State v. Cox ( 2017 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-188
Filed: 21 November 2017
Wayne County, Nos. 12 CRS 55798-99; 13 CRS 3281
STATE OF NORTH CAROLINA
v.
JUJUAN MAQUIS COX, Defendant.
Appeal by Defendant from judgment entered 21 October 2015 by Judge J.
Carlton Cole in Wayne County Superior Court. Heard in the Court of Appeals 24
August 2017.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Steven
M. Arbogast for the State.
Patterson Harkavy LLP, by Narendra K. Ghosh, for defendant-appellant.
HUNTER, JR., Robert N., Judge.
Jujuan Maquis Cox (“Defendant”) appeals from a 21 October 2015 judgment
entered after a jury convicted him of first-degree murder, second-degree murder,
attempted first-degree murder, two counts of assault with a deadly weapon with
intent to kill, and five counts of discharging a weapon into occupied property.
Defendant argues the trial court erred by: (1) failing to dismiss the first-degree
murder charge on the theory of lying in wait; (2) failing to dismiss the charge of
second-degree murder; (3) failing to dismiss the charge of assault with a deadly
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Opinion of the Court
weapon with the intent to kill inflicting serious injury (“AWDWIKISI”); and (4) giving
a coercive jury instruction after the jury repeatedly stated it was deadlocked.
Defendant also argues ineffective assistance of counsel. We find the court committed
no error on the issues raised on appeal and dismiss Defendant’s claim of ineffective
assistance of counsel without prejudice to refile the claim in a Motion for Appropriate
Relief.
I. Procedural and Factual Background
On 5 August 2013, a grand jury indicted Defendant on multiple counts of first-
degree murder, attempted first-degree murder, AWDWIKISI, discharging a firearm
into an occupied dwelling, and two counts of discharging a firearm into an occupied
vehicle. The State tried Defendant on the following: two charges of first-degree
murder, two charges of attempted first-degree murder, two charges of AWDWIKISI,
three charges of discharging a firearm into an occupied dwelling, and two charges of
discharging a firearm into an occupied vehicle in operation.
On 12 October 2015, the trial court called Defendant’s case for trial. The
State’s evidence tended to show the following. The State first called Aaron Michael
Cantwell (“Cantwell”) with the Wayne County Sheriff’s Office. While on duty on 2
December 2012, Cantwell received a “shots fired” call over the radio as he was driving.
Upon arrival at the scene, Cantwell saw another officer’s patrol car approach.
Cantwell then spoke to a man walking on a path crossing Mt. Olive Road, when he
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heard a female voice crying for help. The two officers approached the screaming
woman, who directed them to a trailer. Cantwell entered the trailer through its back
door, and heard a “painful holler.”
Advancing into the trailer, Cantwell saw three victims lying on the floor. The
first man Cantwell saw was shot and immobile. The second man, later identified as
Trae Stokes (“Stokes”), was also shot, but was “coherent and yelling.” Cantwell
noticed a .40 caliber Glock handgun under some clothing between the unconscious
individual and Stokes. Cantwell instructed the other officer to keep people from
entering the trailer. Cantwell then “secured” the weapon by locking it in the trunk
of his car, and called EMS. Upon arrival, EMS initially treated Stokes in the trailer’s
kitchen. EMS then “removed and transported [Stokes] to Wayne Memorial Hospital.”
While EMS treated Stokes, Cantwell checked the other two individuals for signs of
life.
The State next called Stokes. Stokes and the victim, Jamal Anthony Kornegay
(“Kornegay”), had a fifteen year-long friendship. Stokes also knew the other victims
Leonard Darden (“Darden”) and Nakiea Felicia Garner (“Garner”). Stokes recognized
Defendant in the courtroom, and stated they attended school together their entire
lives. Stokes was “absolutely” familiar with Defendant’s voice.
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On 2 December 2012, Stokes drove to Kornegay’s trailer. Upon entering the
trailer, Stokes saw Kornegay, Garner, and Darden sitting around the kitchen table.
Stokes saw Defendant drive his van outside Kornegay’s trailer.
At this point, Kornegay went outside. Kornegay returned within 10 seconds
and stated, “Juan outside on that bullshit.” Stokes knew Kornegay referred to
Defendant. Stokes then heard Defendant yell from outside, “tell your bitch ass home
boy [Darden] to come outside.” About three seconds later, Stokes heard gun shots
and ran into another room. “After that it was just multiple shots came [sic] through
the trailer.”
