{ "id": 8520663, "name": "STATE OF NORTH CAROLINA v. RICHARD TIMOTHY LEGGETT", "name_abbreviation": "State v. Leggett", "decision_date": "1983-03-15", "docket_number": "No. 822SC825", "first_page": "295", "last_page": "300", "citations": [ { "type": "official", "cite": "61 N.C. App. 295" } ], "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": "256 S.E. 2d 715", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "297 N.C. 686", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573720 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/297/0686-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-71", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1981, "opinion_index": 0 }, { "cite": "201 S.E. 2d 867", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1974, "pin_cites": [ { "parenthetical": "concerning law partners representing co-defendants with conflicting interests" } ], "opinion_index": 0 }, { "cite": "284 N.C. 606", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563527 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/284/0606-01" ] }, { "cite": "86 L.Ed. 2d 680", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1942, "opinion_index": 0 }, { "cite": "315 U.S. 60", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 374640 ], "weight": 2, "year": 1942, "opinion_index": 0, "case_paths": [ "/us/315/0060-01" ] }, { "cite": "264 S.E. 2d 592", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "46 N.C. App. 7", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548781 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/46/0007-01" ] }, { "cite": "158 S.E. 2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "272 N.C. 183", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571854 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/272/0183-01" ] } ], "analysis": { "cardinality": 616, "char_count": 11106, "ocr_confidence": 0.789, "pagerank": { "raw": 5.0842389963872746e-08, "percentile": 0.3202260054543721 }, "sha256": "8a86a52a1e214e76292b40449bcbd422a389c253bd769d43a934c88a0a5d5abe", "simhash": "1:bb4f5137365a3ffa", "word_count": 1828 }, "last_updated": "2023-07-14T21:13:54.976609+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WEBB and PHILLIPS concur." ], "parties": [ "STATE OF NORTH CAROLINA v. RICHARD TIMOTHY LEGGETT" ], "opinions": [ { "text": "BECTON, Judge.\nI\nThe State introduced evidence tending to show that during the evening of 19 September 1981, David Edmondson reported the theft of three of his firearms \u2014 a .3006 bore rifle, a 20-gauge pump shotgun, and a .22 automatic rifle. Gregory Rogerson, a mutual friend of Edmondson and defendant, visited defendant\u2019s home that same evening. While he was there, defendant showed Rogerson three guns stored in a bathroom closet, later identified as Edmondson\u2019s guns. Rogerson contacted Edmondson, told him where his guns were, and the two of them reported the theft to the Sheriffs Department. Armed with a proper search warrant, Martin County Deputy Sheriff Jerry Beach went to defendant\u2019s house and found guns, matching the description given by Ed-mondson, under the porch of defendant\u2019s home. Defendant was arrested.\nThe defendant\u2019s evidence tended to show that his girlfriend, Melba Wright, borrowed his car on the evening of 19 September 1981 without saying where she was going. She returned with three guns and put them in the bathroom closet. Defendant attempted to find out where Melba Wright had obtained the guns, but was unsuccessful. Upon learning about the theft of Edmond-son\u2019s guns, defendant discussed them with Wright but did nothing about the guns at that time. Deputy Sheriff Beach came to his home and arrested him about 2:00 p.m. on 20 September 1981. Defendant neither stole the guns nor placed them under the porch.\nII\nDefendant makes three arguments on appeal. He contends (1) that the trial court erred when it denied his motion for appropriate relief; (2) that the trial court erred when it denied his motion made at the end of the State\u2019s evidence to dismiss the charges against him; and (3) that the sentence imposed, not less than five nor more than seven years, contravened the express provisions of the North Carolina General Statutes.\nIII\nDefendant\u2019s first argument, raised by his second assignment of error, concerns the denial of his motion for appropriate relief (new trial). Both defendant and his girlfriend, Melba Wright, were indicted; both were represented by defendant\u2019s trial counsel, Glen Cannon. Defendant complains that the trial court erred when it, ex mero motu, removed Cannon as counsel for Wright and appointed another lawyer to represent her and that the mid-trial removal prejudiced defendant\u2019s Sixth Amendment right to confrontation. Because the trial court acted to prevent a conflict of interest between the co-defendants, we reject defendant\u2019s contentions.