State v. Rawlings ( 2014 )

NO. COA14-242
NORTH CAROLINA COURT OF APPEALS
Filed: 16 September 2014
STATE OF NORTH CAROLINA
v. Wayne County
Nos. 06 CRS 52247
BOBBY LEE RAWLINGS, 06 CRS 52308
Defendant.
Appeal by defendant from judgments entered 16 August 2013
by Judge Jack W. Jenkins in Wayne County Superior Court. Heard
in the Court of Appeals 28 August 2014.
Attorney General Roy Cooper, by Assistant Attorney General
John P. Barkley, for the State.
John R. Mills for defendant-appellant.
GEER, Judge.
Defendant Bobby Lee Rawlings appeals his convictions of
attempted first degree murder, two counts of assault with a
firearm on a law enforcement officer, assault with a deadly
weapon with intent to kill ("AWDWIK"), and assault with a deadly
weapon. On appeal, defendant primarily argues that the trial
court erred in instructing the jury pursuant to N.C. Gen. Stat.
§ 14-51.4 (2013) that self-defense is not available to a person
who used defensive force in the commission of a felony.
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Defendant asserts that the General Assembly did not intend N.C.
Gen. Stat. § 14-51.4 to apply when the defendant was committing
a non-violent felony and was not an aggressor.
We do not address defendant's statutory construction
argument because N.C. Gen. Stat. § 14-51.4 only applies to
offenses occurring on or after 1 December 2011 and is,
therefore, inapplicable to the 15 March 2006 offenses charged
in this case. Although defendant did not recognize the
inapplicability of the provision and, as a result, did not raise
the issue at trial or on appeal, we have elected, in our
discretion, to invoke Rule 2 of the Rules of Appellate Procedure
and review the instruction for plain error. We hold that while
the trial court erred in instructing the jury regarding a
statutory amendment to the law of self-defense that had an
effective date after the date of the offenses in this case,
defendant has failed to meet his burden of showing that he was
prejudiced by the instruction.
Defendant additionally argues that his convictions violate
double jeopardy and that the trial court erred in entering
judgment on AWDWIK when the jury returned a verdict of assault
with a deadly weapon. We hold that defendant waived the double
jeopardy argument and remand for correction of the judgment.
Facts
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The State's evidence tended to show the following facts.
On 15 March 2006, at about 9:40 a.m., 11 officers from the
Goldsboro Police Department ("GPD") and the Drug Enforcement
Agency assembled at defendant's residence to execute a search
warrant. Officer Daniel Peters of the GPD knocked on the back
door and yelled, "Police, search warrant." He then struck the
door with a ram three or four times but was unable to open it
because there were two-by-fours propped up against the door from
the inside to keep it shut. Eventually one of the officers was
able to break the door off its hinges, and the officers entered
the house.
Once inside, Officer Peters proceeded upstairs with
Sergeant Max Staps of the Wayne County Sheriff's Office and
Captain Brady Thompson of the GPD, announcing, again, "Police,
search warrant," as they did so. Once upstairs, Sergeant Staps
found defendant's roommate, Rico Lewis, asleep on a mattress in
a room directly across from the stairs and apprehended him.
Officer Peters and Captain Thompson proceeded down the hall to
check the rest of the rooms. Officer Peters opened the door to
defendant's room and saw defendant standing 10 to 15 feet away
from him with a pistol in his hand. As soon as the door opened,
defendant fired three shots. Officer Peters felt the first
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bullet go past his arm, and retreated. Captain Thompson was hit
in his bullet proof vest by one of the bullets.
After the shots were fired, Sergeant Staps left the room
where he had Mr. Lewis handcuffed and went to the room across
the hall from defendant's room, where he found Captain Thompson
lying on the ground. Sergeant Staps checked Captain Thompson's
pulse and checked to see if there was any blood. As he was
checking on Captain Thompson, the door to defendant's room began
to open. Sergeant Staps drew his weapon, announced that he was
the police, and told defendant to put his gun down and give up.
When the door opened, defendant had put down his gun and was
sitting on the floor with his hands over his head. Defendant
did not resist arrest.
When officers searched defendant, they found a significant
amount of cocaine on his person. Additionally, officers found a
marijuana cigarette, a police scanner, digital scales, and
sandwich bags in defendant's house, as well as cocaine residue
and bullets in defendant's vehicle. Testimony was presented
that in the drug trade, digital scales are used to weigh
controlled substances for sale, and sandwich bags are used for
packaging.
