STATE OF NORTH CAROLINA
v
.
Cumberland County
No. 96 CRS 5010 (52 & 53)
MITCHELL QUARTERMAN
Attorney General Roy Cooper, by Assistant Attorney General
Philip A. Lehman, for the State.
Margaret Creasy Ciardella, for the defendant-appellant.
WYNN, Judge.
Defendant, Mitchell Quarterman, presents one issue for our
review: Whether his indictment charging that he conjunctively
conspired with Troy Barksdale and Eddie Sanders, fatally varied
from the trial court's jury instruction in the disjunctive of
conspiring with Troy Barksdale or Eddie Sanders. We answer, no,
because the immaterial variance in the indictment in this case was
not fatal to the prosecution of defendant, and the trial court
correctly instructed the jury on the two conspiracies.
The facts in this case show that defendant believed that
Anthony King was involved with his girlfriend, Myosha Middleton.
In early January 1996, Anthony King found Middleton at her homecrying and acting as though she had been beaten. Believing her to
be in danger, he took her to a motel, gave her money to spend the
night, left that night and arrived the next morning to pick her up.
When he came out of the motel with Middleton, defendant pulled up
in the parking lot acting “like a wild maniac.” Defendant tried to
grab Middleton but Anthony King interceded.
After that incident, defendant, a soldier stationed at Fort
Bragg, solicited two other soldiers, Eddie Sanders and Troy
Barksdale, to kill Anthony King. On the night of the crimes
charged in this case, defendant assembled the three and rode with
them in Barksdale's car to meet Anthony King at a convenience
store. Defendant had a handgun and a large kitchen knife that he
took from Sanders' house. Barksdale had a sawed-off shotgun in the
rear of his car.
Anthony King and his cousin, Roland King rode to the
convenience store in a van. On the arrival of the three other men,
Barksdale rode with Anthony King, and Roland King rode in the
front-passenger seat of Barksdale's car. Shortly thereafter,
Barksdale shot Anthony King in the face with a handgun and
attempted to shoot him again but the gun jammed. He then got out
of the van to get the sawed-off shotgun. Meanwhile, defendant, who
sat behind Roland King in the other vehicle, fatally cut Roland
King's throat with the kitchen knife.
Anthony King survived the gunshot wound and drove the van back
to the convenience store where the clerk called law enforcement
officers. The three men had followed him but gave up their pursuitupon seeing the officers at the convenience store. They threw the
knife out of the car and defendant put the handgun and shotgun
under someone's trailer. Thereafter, defendant asked Barksdale to
stab him with a steak knife to make it look like self-defense,
Barksdale refused but agreed to hit defendant several times.
A week after the incident, Sanders and Barksdale gave
incriminating statements to the police soundly implicating
defendant, which were substantially corroborative of their trial
testimony.
Defendant testified in his defense that he was not part of any
plan to kill Anthony or Roland King. He stated that his role was
to get Sanders and Barksdale with Anthony King to buy stolen
clothing and sell marijuana. He denied taking a knife from
Sanders' house and denied seeing any guns in the car. He stated
that when Barksdale's car pulled over, he heard Sanders say, “he's
got a knife.” He then jumped out of the car and saw that Roland
King had been cut and Sanders was cutting Roland King's seatbelt
with a knife. Defendant said that Barksdale came up holding a
shotgun and told him to get in the car to go after Anthony King.
According to defendant, Barksdale told him that Anthony King pulled
a gun on him in the van. Defendant denied hiding guns under a
trailer and said that Sanders told him to use the name Mike to
identify the killer. He acknowledged that an incident occurred
involving Anthony King and Middleton outside the motel but he said
he had broken up with her and was not jealous of Anthony King.
