An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA 03-513


Filed: 20 April 2004


v .                         Wake County
                            No. 98 CRS 102393-94

    Appeal by defendant from judgments dated 1 August 2000 by Judge James C. Spencer in Superior Court, Wake County. Heard in the Court of Appeals 3 February 2004.

    Attorney General Roy Cooper, by Special Deputy Attorney General John F. Maddrey, for the State.

    John T. Hall for defendant-appellant.

    McGEE, Judge.

    Keith Tyrone Heyward (defendant) was convicted on 27 July 2000 of two counts of first degree murder. The trial court sentenced defendant to two consecutive sentences of life in prison without parole. Defendant appeals.
    The evidence at trial tended to show that defendant was in a rental vehicle in Raleigh, North Carolina with Roy Fenner (Fenner) and Barry McClinton (McClinton) on the evening of 12 November 1998. Defendant had been involved in previous business dealings with McClinton. Defendant indicated he was going to "take care" of McClinton because defendant was frustrated that the vehicle that had been rented in defendant's name had not been returned to Alamo Car Rental. While seated in the back of the vehicle, defendantshot both Fenner and McClinton, each in the back of the head. Defendant left the vehicle and then returned several minutes later to retrieve a bag he had left behind.
    Lisa Ann Becon testified that she saw the rental vehicle across the street from her residence and heard two shots. She also saw a man exit the passenger side of the vehicle and return "no more than fifteen minutes" later to retrieve "what looked like a bag." However, she could not identify defendant as the man she saw leave the vehicle.
    Bruce Womack (Womack) testified as follows. Womack talked with defendant while they were both incarcerated in the Wake County jail. Womack testified that defendant said a dispute arose over McClinton's refusal to return the rental vehicle. Defendant told Womack that he was concerned about the "illegal stuff" that McClinton and Fenner were doing in the vehicle. Defendant admitted to Womack that he shot McClinton and Fenner in the back of the head. Defendant also explained to Womack how he planned to cover up the murders. Defendant told Womack he believed there were two people in the area when the shots were fired, but that defendant believed they would make unreliable witnesses because defendant thought they were intoxicated at the time. Defendant told Womack he was concerned about Rhonda Louise Mack (Mack), the mother of his child. Defendant stated that Mack had initially given a truthful statement to the police. However, defendant had threatened Mack so that she would change her story. Defendant also told Womack that the weapon defendant had used was a .38 caliber revolver owned byMack. Defendant told Womack that he attempted to clean the weapon and "threw it in some water" to prevent the police from finding it.
    Mack testified there was a dispute about the return of the rental vehicle and defendant was upset. Defendant made continuing efforts to get McClinton to return the rental vehicle. Mack said defendant was also upset about a carpet cleaning venture he was involved in with McClinton. Defendant discovered that his pager number had been removed from a company advertisement and he viewed this as an attempt by McClinton to exclude defendant from the business. Mack testified that her gun, a .38 caliber revolver, was missing on the day of the shooting, but was later returned. Mack stated that the gun smelled as if it had been recently fired. Mack testified that defendant arrived at their home at approximately 7:45 p.m. on the day of the shooting. However, defendant told Mack to tell anyone who asked that he had been home since 6:30 p.m. that evening. Mack testified that the day after the shooting, she also saw defendant dismantle the barrel of her gun and clean it. Mack later saw defendant dispose of part of the gun near a Winn-Dixie grocery store.
Both Womack and Mack admitted they had agreements with the State regarding their truthful testimony against defendant. Womack had entered into an agreement in which the State agreed to write a letter to the U.S. Attorney to make him aware of Womack's cooperation in the case against defendant. Mack had been charged with accessory after the fact to murder for giving police false information. Mack had signed a plea agreement in which the Stateagreed her testimony against defendant would be a mitigating factor in her sentencing.
    Mike Grissom of the City-County Bureau of Identification (CCBI) testified he found the "frame of a revolver" in a storm drain about fifty to sixty yards from a grocery store.
    Taxi driver Janet Thorp (Thorp) testified that on 12 November 1998, she picked defendant up "between 6:30 or a little bit after seven" on South Fisher Street in Raleigh. Thorp also testified that she saw McClinton and Fenner "in a nice white van" near the cab stand either the day of the shootings, or the day before.
    Eugene Bishop (Bishop), an expert in forensic firearms identification and tool mark identification, testified that he "took parts of another gun and put [them] to this [revolver frame] to make it work." Bishop testified that he "test-fired" the reconstructed weapon and compared the test bullets to those found in McClinton and Fenner. Although the test bullets and the bullets found in McClinton and Fenner "had the same rifling characteristics and some microscopic similarities," Bishop could not determine whether the bullets were fired from the same gun.
    Defendant's evidence included the testimony of William Caufman, a fellow inmate of defendant and Womack, who testified that he never heard defendant discuss defendant's case with Womack. Defendant re-called one of the State's witnesses, a retired CCBI officer, who testified that the bag defendant had with him the night of the murders tested negative for the presence of blood.

