NO. COA05-1666JUDICIAL DISTRICT TWENTY-SEVEN-A
NORTH CAROLINA COURT OF APPEALS
*******************************
STATE OF NORTH CAROLINA)
)From Gaston County
v.)Nos. 04CRS59553, 59557-59559,
)59698, 59702-3, 59707, 59710-11
HUGH LOCKLEAR, SR.,)
Defendant)
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DEFENDANT-APPELLANT’S BRIEF
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INDEX
PAGE
TABLE OF CASES AND AUTHORITIES ...... iii
QUESTIONS PRESENTED ...... 1
STATEMENT OF CASE ...... 1
STATEMENT OF FACTS ...... 2
ARGUMENT:
I.THE COURT ABUSED ITS DISCRETION BY DENYING THE DEFENDANT’S MOTION FOR A MISTRIAL WHEN THE ALTERNATE JUROR WAS PRESENT
IN THE JURY ROOM MORE THAN AN HOUR AFTER DELIBERATIONS HAD BEGUN. 18
A.Standard of Review ...... 18
B.Discussion ...... 19
II.THE COURT ABUSED ITS DISCRETION WHEN IT PERMITTED TRIAL TO GO FORWARD AFTER THE JURY HAD BEEN TAINTED BY EVIDENCE THAT THE DEFENDANT HAD BEEN PREVIOUSLY IMPRISONED AND THEN ALLOWED ADDITIONAL EVIDENCE OF PREVIOUS IMPRISONMENT TO BE PLACED BEFORE THE JURY. 25