Stokes knew the shots went through the trailer, “[b]ecause you could see the
debris as they hit.” Stokes stated Kornegay and Garner stayed in the kitchen, on the
floor:
As I heard shots I’m laying in this doorway, like laying in
the doorway. As I heard shots I peeked out, and I see that
[Kornegay] has a pool of blood up under his chest because
he’s face-down, but he has a pool of blood so I’m trying to
see where he’s shot. As I’m sliding out, [Garner] raise her
head up, and I seen that she had got shot . . . I slid across
the floor like right here. I got in between both of them
trying to assess their wounds.
As Stokes slid across the room towards Kornegay and Garner, Stokes received a shot
in his leg. After Stokes was shot, he heard more shots. He remained still until the
police arrived.
The shots subsided, and Darden exited a different room. Stokes told Darden
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Opinion of the Court
to leave and to call an ambulance. Stokes “[saw Darden] go out the back door,” and
he “heard his car leave.” Once Darden “got about to the top of the path pulling out
on to the highway[,]” Stokes heard more shots. Stokes saw Kornegay’s handgun and
took it in case someone entered the trailer.
At this point, Stokes saw Thompson enter the trailer. Stokes told Thompson
to call an ambulance. Thompson left and the police arrived shortly thereafter.
Stokes admitted he lied to the Sheriff’s deputies when they interviewed him in
the hospital. Stokes told members of the Sheriff’s Department he did not recognize
Defendant’s voice, when he actually did. Stokes felt “the police that we have in Wayne
County, they don’t really do their job on murders, so I would much rather handle it
myself.”
The State next called Darden. Darden knew Defendant, Kornegay, and Garner
for ten years. Darden also knew Stokes and Thompson. According to Darden,
Kornegay lived alone and possessed a .40 caliber Glock handgun. On 2 December
2012, Darden visited Kornegay at Kornegay’s trailer. Stokes and Garner arrived
later. Kornegay received a phone call from Thompson and went outside for about
three to five minutes. Kornegay then came back inside and said, “[Defendant] outside
on that bullshit.” As Darden stood in the hallway with Kornegay, he heard
approximately ten gunshots. More gunshots continued for fifteen minutes. Kornegay
walked past a window to check on Garner, and he received a shot in the head. Garner
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received a shot in her head as she jumped to grab Kornegay.
Darden went to Kornegay, and noticed his faint breath. Darden also noticed
Stokes’s leg wound. After the shooting stopped, Darden ran out the back door and
jumped into his vehicle. Defendant stood by the trailer’s driveway with an assault
rifle. Darden drove down the path toward Old Mt. Olive Highway, and Defendant
shot at Darden’s vehicle. Darden saw police lights at the highway. Darden then
pulled up in front of the police, and told them Defendant shot him in the arm.
Thompson testified next for the State. Thompson and Defendant knew each
other all their lives. Thompson visited Kornegay the evening of the shooting.
Initially, Thompson remained in his car, and saw Defendant’s van. He also saw
Defendant exit the van while holding a rifle. Thompson yelled for Kornegay to come
outside and also called out Defendant had a rifle. Thompson heard Defendant yell,
“tell your pussy ass home boy[Darden] to come outside.” Thompson testified as he
left Kornegay’s trailer:
I back up, I go back where [Defendant] was, and ah -- I tell
him, I said man, you need to leave before you do something
you regret tonight. He said whatever, whatever I do
tonight I make bond off tomorrow; so I pull up a little bit, a
few feet, I stop because I get a feeling like, yo, I roll the
window down, I said Jujuan Cox, you better not shoot in
my car when I drive off. He says to me Antonio Thompson,
I don’t have no problems with you; I got a problem with
your cousin. So I drives off. I get to the end of the path.
When I get on the highway I hear gunshots, so I start
calling [Kornegay’s] phone and he won’t pick up.
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Thompson then phoned Stokes. Stokes told Thompson everyone in the house
was shot. Thompson travelled back toward Kornegay’s trailer. On his way,
Thompson saw the police stop at the trailer. The police talked to an unknown man
by Defendant’s van. Thompson returned and entered the trailer before the police
arrived. Thompson saw everyone was shot. Only Stokes was alive, but he suffered a
shot in his leg. Thompson then heard several more gunshots.
