NO. COA02-1106

STATE OF NORTH CAROLINA

         v.                        Lee County
                                Nos.    00 CRS 52268
REGINALD LEVERNE WILSON                    01 CRS 3866-67
                                    01 CRS 3869-72    < br>

    Appeal by defendant from judgments entered 3 December 2001 by Judge Donald Jacobs in Lee County Superior Court. Heard in the Court of Appeals 2 June 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Marc Bernstein, for the State.

    Nora Henry Hargrove for defendant appellant.

    TYSON, Judge.

    Reginald Leverne Wilson (“defendant”) was found guilty of two counts of attempted murder, three counts of assault with a firearm on a law enforcement official, and one count of possession of a firearm as a convicted felon. The jury acquitted defendant of a third attempted murder charge. The trial court sentenced defendant in the aggravated range to 276 to 341 months of imprisonment for the attempted murder of Lee County Sheriff's Deputy G.C. Whitaker. The court consolidated defendant's remaining offenses in a second judgment, imposing a consecutive presumptive sentence of 180 to 225 months. We find no error.

    At approximately 2:45 a.m. on 14 May 2000, Deputy Whitaker observed a red Ford Escort run a stop sign at the intersection of Elm and Rose Streets in Sanford, North Carolina. Whitaker followed the vehicle and saw it pass through the sheriff's department parking lot, heading north on Elm. Whitaker activated his blue lights and followed the vehicle, which ran a second stop sign before running off the road at the intersection of Elm and Makepeace Streets. Whitaker observed a male exit the vehicle and run toward a nearby carwash. Sergeant Tim Bolduc and Sanford Police Officer David Thornton arrived at the scene to assist Whitaker. As Thornton walked between Whitaker's and Bolduc's patrol cars, several shots were fired from the direction of a field near the carwash. A bullet struck Whitaker's car, “directly at my head on the driver's side window.” Another bullet struck Bolduc's car in the middle of the driver's side door. Bolduc estimated the bullet came within fourteen inches of his head. The officers were unable to locate the gunman.
    Defendant gave a statement to police on 27 May 2000, and identified himself as the driver of the Escort. He claimed he had gone to Wesley Raeford's house after fleeing the vehicle. Raeford told defendant, “Come on. We're going to get your car back[,]” and they walked back toward the carwash. Defendant saw a .38 caliber handgun in Raeford's hand. Raeford shot at the officers before running into some woods. Defendant returned to Raeford's house and called Yolanda Brown, who drove him home.
    Defendant gave a second statement to police on 6 June 2001,admitting that he had a Lawrence .380 caliber handgun in the Escort, which he took with him to Raeford's house. Both he and Raeford were carrying guns when they went to retrieve his car. Defendant described the shooting as follows: “I shot twice toward the police officers at Elm Street and Makepeace where my car was. I was shooting the gun I brought with me. Wesley Raeford was also shooting.” He left Raeford's house in the trunk of Brown's car. After signing his statement, defendant turned his handgun over to police. Defendant offered no evidence to rebut the State's proffer.

    On appeal, defendant contends: (1) the court's jury instruction on flight improperly allowed the jury to consider his flight from the scene as evidence of premeditation and deliberation, (2) the trial court erred in denying his motion for a mistrial, and (3) the trial court's entry of judgment for both attempted murder and assault with a firearm on a law enforcement officer based upon a single act violates double jeopardy.

    Defendant offered no objection to either the flight instruction or the instruction on premeditation and deliberation. We review only for plain error. See State v. Gray, 347 N.C. 143, 167, 491 S.E.2d 538, 547 (1997) (citing State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1988)), cert. denied, 523 U.S. 1031, 140 L. Ed. 2d 486 (1998), overruled on other grounds, State v. Long, 354 N.C. 534, 557 S.E.2d 89 (2001); N.C.R. App. P. 10(b)(2), (c)(4)(2002).
    The trial court instructed the jury on flight as follows:
        Evidence of flight may be considered by you, together with all other facts and circumstances in this case, in determining whether the combined circumstances amount to an admission or show a consciousness of guilt; however, proof of this circumstance is not sufficient in itself to establish the defendant's guilt.

