STATE OF NORTH CAROLINA
v
VERNELLE LAFARRIS BULLOCK, SR.,
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General
Donald R. Teeter, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Daniel R. Pollitt, and Mark E. Hayes, for the
defendant-appellant.
HUDSON, Judge.
Vernelle L. Bullock, Sr. (“defendant”) was convicted by the
jury of attempted first degree murder and possession of a firearm
by a felon while being an habitual felon. The defendant pled
guilty to the status of being an habitual felon. The court
sentenced him to a total imprisonment of 423 months to 526 months.
Defendant appeals his convictions and sentences.
We begin with a summary of pertinent facts. For seven years,
defendant was married to the victim, Yvonne Smith; they had two
children, Vernelle, Jr., born in 1990, and Dayquinton, born in
1992. Shortly after the birth of Dayquinton, defendant moved away.
Ms. Smith obtained a divorce from defendant in 1995 and marriedCurtis Vincent Smith in 1997. Defendant reappeared in August of
1999 and contacted Ms. Smith. He expressed an interest in
reuniting with her and their sons, and she informed him that he
could visit with the boys, but that she had remarried and was not
interested in resuming a romantic relationship. Defendant began to
visit the boys, especially his older son, Vernelle, Jr., about
every other weekend. Around the time defendant returned to
Greensboro and became involved in the lives of his ex-wife and
sons, Ms. Smith's husband moved out of their home. Ms. Smith
explained that Mr. Smith was not comfortable with her resuming any
friendship with defendant.
Defendant did not pay any child support during the time he was
gone, and Ms. Smith agreed for defendant to begin paying support
six months after he returned to Greensboro. She testified that
from time to time she lent defendant money to help him “get on his
feet,” and that he always paid her back. Ms. Smith repeatedly
rebuffed defendant's advances and his statements of intent to re-
establish a romantic relationship with her. After one such
advance, Ms. Smith testified that on or about 29 December 1999,
defendant came to her house, told Vernelle, Jr. not to call him
anymore, and threatened to kill everyone in the house.
Ms. Smith testified that in March of 2000, she and the boys
went with defendant to visit his grandmother in Maxton, N.C.
During that trip, defendant became agitated, and told Ms. Smith
that he was in love with her and wanted their family to be
together. Again, Ms. Smith explained that she had a husband and itwould not be right. She said she was okay that time, but described
an incident earlier that night, during which defendant asked her to
pull over the car and, “he got out of the car, slammed the door,
and then he walked over to this field. . . . And he -- then he just
started jumping up and down and banging his head and, you know,
hitting the ground and hollering, and all kind of crap.”
Defendant's two sons, who were in the car, began to shake and cry.
Ms. Smith got out of the car at defendant's request. Again, he
professed his love for her. Ms. Smith testified that,
[t]hen he just grabbed me to the point he
almost picked me up off the ground, and it
scared me. And I was like, Vernelle, let me
go, because you're getting mad. . . . He just
kept grabbing and grabbing. Then he let me
go. He said, I'm not going to hurt you. I'm
not going to hurt you ever again in life. I'm
not going to hurt you. I promise you I'm not
going to hurt you. You know I love you. You
know I love you.
After a while, she calmed him down and they returned to the car.
Ms. Smith testified that on the evening of 28 April 2000, she
and her sons were at her sister's house, when defendant repeatedly
paged her to talk about repaying a debt, and then he showed up at
her sister's door. She spoke with him briefly outside, and Ms.
Smith assured defendant that he could pay her back the next week.
Defendant asked for a hug or kiss goodbye, and Ms. Smith lightly
hugged him. Defendant left, and Ms. Smith and the boys stayed at
her sister's house until around midnight, when they went to the
house where Mr. Smith was staying. Ms. Smith hoped to stay with
her husband for the evening. However, Mr. Smith was on the phone
and Ms. Smith only stayed thirty minutes before leaving for herhome with the boys at 12:30 or 12:45 in the morning. She put the
boys to bed, went to her bedroom to read the Bible and watch
television, and fell asleep.
