1. Robbery_indictment_attempted robbery with a firearm_sufficiency of notice
The trial court did not err by denying defendant's motion to dismiss the charge of
attempted robbery with a firearm based on an allegedly defective indictment, because: (1) the
indictment properly specified the name of the person from whose presence the property was
attempted to be taken, whose life was endangered, and the place that the offense occurred; and
(2) the indictment was sufficient to put defendant on notice that he was charged with attempted
robbery with a firearm so as to prevent subsequent prosecution for that same offense.
2. Robbery_attempted with a firearm_sufficiency of evidence
The trial court did not err by denying defendant's motion to dismiss the charge of
attempted robbery with a firearm based on an alleged insufficiency of the evidence, because: (1)
the variance between the indictment's allegations and the evidence at trial were concerning
superfluous matters; and (2) regardless of the exact property defendant intended to take upon his
entry into the store and who owned that property, defendant entered the store with his face
covered by a bandana, with his gun drawn and pointed at the store clerk, and with the stated
intent to rob the store of its property.
3. Criminal Law_deadlocked jury_trial court's reference to the potential for and
expense of a new trial
The trial court committed prejudicial error entitling defendant to a new trial in an
attempted robbery with a firearm case by charging the jury in violation of N.C.G.S. § 15A-1235
about the potential for and expense of a new trial when the trial court learned the jury was
deadlocked.
Attorney General Roy Cooper, by Assistant Attorney General
David L. Elliott, for the State.
Amber A. Corbin for defendant-appellant.
BIGGS, Judge.
Defendant Kevin Lee Burroughs was charged with attempted
robbery with a firearm. The State's evidence tended to show the
following: On 26 May 1999, Garrett Caviness was working in C'sConvenience Store, a family owned and operated convenience store
located in Bennett, North Carolina. At about 1:50 p.m., he was
behind the cash register when he looked up and saw defendant and
another man run past the window with guns drawn. The men were
wearing bandanas over their faces. Suspecting that he was about
to be robbed, Caviness immediately picked up his own gun.
Defendant entered the store, with his co-defendant following.
Defendant aimed his gun at Caviness, who in turn, aimed his gun at
defendant. When he saw Caviness' gun pointed in his direction,
defendant, who was about to say something, stopped and dove to the
floor. Defendant begged Caviness not to shoot him. Upon seeing
Caviness' gun, the co-defendant also dove to the floor, but
subsequently fled the scene in his automobile when Caviness turned
his attention to defendant. Caviness held defendant at gun point,
and demanded that defendant relinquish his gun. When defendant did
so, Caviness stepped around the counter to pick the gun up. He
then locked the front door and called 911. While awaiting the
arrival of law enforcement, Caviness made defendant lay face-down
on the floor. At one point, defendant stated that “he had messed
up” and that he “shouldn't have done it.” Subsequently law
enforcement arrived and took defendant into custody. While in
custody, and after being apprised of his Miranda rights, defendant
gave a written statement to Detective T.C. Yarborough, of the
Chatham County Sheriff's Department, admitting to devising a plan
with his cousin to rob C's Convenience Store. The plan required
that defendant would hold the store clerk at gunpoint, while his
cousin stole some beer. Defendant admitted that he covered hisface with a “do rag” and entered the store with a .22 Magnum
pistol, and that he intended to steal beer.
At trial, defendant testified on his own behalf. Defendant
testified that on the morning of 26 May 1999, he and his cousin had
been target shooting. Defendant was using a gun that belonged to
his grandmother. After target shooting, defendant placed the gun
in his vehicle between the seats. When the two men got thirsty,
they traveled to C's Convenience Store. The two then began to joke
about robbing the store. Defendant testified that he was wearing
a “do rag” on his head, and pulled it down over his nose to imitate
Jesse James. Defendant also testified that he retrieved the gun
from between the car seats. According to defendant, the next thing
he knew, he was entering the store with his face covered by the “do
rag” and carrying his loaded gun. Defendant insisted, “it was just
a joke in the store,” and that he had every intention of going in
and paying for the goods. Defendant stated that “it just
happened.” Defendant maintained on cross-examination that he did
not know how he ended up face down on the floor in the store. He
stated, “I don't remember getting out and grabbing nothing between
here and yonder. All I know is I was picking in the car. Next
thing I know, I was in the door with a gun in my face so I hit the
floor. I wasn't expecting none of this to be going on.” As to the
statement given to Detective Yarborough, defendant testified that
he was scared at the time and did not pay attention to what he told
the detective. A jury found defendant guilty as charged. The
trial court entered judgment on that verdict, sentencing defendant
to a presumptive term of sixty-eight to ninety-one monthsimprisonment. Defendant appeals.
We note at the outset that those assignments set forth in the
record but not argued in defendant's brief are deemed abandoned.
See N.C.R. App. P. 28(b)(5) (providing that “[a]ssignments of error
not set out in the appellant's brief, or in support of which no
reason or argument is stated or authority cited, will be taken as
abandoned[]”).
[1]By his first assignment of error argued in his brief,
defendant argues (1) that the trial court lacked jurisdiction to
hear this case since the indictment was fatally flawed; and
therefore (2) the trial court erred in denying his motion to
dismiss. We disagree.