The court subsequently gave the following instruction on premeditation and deliberation, which are elements of the crime of attempted murder:
        Neither premeditation nor deliberation are usually susceptible of direct proof. They may be proved by circumstances from which they may be inferred, such as lack of provocation by the victim, conduct of the defendant before, during and after the attempted killing, declarations of the defendant, and the manner or means by which the killing was attempted.
Defendant claims that the court's failure to specifically instruct the jury that flight could not be used to establish premeditation or deliberation improperly relieved the State of its burden of proving these elements beyond a reasonable doubt.
    The North Carolina Supreme Court addressed an identical circumstance in State v. Gray. In Gray, the trial court instructed the jury on flight as set forth above, omitting language from the pattern instruction which admonished the jury not to consider the defendant's flight as evidence of premeditation and deliberation. Id. at 167, 491 S.E.2d at 546-47 (citing State v. Bolin, 281 N.C. 415, 425, 189 S.E.2d 235, 242 (1972)). Our Supreme Court concluded that this omission did not constitute plain error:        . . . [W]e note that the court did not say the jury could consider evidence of flight as evidence of premeditation and deliberation. It charged the jury that it could consider it as showing a consciousness of guilt, which is a correct statement of the law. It is speculative as to whether the jury took this to mean it could consider this as evidence of premeditation and deliberation. We cannot hold this was plain error.

Id. at 167-68, 491 S.E.2d at 547. As the challenged instruction and standard of review here are indistinguishable from those in Gray, defendant's assignment of error is overruled.
    Defendant assigns error to the trial court's denial of his motion for a mistrial after a member of the jury venire, Barbara Wilson, revealed that her law firm was representing defendant in another criminal matter. The transcript records the following exchange:
        [PROSECUTOR]: Ms. Wilson, I understand that you related to the judge this morning that you had gone back and checked the records at your office to determine whether or not your office has been involved in representing the defendant and his family before.

        MS. WILSON: Yes.

        [PROSECUTOR]: And what did you find out in regards to that?

        MS. WILSON: That we have represented Mrs. Walker, the mother. We have represented the defendant in the past, and we're currently -- our office is currently representing him.

        [PROSECUTOR]: And what type of action is your office currently involved in representing the defendant in?

        MS. WILSON: I know it's just criminal. I don't know specifically. I didn't talk to anybody. I just did that on my own.
Wilson further stated that her office's ongoing representation of defendant would interfere with her ability to serve as a juror. The trial court allowed the State to strike Wilson for cause.
    The trial court instructed the members of the venire to disregard Wilson's statements. The court twice asked if they could disregard the information and decide the case based only on the evidence adduced at trial. The jurors all indicated to that they could disregard Wilson's statements, and the court denied defendant's request for a mistrial.
    In assigning error to the court's ruling, defendant insists that prejudicial effects of Wilson's statement could not be remedied by the court's curative instruction. He suggests the jurors were left to “wonder[] what [defendant] did that was so bad that [Wilson] had to get off of the jury.” Defendant further claims the trial court's action denied his constitutional rights to due process, to remain silent, and to confront his accusers. Because he did not raise his constitutional objections in the trial court, however, he has not preserved them for appeal. See State v. Hunter, 305 N.C. 106, 112, 286 S.E.2d 535, 539 (1982).
    "[A] mistrial is appropriate only when there are such serious improprieties as would make it impossible to attain a fair and impartial verdict under the law." State v. Calloway, 305 N.C. 747, 754, 291 S.E.2d 622, 627 (1982); see also N.C. Gen. Stat. § 15A-1061 (2001). The decision to grant or deny a mistrial is within the province of the trial judge and is reviewed only for abuse of discretion. See State v. McNeill, 349 N.C. 634, 646, 509S.E.2d 415, 422-23 (1998), cert. denied, 528 U.S. 838, 145 L. Ed. 2d 87 (1999). Our courts have emphasized that a trial judge's ruling on this issue “is entitled to great deference since he is in a far better position than an appellate court to determine the effect of any such error on the jury.” State v. Thomas, 350 N.C. 315, 341, 514 S.E.2d 486, 502 (citing State v. King, 343 N.C. 29, 44, 468 S.E.2d 232, 242 (1996)), cert. denied, 528 U.S. 1006, 145 L. Ed. 2d 388 (1999). Moreover, “when the trial court withdraws incompetent evidence and instructs the jury not to consider it, any prejudice is ordinarily cured.” State v. King, 343 N.C. at 44, 468 S.E.2d at 242.
    In Thomas, a defendant charged with armed robbery and other serious felonies moved for a mistrial after a police officer improperly alluded on cross-examination to an unrelated armed robbery charge against defendant. Thomas, 350 N.C. at 341, 514 S.E.2d at 502. “[T]he trial court sustained defendant's objection, allowed his motion to strike, and instructed the jury to disregard the statement.” Id. at 341, 514 S.E.2d at 503. Finding these actions sufficient to cure any prejudice to the defendant, the Supreme Court upheld the denial of a mistrial. Id. (citing State v. Bowie, 340 N.C. 199, 209, 456 S.E.2d 771, 776, cert. denied, 516 U.S. 994, 133 L. Ed. 2d 435 (1995)).
    As in Thomas, we find no abuse of discretion by the trial court. The court instructed the members of the venire not to consider Wilson's statements. Moreover, the court twice confirmed that the members of the venire could decide the case based on theevidence without regard to Wilson's statement. We note that Wilson professed to know nothing about her firm's representation of defendant except that it involved a criminal matter of some kind. She did not state that defendant had been indicted for another offense, merely that he had obtained representation. Under these circumstances, the trial court's response was sufficient to dispel any prejudice arising from her disclosure. This assignment of error is overruled.

