State v. JuarezÂ

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-152
Filed: @
Wake County, No. 13 CRS 205985
STATE OF NORTH CAROLINA
v.
JORGE JUAREZ, Defendant.
Appeal by defendant from judgment entered 6 June 2014 by Judge Robert H.
Hobgood in Wake County Superior Court. Heard in the Court of Appeals 26 August
2015.
Roy Cooper, Attorney General, by I. Faison Hicks, Special Deputy Attorney
General, for the State.
Staples Hughes, Appellate Defender, by Emily H. Davis, Assistant Appellate
Defender, for defendant-appellant.
ZACHARY, Judge.
Where the felony of discharging a firearm into an occupied vehicle while it is
in operation does not merge into felony murder, the trial court did not err in denying
defendant’s motion to dismiss the charge of first-degree murder based upon the felony
murder rule. Where perfect self-defense was a defense to the underlying felony, the
trial court erred in refusing to instruct the jury on lesser included offenses to felony
murder. Where evidence showed that defendant withdrew, the trial court committed
plain error in instructing the jury on the aggressor doctrine of self-defense.
STATE V. JUAREZ
Opinion of the Court
I. Factual and Procedural Background
On the evening of 29 October 2012, Jorge Juarez (defendant) was drinking beer
and smoking marijuana with Marcos Chaparro, Karen Gonzales, Erick Martinez, and
Karina Rodriguez at Chaparro’s residence in Durham. Around 11:30 p.m., the group
traveled in Chaparro’s four-door Acura to take Rodriguez to her home at the Foxhall
Village development in Raleigh. At approximately 12:00 a.m. on 30 October 2012,
the vehicle arrived at Rodriguez’ house in Foxhall Village. After dropping Rodriguez
off, Chaparro and Martinez proceeded to break into vehicles nearby to steal car
stereos. Martinez took Chaparro’s baseball bat along for protection. Chaparro asked
to carry defendant’s gun, but defendant refused.
Awakened by the noise, Foxhall Village resident Alfonso Canjay and his wife
Silvia looked out of their window and saw Chaparro and Martinez “trying to steal
something.” Canjay chased Chaparro and Martinez, who fled back to the Acura;
Canjay pursued them with a machete in his white Ford Focus. After eluding Canjay,
Chaparro and Martinez returned to his residence and stole a stereo. Minutes later,
Canjay, in his Ford Focus, spotted Chaparro and Martinez in the Acura and sped
towards them, colliding twice with their vehicle. After the second impact, defendant
fired one gunshot at Canjay’s vehicle, shattering the driver’s window. Immediately
after the shooting, Gonzalez drove Chaparro, Martinez, and defendant back to
Durham.
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STATE V. JUAREZ
Opinion of the Court
Defendant was indicted for the first-degree murder of Canjay. On 6 June 2014,
a jury found defendant guilty of first-degree murder pursuant to the felony murder
rule, with the underlying felony being discharging a firearm into an occupied vehicle
that is in operation. The trial court sentenced defendant to life imprisonment without
parole.
Defendant appeals.
II. Motion to Dismiss
In his first argument, defendant contends that the trial court erred in denying
his motion to dismiss. We disagree.
A. Standard of Review
The standard of review is not disputed. “This Court reviews the trial court’s
denial of a motion to dismiss de novo.” State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d
29, 33 (2007). “‘Upon defendant’s motion for dismissal, the question for the Court is
whether there is substantial evidence (1) of each essential element of the offense
charged, or of a lesser offense included therein, and (2) of defendant’s being the
perpetrator of such offense. If so, the motion is properly denied.’” State v. Fritsch, 351
N.C. 373, 378, 526 S.E.2d 451, 455 (quoting State v. Barnes, 334 N.C. 67, 75, 430
S.E.2d 914, 918 (1993)), cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150 (2000). “In
making its determination, the trial court must consider all evidence admitted,
whether competent or incompetent, in the light most favorable to the State, giving
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STATE V. JUAREZ
Opinion of the Court
the State the benefit of every reasonable inference and resolving any contradictions
in its favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied,
515 U.S. 1135, 132 L. Ed. 2d 818 (1995).
B. Analysis
At the close of the State’s evidence, defendant moved to dismiss the charge of
first-degree murder. This motion was denied, renewed at the close of all the evidence,
and denied again. Defendant contends that the trial court erred in denying this
motion because the underlying felony of discharging a firearm into an occupied
vehicle could not support a felony murder conviction.
