{ "id": 8521491, "name": "STATE OF NORTH CAROLINA v. ROBERT ELIMU MOREHEAD", "name_abbreviation": "State v. Morehead", "decision_date": "1983-05-17", "docket_number": "No. 8218SC1071", "first_page": "226", "last_page": "233", "citations": [ { "type": "official", "cite": "62 N.C. App. 226" } ], "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": "297 S.E. 2d 763", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "766" } ], "opinion_index": 0 }, { "cite": "59 N.C. App. 672", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527182 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc-app/59/0672-01" ] }, { "cite": "273 S.E. 2d 464", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "301 N.C. 530", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569408, 8569292, 8569328, 8569457, 8569493, 8569373 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/301/0530-04", "/nc/301/0530-01", "/nc/301/0530-02", "/nc/301/0530-05", "/nc/301/0530-06", "/nc/301/0530-03" ] }, { "cite": "271 S.E. 2d 535", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "49 N.C. App. 337", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521229 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/49/0337-01" ] }, { "cite": "200 S.E. 2d 662", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "284 N.C. 426", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562626, 8562603, 8562577, 8562677, 8562654 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/284/0426-03", "/nc/284/0426-02", "/nc/284/0426-01", "/nc/284/0426-05", "/nc/284/0426-04" ] }, { "cite": "199 S.E. 2d 699", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "701" } ], "opinion_index": 0 }, { "cite": "19 N.C. App. 632", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555262 ], "year": 1973, "pin_cites": [ { "page": "635" } ], "opinion_index": 0, "case_paths": [ "/nc-app/19/0632-01" ] }, { "cite": "245 S.E. 2d 575", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "37 N.C. App. 155", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551123 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc-app/37/0155-01" ] }, { "cite": "171 S.E. 2d 475", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "7 N.C. App. 147", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548585 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc-app/7/0147-01" ] }, { "cite": "254 S.E. 2d 579", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "584-85" } ], "opinion_index": 0 }, { "cite": "297 N.C. 227", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568468 ], "year": 1979, "pin_cites": [ { "page": "234-35" } ], "opinion_index": 0, "case_paths": [ "/nc/297/0227-01" ] }, { "cite": "229 S.E. 2d 810", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1976, "pin_cites": [ { "page": "811" }, { "page": "811" } ], "opinion_index": 0 }, { "cite": "31 N.C. App. 248", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548946 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc-app/31/0248-01" ] } ], "analysis": { "cardinality": 789, "char_count": 16133, "ocr_confidence": 0.819, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.20549672973211952 }, "sha256": "1c3b874ac204717ab4ab8dfc6a47fdf6b8db5c91decdacffe88b6b1720f0f212", "simhash": "1:8107a446534cbd58", "word_count": 2730 }, "last_updated": "2023-07-14T22:38:59.213578+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Webb and Whichard concur." ], "parties": [ "STATE OF NORTH CAROLINA v. ROBERT ELIMU MOREHEAD" ], "opinions": [ { "text": "BRASWELL, Judge.\nDefendant\u2019s first assignment of error is to the failure of the court to allow his motion to dismiss the indictments on the counts of uttering forged checks on the ground that each indictment fails to allege that defendant uttered the check with the intent to defraud another. He contends this essential element is missing and that therefore the indictment is void. He relies principally upon State v. Hill, 31 N.C. App. 248, 229 S.E. 2d 810 (1976).\nAs the four indictments are substantially identical, we excerpt and examine the challenged part of one as being dispositive of the issue. A copy of the front and back of each check in the amount of $175.58 was attached to the indictment. All checks were dated 16 October 1980 and drawn on the account of Eastside Grocery at First Citizens Bank & Trust Company. The sample indictment follows:\n\u201c. . . [W]ittingly and unlawfully and feloniously did utter and publish as true a certain false, forged and counterfeited bank check, to which said bank check had been falsely forged the name of Faith Cooper as Payee, and the name of Lee V. Moore, Jr., as Maker to said bank check so that said bank check appeared to be genuine, and which said forged bank check is as follows that is to say: As per copy of check, marked Exhibit A, attached hereto and made a part hereof as though fully set out herein, with intent to defraud _he_, the said Robert Elimu Morehead at the time _he_ so uttered and published the said false, forged and counterfeited bank check then and there well knowing the same to be false, forged and counterfeited against the form of the statute in such case made and provided, and against the peace and dignity of the State.