STATE OF NORTH CAROLINA
v
.
Halifax County
No. 98CRS003157
CHRISTOPHER ALVIN JOHNSON
Attorney General Roy Cooper, by Assistant Attorney General
Diane A. Reeves, for the State.
The Smallwood Law Firm, by Tonza D. Ruffin, for defendant
appellant.
TIMMONS-GOODSON, Judge.
On 9 May 2001, a jury found Christopher Alvin Johnson
(“defendant”) guilty of first-degree murder. At trial, the State
presented evidence that tended to show the following: On the
morning of 28 March 1998, the body of Alvin “Slick” Garner
(“Garner”) was discovered in a field adjacent to Ray Smith Road in
Halifax County, North Carolina. A lime-green Kawasaki ZX9 Ninja
motorcycle, riddled with bullet holes, lay nearby. Law enforcement
officers subsequently arrested defendant, who admitted his
involvement in Garner's death and gave a statement explaining the
events leading up to the shooting. Defendant stated that earlier
that evening he visited the Fireside night club (“the Fireside”)
with two friends, Tone and Ron G. While defendant stood in theparking lot of the Fireside, Lamont Pitchford and passengers in his
automobile threatened defendant and shot at him. Defendant and his
companion, Tone, returned fire. Defendant believed that one of the
passengers in the vehicle was an individual known as “Moon,” with
whom defendant had previous altercations. As defendant averred, “A
guy by the name of Moon has been taking crack shots at me and my
friends. He tried to murder my brother.”
Concerning the events of the evening, defendant went on to
state, in pertinent part, that:
I went to Littleton to see a
girl but she wasn't there. . . . I
came back through on that road that
Slick [Garner] was killed on. We
pulled over because one of my boys
had to use the bathroom, . . .
All of a sudden we notice a
motorcycle come through and someone
said that looks like Moon's bike.
Then a motorcycle came back through
again and was slowing down. . . .
The motorcycle was coming closer and
it looked like his hand was raised
but we couldn't really tell because
the light was kind of blinding us.
As it got closer we noticed it
was Moon's bike. We started firing
because we thought it was going to
do a drive-by shooting on us. We
started shooting so wildly that the
windows got shot out. The bike slid
and fell. He jumped up and ran
across the field and fell. I say
damn I think we shot hem. [sic] We
jumped in the car and left.
Defendant explained that he knew it was Moon's motorcycle because
he had seen him riding it earlier, and wondered “why he would be
out there that time of the morning riding a bike when we saw him
earlier with Lamont.” The State presented further testimony by Tarvis “Moon” Price
(“Moon”). At trial, Moon testified that he and defendant did not
like each other; in fact, Moon had a history of “problems” with
defendant and his family. Moon explained that on 27 March 1998,
he, Garner, and Garner's cousins, Terrel, and Calvin Garner, did
not go to the Fireside, because they heard there was a shooting.
They then went to a restaurant where they decided to ride
motorcycles. Having only three helmets for the four of them,
Garner left on Moon's motorcycle to retrieve an extra helmet. When
Garner did not return, Moon, Terrel and Calvin began searching for
him and discovered the motorcycle riddled with bullet holes and
Garner's body in a field adjacent to Ray Smith Road.
As Dr. Robert E. Ziph, regional forensic pathologist for the
North Carolina Medical Examiner's office, testified, an autopsy
performed at Nash General Hospital on 28 March 1998, confirmed that
Garner was killed by a bullet that perforated his heart. Forensic
tests of bullets found at both Ray Smith Road and the Fireside
showed that the same firearms were used at both locations.
Following the jury verdict, the trial court sentenced
defendant to life in prison without parole. Defendant now appeals.
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Although the record sets forth six assignments of error,
defendant has only briefed two errors on appeal: whether the trial
court erred in denying defendant's motion to dismiss and whether
the trial court committed plain error in failing to instruct the
jury on the theory of self-defense. Arguments that are not briefedare considered abandoned. See N.C.R. App. P. 28(a) (2002). For
the reasons set forth herein, we find no error by the trial court.
When considering a defendant's motion to dismiss, the trial
court must consider the evidence “in the light most favorable to the
State, giving the State the benefit of every reasonable inference
to be drawn from it.” State v. Locklear, 322 N.C. 349, 358, 368
S.E.2d 377, 382 (1988). A motion to dismiss is proper when the
State fails to present substantial evidence of each element of the
crime charged. See State v. McDowell, 329 N.C. 363, 389, 407 S.E.2d
200, 214 (1991). Evidence is considered substantial when a jury
“could find the fact to be proved beyond a reasonable doubt.” State
v. Sumpter, 318 N.C. 102, 108, 347 S.E.2d 396, 399 (1986).
Substantial evidence can be either direct or circumstantial, as long
as it “support[s] a finding that the offense charged has been
committed and that the defendant committed it, . . .” Locklear, 322
N.C. at 358, 368 S.E.2d at 383.
Unlawfully killing a human being with malice and with
premeditation and deliberation constitutes first-degree murder. See
N.C. Gen. Stat. § 14-17 (2001); State v. Judge, 308 N.C. 658, 661,
303 S.E.2d 817, 820 (1983). Premeditation may be established by
proving that the killing was thought out “beforehand for some length
of time, however short.” State v. Stone, 323 N.C. 447, 451, 373
S.E.2d 430, 433 (1988).
