s shed and that someone had peered into the vacant house by standing on an air conditioning unit. The latent print examiner from the City County Bureau of Identification retrieved a shoe print from the vacant house\u2019s kitchen floor and later opined, as an expert witness, that the shoe prints taken from the vacant house came from defendant\u2019s shoe soles. Nothing was taken from the vacant house.\nDefendant testified that he was walking in the neighborhood after helping a friend change some door locks. He had left the friend\u2019s home and was going to walk approximately six miles to another house to buy marijuana. On the way, defendant testified his stomach became upset and needed to use the bathroom. According to defendant, he went into the subdivision to find some toilet paper, which was why he was in one of the resident\u2019s garage. He also testified he returned to the subdivision when he saw the police in order \u201cto clear everything up.\u201d\nAfter a jury trial, defendant was acquitted of larceny and convicted of felony possession of stolen goods, possession of implements of housebreaking, and three counts of breaking and entering. Defendant pled guilty to being an habitual felon. The trial court sentenced defendant as an habitual felon to three concurrent sentences of 120 to 153 months, and two consecutive sentences of the same length, for a total active sentence of 360 to 459 months. Defendant appeals.\nII. Issues\nDefendant contends the trial court erred by (1) denying him his right to counsel, (2) denying him a speedy trial, (3) denying his motion to dismiss for insufficient evidence, and (4) coercing him to plead guilty to being an habitual felon.\nIII. Right to Counsel\nDefendant contends his constitutional right to counsel was violated when the trial court required him to proceed pro se at a motion hearing and at trial. Defendant had previously been represented by six different attorneys. On 18 September 2001, defendant requested the trial court to allow him to represent himself. Before allowing a criminal defendant to waive in-court representation, a trial court must insure that constitutional and statutory standards are satisfied. State v. Hyatt, 132 N.C. App. 697, 702, 513 S.E.2d 90, 94 (1999). \u201cFirst, a criminal defendant\u2019s election to proceed pro se must be \u2018clearly and unequivocally\u2019 expressed. Second, the trial court must make a thorough inquiry into whether the defendant\u2019s waiver was knowingly, intelligently and voluntarily made.\u201d Id. (citations omitted).\nN.C. Gen. Stat. \u00a7 15A-1242 (2001) provides:\nA defendant may be permitted at his election to proceed in the trial of his case without the assistance of counsel only after the trial judge makes thorough inquiry and is satisfied that the defendant:\n(1) Has been clearly advised of his right to the assistance of counsel, including his right to the assignment of counsel when he is so entitled;\n(2) Understands and appreciates the consequences of this decision; and\n(3) Comprehends the nature of the charges and proceedings and the range of permissible punishments.\n\u201cOur Supreme Court has stated that the inquiry mandated by N.C. Gen. Stat. \u00a7 15A-1242 satisfies these requirements.\u201d Hyatt, 132 N.C. App. at 702, 513 S.E.2d at 94.\nIn this case, the transcript clearly shows Judge Stephens complied with the mandates of N.C. Gen. Stat. \u00a7 15A-1242 on 18 September 2001. Defendant clearly and unequivocally expressed his desire to proceed pro se through his responses to the questions posed in accordance with G.S. 15A-1242. Defendant knowingly, intelligently and voluntarily waived his right to counsel at that time. The following week before Judge Allen, defendant stated he misunderstood Judge Stephens because he thought the judge was referring to a waiver of court-appointed attorneys. Nevertheless, defendant stated under oath before Judge Allen that he was \u201cwaiving [his] right for a court-appointed lawyer\u201d and \u201c[i]f I don\u2019t hire a lawyer, I\u2019ll represent myself.\u201d Defendant voluntarily waived his right to counsel and elected to proceed pro se. The trial court did not deny him his constitutional right to counsel. This assignment of error is overruled.