STATE OF NORTH CAROLINA
v. Randolph County
Nos. 99 CRS 6015-16
GARRY LYNN SHOFFNER, 99 CRS 6213-15
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General
Thomas G. Meacham, Jr., for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Constance E. Widenhouse, for the defendant.
HUDSON, Judge.
Defendant Garry Lynn Shoffner was charged with two counts of
first degree murder, two counts of second degree kidnapping, and
fraudulently setting fire to a dwelling house. The evidence tends
to show the following: Defendant and Priscilla Shoffner were once
married, but they separated after years of domestic violence and
abuse. Defendant and Priscilla, however, continued to see each
other regularly. On 5 May 1999, after accompanying Priscilla and
her mother to court, where Priscilla disposed of an unrelated
traffic matter, defendant kidnapped Priscilla at gun point. After
extracting a declaration of love from Priscilla and forcing her topromise that she would return to him, defendant released Priscilla.
However, upon seeing Priscilla and her mother at the Asheboro
Police Department, where they were reporting the earlier
kidnapping, defendant followed Priscilla and her mother after they
left the police department. Defendant intentionally crashed his
car into the vehicle occupied by the two women. Defendant got out
of his car and walked to the women's vehicle and fired multiple
shots, killing both Priscilla and her mother. Thereafter,
defendant got into a pick-up truck, which was stopped at the
stoplight adjacent to the site of the collision and which was
occupied by Jim Orcutt and Jim Burner. Defendant stuck a “finger
or something” into Orcutt's ribs, ordered Orcutt to move over, and
told Burner to drive. Defendant directed Burner to a street near
his apartment, where he got out of the truck. Defendant entered
his apartment, set fires in the bathroom and his children's
bedroom, and attempted to commit suicide by cutting his wrists.
Defendant had planned to commit suicide by shooting himself after
shooting Priscilla and her mother, but the gun jammed. Fire
fighters and police officers responded to the scene, and took
defendant into custody.
A jury found defendant guilty as charged. Upon recommendation
of the jury, the trial court sentenced defendant to consecutive
life sentences without the possibility of parole for each of the
murders. The court imposed additional consecutive terms of twenty-
nine to forty-four months imprisonment for each second-degree
kidnapping conviction, and eight to ten months imprisonment for thefraudulently burning a dwelling conviction. Defendant appeals.
Defendant's sole argument on appeal is that his conviction for
first degree murder must be vacated because the “short-form” murder
indictment used in his case failed to adequately charge the offense
of first degree murder. Defendant acknowledges, “that the Supreme
Court of North Carolina has rejected similar challenges to the
short-form murder indictment commonly used in this State.”
However, he presents this issue for reconsideration in light of
the Supreme Court's recent ruling 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 rights to present this issue in future
appellate proceedings.
As defendant concedes, our Supreme Court has found that the
use of short-form indictments to charge first degree murder is
constitutional. The Court noted in State v. Braxton, 352 N.C. 158,
175, 531 S.E.2d 428, 437-38 (2000), cert. denied, 531 U.S. 1130,
148 L. Ed. 2d 797 (2001),
[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
needed to be charged in the indictment. Given
the foregoing, 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. In Lucas, our Supreme Court addressed the issue of whether the
firearm enhancement under N.C. Gen. Stat. § 15A-1340.16A (1999),
which could result in a defendant 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 proved
beyond a reasonable doubt. See Lucas, 353 N.C. 568, 548 S.E.2d
712. The Court held that under the United States Supreme Court's
holdings 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 N.C.G.S. § 15A-1340.16A must
be charged in the indictment, proven beyond a reasonable doubt, and
passed upon by the jury. See Lucas, 353 N.C. at 597-98, 548 S.E.2d
at 731. The Lucas Court, citing Jones, also noted that each
element “must be charged in an indictment, submitted to a jury, and
proven beyond a reasonable doubt.” Lucas, 353 N.C. at 595, 548
S.E.2d at 730 (internal citations omitted.)
However, pursuant to the North Carolina Supreme Court's
determination that it has “examined the validity of short-form
indictments in light of the Supreme Court's decisions in Jones and
Apprendi, and concluded that nothing in either case altered prior
case law on these matters,” we are bound to reject defendant's
argument. State v. King, 353 N.C. 457, 468, 546 S.E.2d 575, 585
(2001) (citing State v. Braxton, 352 N.C. at 175, 531 S.E.2d at
437-8), cert. denied, ___ U.S. ___, 151 L. Ed. 2d 1002 (2002).
No error.
Judges GREENE and TYSON concur. Report per Rule 30(e).
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