State v. Jenrette , 236 N.C. App. 616 ( 2014 )

NO. COA13-1353
NORTH CAROLINA COURT OF APPEALS
Filed: 7 October 2014
STATE OF NORTH CAROLINA
v. Columbus County
Nos. 07 CRS 53533
08 CRS 81-85
08 CRS 91-93
SANTONIO THURMAN JENRETTE
Appeal by defendant from judgments entered 3 July 2013 by
Judge Douglas B. Sasser in Columbus County Superior Court.
Heard in the Court of Appeals 9 April 2014.
Roy Cooper, Attorney General, by Marc X. Sneed, Assistant
Attorney General, for the State.
Marilyn G. Ozer for defendant-appellant.
DAVIS, Judge.
Santonio Thurman Jenrette (“Defendant”) appeals from his
convictions of two counts of first-degree murder, possession
with intent to sell and/or deliver cocaine, two counts of
possession of a firearm by a felon, two counts of assault with a
deadly weapon with intent to kill inflicting serious injury, and
two counts of conspiracy to commit first-degree murder. On
appeal, he contends that the trial court erred in (1) granting
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the State’s motion to join all of the charges against him for
trial; (2) failing to provide an adequate not guilty mandate at
the conclusion of its jury instructions as to one of the first-
degree murder charges; (3) instructing the jury on a charge of
first-degree murder based on the lying in wait doctrine; (4)
failing to adequately distinguish between the separate offenses
with which Defendant was charged in its jury instructions; and
(5) instructing the jury on a charge of first-degree murder
based on the felony murder doctrine where there was insufficient
evidence of the predicate felonies. After careful review, we
conclude that Defendant received a fair trial free from
prejudicial error.
Factual Background
The State presented evidence at trial tending to establish
the following facts: On 21 September 2007, a confrontation took
place between Connail Reaves (“Reaves”) and Eugene Williams
(“Williams”) at a high school football game in Columbus County,
North Carolina between East Columbus High School and Whiteville
High School. Williams and Reaves were members of two rival
gangs with a history of animosity toward each other. Williams
was a member of the “Chadbourne Boys” and Reaves — like
Defendant — was a member of the “Whiteville Circle Boys.”
Members of both groups, including Reaves and Williams, were
prepared to fight as a result of the confrontation but
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ultimately backed down due to the presence of law enforcement
officers at the game.
After the game, several members of the Chadbourne Boys,
including Williams, Darnell Frink (“Frink”), Travis Williams,
Jason Williams, and William Inman (“Inman”), went to the stadium
parking lot where they ran into Reaves again. Reaves was
talking on his cellphone, and when he saw them, he pointed his
finger at them as if he was pulling the trigger of a gun.
Without engaging Reaves, they got into Jason Williams’ Chevrolet
Tahoe and drove to a local gas station, Sam’s Pitt Stop.
At Sam’s Pitt Stop, Williams, Frink, Travis Williams, Jason
Williams, and Inman parked in front of a gas pump and were
standing around the Tahoe when Jason Williams and Inman noticed
a Ford Taurus pulling up toward them with the windows down.
Jason Williams saw gun barrels protruding from both the front
passenger window and the rear passenger-side window of the
Taurus. He yelled “get down” and immediately thereafter
occupants of the Taurus — all of whom were wearing ski masks —
opened fire on them. Defendant, Reaves, and Defendant’s 14-
year-old cousin Rashed1 Delamez Jones (“Jones”) were three of the
occupants of the Taurus who fired guns.
1
The trial transcript at times spells Rashed as “Rasheed.” Both
spellings, however, refer to the same person.
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Inman and Frink were both struck by bullets fired by the
masked persons in the Taurus. Frink died as a result of his
gunshot wounds. Inman was wounded in his left thigh and was
taken to the hospital for treatment. A bystander, Antwan
Waddell, was struck by bullets in his left thigh and ankle.
Shortly after the shooting, Sabrina Moody (“Moody”) saw a
Taurus containing Defendant, Marquell Hunter, and an unknown
person pull into Stanley Circle directly in front of her parked
car. Moody saw Defendant and the other two men get out of their
vehicle, remove guns from the back of the Taurus, and then
quickly run across the street in order to place the guns inside
another vehicle.
The Taurus was found burning in a field off of Prison Camp
Road later that night. It was ultimately identified as a car
belonging to Johnny Sellers (“Sellers”), a used car salesman,
that had been stolen along with Sellers’ .25 caliber semi-
automatic pistol from the dealership lot the evening of the
shooting.
The following evening, Defendant and Reaves were driving a
black Acura when they were pulled over by Officers Donald
Edwards (“Officer Edwards”) and Edward Memory (“Officer Memory”)
of the Whiteville Police Department because the rear taillight
of the Acura was not working. Upon inspecting the backseat of
the vehicle where Reaves was sitting, Officer Edwards observed
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two pistols between Reaves’ legs. Defendant and Reaves were
removed from the vehicle, and the firearms were seized.
Officer Donnie Hedwin (“Officer Hedwin”) of the Whiteville
Police Department, who had arrived on the scene, patted down
Defendant, handcuffed him, and placed him in the backseat of
Officer Memory’s patrol car. However, while the officers were
securing the scene, Defendant managed to force open the door of
Officer Memory’s car and escape unobserved.
Upon searching the backseat of Officer Memory’s car after
Defendant had escaped, Officer Edwards discovered two baggies
containing a substance that was later identified as cocaine
wedged underneath the seat. A .45 caliber pistol recovered from
the Acura was identified as the same weapon used in the shooting
at Sam’s Pitt Stop.
On 19 November 2007, approximately two months after the
shooting, Defendant, who was still at large, took Jones out to
the woods in a car he had borrowed from a woman named Rebecca
White on the pretext of getting in some “target practice.”
While in the woods, Defendant shot Jones five times, killing
him. Defendant then left Jones’ body in the woods after wedging
it under several nearby wooden pallets. The next day, Jones’
mother and aunt, who were searching for Jones, saw Defendant
walking along the side of the road. When Jones’ mother asked
him whether he had seen Jones, Defendant “just kept walking, he
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wouldn’t look at [her].” On 5 December 2007, Jones’ body was
discovered in the woods off of Barney Tyler Road in Hallsboro,
North Carolina.
