State v. Jones ( 2014 )


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  • An unpublished opinion of the North Carolina Court of Appeals does not constitute
    controlling legal authority. Citation is disfavored, but may be permitted in accordance
    with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
    NO. COA13-1244
    NORTH CAROLINA COURT OF APPEALS
    Filed: 1 April 2014
    STATE OF NORTH CAROLINA
    v.                                      Columbus County
    Nos. 11 CRS 52691-92, 52694-95
    ELIJAH JONES
    Appeal by Defendant from judgments entered 6 June 2013 by
    Judge   Douglas     B.    Sasser   in   Columbus     County      Superior   Court.
    Heard in the Court of Appeals 5 March 2014.
    Attorney General Roy Cooper, by Special                    Deputy   Attorney
    General L. Michael Dodd, for the State.
    Parish & Cooke, by James R. Parish, for Defendant.
    STEPHENS, Judge.
    On 9 September 2011, Defendant Elijah Jones was indicted
    for the first-degree murder of his wife, Joan                      Everette,     the
    felonious     assault     of   Bobby    Ray   Shipman,     and    two   counts    of
    discharging a weapon into occupied vehicles.                     The evidence at
    Defendant’s trial in June 2013 tended to show the following:
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    Defendant      and    Everette        had      a    volatile         relationship           as
    evidenced by, inter alia, a domestic violence protective order
    (“DVPO”)     against      Defendant     that      Everette           obtained         in    October
    2009.     By the date of the murder and assault in August 2011,
    Everette had moved out of the marital home and was living at her
    mother’s home.       Everette and Shipman had been dating for several
    months, despite the fact that each was still married to other
    people.        Defendant         was    aware        of       and    unhappy          about      the
    relationship between Everette and Shipman.
    On 19 August 2011, Everette’s mother was in the hospital,
    and Shipman spent the night with Everette in her mother’s home.
    The next morning, Everette and Shipman drove to the hospital
    together in Everette’s car.                 Once in the parking lot, Shipman
    got   into   his    own    car    and    was      preparing          to    drive      away       when
    Defendant’s     car       suddenly      pulled           up     between         his        car   and
    Everette’s.         Defendant      emerged        from         his   car       and    pointed      a
    handgun at Shipman.           Shipman laid down on the front seat and
    pressed the gas pedal as multiple gunshots rang out.                                        Shipman
    was   struck   by    three       bullets,      but       was    able      to    drive       to   the
    hospital     emergency       room       where        he        underwent         surgery         and
    ultimately survived his wounds.                 Everette was not so lucky.                       She
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    had been struck and killed by a single gunshot to the head while
    still sitting in her car.
    Shortly after the shootings, Defendant turned himself in at
    the Columbus County Sheriff’s Department.             In his statement to
    law enforcement officers, Defendant said that he had followed
    his wife’s car to the hospital and, when he saw Shipman emerge
    from the vehicle, Defendant “flipped” and started shooting.                 At
    trial, Defendant denied any domestic violence against Everette.
    He also testified that he had not fired at Everette and Shipman
    to harm them, but rather to scare them and out of fear that
    Shipman was going to shoot Defendant.
    The jury returned guilty verdicts on all four counts.                  The
    trial court sentenced Defendant to life in prison without the
    possibility of parole for Everette’s murder, a concurrent term
    of 73 to 97 months in prison for the assault on Shipman, and two
    consecutive terms of 25 to 39 months in prison for discharging
    his gun into the victims’ vehicles.            Defendant gave notice of
    appeal in open court.
    Discussion
    Defendant makes three arguments on appeal:             that the trial
    court erred in (1) refusing to give his exact proposed jury
    instruction   on   transferred    intent,     (2)   refusing   to   give   his
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    proposed jury instruction on the absence of                 flight, and (3)
    admitting evidence of firearms seized from him as a result of
    the DVPO.    We find no error.
    I. Jury instruction on transferred intent
    Defendant   first     argues    that   the    trial    court   erred   in
    refusing to give his proposed jury instruction on transferred
    intent.     We disagree.
    “Whether a jury instruction correctly explains the law is a
    question of law, reviewable by this Court de novo.”                   State v.
    Barron, 
    202 N.C. App. 686
    , 694, 
    690 S.E.2d 22
    , 29 (citation
    omitted),    disc. review denied, 
    364 N.C. 327
    , 
    700 S.E.2d 926
    (2010). “However, an error in jury instructions is prejudicial
    and   requires    a   new   trial    only    if    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.”            State v. Castaneda, 
    196 N.C. App. 109
    , 116, 
    674 S.E.2d 707
    , 712 (2009) (citation and internal
    quotation marks omitted).
