State v. Walters ( 2016 )

IN THE SUPREME COURT OF NORTH CAROLINA
No. 344PA14
Filed 18 March 2016
STATE OF NORTH CAROLINA
v.
GARY MAURICE WALTERS
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous,
unpublished decision of the Court of Appeals, ___ N.C. App. ___, 765 S.E.2d 122
(2014), finding no error in part in judgments entered on 28 June 2013 by Judge
William R. Pittman in Superior Court, Robeson County, but vacating defendant’s
conviction for first-degree kidnapping and ordering a new trial on that charge. Heard
in the Supreme Court on 17 February 2016.
Roy Cooper, Attorney General, by Mary Carla Babb, Assistant Attorney
General, for the State-appellant.
Paul F. Herzog for defendant-appellee.
HUDSON, Justice.
Defendant Gary Maurice Walters was convicted on 28 June 2013 of first-degree
kidnapping, attempted first-degree murder, and assault with a deadly weapon with
intent to kill inflicting serious injury. On appeal, the Court of Appeals vacated
defendant’s conviction for first-degree kidnapping on the basis that the trial court
had given “a disjunctive instruction concerning the purpose for which [d]efendant
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Opinion of the Court
acted that lacked adequate evidentiary support,” which, the Court of Appeals
concluded, effectively allowed defendant to be convicted based on a non-unanimous
jury verdict. State v. Walters, ___ N.C. App. ___, 765 S.E.2d 122, 2014 WL 4292074,
at *9 (2014) (unpublished). We allowed the State’s petition for discretionary review
on 5 November 2015. Because we now conclude that the trial court’s disjunctive jury
instruction did not violate defendant’s constitutional right to be convicted only by the
unanimous verdict of a jury in open court, see N.C. Const. art. I, § 24, we reverse in
part the decision of the Court of Appeals.
I. FACTUAL AND PROCEDURAL BACKGROUND
On the evening of 17 August 2005, Paul Franklin began a two-day period of
repeatedly buying and using cocaine, during which he was introduced to, and
purchased cocaine from, defendant. After Franklin ran out of money while staying at
the Redwood Inn in Lumberton, North Carolina, he allowed defendant to use his
vehicle, a gray Ford Windstar van, in exchange for more cocaine. This arrangement
continued through the next day, with defendant bringing Franklin cocaine every few
hours in exchange for the continued use of the van.
Early in the morning of 19 August 2005, at approximately 3:30 a.m., Franklin’s
paycheck was deposited into his bank account, and defendant drove him in the van
to an ATM to withdraw money. After Franklin made the withdrawal, defendant
offered to bring Franklin “a third of cocaine” in exchange for the one hundred dollars
Franklin had available to spend. However, when defendant arrived back at the
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Redwood Inn with the cocaine, Franklin believed it to be worth less than the full
amount he had offered to pay; he offered defendant seventy-five dollars instead. In
response, defendant reached down and broke off the leg of a table in the hotel room,
then used the table leg to beat Franklin.
A short time later, at approximately 5:30 or 6:00 a.m., defendant arrived at the
home of Christopher Bass and Shelly Scott. At defendant’s request, Bass used Scott’s
Honda Civic to follow defendant while defendant drove Franklin’s Windstar. They
eventually parked near a river, and defendant told Bass that he had a man in the
van. Defendant opened the door to show him Franklin in the back seat. According
to Bass, Franklin’s face “was mangled and beat up, and it sounded like he was
breathing heavy.” Defendant told Bass that the injuries were the product of a “tussle”
stemming from “a drug deal gone wrong” at the Redwood Inn. Bass answered in the
negative when defendant asked him if he should kill Franklin. Defendant left the
van at the scene and Bass used the Civic to drive defendant back to defendant’s
mother’s house.
The injuries Franklin endured were severe. As a result of the beating, every
bone in Franklin’s face was broken; he suffered optic nerve damage, which caused
him to have blind spots; and his eye socket was so badly damaged that doctors could
not correctly realign his eyes, which resulted in double vision. He suffered such
extensive facial scarring that he “went a year with no nose.” When doctors attempted
reconstructive surgery, an antibiotic-resistant staph infection prevented them from
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completing it successfully. As a result of the damage to his vision, Franklin could no
longer continue his employment as a truck driver.
