Appeal by defendant from judgment entered 14 August 2001 by
Judge Peter M. McHugh in Guilford County Superior Court. Heard in
the Court of Appeals 18 August 2003.
Attorney General Roy Cooper, by Special Deputy Attorney
General Norma S. Harrell, for the State.
Parish & Cooke, by James R. Parish, for defendant-appellant.
EAGLES, Chief Judge.
Defendant, Antwain Rashard Steele, appeals from a conviction
of second-degree murder, which stemmed from the 20 November 1999
shooting death of Michael Antonio Beasley.
The State's evidence tends to establish the following: On 19
November 1999, defendant and several friends went to a Greensboro,
North Carolina, nightclub named Club Sensations. While inside the
club, defendant became involved in a verbal altercation with two
unknown men, one of whom “pulled a knife” on defendant. Defendant,
not wanting to fight with the men, left the club and went outside
where, at approximately 1:00 a.m., he met Christopher Druttman in
a parking lot adjacent to the club. Druttman was accompanied byseveral more of defendant's friends. Defendant told Druttman and
the others about the confrontation. Minutes later, defendant and
four friends went back “toward[] the club” to confront the men.
Druttman and another man, Ron Fuller, stayed behind with their
cars. Defendant and his four friends attempted to start a fight,
but the two men from the club “didn't want to fight.” After some
“yelling back and forth,” defendant and his friends returned to the
side street where they had left Druttman and Fuller. Defendant and
his friends decided to leave when they began hearing gunfire coming
“from the side of the club.”
Defendant rode with Druttman, who drove away from the side
street ahead of their other friends. At approximately 3:00 a.m., as
Druttman and defendant approached Club Sensations, defendant
removed Druttman's SKS rifle from the rear floorboard and placed it
on his lap. When Druttman stopped at the traffic light in front of
the club, defendant rolled down the passenger's side window and
opened fire on a crowd that had gathered outside. Defendant fired
between 10 and 15 rounds “into” the crowd. Joenell Pinnix was shot
once in the leg, and was later treated and released from Moses Cone
Hospital. Michael Antonio Beasley was shot once in the left
shoulder and died at the scene.
Both defendant and Christopher Druttman were charged with the
first-degree murder of Beasley and assault with a deadly weapon
with intent to kill inflicting serious injury on Pinnix. Druttman
pled guilty to second-degree murder and assault with a deadly
weapon with intent to kill inflicting serious injury and testifiedfor the State. Defendant was tried on both charges and was
convicted of second-degree murder. Defendant was sentenced to a
term of 189 to 236 months imprisonment. Defendant appeals.
I.
Defendant first contends that the trial court improperly
permitted the State to exercise its peremptory challenges in a
racially discriminatory manner.
Prior to jury selection, defendant requested that a
questionnaire be distributed among the members of the jury pool
asking jurors to identify their race
for the record. The trial
judge declined to distribute defendant's proposed questionnaire but
did distribute his own questionnaire, which included a space for
jurors to record their race. During jury selection, the State
peremptorily challenged seven prospective jurors. Five of the seven
challenged jurors were of African-American decent. Defendant
objected to striking each of the five African-American jurors as
discriminatory. Although the trial court had concluded that
defendant had failed to establish a
prima facie case of
discrimination in each case, it allowed the prosecutor to
articulate his reasons for striking the jurors. After hearing
defendant's arguments in surebuttal, the trial court determined
that the prosecutor's reasons were non-discriminatory and overruled
each of defendant's objections.
Defendant first argues that the trial court erred by
concluding that defendant failed to establish a
prima facie case of
discrimination. Defendant argues that he established a
prima faciecase of purposeful discrimination in the selection of a petit jury
by showing that (1) defendant is a member of a cognizable racial
group, and (2) the prosecutor used peremptory challenges to remove
members of defendant's race from the jury.
See State v. Jackson,
322 N.C. 251, 254, 368 S.E.2d 838, 840 (1988),
cert. denied, 490
U.S. 1110, 104 L. Ed. 2d 1027 (1989). We conclude that this issue
is moot and decline to address it.
