Appeal by defendant from judgments entered 1 February 1999 by
Judge James R. Vosburgh in Robeson County Superior Court. Heard in
the Court of Appeals 4 December 2001.
Attorney General Roy Cooper, by Assistant Attorney General
Daniel P. O'Brien, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Benjamin Dowling-Sendor, for defendant-appellant.
CAMPBELL, Judge.
On 4 December 1995, defendant Wayne Scott was indicted for the
murders of Docia Chavis and Melinda Chavis, arson, first-degree
burglary, and first-degree rape. The case was tried capitally on
the basis of both premeditated and deliberate murder and felony
murder. On 27 January 1999, defendant was found guilty of first-
degree arson, first-degree rape, first-degree burglary, and two
counts of first-degree murder under the felony murder rule.
Following a capital sentencing proceeding, the jury was unable to
reach a unanimous sentencing recommendation on the two first-degree
felony murder convictions. Accordingly, the trial court sentenced
defendant to two consecutive terms of life imprisonment. Defendantalso received consecutive sentences of 101 to 132 months for the
first-degree arson conviction, and 384 to 470 months for the first-
degree rape conviction. The trial court arrested judgment on the
first-degree burglary conviction because burglary was the
underlying felony supporting the two first-degree felony murder
convictions.
(See footnote 1)
The State's evidence tended to show that defendant attended a
party at the home of Leo Edwards on the evening of 3 July 1995.
While at the party, defendant smoked crack cocaine and drank
liquor. Defendant left the party between midnight and 1:00 a.m. on
4 July 1999, and went to the home of eighty-three-year-old Docia
Chavis and her seventeen-year-old granddaughter, Melinda Chavis.
Defendant entered the Chavis home through an unlocked door,
strangled Docia Chavis, strangled and raped Melinda Chavis, and,
after both victims were dead, set fire to the house.
Additional facts will be presented as needed to discuss
specific issues raised by defendant.
Jury Selection Issues
In his first argument defendant contends that the trial court
committed reversible error under the Sixth Amendment to the United
States Constitution and Article I, Section 23 of the North Carolina
Constitution by having unrecorded private bench discussions withprospective jurors. Defendant argues that these private bench
discussions violated his nonwaivable right to be present at every
stage of his capital trial.
A review of the jury selection process reveals the following:
After defendant's case was called for trial on 4 January 1999, the
first set of prospective jurors entered the courtroom. After this
group of prospective jurors was told that defendant's case had been
called for trial, the following exchange transpired:
BY THE COURT:
. . . It is my understanding that no jury
excuses have been heard from this group of
jurors today. Is that correct?
(PROSPECTIVE MEMBERS OF THE JURY NOD IN THE
AFFIRMATIVE)
BY THE COURT:
Are those -- are there any of you who have not
had an opportunity to speak to a District
Court judge with regard to serving as a juror
this week? And I will tell you that this
could be a protracted trial and extend for
anywhere from three weeks to as much as five
weeks. And I tell you that because it could
have some effect on your lives with regard to
business commitments and things of that
nature. I cannot excuse you from jury duty,
but I can have you deferred so that you can
serve some other time. Are there any of you
among the jurors who are out there now who
would like to speak to me privately at the
bench with regard to having your jury service
deferred to some subsequent time? If there
are, let me ask you to raise your hands. I
see three hands, four, five. All right.
Sheriff, if you would, stand there and have
them line up right there at the bench. And
I'll speak to you privately up here at the
bench.
(BENCH CONFERENCES WITH INDIVIDUAL PROSPECTIVE
MEMBERS OF THE JURY OFF THE RECORD)
BY THE COURT:
Are there any others who would like to meet
with me with regard to the possibility of
deferring your jury service?
Defendant and defense counsel were present in the courtroom
throughout this exchange, but were not present at the bench when
the private discussions with prospective jurors took place, nor
were the discussions recorded by the court reporter. After this
exchange, the judge proceeded with jury
voir dire. The record does
not indicate that any action was taken by the judge as a result of
these unrecorded private discussions with prospective jurors.