At about 12:50 a.m., Ms. Smith was awakened by knocking on the
door. She looked out of her window and saw defendant's truck
backed into her driveway. Ms. Smith walked into the living room,
turned on a light, and saw defendant standing on her porch. She
let him into the house and asked him what was wrong. Defendant did
not speak, but walked around her while she was closing and re-
locking the door. Ms. Smith testified, “[a]nd I turned around to
say, Now, Vernelle, what's -- and when I turned around, then that's
when I fell. I said boom -- you know, I could feel him shoot me.
I didn't know where he had shot me at that point. I just knew I
was shot.” Ms. Smith later found out that the first shot had been
in her left eye. When she fell to the floor, she saw the defendant
standing over her and sparks from the gun. She testified that
while he was standing over her, she “could see sparks from his
continuing to shoot me.”
Ms. Smith testified that after defendant shot her several
times, she heard him moving around her house and firing the gun
repeatedly. She did not know how long he stayed, but he finally
left, hitting her in the head with the door as he opened it, and
slamming it behind him. Ms. Smith dragged herself across the
floor, knocking down a lamp, and tried to rise. She called out for
her sons. When the younger boy, Dayquinton, came to her, she asked
him to get the older one, Vernelle, Jr. She told the boys thatdefendant shot her, and asked the older boy to call 911. The boys
did as she asked, then put a pillow under her head, wiped up some
of the blood with paper towels, and covered her with a blanket.
The police and EMS arrived and took Ms. Smith to the hospital.
She learned that she had been shot four times: in the left eye, the
back of her head/upper neck, the left leg, and the right arm. Ms.
Smith testified that as a result of the shooting, she lost the use
of her left eye, had a stroke on the left side of her brain, had
difficulty regaining the use of her body for everyday functions,
and still suffered a lack of sensation that made it difficult for
her to use her leg and arm. At the time of defendant's trial, she
expected to undergo at least two more surgeries to reconstruct the
left side of her face where the bullet had destroyed her eye and
eye socket. After the shooting, Mr. Smith moved back in and took
care of his wife.
Ms. Smith's two sons also testified. Vernelle, Jr. testified
that his father showed him a gun that he kept in a case in the
basement of the house he lived in at the time. On cross-
examination, he said that his dad “just said it was for -- it was
his girlfriend's for if my mom had came over there that she would
shoot her.” He also testified that he remembered his father coming
to his aunt's house on the evening his mother was shot, and that
his father sent him to get his mother. He remembered returning to
their house, going to sleep, and being awakened by his younger
brother, “to call the police. . . . So I went to her room, and she
wasn't in there. And I went up to the front and asked her what waswrong, and she told me that he [defendant] had shot her.”
Dayquinton gave a similar description of events that evening.
Dr. James Wyatt, a general and trauma surgeon who was the
medical director of the trauma service at Moses Cone Hospital in
Greensboro, testified that Ms. Smith was still conscious and
speaking when she first arrived at the hospital. She told him that
her ex-husband had shot her and Dr. Wyatt tried to calm her down so
that he could treat her wounds. He testified that Ms. Smith's
wounds could have been fatal to her, and Dr. Ernesto Votero, a
neurosurgeon, agreed. Dr. Votero testified to the surgical
procedures he performed to treat the wounds, and indicated that she
would need future surgeries. He believed that the effects of the
injuries would include permanent problems with speech, memory, and
possibly movement.
Greensboro police officer M.J. Hanna testified that he arrived
at the Smiths' home in the early morning hours of 29 April 2000,
and waited for back-up, secured the property, and then entered the
house. After securing the house, Officer Hanna asked the children,
“Who did this? The victim stated to me, 'My ex-husband, Vernelle
Lafarris Bullock, shot me in the face.'” Greensboro police officer
J.C. Cho, arrived at the scene shortly after Officer Hanna, and
entered the house with Hanna. After calling for EMS, Officer Cho
attempted to talk to Ms. Smith. He testified that:
she (Ms. Smith) had great difficulty talking.
