Appeal by defendant from judgment dated 8 September 2000 by
Judge Stafford G. Bullock in Alamance County Superior Court. Heard
in the Court of Appeals 19 February 2002.
Attorney General Roy Cooper, by Assistant Attorney General
Robert C. Montgomery, for the State.
Christopher T. Watkins, for defendant-appellant.
GREENE, Judge.
Robert William Tew (Defendant) appeals a judgment dated 8
September 2000 entered consistent with a jury verdict finding him
guilty of assault with a deadly weapon with intent to kill
inflicting serious injury.
Defendant was indicted on 9 March 1998 by the Alamance County
Grand Jury for attempting to murder Mary Josephine Tew (Tew). A
jury trial was held and prior to the trial court charging the jury,
Defendant requested the trial court “consider charging on assault
with a deadly weapon inflicting serious bodily injury.” The trial
court denied Defendant's request because assault with a deadly
weapon inflicting serious bodily injury is not a lesser-included
offense of attempted first-degree murder or attempted second-degree
murder. The trial court instructed the jury on attempted first-degree murder and attempted second-degree murder. With respect to
attempted first-degree murder, the trial court instructed that in
order to find Defendant guilty, the jury had to find Defendant
“intended to unlawfully kill [Tew] with malice and with
premeditation and deliberation.” In regard to attempted second-
degree murder, the trial court instructed that in order to find
Defendant guilty of that crime, the jury had to find Defendant
“intended to unlawfully kill [Tew] with malice.” On 8 October
1998, the jury found Defendant guilty of attempted second-degree
murder.
On appeal to this Court, in an unpublished decision, this
Court found no error in Defendant's trial. State v. Tew, 136 N.C.
App. 669, 530 S.E.2d 366 (unpublished), reversed, 352 N.C. 362, 544
S.E.2d 557 (2000). On discretionary review to the North Carolina
Supreme Court, Defendant's conviction of attempted second-degree
murder was vacated pursuant to the Supreme Court's 7 April 2000
decision in State v. Coble, 351 N.C. 448, 527 S.E.2d 45 (2000) that
the crime of attempted second-degree murder did not exist. State
v. Tew, 352 N.C. 362, 544 S.E.2d 557 (2000).
On 30 May 2000, the Alamance County Grand Jury issued an
indictment charging Defendant with the assault of Tew with a deadly
weapon with intent to kill inflicting serious injury. Defendant
moved to dismiss the charge on 29 August 2000, arguing: he had
previously been placed in jeopardy for the same offense; prior to
his previous trial, he had requested the State to charge him with
the statutory offense of assault with a deadly weapon with intentto kill inflicting serious injury; assault with a deadly weapon
with intent to kill inflicting serious injury is a joinable offense
under N.C. Gen. Stat. § 15A-926; during the charge conference at
his attempted murder trial, Defendant requested the trial court
instruct the jury on assault with a deadly weapon with intent to
kill inflicting serious injury, but the trial court declined to do
so; prior to Defendant's conviction being vacated on 2 June 2000,
the State obtained an indictment for the offense of assault with a
deadly weapon with intent to kill inflicting serious injury; the
State was “collaterally estopped from relitigating the issue where
the State has elected its reme[]dy”; and an “issue of fact or law
essential to a successful prosecution has been previously
adjudicated in favor of . . . Defendant in a prior prosecution
between the parties.” Defendant requested the trial court dismiss
with prejudice the charge of assault with a deadly weapon with
intent to kill inflicting serious injury.
At a hearing on Defendant's motion on 5 September 2000, the
trial court denied Defendant's motion to dismiss. Subsequently, a
jury trial was held and Defendant was found guilty of assault with
a deadly weapon with intent to kill inflicting serious injury.
_____________________________________
The issues are whether: (I) Defendant's trial on the charge
of assault with a deadly weapon with intent to kill inflicting
serious injury violated the criminal joinder requirements; (II) the
State was collaterally estopped from litigating the issue of intent
to kill; and (III) Defendant was twice placed in jeopardy for thesame offense.
I
Defendant argues the trial court erred in denying his motion
to dismiss because the State failed to join the charge of assault
with a deadly weapon with intent to kill inflicting serious injury
with the attempted murder charges. We disagree.
“A defendant who has been tried for one offense may thereafter
move to dismiss a charge of a joinable offense.” N.C.G.S. § 15A-
926(c)(2) (1999). Joinable offenses include “felonies or
misdemeanors or both, [which] are based on the same act or
transaction or on a series of acts or transactions connected
together or constituting parts of a single scheme or plan.”
N.C.G.S. § 15A-926(a) (1999). In order for there to be joinable
offenses, a defendant must have been charged with the crimes at the
outset.
State v. Cox, 37 N.C. App. 356, 361, 246 S.E.2d 152, 154,
disc. review denied, 295 N.C. 649, 248 S.E.2d 253 (1978),
cert.
denied, 440 U.S. 930, 59 L. Ed. 2d 487 (1979). In other words, if
a defendant is tried on one indictment and a second indictment is
issued subsequent to his trial on the first indictment, section
15A-926(a) does not apply.