\nIV. Sneedv Trial\nDefendant contends his constitutional right to a speedy trial under the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 18 of the North Carolina Constitution were violated. There are four factors \u201c \u2018which courts should assess in determining whether a particular defendant has been deprived of his right\u2019 to a speedy trial under the federal Constitution. These factors are (i) the length of delay, (ii) the reason for the delay, (iii) the defendant\u2019s assertion of his right to a speedy trial, and (iv) whether the defendant has suffered prejudice as a result of the delay.\u201d State v. Grooms, 353 N.C. 50, 62, 540 S.E.2d 713, 722 (2000), cert. denied, 534 U.S. 838, 151 L. Ed. 2d 54 (2001) (citations omitted). \u201c[D]efendant has the burden of showing that the delay was caused by the neglect or willfulness of the prosecution.\u201d Id. Defendant has not met this burden.\nThe record reveals defendant\u2019s trial was set three times during March, September, and November 1999. Spurgeon Fields, III, Esq. was appointed by the court to represent defendant in July 1998, shortly after defendant\u2019s arrest. In September, defendant\u2019s family hired George Currin, Esq. Mr. Currin, with defendant\u2019s permission, hired Hart Miles, Esq. as co-counsel to assist with defendant\u2019s case. Mr. Currin asked the assistant district attorney to remove the case from the March 1st calendar because pretrial motions were pending. Those motions were not reached in March 1999 due to a crowded court docket and were not resolved until September 1999. Because of the pending motions and Mr. Currin\u2019s withdrawal from the case, defendant\u2019s trial was calendared for November 1999. In November 1999, defendant\u2019s new counsel, Russell Dement, Jr., Esq., requested a continuance in order to adequately prepare for trial. From November 1999 until Mr. Dement\u2019s withdrawal on 7 August 2001, the record reveals Mr. Dement prepared for the case by interviewing several witnesses, viewing the crime scene, and discussing trial strategy with defendant and defendant\u2019s family. During this time, Mr. Dement requested on several occasions that the assistant district attorney not calendar the case. After Mr. Dement\u2019s withdrawal because of a trial strategy disagreement, Cindy Popkin-Bradley, Esq. was retained as defendant\u2019s counsel. Shortly after Ms. Popkin-Bradley\u2019s retention, she withdrew on 28 August 2001 on the grounds that defendant refused to cooperate with her. On 29 August 2001, Tommy Manning, Esq. was appointed to represent defendant. The following month, defendant requested to proceed pro se, and the trial was eventually calendered for the week of 29 October 2001.\nAlthough a significant amount of time lapsed between defendant\u2019s indictments and trial, the record reveals the delay was largely due to defense counsel\u2019s trial preparation and the withdrawal of several attorneys due to conflicts with defendant. Defendant has not shown the delay was caused by the neglect or willfulness of the prosecution. We hold that defendant failed to show that his constitutional right to a speedy trial was violated. This assignment of error is overruled.\nV. Insufficient Evidence\nDefendant contends that the charges of felonious possession of stolen goods and the vacant house breaking and entering should have been dismissed for insufficient evidence. Defendant admits in his brief that these issues were not preserved for appellate review. Defendant failed to move to dismiss the charges at the close of all evidence. We review defendant\u2019s arguments on these issues pursuant to N.C. R. App. P. 2 (2002) in the interest of justice.\n\u201cA case is properly submitted to the jury \u2018when there is any evidence that tends to prove the fact in issue or that reasonably supports a logical and legitimate deduction as to the existence of that fact.\u2019... If the record discloses substantial evidence of each essential element constituting the offense for which the accused was tried and that defendant was the perpetrator of that offense, then the trial court\u2019s denial of a motion to dismiss for evidentiary insufficiency should be affirmed.\u201d State v. Alford, 329 N.C. 755, 759-60, 407 S.E.2d 519, 522 (1991). \u201cIn measuring the sufficiency of the evidence, the reviewing court must consider the evidence in the light most favorable to the State, and the State is entitled to every reasonable inference to be drawn therefrom.\u201d Id. at 759, 407 S.E.2d at 522.