She made mention of she was having problems
breathing and the blood was running down her
neck or what. So I asked her what happened.
And I understood her to say that it was her
husband knocking on the door and she went toanswer it, see what he wanted. And when she
opened the door, he stepped in and started
shooting. And so I asked her what is his
name. And she said Vernelle Bullock. And so
I turned to one of her sons to clarify the
spelling of Vernelle. And he did that.
The defendant presented the testimony of two witnesses who saw
him on the night of the shooting. First, Juditha Walker,
defendant's girlfriend at the time, testified that defendant came
over to her house in his truck on 28 April 2000 sometime between
11:00 and 11:30 p.m., wearing his work uniform. They talked for a
while and then drove over to defendant's father's house in Ms.
Walker's car. Ms. Walker said that they drove to a gas station on
Lee Street at about 1:00 a.m., and the defendant went into the
store to buy gasoline. Then, she said they returned to Ms.
Walker's house and went to sleep. After defendant was arrested the
next morning, Ms. Walker found defendant's work uniform in her
clothes dryer.
Second, Kerianne Elseworth, the cashier at the Great Stops gas
station on West Lee Street testified that at approximately 1:05
a.m. on 29 April 2000, she saw defendant and Ms. Walker at the
station. Ms. Walker came into the store, where she picked up a 22-
ounce Icehouse beer and a pack of Newport cigarettes. A few
minutes later, the defendant came into the store, paid for the
gasoline and other items, and then sat in the store with Ms. Walker
smoking a cigarette. They left at 1:30 or 1:35 in the morning.
The defendant did not testify.
The court instructed the jury on attempted first degree
murder, possession of a handgun by a felon, and not guilty. Thejury found defendant guilty of both charges. The defendant then
pled guilty to having attained the status of habitual felon. The
trial court found one factor in aggravation, number 19 on “Felony
Judgment, Findings of Aggravating and Mitigating Factors” form,
that “[t]he victim of this offense suffered serious injury that is
permanent and debilitating,” and found no factors in mitigation.
The court sentenced defendant to consecutive prison terms of 313
months minimum and 385 months maximum for the attempted first
degree murder, and to a prison term of 110 months minimum and 141
months maximum for possession of a firearm by a felon.
Defendant brings forward six assignments of error in his
appeal. However, we address his third assignment of error last, as
it is dispositive on the attempted murder conviction only. Our
discussion of the other three issues applies to all convictions.
We need not reach the fifth and sixth assignments of error, which
apply only to the sentencing in the attempted first degree murder
case.
In his first argument, defendant contends that the trial court
committed prejudicial error by denying “the defendant's objection
on relevancy grounds to cross-examination questions by the State of
a defense witness that implied that she had a previous altercation
with the victim.” Juditha Walker, defendant's girlfriend at the
time of the shooting, testified that she was with defendant late on
the evening of 18 April 2000 and through the morning of 19 April
2000. On cross-examination, the State questioned Ms. Walker about
an altercation that she may have had with Ms. Smith prior to theshooting. Defendant objected to the questioning on the grounds
that it was irrelevant; the trial court overruled the objection
because the testimony bore upon the witness' possible bias.
The trial court “has broad discretion over the scope of cross-
examination.” State v. Call, 349 N.C. 382, 411, 508 S.E.2d 496,
514 (1998). The court's ruling on the scope of cross-examination
will not be disturbed absent a showing of abuse of discretion. See
State v. Maynard, 311 N.C. 1, 10, 316 S.E.2d 197, 202-03, cert.
denied, 469 U.S. 963, 83 L. Ed. 2d 299 (1984). “Cross-examination
of an opposing witness for the purpose of showing his bias or
interest is a substantial legal right. Jurors are to consider
evidence of any prejudice in determining the witness' credibility.”