On 3 July 2006, defendant was indicted, with respect to the
shooting of Captain Thompson, for attempted first degree murder,
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assault with a deadly weapon with intent to kill inflicting
serious injury, and assault with a firearm on a law enforcement
officer. With respect to Officer Peters, defendant was indicted
for assault with a firearm on a law enforcement officer and
AWDWIK. Defendant pleaded guilty and was sentenced to a term of
133 to 169 months imprisonment. On 10 April 2012, the superior
court granted defendant's motion for appropriate relief and
vacated his convictions. Defendant subsequently entered a plea
of not guilty and was tried from 13 to 16 August 2013.
At trial, defendant testified in his own defense that he is
a Vietnam War veteran who suffers from post-traumatic stress
disorder. He lived at the residence on East Elm Street with a
series of roommates. Five days before the officers executed
their search warrant, defendant's roommate, Mr. Lewis, was
robbed after an intruder entered through the back door of the
house. After the robbery, defendant braced the back door with
two-by-fours to keep the door closed. Defendant also bought a
handgun, which he kept in his nightstand, because Mr. Lewis told
defendant that he thought that the robbers were coming back.
On the morning of 15 March 2006, defendant was asleep in
his bedroom when he was awakened by a boom. He then heard
running up the stairs that panicked him "because nobody came up
[his] stairs." He pulled out the handgun from his nightstand,
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locked and loaded it, and laid back down to listen. The
television in his bedroom was turned on, but he could hear
"creeping" up the stairs and expected a robbery. He never heard
anyone say "police" or "search warrant."
Defendant heard another boom as his bedroom door was kicked
in, and he saw a black man wearing dark clothes with a gun
pointed at him whom he thought was a "stickup kid." Defendant
immediately fired two shots as the door flung open -- the door
hit a file cabinet and bounced back shut again. After the door
shut, defendant fired a clearance shot to make a noise so that
he could crawl out of the bed onto the floor. When he then
heard a lot of people running up the stairs, he asked, "[W]ho
the hell is out there?" Several of the officers responded that
it was law enforcement, and defendant realized, for the first
time, that he was not being robbed. When he found out it was
the police, he automatically put the gun down and lay down with
his hands straight out in front of him until the officers
arrested him.
The jury found defendant guilty of attempted first degree
murder, AWDWIK, and assault with a firearm on a law enforcement
officer for shooting Captain Thompson. The trial court
sentenced defendant to presumptive-range terms of 251 to 311
months imprisonment for attempted first degree murder, 46 to 65
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months imprisonment for assault with a firearm on a law
enforcement officer, and 46 to 65 months imprisonment for
AWDWIK. With respect to Officer Peters, the jury found
defendant guilty of assault with a deadly weapon and assault
with a firearm on a law enforcement officer. The trial court
consolidated the two convictions and sentenced defendant on the
more serious conviction to a presumptive-range term of 46 to 65
months imprisonment. All of the sentences ran concurrently.
Defendant timely appealed to this Court.
Discussion
Defendant first contends that the trial court erred in
instructing the jury that "[s]elf-defense is not available to a
person who used defensive force in the commission of a felony."
Defendant argues that N.C. Gen. Stat. § 14-51.4, the statute
upon which the instruction was based, should only be read to
apply to the commission of violent offenses or where the
defendant is the aggressor.
North Carolina has long recognized the common law right to
use defensive force in one's home. State v. Blue, 356 N.C. 79,
88, 565 S.E.2d 133, 139 (2002) (examining rules governing common
law defense of habitation and common law right to self defense
while in one's home). However, in this case, the trial court
instructed the jury pursuant to the statutory right to use
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defensive force as provided by N.C. Gen. Stat. § 14-51.2 (2013)
and N.C. Gen. Stat. § 14-51.3 (2013). Under the statutes, self-
defense "is not available to a person who used defensive force
and who . . . [w]as attempting to commit, committing, or
escaping after the commission of a felony." N.C. Gen. Stat. §
14-51.4. Here, the trial court, over defendant's objection,
granted the State's request to give this limiting instruction
because the State presented evidence that at the time that
defendant shot at the officers, he was committing the felonies
of possession of cocaine and maintaining a dwelling for the
purpose of using and selling controlled substances.