\u201d\nIn State v. Hill, supra, at 249-50, 229 S.E. 2d at 811, the indictment reads:\n\u201c . . [W]ittingly unlawfully and feloniously did utter and publish as true a certain false, forged, and counterfeit check, which said false, forged and counterfeit check is as follows: A check drawn upon the account of Craven Steel Company, Inc., Route #11, Box 430, Greensboro, North Carolina, dated October 29, 1974, check #2394 payable to the order of Billy G. Hill in the amount of $123.33, and drawn upon The Northwestern Bank, Greensboro, North Carolina, upon which the signature of Betty Bush had been forged with the intent to defraud, he the said Billy Gray Hill, at the time he so uttered and published the said false, forged, and counterfeit check, then and there well knowing the same to be false, forged and counterfeit.\u2019 \u201d\nWe think Hill is clearly distinguishable. The court in Hill said, \u201cNowhere does the indictment allege that defendant uttered the check with the intent to defraud others. The words \u2018with the intent to defraud,\u2019 as they appear in the indictment, modify the word \u2018forged\u2019 and are irrelevant to the distinct charge of uttering.\u201d Id. at 250, 229 S.E. 2d at 811. In our case the checks are not described in the body of the indictment but are attached and incorporated by reference. The phrase \u201cwith intent to defraud\u201d is set off by a comma. Logic and reason interpret the phrase to modify its ultimate verb. In Hill, the phrase modified the preceding word \u201cforged,\u201d which made the element defective. This assignment of error is without merit (even though someday some-, one should draft a less complex form). The indictment here was sufficient to inform defendant of the charge, to enable the court to proceed to judgment, and to bar further prosecution on the same offense.\nThe second assignment of error challenges the correctness of the jury instruction concerning aiding and abetting. Defendant contends he was not present when a codefendant passed the checks and that it was error for the trial court to fail to instruct the jury that they must find that he was actually or constructively present when the checks were passed.\nThe group planning of the offense took place in the defendant\u2019s apartment. The checks were forged by others in the apartment with the defendant\u2019s knowledge, and preparation for cashing the checks began there. Aikens, Leath, Phillips and the defendant left the apartment and traveled by automobile to four business establishments. Aikens went alone into each business. While Aikens was cashing each check, the others remained outside in the automobile, with defendant in the back seat. The auto was parked close to each establishment: J. C. Penney\u2019s, directly in front; Food Town, within 25 feet; Northgate Inn, within 35-40 feet; Wig World, in a parking lot across the street. Aikens testified that the defendant shared in the proceeds of her adventure.\nWhen the group left the house, the checks had not been signed. After all were in the automobile, the checks were given to Aikens from someone in the back seat. During the time, and before going to Northgate Inn, the defendant suggested that \u201cwe try motels and hotels, because he said if you rent a room for more than one day, they will always cash the check.\u201d When this suggestion was made, Leath had been dropped off, and only Aikens, Phillips and defendant were in the car.\nAfter full comparison and examination of the defendant\u2019s request for special instructions on aiding and abetting and of that portion of the charge on this same subject, we find this assignment of error to be without merit and that it would serve no purpose to quote from the requested instruction and from the charge. While the trial judge did not use the exact language as phrased by defendant, the judge correctly covered the substantive law and applied it to the evidence in his charge. State v. Sledge, 297 N.C. 227, 234-35, 254 S.E. 2d 579, 584-85 (1979). Although defendant\u2019s brief says: \u201cThe crime of an aiding and abetting (principle in the second degree) is a lesser included offense of the principal felony and a defendant may be convicted as such in an indictment charging the principal offense,\u201d (emphasis added), we point out that \u201caiding and abetting\u201d is not a separate crime, is not a lesser offense, and does not require a separate issue. Where one aids and abets another, he is guilty as a principal. State v. Holloway and State v. Jones, 7 N.C. App. 147, 171 S.E. 2d 475 (1970). The subject of the presence of defendant and his participation with Aikens in the crime in the role of one aiding and abetting was amply covered by the trial judge. Where supported by the evidence, the defendant\u2019s requested instructions were given.