Defendant fled to Gary, Indiana, where he was eventually
apprehended and extradited back to North Carolina. Prior to
being apprehended, Defendant filmed a video of himself
performing a piece of rap music that he had composed. The
lyrics of the song mentioned both the location where Jones’ body
was found and the manner in which he had been killed.
While in custody pending trial, Defendant told Aaron
McDowell (“McDowell”), Defendant’s cellmate at the Columbus
County Jail, how and why he had killed Jones, explaining that he
had done so in order to prevent Jones from revealing Defendant’s
role in the 21 September 2007 shooting. He also told McDowell
he had taken Jones out to a secluded area in Hallsboro to shoot
him.
Jeffrey Morton (“Morton”), another inmate in the Columbus
County Jail who was incarcerated in the same cell block as
Defendant, overheard Defendant talking to a third inmate, Rufus
McMillian, about the murder of Jones. Specifically, Morton
heard Defendant state that he considered Jones to be “a weak
link,” that he took Jones “to a wooded area for target
practice[,]” and that he “basically . . . smoked a couple of
blunts with this young guy and took him out and gave him a
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pistol and they shot some and then he turned the pistol on him
and shot him five or six times.”
Defendant was indicted on (1) two counts of possession of a
firearm by a felon; (2) the first-degree murder of Frink; (3)
two counts of assault with a deadly weapon with intent to kill
inflicting serious injury; (4) two counts of conspiracy to
commit first-degree murder; (5) the first-degree murder of
Jones; (6) first-degree kidnapping; (7) conspiracy to commit
first-degree kidnapping; (8) one count of possession with intent
to sell and/or deliver cocaine; and (9) possession of a stolen
firearm. A jury trial was held in Columbus County Superior
Court on 24 June 2013. At the close of all the evidence, the
trial court dismissed the charge of possession of a stolen
firearm.
Defendant was convicted of all remaining charges except for
the charges of first-degree kidnapping and conspiracy to commit
first-degree kidnapping. With regard to the murder of Frink,
the jury found him guilty on theories of premeditation and
deliberation, felony murder, and lying in wait. As to the
murder of Jones, the jury found him guilty on theories of
premeditation and deliberation and felony murder.
Defendant was sentenced to two consecutive life sentences
without the possibility of parole for the murders of Frink and
Jones. In addition, he was sentenced to (1) 8-10 months for
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possession with intent to sell and/or deliver cocaine; (2) 15-18
months for each count of possession of a firearm by a felon; (3)
100-129 months for each count of assault with a deadly weapon
with intent to kill inflicting serious injury; and (4) 189-236
months for each count of conspiracy to commit murder. These
sentences were ordered to run concurrently with the sentence
imposed for the first-degree murder of Jones. Defendant gave
notice of appeal in open court.
Analysis
I. Joinder
Defendant argues that the trial court abused its discretion
in allowing all 12 of the offenses for which he was charged to
be joined for trial. Specifically, he contends that joinder was
improper due to the lack of a sufficient transactional
similarity between the 12 charges.
“The motion to join is within the sound discretion of the
trial judge, and the trial judge's ruling will not be disturbed
absent an abuse of discretion. However, if there is no
transactional connection, then the consolidation is improper as
a matter of law.” State v. Simmons, 167 N.C. App. 512, 516, 606
S.E.2d 133, 136 (2004) (internal citations and quotation marks
omitted), appeal dismissed and disc. review denied, 359 N.C.
325, 611 S.E.2d 844 (2005). “On appeal, the question of whether
offenses are transactionally related so that they may be joined
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for trial is a fully reviewable question of law.” State v.
Huff, 325 N.C. 1, 22, 381 S.E.2d 635, 647 (1989) (citation
omitted), vacated on other grounds, 497 U.S. 1021, 111 L. Ed. 2d
777 (1990).
We have held that
in ruling upon a motion for joinder, a trial
judge must utilize a two-step analysis: (1)
a determination of whether the offenses have
a transactional connection and (2) if there
is a connection, a consideration of whether
the accused can receive a fair hearing on
the consolidated offenses at trial. . . . In
determining whether offenses are part of the
same series of transactions, the following
factors must guide the court: (1) the nature
of the offenses charged; (2) any commonality
of facts between the offenses; (3) the lapse
of time between the offenses; and (4) the
unique circumstances of each case. No
single factor is dispositive.
Simmons, 167 N.C. App. at 516, 606 S.E.2d at 136-37 (internal
citations and quotation marks omitted).
In the present case, while the charges against Defendant
stemmed from a series of events that occurred over the course of
approximately two months, they were factually related. The
State’s evidence tended to show that Defendant was present
during, and participated in, the shooting at Sam’s Pitt Stop
along with Reaves and Jones. The following night, Defendant and
Reaves were pulled over, and two firearms were recovered from
their possession, one of which was ultimately shown to have been
used in the shooting the previous evening. This evidence shows
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a direct link between the possession of a firearm by a felon
charges and the charges arising directly out of the shooting at
the gas station. Furthermore, the discovery of the cocaine
forming the basis for the charge of possession with intent to
sell and/or deliver cocaine occurred during the course of the
traffic stop.
The charges related to the killing of Jones were also
transactionally related. In State v. Hunt, 323 N.C. 407, 373
S.E.2d 400 (1988), vacated on other grounds, 494 U.S. 1022, 108
L. Ed. 2d 602 (1990), our Supreme Court held that two murders are
transactionally related when the second is committed in order to
cover up the first. “It is apparent that the second murder in
this case was an act connected to the first murder. The second
murder was committed to avoid detection for the first murder.
This transactional connection supports the consolidation of all
the charges for trial pursuant to N.C.G.S. § 15A-926(a).” Id.
at 421, 373 S.E.2d at 410.