On 8 May 2006, defendant was indicted in Robeson County for first-degree
kidnapping, attempted first-degree murder, and assault with a deadly weapon with
intent to kill inflicting serious injury. The charges against defendant were called for
trial on 24 June 2013, and a jury was selected and impaneled the next day. The State
presented evidence from 26 June through 28 June; defendant presented evidence on
28 June. Also on 28 June 2013, the trial court instructed the jury regarding the
offenses with which defendant had been charged: attempted first-degree murder,
assault with a deadly weapon with intent to kill inflicting serious injury, and first-
degree kidnapping. Regarding the elements of first-degree kidnapping, the trial court
instructed as follows:
The defendant has been charged with first degree
kidnapping. For you to find the defendant guilty of this
offense, the State must prove five things beyond a
reasonable doubt: First, that the defendant unlawfully
removed a person from one place to another; second, that
the person did not consent; third, that the defendant
removed that person for the purpose of facilitating his
commission of or flight after committing the felony of
assault with a deadly weapon with intent to kill inflicting
serious injury; fourth, that this removal was a separate,
complete act, independent of and apart from the assault;
and fifth, that the person was not released by the
defendant in a safe place or had been seriously injured.
Later that day, the jury returned verdicts convicting defendant of all three offenses.
Defendant entered a written notice of appeal to the Court of Appeals on 5 July 2013.
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At the Court of Appeals, defendant argued, inter alia, that he had been denied
his right to a unanimous jury verdict regarding the first-degree kidnapping charge;
defendant took particular issue with the instruction allowing the jury to convict him
of first-degree kidnapping if it found beyond a reasonable doubt that he had
committed the kidnapping “for the purpose of facilitating the commission of or flight
following the commission of a felony.” Applying its precedent in State v. Johnson, 183
N.C. App. 576, 646 S.E.2d 123 (2007), the Court of Appeals agreed, concluding that
the challenged instruction would have allowed one or more jurors to convict defendant
based on a theory not supported by the evidence, namely, that defendant had
committed the kidnapping to facilitate the assault of Franklin rather than a
subsequent escape. See Walters, 2014 WL 4292074, at *8-9. The Court of Appeals
therefore ordered a new trial on the charged offense of first-degree kidnapping. Id.
at *9. The State filed a petition for discretionary review, which we allowed on 5
November 2015.
II. ANALYSIS
Defendant contends to this Court, as he did to the Court of Appeals, that the
trial court’s “disjunctive” instruction to the jury regarding the charge of first-degree
kidnapping allowed the jury to convict him through a non-unanimous verdict.
Defendant argues in essence that the relevant instruction—that to convict, the jury
must find that defendant “removed [Franklin] for the purpose of facilitating the
commission of or flight following the commission of a felony” (emphases added)—
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allowed each individual juror to vote to convict on either basis. As a result, this
argument continues, some jurors obeying this instruction may have found as fact that
defendant kidnapped Franklin “to facilitate the commission of” the assault or
attempted murder, but not the flight afterward, while others may have found that
defendant kidnapped Franklin “to facilitate . . . flight following the commission of”
the assault or attempted murder, but not the assault or attempted murder itself. In
that event, there would be no unanimously agreed-upon basis for the conviction, in
seeming violation of the unanimity requirement.
Because this argument has previously been considered and rejected by this
Court, we now reverse in part the decision of the Court of Appeals. See State v. Bell,
359 N.C. 1, 29-30, 603 S.E.2d 93, 112-13 (2004), cert. denied, 544 U.S. 1052 (2005).
Both the North Carolina Constitution and the North Carolina General Statutes
protect the right of the accused to be convicted only by a unanimous jury in open
court. See N.C. Const. art. I, § 24 (“No person shall be convicted of any crime but by
the unanimous verdict of a jury in open court . . . .”);1 N.C.G.S. § 15A-1237(b) (2015)
1This provision of the constitution was amended in 2014 and now states in full:
No person shall be convicted of any crime but by the
unanimous verdict of a jury in open court, except that a person
accused of any criminal offense for which the State is not seeking
a sentence of death in superior court may, in writing or on the
record in the court and with the consent of the trial judge, waive
jury trial, subject to procedures prescribed by the General
Assembly. The General Assembly may, however, provide for
other means of trial for misdemeanors, with the right of appeal
for trial de novo.
N.C. Const. art. I, § 24.
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(requiring that a jury verdict “be unanimous, and . . . be returned by the jury in open
court”). But it does not follow from these constitutional and statutory guarantees
that every disjunctive jury instruction violates one or both of those guarantees.
Rather, as we explained in Bell, which the Court of Appeals did not mention even
though that case also concerned a jury instruction for first-degree kidnapping, our
case law has long embraced a distinction between unconstitutionally vague
instructions that render unclear the offense for which the defendant is being
convicted and instructions which instead permissibly state that more than one
specific act can establish an element of a criminal offense. See 359 N.C. at 29-30, 603
S.E.2d at 112-13. As we explained in Bell:
Two lines of cases have developed regarding the use
of disjunctive jury instructions. State v. Diaz [317 N.C.