\nDefendant\u2019s reliance upon State v. Glaze, 37 N.C. App. 155, 245 S.E. 2d 575 (1978), is not well founded. While Glaze relied upon State v. Lyles, 19 N.C. App. 632, 635, 199 S.E. 2d 699, 701, cert. denied, 284 N.C. 426, 200 S.E. 2d 662 (1973), for the proposition that \u201c[i]n order to determine whether a defendant is present, the court must determine whether \u2018he is near enough to render assistance if need be and to encourage the actual perpetration of the felony,\u2019 \u201d the reported facts of Glaze differ substantially from this defendant\u2019s conduct. In Glaze, codefendant Hart stayed inside the motel room where the parties met and did not go to the pharmacy where the crime was committed and did not participate in the split of the drugs seized. Defendant Morehead, in our case, went with the group in an automobile to knowingly aid, abet, and encourage Aikens to utter known forged checks, and he shared in the fruits of Aikens\u2019 adventure. While in the automobile at each business establishment, Morehead was near enough to render assistance to Aikens if need be and his participation with the others in the forgery in his apartment, riding to the scene, handing the checks to Aikens in the auto, and aiding in providing a getaway ride, all encouraged the actual perpetration of this felony.\nThe fourth assignment of error alleges that the trial court erred in denying defendant\u2019s motion to dismiss for lack of a speedy trial, G.S. 15A-701 et seq. We disagree.\nWhile the date of offenses was 16 October 1980, the defendant was never arrested until 15 October 1981. Jury trial began 17 March 1982. One Hundred Fifty-three (153) days elapsed.\nCounsel does not contest the exclusion of 25 January 1982 through 22 February 1982 because he obtained a continuance to prepare for trial. This is 28 days.\nOn 16 October 1981, the day after his arrest, defendant obtained court-appointed counsel, a public defender. On 4 January 1982, defendant, by letter to Superior Court Judge Charles Kivett, requested that the public defender be discharged for reasons stated. On 5 January 1982 Judge Kivett ordered a hearing on the defendant\u2019s request, which was heard by Judge W. Douglas Albright on 8 January 1982. At that hearing the public defender joined in the motion of the district attorney to continue the trial of these cases retroactive from 16 October 1981 until 25 January 1982. The defendant had urged the public defender to get the cases tried as soon as possible. Finding a conflict of interest between counsel and defendant, Judge Albright discharged the public defender, appointed new counsel, and signed an order continuing the trial from 16 October 1981 through 25 January 1982. The time of 4 days from defendant\u2019s request for discharge of his attorney of 4 January 1982 through 8 January 1982, the date of the order, is clearly excludable. State v. Rogers, 49 N.C. App. 337, 271 S.E. 2d 535, disc. rev. denied, 301 N.C. 530, 273 S.E. 2d 464 (1980). One hundred fifty-three (153) days, minus 28 days, minus 4 days, leaves 121 days. We also hold that the 17 days from 8 January 1982 to 25 January 1982, which formed a part of Judge Albright\u2019s order of 8 January 1982, were properly excludable. When the 17 days are subtracted from the 121 days, it leaves 104 days, and thus the trial began within the 120-day statutory rule. We do not need to discuss or consider the retroactive time from 15 October 1981 to 4 January 1982 in Judge Albright\u2019s order.\nWe now turn to defendant\u2019s third assignment of error. He argues that it was error for the trial court to fail to dismiss the action where the indictments had previously been dismissed with leave by the State and were subsequently reinstated without further action by the grand jury and without adhering to the requirements of G.S. 15A-932.\nThe facts are that defendant was indicted on 5 January 1981. The defendant could not be found, and on 27 April 1981 the State took a voluntary dismissal with leave. Defendant was not arrested until 15 October 1981. On 4 January 1982 the indictments were reinstated.\nWe think defendant\u2019s argument is amply answered in State v. Reekes, 59 N.C. App. 672, 297 S.E. 2d 763 (1982). In Reekes the voluntary dismissal with leave was taken on 1 June 1981 for defendant\u2019s failure to appear. His arrest was on 29 August 1981. The reinstatement did not occur until 14 December 1981 when the case was placed on the calendar. The Reekes court stated: \u201cOnce the prosecutor entered a dismissal with leave for nonappearance of the defendant pursuant to G.S. 15A-932, G.S. 15A-701(b)(11) controlled and the speedy trial clock did not resume running against the State until the proceedings were reinstituted against the defendant on 14 December 1981.\u201d Id. at 676, 297 S.E. 2d at 766. The time of reinstatement was also found to be \u201creasonable.