STATE OF NORTH CAROLINA
Appeal by defendant from judgments entered 14 August 2002 by
Judge Gregory A. Weeks in Cumberland County Superior Court. Heard
in the Court of Appeals 18 May 2004.
Attorney General Roy Cooper, by Assistant Attorney General
Daniel P. O'Brien, for the State.
Margaret Creasy Ciardella, for defendant-appellant.
CALABRIA, Judge.
Carlton Lamont Davis (“defendant”) appeals judgments entered
on jury verdicts finding him guilty of first-degree murder under
the felony murder rule, attempted robbery with a dangerous weapon,
and conspiracy to commit robbery with a dangerous weapon. We find
no error.
The State's evidence adduced at trial tended to show the
following: on or about 26 November 2000, defendant and Donnell
Bratcher (“Bratcher”), who was armed, went to the residence of
Sherman Holliday (the “victim”) in an attempt to rob him. The
robbery attempt failed when the victim slammed the door ondefendant and Bratcher, catching the latter's arm in the door and
causing him to lose his gun.
Later, the victim showed up at the house of Eric Robinson
(“Robinson”), defendant's half-brother. When Robinson, Bratcher,
and defendant met the victim outside, the victim asked them if they
“want[ed] to play” and left. Robinson was concerned about the
possibility of “trouble” and warned Bratcher and defendant that
they “can't be bringing [any] drama around [his] mom['s] house.”
Following the confrontation, defendant met with Jerome Thomas
(“Thomas”) and related the events of the failed robbery.
Defendant stated he wanted to go back but needed another gun.
Thomas agreed to get defendant another gun and accompanied him to
Robinson's house later that night after procuring a gun. While at
Robinson's house, Thomas understood that defendant intended to go
to the victim's house a second time to again attempt a robbery.
Armed with two handguns, defendant, Robinson, Bratcher, and Thomas
discussed their respective roles in the robbery attempt and left
Robinson's house.
On the way to the victim's house, Robinson and Thomas changed
their minds with respect to their role in the robbery but,
nonetheless, continued on with Bratcher and defendant and remained
outside while they broke into the victim's house. After waiting
outside approximately ten minutes, Robinson and Thomas heard
gunshots and fled back to Robinson's house. Later, they were
joined by defendant and Bratcher, who had injuries to his head and
hand. Bratcher explained his injuries resulted from fighting withthe victim and breaking a window to flee from the victim's house.
Nothing was taken from the victim's house. Investigating officers
subsequently found the victim in the house. Medical treatment was
unsuccessful, and an autopsy revealed the victim died from a single
gunshot wound to the chest.
Following an investigation, defendant was arrested and
indicted for first-degree murder, first-degree burglary, robbery
with a dangerous weapon, and conspiracy to commit robbery with a
dangerous weapon. Defendant filed motions to dismiss the
indictment, for a bill of particulars, and for disclosure of the
theory upon which the State would seek a conviction of first-degree
murder. These motions were denied by the trial court, the case
proceeded to trial, and, after the State rested its case-in-chief,
the defendant elected not to present evidence.
At the close of all the evidence, defendant moved for a
dismissal of all charges on grounds of sufficiency of the evidence.
The trial court denied defendant's motions. The jury found
defendant guilty of first-degree murder under the felony murder
rule based upon robbery with a dangerous weapon, attempted robbery
with a dangerous weapon, and conspiracy to commit robbery with a
dangerous weapon but acquitted him of first-degree burglary. The
jury recommended a sentence of life imprisonment without parole.
The trial court entered judgment of life imprisonment without
parole on the first-degree murder conviction and a concurrent
sentence of 23 to 37 months' imprisonment for the conspiracy to
commit robbery with a dangerous weapon conviction but arrestedjudgment as to attempted robbery with a dangerous weapon.
Defendant appealed.
On appeal, defendant asserts the trial court erred in (I)
denying defendant's motions regarding the first-degree murder
indictment, (II) admitting hearsay evidence concerning what
defendant's co-conspirators said, and (III) denying defendant's
motion to dismiss the charges based on sufficiency of the evidence.
We find no error.
I. Indictment for First-Degree Murder
In his first assignment of error, defendant asserts the trial
court erred by denying his motions regarding the indictment for
first-degree murder and by submitting a charge to the jury that the
indictment was insufficient to support. Specifically, defendant
argues the “indictment against defendant failed to allege all of
the elements of first degree murder in that it failed to specify
what felony or felonies supported felony murder.” We disagree.