The jury found defendant guilty of conspiracy and the assaultcharges but was unable to reach a verdict on the murder charge, for
which the trial court declared a mistrial. The trial judge
sentenced defendant to 157 to 198 months in prison for the
conspiracy to commit murder charge, and to a concurrent term of 93
to 121 months to run on the assault. On 30 March 1999, pursuant to
a plea agreement, defendant pled guilty to second-degree murder for
which he received a sentence of 132 to 168 months for the second-
degree murder conviction.
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On appeal, defendant argues that the trial court erred by
giving jury instructions on conspiracy to commit murder that
fatally varied from the indictment of that crime. We disagree.
The record shows that defendant did not object to the
instruction at his trial; accordingly, our review is limited to
plain error. See N.C.R. App. P. 10(b)(2) (2001); State v.
Christian, __ N.C. App. ___, 562 S.E.2d 568 (2002); State v.
Bradley, 91 N.C. App. 559, 373 S.E.2d 130 (1988), disc. review
denied, 324 N.C. 144, 377 S.E.2d 238 (1989) (A party must object to
a jury charge, or any omission therefrom before the jury
retires.). To show plain error, defendant must show that it was a
“fundamental error, something so basic, so prejudicial, so lacking
in its elements that justice cannot have been done.” United States
v. McCaskill, 676 F.2d 995, 1002 (4th Cir.), cert. denied, 459 U.S.
1018, 74 L. Ed. 2d 513 (1982); see also State v. Dale, 343 N.C. 71,
468 S.E.2d 39 (1996); U.S. v. Cotton, 122 S.Ct. 1781 (filed May
2002). Before granting relief based on the plain error rule, “theappellate court must be convinced that absent the error the jury
probably would have reached a different verdict.” State v. Walker,
316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986). Thus, we review for
plain error defendant's contention that the trial court's
instructions fatally varied from the indictment.
An indictment should provide notice to a defendant of the
crime for which he is being charged; and, an indictment or criminal
charge is constitutionally sufficient if it apprises the defendant
of the charge against him with enough certainty to enable him to
prepare his defense and to protect him from subsequent prosecution
for the same offense. See State v. Bowen, 139 N.C. App. 18, 24,
533 S.E.2d 248, 252 (2000).
[I]t is not the function of an indictment to
bind the hands of the State with technical
rules of pleading; rather, its purposes are to
identify clearly the crime being charged,
thereby putting the accused on reasonable
notice to defend against it and prepare for
trial, and to protect the accused from being
jeopardized by the State more than once for
the same crime.
State v. Sturdivant, 304 N.C. 293, 311, 283 S.E.2d 719, 731 (1981).
In making out an indictment or criminal summons, the State need
only allege ultimate facts, not evidentiary matters. See State v.
Wilson, 128 N.C. App. 688, 691, 497 S.E.2d 416, 419 (1998).
The purpose of an indictment is at least
twofold: First, to make clear the offense
charged so that the investigation may be
confined to that offense, that proper
procedure may be followed, and applicable law
invoked; second, to put the defendant on
reasonable notice so as to enable him to make
his defense. When these purposes are served,
the functions of the indictment are not so
impaired by the omission of subordinatedetails.
State v. Gregory, 223 N.C. 415, 420, 27 S.E.2d 140, 143 (1943).
In this case, the indictment stated:
AND JURORS FOR THE STATE UPON THEIR OATH
PRESENT that on or about the 21st day of
January, 1996, in the county named above the
defendant named above unlawfully, willfully
and feloniously did conspire with Troy
Lavander Barksdale, Eddie Sanders, and other
unknown persons to commit the murder of Roland
King and Anthony Terrance King, in violation
of North Carolina General Statutes Section
14-17. The act was in violation of the North
Carolina Common Law and North Carolina General
Statutes Section 14-2.4.
At trial, the trial court instructed the jury as follows:
Now, in the second count, the defendant has
been accused of feloniously conspiring to
commit the premeditated first-degree murder of
Anthony Terrance King. And I charge that for
you to find the defendant guilty of
feloniously conspiring to commit the
premeditated first-degree murder of Anthony
Terrance King, the state must prove three
things beyond a reasonable doubt.