The State rested. At the close of the State’s evidence, Defendant moved to
dismiss the two first-degree murder charges, the attempted first-degree murder
charges, the assault with a deadly weapon with intent to kill, and the shooting into
an occupied dwelling and an occupied vehicle. Defendant’s trial counsel specifically
argued “there’s been not one scintilla of evidence that the [D]efendant, with malice
aforethought, which is intent to kill or premeditation or deliberation has been
presented in this case concerning either Jamal Anthony Kornegay or Neekea Felicia
Garner.” Defendant’s counsel further argued, “there’s been no evidence whatsoever
presented in this courtroom by anyone that the [D]efendant unlawfully, willfully and
feloniously and of malice aforethought, which again is intent to kill with
premeditation and deliberation, attempted to kill or murder Trey Stokes.” In
response, the State argued, “looking at the evidence in the light most favorable to the
State . . . [the evidence sufficiently] shows an intent to kill.” The trial court denied
Defendant’s motions.
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Counsel for the defense presented an alibi witness, Maurice Whitehead
(“Whitehead”). Whitehead was friends with Defendant’s aunt, Dorothy Cox (“Cox”).
Whitehead recalled at the time of the shooting, Defendant was with him at Cox’s
house watching a football game. However, Whitehead also recalled Defendant
leaving with his van sometime after 10:00 p.m.
At the close of all the evidence, Defendant renewed his motions to dismiss the
charge of first-degree murder of Kornegay, the charge of first-degree murder of
Garner, and the charge of assault with a deadly weapon with intent to kill inflicting
serious injury of Stokes. Defense counsel argued, “there is not one scintilla of
evidence that’s been offered that the Defendant fired any shots killing anybody.” The
trial court denied both Defendant’s motions.
During the charge conference, defense counsel objected to the jury instruction
of acting in concert. The trial court allowed the instruction to go to the jury.
Defendant’s counsel also objected to the trial court’s instructing the jury on three
different theories of murder. The State responded, “the State’s not required to pick a
theory. We contend the evidence is there for all three of these [theories].” The trial
court noted for the record Defendant did not object to the State proceeding on the
felony murder rule. However, the trial court noted Defendant’s objection to the case
proceeding on the theories of premeditation and deliberation and lying in wait. In its
discretion, the trial court allowed instructions on all three murder theories to go to
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Opinion of the Court
the jury. Defendant did not object to the jury instruction for AWDWIKISI.
The jury began to deliberate at 10:57 a.m. About an hour and a half later, the
jury submitted a note to the trial court stating “We cannot come to a unanimous
decision on any of the charges against [Defendant].” The trial court said to counsel,
“I’ll hear from you at this time as to how we can proceed.” The State responded, “at
some point we need to give the Allen charge[.]” Defense counsel agreed.
After lunch, the trial court gave the jury an Allen charge:
Jurors have a duty to consult with one another and
to deliberate with a view to reaching an agreement, it if can
be done without violence to individual judgment. Each
juror must decide the case for himself or herself, as the case
may be, but only after impartial consideration of the
evidence with his fellow jurors - - his or her fellow jurors.
In the course of deliberations a jury should not hesitate to
re-examine his or her own views and change his opinion if
convinced it is erroneous, and no juror should surrender his
or her honest conviction as to the weight or effect of
evidence solely because of the opinion of his or her fellow
jurors, or for the mere purpose of returning a verdict. I’m
going to ask that you go back in and continue your
deliberations.
At 2:22 p.m., the jury requested copies of Darden’s, Stokes’s, Thompson’s and
Whitfield’s transcripts. The trial court denied the request and instructed the jury to
rely on its recollection. Defense counsel did not object. At 2:55 p.m., the jury sent the
trial court a note stating, “After several attempts to resolve the issues the dissenting
jurors have . . . it is impossible for the jurors to agree with the majority of the jurors.”
The trial court stated:
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What I would propose is that we - - I read those instructions
again, jurors have a duty to consult with one another, to
deliberate with a view toward . . . with a view to reaching
an agreement if it can be done without violence to
individual judgment. Each juror must decide the case for
him or herself, but only after an impartial consideration of
the evidence with his or her fellow jurors. . . .