A.Standard of Review ...... 26
B.Discussion ...... 26
III.THE COURT COMMITTED ERROR IN ITS SEVERAL MISTAKEN JURY INSTRUCTIONS. 28
A.Standard of Review ...... 28
B.Discussion ...... 29
CONCLUSION ...... 32
CERTIFICATE OF SERVICE ...... 34
APPENDIX: Strader Transcript
TABLE OF CASES AND AUTHORITIES
CASES
PAGE
State v. Augustine,
359 N.C. 709, 616 S.E.2d 515 (2005)...... 29
State v. Bindyke,
288 N.C. 608, 220 S.E.2d 521 (1975)...... 19-25
State v. Godwin,
95 N.C.App. 565, 383 S.E.2d 234 (1989)...... 19, 22
State v. Hardison,
326 N.C. 646, 392 S.E.2d 364 (1990)...... 18, 19, 26
State v. Harris,
306 N.C. 724, 295 S.E.2d 391 (1982)...... 28
State v. Haskins,
104 N.C. App. 675, 411 S.E.2d 376 (1991), disc. rev.
denied, 331 N.C. 287, 417 S.E.2d 256 (1992)...... 28
State v. Jernigan,
118 N.C.App. 240, 455 S.E.2d 163 (1995)...... 25
State v. Lotharp, 148 N.C. App. 435, 559 S.E.2d 807,
reversed on other grounds,
356 N.C. 420, 571 S.E.2d 583 (2002)...... 27
State v. McQueen,
165 N.C.App. 454, 598 S.E.2d 672 (2004), disc. rev.
denied, 359 N.C. 285, 610 S.E.2d 385 (2005)...... 27
State v. Parker,
350 N.C. 411, 516 S.E.2d 106 (1999)...... 25
State v. Roache,
358 N.C. 243, 595 S.E.2d 381 (2004)...... 29
STATUTES, RULES, AND CONSTITUTIONAL PROVISIONS
N.C. Gen. Stat. § 15A-1061 (2005)...... 18, 19, 26
N.C. Gen. Stat. § 15A-1443(a) (2005)...... 26, 29
N.C. Gen. Stat. § 8C-1, Rule 401 (2005)...... 27
N.C. Gen. Stat. § 8C-1, Rule 402 (2005)...... 28
N.C. Gen. Stat. § 8C-1, Rule 403 (2005)...... 28
N.C. Const., Art. I, § 23...... 31
N.C. Const., Art. I, § 24...... 25
U.S. Const., Amend. VI...... 31
U.S. Const., Amend. XIV...... 31
OTHER AUTHORITIES
N.C.P.I. Crim. 104.35...... 32
1
NO. COA05-1666JUDICIAL DISTRICT TWENTY-SEVEN-A
NORTH CAROLINA COURT OF APPEALS
*******************************
STATE OF NORTH CAROLINA)
)From Gaston County
v.)Nos. 04CRS59553, 59557-59559,
)59698, 59702-3, 59707, 59710-11
HUGH LOCKLEAR, SR.,)
Defendant)
*******************************
DEFENDANT-APPELLANT’S BRIEF
*******************************
QUESTIONS PRESENTED
I.DID THE COURT ABUSE ITS DISCRETION BY DENYING THE DEFENDANT’S MOTION FOR A MISTRIAL WHEN THE ALTERNATE JUROR WAS PRESENT IN THE JURY ROOM MORE THAN AN HOUR AFTER DELIBERATIONS HAD BEGUN?
II.DID THE COURT ABUSE ITS DISCRETION WHEN IT PERMITTED TRIAL TO GO FORWARD AFTER THE JURY HAD BEEN TAINTED BY EVIDENCE THAT THE DEFENDANT HAD BEEN PREVIOUSLY IMPRISONED AND THEN ALLOWED ADDITIONAL EVIDENCE OF PREVIOUS IMPRISONMENT TO BE PLACED BEFORE THE JURY?
III.DID THE COURT COMMIT ERROR IN ITS SEVERAL MISTAKEN JURY INSTRUCTIONS?
STATEMENT OF THE CASE
The action of State of North Carolina v. Hugh Locklear, Sr. was tried to a jury in the General Court of Justice, Superior Court Division, County of Gaston, at the 15 August 2005 Criminal Session, the Honorable J. Gentry Caudill, judge presiding. On 19 August 2005, the jury returned verdicts of guilty on the charges of felony breaking and entering; felony larceny; two counts of trafficking opiates by possession; possession of Darvocet; possession with intent to manufacture, sell, or deliver hydrocodone; possession with intent to manufacture, sell, or deliver Darvocet; maintaining a vehicle, dwelling, or place for controlled substance; reckless driving; speeding; failing to heed light or siren; failing to stop for steady red light; driving the wrong way on a one-way street or road; and assault on a law enforcement animal; and not guilty of injury to personal property. Following a sentencing hearing on 22 August 2005, the court entered judgment, imposing a sentence of 225 to 275 months imprisonment and a fine of $500,000. The Defendant gave timely notice of appeal and now appeals to this Court. The record on appeal was filed on 27 December 2005, docketed on 2 February 2006, and mailed from the clerk’s office on 9 February 2006.
STATEMENT OF FACTS
In a case arising in Gaston County, Hugh Locklear, Sr., was charged with multiple offenses. (R. pp. 2-12, 24-37, 47-58) Following a jury trial at the 15 August 2005 Criminal Session, the Honorable J. Gentry Caudill, judge presiding, on 19 August 2005, the jury returned verdicts of guilty on multiple charges and not guilty of injury to personal property. (R. pp. 107-121) Following a sentencing hearing on 22 August 2005, the court entered judgment, imposing a sentence of 225 to 275 months imprisonment and a fine of $500,000. (R. pp. 122, 125-127) His conviction is before this Court for review. The evidence tended to show the following:
