An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-611

NORTH CAROLINA COURT OF APPEALS

Filed: 15 April 2003

STATE OF NORTH CAROLINA

     v .                              Rockingham County
                                     Nos. 99 CRS 003378
WILLIAM ANTONE JOHNSON                         99 CRS 003788
                                         99 CRS 003789

    Appeal by defendant from judgment entered 31 January 2001 by Judge William Z. Wood, Jr., in Rockingham County Superior Court. Heard in the Court of Appeals 19 February 2003.

    Attorney General Roy Cooper, by Special Deputy Attorney General Edwin W. Welch, for the State.

    Smith Moore, LLP, by J. Donald Cowan, for defendant appellant.

    McCULLOUGH, Judge.

    Defendant William Antone Johnson was tried before a jury at the 16 January 2001 Criminal Session of Rockingham County Superior Court after being charged with one count of first-degree murder, one count of felony conspiracy to commit first-degree murder, and one count of robbery with a dangerous weapon. The facts at trial showed that on the evening of 24 March 1999, police received a 911 call from Mrs. Kristene Kemmerlin, who stated that her husband, Donald Wayne Kemmerlin, had been shot. Upon arriving at the Kemmerlin home, police and emergency medical technicians discovered Mrs. Kemmerlin kneeling near her husband; Mr. Kemmerlin had been shot seven times. Although attempts were made to save his life,the victim died shortly after he had been shot.
    The day after the murder, Mrs. Kemmerlin was interviewed by the police and admitted that she solicited defendant to kill her husband. Based on Mrs. Kemmerlin's confession, defendant was arrested at his trailer on 26 March 1999. When questioned, defendant stated he first met Mrs. Kemmerlin through a friend during the summer of 1998. According to defendant, Mrs. Kemmerlin told him that her husband had beaten her and asked if he knew of anyone who would kill her husband for money. Defendant stated Mrs. Kemmerlin repeatedly called him during the month of March and asked if he found anyone to help her. She also told defendant she was the beneficiary of her husband's life insurance policies and was willing to pay someone several thousand dollars to kill Mr. Kemmerlin. On 24 March, Mrs. Kemmerlin met with defendant and asked him to kill her husband that night. Mrs. Kemmerlin told defendant she would let him into the house under the pretense of using the telephone because his car had broken down. She instructed defendant to stage a robbery, shoot her husband, and flee in her husband's truck. After recounting these events, defendant confessed he went to the Kemmerlin home on 24 March, pretended to rob Mr. Kemmerlin, and shot him multiple times before driving away in Mr. Kemmerlin's truck.
    Defendant was subsequently indicted for first-degree murder, conspiracy to commit first-degree murder, and robbery with a dangerous weapon. Prior to trial, defendant filed a Motion to Dismiss Indictment for Failure to Allege All Essential Elements ofFirst Degree Murder and a Motion to Hold “Short Form” Indictment and Death Penalty Sentencing Scheme Unconstitutional. After the trial judge denied both motions, the case proceeded to a trial on the merits. The State presented considerable evidence at trial indicating that all the circumstances surrounding the murder had been thoroughly investigated. Defendant's sole witness was psychologist Dr. Gary Hoover, who opined that when defendant shot Mr. Kemmerlin,
        [h]e was functioning inside a dissociative state that was brought on by the anxiety of and guilt about what he was about to do that was covered up by the substances [alcohol, marijuana, and Xanax (an anti-anxiety drug)] that he used and those substances caused enough decompensation, if you will, in his mental and emotional functioning so that he carried the act out, I've used this term before, as if he were on autopilot.