Felony murder is “[a] murder . . . committed in the perpetration or attempted
perpetration of any arson, rape, or a sex offense, robbery, kidnapping, burglary, or
other felony committed or attempted with the use of a deadly weapon,” and constitutes
first-degree murder, punishable by life imprisonment. State v. Wall, 304 N.C. 609,
612, 286 S.E.2d 68, 70 (1982) (emphasis in original) (citations omitted); see also N.C.
Gen. Stat. § 14-17 (2013). The existence of some underlying felony is an essential
element of felony murder.
Defendant contends that, pursuant to the doctrine of merger, the underlying
felony of discharging a firearm into an occupied vehicle merges into the charge of
first-degree murder and thus cannot support the charge. This analysis, however, is
inaccurate.
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STATE V. JUAREZ
Opinion of the Court
The doctrine of merger provides that:
[A] defendant may not be punished both for felony murder
and for the underlying, ‘predicate’ felony, even in a single
prosecution. The underlying felony supporting a conviction
for felony murder merges into the murder conviction. The
underlying felony provides no basis for an additional
sentence, and any judgment imposed thereon must be
arrested.
State v. Barlowe, 337 N.C. 371, 380, 446 S.E.2d 352, 358 (1994) (citations and
quotations omitted). The merger doctrine does not preclude indictments for both the
murder and the underlying felony, nor a guilty verdict for both; rather, it requires
that, if a defendant is found guilty of both felony murder and the underlying felony,
the judgment on the underlying felony is arrested, and “merges” into the felony
murder conviction. We have held that:
The felony murder merger doctrine provides that “[w]hen
a defendant is convicted of felony murder only, the
underlying felony constitutes an element of first-degree
murder and merges into the murder conviction.” State v.
Millsaps, 356 N.C. 556, 560, 572 S.E.2d 767, 770 (2002).
“[W]hen the sole theory of first-degree murder is the felony
murder rule, a defendant cannot be sentenced on the
underlying felony in addition to the sentence for first-
degree murder[.]” State v. Wilson, 345 N.C. 119, 122, 478
S.E.2d 507, 510 (1996) (quoting State v. Small, 293 N.C.
646, 660, 239 S.E.2d 429, 438–39 (1977)); compare State v.
Lewis, 321 N.C. 42, 50, 361 S.E.2d 728, 733 (1987) (stating
that if a defendant's conviction of first-degree murder is
based on both the felony murder rule and premeditation
and deliberation, a defendant may be sentenced for both
first-degree murder and the underlying felony).
State v. Rush, 196 N.C. App. 307, 313-14, 674 S.E.2d 764, 770 (2009).
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STATE V. JUAREZ
Opinion of the Court
In support of his position, defendant cites State v. Jones, 353 N.C. 159, 538
S.E.2d 917 (2000). In Jones, the defendant was charged with two counts of first-
degree murder and several counts of assault after striking a vehicle from behind,
causing a collision which injured multiple passengers and resulted in the death of
two. The defendant was found guilty of first-degree murder under the felony murder
rule and of multiple charges of assault against the surviving passengers. In dictum,
the Supreme Court observed that the definition of felony murder includes a blanket
category of “‘other felon[ies] committed or attempted with the use of a deadly weapon,’
which includes such crimes as [assault with a deadly weapon inflicting serious injury]
and shooting into an occupied dwelling or vehicle.” Id. at 167, 538 S.E.2d at 924. In
a footnote, the Court in Jones further noted:
Although this Court has expressly disavowed the so-called
“merger doctrine” in felony murder cases involving a
felonious assault on one victim that results in the death of
another victim . . . cases involving a single assault victim
who dies of his injuries have never been similarly
constrained. In such cases, the assault on the victim cannot
be used as an underlying felony for purposes of the felony
murder rule. Otherwise, virtually all felonious assaults on
a single victim that result in his or her death would be first-
degree murders via felony murder, thereby negating lesser
homicide charges such as second-degree murder and
manslaughter.