\u201d\nThe final assignment of error alleges that the trial court erred in denying the motion to suppress evidence. In the suppression hearing the facts disclosed that a search warrant was issued to search for items taken in a breaking and entering offense at the Eastside Grocery. During the search a manual typewriter and a piece of paper with defendant\u2019s name on it in plain view were also seized. The warrant did not list the typewriter as being a part of the stolen goods. However, in the affidavit portion of the search warrant there was sworn information that codefendant Aikens had said that a manual typewriter had been used to fill out the checks at defendant\u2019s residence. Defendant contends that seizure of the typewriter was unlawful \u201c[sjince the search warrant did not particularly describe a typewriter as an item to be seized.\u201d We hold the seizure was lawful under the plain view doctrine as shown in the evidence and that it was not required that the typewriter be described in the search warrant. We also note that the typewriter was not \u201cstolen property\u201d from the Eastside Grocery, but was already in the defendant\u2019s apartment at the time of the search. The affidavit did put the officer on notice of another crime, the forging of checks on a typewriter, and the officer was not required to be blind when he was lawfully in the defendant\u2019s quarters looking for goods from the breaking and entering.\nWe hold that the defendant has had a fair trial free from prejudicial error.\nNo error.\nJudges Webb and Whichard concur.\n. We share the following sagacity from the State\u2019s brief:\n\u201cAs for defendant\u2019s argument concerning the number of sentences, words, commas and colons in the indictments as proof of vagueness, it is respectfully submitted that exclusive of description, the usual fee simple warranty deed is prepared as a single sentence containing in excess of 230 words, 18 commas, 4 semi-colons and 2 colons. That deed is historically cited as a model of clarity and expression.\u201d", "type": "majority", "author": "BRASWELL, Judge." } ], "attorneys": [ "Attorney General Rufus L. Edmisten by Special Deputy Attorney General T. Buie Costen for the State.", "Graham, Cooke, Miles & Bogan by Donald T. Bogan for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ROBERT ELIMU MOREHEAD\nNo. 8218SC1071\n(Filed 17 May 1983)\n1. Forgery \u00a7 2.1\u2014 indictment for uttering \u2014 allegation of intent to defraud\nAn indictment for uttering a forged check sufficiently alleged that defendant uttered the check with the intent to defraud where it appears that the words \u201cwith the intent to defraud\u201d as they appear in the indictment modify the words \u201cdid utter and publish.\u201d\n2. Criminal Law \u00a7 113.7\u2014 giving requested instructions on aiding and abetting\nThe trial court in a prosecution for uttering forged checks in effect gave defendant\u2019s requested instructions on aiding and abetting which were supported by the evidence.\n3. Criminal Law \u00a7 91\u2014 statutory speedy trial period \u2014 exclusion of times for continuances and motion to discharge counsel\nAlthough 153 days elapsed between the time of defendant\u2019s arrest and his trial, the 120-day statutory speedy trial period was met when 45 days for two continuances and four days between defendant\u2019s request for the discharge of his counsel and the court\u2019s order discharging counsel are excluded from the 153-day period.\n4. Indictment and Warrant \u00a7 2\u2014 voluntary dismissal with leave \u2014 reinstatement of indictments by prosecutor\nWhere defendant was indicted on 5 January 1981, the State took a voluntary dismissal with leave on 27 April 1981 because defendant could not be found, and defendant was arrested on 15 October 1981, the prosecutor could properly reinstate the indictments on 4 January 1982 without further action by the grand jury. G.S. 15A-932 and G.S. 15A-701(b)(ll).\n5. Searches and Seizures \u00a7 40\u2014 search under warrant \u2014 item not listed in warrant-plain view doctrine\nAlthough a typewriter was not listed as an item to be seized in a warrant to search for stolen goods, the typewriter was properly seized under the plain view doctrine during a search of defendant\u2019s residence pursuant to the warrant where the affidavit for the warrant contained information that a codefend-ant had said that a manual typewriter was used to fill out forged checks at defendant\u2019s residence, and the typewriter was thus evidence of another crime.\nAppeal by defendant from Helms, Judge. Judgment entered 19 March 1982 in Superior Court, Guilford County. Heard in the Court of Appeals 12 April 1983.\nDefendant was indicted on four charges of forgery and four charges of uttering a forged instrument. Four forged checks were uttered by cashing and placing them in the channels of commerce by Jo Laverne Young Aikens in Greensboro on 16 October 1980. Defendant Morehead, Dwight Leath and Tony Phillips participated with Aikens. Aikens testified as a State\u2019s witness. Defendant Morehead was convicted of 4 charges of uttering forged instruments and appeals.\nAttorney General Rufus L. Edmisten by Special Deputy Attorney General T. Buie Costen for the State.\nGraham, Cooke, Miles & Bogan by Donald T. Bogan for defendant appellant." }, "file_name": "0226-01", "first_page_order": 258, "last_page_order": 265 }