Similarly, the evidence in the present case tended to show
that Defendant killed Jones so as to avoid being implicated in
the murder of Frink. As such, we are satisfied that the
transactional connection between these events was sufficient to
support the trial court’s granting of the State’s motion for
joinder of all of these charges. Furthermore, Defendant has
failed to offer any persuasive argument why the consolidation of
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these charges rendered him unable to receive a fair trial on all
of the charges against him. See State v. Bowen, 139 N.C. App.
18, 29, 533 S.E.2d 248, 255 (2000) (where “[t]here is no
evidence defendant was hindered or deprived of his ability to
defend one or more of the charges [against him] . . . [t]he
trial court's error in joining the offenses for trial was
harmless” (internal citation and quotation marks omitted)).
Based on our consideration of the factors set out in
Simmons, we conclude that the trial court did not abuse its
discretion in granting the State’s motion for joinder.
Therefore, Defendant’s argument on this issue is overruled.
II. Not Guilty Mandate
Defendant next contends that the trial court erred in its
instructions to the jury regarding the first-degree murder
charge as to Frink by failing to adequately instruct the jury of
its duty to return a verdict of not guilty if the State failed
to establish his guilt beyond a reasonable doubt. Where, as
here, a defendant does “not object at trial to the omission of
the not guilty option from the trial court's final mandate to
the jury, we review the trial court's actions for plain error.”
State v. McHone, 174 N.C. App. 289, 294, 620 S.E.2d 903, 907
(2005), disc. review denied, 362 N.C. 368, 628 S.E.2d 9 (2006).
For error to constitute plain error, a
defendant must demonstrate that a
fundamental error occurred at trial. To
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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.
Moreover, because plain error is to be
applied cautiously and only in the
exceptional case, the error will often be
one that seriously affects the fairness,
integrity or public reputation of judicial
proceedings.
State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012)
(internal citations, quotation marks, and brackets omitted).
Our Supreme Court has held that “[e]very criminal jury must
be instructed as to its right to return, and the conditions upon
which it should render, a verdict of not guilty.” State v.
Chapman, 359 N.C. 328, 380, 611 S.E.2d 794, 831 (2005) (citation
and quotation marks omitted); see also State v. McArthur, 186
N.C. App. 373, 380, 651 S.E.2d 256, 260 (2007). Furthermore,
“[i]t is well established that the trial court's charge to the
jury must be construed contextually and isolated portions of it
will not be held prejudicial error when the charge as a whole is
correct.” McHone, 174 N.C. App. at 294, 620 S.E.2d at 907
(citation and quotation marks omitted).
In order to fully understand Defendant’s argument on this
issue, it is necessary to quote in full the trial court’s
instructions on first-degree murder with regard to the killing
of Frink:
The defendant has been charged with the
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first degree murder of Darnell Antonio
Frink. Under the law and the evidence in
this case it is your duty to return a
verdict of either guilty of first degree
murder or not guilty. You may find the
defendant guilty of first degree murder on
either the basis of malice, premeditation
and deliberation or under the first degree
felony murder rule, or on the basis of lying
in wait, or any combination of those three.
First degree murder on the basis of malice,
premeditation and deliberation is the
intentional and unlawful killing of a human
being with malice and with premeditation and
deliberation.
First degree murder under the first degree
felony murder rule is the killing of a human
being in the perpetration of an assault with
a deadly weapon with intent to kill
inflicting serious injury.
For you to find the defendant guilty of
first degree murder on the basis of malice,
premeditation and deliberation, the State
must prove five things beyond a reasonable
doubt.
First, that the defendant intentionally and
with malice killed the victim with a deadly
weapon. Malice means not only hatred, ill
will or spite, as is ordinarily understood,
to be sure that is malice, but it also means
that condition of the mind that prompts a
person to take the life of another
intentionally or to intentionally inflict a
wound with a deadly weapon upon another
which proximately results in his death
without just cause, excuse or justification.
If the State proves beyond a reasonable
doubt that the defendant intentionally
killed the victim with a deadly weapon or
intentionally inflicted a wound upon the
victim with a deadly weapon that proximately
caused his death, you may infer, first, that
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the killing was unlawful and, second, that
it was done with malice, but you are not
compelled to do so. You may consider the
inference along with all of the facts and
circumstances in determining whether the
killing was unlawful and whether it was done
with malice. A firearm is a deadly weapon.
Second, the State must prove that the
defendant’s act was a proximate cause of the
victim’s death. A proximate cause is a real
cause, a cause without which the victim’s
death would not have occurred.
Third, that the defendant intended to kill
the victim. Intent is a mental attitude
seldom provable by direct evidence, it must
be ordinarily be (sic) proved by
circumstances from which it may be inferred.
An intent to kill may be inferred from the
nature of the assault, the manner in which
it was made, the conduct of the parties and
other relevant circumstances.
If the defendant 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.
If the killing of the intended person would
be with malice, then the killing of the
different person would also be with malice.
Fourth, that the defendant acted after
premeditation; that is, that he formed the
intent to kill the victim over some period
of time, however short, before he acted.
And, fifth, that the defendant acted with
deliberation, which means that he acted
while he was in a cool state of mind, which
does not mean there had to be a total
absence of passion or emotion. If the
intent to kill was formed with a fixed
purpose, not under the influence of some
suddenly aroused violent passion, it is
immaterial that the defendant was in a state
of passion or excited when the intent was
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carried into effect.
Neither premeditation nor deliberation is
usually susceptible of direct proof. It may
be proved by proof of circumstances from
which they may be inferred, such as lack of
provocation by the victim, conduct of the
defendant before, during and after the
killing, use of grossly excessive force,
brutal or vicious circumstances of the
killing or the manner in which or means by
which the killing was done.
I further charge you that for you to find
the defendant guilty of first degree murder
under the first degree felony murder rule,
the State must prove three things beyond a
reasonable doubt:
First, that the defendant committed the
offense of assault with a deadly weapon with
intent to kill inflicting serious injury.
I’ve read this before, but I’m going to go
back over it one more time, the elements for
assault with a deadly weapon with intent to
kill inflicting serious injury are:
First, that the defendant assaulted the
victim by intentionally, without
justification or excuse, discharging a
firearm into a group of people.
Second, that the defendant used a deadly
weapon; a firearm is a deadly weapon.