The jury found defendant guilty as charged, and the trial proceeded to the sentencing phase.
    After considering testimony from both defendant and the State, the trial court determined that defendant had a prior record level of III and sentenced him to life in prison without parole for the first-degree murder conviction, 336-413 months' imprisonment for the felony conspiracy conviction, and a consecutive term of 101-133 months' imprisonment for the robbery with a dangerous weapon conviction. Defendant appealed.
    On appeal, defendant argues the trial court erred by (I) denying his motion to dismiss the first-degree murder indictment because it failed to allege each essential element of the crime,thereby violating his constitutional rights; and (II) denying his motion to hold the short-form murder indictment and death penalty sentencing scheme unconstitutional because the indictment did not contain any alleged aggravating circumstances. For the reasons set forth herein, we disagree with defendant's arguments and conclude he received a trial free from error.
    By his first assignment of error, defendant contends the first-degree murder indictment was flawed because it did not allege each essential element of the offense; specifically, premeditation and deliberation and/or felony murder. As a result, defendant contends his constitutional rights to due process and equal protection were violated. We do not agree.
    North Carolina law recognizes only one common law crime of murder, which is statutorily divided into first and second degrees. N.C. Gen. Stat. § 14-17 (2001). “[F]irst and second degree murder are not distinct crimes, but rather are simply variations of the common law crime of murder.” Hartman v. Lee, 283 F.3d 190, 194 (4th Cir. 2002), cert. denied, ___ U.S. ___, 154 L. Ed. 2d 789 (2003). Defendant was charged with first-degree murder under two theories -- felony murder (with robbery with a dangerous weapon as the underlying felony) and premeditation and deliberation. The short-form murder indictment against defendant charged him as follows:
        The jurors for the State upon their oath present that on or about the date of offense shown and in the county named above the defendant named above unlawfully, willfully and feloniously and of malice aforethought didkill and murder Donald Wayne Kemmerlin.
This indictment complies with the short-form indictment for murder authorized by N.C. Gen. Stat. § 15-144 (2001), which provides:
            In indictments for murder and manslaughter, it is not necessary to allege matter not required to be proved on the trial; but in the body of the indictment, after naming the person accused, and the county of his residence, the date of the offense, the averment “with force and arms,” and the county of the alleged commission of the offense, as is now usual, it is sufficient in describing murder to allege that the accused person feloniously, willfully, and of his malice aforethought, did kill and murder (naming the person killed), and concluding as is now required by law; . . . and any bill of indictment containing the averments and allegations herein named shall be good and sufficient in law as an indictment for murder or manslaughter, as the case may be.
“[U]nder North Carolina law, all murders are alleged in short-form indictments pursuant to § 15-144; the jury is required to determine the degree of murder (first or second) when it deliberates regarding the defendant's guilt.” Hartman, 283 F.3d at 192.
    Defendant concedes that the indictment complies with the requirements of N.C. Gen. Stat. § 15-144. Nonetheless, he argues that § 15-144 is unconstitutional to the extent that it does not allow him to determine whether the grand jury voted to indict him for first-degree or second-degree murder. However, our Supreme Court has previously stated that “[N.C. Gen. Stat. § 15-144] contains no requirement that the indictment specify the degree of murder sought. . . . [A]n indictment which meets the requirements of section 15-144 will support a plea of guilty to or a convictionof either first or second degree murder.” State v. King, 311 N.C. 603, 608, 320 S.E.2d 1, 5 (1984). Additionally, our Supreme Court has repeatedly held that a short-form indictment which complies with N.C. Gen. Stat. § 15-144 satisfies both the United States and the North Carolina Constitutions. State v. Avery, 315 N.C. 1, 13, 337 S.E.2d 786, 793 (1985); see also State v. Smith, 352 N.C. 531, 539, 532 S.E.2d 773, 779 (2000), cert. denied, 532 U.S. 949, 149 L. Ed. 2d 360 (2001).
    Defendant's argument also fails for a number of other reasons. First, the indictment signed by the grand jury foreperson on 5 April 1999 contained an “X” in the box next to “FIRST DEGREE” murder and no marking in the box next to “SECOND DEGREE.” Second, as Hartman indicates, the jury must determine whether defendant is guilty of first- or second-degree murder when it deliberates. Third, defendant did not raise this argument at trial. “This Court has long held that where a theory argued on appeal was not raised before the trial court, 'the law does not permit parties to swap horses between courts in order to get a better mount[.]'” State v. Sharpe, 344 N.C. 190, 194, 473 S.E.2d 3, 5 (1996), cert. denied, 350 N.C. 848, 539 S.E.2d 647 (1999) (quoting Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934)). In light of the foregoing, we conclude defendant's arguments are without merit, and his first assignment of error is overruled.
    Defendant also argues that the murder indictment is unconstitutional because it does not contain all the facts or elements (i.e., alleged aggravating circumstances) which increasethe maximum possible sentence to which he was subjected. See Jones v. United States, 526 U.S. 227, 243 n.6, 143 L. Ed. 2d 311, 326 n.6 (1999) (stating that “any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt[]”); and Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 446 (2000) (applying Jones to state criminal proceedings). Because premeditation and deliberation are elements which elevate second-degree murder to first-degree murder (and increase the maximum penalty to which he could be subjected), defendant believes those facts must be alleged in the indictment.
    The North Carolina Supreme Court has previously considered this argument and held that the short-form indictment comports with both the United States Constitution and the North Carolina Constitution. State v. Braxton, 352 N.C. 158, 174, 531 S.E.2d 428, 437 (2000), cert. denied, 531 U.S. 1130, 148 L. Ed. 2d 797 (2001). In addressing the same argument as that presented here by defendant, the Braxton Court stated:
        The 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. We, therefore, conclude that premeditation and deliberation need not be separately alleged in the short-form indictment. Further, the punishment to which defendant was sentenced, namely, the death penalty, is the prescribed statutory maximum punishment for first-degree murder in North Carolina. Thus, no additional facts needed to be charged in the indictment. Given the foregoing, defendant had notice that he wascharged 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. Nothing in Apprendi, in our judgment, alters this prior case law.