    “The prime purpose of a court’s charge to the jury is the
    clarification of issues, the elimination of extraneous matters,
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    and a declaration and an application of the law arising on the
    evidence.”   State v. Cameron, 
    284 N.C. 165
    , 171, 
    200 S.E.2d 186
    ,
    191 (1973) (citations omitted), cert. denied, 
    418 U.S. 905
    , 
    41 L. Ed. 2d 1153
     (1974).     Thus, “[i]t is the duty of the trial
    court to instruct the jury on all substantial features of a case
    raised by the evidence.”   State v. Shaw, 
    322 N.C. 797
    , 803, 
    370 S.E.2d 546
    , 549 (1988) (citation omitted).      However, “a trial
    court is not required to repeat verbatim a requested, specific
    instruction that is correct and supported by the evidence, but
    that it is sufficient if the court gives the instruction in
    substantial conformity with the request.”    State v. Brown, 
    335 N.C. 477
    , 490, 
    439 S.E.2d 589
    , 597 (1994) (citations omitted).
    Under 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 be thereby determined. Such a
    person is guilty or innocent exactly as if
    the fatal act had caused the death of his
    adversary.    It has been aptly stated that
    “[t]he malice or intent follows the bullet.”
    The doctrine of transferred intent does not
    require or permit one fact to be presumed
    based upon the finding of another fact.
    Instead, under the doctrine of transferred
    intent,  it   is  immaterial   whether  the
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    defendant intended injury to the person
    actually harmed; if he in fact acted with
    the required or elemental intent toward
    someone, that intent suffices as the intent
    element of the crime charged as a matter of
    substantive law.
    State v. Locklear, 
    331 N.C. 239
    , 245, 
    415 S.E.2d 726
    , 730 (1992)
    (citations,   some   internal   quotation   marks,   and   some   brackets
    omitted).
    Here, Defendant proposed that the trial court give four
    paragraphs of instructions regarding transferred intent to the
    jury:
    [1] If at the time Elijah Jones fired his
    revolver, he did so honestly believing in
    the need to protect himself from imminent
    death or serious harm, and if Elijah Jones
    fired his revolver to protect himself from a
    perceived threat from Bobby Shipman (and his
    belief    was     reasonable    under    the
    circumstances as they appeared to Elijah
    Jones at the moment of the perceived
    threat), and if a bullet fired by Elijah
    Jones hit and killed Joan Everett[e], then
    and in that event, Elijah Jones would be
    only as guilty as to Joan Everett[e] as he
    would have been had the bullet struck Bobby
    Shipman.
    [2] That is, if Elijah Jones killed Joan
    Everett[e] unintentionally, but you find he
    intended to shoot Bobby Shipman and instead
    hit Joan Everett[e], Elijah Jones would only
    be as guilty or innocent as if the fatal act
    had caused the death of Bobby Shipman.
    [3] Further, if Elijah Jones’ said use of
    deadly force against Bobby Shipman was
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    otherwise justified, but was executed so
    negligently as to endanger Joan Everett[e],
    nothing else appearing, then Elijah Jones
    would be guilty of involuntary manslaughter.
    [4] That is, if the defendant, Elijah Jones,
    intended to harm one person but instead
    harmed a different person, the legal effect
    would be the same as if the defendant had
    harmed the intended victim, and if a killing
    of the intended person would be with malice,
    then the killing of the different person
    would also be with malice.   Finally, if the
    defendant’s intent was to act in self-
    defense, and without malice, then that
    intent would also be transferred to the
    actual victim.
    The court    instructed the jury by reading                           paragraphs one and
    four, but not paragraphs two and three.
    As Defendant concedes in his brief, the first paragraph
    accurately    states          the    law     regarding          transferred        intent      as
    applicable    in    this       case.         However,          Defendant     contends        that
    paragraph two was “necessary as a short[,] concise, explanatory
    mandate”    and     as   “a     clarification             of    a    complex     concept[.]”
    Defendant    cites       no     authority          for    the       proposition       that    an
    accurate instruction on a legal concept must be                                  followed by
    further    clarification            and    explanation,         and    we   know      of   none.
    Indeed,     while    the       trial        court        did    not    “repeat        verbatim
    [Defendant’s]       requested,            specific    instruction[,]”            by   his     own
    admission     the     court         gave      an     “instruction           in   substantial
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    conformity with the request.”             See Brown, 
    335 N.C. at 490
    , 
    439 S.E.2d at 597
    .      The trial court did not err in instructing the
    jury on the doctrine of transferred intent, and accordingly,
    Defendant’s argument is overruled.
    II. Jury instruction on absence of flight
    Defendant next argues that the trial court erred in denying
    his proposed jury instruction on the absence of flight.                        We
    disagree.