Third, the State must prove the defendant
had a specific intent to kill the victim. I
remind you, I’ve already given the
instruction twice as to transferred intent,
again, that instruction applies as to
intent.
And, fourth, that the defendant inflicted a
serious injury.
Second, that while committing assault with a
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deadly weapon with intent to kill inflicting
serious injury, the defendant killed the
victim with a deadly weapon.
Third, that the defendant’s act was a
proximate cause of the victim’s death. A
proximate cause is a real cause, a cause
without which the victim’s death would not
have occurred.
The defendant has also been accused of first
degree murder perpetrated while lying in
wait. For you to find the defendant guilty
of this offense, the State must prove three
things beyond a reasonable doubt:
First, that the defendant lay in wait for
the victim; that is, he waited and watched
for the victim in ambush for a private
attack on him. It is not necessary that he
be actually concealed in order to lie in
wait. If one places himself in a position to
make a private attack upon his victim and
assails him at the time 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 constitutes a murder
perpetrated by lying in wait. One who lays
in wait does not lose his status because he
is not concealed at the time he shoots his
victim. The fact that he reveals himself or
the victim discovers his presence does not
permit the murder from being perpetrated by
lying in wait. Indeed a person may lie in
wait in a crowd as well as being — excuse
me, as well as behind a log or a hedge.
Second, that the defendant intentionally
assaulted the victim.
And, third, that the defendant’s act was a
proximate cause of the victim’s death. A
proximate cause is a real cause, a cause
without which the victim’s death would not
have occurred.
If you find from the evidence beyond a
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reasonable doubt that on or about the
alleged date the defendant assaulted the
victim while lying in wait for him and that
the defendant’s act proximately caused the
victim’s death, it would be your duty to
return a verdict of guilty of first degree
murder.
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.)
As quoted above, at the conclusion of the first-degree
murder instruction and immediately following the portion of the
instruction addressing the theory of lying in wait — which was
the third and final theory submitted to the jury regarding this
charge — the trial court ended the instruction by giving the
following mandate:
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.
Defendant asserts that the jury could have construed this not
guilty mandate as applying solely to the theory of lying in wait
as opposed to applying to the overall charge of first-degree
murder as to Frink.
Our Supreme Court addressed the sufficiency of a final not
guilty mandate in Chapman. In that case, the defendant wounded
one passenger of a car and killed another when he fired his
rifle into the victims’ car from his own vehicle while both
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vehicles were traveling on the highway. Chapman, 359 N.C. at
337-38, 611 S.E.2d at 804-05. The defendant was charged with
first-degree murder based on three separate theories —
premeditation and deliberation, felony murder based upon
attempted first-degree murder, and felony murder based upon
discharging a firearm into occupied property. Id. at 380, 611
S.E.2d at 831. The defendant claimed that he was entitled to a
new trial because the trial court failed to provide a not guilty
mandate as to the theory of felony murder based upon attempted
first-degree murder. Id. at 380, 611 S.E.2d at 830-31.
The Supreme Court acknowledged that the trial court did not
instruct the jury that it was their duty to return a verdict of
not guilty if the State failed to establish felony murder based
upon attempted first-degree murder. However, the Court observed
that
[a]t the conclusion of the trial court's
mandate on all three theories of first-
degree murder, the trial judge instructed
the jurors as follows: “If you do not find
the defendant guilty of first-degree murder
on the basis of malice, premeditation and
deliberation and if you do not find the
defendant guilty of first-degree murder
under the felony murder rule, it would be
your duty to return a verdict of not
guilty.”
Id. In light of the presence of this final mandate at the
conclusion of the trial court’s overall instructions on the
charge of first-degree murder, the Supreme Court concluded that
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the absence of a not guilty mandate as to one of the three
theories submitted did not constitute error. Id.
Because defendant confuses the trial court's
instructions on the three separate theories
of first-degree murder with instructions on
first-degree murder itself, and because the
trial court gave a proper mandate at the
closure of the first-degree murder
instruction, we determine that the trial
court instructed the jury that it could find
defendant not guilty of first-degree murder.
Accordingly, this assignment of error is
overruled.
Id.
In McHone, upon which Defendant primarily relies in his
argument on this issue, the defendant was convicted of robbery
with a dangerous weapon and first-degree murder on theories of
both premeditation and deliberation and felony murder. McHone,
174 N.C. App. at 291, 620 S.E.2d at 905-06. The defendant
argued on appeal that the trial court committed plain error by
(1) failing to include the option of not guilty of first-degree
murder in its final mandate to the jury; and (2) omitting the
not guilty option from the verdict sheet for that offense
despite including a not guilty option on the verdict sheet for
the robbery with a dangerous weapon charge. Id.
In our analysis regarding this issue, we set out three
factors that must be weighed in determining whether the failure
to give an appropriate not guilty mandate rises to the level of
plain error.
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We first consider the jury instructions on
murder in their entirety in determining
whether the failure to provide a not guilty
mandate constitutes plain error. . . . The
instruction, then, in the absence of a final
not guilty mandate, essentially pitted one
theory of first degree murder against the
other, and impermissibly suggested that the
jury should find that the killing was
perpetrated by defendant on the basis of at
least one of the theories. Telling the jury
“not to return a verdict of guilty” as to
each theory of first degree murder does not
comport with the necessity of instructing
the jury that it must or would return a
verdict of not guilty should they completely
reject the conclusion that defendant
committed first degree murder.
McHone, 174 N.C. App. at 297, 620 S.E.2d at 909 (internal
brackets omitted).
After considering the not guilty mandate, this Court next
considered the composition of the verdict sheet submitted to the
jury:
Secondly, we consider the content and form
of the first degree murder verdict sheet in
determining whether the failure to provide a
not guilty mandate constitutes plain error.
Here, the trial court initially informed the
jury that it was their “duty to return one
of the following verdicts: guilty of first-
degree murder or not guilty.” However, the
verdict sheet itself did not provide a space
or option of “not guilty.” And while the
content and form of the verdict sheet did
not compel the jury to return a verdict of
guilty insofar as it stated “if” it found
defendant guilty of first degree murder, we
repeat our observation that it failed to
afford exactly that which the court
initially informed the jury it would be
authorized to return — a not guilty verdict.