The record further reveals three additional occasions on which
the judge had unrecorded private
discussions with prospective
jurors. On each occasion, after the prospective jury panel entered
the courtroom, the judge asked if any member of the panel wished to
be heard concerning a request that their jury service be deferred.
On two of these occasions, the judge informed the prospective
jurors that the trial could take several weeks and could create
personal hardships which might make it impossible for some of the
jurors to serve. On one occasion, the judge simply asked if any of
the prospective jurors wished to be heard concerning deferral of
their jury service. The judge then questioned the prospective
jurors individually at the bench about their requests to be
deferred. It is uncontradicted that these private
bench
discussions with prospective jurors occurred outside the hearing of
defendant and his attorneys. However, as with the first round of
private
bench discussions with prospective jurors, the record doesnot disclose that any prospective juror was actually excused or
deferred as a result of these private communications. In fact,
defendant has failed to identify any prospective juror that was
actually excused or deferred as a result of the trial court's
unrecorded private discussions with prospective jurors.
The Confrontation Clause of the North Carolina Constitution
guarantees the right of every accused to be present at every stage
of his trial. N.C. Const. art. I, § 23;
State v. Cummings, 353
N.C. 281, 289, 543 S.E.2d 849, 854,
cert. denied, ___ U.S. ___, 151
L. Ed. 2d 286 (2001);
State v. Nobles, 350 N.C. 483, 491, 515
S.E.2d 885, 891 (1999). In
Cummings, our Supreme Court recently
stated:
In a capital case, there is a heightened need
for strict adherence to the constitutional
mandate that the defendant be personally
present at all critical stages of the
prosecution. This right, as it pertains to
communications of substance between the trial
court and a prospective juror, is based on the
principle that a defendant should be permitted
an opportunity to evaluate and be heard as to
whether the proposed judicial action is
appropriate under the circumstances.
Id. at 289, 543 S.E.2d at 854. “Furthermore, defendant's right to
be present at every stage of his capital trial is nonwaivable.”
Nobles, 350 N.C. at 491, 515 S.E.2d at 891.
It is well settled that jury selection is a stage of a capital
trial at which the defendant has the constitutional right to be
present,
and that it is error for the trial court to exclude the
defendant, counsel, and the court reporter from its private
communications with prospective jurors prior to excusing them
. Cummings, 353 N.C. at 289, 543 S.E.2d at 854;
State v. Williams,
339 N.C. 1, 28-29, 452 S.E.2d 245, 262 (1994)
;
State v. Smith, 326
N.C. 792, 794, 392 S.E.2d 362, 363 (1990).
The defendant bears the burden of demonstrating this kind of
error from the record on appeal.
Nobles, 350 N.C. at 494, 515
S.E.2d at 892
. However, this kind of error “is subject to harmless
error analysis, the burden being upon the State to demonstrate the
harmlessness beyond a reasonable doubt.”
Williams, 339 N.C.
at 29,
452 S.E.2d at 262. Our Supreme Court has found such error harmless
beyond a reasonable doubt where “'the transcript reveals the
substance of the conversations, or the substance is adequately
reconstructed by the trial judge at trial,'”
State v. Adams, 335
N.C. 401, 409, 439 S.E.2d 760, 763 (1994)(quoting
State v. Boyd,
332 N.C. 101, 106, 418 S.E.2d 471, 474 (1992)), and “it is manifest
from the transcript that defendant was not harmed because his
presence would have made no difference in the outcome of the
conversation . . . .”
Williams, 339 N.C. at 29, 452 S.E.2d at 262
.
Further, in
State v. Payne, 328 N.C. 377, 402 S.E.2d 582 (1991),
the Supreme Court stated:
Whether this kind of error is harmless
depends, we conclude, on whether the
questioning of prospective jurors in
defendant's absence might have resulted in a
jury composed differently from one which
defendant might have obtained had he been
present and participated in the process. We
are satisfied here beyond a reasonable doubt
that defendant's absence during the
preliminary questioning of prospective jurors
did not result in the rejection of any juror
whom defendant was entitled to have on the
panel or the seating of any juror whom
defendant was entitled to reject either forcause or peremptorily.