Id.;
State v. Warren, 313 N.C. 254,
260, 328 S.E.2d 256, 261 (1985);
State v. Furr, 292 N.C. 711, 724,
235 S.E.2d 193, 201,
cert. denied, 434 U.S. 924, 54 L. Ed. 2d 281
(1977). “If a defendant shows[, however,] that the [State]
withheld indictment on additional charges solely in order to
circumvent the statutory joinder requirements, the defendant is
entitled under N.C.G.S. [§] 15A-926(c)(2) to a dismissal of theadditional charges.”
Warren, 313 N.C. at 260, 328 S.E.2d at 261.
The defendant bears the burden of persuasion in showing the
prosecution withheld the additional indictment for purposes of
circumventing the joinder statute.
Id.
In this case, at the time Defendant was tried for attempted
murder, the prosecution had neither sought nor obtained an
indictment for assault with a deadly weapon with intent to kill
inflicting serious injury. Defendant argues he requested the State
charge him with assault with a deadly weapon with intent to kill
inflicting serious injury prior to the first trial and the State
withheld such an indictment. Even assuming Defendant requested
such a charge, there is no evidence in the record to this Court
showing the State denied such a request for purposes of
circumventing the joinder requirement. As Defendant has not met
his burden of persuasion on this issue, the State's prosecution of
Defendant on the assault with a deadly weapon with intent to kill
inflicting serious injury charge did not violate the statutory
joinder requirements.
II
Defendant next contends the jury in his previous trial
resolved the issue of intent to kill in his favor and therefore the
State is collaterally estopped from prosecuting him for assault
with a deadly weapon with intent to kill inflicting serious injury.
We disagree.
Collateral estoppel “means simply that when an issue of
ultimate fact has once been determined by a valid and finaljudgment, that issue cannot again be litigated between the same
parties in any future lawsuit.”
Ashe v. Swenson, 397 U.S. 436,
443, 25 L. Ed. 2d. 469, 475 (1970). “When raising a claim of
collateral estoppel, the defendant bears the burden of showing that
the issue he seeks to foreclose was
necessarily resolved in his
favor at the prior proceeding.”
Warren, 313 N.C. at 264, 328
S.E.2d at 263. “Where a previous judgment of acquittal was based
upon a general verdict” of guilty or not guilty, the trial court
must “'examine the record of a prior proceeding, taking into
account the pleadings, evidence, charge, and other relevant matter,
and conclude whether a rational jury could have grounded its
verdict upon an issue other than'” one necessary for resolving the
pending case.
Ashe, 397 U.S. at 444, 25 L. Ed. 2d. at 475-76
(citation omitted).
Defendant argues that because the jury acquitted him of
attempted first-degree murder, it necessarily resolved the issue of
intent to kill in his favor. An individual is guilty of attempted
first-degree murder “if he specifically intends to kill another
person unlawfully; he does an overt act calculated to carry out
that intent, going beyond mere preparation; he acts with malice,
premeditation, and deliberation; and he falls short of committing
the murder.”
State v. Cozart, 131 N.C. App. 199, 202-03, 505
S.E.2d 906, 909 (1998),
disc. review denied, 350 N.C. 311, 534
S.E.2d 600 (1999).
In this case, a jury previously acquitted Defendant of
attempted first-degree murder. A rational jury could have groundedits verdict on the absence of premeditation and deliberation, and
not on whether Defendant had the intent to kill Tew. Consequently,
the issue of intent was not necessarily resolved in Defendant's
favor.
III
Defendant finally contends he was twice placed in jeopardy for
the same offense. We disagree.
“The Double Jeopardy Clause of the Fifth Amendment to the
United States Constitution protects against multiple punishments
for the same offense.”
State v. Washington, 141 N.C. App. 354,
368, 540 S.E.2d 388, 398 (2000),
disc. review denied, 353 N.C. 396,
547 S.E.2d 427 (2001). This provision is violated if “'the
evidence required to support the two convictions is identical.'”
(See footnote 1)
Id. (citation omitted). Where “'proof of an additional fact is
required for each conviction which is not required for the other,
even though some of the same acts must be proved in the trial of
each, the offenses are not the same.'”
State v. Fernandez, 346
N.C. 1, 19, 484 S.E.2d 350, 361 (1997) (citation omitted).
Assault with a deadly weapon with intent to kill inflicting
serious injury requires proof of the use of a deadly weapon, an
element not required for attempted murder.
Washington, 141 N.C.
App. at 369, 540 S.E.2d at 398;
Coble, 351 N.C. at 453, 527 S.E.2d
at 49 (“assault with a deadly weapon with intent to kill requiresproof of an element not required for attempted murder_use of a
deadly weapon”). Similarly, malice, premeditation, and
deliberation are elements of attempted first-degree murder but not
of assault with a deadly weapon with intent to kill inflicting
serious injury.
Washington, 141 N.C. App. at 369, 540 S.E.2d at
398. Accordingly, since assault with a deadly weapon with intent
to kill inflicting serious injury requires proof of an additional
element not required in attempted murder, Defendant was not
subjected to double jeopardy.
Affirmed.
Judges McGEE and THOMAS concur.
Footnote: 1