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Id. at 297-98, 620 S.E.2d at 909.
Finally, we stated the need to compare the challenged
instruction to the instructions given for other charged
offenses:
Thirdly, we consider the instructions and
verdict sheet for the armed robbery/larceny
offenses in determining whether the failure
to provide a not guilty final mandate for
the murder charge constitutes plain error.
As to these taking offenses, the trial court
judge did provide a not guilty mandate.
After instructing the jury that it must
consider the offense of larceny should they
reject the armed robbery, the court properly
charged the jury, “If you do not so find or
if you have a reasonable doubt as to one or
more of these things, it would be your duty
to return a verdict of not guilty as to that
charge.” Rather than help correct the
failure to provide a similar not guilty
mandate with respect to the first degree
murder charge, the presence of a not guilty
final mandate as to the taking offenses
likely reinforced the suggestion that the
jury should return a verdict of first degree
murder based upon premeditation and
deliberation and/or felony murder.2 Likewise,
2
“The versions of McHone available online through Westlaw and
LexisNexis contain the full sentence quoted above. The South
Eastern Reporter, 2d Series also contains this full sentence.
The slip opinion available online also contains this full
sentence. State v. McHone, 620 S.E.2d at 909. However, the
subject of the sentence is missing from the hard copy of the
N.C. Court of Appeals Reports. The N.C. Court of Appeals
Reports has only the following incomplete sentence: ‘Rather than
help correct the failure to provide a similar not guilty mandate
with respect to the taking offenses likely reinforced the
suggestion that the jury should return a verdict of first degree
murder based upon premeditation and deliberation and/or felony
murder.’ McHone, 174 N.C.App. at 298, 620 S.E.2d 903.”
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the content and form of the verdict sheet on
the taking offenses, which did afford a
space for a not guilty verdict, also likely
reinforced the suggestion that defendant
must have been guilty of first degree murder
on some basis . . . .
Id. at 298, 620 S.E.2d at 909.
This Court has addressed this issue in several cases since
McHone was decided. In State v. Wright, 210 N.C. App. 697, 709
S.E.2d 471, disc. review denied, 365 N.C. 332, 717 S.E.2d 394
(2011), the defendant was charged with assault with a deadly
weapon with intent to kill inflicting serious injury and first-
degree burglary. Id. at 699, 709 S.E.2d at 473. During the
final mandate on the charge of first-degree burglary, the trial
court instructed the jury as follows: “If you do not so find or
have a reasonable doubt as to one or more of these things, you
will not return a verdict of guilty of first-degree burglary.”
Id. at 704, 709 S.E.2d at 476. We determined that this final
not guilty mandate was insufficient, reasoning that “the trial
court failed to add at the end of the mandate that ‘it would be
your duty to return a verdict of not guilty.’ We have held that
the failure to give the final not guilty mandate constitutes
error.” Id.
However, applying McHone, we next examined the verdict
sheet in order to determine whether the absence of the final not
Gosnell, __ N.C. App. at __, n. 1, 750 S.E.2d at 596, n. 1.
-23-
guilty mandate constituted plain error.
In McHone, this Court's plain error
analysis centered upon the fact that the
trial court impermissibly suggested that the
defendant must have been guilty of first
degree murder on some basis. This Court
concluded that the jury instructions in that
case constituted plain error. This
conclusion was based not only on the
importance of the jury receiving a not
guilty mandate from the presiding judge, but
also on the form and content of the
particular verdict sheets utilized in this
case.
Id. at 706, 709 S.E.2d at 477 (internal citations and quotation
marks omitted).
Upon inspection of the verdict sheet for the first-degree
burglary charge, we determined that the not guilty option had
been included therein.
In the instant case, there was nothing
that would support the proposition that the
trial court impermissibly suggested that
defendant must be guilty of first-degree
burglary. The trial court gave the jury a
choice of returning a verdict of guilty of
first-degree burglary or not returning a
verdict of guilty of first-degree burglary
if they had a reasonable doubt as to one or
more of the elements of the crime. There
were no alternative theories that the jury
could consider or lesser-included offenses.
The verdict sheet for first-degree burglary
provided a space for the jury to check
“Guilty of First Degree Burglary” or “Not
Guilty.” Likewise, the verdict sheet for
the other offense in this case also included
a space for a verdict of guilty or not
guilty.
While it was error for the trial court
-24-
to fail to deliver the final not guilty
mandate, this error does not rise to the
level of plain error.
Id. at 706, 709 S.E.2d at 477.
In State v. Gosnell, __ N.C. App. __, 750 S.E.2d 593
(2013), the trial court instructed the jury on two theories as
to which it could find the defendant guilty of first-degree
murder — premeditation and deliberation and lying in wait.
While its instructions on the lying in wait theory contained a
not guilty mandate, no such mandate was given in the portion of
the jury instructions relating to the theory of premeditation
and deliberation. Id. at __, 750 S.E.2d at 595.
In conducting a plain error review, we applied the three-
factor test set forth in McHone and concluded that
[t]he verdict sheet provided a space for a
“not guilty” verdict, and the trial court's
instructions on second-degree murder and the
theory of lying in wait comported with the
requirement in McHone. The trial court did
not commit plain error in failing to
instruct that the jury would or must return
a “not guilty” verdict if it did not
conclude that Defendant committed first-
degree murder on the basis of premeditation
and deliberation.
Id. at __, 750 S.E.2d at 596.
In State v. Jenkins, 189 N.C. App. 502, 658 S.E.2d 309
(2008), the defendant was charged both with assault with a
deadly weapon inflicting serious injury and assault inflicting
serious bodily injury. Id. at 503, 658 S.E.2d at 310. While
-25-
the verdict sheet did contain a not guilty option for the charge
of assault inflicting serious bodily injury, it failed to
include a not guilty option for the charge of assault with a
deadly weapon inflicting serious injury. Id. at 504-05, 658
S.E.2d at 311. We held that the defendant was entitled to a new
trial because the trial court’s not guilty mandate in its jury
instructions was “not clear enough to support a verdict sheet
that omits a ‘not guilty’ option . . . .” Id. at 507, 658
S.E.2d at 313.