On 7 June 2004, Tashia Clontz and her boyfriend, Eric Prine, were driving down Franklin Boulevard in Gastonia at about 7:00 or 7:15 p.m. (Lagies T. pp. 24-25, 68) Ms. Clontz knew that, at time of trial, her boyfriend, Mr. Prine, had some pending charges in Gaston County (Lagies T. p. 64), and Mr. Prine had several previous convictions for breaking and entering, larceny, possession of stolen goods, fleeing to elude, and concealed weapons, as well as a probation violation pending in Gaston County at the time of trial. (Lagies T. pp. 85-86, 112)
On the evening of 7 June 2004, Mr. Prine was driving and Ms. Clontz was his passenger. (See Lagies T. pp. 52, 75) Upon hearing a siren or alarm, they saw a man breaking out glass in a pharmacy named Prescriptions Plus. (Lagies T. pp. 26-28, 67) There was a man waiting in a nearby truck, and two men came out of the pharmacy carrying what looked like boxes. (Lagies T. pp. 28, 72) The two men got in the nearby truck and drove off, and Ms. Clontz and Mr. Prine followed. (Lagies T. pp. 31-32, 70)
While following the truck, they had called the police and had been told to get the tag number. When they had reached the highway, the truck started speeding, and the police told Ms. Clontz and Mr. Prine to get the tag number and then to get beside the truck. (Lagies T. pp. 32-33) At trial, Ms. Clontz and Mr. Prine identified the Defendant as the driver they saw, and Mr. Prine also identified him as one of the men running out of the pharmacy. (Lagies T. pp. 33-34, 72, 73)
Law enforcement later got behind the truck, and, chased by law enforcement, it left the highway at an exit. Both the truck and law enforcement were speeding off the exit and took a left, and the truck ran off the road. (Lagies T. pp. 36-37, 78) Once Mr. Prine and Ms. Clontz caught up to where the truck was, they got out of their car, gave statements to the police, and identified the Defendant. (Lagies T. pp. 38-39, 79) Ms. Clontz identified a person named Harry Sapp as the person who had been waiting in the truck and Hugh Locklear, Jr., as the other person coming out of the pharmacy. (Lagies T. pp. 41)
That same evening, Amber Webb and her mother, Celine Webb, were also driving on Franklin Boulevard in Gastonia. (Lagies T. pp. 119, 135) Amber saw three men in a Ford truck, robbing a pharmacy. One man was sitting on the driver’s side, and the man on the driver’s side and the man who had been sitting in the middle got out of the truck. The two who got out broke out the window of the pharmacy, jumped in, and came back out carrying a white pill bottle. They put the pills in the truck and drove off, chased by another car. (Lagies T. pp. 120, 122, 124-125, 135-137) Celine Webb had written down a tag number (ASH7723) on a piece of paper and given it to an officer at a red light. (Lagies T. p. 139) Amber and her mother called law enforcement and went home. The next day, law enforcement interviewed them and showed them a photo of the Defendant. Amber stated that the Defendant was “just standing outside the truck waiting on the other guy to get through breaking in the pharmacy,” but Celine Webb was unable to identify anyone. (Lagies T. pp. 129, 141)
Officer Keith McCabe of the Gastonia Police Department (GPD) testified that, about 8:45 p.m. that evening, he received a broadcast for a car in the area of I-85 North with respect to a gray pick-up from exit 17. (Lagies T. p. 146) Approaching Cox Road, Officer McCabe testified that fellow Officer Cosgrove activated his vehicle’s blue lights, and the pick-up moved to the emergency strip as if to stop, then made an abrupt lane change, exited, proceeded across the grassy space between the exit ramp and the interstate, went up the wrong lane toward Main Street, and took a right turn heading north on Main toward Lowell. (Lagies T. pp. 147-148) The pick-up then went down an embankment area and came to rest. Three people exited the pick-up. (Lagies T. p. 149) Officers chased them on foot, and Officer McCabe saw that Officer Bingham had caught one. (Lagies T. pp. 150-151)