Defense did not object, but stated:
Just, your Honor, the only thing that kind of
concerned me was telling them that they needed to try to
reach a verdict, and then I just - - I, I mean if they can’t
they can’t, you know. I don’t know. That would be the only
issue; everything else was fine.
At 3:43 p.m., the trial court received a third note from the jury stating, “[W]e cannot
come to a same verdict. Neither side is going to agree. The jurors are still firm to
their decision.” The jury had been deliberating for less than 5 hours at this point,
and the trial court stated “I am, at this time, not prepared, in my discretion, to declare
a mistrial.” The trial court gave the following instructions:
I’m going to send you back with those same instructions
that I’ve given you earlier. And while you are back there,
you decide whether you all want to work after 5:00 or end
at 5:00 and come back tomorrow. You take a vote and let
us know. But after 5 days of testimony and less than 5
hours of deliberations, these folks deserve better.
Defense counsel did not object. The jury decided to continue deliberations after a
recess. The trial court arranged to have a meal delivered to the jury.
At 6:10 p.m., the jury reached a verdict, finding Defendant guilty of the
following: (1) first-degree murder of Kornegay on the theory of lying in wait; (2)
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second-degree murder of Garner; (3) attempted first-degree murder of Darden; (4)
two counts of assault with a deadly weapon with intent to kill inflicting serious injury
of Darden and Stokes; (5) three counts of discharging a weapon into occupied
property; and (6) two counts of discharging a firearm into an occupied vehicle.
As to the first-degree murder of Kornegay, the trial court sentenced Defendant
to life without parole. As to the second-degree murder of Garner, the trial court
sentenced Defendant to a minimum of 276 months and a maximum of 344 months, to
run at the expiration of Defendant’s sentence of life without parole. The trial court
consolidated the rest of the judgments into the attempted first-degree murder of
Darden. For that charge, the trial court sentenced Defendant to a minimum of 180
months and a maximum of 228 months, to run at the expiration of the second-degree
murder sentence. Defendant then orally gave notice of appeal.
On 29 January 2016, Defendant, through trial counsel, filed a motion for
appropriate relief in Wayne County Superior Court. The trial court heard the motion
on 6 April 2016. In the motion, Defendant contended Defendant’s counsel learned
juror Number 4 approached Defendant’s family in the parking lot after the verdict.
Juror Number 4 was crying and told Defendant’s family the “Judge forced [the jury]
to make a guilty verdict.” Upon receiving this information, defense counsel contacted
a private investigator to investigate this issue. Juror Number 4 told the private
investigator “the judge did enter the jury room before deliberations were met.”
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Another juror also “stated the judge did enter the jury room before the jury
deliberated and [that juror] felt pressured to find [Defendant] guilty.” Based on these
assertions, Defendant’s counsel requested the trial court to hold an evidentiary
hearing.
The trial court responded, “Well, under State statute a juror is not competent
to testify as to what goes on in the jury room.” Therefore, the trial court denied
Defendant’s motion and Defendant’s request for an evidentiary hearing. On that
same day, the trial court issued a written order denying Defendant’s motion and
finding:
1. The Motion consists only of general and conclusory
allegations and fails to state sufficient grounds in its
support.
2. The Defendant has failed to allege any underlying set of
facts or develop any factual basis supported by affidavit or
documentary evidence which might show a substantial
denial of constitutional rights.
3. The Motion does not meet the criteria of Article 88 of
Chapter 15A of the North Carolina General Statutes;
neither does it adequately state a basis in law or fact for
the relief requested.
Also on that same day, Defendant, through trial counsel, appealed the trial court’s
decision in open court.
On 10 July 2017, Defendant filed with this Court a “Motion to Withdraw
Appeal Taken on 6 April 2016 and to Vacate Order on Motion for Appropriate Relief
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For Lack of Jurisdiction.” In this motion, Defendant’s appellate counsel states:
4. After knowing discussions between [Defendant]
and undersigned counsel, [Defendant] has elected to
dismiss his 6 April 2016 appeal regarding his motion for
appropriate relief. [Defendant] has been made aware that
the decision to pursue or dismiss the 6 April 2016 appeal is
his decision alone and that by dismissing the 6 April 2016
appeal, he loses his only opportunity to pursue it.
....
6. [Defendant] also moves to vacate the trial court’s
order on his motion for appropriate relief because the trial
court lacked jurisdiction to hear the motion.
....