Claims of racial discrimination in the prosecution's use of
peremptory challenges are analyzed under the three-part inquiry
developed in
Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69
(1986) and
Powers v. Ohio, 499 U.S. 400, 113 L. Ed. 2d 411 (1991).
First, defendant must establish a
prima facie case that
the peremptory challenge was exercised on the basis of
race. Second, if such a showing is made, the burden
shifts to the prosecutor to offer a race-neutral
explanation to rebut defendant's
prima facie case.
Third, the trial court must determine whether the
defendant has proven purposeful discrimination.
State v. Lemons, 348 N.C. 335, 360-61, 501 S.E.2d 309, 325
(1998)(citations omitted),
vacated on other grounds, 527 U.S. 1018,
144 L. Ed. 2d 768 (1999). “'Once a prosecutor has offered a
race-neutral explanation for the peremptory challenges and the
trial court has ruled on the ultimate question of intentional
discrimination, the preliminary issue of whether the defendant had
made a
prima facie showing becomes moot.'”
State v. Williams, 355
N.C. 501, 551, 565 S.E.2d 609, 638 (2002),
cert. denied, 537 U.S.
1125, 154 L. Ed. 2d 808 (2003). In these instances, the only issue
before the appellate court is “'whether the trial court correctly
concluded that the prosecutor had not intentionallydiscriminated.'”
Id. at 551, 565 S.E.2d at 638-39 (citation
omitted).
Here, although the trial court initially concluded that
defendant had not established a
prima facie case of discrimination,
the trial court allowed the prosecutor to offer his reasons for
exercising each peremptory challenge and then ruled on the ultimate
question of intentional discrimination. The preliminary issue of
whether the defendant made a
prima facie showing of discrimination
is now moot.
Defendant next argues that the trial court erroneously
concluded that the prosecutor had not engaged in intentional
discrimination because the reasons articulated by the prosecutor
for striking African-American jurors were pretextual. We disagree.
During
voir dire, juror Sampson stated
that she was familiar
with the club and had been there on at least one occasion. Juror
Blake-Nichols stated that she patronized the club once, became
familiar with the club's reputation as a result of that visit and
never returned. Juror Rogers stated that she had been to the club
on multiple occasions, was familiar with its reputation, and was
uncomfortable with serving on the jury because she believed one of
her friends may have been at the club the night the victims were
shot. Juror Robinson stated that he had patronized the club on
multiple occasions and had heard that it was a “bad place.” Juror
Hairston stated that she knew one of the State's primary witnesses
and was a personal friend of the witness's wife. The prosecutor explained that by striking these prospective
jurors, he was merely
trying to . . . get a jury that can be fair and
impartial, without [out]side influence from any area. The
two most important areas wherein outside influence could
come into play in these cases are, number one, the
establishment itself. The reason being, there's going to
be evidence that my victim, Mr. Beasley, frequented that
establishment, and a number of my witnesses were employed
there as security guards. If a juror had a negative
impression of that particular establishment, or happened
to recognize any of my witnesses and had a negative
experience with them, that could certainly create a
problem.
The other thing is, the State would like to try this
case without people who have become familiar with its
witnesses.
On rebuttal, defendant argued the prosecutor's reasons were
pretextual. Defendant contended that both Club Sensations and its
predecessor, Side Effects, were “black” nightclubs; therefore, it
would be “next to impossible” to find “a black person under the age
of 45” in Guilford County who had not patronized either Club
Sensations or Side Effects.
“[T]he ultimate burden of persuading the court that
intentional racial discrimination has guided the use of peremptory
challenges rests on the defendant.”
State v. Porter, 326 N.C. 489,
497-98, 391 S.E.2d 144, 150 (1990). The following factors are
relevant in assessing whether the prosecutor's articulated reasons
are legitimate or a pretext:
First, the judge should consider “'the susceptibility of
the particular case to racial discrimination.'” The race
of the defendant, the victims, and the key witnesses
bears upon this determination. Second, the judge should
consider the prosecutor's demeanor to determine whether
the prosecutor is “engaging in a careful process of
deliberation based on many factors.” Third, the court
should “'evaluate the explanation itself.'”