Jurisdiction to try a criminal defendant for a felony is
premised upon a valid bill of indictment. State v. Snyder, 343
N.C. 61, 65, 468 S.E.2d 221, 224 (1996). To sufficiently charge a
criminal offense, an indictment must state the elements of the
offense with sufficient detail to put the defendant on notice as to
the nature of the crime charged and to bar subsequent prosecution
for the same offense in violation of the prohibitions against
double jeopardy. Id. “'In an indictment for robbery with firearms
or other dangerous weapons (G.S. 14-87), the gist of the offense is
not the taking of personal property, but a taking or attempted
taking by force or putting in fear by the use of firearms or other
dangerous weapon.'” State v. Mahaley, 122 N.C. App. 490, 492, 470
S.E.2d 549, 551 (1996) (quoting State v. Harris, 8 N.C. App. 653,
656, 175 S.E.2d 334, 336 (1970)). While an indictment for robbery
(or attempted robbery) with a dangerous weapon need not allegeactual legal ownership of property, see e.g., State v. Rogers,
273
N.C. 208, 159 S.E.2d 525 (1968); State v. Fate, 38 N.C. App. 68,
247 S.E.2d 310 (1978), the indictment must at least name a person
who was in charge or in the presence of the property at the time of
the robbery, if not the actual, legal owner. State v. Moore, 65
N.C. App. 56, 61, 308 S.E.2d 723, 727 (1983). If the defendant
needs further information, he should move for a bill of
particulars. See N.C.G.S. § 15A-925 (1999).
In the instant case, the indictment read as follows:
The jurors . . . present that . . . the
defendant named above unlawfully, willfully
and feloniously did steal, take, and carry
away and attempt to steal, take and carry away
another's personal property, an unknown amount
of U.S. Currency and the value of (unknown)
dollars, from the presence, person, place of
business, and residence of Garrett Caviness.
The defendant committed this act having in
possession and with the use and threatened use
of firearms and other dangerous weapons,
implements, and means, an assault consisting
of having in possession and threatening the
use of a firearm, a pistol, whereby the life
of Gar[r]ett Caviness was endangered and
threatened.
While defendant argues to the contrary, this indictment properly
specified the name of the person from whose presence the property
was attempted to be taken, whose life was endangered, and the place
that the offense occurred. See Moore, 65 N.C. App. at 61, 308
S.E.2d at 727. Defendant's reliance on State v. Thornton, 251 N.C.
658, 111 S.E.2d 901 (1960), and State v. Woody, 132 N.C. App 788,
513 S.E.2d 801 (1999), is misplaced. Those cases are readily
distinguishable from the present case, as they involve the offenses
of larceny and/or conversion -- offenses in which it is crucial
that the identity of the owner of the property be properly allegedand proven at trial. As the present indictment was sufficient to
put defendant on notice that he was charged with attempted robbery
with a firearm so as to prevent subsequent prosecution for that
same offense, this argument fails.
In that same regard, defendant's argument that he was entitled
to a dismissal of the attempted robbery charge, based upon the
alleged defective indictment, also fails. This assignment of error
is, therefore, overruled.
[2]Defendant next contends that the trial court erred in
denying his motion to dismiss for insufficient evidence. This
argument is also based upon an allegedly fatal variance between the
indictment and the proof at trial.
The indictment alleged that defendant attempted to steal an
unspecified amount of cash from the store clerk, Garrett Caviness.
As previously discussed, the gravamen of the offense charged here
is the taking by force or putting in fear, while the specific owner
or the exact property taken or attempted to be taken is mere
surplusage. See Rogers, 273 N.C. at 212, 159 S.E.2d at 528.
Defendant cannot show prejudicial error where the alleged variance
between the indictment's allegations and the evidence at trial were
as to superfluous matters. Regardless of the exact property
defendant intended to take upon his entry into the store and who
owned that property, the evidence, in the light most favorable to
the State, tends to show that defendant entered the store with his
face covered by a bandana, with his gun drawn and pointed at the
store clerk, Garrett Caviness, and with the stated intent to rob
the store of its property. As this evidence is sufficient to provethe offense charged, the trial court's denial of defendant's motion
to dismiss was proper. See State v. McCoy, 122 N.C. App. 482, 485,
470 S.E.2d 542, 544, disc. review denied, 343 N.C. 755, 473 S.E.2d
622 (1996) (stating that “[i]f there is substantial evidence of the
essential elements of the offense charged, or of a lesser included
offense, and of defendant being the perpetrator, 'the trial court
must deny the motion to dismiss . . . and submit [the charge] to
the jury. . . .'” State v. McAvoy, 331 N.C. 583, 589, 417 S.E.2d
489, 493 (1992)). Accordingly, this assignment of error is also
overruled.
[3]Defendant next argues that the trial court erred in
charging the jury, upon learning that they were deadlocked, with an
instruction that violated N.C.G.S. § 15A-1235 (1999). We agree.