11. Because [Defendant] filed his motion for
appropriate relief in the trial court after the trial court had
been divested of jurisdiction, the trial court lacked
jurisdiction to consider his motion[.]
This Court allows Defendant’s motion to dismiss his motion for appropriate relief and
vacates the trial court’s order on the motion due to lack of jurisdiction.
II. Standard of Review
This Court “reviews the denial of a motion to dismiss for insufficient evidence
de novo.” State v. Taylor, 203 N.C. App. 448, 458, 691 S.E.2d 755, 763 (2010) (citation
and quotation marks omitted), cert. dismissed, 366 N.C. 408, 736 S.E.2d 180 (2012)
(quoting State v. Robledo, 193 N.C. App. 521, 525, 668 S.E.2d 91, 94 (2008)). Under
a de novo review, this Court “considers the matter anew and freely substitutes its
own judgment for that of the trial court.” State v. Sanders, 208 N.C. App. 142, 144,
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701 S.E.2d 380, 382 (2010). “Upon defendant’s motion for dismissal, the question for
the Court is whether there is substantial evidence (1) of each essential element of the
offense charged, or of a lesser offense included therein, and (2) of defendant’s being
the perpetrator of such offense. If so, the motion is properly denied.” State v. Barnes,
334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993) (quoting State v. Powell, 299 N.C. 95, 261
S.E.2d 114 (1980)).
“Under plain error review, a defendant must demonstrate that the trial court
committed ‘a fundamental error.’” State v. May, 368 N.C. 112, 119, 772 S.E.2d 458,
463 (2015). Plain error arises when the error is “‘so basic, so prejudicial, so lacking
in its elements that justice cannot have been done[.]’” State v. Odom, 307 N.C. 655,
660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995,
1002 (4th Cir. 1982)). “Under the plain error rule, defendant must convince this Court
not only that there was error, but that absent the error, the jury probably would have
reached a different result.” State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697
(1993).
III. Analysis
A. First-degree Murder
Defendant first contends the trial court erred in denying his motion to dismiss
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the first-degree murder charge on the theory of lying in wait.1 Defendant bases this
contention on the ground there was no ambush because Defendant announced his
presence. We disagree.
Murder perpetrated by lying in wait “refers to a killing
where the assassin has stationed himself or is lying in
ambush for a private attack upon his victim.” The assassin
need not be concealed, nor need the victim be unaware of
his presence. “If one places himself in a position to make a
private attack upon his victim and assails him at a time
when the victim does not know of the assassin’s presence
or, if he does know, is not aware of his purpose to kill him,
the killing would constitute a murder perpetrated by lying
in wait.”
State v. Leroux, 326 N.C. 368, 375, 390 S.E.2d 314, 320 (1990) (internal citations
omitted). “Even a moment’s deliberate pause before killing one unaware of the
impending assault and consequently ‘without opportunity to defend himself’ satisfies
the definition of murder perpetrated by lying in wait.” State v. Brown, 320 N.C. 179,
190, 358 S.E.2d 1, 10, cert. denied, 484 U.S. 970, 108 S. Ct. 467, 98 L. Ed. 2d 406(1987).
Our State Supreme Court has held, under the theory of lying in wait, a
defendant does not need to be concealed. See Brown, 320 N.C. at 190, 358 S.E.2d at
1 The State contends Defendant failed to preserve this issue for review because counsel for
defense neither made a general motion to dismiss nor moved to dismiss the charge of first-degree
murder based on the theory of lying in wait. Defense counsel did argue for dismissal on the specific
theories of premeditation and deliberation however. Since the record is unclear whether defense
counsel actually made a general motion to dismiss the first-degree murder charge, this Court shall
give defense counsel the benefit of the doubt.
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10. Also, a victim does not need to be aware of a defendant’s intent to kill under the
theory of lying in wait. Id. at 190, 358 S.E.2d at 10. See also State v. Allison, 298
N.C. 135, 148, 257 S.E.2d 417, 425 (1979) (holding a conviction was proper under the
theory of lying in wait when the defendant waited for the victim behind the tree, then
called her over and killed her).
Here there was substantial evidence, taken in the light most favorable to the
State, to support the submission of the lying in wait theory of first-degree murder.
