State v. Bryant ( 2015 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-134
Filed: 17 November 2015
Cabarrus County, Nos. 13 CRS 050172-73
STATE OF NORTH CAROLINA
v.
JOHNNY BURRIS BRYANT, JR.
Appeal by defendant from judgments entered 11 September 2014 by Judge
Kevin Bridges in Cabarrus County Superior Court. Heard in the Court of Appeals
26 August 2015.
Attorney General Roy Cooper, by Special Deputy Attorney General Staci T.
Meyer, for the State.
Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Anne
M. Gomez, for defendant.
McCULLOUGH, Judge.
Defendant appeals from his convictions of possession of a firearm by a felon
and discharging a weapon into an occupied dwelling. For the reasons stated herein,
we find no plain error.
I. Background
On 19 August 2013, defendant Johnny Burris Bryant, Jr. was indicted in case
number 13 CRS 50172 for possession of a firearm by a felon in violation of N.C. Gen.
Stat. § 14-415. This indictment was superseded by an indictment issued
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8 September 2014. On 19 August 2013, defendant was also indicted in case number
13 CRS 50173 for discharging a weapon into an occupied dwelling in violation of N.C.
Gen. Stat. § 14-34. This indictment was superseded by an indictment issued
14 April 2014.
Defendant’s trial commenced at the 8 September 2014 criminal session of
Cabarrus County Superior Court, the Honorable Kevin M. Bridges presiding.
Jennifer Garmon testified that on 31 December 2013, she was living at 1722 Clemson
Court, Kannapolis, North Carolina, in the Royal Oaks Gardens apartment complex.
She and her fiancé, Daniel Long, were sleeping when around 3:00 a.m. they were
awakened by a commotion outside. Ms. Garmon heard “a lot of screaming, sounded
like a lot of people running around outside, people yelling[.]” She saw Delonte Scott
run from a crowd of people in front of apartment 1727, the apartment of Shirley and
Jamie Collins, and into his sister’s apartment 1713, “which was directly across the
street from my house.” She could tell that Mr. Scott was bleeding. Mr. Scott’s sister
came out of the apartment and made “comments about how that was her brother and
that wasn’t going to happen[.]” An ambulance and police arrived on the scene.
Lieutenant Brian Ritchie of the Kannapolis Police Department testified that
around 2:19 a.m. on 1 January 2013, he responded to a call regarding a
“fight in progress” at Royal Oaks Gardens Apartments. When he arrived on the
scene, Delonte Scott had already been taken by ambulance to the hospital. After
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unsuccessfully searching for the suspect in the assault, LaShawn Blount, officers left
the scene at 3:20 a.m.
Ms. Garmon testified that soon after the ambulance and police had left the
scene, a black car drove into the apartment complex and two men stepped out of the
vehicle. She heard people say “[w]ell, Blaze is here, it will be handled, and I kind of
just sat back and watched.” Ms. Garmon and Mr. Long both learned that “Blaze” was
defendant and defendant was Scott’s brother. Defendant was the driver of the vehicle
and Walter Sumlin was the passenger. Ms. Garmon testified that Walter Sumlin was
a “little bit smaller” than defendant and that he had a silver gun in his pants.
Defendant pulled a black pistol out of the waistband of his pants. Defendant, with
the black pistol in his hand, started screaming “I don’t care if you’re cribs; I don’t care
if you’re blood; you did my family wrong; somebody is going to get it.” Ms. Garmon
saw defendant walk toward the apartment of Shirley and Jamie Collins and fire his
pistol towards the apartment’s doorway. The bullet entered the home of Joseph Fezza
and Champale Woodard, immediate neighbors of the Collins’ apartment. Afterwards,
defendant and Sumlin ran into apartment 1713.
Sharita Huntley, a resident of 1745 Clemson Court, testified that she saw
“Johnny Blaze,” whom she identified as defendant, with a black gun in his hand. She
testified that he shot it once in the air in the direction of Shirley Collins’ apartment.