Id. at 389, 402 S.E.2d at 589;
accord Cummings, 353 N.C. at 289-90,
543 S.E.2d at 854.
In the instant case, we conclude that the trial court violated
defendant's constitutional right to be present by having
unrecorded private
discussions with prospective jurors on each of
the four occasions recited above. The question is whether the
State has demonstrated the error to be harmless beyond a reasonable
doubt.
We conclude that it has under the reasoning of the Supreme
Court
in
Williams. In
Williams, the defendant assigned error to
seven alleged unrecorded private
bench conferences, each with a
different prospective juror. One of the alleged private bench
conferences was referenced in the trial transcript only by the
following: “DISCUSSION AT THE BENCH with a juror.” This incident
occurred immediately after court opened on the ninth day of jury
selection. The record did not reveal that any action was taken as
a result of this communication, and, immediately after it occurred,
the trial court greeted those in attendance and resumed the
voir
dire examination of the prospective jurors. Based on these facts,
the Court held:
We can safely assume that this juror was
thereafter subject to questioning by both the
State and defendant, and was either seated or
excused on the basis of this examination and
not the discussion at the bench. The
discussion, therefore, did not deprive
defendant of a juror to whom he would
otherwise have been entitled, nor did it
result in the seating of a juror whom he might
otherwise have rejected. It was, therefore,harmless under the rationale of
State v.
Payne, 328 N.C. 377, 402 S.E.2d 582.
Williams, 339 N.C. at 31, 452 S.E.2d at 263.
In defendant's case, the record references all four occasions
of private discussions between the judge and prospective jurors as
follows: “(BENCH CONFERENCES WITH INDIVIDUAL PROSPECTIVE MEMBERS OF
THE JURY OFF THE RECORD).” The record further reveals that each
discussion was preceded by the judge asking the prospective jurors
if any of them wished to be heard concerning possible deferral of
their jury service. The record does not reveal that any action was
taken as a result of any of the private discussions. There is no
showing that a prospective juror was deferred as a result of a
private discussion with the judge. Finally, after each of the
private discussions between the judge and prospective jurors, the
record shows that the judge resumed the jury
voir dire. We find
these facts sufficiently similar to those in
Williams to make the
Supreme Court's reasoning in
Williams controlling. Therefore, we
conclude that the State has met its burden of establishing that the
trial court's violation of defendant's right to be present was
harmless beyond a reasonable doubt.
Defendant further points out that N.C. Gen. Stat. § 15A-1241
requires complete recordation of jury selection in capital
proceedings, and that the trial court granted defendant's motion
for complete recordation prior to trial. Thus, the trial court
also erred under N.C.G.S. § 15A-1241 in failing to record its
private discussions with prospective jurors. However, we conclude
that this error was likewise harmless beyond a reasonable doubt forthe reasons stated above. Accordingly, defendant's first
assignment of error is overruled.
Defendant next contends that the trial court erred in denying
his motion for a mistrial on the grounds that the refusal of the
United States Postal Service to deliver juror summonses to Robeson
County residents with rural box number addresses (1) deprived
defendant of a jury of his peers chosen from a fair cross-section
of the community in violation of the Sixth Amendment to the United
States Constitution and (2) violated the requirements of N.C. Gen.
Stat. § 9-10.
The record reveals that on 4 January 1999, the first day of
jury selection, the trial court observed that many fewer
prospective jurors than expected had appeared for jury service. On
11 January 1999, the trial court again expressed concern over the
failure of a number of prospective jurors to appear for jury duty.
Finally, on 13 January 1999, defense counsel and the trial court
had the following exchange:
BY MR. JACOBSON:
We have had problems with jurors from the very
beginning. And I think I have figured out
what is going on. And that's going to be part
of a motion. The post office has recently
said that they will not deliver mail to --
pieces of mail that are addressed to a rural
route.
BY THE COURT:
Or a rural box number.
BY MR. JACOBSON:
Or a rural box.
BY THE COURT:
They've done that since last Sunday.