Id., at 170 n. 3, 538 S.E.2d at 926 n. 3.
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STATE V. JUAREZ
Opinion of the Court
The offense of discharging a firearm into an occupied vehicle while the vehicle
is in operation differs, however, from ordinary assault. In the instant case, the
underlying offense of discharging a firearm into an occupied vehicle is defined thus:
(a) Any person who willfully or wantonly discharges or
attempts to discharge any firearm or barreled weapon
capable of discharging shot, bullets, pellets, or other
missiles at a muzzle velocity of at least 600 feet per second
into any building, structure, vehicle, aircraft, watercraft,
or other conveyance, device, equipment, erection, or
enclosure while it is occupied is guilty of a Class E felony.
(b) A person who willfully or wantonly discharges a
weapon described in subsection (a) of this section into an
occupied dwelling or into any occupied vehicle, aircraft,
watercraft, or other conveyance that is in operation is
guilty of a Class D felony.
(c) If a person violates this section and the violation
results in serious bodily injury to any person, the person is
guilty of a Class C felony.
N.C. Gen. Stat. § 14-34.1 (2013). Of particular significance is the fact that a person
may be found guilty of discharging a firearm into an occupied vehicle that is in
operation even if defendant’s conduct does not cause bodily injury to any person.
Moreover, “[t]his Court . . . has expressly upheld convictions for first-degree felony
murder based on the underlying felony of discharging a firearm into occupied
property.” Wall, 304 N.C. at 612-13, 286 S.E.2d at 71 (citing State v. Swift, 290 N.C.
383, 226 S.E.2d 652 (1976); State v. Williams, 284 N.C. 67, 199 S.E.2d 409 (1973);
State v. Capps, 134 N.C. 622, 46 S.E. 730 (1904)).
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STATE V. JUAREZ
Opinion of the Court
In Wall, the defendant, a store clerk, attempted to stop a shoplifter by firing a
gun into her departing vehicle, resulting in the death of the driver. The defendant
was charged with first-degree murder under the felony murder statute. On appeal,
defendant urged our Supreme Court to apply the merger doctrine. The Court noted
that the rule is attributed to the California case of People v. Ireland, 70 Cal. 2d 522,
450 P.2d 580, 75 Cal. Rptr. 188 (1969). In Ireland, the California court held that “a ...
felony-murder instruction may not properly be given when it is based upon a felony
which is an integral part of the homicide and which the evidence produced by the
prosecution shows to be an offense included in fact within the offense charged.” Wall,
304 N.C. at 612, 286 S.E.2d at 71 (emphasis in original) (quoting Ireland, 70 Cal. 2d
at 539, 450 P.2d at 590, 75 Cal. Rptr. at 198). Our Supreme Court noted that “[t]he
felony of discharging a firearm into occupied property, G.S. 14-34.1, appears to be
such an integral part of the homicide in the instant case as to bar a felony-murder
conviction under the California merger doctrine.” Id. The Court went on to observe
that “[t]his Court, however, has expressly upheld convictions for first-degree felony
murder based on the underlying felony of discharging a firearm into occupied
property.” Id. Based upon North Carolina precedent, the Court held that discharging
a firearm into occupied property, specifically into a vehicle while it was in operation,
did not merge into felony murder in such a manner as to preclude the homicide
charge. Relying on Wall, our courts have repeatedly declined to extend the merger
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STATE V. JUAREZ
Opinion of the Court
doctrine into this area. See e.g. State v. Mash, 305 N.C. 285, 288, 287 S.E.2d 824, 826
(1982); State v. King, 316 N.C. 78, 81-82, 340 S.E.2d 71, 73-74 (1986); State v. Jackson,
189 N.C. App. 747, 752, 659 S.E.2d 73, 77 (2008); State v. Hicks, ___ N.C. App. ___,
___, 772 S.E.2d 486, 489 (2015). Our precedent clearly states that discharging a
firearm into occupied property is a felony involving a deadly weapon, and as such
supports a charge of first-degree murder based upon the felony murder theory.