The State’s evidence tended to show the victim, Kornegay, was in his residence with
his friends at the time of the murders. Defendant arrived at Kornegay’s residence
after dark, and Kornegay went outside to talk with him. There is no evidence
Defendant threatened or directed harm at Kornegay at this time. Kornegay returned
to his trailer, unharmed, after speaking with Defendant. Defendant waited for
Kornegay to go back inside, and then Defendant proceeded to fire his weapon into
Kornegay’s trailer, killing Kornegay.
The State’s evidence also tended to show Kornegay had no warning Defendant
intended him any harm. When Defendant talked to Kornegay, he told Kornegay to
send Darden outside. At this point, Defendant indicated to Kornegay he only had an
issue with Darden. Therefore, Kornegay was taken by complete surprise, and had no
opportunity to defend himself. We therefore conclude the trial court did not err in
submitting first-degree murder on the theory of lying in wait to the jury.
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B. Second-degree Murder
Defendant next contends the trial court erred in denying defense counsel’s
motion to dismiss the charge of second-degree murder of Garner. We conclude
Defendant failed to preserve this issue for appellate review.
Rule 10(a) of the North Carolina Rules of Appellate Procedure states, “[i]n
order to preserve an issue for appellate review, a party must have presented to the
trial court a timely request, objection, or motion, stating the specific grounds for the
ruling the party desired the court to make if the specific grounds were not apparent
from the context.” N.C. R. App. P. 10(a)(1) (2017). Additionally, Rule 10(a)(3)
provides “[i]n a criminal case, a defendant may not make insufficiency of the evidence
to prove the crime charged the basis of an issue presented on appeal unless a motion
to dismiss the action, or for judgment as in case of nonsuit, is made at trial.” N.C. R.
App. P. 10(a)(3) (2017).
At the close of the State’s evidence, Defendant made a motion to dismiss each
count of first-degree murder as to the victims Kornegay and Garner. Defense counsel
explained:
First off there’s been not one scintilla of evidence
that the defendant, with malice aforethought, which is
intent to kill or premeditation or deliberation has been
presented in this case concerning either Jamal Anthony
Kornegay or Neekea Felicia Garner. The only evidence
that the State has produced is that Mr. Darden, Leonard
Darden, goes by Al, Driver stated in his sworn testimony
here in the courtroom that [Defendant] was across the path
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from a trailer shooting at him when he was leaving the
scene.
....
And that definitely doesn’t show that the defendant
in regards to Jamal Anthony Kornegay or Neekea Felicia
Garner at any time unlawfully, willfully, feloniously and
malice aforethought did kill and murder either one of these
two people.
There is no direct evidence to that and we would be
asking the Court to strongly consider a motion to dismiss
both counts of first degree murder. I understand the
State’s proceeding under the felony murder rule I guess.
That would be my idea of it, but still you have to show or
have to have malice aforethought, intent to kill,
premeditation or deliberation as to Jamal Anthony
Kornegay and as to Neekea Felicia Garner. There is no
evidence of that been presented in this courtroom in this
case.
....
That would be my arguments as to the two murder
counts.
The trial court denied Defendant’s motions to dismiss.
At the close of all the evidence, defense counsel argued:
The only testimony that you have is Mr. Darden said
he shot at his vehicle when he went that way and that the
Defendant was across the path with a chopper. And, again,
that doesn’t really add up either, because if he was facing
him the shots wouldn’t have been in the rear of the vehicle;
but that’s the testimony, that’s the evidence that’s been
presented in this case; and it does not add up to first degree
murder of . . . Nakiea Felicia Garner or Jamal Anthony
Kornegay.
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And, again, the motion would be the same motion as
to the charge of first degree murder against the decedent
Nakiea Felicia Garner, . . . for the exact same reasons;
there is no evidence that this man, the Defendant, ever
fired a weapon at that trailer by anybody.
Again, Mr. Darden stated he shot at his vehicle from
across the path. That’s the evidence. And, again, I would
ask the Court to consider motions to dismiss both of those
counts of murder based upon the testimony under oath and
the diagrams of the evidence that’s been presented in this
courtroom as to the Defendant firing any weapon into that
trailer.