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Champale Woodard testified that she lived at 1727 Clemson Court in the Royal
Oaks Gardens Apartments with her two children, Daya and Michael Fezza. Joseph
Fezza, Ms. Woodard’s boyfriend, also lived at 1727 Clemson Court. Michael Fezza’s
bedroom was located upstairs. On the night of 31 December 2012, he slept in his
room. On the morning of 1 January 2013, Ms. Woodard found two bullet holes in his
room near his crib. Joseph Fezza called the police to report the bullet holes.
Trooper Travis Meadows testified that he responded to Mr. Fezza’s call and
saw two bullet holes on the wall of Michael Fezza’s room. He believed the two holes
were made by one bullet. Officer Samuel Gadd of the Kannapolis Police Department
recovered a bullet from the wall of 1727 Clemson Court. Lieutenant Ritchie, who also
responded to the scene, testified that he received information that Delonte Scott “had
been set up by the occupants of that apartment at 1729, that they had invited him
over for the purpose of him being assaulted.” Lieutenant Ritchie received information
that LaShawn Blount may be located in 1745 Clemson Court. As he was searching
this apartment, a man told Lieutenant Ritchie that there was a man at the bottom of
the steps with “two guns in his waistband.” Lieutenant Ritchie identified the
individual suspected to have guns in his waistband as Walter Sumlin. Lieutenant
Ritchie and another officer asked Sumlin to go outside. Sumlin appeared “very
nervous” and after they all walked outside, he “took off running.” As he was running,
Sumlin reached into his front waistband, removed a black semi-automatic handgun,
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and dropped it to the ground. Sumlin then pulled a second gun from his waistband, a
silver revolver with a brown grip, and dropped it to the ground as well. Eventually,
Sumlin was apprehended.
Deborah Chancey, an analyst of firearms related evidence for the North
Carolina State Crime Lab, was tendered as an expert in the field of forensic firearms
analysis. She tested the following items: a silver INA 38 special revolver; a blue
black Star 9-millimeter semi-automatic pistol; and one fired bullet. The silver
revolver was eliminated as a source of the fired bullet. However, Ms. Chancey
confirmed that the fired bullet was from the black pistol.
Defendant testified on his own behalf. He testified that about 2:30 a.m. on
1 January 2013, he received a phone call informing him that his brother had been
assaulted. He got into a car with his girlfriend and three other girls to head toward
the apartment complex. Upon arrival, defendant exited the car, approached his
sister, and asked about LaShawn Blount’s whereabouts. He was told that Blount was
no longer there. Defendant testified that he was “asking everybody like what
happened with my brother. They was telling me things. I asked them why didn’t
nobody stop them; why did they let this happen to my brother, and so on and stuff of
that nature.” Defendant heard a gunshot but did not witness the shooting itself.
Thereafter, he ran into his sister’s apartment at 1713 Clemson Court.
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Defendant denied taking any weapons to the scene. Defendant admitted to
being a felon since 1998. He testified that he did not currently own a weapon.
Defendant further testified that his nickname was “Blaze” based on his “excessive
marijuana use.” He denied that his nickname had anything to do with “viciousness
or violence.”
Defendant’s girlfriend, Selma Gray, testified that on 31 December 2012, she
had gone to a club with defendant and two of her friends. After they left the club and
headed toward a local liquor house, defendant received a call “that somebody had
jumped on his brother.” They decided to check on defendant’s brother and headed to
the apartment complex. They all exited the vehicle upon arrival and heard a gunshot.
Gray did not see who fired the gun.
On 11 September 2014, a jury found defendant guilty of both counts.
Defendant was sentenced as a Prior Record Level III. Defendant was sentenced to a
term of 17 to 30 months for the possession of a firearm by a felon conviction and a
term of 84 to 113 months for the discharging of a weapon into an occupied dwelling
conviction.
Defendant entered notice of appeal in open court.