\nA. Possession of Stolen Goods\nFelonious possession of stolen goods requires evidence of: (i) possession of personal property; (ii) valued at greater than $1,000; (iii) which has been stolen; (iv) the possessor knowing or having reasonable grounds to believe that the property is stolen; and (v) the possessor acts with a dishonest purpose. See N.C. Gen. Stat. \u00a7 14-71.1. Defendant contends the State presented insufficient evidence that the value of the stolen car, a 1986 Pontiac Grand Prix, was in excess of $1,000. We disagree.\nThrough the testimony of Donald Sigmon, the State sought to establish the value of the car stolen from Leith Buick exceeded $1,000. On direct, Mr. Sigmon, an employee of the Leith Management Company, responded \u201cyes, ma\u2019am\u201d to the question \u201c[a]nd had you sold that car on the retail market in 1998, would it be fair to say that the value of that car would have been in excess of $1,000?\u201d On cross-examination, Mr. Sigmon testified the car did not have a \u201cbook value\u201d and, in response to defendant\u2019s question \u201cSo why were I saying \u2014 that car \u2014 over a \u2014 worth a thousand dollars, is that what you said, it [sic] worth or that\u2019s what you saying that you can sell it for?\u201d, he stated, \u201cI\u2019ve been doing this 30 years. In my opinion, that\u2019s the best what it was worth.\u201d\nDefendant contends the witness\u2019s answers on direct and cross-examination were contradictory. Viewing the evidence in the light most favorable to the State, we disagree. This Court views the witness\u2019s statements on cross-examination as further explanation of his answer on direct by stating he based his opinion that the car was worth in excess of $1,000 upon his thirty years of experience. The trial court did not err in not dismissing the felonious possession of stolen goods charge. This assignment of error is overruled.\nB. Breaking and Entering\nDefendant also contends there was insufficient evidence to present the breaking and entering into the vacant house charge to the jury.\n1. Expert Opinion\nThe defendant argues the only evidence presented by the State allegedly placing him in the house was a shoe print impression from the kitchen floor, which the latent print examiner opined came from the defendant\u2019s shoe without providing a factual basis for his opinion. The latent print examiner testified regarding: (1) how the prints were lifted, (2) the comparison process, (3) how he matched the unique characteristics of defendant\u2019s shoe soles to a shoe print impression from the air conditioning unit, and (4) his opinion of whether the defendant\u2019s shoes made the prints and illustrated with a print from the air conditioning unit. The latent print examiner also testified that he used the same technique in matching the other shoe print impressions from the air conditioning unit and the kitchen to defendant\u2019s shoes. We hold that a sufficient factual basis was shown for the latent print examiner\u2019s opinion.\n2. Entry to Commit Larceny\nDefendant also contends the State\u2019s evidence failed to establish he entered the house to commit larceny. However, \u201c[w]ithout other explanation for breaking into the building or a showing of the owner\u2019s consent, intent may be inferred from the circumstances.\u201d State v. Myrick, 306 N.C. 110, 115, 291 S.E.2d 577, 580 (1982). When people enter homes in the night, \u201c[t]he most usual intent is to steal, and when there is no explanation or evidence of a different intent, the ordinary mind will infer this also.\u201d State v. Bumgarner, 147 N.C. App. 409, 416, 556 S.E.2d 324, 330 (2001) (quoting State v. Sweezy, 291 N.C. 366, 384, 230 S.E.2d 524, 535 (1976)). The jury heard testimony that (1) defendant had entered Mr. Edward\u2019s garage that same evening and attempted to open a chest containing tools; (2) defendant entered the storage shed of Mr. Holley that evening and removed items from that storage shed, including items found on defendant\u2019s person when arrested; and (3) defendant was in possession of burglary tools at the time of his arrest. When the evidence is viewed in the light most favorable to the State, sufficient evidence was presented from which the jury could infer the defendant intended to commit larceny upon breaking and entering the vacant house. This assignment of error is overruled.\nVI. Habitual Felon Plea\nDefendant contends his habitual felon guilty plea was involuntary. We disagree.\nN.C. Gen. Stat. \u00a7 15A-1021(b) forbids any representative of the State, including a judge, from improperly pressuring a defendant into a plea of guilty or nolo contendere. See also State v. Pait, 81 N.C. App. 286, 343 S.E.2d 573 (1986).