BY MR. JACOBSON:
Yes, they have. And that includes jury
summonses because they go out of this county
by mail. And that accounts for at least why
we didn't have any responses on this panel
that came in Monday. And so it's my opinion
that the defendant is being denied a jury of
his peers since it's only town folks that are
being called as jurors and not people from the
rural routes. In order to preserve it, Your
Honor, I make a motion for a mistrial on that
basis.
The trial court denied defendant's motion for a mistrial, and
defendant assigns error to this denial.
The standard of review for the denial of a motion for a
mistrial has been stated by the Supreme Court as follows:
It is well settled that the decision of
whether to grant a mistrial rests in the sound
discretion of the trial judge and will not be
disturbed on appeal absent a showing of an
abuse of discretion. . . . [A] trial court may
be reversed for an abuse of discretion only
upon a showing that its ruling was so
arbitrary that it could not have been the
result of a reasoned decision.
State v. Barts, 316 N.C. 666, 682, 343 S.E.2d 828, 839 (1986)
(citations omitted).
In the instant case, defendant has failed to show that the
trial court's denial of his motion for a mistrial was so arbitrary
that it could not have been the result of a reasoned decision since
the change in the mail delivery policy complained of by defendant
did not affect the
venire from which defendant's jury was drawn
.
N.C.G.S. § 9-10 (1999) requires that summonses to jurors“shall be served personally, or by leaving a copy thereof at the
place of residence of the juror, or by telephone or first-class
mail, at least 15 days
before the session of court for which the
juror is summoned.” N.C.G.S. § 9-10 further provides that service
by first-class mail is valid and binding on the person served “if
mailed to the correct current address of the juror.” N.C.G.S. § 9-
10(a).
Here, defendant's case was called for trial at the 4 January
1999 Session of Robeson County Superior Court. The jury selection
process continued into the 11 January 1999 Session of Robeson
County Superior Court. Under N.C.G.S. § 9-10(a), the juror
summonses for the 4 January 1999 session of court were required to
be served no later than
20 December 1998, while the juror summonses
for the 11 January 1999 session were required to be served no later
than 27 December 1998. The record shows that the change in mail
delivery policy complained of by defendant began on 3 January 1999,
the day before the start of jury selection in defendant's case. In
addition, defendant asserts in his brief that the addresses on the
juror summonses for defendant's jury
venire became incorrect the
day before jury selection began. Based on these facts, we find
that the change in mail delivery policy complained of by defendant
could not have adversely affected defendant's jury
venire since the
prospective jurors for defendant's case were required to be
summoned at least seven days prior to institution of the new
policy. Defendant has failed to show, and the record does not
otherwise indicate, that defendant's jury
venire was in any wayaffected by the Postal Service's change in mail delivery policy in
Robeson County. Thus, the trial court did not abuse its discretion
in denying defendant's motion for a mistrial.
Guilt-Innocence Issues
Defendant next contends that the trial court erred in entering
judgment against him for first-degree arson because the arson
indictment only alleged the elements of second-degree arson.
The indictment under which defendant was charged with arson
provided:
The jurors for the State upon their oath
present that on or about the date of offense
shown and in the county named above the
defendant named above unlawfully, willfully
and feloniously did maliciously burn the
dwelling house
inhabited by Docia Chavis and
Melinda Chavis, located at Route 3 Box 62,
Lumberton, North Carolina, all against the
form of the statute in such case made and
provided and against the peace and dignity of
the State.
(Emphasis added). The caption of the indictment does not identify
the alleged offense by name, but merely states that the alleged
offense is a violation of N.C. Gen. Stat. § 14-58. The record
shows that both the arrest warrant and the certificate of
arraignment identify the alleged offense as second-degree arson.
In addition, the record indicates that when defendant's case was
called for trial the prosecutor identified the charge as second-
degree arson.
During the jury charge conference, the trial court indicated
that it planned to instruct the jury on first-degree arson.