Id. at 175, 531 S.E.2d at 437-38.    
    “The only aggravating circumstances upon which the State may rely are enumerated in G.S. § 15A-2000(e) [and] this statutory notice is sufficient to meet the constitutional requirement of due process.” State v. Taylor, 304 N.C. 249, 257, 283 S.E.2d 761, 768 (1981), cert. denied, 463 U.S. 1213, 77 L. Ed. 2d 1398 (1983) (citations omitted). See also Braxton, 352 N.C. 158, 531 S.E.2d 428.
        The aggravating circumstances set forth in N.C.G.S. § 15A-2000(e) are not elements of first-degree murder but are circumstances to be considered by the jury in making its recommendation for a sentence of life imprisonment or death. No statutory or constitutional mandate requires the inclusion of aggravating circumstances in the short-form indictment.

State v. Lawrence
, 352 N.C. 1, 11, 530 S.E.2d 807, 814 (2000), cert. denied, 531 U.S. 1083, 148 L. Ed. 2d 684 (2001). Defendant had constructive notice (in the form of statutory notice) of the aggravating circumstances upon which the State could rely during sentencing. Arguments identical to defendant's have already been addressed and repeatedly rejected by this Court and the North Carolina Supreme Court. We conclude defendant's argument mustsuffer the same fate. See State v. King, 353 N.C. 457, 468, 546 S.E.2d 575, 585 (2001), cert. denied, 534 U.S. 1147, 151 L. Ed. 2d 1002 (2002); State v. Golphin, 352 N.C. 364, 396-97, 533 S.E.2d 168, 193-94 (2000), cert. denied, 532 U.S. 931, 149 L. Ed. 2d 305 (2001); and State v. Wallace, 351 N.C. 481, 504-05, 528 S.E.2d 326, 341-42, cert. denied, 531 U.S. 1018, 148 L. Ed. 2d 498 (2000).
    In his brief, defendant candidly admits that the North Carolina Supreme Court has already considered and rejected arguments identical to his. Defendant now directs our attention to two United States Supreme Court cases, Ring v. Arizona, 536 U.S. 584, 153 L. Ed. 2d 556 (2002) and United States v. Cotton, 535 U.S. 625, 152 L. Ed. 2d 860 (2002) and urges this Court to interpret these cases in a manner favorable to him. However, we agree with the State that Ring and Cotton do not stand for the propositions defendant advocates. After reviewing Ring and Cotton, we remain convinced that there is no requirement that the murder indictment allege aggravating circumstances.
    Lastly, defendant's arguments regarding the unconstitutionality of the short-form indictment and the death penalty sentencing scheme based on the jury's finding of aggravating circumstances have been mooted by the fact that he was not sentenced to death. See State v. Wright, 342 N.C. 179, 181, 463 S.E.2d 388, 388-89 (1995). Accordingly, defendant's final assignment of error is overruled.
    Upon careful review of the record, the transcript, and the arguments presented by the parties, we conclude defendant receiveda fair trial, free from error.
    No error.
    Judges TYSON and CALABRIA concur.
    Report per Rule 30(e).

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