Defendant argues that the evidence lacked the essential element
of premeditation. Defendant notes that he did not fire any shots
because his gun jammed. Moreover, defendant asserts that accordingto his statement, Ron G. and Tone fired in self-defense “because we
thought [the motorcyclist] was going to do a drive-by on us.”
Because they acted quickly in self-defense, defendant claims he
could not possibly have acted with premeditation and deliberation.
This argument is without merit.
Defendant was convicted under the theory of acting in concert.
Under this theory, the State is not required to show individual
intent of the actors.
[I]f two persons join in a purpose to commit a
crime, each of them, if actually or
constructively present, is not only guilty as
a principal if the other commits that
particular crime, but he is also guilty of any
other crime committed by the other in pursuance
of the common purpose . . . or as a natural or
probable consequence thereof.
State v. Westbrook, 279 N.C. 18, 41-42, 181 S.E.2d 572, 586 (1971),
judgment vacated in part, 408 U.S. 939, 33 L. Ed. 2d 761 (1972);
see also State v. Evans, 346 N.C. 221, 228, 485 S.E.2d 271, 275
(1997) (quoting Westbrook), cert. denied, 522 U.S. 1057, 139 L. Ed.
2d 653 (1998). Concert theory is well established in North
Carolina. See State v. Barnes, 345 N.C. 184, 230-31, 481 S.E.2d 44,
69-70 (1997), certs. denied, 522 U.S. 876, 139 L. Ed. 2d 134 (1997),
523 U.S. 1024, 140 L. Ed. 2d 473 (1998). Actual participation is
not required for conviction. “[O]ne may be found guilty of
committing the crime if he is at the scene acting together with
another . . . although the other person does all the acts necessary
to effect the commission of the crime.” State v. Abraham, 338 N.C.
315, 346, 451 S.E.2d 131, 147 (1994)(holding that, the jury could
infer that defendants acted in concert although the fatal shots werenot attributable to a particular co-defendant); see also State v.
Willis, 332 N.C. 151, 177, 420 S.E.2d 158, 170 (1992) (holding that
the defendant could be found guilty of first-degree murder because
of her constructive presence when she was on her front porch, in
sight of the killing, when it happened).
Defendant's statement indicates that he acted “in concert” with
Tone and Ron G. to commit the murder. “We started shooting so
wildly that the windows got shot out. . . . I say damn I think we
shot hem [sic].” From his use of plural pronouns when describing
the events leading up to the shooting, a jury could infer that
defendant participated with the “joint purpose” of shooting the
victim. Furthermore, when asked whether he fired any shots at the
motorcyclist, defendant responded, “[N]o, my gun jammed.” Even if
he did not fire the shots that wounded Garner, evidence submitted
at trial, including defendant's own statement, shows his intent to
act and his presence at the scene. We therefore overrule
defendant's first assignment of error.
By his second assignment of error, defendant argues that the
trial court's failure to instruct on self-defense was plain error.
Although defendant did not request a jury instruction on self-
defense at trial, he asserts that his statement raises an inference
of self-defense. Thus, defendant argues that the trial court's
failure to instruct on self-defense was plain error. We disagree.
Plain error is fundamental error that is basic and prejudicial,
affecting the fairness, integrity or public reputation of judicial
proceedings so that justice cannot have been done and the error hada probable impact on the jury's verdict. See State v. Odom, 307
N.C. 655, 660, 300 S.E.2d 375, 378 (1983).
In the instant case, the evidence does not show that defendant
acted in self-defense. An instruction on self-defense is proper
where there is evidence that:
(1) it appeared to defendant and he
believed it to be necessary to kill the
deceased in order to save himself from death or
great bodily harm; and
(2) defendant's belief was reasonable in
that the circumstances as they appeared to him
at the time were sufficient to create such a
belief in the mind of a person of ordinary
firmness; and
(3) defendant was not the aggressor in
bringing on the affray, i.e., he did not
aggressively and willingly enter into the fight
without legal excuse or provocation; and
(4) defendant did not use excessive force,
i.e., did not use more force than was necessary
or reasonably appeared to him to be necessary
under the circumstances to protect himself from
death or great bodily harm.
State v. Norris, 303 N.C. 526, 530, 279 S.E.2d 570, 572-73 (1981).
In the case at bar, defendant explained that “We started firing
because we thought [the motorcyclist] was going to do a drive-by
shooting on us.” Defendant may have believed that the motorcyclist
was going to shoot him. Defendant's belief, however, did not give
him license to fire his weapon at the motorcyclist. Defendant's
statement also illustrates that defendant was an initial aggressor.
Moreover, the evidence fails to demonstrate that shooting Garner was
defendant's only option to protect himself. We conclude that the
trial court did not err in failing to instruct the jury on the
doctrine of self-defense, and we therefore overrule defendant'ssecond assignment of error.
In conclusion, we hold that the trial court did not err in
denying defendant's motion to dismiss and committed no plain error
in its jury instructions.
No error.
Judges GREENE and HUNTER concur.
Report per Rule 30(e).
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