State v. Dudley
State v. Dudley
Opinion of the Court
The defendant first assigns error to the court’s failure to declare a mistrial ex mero motu after a statement on direct ex
It is not clear on what ground the defendant contends it was error for Mr. Rose to have testified as he did. He does not contend the defendant’s rights as defined by Miranda v. Arizona, 384 U.S. 436, 16 L.Ed. 2d 694 (1966), were infringed upon. In the superior court he argued that he had not been provided this statement during pre-trial discovery as required by N.C.G.S. § 15A-903(a)(2). The State does not argue that it would not have been error to have allowed this testimony. Rather, the State argues that any error was cured by the court’s allowing the motion to strike and instructing the jury to disregard it. Assuming it would have been error to have admitted this testimony, any improper prejudice was cured by the court’s instruction to the jury not to consider it. State v. Ray, 212 N.C. 725, 194 S.E. 482 (1938). If the court had on its own motion declared a mistrial without the consent of the defendant, the defendant might well have been in a position to plead double jeopardy at a new trial. State v. Lowery, 286 N.C. 698, 213 S.E. 2d 255 (1975). This assignment of error is overruled.
Defendant next assigns error to the failure of the superior court to arrest judgment on one of the two charges of rape on the first victim. The evidence showed that the defendant completed the intercourse with her but was not successful in his attempts with the second victim. He then completed the act with the first
The defendant next assigns error to the court’s failure to arrest judgment on the first degree kidnappings or the rape and attempted rape convictions. He relies on State v. Freeland, 316 N.C. 13, 340 S.E. 2d 35 (1986), which holds that a person may not be convicted of both first degree kidnapping and a sexual assault if the sexual assault has to be proved to convict the defendant of kidnapping. We held that to do so would place the defendant in double jeopardy. Defendant did not at trial move to arrest judgment on first degree kidnappings or the rape and attempted rape convictions or sentences on double jeopardy grounds. He has, therefore, waived his right to raise the issue on appeal. State v. Freeman, 319 N.C. 609, 356 S.E. 2d 765 (1987); State v. Mitchell, 317 N.C. 661, 346 S.E. 2d 458 (1986); and State v. McKenzie, 292 N.C. 170, 232 S.E. 2d 424 (1977).
We elect, nevertheless, in the exercise of our supervisory power over the trial divisions, N.C. Const. Art. IV, § 12; N.C.G.S. § 7A-32 and pursuant to Rule 2 of the North Carolina Rules of Appellate Procedure, to review this issue on appeal. See State v. Stanley, 288 N.C. 19, 215 S.E. 2d 589 (1975); and State v. Hewett, 270 N.C. 348, 154 S.E. 2d 476 (1967).
In this case the defendant was convicted of two counts of first degree rape and the first degree kidnapping of one victim. Under State v. Belton, 318 N.C. 141, 347 S.E. 2d 755 (1986), he is entitled to have judgment arrested as to one of the charges. He was convicted of first degree sexual offense and first degree kid
We remand the case to the superior court for further proceedings. On remand the superior court may as to the charges involving the first victim arrest judgment on one of the first degree rape convictions or on the first degree kidnapping conviction. As to the charges involving the second victim the court may arrest judgment on the attempted first degree rape or the first degree kidnapping conviction. If the court arrests judgment on either of the first degree kidnapping convictions it will enter a verdict of guilty of second degree kidnapping. The court will then resentence the defendant accordingly.
The defendant next assigns error to the failure of the court properly to credit to his sentence the time he was in jail awaiting trial. The two life sentences which were imposed on the defendant are to run concurrently. The court ordered that the defendant receive 111 days credit on one life sentence for time spent in jail but did not order any credit on the other life sentence. N.C.G.S. § 15-196.2 provides in part:
In the event time creditable under this section shall have been spent in custody as the result of more than one pending charge, resulting in imprisonment for more than one offense, credit shall be allowed as herein provided. . . . Each concurrent sentence shall be credited with so much of the time as was spent in custody due to the offense resulting in the sentence.
The defendant should have been credited on both life sentences with time spent in jail awaiting trial. At a new sentencing, the court may properly give the defendant credit for time spent in jail.
No error in the trial; remanded for new sentencing proceedings.
Concurring in Part
concurring in part and dissenting in part.
I concur in the majority holding that there was no error in the guilt phase of defendant’s trial. I dissent to this Court’s review of the double jeopardy issue that counsel concedes has
Reference
- Full Case Name
- State of North Carolina v. Brian Keith Dudley
- Cited By
- 40 cases
- Status
- Published