II. Discussion
On appeal, defendant argues that (A) his conviction of discharging a firearm
into an occupied dwelling must be vacated because the indictment was insufficient to
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charge this crime; (B) the trial court erred by granting the State’s request for a special
jury instruction; and, (C) the trial court erred by allowing the admission into evidence
and publication of the arrest warrant in case number 13 CRS 50173. We address
each argument in turn.
A. Indictment
Defendant argues that his conviction of discharging a firearm into an occupied
dwelling must be vacated because the indictment was insufficient to charge this
crime. Specifically, defendant argues that the term “apartment” is not synonymous
with the term “dwelling” pursuant to N.C. Gen. Stat. § 14-34.1(b). Defendant also
argues that the indictment was insufficient because it charged defendant with being
in violation of N.C. Gen. Stat. § 14-34, instead of N.C. Gen. Stat. § 14-34.1(b). We
disagree.
On appeal, our Court reviews the sufficiency of an indictment de novo. State
v. Marshall, 188 N.C. App. 744, 748, 656 S.E.2d 709, 712 (2008). “[T]he purpose of
an indictment . . . is to inform a party so that he may learn with reasonable certainty
the nature of the crime of which he is accused[.] . . . The general rule in this State and
elsewhere is that an indictment for a statutory offense is sufficient, if the offense is
charged in the words of the statute, either literally or substantially, or in equivalent
words.” State v. Simpson, __ N.C. App. __, __, 763 S.E.2d 1, 3 (2014) (citations and
quotation marks omitted). The purpose of the indictment is “to identify clearly the
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crime being charged, thereby putting the accused on reasonable notice to defend
against it and prepare for trial, and to protect the accused from being jeopardized by
the State more than once for the same crime.” State v. Sturdivant, 304 N.C. 293, 311,
283 S.E.2d 719, 731 (1981). “Our courts have recognized that while an indictment
should give a defendant sufficient notice of the charges against him, it should not be
subjected to hyper technical scrutiny with respect to form.” In re S.R.S., 180 N.C.
App. 151, 153, 636 S.E.2d 277, 280 (2006).
Here, the 14 April 2014 superseding indictment charged that defendant
unlawfully, willfully and feloniously did DISCHARGE A
FIREARM TO WIT: A PISTOL INTO APARTMENT 1727
CLEMSON COURT, KANNAPOLIS, NC AT THE TIME
THE APARTMENT WAS OCCUPIED BY MICHAEL
FEZZA.
The indictment alleged that defendant was in violation of N.C. Gen. Stat. § 14-34.
A jury convicted defendant of discharging a weapon into an occupied dwelling
in violation of N.C. Gen. Stat. § 14-34.1(b), a Class D felony. “The elements of the
offense prohibited by G.S. § 14-34.1 are (1) the willful or wanton discharging (2) of a
firearm (3) into any building (4) while it is occupied.” State v. Jones, 104 N.C. App.
251, 258, 409 S.E.2d 322, 326 (1991). Subsection (b) of N.C. Gen. Stat. § 14-34.1 states
that “[a] person who willfully or wantonly discharges a weapon described in
subsection (a) of this section into an occupied dwelling . . . is guilty of a Class D
felony.” N.C. Gen. Stat. § 14-34.1(b) (2013).
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Defendant argues that the term “apartment” is not synonymous with the term
“dwelling” because an apartment is not always a residence or dwelling. Defendant
asserts that “while people often rent apartments as dwellings, this is not invariably
true.” Defendant’s argument is not convincing.
We note that “[t]he protection of the occupant(s) of the building was the
primary concern and objective of the General Assembly when it enacted G.S. 14-34.1.”
State v. Canady, 191 N.C. App. 680, 687, 664 S.E.2d 380, 384 (2008) (citation
omitted). Also, the plain meaning of “apartment” includes “dwelling” as it is defined
as “a room or set of rooms fitted especially with housekeeping facilities and usually
leased as a dwelling.” Merriam-Webster Online Dictionary 2015. We refuse to subject
defendant’s superseding indictment to hyper technical scrutiny with respect to form.