Defense counsel objected, arguing,
inter alia, that the indictmentonly charged defendant with second-degree arson. The trial court
overruled defendant's objection and instructed the jury on first-
degree arson, and the lesser-included offenses of second-degree
arson and burning an uninhabited house. After the trial court
instructed the jury, defendant renewed all of his earlier
objections to the instructions. The jury subsequently found
defendant guilty of first-degree arson. Defendant now argues that
he could not be found guilty of first-degree arson since the
indictment only alleged second-degree arson.
N.C. Gen. Stat. § 15A-924(a)(5) (1999) provides that an
indictment or other criminal pleading must contain:
A plain and concise factual statement in each
count which, without allegations of an
evidentiary nature, asserts facts supporting
every element of a criminal offense and the
defendant's commission thereof with sufficient
precision clearly to apprise the defendant or
defendants of the conduct which is the subject
of the accusation.
A bill of indictment is sufficient to charge a particular criminal
offense when:
“(1) The offense is charged in a plain,
intelligible, and explicit manner; (2) The
offense is charged properly so as to avoid the
possibility of double jeopardy; and (3) There
is such certainty in the statement of the
accusation as to enable the accused to prepare
for trial and to enable the court, on
conviction or plea of
nolo contendre [sic] or
guilty to pronounce sentence according to the
rights of the case.”
State v. Jones, 110 N.C. App. 289, 291, 429 S.E.2d 410, 411-12
(1993) (quoting
State v. Reavis, 19 N.C. App. 497, 498, 199 S.E.2d
139, 140 (1973)). We conclude that the arson indictment in theinstant case was not sufficient to put defendant on notice that he
may be tried for first-degree arson and to allow him to prepare
accordingly.
The common law definition of arson is still in force in North
Carolina,
State v. Barnes, 333 N.C. 666, 677, 430 S.E.2d 223, 229
(1993), and has been stated as “the willful and malicious burning
of the dwelling house of another person.”
State v. Allen, 322 N.C.
176, 196, 367 S.E.2d 626, 637 (1988). “Further, since arson is an
offense against the security of the habitation and not the
property, an essential element of the crime is that the property be
inhabited by some person.”
State v. Vickers, 306 N.C. 90, 100, 291
S.E.2d 599, 606 (1982)
. Thus, the Supreme Court has held “that
'dwelling house' as contemplated in the definition of arson means
an
inhabited house.”
Id. (emphasis in original). Further, in
Vickers, the Supreme Court expressly rejected the “defendant's
attempt to equate
inhabit with
occupy.”
Id. (emphasis in
original).
Accordingly, “common law arson results from the burning
of a dwelling even though its occupants are temporarily absent at
the time of the burning.”
Id.
In 1979, “[i]n order to give more protection when a dwelling
house is occupied by a person at the time of the burning,”
Barnes,
333
N.C. at 677, 430 S.E.2d at 229 (1993), the General Assembly
amended N.C.G.S. § 14-58 to create two degrees of arson:
There shall be two degrees of arson as
defined at the common law. If the dwelling
burned was
occupied at the time of the
burning, the offense is arson in the first
degree and is punishable as a Class D felony.
If the dwelling burned was
unoccupied at thetime of the burning, the offense is arson in
the second degree and is punishable as a Class
G felony.
N.C.G.S. § 14-58 (1999) (emphasis added).
Combining the common law definition of arson with the
provisions of N.C.G.S. § 14-58, we find the elements of first-
degree arson to be: (1) the willful and malicious burning (2) of
the dwelling (i.e., inhabited) house of another; (3) which is
occupied at the time of the burning. The elements of second-degree
arson are: (1) the willful and malicious burning (2) of the
dwelling (i.e., inhabited) house of another; (3) which is
unoccupied at the time of the burning.
Jones, 110 N.C. App. at
291, 429 S.E.2d at 412.
The indictment in the instant case charged defendant with
violating N.C.G.S. § 14-58 by burning the dwelling house
inhabited
by Docia Chavis and Melinda Chavis. The indictment did not allege
that the house was in fact
occupied at the time of the burning.
“All the facts and circumstances which constitute the statutory
definition of the offense, or which are distinctive of the
particular degree for which punishment is to be inflicted, must be
alleged in the indictment or information.” 5 Am. Jur. 2d
Arson and
Related Offenses § 32, at 802 (1995). Accordingly, we conclude
that the indictment in the instant case did not allege every
element of first-degree arson and was not sufficient to put
defendant on notice that he may be tried for first-degree arson.