State v. Grant, 57 N.C. App. 589, 591, 291 S.E.2d 913, 915 (1982)
(citing State v. Hart, 239 N.C. 709, 80 S.E.2d 901 (1954)). Here,
we find that the trial court did not abuse its discretion in
allowing the State to question defendant's alibi witness about
events which may have revealed bias or prejudice against the victim
of the crime. Defendant's first assignment of error is overruled.
In his second assignment of error, defendant contends that the
trial court erred in not allowing him to argue during closing
arguments that someone other than defendant shot Ms. Smith. Before
defendant's defense counsel began closing arguments, he informed
the trial court that he intended to suggest in his argument that
Mr. Smith shot Ms. Smith. The trial court instructed him not to
make any such argument, because there was no direct evidence
presented at trial regarding Mr. Smith as the perpetrator of thecrime. Defendant duly objected to this ruling.
The scope of closing argument is governed by N.C. Gen. Stat.
§ 15A-1230(a) (2001) which provides that an “attorney may . . . on
the basis of his analysis of the evidence, argue any position or
conclusion with respect to a matter in issue.” “Counsel is
afforded wide latitude in his arguments to the jury.” State v.
Whiteside, 325 N.C. 389, 398, 383 S.E.2d 911, 916 (1989). However,
“[t]he trial judge may limit the argument of counsel within his
discretion.” Id. In accordance with this standard, we review
whether the trial court abused its discretion in not allowing
defendant to argue that Mr. Smith shot Ms. Smith.
“The admissibility of evidence of the guilt of one other than
the defendant is governed now by the general principle of
relevancy” pursuant to Rule 401 of the North Carolina Rules of
Evidence (2001). State v. Cotton, 318 N.C. 663, 667, 351 S.E.2d
277, 280 (1987), aff'd, 329 N.C. 764, 407 S.E.2d 514 (1991).
“Evidence that another committed the crime for which the defendant
is charged generally is relevant and admissible as long as it does
more than create an inference or conjecture in this regard. It
must point directly to the guilt of the other party.” Id. at 667,
351 S.E.2d at 279-80. Here, there was no evidence presented that
pointed directly or indirectly to the guilt of Mr. Smith. Because
there was no such evidence presented at trial, the trial court did
not abuse its discretion in denying defendant's request to argue
that Mr. Smith shot Ms. Smith, as it was not a “matter in issue” at
the trial, within the meaning of N.C.G.S. § 15A-1230(a). Defendant's second assignment of error is overruled.
In his fourth argument, defendant contends that he is entitled
to a new trial on both convictions because the trial court
improperly questioned a witness “about irrelevant matters and
erroneously expressed an opinion against defendant.” N.C. Gen.
Stat. § 15A-1222 (2001) prohibits a judge from expressing “during
any stage of the trial, any opinion in the presence of the jury on
any question of fact to be decided by the jury.” “Because the
trial judge occupies an exalted position, he must abstain from
conduct or language which tends to discredit or prejudice the
accused or his cause with the jury.” State v. Turner, 66 N.C. App.
203, 207, 311 S.E.2d 331, 334 (1984) (internal citations and
quotations omitted). The burden lies with the defendant to show
that under the totality of the circumstances, he was prejudiced by
the trial judge's comments. See State v. Fleming, 350 N.C. 109,
126, 512 S.E.2d 720, 732, cert. denied, 528 U.S. 941, 145 L. Ed. 2d
274 (1999).
Here, defendant objects to the following colloquy:
THE COURT: What are -- is there any
permanent effect of these injuries?
THE WITNESS: With this injury, she's
going to have problem with speech. She's
going to have some difficulty with the right
side because as far as I know -- by the time
she came to the emergency room, although I
didn't see her, I was told by the nurse, that
she wasn't able to move the right side. She's
going -- might have some broken memory. And
probably down the line she might require some
special plate in the left side to cover up
part of the brain.
THE COURT: Now, you said she may have
some permanent problems with her speech?
THE WITNESS: That's correct. Yes, sir. THE COURT: What type of problems?
THE WITNESS: Probably expression.
THE COURT: How about her movement? Being
able to walk?