Defendant clearly made a motion to dismiss the charge of first-degree murder
of Garner. However the trial transcript shows Defendant neither moved to dismiss
the charge of second-degree murder nor argued there was insufficient evidence of the
elements of second-degree murder. Thus, Defendant failed to preserve for appellate
review the issue of the sufficiency of the evidence of the charge of second-degree
murder. See N.C. R. App. P. 10(a)(1), N.C. R. App. P. 10(a)(3); see also State v. Neville,
202 N.C. App. 121, 124, 688 S.E.2d 76, 79 (holding “Defendant neither moved to
dismiss the charge of second-degree murder, nor argued to the trial court that there
was insufficient evidence of any of the elements of second-degree murder. Thus,
Defendant failed to preserve for appellate review the sufficiency of the evidence
charge.”) (citation omitted) disc. review denied, 364 N.C. 130, 696 S.E.2d 696 (2010).
C. AWDWIKISI
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Defendant next argues the trial court erred in denying Defendant’s motion to
dismiss the charge of AWDWIKISI as to Stokes. Specifically, Defendant argues the
State had to establish Defendant specifically intended to kill Stokes when Defendant
fired into Kornegay’s trailer. This contention is without merit.
“In order to withstand a motion to dismiss the charge at issue, the State must
present substantial evidence of the following elements: (1) an assault, (2) with a
deadly weapon, (3) an intent to kill, and (4) infliction of a serious injury not resulting
in death.” State v. Alexander, 337 N.C. 182, 187, 446 S.E.2d 83, 86 (1994).
Substantial evidence is the amount of evidence “a reasonable mind might accept as
adequate to support a conclusion.” Id. at 187, 446 S.E.2d at 86. “[I]t is well settled
that the evidence is to be considered in the light most favorable to the State and that
the State is entitled to every reasonable inference to be drawn therefrom.” Id. at 187,
446 S.E.2d at 86.
Our State Supreme Court held:
An intent to kill is a mental attitude, and ordinarily it must
be proved, if proven at all, by circumstantial evidence, that
is, by proving facts from which the fact sought to be proven
may be reasonably inferred. [T]he nature of the assault,
the manner in which it was made, the weapon, if any, used,
and the surrounding circumstances are all matters from
which an intent to kill may be inferred.
State v. Grigsby, 351 N.C. 454, 457, 526 S.E.2d 460, 462 (2000) (internal citations and
quotation marks omitted). Furthermore, “an assailant must be held to intend the
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natural consequences of his deliberate act.” Id. at 457, 526 S.E.2d at 462 (quoting
State v. Jones, 18 N.C. App. 531, 534, 197 S.E.2d 268, 270, cert. denied, 283 N.C. 756,
198 S.E.2d 726 (1973)).
It is not determinative to this issue whether or not Defendant knew Stokes was
in the trailer. In Alexander, the North Carolina Supreme Court upheld the trial
court’s submission of an AWDWIKISI charge to the jury when a defendant and his
accomplice fired into a vehicle, and there was no evidence defendant knew a specific
victim was inside that vehicle. Id. at 185-88, 446 S.E.2d at 85-86. There, the Court
stated¸ “when a person fires a twelve-gauge shotgun into a moving vehicle, it may
fairly be inferred that the person intended to kill whoever was inside the vehicle.” Id.
at 188, 446 S.E.2d at 87 (emphasis added).
Applying these principles to the present case, there was sufficient evidence for
the jury to infer Defendant intended to kill whoever was inside the trailer. Here, “the
nature of the assault, the manner in which it was made, [and] the weapon . . . used”
provide “substantial evidence” of intent to kill. Id. at 188, 446 S.E.2d at 87. The
State’s evidence showed Defendant was armed during the time of the shooting, and
he fired numerous times into Kornegay’s trailer. Defendant also knew the trailer into
which he opened fire was occupied. Additionally, Thompson told Defendant not to do
anything he would regret, and Defendant replied he would “bond out” for whatever
he did. Considering the nature of the assault, the fact Defendant used a gun, and the
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Opinion of the Court
other surrounding circumstances, we conclude there was sufficient evidence for the
trial court to present the jury with the AWDWIKISI charge.
In connection with this issue, Defendant argues this Court should reverse his
conviction of AWDWIKISI as to Stokes because the trial court did not instruct the
jury on the doctrine of transferred intent. Our State Supreme Court discussed the
doctrine of transferred intent:
It is an accepted principle of law that where one is engaged
in an affray with another and unintentionally kills a
bystander or a third person, his act shall be interpreted
with reference to his intent and conduct towards his
adversary. Criminal liability, if any, and the degree of
homicide must thereby be determined. Such a person is
guilty or innocent exactly as the fatal act had caused the
death of his adversary.