Defendant was tried for first-degree murder based on a
short-form murder indictment. Our Supreme Court “has consistently
held that the short-form first-degree murder indictment serves to
give a defendant sufficient notice of the nature and cause of the
charges against him or her.” State v. Squires, 357 N.C. 529, 537,
591 S.E.2d 837, 842 (2003), cert. denied, ___ U.S. ___, 159 L. Ed.
2d 252 (2004). Moreover, where an “indictment . . . complies with
the short-form indictment authorized by [N.C. Gen. Stat. §]
15-144[,] [it] is . . . sufficient to charge first degree murder
without specifically alleging premeditation and deliberation orfelony murder.” State v. Avery, 315 N.C. 1, 14, 337 S.E.2d 786,
793 (1985). Finally,
[t]he State is not required at any time to
elect a theory upon which it will proceed
against the defendant on the charge of first
degree murder, and it is proper for the trial
court to submit the issue of the defendant's
guilt to the jury on each of the theories of
first degree murder supported by substantial
evidence presented at trial.
State v. Clark, 325 N.C. 677, 684, 386 S.E.2d 191, 195 (1989).
With these principles in mind, it is clear the indictment in
the present case was sufficient to charge defendant with first-
degree murder despite that it did not disclose the specific felony
upon which the prosecution intended to rely. Such information is
not required by N.C. Gen. Stat. § 15-144, and according to our
Supreme Court, a short-form murder indictment need not even specify
that felony murder is the basis upon which the State intends to
proceed; therefore, it follows that disclosure of which felony will
be the predicate under the felony murder rule is likewise not
required.
To the extent defendant desired more precise information than
that provided by the short-form indictment properly drawn under
N.C. Gen. Stat. § 15-144, defendant could and did apply for a bill
of particulars addressed to the discretion of the trial court.
However, no argument has been presented on appeal that the trial
court abused its discretion in denying defendant's motion.
Accordingly, that assignment of error is abandoned. N.C. R. App.
P. 28(b)(6) (2004).
II. Hearsay Defendant's second assignment of error challenges as
inadmissible hearsay a number of statements which the trial court
admitted into evidence. Hearsay is defined as “a statement, other
than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter
asserted.” N.C. Gen. Stat. § 8C-1, Rule 801(c) (2003). While
hearsay is not generally admissible into evidence, see N.C. Gen.
Stat. § 8C-1, Rule 802 (2003), “a statement by a coconspirator [of
the party against which it is offered] during the course and in
furtherance of the conspiracy” is an exception to the general
hearsay rule and is admissible. N.C. Gen. Stat. § 801(d)(E)
(2003). Recently, our Supreme Court explained
[a]dmission of a conspirator's statement into
evidence against a co-conspirator requires the
State to establish that: (1) a conspiracy
existed; (2) the acts or declarations were
made by a party to it and in pursuance of its
objectives; and (3) while it was active, that
is, after it was formed and before it ended.
Proponents of a hearsay statement under the
co-conspirator exception must establish a
prima facie case of conspiracy, without
reliance on the statement at issue. In
establishing the prima facie case, the State
is granted wide latitude, and the evidence is
viewed in a light most favorable to the State.
State v. Valentine, 357 N.C. 512, 521, 591 S.E.2d 846, 854 (2003)
(internal citations and quotation marks omitted).
“A criminal conspiracy is an agreement between two or more
persons to do an unlawful act or to do a lawful act by unlawful
means.” State v. Lamb, 342 N.C. 151, 155, 463 S.E.2d 189, 191
(1995). It “continues until [it] is accomplished or abandoned.”
State v. Grady, 136 N.C. App. 394, 400, 524 S.E.2d 75, 79 (2000)(citing State v. Fink, 92 N.C. App. 523, 375 S.E.2d 303 (1989)).
Our Supreme Court has recognized the “inherent difficulty” in
establishing a criminal conspiracy. Valentine, 357 N.C. at 522,
591 S.E.2d at 855. Thus, direct proof is not required; rather,
conspiracy “may be, and generally is, established by a number of
indefinite acts, each of which, standing alone, might have little
weight, but, taken collectively, they point unerringly to the
existence of a conspiracy.” Id. (citation omitted).