Id. at 497-98, 391 S.E.2d at 150-51 (citations omitted).
The prosecutor's reasons “'need not rise to the level
justifying exercise of a challenge for cause[,]' [s]o long as the
motive does not appear to be racial discrimination . . . .”
Id. at
498, 391 S.E.2d at 151 (citation omitted). “In assessing the
'entire milieu of the
voir dire,' the judge must 'compar[e] his
observations and assessments of veniremen with those explained by
the State,' guided by his personal experiences with
voir dire,
trial tactics and the prosecutor and by any surrebuttal evidence
offered by the defendant.”
Id. at 499, 391 S.E.2d at 151 (citation
omitted)(emphasis added). “Since 'the trial court is in the best
position to assess the prosecutor's credibility, we will not
overturn its determination absent clear error.'”
Williams, 355 N.C.
at 551, 565 S.E.2d at 639 (citation omitted). Our courts have
consistently held that “concerns about a prospective juror's
knowing the defendant or witnesses were a sufficient basis to
support an excusal . . . .”
State v. White, 349 N.C. 535, 551, 508
S.E.2d 253, 264 (1998),
cert. denied, 527 U.S. 1026, 144 L. Ed. 2d
779 (1999);
State v. Littlejohn, ___ N.C. App. ___, ___, 582 S.E.2d
301, 305 (2003).
Here, the trial court noted that during pretrial motions, both
the State and defendant expressed concerns over the effect of the
club's negative reputation on jurors. The trial court found that
the State's primary reason for excusing the jurors was their
familiarity with the club and its reputation, and that these
reasons were “valid, clear and race-neutral . . . and were not madefor any improper discriminatory motive.” The trial judge based
these findings on (1) “the prosecutor's demeanor in his examination
of all of the jury panel[,]” and (2) “the responses of the jurors
. . . .” Although no specific findings were made regarding the
susceptibility of the case to racial discrimination, the record
reveals that the victim, defendant and many of the witnesses were
African-American. The record further reveals that the trial court
considered defendant's pretext argument, but rejected it after a
discussion with defense counsel concerning defendant's previous
assertion that the club's bad reputation would likely have a
bearing on the case. We hold the trial court's decision to allow
the peremptory challenges was not clearly erroneous. Accordingly,
this assignment of error is rejected.
II.
Defendant next contends that the trial court erred by
permitting one of the State's witnesses to testify that defendant
refused to consent to a warrantless search of his apartment. We
agree; however, after careful review of the record and trial
transcript, we hold the error was harmless beyond a reasonable
doubt.
Police arrested defendant at his apartment at approximately
2:00 a.m. on 10 December 1999. Detective Whitt testified on direct
examination:
Q: Did you attempt to search his apartment?
A: Yes, sir, I did.
Q: How did you go about doing that?
A: I asked him for consent, if he would allow me and
officers who were assisting me to assist in
searching his apartment, as a verbal consent. Heindicated at that point I'd need to get a search
warrant.
[DEFENSE COUNSEL:] Objection, your Honor.
Move to strike.
THE COURT: Objection's overruled.
Q: He denied you an opportunity to search the
apartment without a search warrant?
A: Yes, Sir.
[DEFENSE COUNSEL:] Objection.
THE COURT: Overruled.
Q: Once he had denied that, what did you do?
A: At that point, of course, Mr. Steele was taken into
custody. I then secured the apartment. And it was
secured by our officers, until a search warrant was
obtained for the premises.
