STATE OF NORTH CAROLINA
v. Durham County
No. 98 CRS 50929
RICHARD LAMONT BROWN,
Defendant.
Attorney General Roy Cooper, by Special Deputy Attorney
General George W. Boylan, for the State.
Marshall Dayan, for defendant-appellant.
BRYANT, Judge.
Defendant Richard Lamont Brown was charged with first degree
murder. The State's evidence tended to show that during the early
morning hours of 20 August 1998, defendant and a neighborhood drug
dealer, Marquis Barrett, were sitting on the porch of a residence
on Hopkins Street in Durham, North Carolina. Barrett observed a
car parked behind the residence of Sandra Patricia Foster's
residence, which was located at 601 North Elm Street and known to
Barrett as a crack house. Barrett thought he recognized the car as
belonging to someone who had stolen drugs from him. Defendant, who
was in possession of a firearm, gave a gun to Barrett and told him
“to go handle his business.” Barrett then proceeded to Foster'sresidence and knocked on the door. When Foster answered the door,
Barrett asked to use the bathroom. Foster consented, and Barrett
entered the residence and proceeded to the back of the house.
However, before reaching the bathroom, Barrett turned toward the
kitchen where Gilbert Everett, Linda Pipkin and two others were
smoking crack cocaine, and pulled out a gun. Pointing the gun,
Barrett asked Everett why he had taken his marijuana and run.
Everett responded, “I don't know you. I don't know what you
talking about.” Barrett demanded his money. Pipkin questioned
Barrett about why he was doing this, and when Barrett turned to
look in her direction, Everett charged at him with a tire iron.
Everett, with tire iron in hand, struggled with Barrett over
the weapon. Foster and Pipkin were yelling at the two to stop
fighting. At this time, defendant was knocking on the front door
saying, “Open the door, Trish. It's Rich, it's Rich.” Barrett
told Foster to answer the door. When Foster opened the door,
defendant entered with a gun in his hand. Upon entering the
residence, defendant pointed the gun at Everett and instructed him
to let go of Barrett's gun. When Everett refused and kept pulling
on Barrett's gun, defendant fired his gun twice. Everett pleaded,
“Please don't kill me, please don't kill me.” Defendant told
Everett that he was not going to shoot him, but again demanded that
Everett let Barrett's gun go. Everett finally let go of Barrett
and the gun, whereupon Barrett felt a stinging in his wrist.
Everett then ran toward defendant and the front door of the
residence. Barrett then heard three more shots, and in response,fired two additional shots. When Barrett saw Everett lying on the
street curb, his body twitching, Barrett exited the house, giving
his gun to defendant who was sitting on the porch, and fled the
scene. Grace Mitchell, a friend of Foster, who was asleep in the
residence on the evening of the shooting also testified that she
saw defendant holding Everett at gunpoint, demanding his money.
Mitchell further testified that she saw defendant shoot Everett,
after Everett insisted, “I ain't got nothing.” Mitchell stated
that after she saw Everett lying down on the steps in front of
Foster's residence, she saw Barrett and another person by the name
of Kyle going through Everett's wallet at the back of the
residence.
At trial, defendant testified on his own behalf, disputing
Barrett's testimony that defendant gave him a gun to go to Foster's
residence. Defendant testified that Barrett told him that he was
going to Foster's house to make a drug sale. Defendant stated that
after waiting for Barrett to return, he went over to Foster's
residence to see the cause for the delay. Defendant testified that
he entered the residence with a gun because he heard voices raised
in anger and wanted to protect himself from danger. He insisted
that upon entering the residence, he fired a shot into Everett's
leg after seeing Everett struggling with the smaller Barrett over
a gun. When Everett began to move towards defendant with the tire
iron, defendant stated that he shot Everett four times, without
really aiming.
The jury subsequently convicted defendant of second degreemurder. The trial court sentenced defendant to a presumptive term
of 200-249 months imprisonment. Defendant appeals.