If we were to rule that an “apartment” is not a “dwelling” within the meaning of N.C.
Gen. Stat. § 14-34.1, we would contravene the purpose of the statute.
Accordingly, we hold that the body of the superseding indictment sufficiently
charged defendant in the words of the statute by alleging that defendant willfully
discharged a firearm into an occupied apartment. Although the superseding
indictment referenced N.C. Gen. Stat. § 14-34 instead of N.C. Gen. Stat. § 14-34.1(b),
it did not constitute a fatal defect as to the validity of the indictment as defendant
was put on reasonable notice as to the charge against him.
B. Special Jury Instruction
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Defendant argues that the trial court erred by granting the State’s request for
a special jury instruction.
Because defendant did not make a challenge to the jury instruction at trial, we
only consider whether the trial court committed plain error.
For error to constitute plain error, a defendant must
demonstrate that a fundamental error occurred at trial. To
show that an error was fundamental, a defendant must
establish prejudice that, after examination of the entire
record, the error had a probable impact on the jury’s
finding that the defendant was guilty.
State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (citation and
quotation marks omitted).
Defendant challenges the following portion of the trial court’s jury instructions:
The defendant has been charged with discharging a
firearm into an occupied dwelling. For you to find the
defendant guilty of this offense, the State must prove three
things beyond a reasonable doubt. First, that the
defendant willfully or wantonly discharged a firearm into
a dwelling. An act is willful or wanton when it is done
intentionally, with knowledge or a reasonable ground to
believe that the act would endanger the rights or safety of
others.
Second, that the dwelling was occupied by one or more
persons at the time that the firearm was discharged. And,
third, that the defendant had reasonable grounds to believe
that the dwelling was occupied by one or more persons.
The State is not required to prove that the defendant
intentionally discharged a firearm at a victim or at
the occupied property. This is a general intent
crime, and the intent element applies to the
discharging of the firearm, not the eventual
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destination of the bullet.
If you find from the evidence beyond a reasonable doubt
that on or about the alleged date the defendant willfully or
wantonly discharged a firearm into a dwelling while it was
occupied by one or more persons, and that the defendant
had reasonable grounds to believe that it was occupied by
one or more persons, it would be your duty to return a
verdict of guilty. If you do not so find or have a reasonable
doubt as to one or more of these things, it would be your
duty to return a verdict of not guilty.
(emphasis added).
On appeal, defendant argues that the State must prove that defendant
“intentionally fired at a building or vehicle, although a specific intent that the bullet
actually enter into the property need not be shown.”
In Canady, the defendant threatened to shoot a man. The defendant pulled
out his gun and pointed the gun at the man’s head and fired his gun. 191 N.C. App.
at 684, 664 S.E.2d at 382. The shot went past the man’s head and into the siding of
the exterior wall of a neighbor’s apartment. Id. The defendant argued that the trial
court erred by denying his motion to dismiss the charge of discharging a firearm into
occupied property because there was insufficient evidence that he intentionally
discharged the firearm at either the man or at the neighbor’s apartment and that he
fired “into” the apartment. Our Court held that his argument was “irrelevant since
the construction of the statute clearly shows that the intent element applies merely
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to the discharging, not to the eventual destination of the bullet.” Id. at 685, 664
S.E.2d at 383. The Canady Court noted that:
A person violates this statute if he intentionally, without
legal excuse or justification, discharges a firearm into an
occupied building with knowledge that the building is then
occupied by one or more persons or when he has reasonable
grounds to believe that the building might be occupied by
one or more persons. Furthermore, our Supreme Court has
stated that [d]ischarging a firearm into a vehicle does not
require that the State prove any specific intent but only
that the defendant perform[ed] the act which is forbidden
by statute. It is a general intent crime.