    Defendant requested that the court give an instruction on
    the “logical converse” of the pattern jury instruction which
    permits a jury to consider a defendant’s                    flight as evidence
    suggesting    consciousness        of   guilt,   to   wit,    that   absence   of
    flight (or turning oneself in to the authorities, as occurred
    here) can be considered as showing the lack of any consciousness
    of guilt.     Defendant acknowledges that “[o]ur Courts have held
    differently[,]” citing State v. Burr, 
    341 N.C. 263
    , 
    461 S.E.2d 602
     (1995), cert. denied, 
    517 U.S. 1123
    , 
    134 L. Ed. 2d 526
    (1996); State v. Wilcox, 
    132 N.C. 1120
    , 
    44 S.E. 625
     (1903); and
    State v. Thomas, 
    34 N.C. App. 594
    , 
    239 S.E.2d 288
     (1977), disc.
    review denied, 
    294 N.C. 445
    , 
    241 S.E.2d 846
    , cert. denied, 
    439 U.S. 926
    ,   
    58 L. Ed. 2d 318
       (1978),     but    asserts   that    the
    “position of the court flies in the face of logic.”                  Defendant’s
    -9-
    argument    on    this    issue    flies    in   the   face   of   precedent,    the
    guiding principle of this Court.                 See, e.g., In re Appeal from
    Civil    Penalty,     
    324 N.C. 373
    ,    384,   
    379 S.E.2d 30
    ,   37   (1989)
    (“Where a panel of the Court of Appeals has decided the same
    issue, albeit in a different case, a subsequent panel of the
    same    court    is   bound   by    that    precedent,     unless    it   has   been
    overturned       by   a   higher    court.”).          Defendant’s    argument     is
    overruled.
    III. Admission of evidence of additional firearms
    Finally, Defendant argues that the trial court erred in
    admitting evidence of firearms seized from him as a result of
    the     DVPO.    Specifically, Defendant contends that this evidence
    was not relevant and was thus inadmissible.                   Defendant has not
    preserved his right to appellate review of this issue.
    As a result of the           DVPO Everette obtained, four firearms
    were seized from Defendant,1 including the .44 Magnum revolver
    Defendant would later use to shoot Everette and Shipman.                          The
    other three firearms seized in 2009 were not involved in the
    1
    The DVPO expired on 5 November 2010 and was not renewed.
    Thereafter, Defendant filed a motion for the return of the
    weapons he surrendered. By order entered 10 December 2010, the
    district court directed the sheriff’s department to return the
    seized weapons to Defendant.
    -10-
    attack.    Citing Rule of Evidence 404(b), Defendant objected when
    the State sought to introduce a copy of the DVPO and related
    documents as State’s Exhibit 80.             Exhibit 80 was some ten pages
    long with some pages printed on both sides.                 Included in the
    exhibit was a list of the firearms Defendant turned over to the
    Columbus   County   Sheriff’s      Department      in   compliance       with   the
    order.     The   court     admitted   the    domestic    violence    order      and
    related testimony, but agreed to give a limiting instruction
    pursuant to Rule 404(b).         A deputy clerk of the superior court
    in Columbus County used the exhibit to illustrate her testimony
    and, inter alia, read the list of seized firearms to the jury.
    “In order to preserve a question for appellate review, a
    party must have presented the trial court with a timely request,
    objection or motion, stating the specific grounds for the ruling
    sought if the specific grounds are not apparent.”                        State v.
    Eason, 
    328 N.C. 409
    , 420, 
    402 S.E.2d 809
    , 814 (1991); see also
    N.C.R. App. P. 10(a)(1). Defendant did not object to Exhibit 80
    on the basis of relevance per Rules of Evidence 401 or 402, but
    rather under Rule 404(b).         Where a defendant argues a different
    basis    for   exclusion    of   evidence     on   appeal   than    he    brought
    forward at trial, his objection is not preserved for appellate
    review.    See State v. Rayfield, __ N.C. App. __, __, 752 S.E.2d
    -11-
    745, 762 (2014); see also State v. Benson, 
    323 N.C. 318
    , 322,
    
    372 S.E.2d 517
    ,   519   (1988)   (“Defendant     may    not   swap   horses
    [concerning    his    argument]   after     trial   in   order    to   obtain   a
    thoroughbred      upon   appeal.”)    (citation      omitted).         “Because
    Defendant did not argue plain error in the alternative, he may
    not seek appellate review of this issue.”                  Rayfield, __ N.C.
    App. at __, 752 S.E.2d at 762.
    NO ERROR.
    Judges BRYANT and DILLON concur.
    Report per Rule 30(e).