\nThe removal was occasioned by defendant\u2019s cross-examination of State\u2019s witness, Deputy Jerry Beach, and was ordered during a conference at the bench and out of the hearing of the jury. The following colloquy took place:\nQ. Mr. Beach, did you talk to anyone concerning this matter other than Mr. Edmondson, Mr. Rogerson and Mr. Leggett?\nA. Yes sir, I have.\nQ. With whom had you had conversation?\nA. Melba Wright.\nQ. Did she give you a statement concerning this incident?\nA. Yes sir.\nQ. Would you tell the Court what she said?\nMr. NORTON: Objection, if Your Honor please.\nCourt: Counsel approach the bench.\nBefore ruling on the State\u2019s objection, and while counsel was still at the bench, the court became aware of the fact that defendant\u2019s counsel was also counsel for Melba Wright. The court properly sustained the State\u2019s objection to the question as an invitation to violate the rule against hearsay. Wilson v. Indemnity Co., 272 N.C. 183, 158 S.E. 2d 1 (1967). It then made this inquiry:\nCOURT: You represent both defendants, do you not?\nMr. Cannon: Yes, Your Honor, that\u2019s correct.\nCOURT: All right. So you represent ... so you have an obligation to both defendants?\nMr. CANNON: Yes, Your Honor.\nCOURT: Well, they may, but of course, the Court has an obligation to see as to whether or not each person at the time of trial is properly represented so that later on, I mean, later on if somebody comes back and says, \u201cWell, now . . .\u201d they\u2019ll say that this happened before, \u201cI told him I didn\u2019t want him, and he sold me down the river.\u201d It\u2019s happened before. It may not happen, you know, and it happens in the best of families, but now as to what conversation took place with Miss Wright at a time apparently which was not in the presence of the defendant, of course, I sustained that, but I am raising ... I think that it might be wise to have somebody represent the defendant, Wright, if you perceive that your primary responsibility is to defend the defendant Leggett.\nMr. CANNON: Well, Your Honor, I\u2019m already in this trial. I feel like that I have a responsibility at this point to defend Mr. Leggett.\nUnquestionably, a defendant has a constitutional right to the undivided loyalty of his counsel. State v. Arsenault, 46 N.C. App. 7, 264 S.E. 2d 592 (1980), citing Glasser v. United States, 315 U.S. 60, 86 L.Ed. 2d 680, 62 S.Ct. 457 (1942) and State v. Sneed, 284 N.C. 606, 201 S.E. 2d 867 (1974). When an attorney serves as counsel for co-defendants with conflicting interests, a division of loyalties is inevitable. Cf., id. (concerning law partners representing co-defendants with conflicting interests).\nIn the case sub judice, defense counsel admitted to the trial court that he felt a greater responsibility to defendant\u2019s cause than to that of Melba Wright. Counsel also agreed with the court that the statement he sought to bring out contained portions that tended to inculpate Melba Wright, and exculpate his other client, the defendant. It is difficult to imagine a clearer case of conflicting interests than this one. The trial court here acted prudently and properly when it removed Mr. Cannon as counsel for Wright. We note further that defendant was in no way prejudiced by the court\u2019s actions since he was given the opportunity to consult with Melba Wright\u2019s counsel concerning her appearance as a witness and chose not to do so. Defendant\u2019s argument is thus unpersuasive.\nIV\nDefendant next argues that the trial court erred when it refused to grant his motion, made at the close of the State\u2019s evidence, to dismiss the felonious receiving of stolen goods charges against him. The rules governing motions to dismiss are familiar. As we opined in State v. James, 60 N.C. App. ---, --- S.E. 2d --- (filed 1 February 1983): \u201cThe trial court merely considers the testimony favorable to the State, assumes it to be true, and determines its legal sufficiency to sustain the allegations of the indictment. The weight and credibility of the testimony are matters for the jury.\u201d [Citations omitted.] The elements of the offense of feloniously receiving stolen goods are: (1) receiving or aiding in the concealment of goods; (2) of a value of more than $400.00; (3) stolen by someone else; (4) the receiver knowing or having reasonable grounds to believe the goods had been stolen; (5) the receiver acting with a dishonest purpose. N.C. Gen. Stat. \u00a7 14-71 (1981); State v. Haywood, 297 N.C. 686, 256 S.E. 2d 715 (1979). Defendant contends that the State presented evidence which was insufficient to prove the existence of the fifth element, \u201cdishonest purpose.