THE WITNESS: Well, she -- as far as I
know, she may be -- she's still weak in the
right side. The last time I saw her back in -
- on August 10, 2000. It's difficult to say
how well she's going to be, but from this, it
will take a little work to get better.
THE COURT: Do you feel like these
injuries are debilitating, the ones that she
received?
THE WITNESS: That's correct. Yes, sir.
This discussion occurred after the State examined Dr. Votero as to
his treatment of Ms. Smith and her resulting injuries. Following
this discussion, defendant cross-examined Dr. Votero as to the
extent of Ms. Smith's injuries. Defendant attempted to elicit a
medical opinion that anesthesia might have affected Ms. Smith's
memory, but Dr. Votero rejected this suggestion.
A trial judge is not prohibited from asking a testifying
witness questions during trial. “It is well recognized that a
trial judge has a duty to question a witness in order to clarify
his testimony or to elicit overlooked pertinent facts.” State v.
Rogers, 316 N.C. 203, 220, 341 S.E.2d 713, 723 (1986), overruled on
other grounds by State v. Gaines, 345 N.C. 647, 483 S.E.2d 396,
cert. denied, 522 U.S. 900, 139 L. Ed. 2d 177 (1997), and by State
v. Vandiver, 321 N.C. 570, 364 S.E.2d 373 (1988). Here, the trial
judge asked questions concerning the seriousness and permanency of
Ms. Smith's injuries. He did not express an opinion concerning the
defendant's guilt, nor did he make any statement tending to
discredit or prejudice the defendant. We do not believe that the
trial judge violated the restrictions imposed by N.C.G.S. § 15A-1222, nor that he prejudiced the defendant by his questions to the
doctor. Defendant's fourth assignment of error is overruled.
Finally, defendant contends that his attempted first degree
murder conviction must be vacated because the underlying indictment
did not sufficiently allege the essential elements of the offense
or comply with the requirements for a short-form murder indictment
pursuant to N.C. Gen. Stat. § 15-144 (2001). N.C.G.S. § 15-144
“Essentials of bill for homicide” states that in the body of the
indictment, “it is sufficient in describing murder to allege that
the accused person feloniously, willfully, and of his malice
aforethought, did kill and murder (naming the person killed), and
concluding as is now required by law.” Here, the indictment
omitted the phrase “and of his malice aforethought.” The
indictment for attempted first degree murder stated: “[t]he jurors
for the State upon their oath present that on or about the date of
the offense shown and in the county named above the defendant named
above unlawfully, willfully and feloniously did attempt to kill and
murder Yvonne Bullock.” Defendant contends that because the
indictment lacked the phrase “malice aforethought,” it failed to
properly allege the crime charged. We agree that the indictment
fails to allege attempted first degree murder.
The purpose of an indictment is to inform the defendant of the
charge against him with sufficient certainty to enable him to
prepare a defense. See State v. Gregory, 223 N.C. 415, 27 S.E.2d
140 (1943). An indictment is insufficient if it fails to allege
the essential elements of the crime charged as required by ArticleI, Section 22 of the North Carolina Constitution and our
legislature in N.C.G.S. § 15-144. When an indictment has failed to
allege the essential elements of the crime charged, it has failed
to give the trial court subject matter jurisdiction over the
matter, and the reviewing court must arrest judgment. See State v.
Sturdivant, 304 N.C. 293, 307-08, 283 S.E.2d 719, 729 (1981)
(citing N.C. Const. Art. I, § 22; State v. Simpson, 302 N.C. 613,
276 S.E.2d 361 (1981); State v. Crabtree, 286 N.C. 541, 212 S.E.2d
103 (1975)). We note that “the failure of a criminal pleading to
charge the essential elements of the stated offense is an error of
law which may be corrected upon appellate review even though no
corresponding objection, exception or motion was made in the trial
division.” Sturdivant, 304 N.C. at 308, 283 S.E.2d at 729 (citing
N.C. Gen. Stat. §§ 15A-1441, -1442(2)(b), -1446(d)(1) and (4)); see
also State v. Wilson, 128 N.C. App. 688, 497 S.E.2d 416 (1998)
(noting that a challenge to the sufficiency of an indictment may be
made for the first time on appeal).
