NO. COA01-770
Appeal by defendant from judgment dated 23 May 2000 by Judge
Michael E. Helms in Ashe County Superior Court. Heard in the Court
of Appeals 26 March 2002.
Attorney General Roy Cooper, by Special Deputy Attorney
General James P. Longest, Jr., for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Constance E. Widenhouse, for defendant-appellant.
GREENE, Judge.
Billy Dean Whitaker (Defendant) appeals a judgment dated 23
May 2000 entered consistent with a jury verdict finding him guilty
of first-degree murder, N.C.G.S. § 14-17 (1999), and assault with
a deadly weapon with intent to kill inflicting serious injury,
N.C.G.S. § 14-32(a) (1999).
Defendant was charged with the first-degree murder of Brenda
Bumgarner Whitaker (Whitaker) and assault with a deadly weapon with
intent to kill inflicting serious injury on John Wayne Mullis
(Mullis). The evidence tends to show that Defendant and Whitaker
had once been married, but separated, and thereafter divorced in
April 1999. The two, however, continued to see each otherregularly, sometimes living together. At around 4:00 p.m. on 28
June 1999, after having been drinking for most of the day with
Whitaker's brother, Defendant traveled to Whitaker's residence.
Whitaker had also been drinking on that day, and the two began to
argue. In response to an earlier call from Whitaker to come and
drink with her and Defendant, Mullis also traveled to Whitaker's
residence. Mullis often drank with Defendant and Whitaker, and
Defendant and Mullis shook hands in greeting when Mullis arrived at
the residence. At the request of Defendant and Whitaker, Mullis
went to the store to buy more beer. In Mullis' absence, Defendant
and Whitaker continued to argue. At times, Defendant would briefly
leave and then return. When Mullis came back from the store,
Defendant and Whitaker were inside talking. Mullis left the beer
on the porch, entered Whitaker's residence, and sat on the couch.
Thereafter, Defendant stood up and walked toward the door, as if he
were going to get a beer. As Defendant walked past Mullis, he
turned and cut Mullis, slicing his jugular vein. Defendant also
cut Whitaker's throat, which resulted in her death.
A jury found Defendant guilty of the first-degree murder of
Whitaker under the felony murder rule and assault with a deadly
weapon with intent to kill inflicting serious injury on Mullis,
recommending life imprisonment for the murder conviction. The
trial court arrested judgment on the assault conviction and in
accordance with the jury's recommendation, sentenced Defendant to
life imprisonment for the murder of Whitaker.
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The sole issue on appeal is whether the short-form murder
indictment used against Defendant is defective in that it failed to
adequately charge the offense of first-degree murder.
Defendant candidly concedes that our Supreme Court has
rejected similar challenges to the short-form murder indictment,
which is commonly used in this State, but presents this issue for
reconsideration in light of a recent ruling by our Supreme Court in
State v. Lucas, 353 N.C. 568, 548 S.E.2d 712 (2001). Defendant
also explains that the issue is raised to preserve his right to
present it in future appellate proceedings.
As Defendant concedes, our Supreme Court has found the use of
short-form indictments to charge first-degree murder to be
constitutional. Specifically, the Supreme Court noted in
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), that:
[t]he crime of first-degree murder and the
accompanying maximum penalty of death, as set
forth in N.C.G.S. § 14-17 and North Carolina's
capital sentencing statute, are encompassed
within the language of the short-form
indictment . . . . Thus, no additional facts
need[] to be charged in the indictment. Given
the foregoing, [the] defendant had notice that
he was charged with first-degree murder and
that the maximum penalty to which he could be
subjected was death. Moreover, under the law
of this State, whenever a defendant is charged
with murder, questions of fact related to
guilt or innocence and to capital sentencing
must be determined by the jury; and the State
has the burden of proving all elements of the
crime and aggravating circumstances beyond a
reasonable doubt.
Id. at 175, 531 S.E.2d at 437-38. In
Lucas, our Supreme Court
addressed the issue of whether the firearm enhancement provisionunder N.C. Gen. Stat. § 15A-1340.16A, which could subject a
defendant to being sentenced to a prison term greater than the
prescribed statutory maximum, had to be charged in an indictment,
submitted to the jury for determination, and proven beyond a
reasonable doubt.
Lucas, 353 N.C. at 597, 548 S.E.2d at 731 Our
Supreme Court held that under the holdings of the United States
Supreme Court in
Jones v. United States, 526 U.S. 227, 143 L. Ed.
2d 311 (1999), and
Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed.
2d 435 (2000), the firearm enhancement under section 15A-1340.16A
must be charged in the indictment, proven beyond a reasonable doubt,
and passed upon by the jury.
Lucas, 353 N.C. at 597, 548 S.E.2d at
731. Contrary to Defendant's argument, we conclude that the Supreme
Court's holding in
Lucas in no way affects its previous holdings in
regard to the use of the short-form indictment to charge first-
degree murder. Having so concluded, we see no error.
(See footnote 1)
No error.
Judges HUDSON and TYSON concur.
Report per Rule 30(e).
Footnote: 1