Thus, it was error for the trial court to enter judgment againstdefendant for first-degree arson based on the indictment in the
instant case.
The State argues that this error is harmless beyond a
reasonable doubt because the transcript indicates that defendant
was on notice that the State intended to attempt to convict him of
first-degree arson, and, in fact, presented a full defense to the
charge of first-degree arson. Thus, the State contends that any
variance between the indictment and the jury instructions and
judgment was not fatal and did not in any way prejudice defendant.
However, the State's argument ignores the fact that the trial
court lacks subject matter jurisdiction to try, or enter judgment
on, an offense based on an indictment that only charges a lesser-
included offense. While it is permissible to convict a defendant
of a lesser degree of the crime charged in the indictment,
see N.C.
Gen. Stat. § 15-170 (1999), “[a]n indictment will not support a
conviction for an offense more serious than that charged.”
State
v. Hare, 243 N.C. 262, 264, 90 S.E.2d 550, 552 (1955) (quoting 42
C.J.S.
Indictments and Informations § 300, at 1330).
Therefore, we
reject the State's contention that the variance between the
indictment and defendant's conviction is harmless, and we vacate
defendant's first-degree arson conviction.
While the indictment here is not sufficient to support a
conviction for first-degree arson, it does allege all of the
elements of second-degree arson: (1) the willful and malicious
burning (2) of the dwelling (i.e., inhabited) house of another (3)
which is unoccupied at the time of the burning. In addition, theevidence in the record is sufficient to support all of the elements
of second-degree arson. Therefore, upon remand the trial court is
instructed to enter judgment against defendant for second-degree
arson and to sentence defendant accordingly.
Defendant next contends that the trial court erred in entering
judgment against him for first-degree burglary because the jury was
instructed on a theory not alleged in the burglary indictment. In
addition, since first-degree burglary was the underlying felony for
both of defendant's felony murder convictions, defendant contends
that the variance between the indictment and the jury instructions
on burglary also tainted his first-degree murder convictions.
Thus, defendant contends that not only is he entitled to a new
trial on the burglary indictment, but he is also entitled to a new
trial on the two murder indictments. Based on the following
analysis, we disagree.
A murder is a felony murder when it is “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.” N.C. Gen. Stat. §
14-17 (1999);
State v. Barlowe, 337 N.C. 371, 380, 446 S.E.2d 352,
358 (1994). When the State prosecutes a defendant for first-degree
murder under the felony murder rule, the State is not required to
secure a separate indictment for the underlying felony.
State v.
Williams, 305 N.C. 656, 660 n. 1, 292 S.E.2d 243, 247 (1982);
State v. Carey, 288 N.C. 254, 274, 218 S.E.2d 387, 400 (1975). If
the State does secure a separate indictment for the underlyingfelony, and there is a conviction of both felony murder and the
underlying felony, the defendant will be sentenced for the murder
and the judgment must be arrested for the underlying felony under
the merger rule.
Barlowe, 337 N.C. at 380, 446 S.E.2d at 358
;
Carey, 288 N.C. at 274, 218 S.E.2d at 400
. If the indictment for
the underlying felony is treated as surplusage, and only the felony
murder charge submitted to the jury, the defendant cannot
thereafter be charged for the underlying felony.
Carey, 288 N.C.
at 274-75, 218 S.E.2d at 400.
In the instant case, defendant was charged with first-degree
burglary in an indictment that specified that defendant broke into
the home of Docia and Melinda Chavis with the intent to commit
murder.
(See footnote 2)
Defendant was also charged with two counts of murder in
short-form indictments authorized by N.C. Gen. Stat. § 15-144.
“The short-form indictment has been held sufficient to charge
murder in the first degree on the basis of either felony murder or
premeditation and deliberation.”
State v. Brown, 320 N.C. 179,
191, 358 S.E.2d 1, 11 (1987).