Id. at 686, 664 S.E.2d at 383 (citation and quotation marks omitted). Accordingly,
the Court held that evidence clearly supported the conclusion that the defendant
intentionally discharged the gun, “although he may not have intended for the bullet
to come to rest in the wall of the apartment building.” Id. at 686, 664 S.E.2d at 384.
Here, as in Canady, there was sufficient evidence presented that defendant
intentionally discharged a pistol as recounted by several witnesses. Based on the
foregoing, defendant cannot establish that the challenged jury instruction was made
in error, much less plain error.
C. Arrest Warrant 13 CRS 50173
In his last argument, defendant contends that the trial court erred by
admitting into evidence the arrest warrant in case number 13 CRS 50173. Defendant
failed to object to the admission of this evidence at trial, so we review for plain error.
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The arrest warrant in case number 13 CRS 50173 listed the offense of
“discharging a weapon into an occupied dwelling” in which a magistrate attested to
the fact that “there is probable cause to believe that . . . the defendant . . . unlawfully,
willfully and feloniously did DISCHARGE A FIREARM TO WIT: A SILVER IN
COLOR PISTOL INTO APARTMENT 1727 CLEMSON COURT, KANNAPOLIS,
N.C. AT THE TIME THE APARTMENT WAS OCCUPPIED BY JOSEPH FEZZA.”
Defendant argues that because the State is not allowed to enter into evidence
indictments or pleadings against a defendant, the State should also not be allowed to
enter into evidence arrest warrants. He maintains that the jury could interpret the
magistrate’s statement as conclusive evidence that defendant is guilty of the offense.
Defendant asserts that admission of the arrest warrant amounted to a violation of
N.C. Gen. Stat. § 15A-1221(b) (2013) which provides that “[a]t no time during the
selection of the jury or during trial may any person read the indictment to the
prospective jurors or to the jury.”
Defendant relies on the holding in State v. Jones, 157 N.C. App. 472, 579 S.E.2d
408 (2003). In Jones, our Court held that the admission and publication of a
misdemeanor citation (resisting a public officer and displaying a fictitious
registration plate) was erroneous based on N.C. Gen. Stat. § 15A-1221(b). The Jones
Court stated that “our Supreme Court’s interpretation of the statute [is] a means of
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protecting jurors from being influenced by ‘the stilted language of indictments and
other pleadings[.]’ ” Id. at 476, 579 S.E.2d at 411 (citation omitted).
We agree with defendant that admission of the arrest warrant in case number
13 CRS 50173 amounted to error. However, the circumstances of the case sub judice
are readily distinguishable from those found in Jones. In Jones, there was only one
witness for the State, the officer who issued the citation to the defendant, and his
testimony “presented a very different account of what happened . . . than did
defendant and his three witnesses. The jury’s verdicts essentially turned on which
account the jury believed.” Id. at 478, 579 S.E.2d at 412. Here, there was testimony
from more than one witness indicating that defendant intentionally discharged his
pistol. Jennifer Garmon testified that defendant had a black pistol in his hand and
fired it towards the Collins’ apartment. Sharita Huntley testified that she saw
defendant with a gun in his hand and that he shot it in the air towards the Collins’
apartment. Furthermore, Daniel Long testified that he saw defendant waving a black
gun in the air and thereafter heard a gunshot. Testimony from a firearms analyst
confirmed that the bullet found in the wall of the apartment occupied by Michael
Fezza was discharged from the black pistol entered into evidence. Accordingly, we
hold that the trial court’s error did not have a probable impact on the jury’s finding
that the defendant was guilty.
III. Conclusion
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We hold that the indictment was sufficient to charge defendant with
discharging a firearm into an occupied dwelling and that the trial court did not err in
granting the State’s request for a special instruction. Although we hold that it was
error for the trial court to admit the arrest warrant in case number 13 CRS 50173
into evidence, it did not amount to plain error.
NO PLAIN ERROR.
Judges STEPHENS and ZACHARY concur.
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