Defendant testified that he refused to give Detective Whitt
consent to search his apartment because the arresting officers
repeatedly refused to tell him why he was being arrested; each time
defendant asked, the officers said: “We'll tell you when you get
downtown.” Citing
Doyle v. Ohio, 426 U.S. 610, 49 L. Ed. 2d 91
(1976) and
Grunewald v. United States, 353 U.S. 391, 1 L. Ed. 2d
931 (1956), defendant argues that presentation of evidence that
defendant declined to consent to a search constitutes reversible,
constitutional error, because it was offered only for the purpose
of implying guilt.
It is constitutional error to admit testimony as evidence of
guilt that a defendant exercised his constitutional rights and
refused to consent to a warrantless search.
State v. Jennings, 333
N.C. 579, 605, 430 S.E.2d 188, 200,
cert. denied, 510 U.S. 1028,
126 L. Ed. 2d 602 (1993). Constitutional error “is prejudicial
unless the appellate court finds that it was harmless beyond a
reasonable doubt.” G.S. § 15A-1443(b).
Error is harmless beyond a
reasonable doubt when there is no reasonable possibility that theerroneous admission of the evidence contributed to the conviction.
State v. Hooper, 318 N.C. 680, 682, 351 S.E.2d 286, 288 (1987).
“The test of harmless error must be applied on a case-by-case
basis.”
State v. Atkins, 58 N.C. App. 146, 149, 292 S.E.2d 744,
746,
disc. review denied and appeal dismissed, 306 N.C. 744, 295
S.E.2d 480 (1982). Overwhelming evidence of guilt may alone render
error of constitutional dimension harmless beyond a reasonable
doubt.
State v. Rhodes, 151 N.C. App. 208, 218, 565 S.E.2d 266,
272,
disc. review denied, 356 N.C. 173, 569 S.E.2d 273 (2002).
Here, the record reveals that the subsequent search of
defendant's apartment yielded nothing of evidentiary value.
Therefore, the testimony was not offered for any necessary
evidentiary purpose; rather, it was intended to imply defendant's
guilt by improperly suggesting that he had something to hide.
Accordingly, the testimony was improperly admitted. Nevertheless,
we conclude the error was harmless.
First, the evidence against defendant was overwhelming. In
light of Druttman's testimony, we are convinced that there is no
reasonable possibility that this portion of Detective Whitt's
testimony had any bearing on the outcome of the trial. Moreover,
the record as a whole tends to negate any suggestion that defendant
was trying to hide something from police by asserting his rights.
See Jennings, 333 N.C. at 605, 430 S.E.2d at 200.
Detective Whitt
testified that after defendant refused to give him consent to
search, the apartment was secured by police until a search warrant
could be obtained. In spite of this, there was no mention of anyevidence purported to have been obtained as a result of that
search. Furthermore, defendant testified to explain the
circumstances that led to his refusal of Detective Whitt's request.
In light of those circumstances, defendant's assertion of his
rights and refusal to consent “does not seem so unreasonable as to
destroy defendant's credibility in the eyes of the jury . . . .”
Id. Finally, there is no evidence in the record that the prosecutor
either cross-examined defendant on the assertion of his rights or
commented on the matter during closing argument.
See State v.
Elmore, 337 N.C. 789, 793, 448 S.E.2d 501, 503 (1994). We hold that
error in the admission of this testimony was harmless beyond a
reasonable doubt. Accordingly, this assignment of error is
rejected.
III.
Defendant next contends that the trial court erred by denying
his request for an instruction on involuntary manslaughter.
During the State's case in chief, Christopher Druttman
testified in part:
Well, when I was driving, he [defendant] turned, so his
back was kind of to me, and his back was almost resting
against my body, and he was shooting out the window. And
it looked like he had the gun pointed in the air.
Defendant argues that this testimony supported an instruction
on involuntary manslaughter because the jury could have found that
defendant only intended to fire over the crowd, and decided that
defendant was only culpably negligent in doing so. We disagree.
“Involuntary manslaughter is 'the unintentional killing of a
human being without malice, proximately caused by (1) an unlawfulact not amounting to a felony nor naturally dangerous to human
life, or (2) a culpably negligent act or omission.'”