In the present case, the trial court did issue a not guilty
mandate at the conclusion of the instruction on first-degree
murder as to Frink, stating the following:
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.
While the better practice would have been for the trial
court to make clear to the jury that its final not guilty
mandate applied to all three theories of first-degree murder,
this — by itself — is not sufficient to establish plain error.
Instead we must examine the second and third factors of the
McHone test.
With regard to the second factor, we are unable to identify
any error in the verdict sheet regarding the first-degree murder
charge as to Frink. This portion of the verdict sheet stated as
-26-
follows:
____ 1. GUILTY of FIRST DEGREE MURDER of Darnell Antonio
Frink
IF YOU ANSWERED "YES," IS IT:
A. On the basis of malice, premeditation and
deliberation?
ANSWER:______
B. On the basis of the first degree felony murder
rule?
ANSWER:_______
C. On the basis of lying in wait?
ANSWER:_______
OR
____ 2. NOT GUILTY
We are satisfied that this portion of the verdict sheet
clearly informed the jury of its option of returning a not
guilty verdict regarding this charge. Indeed, Defendant does
not contend otherwise.
We next turn to the third factor enumerated in McHone. It
is particularly appropriate to compare the not guilty mandate
regarding the first-degree murder charge as to Frink with the
analogous mandate regarding the first-degree murder charge as to
Jones. This is so because not only were both instructions for
the offense of first-degree murder but, in addition, both
charges involved more than one theory of guilt upon which
-27-
Defendant could be convicted.3 The instruction on the first-
degree murder charge as to Jones — with the portions containing
a not guilty mandate italicized — stated in pertinent part as
follows:
The defendant has been charged with the
first degree murder of Rasheed Delamez
Jones.
Under the law and the evidence of this case
it is your duty to return one of the
following verdicts, either guilty of first
degree murder or not guilty.
You may find the defendant guilty of first
degree murder either on the basis of malice,
premeditation and deliberation or under the
first degree felony murder rule, or both.
First degree murder on the basis of malice,
premeditation and deliberation is the
intentional and unlawful killing of a human
being with malice and premeditation and
deliberation.
First degree murder under the first degree
felony murder rule is the killing of a human
being in the perpetration of first degree
kidnapping.
For you to find the defendant guilty of
first degree murder on the basis of malice
premeditation and deliberation, the State
must prove five things beyond a reasonable
doubt:
First, that the defendant intentionally and
with malice killed the victim with a deadly
weapon. Malice means not only hatred, ill
3
With regard to both murder charges, the jury was instructed on
theories of premeditation and deliberation and felony murder.
However, as noted above, the jury was also instructed on a
theory of lying in wait as to the death of Frink.
-28-
will or spite, as it is ordinarily
understood, to be sure that is malice, but
it also means that condition of mind that
prompts a person to take the life of another
intentionally or to intentionally inflict a
wound with a deadly weapon upon another
which proximately results in his death
without just cause, excuse or justification.
If the State proves beyond a reasonable
doubt that the defendant intentionally
killed the victim with a deadly weapon or
intentionally inflicted a wound upon the
victim with a deadly weapon that proximately
caused his death, you may infer first that
the killing was unlawful and, second, that
it was done with malice, but you are not
compelled to do so. You may consider the
inference along with all other facts and
circumstances in determining whether the
killing was unlawful and whether it was done
with malice. A firearm is a deadly weapon.
Second, the State must prove the defendant’s
act was a proximate cause of the victim’s
death. A proximate cause is a real cause, a
cause without which the victim’s death would
not have occurred.
Third, that the defendant intended to kill
the victim. Intent is a mental attitude
seldom provable by direct evidence. It must
ordinarily be proved by circumstances from
which it may be inferred. An intent to kill
may be inferred from the nature of the
assault, the manner in which it was made,
the conduct of the parties and other
relevant circumstances.
Fourth, that the defendant acted after
premeditation; that is, that he formed the
intent to kill the victim over some period
of time, however short, before he acted.
And, fifth, that the defendant acted with
deliberation, which means he acted while he
was in a cool state of mind, this does not
-29-
mean there had to be a total absence of
passion or emotion. If the intent to kill
was formed with a fixed purpose, not under
the influence of some suddenly aroused
violent passion, it is immaterial that the
defendant was in a state of passion or
excited when the intent was carried into
effect.
Neither premeditation nor deliberation is
usually susceptible of direct proof, it may
be proved by proof of circumstances from
which they may be inferred such as the lack
of provocation by the victim, the conduct of
the defendant before, during and after the
killing, use of gross excessive force,
brutal or vicious circumstances of the
killing, or the manner in which or means by
which the killing was done.
I further charge you that for you to find
the defendant guilty of first degree murder
under the first degree felony murder rule,
the State must prove four things beyond a
reasonable doubt:
First, that the defendant committed first
degree kidnapping. I remind you the
elements of first degree kidnapping are as
follows:
. . . .
If you find from the evidence beyond a
reasonable doubt that on or about the
alleged date the defendant acted with
malice, killed the victim with a deadly
weapon, thereby proximately causing the
victim’s death, that the defendant intended
to kill the victim and that the defendant
acted after premeditation and with
deliberation, it would be your duty to
return a verdict of guilty of first degree
murder on the basis of malice, premeditation
and deliberation.
-30-
If you do not so find or have a reasonable
doubt as to one or more of these things, you
would not return a verdict of guilty of
first degree murder on the basis of malice,
premeditation and deliberation.
Whether or not you find the defendant guilty
of first degree murder on the basis of
malice, premeditation and deliberation, you
will also consider whether he is guilty of
first degree murder under the first degree
felony murder rule.