In the case at bar, the offense underlying felony murder was the willful or
wanton discharge of a firearm into a vehicle, which is a felony irrespective of the
outcome. Defendant’s arguments that it should merge into felony murder, and that
as a result the charge of felony murder should have been dismissed, are specious.
This argument is without merit.
III. Lesser Offenses
In his second argument, defendant contends that the trial court erred in
denying his request to instruct the jury on the lesser offenses of second-degree murder
and voluntary manslaughter. We agree.
A. Standard of Review
“[Arguments] challenging the trial court’s decisions regarding jury instructions
are reviewed de novo by this Court.” State v. Osorio, 196 N.C. App. 458, 466, 675
S.E.2d 144, 149 (2009). “An instruction on a lesser-included offense must be given
only if the evidence would permit the jury rationally to find defendant guilty of the
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STATE V. JUAREZ
Opinion of the Court
lesser offense and to acquit him of the greater.” State v. Millsaps, 356 N.C. 556, 561,
572 S.E.2d 767, 771 (2002).
B. Analysis
At trial, defendant requested that the jury be instructed on the lesser included
offenses of second-degree murder and voluntary manslaughter. The trial court
denied this request, and the jury was instructed only on the charge of first-degree
murder pursuant to the felony murder theory. Defendant contends that this
constituted reversible error.
Defendant first maintains that there was conflict concerning the underlying
felony, which defendant argues merges into felony murder. We have discussed and
dismissed this argument in section II B of this opinion, above.
Defendant next asserts that there was conflict regarding whether defendant
acted in self-defense. Self-defense is not a defense to first-degree murder under the
felony murder rule; it may be a defense solely to the underlying felony, and then only
if it is perfect self-defense. State v. Richardson, 341 N.C. 658, 668-69, 462 S.E.2d 492,
499 (1995). We further note that, in the instant case, the jury was instructed on
perfect self-defense. Our Supreme Court in Millsaps established when instructions
on lesser included offenses were to be given with respect to felony murder:
(i) If the evidence of the underlying felony supporting
felony murder is in conflict and the evidence would support
a lesser-included offense of first-degree murder, the trial
court must instruct on all lesser-included offenses
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Opinion of the Court
supported by the evidence whether the State tries the case
on both premeditation and deliberation and felony murder
or only on felony murder. State v. Thomas, 325 N.C. 583,
386 S.E.2d 555.
...
(iii) If the evidence as to the underlying felony supporting
felony murder is not in conflict and all the evidence
supports felony murder, the trial court is not required to
instruct on the lesser offenses included within
premeditated and deliberate murder if the case is
submitted on felony murder only. See State v. Covington,
290 N.C. 313, 226 S.E.2d 629.
Millsaps, 356 N.C. at 565, 572 S.E.2d at 773-74.
The evidence supporting the underlying felony is in conflict. As previously
discussed, the underlying felony of discharging a firearm into an occupied vehicle
while it is in operation requires simply that a defendant (1) willfully or wantonly
discharges (2) a weapon (3) into an occupied vehicle (4) that is in operation. N.C. Gen.
Stat. § 14-34.1(b). There is no question that this transpired. Defendant fired a gun
into Canjay’s vehicle while Canjay was driving it. The evidence also showed,
however, that defendant and his associates were leaving from in front of Canjay’s
home when Canjay pursued them in his vehicle, ramming into their vehicle twice.
This evidence is sufficient to support a finding that defendant had a reasonable fear
for his safety and was within his rights to fire his gun in self-defense.