Defendant argues that the General Assembly did not intend
N.C. Gen. Stat. § 14-51.4 to apply to the commission of non-
violent felonies because that would deprive a non-aggressor of
the ability to defend himself, with the result that "[t]he
interpretation endorsed by the trial court would prevent a claim
of self-defense during credit card fraud, tax evasion,
possession of marijuana, or any other of the many non-violent
felonies proscribed by North Carolina law." To avoid absurd
consequences, defendant asserts, N.C. Gen. Stat. § 14-51.4
should be applied only to commission of violent felonies or
where the defendant is the aggressor.
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Apparently, neither defendant, the State, nor the trial
court realized that N.C. Gen. Stat. § 14-51.4 only applies to
offenses committed on or after 1 December 2011. See 2011 N.C.
Sess. Laws ch. 268, § 26 ("Prosecutions for offenses committed
before the effective date of this act are not abated or affected
by this act, and the statutes that would be applicable but for
this act remain applicable to those prosecutions."). Because
defendant was charged based on acts committed on 15 March 2006,
defendant is not subject to the self-defense statutes enacted by
the General Assembly in 2011.
Defendant failed to raise this argument to the trial court
or on appeal. Even if defendant had raised this argument on
appeal, "'the law does not permit parties to swap horses between
courts in order to get a better mount,' . . . meaning, of
course, that a contention not raised and argued in the trial
court may not be raised and argued for the first time in the
appellate court." Wood v. Weldon, 160 N.C. App. 697, 699, 586
S.E.2d 801, 803 (2003) (quoting Weil v. Herring, 207 N.C. 6, 10,
175 S.E. 836, 838 (1934)).
This Court has recognized, however, that "[i]n cases where
a party has failed to preserve an argument for appellate review,
'Rule 2 permits the appellate courts to excuse a party's default
. . . when necessary to prevent manifest injustice to a party or
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to expedite decision in the public interest.'" In re Hayes, 199
N.C. App. 69, 76, 681 S.E.2d 395, 400 (2009) (quoting Dogwood
Dev. & Mgmt. Co. v. White Oak Transp. Co., 362 N.C. 191, 196,
657 S.E.2d 361, 364 (2008)). North Carolina courts have invoked
Rule 2 when all the parties and the trial court operated under
an erroneous assumption of law. Id.
In this case, the record reflects that the trial court
prepared the proposed jury instructions "relying exclusively on
the North Carolina Pattern Jury Instructions including the
footnotes therein." The Pattern Jury Instruction Committee
revised the criminal pattern instructions in June 2012 to
incorporate the changes made to the common law by the new self-
defense statutes enacted in 2011. It is evident from the record
that the defendant, the State, and the trial court were all
operating under the erroneous assumption that the Pattern Jury
instructions correctly reflected the law applicable to
defendant's offenses.
Defendant did, however, preserve at the trial level the
statutory construction argument that he makes on appeal
regarding the 2011 statute. We are reluctant to decide, as a
case of first impression, how this addition to the self-defense
law should be interpreted and applied in a case in which the
statute does not apply. Under these unique circumstances, we
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have decided, in the interest of justice, to invoke Rule 2 of
the Rules of Appellate Procedure and to review the jury
instructions for plain error.
In order to establish plain error, 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) (internal citation and quotation
marks omitted).
In arguing that the trial court erred in instructing the
jury that self-defense did not apply if defendant was committing
a felony, defendant argued that he was prejudiced because "[h]ad
the jurors been properly instructed, there is a reasonable
probability that at least one juror would have reached a
different result. Without any reference to the 'in commission
of a felony' limitation, at least one juror might have credited
[defendant's] account and found him not guilty." This argument
is insufficient to meet defendant's burden of showing that there
is a reasonable possibility that the jury would have reached a
different verdict in the absence of the instruction. See N.C.
Gen. Stat. § 15A-1443(a) (2013) ("A defendant is prejudiced by
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errors relating to rights arising other than under the
Constitution of the United States when there is a reasonable
possibility that, had the error in question not been committed,
a different result would have been reached at the trial out of
which the appeal arises." (emphasis added)). Certainly,
defendant has not shown and, given the evidence, we cannot find,
that the instruction had a probable impact on the verdict, as
opposed to possibly influencing a single juror.
We, therefore hold that the trial court did not commit
plain error when it instructed the jury using the 2012 version
of the pattern jury instructions. We express no opinion
regarding the proper construction of N.C. Gen. Stat. § 14-51.4.