State v. Wynn, 278 N.C. 513, 519, 180 S.E.2d 135, 139 (1971). However, the State did
not argue transferred intent as a basis to show Defendant’s intent to kill Stokes.
Rather, as discussed supra, the State’s evidence tended to show Defendant knew the
trailer was occupied by at least two people when Defendant fired numerous times
into the trailer. Based on the nature of the assault, the State’s evidence was sufficient
for the jury to find Defendant intended to kill “whoever” was in the trailer. See
Alexander at 188, 446 S.E.2d at 86. The State did not argue transferred intent at
trial, and neither party requested the transferred intent instruction. This argument
is without merit.
D. Jury Deliberations and Subsequent Instructions
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Defendant lastly contends the trial court erred in giving the jury a coercive
instruction after the jury informed the trial court it was deadlocked. Because we
conclude the trial court’s instructions to the jury to continue its deliberations were in
accordance with N.C. Gen. Stat. § 15A-1235(b), we disagree.
“In criminal cases, an issue that was not preserved by objection noted at trial
. . . may be made the basis of an issue presented on appeal when the judicial action
questioned is specifically and distinctly contended to amount to plain error.” N.C. R.
App. P. 10(a)(4) (2016). Here, Defendant did not object to the trial court’s instructions
and remark to the jury upon the judge’s learning the jury was deadlocked. Thus, the
plain error standard applies.
“[I]n deciding whether a court’s instructions force a verdict or merely serve as
a catalyst for further deliberations, an appellate court must consider the
circumstances under which the instructions were made and the probable impact of
the instructions on the jury.” State v. Peek, 313 N.C. 266, 271, 328 S.E.2d 249, 253
(1985). Under a totality of the circumstances review, this Court generally considers
“whether the trial court conveyed an impression to the jurors that it was irritated
with them for not reaching a verdict and whether the trial court intimated to the
jurors that it would hold them until they reached a verdict.” State v. Porter, 340 N.C.
320, 335, 457 S.E.2d 716, 723 (1995) (citation omitted). This Court additionally
considers the amount of time the jury deliberated, the complexity of the case, and the
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Opinion of the Court
content and tone of the court’s instructions to the jury. See State v. Patterson, 332
N.C. 409, 416, 420 S.E.2d 98, 101 (1992).
Here, the jury informed the trial court three times it was unable to reach a
unanimous verdict. Each time the trial court gave the jury an instruction consistent
with N.C. Gen. Stat. § 15A-1235(b). After the jury had deliberated less than five
hours in a single day, and after its third note to the trial court stating it was
deadlocked, the trial court informed the jury it was sending them back to further
deliberate with the same instructions it had previously given. However, this time,
the trial court added, “after five days of testimony and less than 5 hours of
deliberations, these folks deserve better.” Defendant contends this comment was
impermissibly coercive, and left the jurors with the impression the judge was irritated
with them for not reaching a verdict. This argument is not persuasive.
The record does not suggest the trial court expressed irritation with the jury
for not yet reaching a verdict. The record suggests the judge was polite, patient, and
accommodating. The trial court properly gave the jury an Allen charge pursuant to
N.C. Gen. Stat. § 15A-1235(b) each time it stated it was deadlocked. Prior to its final
comment, the jury received a lunch break, a recess and a meal. After the third
impasse, the trial court gave the jury a choice to continue to deliberate that day, or
to go home and continue deliberations the next day. In view of the totality of the
circumstances, the trial court’s comment was not coercive. We therefore conclude
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the trial court’s comment did not prejudice Defendant and did not amount to plain
error in this case.
E. Ineffective Assistance of Counsel
Defendant contends if his trial counsel did not preserve the sufficiency of
evidence issues with his motions to dismiss, then his counsel provided ineffective
assistance of counsel. Generally, ineffective assistance of counsel claims “should be
considered through motions for appropriate relief and not on direct appeal.” State v.
Stroud, 147 N.C. App. 549, 553, 557 S.E.2d 544, 547 (2001). We dismiss Defendant’s
claims of ineffective assistance of counsel without prejudice and conclude Defendant
is free to assert his claims during a later MAR proceeding with a more complete
factual record.
IV. Conclusion
We find no error in Defendant’s convictions.
NO ERROR.
Judges DILLON and ARROWOOD concur.
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