State v. Lane,
115 N.C. App. 25, 28, 444 S.E.2d 233, 235 (citation omitted),
disc.
review denied, 337 N.C. 804, 449 S.E.2d 753 (1994). “[I]nvoluntary
manslaughter is a lesser included offense of murder . . . .”
State
v. Greene, 314 N.C. 649, 652, 336 S.E.2d 87, 89 (1985). “[T]he
trial judge must instruct the jury as to a lesser-included offense
of the crime charged, when there is evidence from which the jury
could find that the defendant committed the lesser offense.”
State
v. Redfern, 291 N.C. 319, 321, 230 S.E.2d 152, 153 (1976),
overruled on other grounds by State v. Collins, 334 N.C. 54, 431
S.E.2d 188 (1993). However, a defendant is not entitled to an
instruction on involuntary manslaughter, as a lesser-included
offense of murder, where all the evidence shows that defendant
“intentionally discharged [a firearm] under circumstances naturally
dangerous to human life.”
Id. at 322, 230 S.E.2d at 154.
Here, all of the evidence tended to show that defendant
intentionally fired the rifle between 10 and 15 times. There is no
evidence that the weapon discharged accidentally. Moreover, few
circumstances are more “naturally dangerous to human life” than
indiscriminately firing a high-powered rifle out the window of a
moving car in the direction of a crowd of people. We hold that
defendant was not entitled to an instruction on involuntary
manslaughter. Accordingly, this assignment of error is rejected.
IV.
Defendant next contends that the trial court erred by
instructing the jury on the doctrine of transferred intent.
Defendant first argues that the evidence did not support an
instruction on transferred intent because the State failed to
identify any particular person defendant intended to harm. We
disagree.
The doctrine of transferred intent applies where one engages
in an affray with another and unintentionally kills a third person.
State v. Locklear, 331 N.C. 239, 245, 415 S.E.2d 726, 730 (1992).
Where this occurs, the actor's conduct toward the victim is
“'interpreted with reference to his intent and conduct towards his
adversary[,]'”
and criminal liability for the third party's death
is determined “'as if the fatal act had caused the death of [the]
adversary.'”
Id. (citation omitted). “'[I]t is immaterial whether
the defendant intended injury to the person actually harmed; if he
in fact acted with the required or elemental intent toward
someone,
that intent suffices as the intent element of the crime charged as
a matter of substantive law.'”
State v. Andrews, 154 N.C. App. 553,
559, 572 S.E.2d 798, 802 (2002)(citation omitted)(emphasis added).
Here, the State's evidence tended to establish that defendant
was involved in an ongoing affray with the two men who pulled the
knife on him inside the club. Although the initial altercation took
place inside the club, defendant continued it by confronting these
same individuals again outside the club sometime later. Druttman
testified that defendant and his friends walked back toward the
club to confront these individuals. Furthermore, although Druttmanwas not paying particular attention to the confrontation, his
testimony indicated that he could hear and see it from his vantage
point on the street adjacent to the club. It is reasonable to
infer, then, that the two men from the club were outside the club
just prior to the shooting. A few minutes after the men declined
defendant's invitation to fight, defendant and his friends returned
to their cars and left driving toward the club, where defendant
opened fire on the crowd that was congregating outside the club.
We conclude the evidence permits a reasonable inference that
defendant was shooting at the two men he had just confronted in
front of the club. We hold that this satisfies the requirement
that defendant act with the requisite intent toward
someone; that
the true identity of that someone is unknown is immaterial where,
as here, the evidence is sufficient to establish that defendant in
fact acted with the necessary intent. Accordingly, this assignment
of error is rejected.
Defendant next argues that by giving the transferred intent
instruction, the trial court lessened the State's burden of proof
as to the element of intent. We disagree. An instruction on the
doctrine of transferred intent that conforms with the pattern jury
instruction, “d[oes] not have the effect of relieving the State of
any part of its burden of persuasion on an essential element;
instead, it merely state[s] the substantive law of this state.”