Defendant next argues that his sentences for the offenses
arising out of the shooting of Captain Thompson violate the
prohibition on double jeopardy. Defendant concedes that he did
not raise the double jeopardy issue below. "Constitutional
questions not raised and passed on by the trial court will not
ordinarily be considered on appeal." State v. Tirado, 358 N.C.
551, 571, 599 S.E.2d 515, 529 (2004). Our Supreme Court has
held that the issue of double jeopardy cannot be raised for the
first time on appeal. State v. Davis, 364 N.C. 297, 301, 698
S.E.2d 65, 67 (2010) ("To the extent defendant relies on
constitutional double jeopardy principles, we agree that his
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argument is not preserved[.]"); see also State v. Madric, 328
N.C. 223, 231, 400 S.E.2d 31, 36 (1991) (holding that defendant
waived double jeopardy argument for failure to raise issue in
trial court). Therefore, we hold that defendant has failed to
preserve this issue for appellate review and do not address it.
Defendant, nevertheless, requests that we apply Rule 2 and
address the issue of double jeopardy, citing State v. Dudley,
319 N.C. 656, 659-60, 356 S.E.2d 361, 364 (1987) (invoking Rule
2 to address double jeopardy issue), and State v. Mulder, ___
N.C. App. ___, ___, 755 S.E.2d 98, 101 (2014) (same). "The
decision to review an unpreserved argument relating to double
jeopardy is entirely discretionary." Id. at ___, 755 S.E.2d at
101. Here, even assuming, without deciding, that sentencing
defendant on all three convictions violated double jeopardy,
arresting judgment on one of the convictions would not alter the
total time defendant is required to serve because the trial
court ordered the sentences to run concurrently. Under these
circumstances, the extraordinary relief of invoking Rule 2 is
not necessary to prevent manifest injustice. In our discretion,
we decline to address this issue.
Finally, defendant argues that, with respect to the charges
related to Officer Peters, the trial court erred in entering
judgment on the offense of AWDWIK because the trial court
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instructed the jury and accepted a verdict of guilty on the
lesser-included offense of assault with a deadly weapon.
The State concedes that defendant was convicted of assault
with a deadly weapon, and that the trial court erred and entered
judgment on the greater offense of AWDWIK. It is, however,
apparent that this error was merely a clerical one. The two
offenses for which defendant was originally indicted regarding
Officer Peters were AWDWIK (in Count IV) and assault with a
firearm on a law enforcement officer (Count V). Both of those
offenses are class E felonies. Assault with a deadly weapon is,
however, punished as a class A1 misdemeanor. At sentencing, the
trial court announced: "And then the last two, Count IV and
Count V, the Court is going to consolidate these two, and the
most serious of those two is the Count V, which is the Class E .
. . ." Thus, because the trial court was aware that defendant's
conviction under Count IV did not involve a class E felony, the
court necessarily recognized that defendant had not been
convicted of AWDWIK. Accordingly, any error on the judgment
amounts to a clerical error. We, therefore, remand for
correction of the judgment.
Defendant, however, citing State v. Dickens, 162 N.C. App.
632, 640, 592 S.E.2d 567, 573 (2004), also correctly notes that
convictions for both assault with a deadly weapon and assault
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with a firearm on a law enforcement officer, when based upon the
same conduct, violate double jeopardy. Defendant, however,
failed to preserve this issue and, based on our review of the
record, we cannot conclude that review is necessary to prevent
manifest injustice since the trial court ordered that all of the
sentences run concurrently.
No error in part; remanded in part.
Judge STEELMAN concurs in the result per separate opinion.
Judge ROBERT N. HUNTER, JR. concurred in this opinion prior
to 6 September 2014.
NO. COA14-242
NORTH CAROLINA COURT OF APPEALS
Filed: 16 September 2014
STATE OF NORTH CAROLINA
v. Wayne County
Nos. 6 CRS 52247
BOBBY L. RAWLINGS, 6 CRS 52308
Defendant.
Judge STEELMAN, concurring in the result.
I concur in the result reached by the majority in this
case, but write separately because it is inappropriate to invoke
Rule 2 of the Rules of Appellate Procedure as to defendant’s
first argument. It cannot be a “manifest injustice” or the
expediting of a “decision in the public interest” to consider an
argument made by defendant under a statute that was inapplicable
to the offenses for which defendant was tried. See N.C. R. App.
P. 2; see also S.L. 2011-268 § 26, eff. Dec. 1, 2011.