By his first assignment of error, defendant argues that the
trial court erred in failing to grant defendant's motion to dismiss
because his short-form indictment for murder is constitutionally
deficient in several respects under the United States Supreme Court
decisions in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d
435 (2000), and Jones v. United States, 526 U.S. 227, 143 L. Ed. 2d
311 (1999). As appellate counsel concedes, our appellate courts
have previously rejected similar arguments and held North
Carolina's short-form indictments to be constitutional. See State
v. Smith, 352 N.C. 531, 532 S.E.2d 773 (2000), cert. denied, ___
U.S. ___, 149 L. Ed. 2d 360 (2001); State v. Braxton, 352 N.C. 158,
531 S.E.2d 428 (2000), cert. denied, 531 U.S. 1130, 148 L. Ed. 2d
797 (2001). We decline counsel's offer to re-visit this issue at
this juncture, and summarily overrule this assignment of error.
By his second assignment of error, defendant argues that the
trial court erred in failing to instruct the jury that the State
bears the burden of proving unanimously each and every element of
the offense(s) charged. We note at the outset, however, that at no
time did trial counsel, who is now serving as appellate counsel,
object to, or request anything in addition to, the trial court's
instruction. After giving his final instruction to the jury, the
trial court inquired, “is there anything further or different
pursuant to Rule 21 of the General Rules of Practice and General
Statute 15A-1231?” Each responded negatively. Counsel's failureto object to the trial court's jury instructions or request
additional instructions constitutes a waiver under N.C. R. App. P.
10(b)(2). Accordingly, this argument must be addressed under the
plain error standard of review, which requires that “'the appellate
court . . . be convinced that absent the [alleged] error the jury
probably would have reached a different verdict . . . .'” State v.
Bowen, 139 N.C. App. 18, 23, 533 S.E.2d 248, 252 (2000) (quoting
State v. Morgan, 315 N.C. 626, 645, 340 S.E.2d 84, 96 (1986)
(citations and quotations omitted)). To that end, “[the] jury
charge must be construed contextually and will be upheld when the
charge as a whole is correct.” State v. Stephens, 347 N.C. 352,
359, 493 S.E.2d 435, 439 (1997), cert. denied, 525 U.S. 831, 142 L.
Ed. 2d 66 (1998).
In the instant case, the trial court instructed the jury as to
each substantive offense charged. Specifically, the court charged
the jury that the State must prove each element of each substantive
offense beyond a reasonable doubt. As a last instruction to the
jury, the court stated:
I instruct you that a verdict is not a verdict
until all 12 jurors agree unanimously as to
what your decision shall be and you should not
render a verdict by majority vote.
While defendant argues otherwise, construing the court's charge
contextually and taken as a whole, the charge was sufficient to
instruct the jury that their unanimity must be as to each and every
element of the crime charged. Having failed to establish plain
error, this assignment of error is also overruled.
By his third assignment of error, which this Court alloweddefendant to add by order entered 18 May 2001, defendant argues
that the trial court erred by examining his expert witness on voir
dire beyond the area of expertise for which the witness was
tendered. Defendant contends that the court's questioning “gave
the State an entire panorama of cross-examination material about
the defendant's use of drugs that it had not pursued in its case in
chief, though it knew from the defendant's statement to the police
that the defendant had been smoking marijuana immediately preceding
the homicide.” We disagree.
Even assuming arguendo that the court's questioning of
defendant's expert witness was error, defendant cannot show that
such error prejudiced him. First, this questioning took place out
of the presence of the jury. Moreover, as defendant admits, the
State already knew of defendant's drug use. To the extent that
drugs could have affected defendant's ability to premeditate and
deliberate so as to commit the offense of first-degree murder, we
note that the issue was mooted by the jury's verdict of second-
degree murder. See, e.g., State v. Golden, 143 N.C. App. 426, 546
S.E.2d 163 (2001) (finding no prejudicial error as to defendant's
murder conviction where the trial court did not instruct the jury
on voluntary intoxication, and the jury found the defendant guilty
of first degree murder based upon felony murder, but acquitted the
defendant of first degree murder based upon premeditation and
deliberation). Accordingly, this assignment of error is overruled.
In light of all of the foregoing, we hold that defendant
received a fair trial, free from prejudicial error. No error.
Judges WYNN and THOMAS concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***