    In defendant's assignments of error numbers five and six, he argues that the trial court committed plain error by failing to dismiss the charges against him in the short-form indictments. He specifically argues that usage of the short-form indictment violated his right to due process. We note that our Supreme Court has applied plain error review only to erroneous jury instructions and admissibility of evidence. See State v. Atkins, 349 N.C. 62, 81, 505 S.E.2d 97, 109-10 (1998), cert. denied, 526 U.S. 1147, 143 L. Ed. 2d 1036 (1999). In the case before us, defendant incorrectly argues that plain error should be applied to the usage of the short-form indictment.
    Even if this Court were to review these assignments of error under plain error review, the usage of short-form indictments has been upheld by the North Carolina Supreme Court, as acknowledged by defendant. State v. Mitchell, 353 N.C. 309, 328-29, 543 S.E.2d 830, 842, cert. denied, 534 U.S. 1000, 151 L. Ed. 2d 389 (2001). In Mitchell, our Supreme Court held that "the short-form indictment alleges all necessary elements of first-degree murder, is sufficient to indict on any theory of murder, . . . and need not allege aggravating circumstances[.]" Id. (citations omitted). Defendant's reliance on United States Supreme Court cases is also misplaced. In applying the United States Supreme Court cases, the North Carolina Supreme Court has stated that the short-form indictment procedure satisfies the due process clause in both the North Carolina Constitution and the United States Constitution.
        While the Court held a defendant must be madeaware of the "nature and cause" of the charge against him and the "essential particulars of the offence," the holding does not require every element of an offense or every fact which might increase the maximum punishment to be charged in an indictment.

State v. Wallace, 351 N.C. 481, 507, 528 S.E.2d 326, 343, cert. denied, 531 U.S. 1018, 148 L. Ed. 2d 498 (2000). This case and its progeny stand for the proposition that short-form indictments for offenses are appropriate and place a defendant on sufficient notice of the charges against the defendant. Accordingly, these assignments of error are without merit.

    Defendant next argues in assignment of error number four that the trial court committed plain error when it allowed the testimony of Womack, a jail house informant. According to defendant, Womack was acting on behalf of the State and the State "bribed" Womack in order to obtain his cooperation in the prosecution of defendant. Defendant states the following in his brief:
        Mr. Heyward acknowledges that his trial counsel did not challenge Womack's testimony as the product of possible bribery at trial and nothing was done on his behalf to argue such a position during trial in order to preserve the error, to bring it to the attention of the trial court or to preserve the defendant's constitutional rights.