545, 346 S.E.2d 488 (1986), and its progeny] stand[ ] for the
proposition that “a disjunctive instruction, which allows
the jury to find a defendant guilty if he commits either of
two underlying acts, either of which is in itself a separate
offense, is fatally ambiguous because it is impossible to
determine whether the jury unanimously found that the
defendant committed one particular offense.” In such
cases, the focus is on the conduct of the defendant.
In contrast, this Court has recognized a second line
of cases [stemming from State v. Hartness, 326 N.C. 561,
391 S.E.2d 177 (1990), ] standing for the proposition that
“if the trial court merely instructs the jury disjunctively as
to various alternative acts which will establish an element
of the offense, the requirement of unanimity is satisfied.”
In this type of case, the focus is on the intent or purpose of
the defendant instead of his conduct.
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Id. at 29-30, 603 S.E.2d at 112-13 (emphases in original) (internal citations omitted)
(quoting State v. Lyons, 330 N.C. 298, 302-03, 412 S.E.2d 308, 312 (1991)).
This case falls within the second category of cases described in Bell. There, as
here, the defendant was charged with first-degree kidnapping; there, as here, the
trial court instructed the jury that it could convict the defendant only if it found
beyond a reasonable doubt that the defendant had committed one or more specific
acts, any of which could establish an essential element of the offense; and there, as
here, the defendant argued that the trial court’s “disjunctive” instruction violated his
right under the North Carolina Constitution to be convicted only through a
unanimous jury verdict. In that virtually identical context, this Court held that the
trial court’s disjunctive instruction did not deprive the defendant of this right. See
id. at 29, 603 S.E.2d at 112 (“The trial court instructed the jury as to first-degree
kidnapping, in accord with the pattern jury instructions . . . . Defendant contends
that the trial court’s disjunctive instructions were fatally ambiguous because the jury
could have convicted defendant without a unanimous decision that defendant
confined, restrained, or removed the victim for the purpose of committing a specific
crime. We disagree.”). We then went on to explain:
It is not necessary for the State to prove, nor for the jury to
find, that a defendant committed a particular act other
than that of confining, restraining, or removing the victim.
Beyond that, a defendant’s intent or purpose is the focus,
thus placing the case sub judice squarely within the
Hartness line of cases. The trial court’s instructions and
the verdict form were proper.
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Id. at 30, 603 S.E.2d at 113. Accordingly, consistent with our previous opinion in
Bell, we now reverse in part the decision of the Court of Appeals.2
III. CONCLUSION
For the reasons set forth above, we reverse the Court of Appeals’ holding that
defendant is entitled to a new trial for the first-degree kidnapping charge. We do not
address, and leave undisturbed, the Court of Appeals’ conclusions regarding the
convictions for attempted first-degree murder and assault with a deadly weapon with
intent to kill inflicting serious injury.
REVERSED IN PART.
Justice ERVIN did not participate in the consideration or decision of this
case.
2We also note, despite the Court of Appeals’ conclusion to the contrary, see Walters,
2014 WL 4292074, at *8-9, that the State’s evidence, when viewed in the light most favorable
to the State, was sufficient to support a finding by the jury that defendant had kidnapped
Franklin in order to facilitate defendant’s assault of Franklin with the intent to kill inflicting
serious injury. As reviewed above, the State’s evidence tended to show that, after beating
Franklin with a table leg, defendant loaded Franklin into the Windstar, drove that Windstar
to an isolated location near a river, and asked Christopher Bass whether he ought to kill
Franklin. Because this testimony tends to show that defendant still may have intended to
kill Franklin even after the beating was over and he had removed Franklin from the Redwood
Inn, it appears that the State presented sufficient evidence to support a reasonable inference
that defendant moved Franklin to “facilitate[ ] his commission of . . . the felony of assault
with a deadly weapon with intent to kill inflicting serious injury.” Cf. State v. Kyle, 333 N.C.
687, 695, 430 S.E.2d 412, 416 (1993) (“[T]he fact that all [the] essential elements of a crime
have arisen does not mean the crime is no longer being committed. That the crime was
‘complete’ does not mean it was completed.” (citation omitted) (quoting State v. Hall, 305 N.C.
77, 82-83, 286 S.E.2d 552, 555-56 (1982), overruled on other grounds by Diaz, 317 N.C. at 555,
346 S.E.2d at 495)). Accordingly, it appears that the State’s evidence was sufficient to
support either portion of the trial court’s disjunctive jury instruction.
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