\nAfter defendant\u2019s convictions on the underlying felonies and after advising the defendant of the three predicate felony convictions, the trial court advised the defendant:\nNow, the State has the burden of proving those convictions beyond a reasonable doubt. I would give you the opportunity, if you want to, to admit those violations, those convictions. I\u2019ll give you the privilege, if you want to plead guilty to being a habitual felon, and I would tell you that it is my practice that I give a lot of consideration for someone pleading guilty.\nThe trial court then stated, \u201cI\u2019m not promising you anything, I am not threatening you in any way.\u201d\nThe trial judge further stated to defendant, \u201cNow, at this point, we\u2019re not talking about a lawyer. I want to know, do you want to plead guilty to being a habitual felon? You don\u2019t have to. All you\u2019ve got to do is say no, I don\u2019t, and we\u2019ll proceed with this hearing.\u201d Defendant immediately stated that he wanted to plead guilty. However, before entering the plea, defendant indicated that he wanted to speak with a lawyer.\nThe trial court halted the proceedings and appointed a lawyer for the habitual felon phase of the trial. Defendant and his counsel left the courtroom and discussed the matter. Defendant returned to the courtroom and pled guilty to being a habitual felon. Prior to reviewing the plea transcript with defendant, the trial judge told him \u201cNow, if you have any questions concerning \u2014 or questions about these questions I\u2019m going to ask you, you refer to [your lawyer] before you answer.\u201d The trial judge then reviewed the transcript of plea with defendant. Defendant was advised by the trial court that he had the right to plead not guilty and have a jury trial. No plea bargain was made. In response to the question \u201cHas anyone made any promises or threatened you in any way to cause you to enter this plea against your wishes?,\u201d defendant responded \u201cNo.\u201d The record shows that defense counsel discussed with defendant that his right to appeal the five felony convictions would be unaffected by his guilty plea to habitual felon status.\nVery few cases in North Carolina hold that conduct of a trial judge rendered a defendant\u2019s plea involuntary. In State v. Benfield, 264 N.C. 75, 140 S.E.2d 706 (1965), the defendant was being retried for armed robbery. The trial judge told the defendant\u2019s counsel that the jury would surely convict the defendant and that if it did so, \u201che felt inclined to give him a long sentence^]\u201d Benfield, 264 N.C. at 76-77, 140 S.E.2d at 707-08. The defendant then changed his plea to guilty. Id. The defendant knew that his co-defendant had pled guilty and received a suspended sentence. Id. Based upon these factors, our Supreme Court held that the defendant\u2019s plea was involuntary. Id.\nIn State v. Cannon, 326 N.C. 37, 387 S.E.2d 450 (1990), the trial court made inquiry of defense counsel concerning the possibility of a negotiated plea after a lengthy voir dire hearing. Defense counsel advised the judge that their clients wanted a jury trial. Cannon, 326 N.C. at 38-39, 387 S.E.2d at 451. The judge then stated, in no uncertain terms, that if defendants were convicted, they would receive the maximum sentence. Id. Defendants were convicted of armed robbery, and received sentences of 35 years and 30 years respectively. Id. Our Supreme Court ordered new sentencing hearings and noted, had defendants pled guilty after they heard the judge\u2019s remarks, \u201cserious constitutional questions would have arisen as to the voluntariness of the pleas.\u201d Id. at 40, 387 S.E.2d at 452.\nIn State v. Pait, 81 N.C. App. 286, 343 S.E.2d 573 (1986), the defendant entered pleas of not guilty to multiple felony charges. The trial judge became \u201cvisibly agitated\u201d and stated that he was tired of \u201c \u2018frivolous pleas.\u2019 \u201d Pait, 81 N.C. App. at 287, 343 S.E.2d at 575. The judge directly questioned the defendant and asked whether he had made any incriminating statements to the police. Id. Upon an affirmative response, the trial judge directed defendant and his counsel to confer and return with \u201can \u2018honest plea.\u2019 \u201d Id. at 288, 343 S.E.2d at 575. Defense counsel advised defendant of the maximum punishment of 60 years and defendant entered guilty pleas. Id. This Court held that the defendant\u2019s plea was involuntary. Id. at 289-90, 343 S.E.2d at 576.