If you find from the evidence beyond a
reasonable doubt that on or about the
alleged date the defendant unlawfully
removed a person from one place to another
and that the person had not reached his
sixteenth birthday and his parent or
guardian did not consent to his removal and
that this was done for the purpose of
facilitating the defendant’s commission for
(sic) the murder of Rasheed Delamez Jones,
and that this removal was a separate,
complete act, independent of and apart from
the murder, and that the person removed was
not released by the defendant in a safe
place or was seriously injured and that
while committing first degree kidnapping,
the defendant killed the victim and that the
defendant’s act was a proximate cause of the
victim’s death, and that the defendant
committed first degree kidnapping with the
use of a deadly weapon, it would be your
duty to return a verdict of guilty of first
degree murder under the felony murder rule.
If you do not so find or have a reasonable
doubt as to one or more of these things, you
would not return a verdict of guilty, excuse
me, you would return a verdict of not
guilty.
Let me make sure it’s absolutely clear on
that language. Again under — for Mr. Frink,
you will have three choices under first
degree murder. You will go through and
-31-
consider each of those three bases for first
degree murder, consider all three. You will
only render not guilty if you find that none
of those three exist.
As to Mr. Jones, the same situation, first
degree murder there are two bases, you will
consider both of those bases, only if you
found (sic) that neither of those bases
exist, then you go to not guilty.
(Emphasis added.)
Initially, we note that Defendant has not challenged on
appeal the trial court’s not guilty mandate contained in its
first-degree murder instruction as to Jones. In comparing the
first-degree murder instructions as to Frink and Jones, several
observations can be made. First, the final not guilty mandate
in the Frink instruction is worded more appropriately than that
in the Jones instruction. The former informed the jury of its
“duty” to return a verdict of not guilty while the latter merely
stated that the jury “would” return a not guilty verdict if the
State failed to prove Defendant’s guilt beyond a reasonable
doubt.
Second, in the Jones instruction, the trial court gave a
not guilty mandate both after its instruction on the theory of
premeditation and deliberation and then again at the conclusion
of the overall first-degree murder charge. Conversely, as
discussed above, with regard to the Frink charge, the trial
court only gave a not guilty mandate at the conclusion of the
-32-
overall first-degree murder instruction rather than after each
specific theory of guilt.
Finally, at the end of the Jones first-degree murder
charge, the trial court referenced the Frink first-degree murder
charge, stating the following:
Let me make sure it’s absolutely clear on
that language. Again under — for Mr. Frink,
you will have three choices under first
degree murder. You will go through and
consider each of those three bases for first
degree murder, consider all three. You will
only render not guilty if you find that none
of those three exist.
We acknowledge that this reference by the trial court to
the jury’s obligation regarding the Frink first-degree murder
charge was not worded with perfect clarity and that it would
have been more appropriate for the trial court to emphasize the
jury’s duty to return a verdict of not guilty in the event that
it found the State had failed to prove Defendant’s guilt beyond
a reasonable doubt. Nevertheless, we are satisfied that any
confusion that may have arisen stemming from the trial court’s
instructions was remedied by the verdict sheet, which — as
discussed above — clearly provided an option of not guilty.
Even assuming, without deciding, that the trial court’s
instructions relating to this charge were not free from error,
based on our careful review of the jury instructions in their
entirety and the caselaw discussed above, we conclude that
-33-
Defendant has failed to show plain error. Therefore,
Defendant’s argument on this issue is overruled.
III. Lying in Wait
Defendant also contends that the trial court erred by
instructing the jury — over the objection of his trial counsel —
on first-degree murder based upon a theory of lying in wait with
regard to the death of Frink.
Preserved legal error is reviewed under the
harmless error standard of review. . . .
North Carolina harmless error review
requires the defendant to bear the burden of
showing prejudice. In such cases the
defendant must show 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.
Lawrence, 365 N.C. at 512-13, 723 S.E.2d at 330-31 (internal
citations and quotation marks omitted).
In the present case, Defendant was convicted of first-
degree murder as to Frink based upon three separate theories —
premeditation and deliberation, felony murder, and lying in
wait. On appeal, Defendant has only challenged the sufficiency
of the evidence with regard to the lying in wait theory.
A similar issue was presented in Gosnell. In that case,
the defendant was convicted of first-degree murder both on a
theory of lying in wait and a theory of premeditation and
deliberation. Gosnell, __ N.C. App. at __, 750 S.E.2d at 598.
-34-
However, on appeal, he argued only that it was error for the
trial court to have submitted the theory of lying in wait to the
jury. Id. at __, 750 S.E.2d at 596. This Court held that
because the jury had separately convicted him based on
premeditation and deliberation, “[e]ven assuming Defendant can
show error on this basis, Defendant cannot show prejudice
resulting from the error because there is no possibility that,
had the error in question not been committed, a different result
would have been reached at trial.” Id. at __, 750 S.E.2d at
598.
Therefore, even assuming, without deciding, that the jury
instruction on lying in wait was erroneous, such error would not
have affected Defendant’s conviction of first-degree murder as
to Frink on the theories of premeditation and deliberation and
felony murder. Consequently, Defendant has failed to
demonstrate how a different result would have been reached at
trial had the challenged theory not been submitted to the jury.
IV. Failure to Adequately Individualize Charges
Defendant next makes a series of arguments in which he
contends that the trial court erred by failing to instruct the
jury to consider each offense individually. Because Defendant
did not object to any of these instructions at trial, we again
apply a plain error standard of review. See Lawrence, 365 N.C.
-35-
at 518, 723 S.E.2d at 334. We address each of his specific
arguments in turn.
First, Defendant asserts that “[f]or the assault with a
deadly weapon with intent to kill inflicting serious injury
charges for two victims, the court named both victims, but then
gave an instruction as to ‘the victim.’” Based on our Supreme
Court’s holding in State v. Huff, 325 N.C. 1, 381 S.E.2d 635,
Defendant’s argument lacks merit.
In Huff, the defendant was being tried on two separate
counts of first-degree murder. Id. at 51-54, 381 S.E.2d at 664-
66. On appeal, he cited as plain error various instructions
that referred to a single victim, a single case, and a single
decision to be made. Id. He contended that these references
were misleading and could have led jurors to believe that they
were permitted to make a joint determination of guilt. Id. He
argued that the trial judge had (1) periodically referred to a
single “victim” (although there were two victims); (2) stated
that the State had the burden of “proving the case” (although
there were two cases for the State to prove); and (3) instructed
the jury that the “decision in the case must be unanimous”
(although the jury was required to make decisions in each of two
cases). Id. The defendant also contended that the trial court
erred by giving a single joint instruction on the affirmative
defense of insanity. Id.