\u201d Defendant\u2019s own, uncontradicted evidence was that three guns of suspicious origin were being kept in his house on the night in question, and he did nothing about them. After having been informed by Edmondson that his guns had been stolen, defendant told him \u201cif I [see] them I [will] get them back to you.\u201d We find that defendant\u2019s own evidence was sufficient to warrant an inference of his dishonest purpose and submission of the case to the jury.\nV\nDefendant\u2019s final argument is that the concurrent sentences imposed, \u201cnot less than 5 nor more than 7 years\u201d on both convictions, are indeterminate and violate the provisions of N.C. Gen. Stat. \u00a7 15A-1351(b) (1981). That statute provides, in pertinent part, that: \u201cSentencing of a person convicted of a felony that occurred on or after the effective date of Article 81A of this Chapter is subject to that Article; a minimum term of imprisonment shall not be imposed on such a person.\u201d Because the crimes took place after 1 July 1981, defendant\u2019s convictions are subject to the Article.\nWe are aware that the trial court found aggravating factors and that those factors outweighed any in mitigation. He was thus, assuming the findings were properly supported by the evidence, justified in imposing a sentence greater than the presumptive term. Nevertheless, the Legislature has mandated that the term chosen must be a definite number of years, and this the trial court did not do.\nAccordingly, we vacate that portion of the judgment imposing sentence and remand for sentencing not inconsistent with this opinion and Article 81A of the General Statutes.\nVacated and remanded.\nJudges WEBB and PHILLIPS concur.", "type": "majority", "author": "BECTON, Judge." } ], "attorneys": [ "Attorney General Edmisten, by Assistant Attorney General Daniel C. Oakley, for the State.", "Brandon & Cannon, by Glen E. Cannon, for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. RICHARD TIMOTHY LEGGETT\nNo. 822SC825\n(Filed 15 March 1983)\n1. Constitutional Law \u00a7\u00a7 46, 65\u2014 same counsel representing defendant and girlfriend \u2014 removal as counsel for girlfriend during defendant\u2019s trial\nIn a prosecution for receipt and possession of stolen property, defendant\u2019s Sixth Amendment right to confrontation was not denied by the trial court\u2019s removal of defendant\u2019s trial counsel as counsel for defendant\u2019s girlfriend, who had also been indicted for the same crimes, and the court\u2019s appointment of another attorney to represent the girlfriend so as to prevent a conflict of interest when defendant\u2019s counsel sought to elicit testimony during defendant\u2019s trial concerning statements made by the girlfriend to an officer which tended to inculpate her and exculpate defendant.\n2. Receiving Stolen Goods \u00a7 5.1\u2014 dishonest purpose \u2014 sufficiency of evidence\nThe evidence was sufficient to warrant an inference of dishonest purpose and to support defendant\u2019s conviction of felonious receiving of stolen guns where the evidence showed that the stolen guns were found at defendant\u2019s home, and defendant\u2019s own evidence showed that three guns of suspicious origin were being kept in his home on the night in question and defendant did nothing about them, and that after he was informed by the owner that his guns had been stolen, defendant told the owner that he would get them back to the owner if he saw them.\n3. Criminal Law \u00a7 139\u2014 impropriety of indeterminate sentence\nThe trial court erred in imposing an indeterminate sentence of not less than five nor more than seven years for crimes which occurred after 1 July 1981, since G.S. 15A-1351(b) prohibits the imposition of a minimum term of imprisonment after such date.\nAppeal by defendant from Lane, Judge. Judgment entered 30 March 1982 in Superior Court, MARTIN County. Heard in the Court of Appeals 9 February 1983.\nDefendant was found guilty of felonious receipt of stolen goods and felonious possession of stolen goods. The stolen goods \u2014three firearms \u2014 were valued at $605.00. From a judgment imposing a sentence of five to seven years, and restitution in the amount of $700.00, defendant appeals to this Court.\nAttorney General Edmisten, by Assistant Attorney General Daniel C. Oakley, for the State.\nBrandon & Cannon, by Glen E. Cannon, for defendant appellant." }, "file_name": "0295-01", "first_page_order": 327, "last_page_order": 332 }