\nIn each of these cases, clear, unequivocal statements by the trial judge directly resulted in the defendants\u2019 guilty pleas and rendered them involuntary. Such is not the case here. In making a determination of whether a defendant\u2019s plea was voluntary, the appellate court should look at the entire proceeding and make its decision based on the totality of the circumstances.\nIn this case, the trial judge explained the habitual felon phase of the trial to the pro se defendant and inquired as to whether defendant wished to plead guilty. The judge told defendant that he would give consideration to someone pleading guilty. However, the judge also stated that he was not promising defendant anything or threatening him in any way, and made it clear that if defendant did not want to plead guilty that the hearing before the jury would proceed. Further, the trial judge appointed a lawyer to represent defendant and defendant conferred with the attorney before he accepted the guilty plea. Taken in its totality, the evidence shows that defendant\u2019s plea was voluntary. This assignment of error is overruled.\nVII. Conclusion\nDefendant was not denied his constitutional right to counsel or to a speedy trial. The State presented sufficient evidence that defendant committed the crimes of breaking and entering, felony possession of stolen goods, and possession of implements of housebreaking to survive defendant\u2019s motions to dismiss. Defendant voluntarily pled guilty to being an habitual felon.\nNo error.\nJudge STEELMAN concurs.\nJudge WYNN concurs in the result.",
        "type": "majority",
        "author": "TYSON, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Roy Cooper, by Assistant Attorney General Harriet F. Worley, for the State.",
      "Winifred H. Dillon for the defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. KENNETH KING\nNo. COA02-830\n(Filed 20 May 2003)\n1. Constitutional Law\u2014 right to counsel \u2014 waiver\nA pro se defendant who had been represented by six attorneys voluntarily waived his right to counsel and elected to proceed pro se where he clearly and unequivocally expressed his desire to proceed pro se to one judge in response to questions posed in accordance with N.C.G.S. \u00a7 15A-1242, stated a week later to a different judge that he had misunderstood the first judge, and said under oath that he nonetheless wanted to waive appointed counsel and would represent himself if he did not hire a lawyer.\n2. Constitutional Law\u2014 speedy trial \u2014 changing attorneys\nA defendant\u2019s right to a speedy trial was not violated where the significant time between indictment and trial was largely due to several attorneys preparing for trial and then withdrawing after conflicts with defendant.\n3. Possession of Stolen Property\u2014 felonious \u2014 sufficiency of evidence\nThe trial court correctly refused to dismiss a charge of felonious possession of stolen goods for insufficient evidence where defendant contended that a witness\u2019s answers about the value of the stolen car were contradictory, but the witness\u2019s statements on cross-examination about the value of the vehicle were a further explanation of his answer on direct examination.\n4. Burglary and Unlawful Breaking or Entering\u2014 vacant house \u2014 sufficiency of evidence\nThere was sufficient evidence to present breaking and entering a vacant house to the jury where there was a sufficient factual basis for a latent print examiner\u2019s opinion matching defendant\u2019s shoe print impressions to those found at the scene and sufficient evidence for the jury to infer intent to commit larceny.\n5. Sentencing\u2014 habitual felon \u2014 guilty plea \u2014 voluntary\nA habitual felon plea was voluntary where the trial judge explained the habitual felon phase of the trial to the pro se defendant and told defendant that he would give some consideration to someone pleading guilty. The judge also said that he was not making a promise or a threat, made it clear that they would proceed before the jury if defendant did not want to plead guilty, and appointed a lawyer to confer with and represent defendant.\nAppeal by defendant from judgments entered 1 November 2001 by Judge J. B. Allen in Superior Court, Wake County. Heard in the Court of Appeals 25 March 2003.\nAttorney General Roy Cooper, by Assistant Attorney General Harriet F. Worley, for the State.\nWinifred H. Dillon for the defendant-appellant."
  },
  "file_name": "0060-01",
  "first_page_order": 90,
  "last_page_order": 100
}