In the instant case, Thomas testified, without objection, that
he met defendant at his sister's house on 28 November 2000. While
there, defendant stated he “and his cousin . . . went to [the
victim's] house, and tried to rob him, but [the victim] had slammed
the door in [their] face so [defendant] was telling me . . . he
need[ed] another gun to go back over there because he wanted --
they wanted to go back over there because [the victim] had some
money.” Thomas further stated defendant asked “if there[] [was]
any possible way [Thomas] could get [a gun],” and Thomas agreed to
try. After Thomas procured a gun, he, defendant, and Bratcher met
Robinson at his house. Thomas affirmed his understanding “from
talking with [defendant] that it was [defendant's] intention to go
to the [victim's] house a second time” for the purpose of
“rob[bing] him.” We find this testimony, in the light most
favorable to the State, constitutes a prima facie showing of the
existence of a conspiracy between Thomas, Bratcher, Robinson, and
defendant. Defendant argues the trial court erred in admitting Robinson's
testimony prior to the State establishing a prima facie case of
conspiracy. However, this Court has previously stated that “[t]he
judge, in his discretionary authority over the presentation of
evidence, may admit the statements subject to a later showing of
conspiracy.” Fink, 92 N.C. App. at 530, 375 S.E.2d at 307
(emphasis added). Accordingly, this argument is without merit.
Defendant also asserts the trial court erroneously allowed the
testimony by Robinson and Thomas because they ceased to be co-
conspirators when they “abandoned any plan to commit robbery” and
“informed the others that [they] were not participating” when all
four arrived at the victim's house immediately prior to defendant
and Bratcher's entry. We disagree. Just as the conspiracy
continues until abandoned, see Valentine, 357 N.C. at 521, 591
S.E.2d at 854; State v. Conrad, 275 N.C. 342, 348, 168 S.E.2d 39,
43 (1969), it follows that statements made during the conspiracy
and before it is abandoned remain admissible under the hearsay
exception. Thus, assuming arguendo, Robinson and Thomas abandoned
the conspiracy immediately prior to defendant's entry into the
victim's house, that would only affect challenged statements
occurring after the purported abandonment. We now turn to the
specific portions of testimony defendant asserts were improperly
admitted.
Defendant challenges Robinson's testimony that Bratcher and
defendant told him they were “going over to [the victim's] house”
the day of the first, failed robbery attempt. Defendant alsochallenges Detective McLamb's testimony that both Robinson and
Thomas had previously denied involvement in the victim's murder
during his investigation. The transcript reveals, however, that
defendant failed to object to either of these portions of
testimony, and, moreover, defendant has failed to assert on appeal
that the trial court committed plain error. “[A]s defendant has
not alleged plain error in his arguments to this Court, he has
waived appellate review of these issues on such grounds.” State v.
Thibodeaux, 352 N.C. 570, 582, 532 S.E.2d 797, 806 (2000) (citing
N.C. R. App. P. 10(c)(4)).
The third portion of testimony defendant challenges on appeal
is Thomas' testimony concerning what Bratcher told Thomas “about
th[e] plan to go to the [victim's] house” while they were at
Robinson's house prior to the second robbery attempt. Defendant
objected, asked the trial court to “note [his] objection for the
record,” and stated he understood the trial court was “ruling [the
statement was] by a co-conspirator.” We have already considered
and rejected defendant's contention that the statements did not
properly fit within the co-conspirator exception to the hearsay
rule; accordingly, the trial court properly overruled defendant's
objection.
Defendant challenges Thomas' testimony of Bratcher's
explanation that the injuries to his head and hand resulted from an
altercation between himself and the victim during the second
robbery attempt and his punching out a window in fleeing from the
victim's house. Presupposing Thomas had abandoned the conspiracywhen Bratcher made the challenged statements, defendant has failed
to show how testimony concerning the victim's aggression and
combativeness or testimony concerning Bratcher's flight from the
victim's house prejudiced him. See N.C. Gen. Stat. § 15A-1443(a)
(2003).
Defendant's final hearsay challenge relates to a statement
given by Robinson to Detective McLamb on 3 January 2002. At trial,
the State inquired of Detective McLamb as to what Robinson said to
him during the course of the interview in which he took Robinson's
statement. Defendant objected and stated he “knew that [the State]
asked for statements as to corroboration. And my concern is that
there's other things in that statement that are not corroboration.”
After excusing the jury from the courtroom, the trial court,
defendant, and the State engaged in a lengthy conference over
twenty-five transcript pages regarding defendant's stated concern.