Meanwhile, Officer McCabe noticed a white male with dark clothing similar to the driver at a pay phone, wiping his face with a T-shirt. He asked the gentleman for identification and was presented with a Florida identification for Hugh Locklear. Mr. Locklear complied with his request to come back to where a vehicle had left the roadway. There, a witness identified Mr. Locklear as the driver, and he was arrested. (Lagies T. pp. 151-152, 156)
A search of the pick-up truck found two tubs of an unknown controlled substance that “looked like pill bottles that were in the passenger’s side floorboard.” (Lagies T. p. 157) The tag on the pick-up was Georgia plate AJH7233, and found inside the truck was an occupational tax registration certificate for Hugh Locklear. (Lagies T. p. 158, 160)
Mr. Locklear had been placed in Officer McCabe’s vehicle, but when Officer McCabe returned to the vehicle after the search of the pick-up, the rear glass was broken, and the Defendant was gone. Officer Dobey (GPD) went back to the scene to do a K-9 search and found Mr. Locklear. (Lagies T. pp. 162-163, 254-255) Mr. Locklear became “very belligerent” and began to “lunge and growl and agitate” the officer’s dog. (Lagies T. p. 256) While placing the Defendant in Officer Cosgrove’s vehicle, the Defendant “spit on Officers Cosgrove and Dobey.” (Lagies T. pp. 164, 257) When the Defendant had been found, he “had stepped towards Officer Dobey’s K-9.” (Lagies T. p. 165)
Officer Chad Bingham, a K-9 handler with GPD, had joined the chase as a secondary car. (Lagies T. pp. 193-194, 196) During the chase, he estimated the pick-up’s speed at 70-75 mph and saw the pick-up run through the stoplight at the exit ramp. (Lagies T. pp. 196, 199) When the pick-up came to rest, he saw the passenger side suspect flee, carrying “some sort of black bag.” (Lagies T. p. 200) He caught that suspect, identified as Hugh Locklear, Jr. (Lagies T. pp. 201-202)
Also at the scene was Officer Rodney Aldridge (GPD). He saw the pick-up where it came to rest, and he photographed the bag and collected it for evidence, turning it over to Officer Cosgrove. Then, in the pick-up he noticed some large white bottles, similar to eight large white bottles he had seen in the bag when he had looked in it. (Lagies T. pp. 212-213, 215)
Officer Charles Ray (GPD) went to the pharmacy and met with the owner’s son; it was determined that several large pill bottles were missing. (Lagies T. pp. 233-234) In sum, there were the following bottles missing:
Number of Bottles / Amount of dosage / Substance / Numbers of doses1 / 10 mg / Hydrocodone / 1,000
3 / 7.5 mg / Hydrocodone / 3,000
3 / 10 mg / Hydrocodone / 3,000
3 / 1,000 mg / Propoxyphene / 3,000
(See Lagies T. pp. 240-241)
Detective Eric Starling (GPD) testified that Hydrocodone was a Schedule III controlled substance and that Propoxyphene Napsylate, also known as Darvocet, was a Schedule IV controlled substance. (Lagies T. pp. 271-272) According to his testimony, the dosage units of Hyrdocodone totaled 5,600 grams, and the dosage units of Darvocet totaled 2,820 grams. (Lagies T. pp. 278-279) Detective Starling also testified that, besides the Defendant, Hugh Locklear, Sr., and his son, Hugh Locklear, Jr., who were already in custody, further investigation identified a third person: Harry Carl Sapp, Jr. (Lagies T. pp. 283) Mr. Sapp was apprehended in Jacksonville, Florida, and brought back to Gaston County. (Lagies T. pp. 283-284, 291)
Detective Starling further testified about identifications made by various persons interviewed during his investigation. Thus, Mr. Prine and Ms. Clontz identified Mr. Sapp and both Locklears, Jr. and Sr. (Lagies T. pp. 285, 286) Amber Webb identified the Defendant, Hugh Locklear, Sr., as the man who broke out the pharmacy window and the person who she saw placing pill bottles in the pick-up. (Lagies T. pp. 288, 289) Celina Webb could not identify any photos. (Lagies T. p. 290) But he also testified that Celina Webb stated that Mr. Locklear, Jr., was the driver, and Mr. Locklear, Sr., was the man who broke the window. (Lagies T. p. 291) On cross-examination, it appeared that there were two witnesses saying Hugh Locklear, Sr. was the driver, contradicted by two witnesses saying that Hugh Locklear, Jr., was the driver. (Lagies T. p. 308)