    In his remaining argument, defendant challenges on double jeopardy grounds the trial court's entry of judgment for both attempted murder and assault with a firearm on a law enforcement officer based upon a single act. Defendant concedes that his position is contrary to existing law, but insists that the current state of double jeopardy jurisprudence violates the constitutional principle of separation of powers. Defendant did not assert his double jeopardy or separation of powers claims below, and has not preserved these issues for appellate review. See State v. Fernandez, 346 N.C. 1, 18, 484 S.E.2d 350, 361 (1997). We review this assignment of error in the interest of justice, pursuant to Rule 2 of the North Carolina Rules of Appellate Procedure.
    It is well established that "[w]hen the same act or transaction constitutes a violation of two criminal statutes, the test to determine whether there are two separate offenses [for purposes of double jeopardy] is whether each statute requires proof of a fact which the other does not." State v. Haynesworth, 146N.C. App. 523, 530-31, 553 S.E.2d 103, 109 (2001) (citing Blockburger v. United States, 284 U.S. 299, 304, 76 L. Ed. 306, 309 (1932)). Inasmuch as the North Carolina Supreme Court has adopted the Blockburger test, see, e.g., Fernandez, 346 N.C. at 19, 484 S.E.2d at 361, we are bound by this methodology despite defendant's objections.
    Defendant was convicted of both assault with a firearm on a law enforcement officer and attempted murder for firing a handgun at a police officer. The essential elements of assault with a firearm on a law enforcement officer are “(1) an assault; (2) with a firearm; (3) on a law enforcement officer; (4) while the officer is engaged in the performance of his or her duties.” Haynesworth, 146 N.C. App. at 530-31, 553 S.E.2d at 109 (citing N.C. Gen. Stat. § 14-34.5 (2001)). The elements of attempted first-degree murder are (1) a specific intent to kill another person unlawfully; (2) an overt act in furtherance of that intent which goes beyond mere preparation but falls short of murder; and (3) the commission of this overt act with malice, premeditation, and deliberation. See State v. Cozart, 131 N.C. App. 199, 202-03, 505 S.E.2d 906, 909 (1998), disc. rev. denied, 350 N.C. 311, 534 S.E.2d 600 (1999). Because “[e]ach offense requires proof of specific and distinct elements not required to be proved for conviction of the other” defendant was not subjected to double jeopardy. Haynesworth, 146 N.C. App. at 531, 553 S.E.2d at 109. This assignment of error is overruled.
    We hold that defendant received a fair trial free from the errors he assigned and argued. The record on appeal contains additional assignments of error not addressed in defendant's brief to this Court. Pursuant to N.C.R. App. P. 28(a), we deem them abandoned.
    No error.
    Judges WYNN and STEELMAN concur.
    Report per Rule 30(e).

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