The trial court's precautions included having the court reporter
print various portions of prior testimony in order to resolve any
conflicts upon which the State and defendant could not otherwise
agree. The transcript clarifies the trial court's detailed
discussion with defendant fully resolved his challenge to each
portion of the statement. As a result, nothing remained in
contention regarding the redacted statement. Indeed, the
following exchange took place:
THE COURT: Okay. Are we ready to go
otherwise?
[DEFENSE COUNSEL]: Yes, your Honor.
THE COURT: Any other matters we need to
address?
(No response.) [DEFENSE COUNSEL]: Um, no your Honor.
. . .
[DEFENSE COUNSEL]: We would just ask for the
corroboration instruction.
Pursuant to defendant's request, the trial court recalled the jury
to the courtroom and instructed them to listen to the statement to
be read by Detective McLamb being offered for corroborative
purposes only. Thereafter, Detective McLamb read the redacted
statement without objection by defendant. Moreover, defendant has
failed to argue the trial court committed plain error in allowing
Detective McLamb to read the statement into evidence. Accordingly,
defendant has waived his right to review of this issue. See
Thibodeaux, 352 N.C. at 582, 532 S.E.2d at 806.
III. Motion to Dismiss
In his last assignment of error, defendant asserts the trial
court erred in denying his motion to dismiss the charges of first-
degree murder and conspiracy to commit robbery with a dangerous
weapon on the grounds of sufficiency of the evidence. “In
determining the sufficiency of the evidence to withstand a motion
to dismiss and to be submitted to the jury, the trial court must
determine '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.'” Squires, 357 N.C. at 535, 591 S.E.2d at 841
(quoting State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117
(1980)). “Substantial evidence is such relevant evidence as is
necessary to persuade a rational juror to accept a conclusion.”
Id. “The trial court must review the evidence in the light mostfavorable to the State, giving the State the benefit of every
reasonable inference to be drawn therefrom.” Id.
A. First-Degree Murder
Defendant first argues the trial court should have granted his
motion to dismiss the first-degree murder charge under the felony
murder rule premised on the underlying felony of robbery with a
dangerous weapon. Specifically, defendant contends a “review of
the record clearly shows that there [was] no evidence to support
the submission of armed robbery to the jury [because the] State
presented no evidence that anything was taken from the [victim's]
house.”
North Carolina General Statutes § 14-87 (2003) provides as
follows:
Any person or persons who, having in
possession or with the use or threatened use
of any firearms or other dangerous weapon,
implement or means, whereby the life of a
person is endangered or threatened, unlawfully
takes or attempts to take personal property
from another . . . shall be guilty of a Class
D felony.
(Emphasis added). The essential elements of robbery with a
dangerous weapon are: “(1) an unlawful taking or an attempt to take
personal property from the person or in the presence of another,
(2) by use or threatened use of a firearm or other dangerous
weapon, (3) whereby the life of a person is endangered or
threatened.” State v. Call, 349 N.C. 382, 417, 508 S.E.2d 496, 518
(1998) (emphasis added).
Whether denominated robbery with a dangerous weapon or
attempted robbery with a dangerous weapon is, for purposes of N.C.Gen. Stat. § 14-87, a distinction without a difference in this
case. See State v. Parker, 262 N.C. 679, 682-84, 138 S.E.2d 496,
499-500 (1964), overruled on other grounds, State v. Hurst, 320
N.C. 589, 359 S.E.2d 776 (1987) (observing that the measure of
profit to the offender “is not of controlling consequence,” but,
rather, the offense is complete when there is an attempt to take
property by means of a dangerous weapon endangering or threatening
life). Moreover, the trial court instructed the jury that “to find
defendant guilty of first degree murder under the first degree
felony murder rule, the state must prove . . . that the defendant
. . . attempted to commit the offense of robbery with a dangerous
weapon.” This assignment of error is overruled as it relates to
the submission to the jury of the charge of first-degree murder.
B. Conspiracy
Finally, defendant argues the trial court erred in denying his
motion to dismiss the charge of conspiracy to commit robbery with
a dangerous weapon. In support of this argument, defendant
contends (1) there was no evidence anything was taken from the
victim's house and (2) “but for the trial court's erroneous
admission of the inadmissible hearsay testimony of [Thomas and
Detective McLamb] . . . there was insufficient evidence to support
the conviction of . . . conspiracy to commit robbery with a
dangerous weapon.” Both of these contentions have been rejected;
therefore, we need not re-visit them for purposes of deciding this
issue. This assignment of error is overruled. We have carefully considered defendant's remaining arguments
and find them to be without merit.
No error.
Judges WYNN and STEELMAN concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***