The alleged bribe was a letter the State agreed to write to the U.S. Attorney on behalf of Womack to inform the U.S. Attorney of Womack's substantial cooperation.
    Defendant's argument is rejected for two reasons. First, defendant argues Womack was a "public official" within the meaningof the bribery statutes, merely because Womack listened to defendant's incriminating statements. However, to be an agent of the State, an informant must actively seek information, not simply listen as another prisoner is talking. State v. Taylor, 332 N.C. 372, 382, 420 S.E.2d 414, 420 (1992) (citing Kuhlmann v. Wilson, 477 U.S. 436, 459, 91 L. Ed. 2d 364, 384-85 (1986)). Secondly, the State's agreement to write a letter to the U.S. Attorney is an activity that clearly falls within N.C. Gen. Stat. . 15A-1054. This statute provides in pertinent part that "a prosecutor, when the interest of justice requires, may exercise his discretion . . . to agree to recommend sentence concessions, upon the understanding or agreement that the suspect will provide truthful testimony in one or more criminal proceedings." N.C. Gen. Stat. § 15A-1054(a) (2003).
    The United States Supreme Court and the North Carolina Supreme Court have addressed factual situations that give rise to an informant acting as an agent of the State. "[T]he defendant 'must demonstrate that the police and their informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks.'" Taylor, 332 N.C. at 382, 420 S.E.2d at 420. In Taylor, the North Carolina Supreme Court found that because the informant had not been deliberately placed in the cell next to the defendant and the evidence tended to show that the statements were voluntarily made, the informant was not an agent of the State. Id. at 383, 420 S.E.2d at 420-21. Similarly, in this case, Womack testified that he and defendant voluntarily discussedtheir respective charges. With nothing more than mere listening, Womack was not acting as a "public official" or an agent of the State.     Further, the evidence established that Womack was not "bribed," but was promised only that a letter would be written on his behalf to inform the U.S. Attorney of Womack's cooperation in the case against defendant.
     Pursuant to N.C. Gen. Stat. . 15A-1054(c), the State may use its discretion to engage in such agreements with witnesses as long as the agreement is properly disclosed. N.C. Gen. Stat. 15A- 1054(c) (2003). The agreement between the State and Womack was presented to the trial court and to the jury. The trial court acted properly in admitting the evidence and the jury weighed its credibility. Thus, this assignment of error is overruled.

    In defendant's assignments of error numbers one, two and three, he argues the trial court erred when it refused to grant his motion to dismiss the charges.
            "Upon defendant's motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense. If so, the motion is properly denied.

            If the evidence is sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the defendant as the perpetrator of it, the motion should be allowed."

State v. Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002)(quoting State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980) (citations omitted)).
    Defendant's primary contention is that the State's case was not proven because the State relied on the testimony of Womack and Mack to prove its case. Defendant argues that because both Womack and Mack had sentencing arrangements with the State in exchange for their testimony, their testimony was inherently unreliable and should not have been admitted. First, as previously discussed, the sentencing arrangements that were made were proper pursuant to N.C. Gen. Stat. § 15A-1054. "It is well established that the credibility, probative force, and weight of testimony are matters for the jury to decide." State v. Ledford, 41 N.C. App. 213, 222, 254 S.E.2d 780, 785 (1979). Based on the testimony of Womack and Mack, and other corroborating evidence presented by the State, there was substantial evidence of each essential element of the first degree murder charges. Mack's testimony established premeditation and deliberation. She testified that defendant stated he was "going to get" McClinton, and that defendant and McClinton had an ongoing dispute over the return of the rental vehicle. Further, Mack testified that she saw defendant cleaning her .38 caliber gun and later saw defendant attempting to destroy the gun. The forensic evidence established that the test bullets fired from the reconstructed gun "had the same rifling characteristics and some microscopic similarities" as the bullets found in McClinton and Fenner. Also, Womack testified that defendant voluntarily discussed the murders with Womack. Thus, theevidence included an established motive, the weapon that was likely used, and a confession by defendant to Womack. Assignments of error one, two and three have no merit.
    No error.
    Judges WYNN and TYSON concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***