Harry Sapp testified that he had grown up with Hugh Locklear, Jr., and had known the Defendant, Hugh Locklear, Sr., through his son. (Lagies T. p. 314) Asked if he had known him his whole life, Mr. Sapp responded, “Bits and pieces. I’ve known him my whole life, but he’s been in prison and then get out, and he’d go to Georgia and then come back.” (Lagies T. p. 315) No objection was made, and Mr. Sapp continued that he and Locklear, Jr., had been working together in Alabama and then drove from Alabama to Jacksonville, Florida, where they both had family, and where they met Hugh Jr.’s mother. They learned that Hugh Locklear, Sr., “was out of jail and that he was in trouble, and so [they] went . . .” At that point, defense counsel objected and moved to strike, and the trial court sent the jury out. (Lagies T. p. 317)
Outside the presence of the jury, the court referred to the previous (unobjected) mention of prison indicating that the court itself “wasn’t sure, he was sort of mumbling - - but it sounded like he said something about prison.” The trial court then warned the assistant district attorney about “risking a mistrial” and instructed him to talk with the witness and the witness’s lawyer. The Defendant moved for a mistrial on the following grounds:
First time I believe he was mumbling a little bit, and I was afraid if I said something it would call more attention to what the members of the jury may or may not have heard. But now the second reference to any first stay in prison, second stay in jail, I would ask the Court to consider a motion for a mistrial, that this jury has now been tainted with otherwise incompetent evidence. (Lagies T. p. 319)
The trial court deferred ruling on the motion for mistrial and, after voir dire, ruled that testimony about bond money or previous imprisonment were not admissible, but that the Defendant’s statement that “he wasn’t going back to prison” would be admissible. (Lagies T. p. 321) Rather than a mistrial, the trial court promised to instruct the jury to disregard the inadmissible testimony. Then, upon the jury’s return, the court sustained the Defendant’s objection and instructed the jury to disregard the witness’s previous statement. (Lagies T. p. 322)
In his further testimony before the jury, Mr. Sapp testified that, when he arrived in Gaston County with Hugh Locklear, Jr., and Sr., he awoke at a little farmer’s market next to a pharmacy. The Defendant having told him to go see if there was a camera in the pharmacy, he returned to tell the Defendant that he did not see one. Then, he sat in the truck while the Defendant and his son went to the pharmacy. They then went to the Defendant’s family’s house, and Mr. Sapp awoke with a “shotgun laying next to [him],” which the Defendant stuck behind the seat of the pick-up. (Lagies T. p. 323)
From the Defendant’s family’s house, they went to a Piggly Wiggly where Mr. Sapp got a drink, and the Defendant went into a store and purchased “some toboggans and sweaters.” Then, they left and went across the street from the pharmacy, and the Defendant told Mr. Sapp that he wanted him to break the window. (Lagies T. p. 324) When Mr. Sapp refused, the Defendant outlined his plan: break out the window, go in, get it, leave by the back road, take the interstate, and be gone before anyone noticed. (Lagies T. pp. 324-325) Mr. Sapp agreed.
They pulled over beside the pharmacy. Mr. Sapp broke the window with a baseball bat, the Defendant ran into the store, and Hugh Locklear, Jr., sat in the truck. (Lagies T. pp. 325, 329) The Defendant got some pills, came back out, and got into the driver’s seat of the truck. Hugh Locklear, Jr. sat in the middle, and Mr. Sapp sat in the passenger seat. (Lagies T. p. 326) While in the pick-up, Hugh Locklear, Jr., was looking through the bag that the Defendant used to carry out the pill bottles and said they were Hydrocodone. The Defendant and his son talked about how they could get a lot of money for the pills. (Lagies T. pp. 330-331)
They got on the interstate and a small car pulled up beside them with a blonde female on a cell phone. The Defendant rolled down his window and started flirting with her. Then, police cars started appearing and the Defendant was
like, hold on, you know. He’s like, I’m not going back to prison and - -
Objection
Overruled (Lagies T. p. 326)
After the chase, Mr. Sapp climbed out the window of the pick-up, got across a field, knocked on a door at a house, and the resident took him to a motel where he got a room, bought a calling card, and called his boss. His boss instructed him to catch a bus back to Orlando, Florida, but he got off the bus in Jacksonville. (Lagies T. pp. 327-328)