A finding that defendant acted in reasonable self-defense would have rendered
him not guilty of a charge of discharging a firearm into an occupied vehicle and would
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STATE V. JUAREZ
Opinion of the Court
have necessarily precluded a finding of guilt for first-degree murder based upon
felony murder. The evidence, however, would have been sufficient to support a lesser
included offense. As such, we hold that defendant has adequately demonstrated that
it was error to deny defendant’s request that the jury be instructed on the lesser
included offenses of second degree murder and voluntary manslaughter.
IV. Self-Defense
In his third argument, defendant contends that the trial court committed plain
error by instructing the jury that defendant could not receive the benefit of self-
defense if he was found to be the aggressor. We agree.
A. Standard of Review
The North Carolina Supreme Court “has elected to review unpreserved issues
for plain error when they involve either (1) errors in the judge’s instructions to the
jury, or (2) rulings on the admissibility of evidence.” State v. Gregory, 342 N.C. 580,
584, 467 S.E.2d 28, 31 (1996).
[T]he plain error rule ... is always to be applied cautiously
and only in the exceptional case where, after reviewing the
entire record, it can be said the claimed error is a
“fundamental error, something so basic, so prejudicial, so
lacking in its elements that justice cannot have been done,”
or “where [the error] is grave error which amounts to a
denial of a fundamental right of the accused,” or the error
has “‘resulted in a miscarriage of justice or in the denial to
appellant of a fair trial’” or where the error is such as to
“seriously affect the fairness, integrity or public reputation
of judicial proceedings” or where it can be fairly said “the
instructional mistake had a probable impact on the jury's
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Opinion of the Court
finding that the defendant was guilty.”
State v. Lawrence, 365 N.C. 506, 516-17, 723 S.E.2d 326, 333 (2012) (quoting State v.
Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)).
B. Analysis
At trial, the trial court instructed the jury that defendant was not entitled to
the benefit of self-defense on the felony of discharging a firearm into an occupied
vehicle if defendant was the aggressor in that situation. As defendant failed to object
to this instruction at trial, we review it for plain error.
Our courts have consistently held that it is reversible error to instruct the jury
on the aggressor doctrine of self-defense where there is no evidence that the
defendant was the initial aggressor. See e.g. State v. Washington, 234 N.C. 531, 535,
67 S.E.2d 498, 501 (1951); State v. Jenkins, 202 N.C. App. 291, 299, 688 S.E.2d 101,
106-07 (2010); State v. Tann, 57 N.C. App. 527, 530-31, 291 S.E.2d 824, 827 (1982).
The initial aggressor doctrine provides that “the right of self-defense is only available
to a person who is without fault, and if a person voluntarily, that is aggressively and
willingly, enters into a fight, he cannot invoke the doctrine of self-defense unless he
first abandons the fight, withdraws from it and gives notice to his adversary that he
has done so.” State v. Marsh, 293 N.C. 353, 354, 237 S.E.2d 745, 747 (1977). Although
our courts have not explicitly defined an “initial aggressor,” we have held that
withdrawing from conflict is a means by which a person can avoid that status.
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STATE V. JUAREZ
Opinion of the Court
In the instant case, the evidence at trial tended to show that: (1) defendant
waited in the Acura while his associates broke into vehicles to steal car stereos; (2)
Canjay discovered the break-ins, grabbed a machete, and chased defendant’s
associates back to the Acura; (3) after eluding Canjay, defendant and his associates
returned to Canjay’s residence and stole a stereo from a vehicle nearby; (4) Canjay
spotted defendant’s associates and pursued the Acura in his own car; (5) Canjay used
his car to ram the Acura twice; and (6) defendant fired into Canjay’s vehicle. Even if
we were to assume that defendant’s conduct rose to the level of aggression, his
withdrawal in the Acura removes him from the realm of the initial aggressor.
Canjay’s pursuit of defendant and his associates reframes the conflict, placing Canjay
in the role of aggressor when he used force against defendant and his companions.
As there was no evidence to support a determination that defendant was the initial
aggressor, the trial court erred in issuing an instruction on the initial aggressor
exception to self-defense.
NO ERROR IN PART, REVERSED AND REMANDED IN PART.
Judges STEPHENS and McCULLOUGH concur.
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