Locklear, 331 N.C. at 245, 415 S.E.2d at 729. Since the trial
court's instruction here conformed to the pattern jury instruction,
this assignment of error is overruled.
V.
Defendant next contends that the trial court erroneously
instructed the jury regarding the “intent” element of second-degree
murder.
After deliberations began, the jury requested supplemental
instructions on the “intent” element of second-degree murder.
Specifically, the jury inquired as to whether the term
“intentionally killed” was satisfied by intentionally doing the act
that resulted in the death as opposed to specifically intending to
cause the death. The trial judge submitted his proposed
supplemental instruction to both counsel out of the jury's
presence, giving both counsel the opportunity to object to the
proposed instructions and/or request additional instructions.
Defense counsel neither objected nor requested additional
instructions. The trial court gave its supplemental instructions
and the jury recessed for lunch. The trial court again asked
defendant if he wished to be heard on the matter. Defendant
replied: “No.”
Defendant asserts two arguments on appeal. Defendant first
argues that the trial court improperly relied on an annotation to
G.S. § 14-17,
i.e.,
State v. Allen, 77 N.C. App. 142, 334 S.E.2d
410 (1985),
disc. review denied, 316 N.C. 196, 341 S.E.2d 579
(1986), to frame its definition of “intent.” Defendant submits that
the instruction was flawed because the annotation was “incomplete
and did not convey the entire thought and import” of
Allen.
Defendant next argues that the trial court's reference to “anaccidental discharge of a weapon” in its instruction was improper
because it constituted the use of a “hypothetical situation,” that
was unsupported by the evidence before the jury. We conclude
defendant has waived appellate review of this issue.
“A party may not assign as error any portion of the jury
charge or omission therefrom unless he objects thereto before the
jury retires to consider its verdict, stating distinctly that to
which he objects and the grounds of his objection . . . .” N.C.R.
App. P. 10(b)(2). A question not preserved by objection at trial or
not otherwise deemed preserved by rule or law without objection,
may nevertheless “be made the basis of an assignment of error where
the judicial action questioned is specifically and distinctly
contended to amount to plain error.” N.C.R. App. P. 10(c)(4).
Here, defendant failed to object to the trial court's
supplemental instruction or to request additional instructions,
despite being given two separate invitations to do so out of the
jury's presence. Further, defendant does not contend that the trial
court's supplemental instruction amounted to plain error. We hold
defendant has waived appellate review of this issue. Accordingly,
this assignment of error is rejected.
VI.
Defendant's final contention is that the trial court erred by
failing to vacate his conviction of second-degree murder after the
jury returned an “inconsistent” verdict of acquittal with respect
to the charge of assault with a deadly weapon with intent to kill
inflicting serious injury. We disagree. The essential elements of assault with a deadly weapon with
intent to kill inflicting serious injury are “(1) an assault, (2)
with a deadly weapon, (3)
with intent to kill, (4) inflicting
serious injury, (5) not resulting in death.”
State v. Cain, 79 N.C.
App. 35, 46, 338 S.E.2d 898, 905
(emphasis added),
disc. review
denied, 316 N.C. 380, 342 S.E.2d 899 (1986). In contrast,
“'[s]econd-degree murder is an unlawful killing with malice, but
without premeditation and deliberation.'”
State v. Rich, 351 N.C.
386, 395, 527 S.E.2d 299, 304 (2000)(citation omitted). Because
specific “'[i]ntent to kill is not a necessary element of
second-degree murder,'”
id. (citation omitted), we conclude the
verdicts are not inconsistent.
Contrary to defendant's assertion, it was entirely plausible
for the jury in this case to have concluded that although defendant
intentionally and maliciously fired the rifle out the window of
Druttman's car, he did so without specific intent to kill.
Accordingly, we hold the trial court did not err by entering
judgment on the jury's verdicts.
For all the foregoing reasons, we hold defendant received a
fair trial, free from prejudicial error.
No prejudicial error.
Judges TYSON and STEELMAN concur.
Report per Rule 30(e).
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