-36-
In rejecting the defendant’s argument, the Supreme Court
explained that although “[t]he trial judge did not specifically
instruct the jurors to consider each charge separately[,] . . .
the instructions which he did give achieved that result; taken
as a whole, they make clear that in the determination of
defendant's guilt or innocence the jury was to consider each
charge separately.” Id. at 52, 381 S.E.2d at 664. The Court
held that if a trial court identifies each victim for each
separate count of the same charged offense, it is not plain
error for the trial court to then describe the elements of the
offense only once:
The trial judge proceeded to the instruction
on first-degree murder. He instructed on
the first element, an intentional killing by
the defendant of the victim with malice.
After giving the general instruction which
applied to both cases, [the trial judge]
specifically referred to the Gail Strickland
case and gave the specific instruction which
applied only in the shooting death . . . He
said, “In your consideration of the case in
which Gail Strickland is the victim . . . .”
By referring to the Gail Strickland case by
name, he distinguished it from the case in
which Crigger Huff was the victim and
indicated that the jury should consider the
evidence of the Gail Strickland case
separately from the evidence in the Crigger
Huff case.
Id. at 52-53, 381 S.E.2d at 665. The Supreme Court in Huff
further held that
[t]he format of the verdict sheet and the
trial judge's instruction describing it are
-37-
additional evidence that the instructions as
a whole made clear that the jury was to
consider each charge separately. The record
on appeal shows that the verdict form lists
each charge separately and states the
permitted verdicts under each charge. This
separate treatment clearly requires that the
two charges be addressed separately.
Id. at 54, 381 S.E.2d at 665.
In the present case, as in Huff, all charges against
Defendant were listed separately on separate verdict sheets and
each sheet set forth all permissible verdicts under each charge.
In addition, the trial court referred to Waddell and Inman as
separate victims of two different counts of assault with a
deadly weapon with intent to kill inflicting serious injury:
The defendant has been charged with two
counts of assault with a deadly weapon with
intent to kill inflicting serious injury in
regards to William Inman and Antwan Waddell.
For you to find the defendant guilty of
those two, offenses, the State must prove
four things beyond a reasonable doubt[.]
We believe that the trial court’s instructions — coupled with
the verdict sheets — made clear to the jury that there were two
separate counts and two separate victims regarding this charge.
While Defendant also contends the trial court failed to
separately instruct on the two counts of conspiracy to commit
first-degree murder, the trial court likewise informed the jury
that there were two counts for its consideration as to that
offense by stating the following: “The defendant has been
-38-
charged with conspiracy to commit murder of Darnell Antonio
Frink and Rasheed Delamez Jones, two counts as to that offense.”
Furthermore, the verdict sheets made clear that there were two
separate counts regarding the conspiracy charge as each count
was listed on a separate verdict sheet. Consequently, based on
Huff, we cannot say that this instruction constituted plain
error.
In his brief, Defendant also contends that “the [trial]
court combined the two charges of felon in possession [of a
firearm] without specifying the dates of the offenses or
instructing the jurors that guilt for one of the offenses did
not mean guilt for the other offense.” Our review of the trial
transcript, however, reveals that the trial court did
specifically indicate the dates of the offenses and make clear
that there were two separate counts of that offense by stating
that “[t]he defendant has been charged with two counts of
possession of a firearm by a felon . . . and the two alleged
dates, the first being September 21st, 2007 and the second being
November 19th, 2007.” Furthermore, the jury was given two
separate verdict sheets reflecting the two counts of this
offense and the respective dates of each count was clearly
contained on each verdict sheet. Therefore, Defendant has also
failed to show plain error with regard to this instruction.
-39-
Defendant next asserts that with regard to the felony
murder instruction regarding the death of Frink, the jury was
not informed which assault could form the basis for the felony
murder charge. However, this error does not rise to the level
of plain error. See State v. Coleman, 161 N.C. App. 224, 234-
35, 587 S.E.2d 889, 896 (2003) (“[T]he trial court's
instructions to the jury were ambiguous as to what underlying
felony formed the basis of [the] felony murder charge. . . .
Only one underlying felony is required to support a felony
murder conviction, and in this case, the jury convicted
defendant of four separate felonies which could have served as
the underlying felony. . . . [B]ecause the instructions in the
instant case allowed the jury to convict defendant of a single
wrong by alternative means the instructions were not fatally
ambiguous.” (internal citation and ellipses omitted)).
Therefore, based on Coleman, Defendant has also failed to
establish plain error with regard to this instruction.
Finally, Defendant briefly argues that “[t]he [trial] court
gave the mandate for the Jones murder, but gave no mandate for
the underlying felony, kidnapping.” However, our review of the
trial transcript reveals that the trial court did, in fact,
expressly provide such a mandate. Therefore, this argument
fails as well.
V. Felony Murder
-40-
Defendant’s final argument is that the trial court
committed plain error by instructing the jury on the theory of
felony murder regarding the death of Jones because there was
insufficient evidence of the predicate felonies, first-degree
kidnapping and conspiracy to commit first-degree kidnapping.
However, Defendant was convicted of first-degree murder as
to the death of Jones based not only on a theory of felony
murder but also based on a theory of premeditation and
deliberation. Therefore, as discussed above in connection with
Defendant’s challenge to the lying in wait instruction as to the
death of Frink, any error in the trial court’s decision to
instruct the jury on felony murder would not have affected his
conviction for the first-degree murder of Jones on a theory of
premeditation and deliberation. See Gosnell, __ N.C. App. at
__, 750 S.E.2d at 598. Thus, this argument is overruled.
Conclusion
For the reasons stated above, we conclude that Defendant
received a fair trial free from prejudicial error.
NO PREJUDICIAL ERROR.
Judges ELMORE and McCULLOUGH concur.