Following the presentation of evidence, the jury was
instructed that it could find defendant guilty of first-degree
burglary if the State proved beyond a reasonable doubt that he
broke into the house in question with the intent to commit murder
or rape. In addition, the jury was instructed on first-degreemurder on the theory of premeditation and deliberation and felony
murder. The trial court defined felony murder as the killing of a
human being in the perpetration of a burglary, and instructed the
jury that it could find defendant guilty of first-degree felony
murder if the State proved beyond a reasonable doubt that defendant
broke into the house with the intent to commit murder
or rape, and
during the commission of the burglary, defendant killed the
victims. In its verdict, the jury specifically found defendant not
guilty of first-degree murder on the basis of malice,
premeditation, and deliberation but guilty of first-degree murder
under the felony murder rule. The jury also found defendant guilty
of first-degree burglary. However, since the underlying felony for
the felony murder convictions was burglary, the trial court
properly arrested judgment on the first-degree burglary conviction.
Defendant maintains that the trial court improperly instructed
the jury on first-degree burglary by allowing defendant to be
convicted if the evidence proved that he intended to commit murder
or rape when he broke into the home, while the indictment only
alleged the intent to commit murder. Since burglary was the
underlying felony for the felony murder convictions, defendant
further argues that the variance between the first-degree burglary
indictment and the instructions to the jury on burglary tainted the
felony-murder convictions. We disagree.
Any alleged error arising from the variance between the
burglary indictment and the trial court's instructions on burglary
has no effect on defendant's felony murder convictions because theState is not required to secure a separate indictment for the
underlying felony in a felony murder prosecution.
Carey, 288 N.C.
at 274, 218 S.E.2d at 400. Further, the trial court arrested
judgment on defendant's first-degree burglary charge. Thus, any
error in the charge of burglary was harmless.
Nonetheless, the State was not precluded from using burglary
as the underlying felony in the prosecution of defendant for first-
degree felony murder.
Id. at 275, 218 S.E.2d at 400. In order to
do so, the State was required to present substantial evidence that
defendant murdered the victims during the perpetration of a
breaking or entering which defendant committed with the intent to
commit murder or rape. On appeal, defendant has not argued that
the evidence was insufficient to support felony murder based on
burglary as it was presented to the jury. Therefore, we need not
address such argument.
In sum, the State was not required to return an indictment for
burglary in order to use burglary as the underlying felony in the
prosecution of defendant for felony murder
. Therefore, any
variance between the burglary indictment and the charge to the jury
on burglary did not prevent the State from using burglary as the
underlying felony for felony murder.
Defendant's assignment of
error is overruled.
For preservation purposes, defendant next argues that the
short-form indictments for murder and rape authorized by N.C. Gen.
Stat. §§ 15-144 and 15-144.1 and utilized in this case are
unconstitutional. However, defendant concedes that our SupremeCourt has consistently held that the short-form indictments for
murder and rape comport with both the North Carolina Constitution
and the United States Constitution.
See State v. Wallace, 351 N.C.
481, 504-05, 528 S.E.2d 326, 341,
cert. denied, 531 U.S. 1018, 148
L. Ed. 2d 498 (2000);
State v. Kilpatrick, 343 N.C. 466, 472, 471
S.E.2d 624, 628 (1996)
. Defendant has neither advanced new
arguments nor cited any new authority to persuade this Court to
depart from these holdings. Therefore, this assignment of error is
overruled.
Defendant's remaining assignments of error are deemed
abandoned pursuant to Rule 28(a) of the Rules of Appellate
Procedure for defendant's failure to present argument in support
thereof in his brief.
Conclusion
In conclusion, we hold that judgment against defendant for
first-degree arson is hereby vacated and the case remanded with
instructions that judgment be entered against defendant for second-
degree arson and that defendant be sentenced accordingly.
Defendant's remaining convictions stand undisturbed.
In 95 CRS 12779, judgment vacated and case remanded for entry
of judgment for second-degree arson and appropriate
sentencing.
In 95 CRS 12780-12782, no error.
In 95 CRS 12818, no error.
Judges GREENE and McCULLOUGH concur.
Footnote: 1