N.C.G.S. § 15A-1235, which governs the charges that may be
given to a jury that is apparently unable to agree upon a verdict,
provides in pertinent part:
(c) If it appears to the judge that the jury
has been unable to agree, the judge may
require the jury to continue its
deliberations and may give or repeat the
instructions provided in subsections (a)
and (b). The judge may not require or
threaten to require the jury to
deliberate for an unreasonable length of
time or for unreasonable intervals.
(d) If it appears that there is no reasonable
possibility of agreement, the judge may
declare a mistrial and discharge the
jury.
N.C.G.S. § 15A-1235(c),(d)(1999). In State v. Easterling, our
Supreme Court held that under N.C.G.S. § 15A-1235, “a North
Carolina jury may no longer be advised of the potential expense and
inconvenience of retrying the case should the jury fail to agree.”300 N.C. 594, 608, 268 S.E.2d 800, 809 (1980). However, in
Easterling, the Court found that defendant was not prejudiced since
there was no evidence of deadlock when the court gave his
instruction. Id. at 609, 268 S.E.2d at 809. In State v. Mack,
this Court stated, “where the jury is deadlocked, and this fact is
known to the trial judge, the mention of inconvenience and
additional expense may well be prejudicial and harmful to the
defendant, and must be scrutinized with extraordinary care.” 53
N.C. App. 127, 129, 280 S.E.2d 40, 42 (1981); see also State v.
Lipfird, 302 N.C. 391, 276 S.E.2d 161 (1981) (holding that the
instruction given to a deadlocked jury, which referred to the
possibility of a new trial and the selection of another jury, was
prejudicial error); State v. Buckom, 111 N.C. App. 240, 431 S.E.2d
776 (1993) (holding that instructing the jury to attempt to
reconcile its differences to avoid expense was prejudicial error),
aff'd per curiam, 335 N.C. 765, 440 S.E.2d 274 (1994); State v.
Johnson, 80 N.C. App. 311, 341 S.E.2d 770 (1986) (holding that the
trial court's mention of the “potential inconvenience” of retrial
during re-instruction to a jury, known to be deadlocked, was
prejudicial error, even though the judge did not mention the
expense of another trial); State v. Lamb, 44 N.C. App. 251, 261
S.E.2d 130 (1979) (finding reversible error where the trial judge
stated, “[b]oth the state and the defendants have a tremendous
amount of time and money invested in this case. If you don't reach
a verdict, it means that it will have to be tried again by another
jury in this county and that involves a duplication of all of the
expense and all the time[]”). In the case sub judice, the jury first retired to deliberate
at 3:16 p.m. At 4:00 p.m., the jury sent a note to the judge,
requesting information on the “four rules for intent.” Judge Allen
brought the jury back into the courtroom and instructed the jurors
on the definition of intent and the four elements of robbery with
a firearm. The jury returned to the jury room to resume
deliberations at 4:05 p.m. At 4:45 p.m., the jury advised the
bailiff that they were deadlocked at nine to three. The judge then
properly instructed the jury pursuant to N.C.G.S. § 15A-1235.
Subsequently, however, at about 10:10 a.m. on the next day, when
the jury was still unable to reach a decision and sent the judge a
note, asking what they were to make of defense counsel's closing
remark about defendant facing 123 months imprisonment if convicted,
the judge brought the jury back into the courtroom for additional
instruction. First, the judge admonished the jury that the
punishment of defendant was not their responsibility. He
continued,
Ladies and gentlemen, I want to advise
you that if the jury in this trial cannot
reach a unanimous verdict, in all probability
the case will have to be tried before another
jury of 12 citizens here in Chatham County.
Superior court sessions and jury trials are
very expensive to the taxpayers who pay for
the court system. I do not tell you this in
any way to pressure you into reaching a
verdict because no juror should surrender his
honest convictions. I repeat, an honest
conviction, for the mere purpose of reaching a
verdict.
However, each and every one of you have a
duty to deliberate with a view towards
reaching an agreement. You have a duty, as a
citizen and having been selected to set [sic]
on this jury, to reach a verdict if it can be
done[]. With this in mind, I again want toinform you that a jury verdict must be
unanimous. That must be all 12 jurors must
agree to your verdict as to guilt or no guilty
[sic].
But I say to you that jurors have a duty
to consult with one another and to deliberate
with a view to reaching an agreement, if it
can be done without violence to an individual
judgment. Each juror must decide this case
for himself or herself but only after an
impartial consideration of the evidence with
his or her fellow jurors.
The judge went on, instructing the jury in accordance with N.C.G.S.
§ 15A-1235, and then sent the jury back to resume its deliberations
at about 10:15 a.m. Defense counsel objected to the instructions
and requested a mistrial, which was denied. The jury returned its
guilty verdict within fifteen minutes of the trial judge's last
instruction.
After reading the instructions of the trial judge, we are
unable to perceive any distinguishable differences between the
instructions given here and those found to be prejudicial error by
our appellate courts in Lamb, and its progeny. We therefore
conclude that the trial court's reference to the potential for and
expense of a new trial was prejudicial error and that defendant is
entitled to a new trial.
Having concluded that defendant is entitled to a new trial, we
need not address his remaining assignments of error.
New Trial.
Judges MARTIN and MCCULLOUGH concur.
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