Here, the indictment on its face failed to include the
essential element of “malice aforethought” as required by N.C.G.S.
§ 15-144 and State v. Arnold, 107 N.C. 861, 11 S.E. 990 (1890).
See also State v. Moore, 284 N.C. 485, 202 S.E.2d 169 (1974)
(noting that the element of malice is necessary to elevate the
charge of manslaughter to murder, and that murder cannot be
sufficiently alleged without malice). Although the Supreme Court
has approved the use of the “short form” indictment authorized by
N.C.G.S. § 15-144, the approved form contains allegations ofmalice. See State v. Holder, 138 N.C. App. 89, 93, 530 S.E.2d 562,
565, review denied, 352 N.C. 359, 544 S.E.2d 551 (2000) (holding
that the United States Supreme Court's opinion in Jones v. United
States, 526 U.S. 227, 243, 143 L. Ed. 2d 311, 319 (1999), does not
invalidate North Carolina's short form indictment for murder). For
the failure to include an allegation of malice, this Court on its
own motion arrests the judgment in the attempted first degree
murder conviction. See State v. Hadlock, 34 N.C. App. 226, 228,
237 S.E.2d 748, 749 (1977); see also Wilson, 128 N.C. App. at 691,
497 S.E.2d 419. Often, “[t]he legal effect of arresting the
judgment is to vacate the verdict and sentence of imprisonment
below, and the State, if it is so advised, may proceed against the
defendant upon a sufficient bill of indictment.” State v. Fowler,
266 N.C. 528, 531, 146 S.E.2d 418, 420 (1966); see also State v.
Covington, 267 N.C. 292, 148 S.E.2d 138 (1966).
However, where the indictment does sufficiently allege a
lesser-included offense, we may remand for sentencing and entry of
judgment thereupon. Voluntary manslaughter consists of an unlawful
killing without malice, premeditation or deliberation. See State
v. Robbins, 309 N.C. 771, 777, 309 S.E.2d 188, 191 (1983). Because
the jury's verdict of attempted first degree murder necessarily
means that they found all of the elements of the lesser-included
offense of attempted voluntary manslaughter, we remand this case to
the trial court for sentencing and entry of judgment for attempted
voluntary manslaughter. See Wilson, 128 N.C. App. at 696, 497
S.E.2d 422 (remanding defendant's case to the trial court forimposition of judgment on false imprisonment as a lesser-included
offense of kidnapping, because all of the elements of false
imprisonment were alleged in the indictment).
We recognize that our Supreme Court in State v. Coble, 351
N.C. 448, 527 S.E.2d 45 (2000), has held that attempted second
degree murder is not cognizable in North Carolina and likewise
signaled, without specifically deciding, that it would likely hold
the same way as to attempted voluntary manslaughter. 351 N.C. at
450-53, 527 S.E.2d at 47-49. However, more recently this Court has
carefully analyzed the issue and specifically held “that attempted
voluntary manslaughter is (1) a crime in North Carolina, and, (2)
a lesser-included offense of attempted first-degree murder.” State
v. Rainey, __ N.C. App. __, __, __ S.E.2d __, __ (2002). Thus,
when the evidence supports it, an instruction may be given and, if
the jury convicts, a judgment of attempted voluntary manslaughter
entered. Here, where the jury found defendant to have been guilty
of all elements of attempted first degree murder, including
specific intent, but where the indictment does not support that
offense, we conclude that the trial court may enter judgment on the
lesser-included offense of attempted voluntary manslaughter.
No error in case number 00 CRS 23567 (habitual felon status)
and number 00 CRS 23566 (possession of a firearm by a felon).
Judgment arrested on attempted first degree murder; remanded
for sentencing and entry of judgment on attempted voluntary
manslaughter.
Chief Judge EAGLES and Judge BRYANT concur.
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