First, that the defendant and Troy Levander
Barksdale and/or Eddie Sanders entered into an
agreement.
Second, that the agreement was to commit the
premeditated first-degree murder of Anthony
Terrance King.
And, members of the jury, I instruct you that
you will recall and apply the instructions
that I've previously given you as to offense
of premeditated first-degree murder.
And third, the state must prove beyond a
reasonable doubt that the defendant and Troy
Levander Barksdale and/or Eddie Sanders
intended that the agreement be carried out at
the time it was made.
So I charge if you find from the evidence andbeyond a reasonable doubt that on or about the
alleged date, the defendant agreed with Troy
Levander Barksdale and/or Eddie Sanders to
commit the premeditated first-degree murder of
Anthony Terrance King, and that the defendant
and said persons intended at the time the
agreement was made that it would be carried
out, it would be your duty to return a verdict
of guilty as charged.
Defendant argues that the indictment's conjunctive phrase of
“Troy Lavander Barksdale, Eddie Sanders, and other unknown persons”
fatally varied from the jury instruction's disjunctive phrase of
“Troy Levander Barksdale and/or Eddie Sanders.” We disagree.
First, the indictment in this case gave clear notice to
defendant of the crime in which he was charged. See State v.
Creason, 313 N.C. 122, 130, 326 S.E.2d 24, 29 (1985). Indeed, the
indictment put defendant on notice that he was charged with
conspiring with co-conspirators, Barksdale and Sanders, to murder
Anthony King. The phrasing under indictment in the conjunctive and
under the instruction in the disjunctive was materially
insignificant. “The use of a conjunctive in the indictment does
not require the State to prove various alternative matters
alleged.” State v. Montgomery, 331 N.C. 559, 569, 417 S.E.2d 742,
747 (1992).
Moreover, defendant had notice of the charge against him of
conspiring with another person. There is no error if, “the
allegations and proof, although variant, are of the same legal
signification. An immaterial variance in an indictment is not
fatal.” State v. Simmons, 57 N.C. App. 548, 551, 291 S.E.2d 815,
817 (1982) (citation omitted); see also State v. Craft, 168 N.C.208, 212, 83 S.E. 772, 774 (1914) (“[A] variance will not result
where the allegations and proof, although variant, are of the same
legal signification. An immaterial variance in an indictment is not
fatal.”).
Nonetheless, defendant further argues that the disjunctive
instruction allowed the jury to reach a non-unanimous verdict by
finding defendant guilty of either of two conspiracies. We
disagree.
To convict defendant, the jury had to find that defendant
conspired with one other person, which could have been Barksdale or
Sanders or both and that the agreement was to commit or assist in
committing murder. See State v. Merrill, 138 N.C. App. 215, 218,
530 S.E.2d 608, 611 (2000). At trial, defendant tried to show that
the attempted murder was planned and carried out by Barksdale and
Sanders. Yet he did not contend that they acted independently of
each other nor that there was more than one conspiracy. There was
only one conspiracy and the jury did not have to find that both
Barksdale and Sanders were involved in the conspiracy to convict
defendant.
Moreover, the evidence was overwhelming that three men acted
in concert in setting up and carrying out the attempted murder of
Anthony King. The overwhelming evidence showed that defendant
procured a gun to kill Anthony King; arranged a meeting with
Anthony King; and attempted to find Anthony King after the murder
of Roland King. The testimony of defendant's two co-conspirators,
both who pled guilty to conspiracy charges, showed that defendanthad the motive to kill Anthony King; organized the three of them to
commit murder; and acted as the leader of the men in carrying out
the plan.
Before granting relief based on the plain error rule, “the
appellate court must be convinced that absent the error the jury
probably would have reached a different verdict.” State v. Walker,
316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986). Here, because the State
presented substantial evidence of defendant's guilt, we find no
plain error.
No error.
Judges HUNTER and THOMAS concur.
Report per Rule 30(e).
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