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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the
print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. PERCELL WATKINS, JR., Defendant
Filed: 5 April 2005
1. Homicide_short form indictment_attempted murder
Defendant's short form indictment for attempted murder was fatally defective in that it
failed to allege that defendant acted with the specific intent to kill. The application of N.C.G.S. §
15-144 (authorizing short form indictments for murder or manslaughter) to
attempted murder goes beyond the plain language of the statute.
2. Search and Seizure_permission by live-in girlfriend_constitutional
A search of a shop outside a home was constitutional where defendant's live-in girlfriend
(Riley) gave permission for the search. The court found that Riley had been defendant's
girlfriend for thirteen years and had lived in defendant's home the entire time; her status as a
resident of the home had been known by the officers seeking permission for the search for three
or four years before the search; the officers had no reason to suspect that she did not have control
over the premises, including the shop; and Riley's consent was voluntary and without hesitation.
3. Evidence_statements by defendant's girlfriend_admitted through officer's
There was no plain error in the admission of statements by defendant's girlfriend through
the testimony of investigating officers. While the statements may have been admissible as
corroboration of earlier testimony, the absence of the statements would not have changed the
verdict in light of the other admitted evidence.
4. Constitutional Law_silence by defendant_incidental_not prejudicial
There was no plain error by admitting testimony that defendant had declined to make a
statement to an officer. The testimony about defendant's silence was incidental to the entire
testimony of the officer and it is doubtful that the jury assigned heavy weight to defendant's
silence in light of the evidence against defendant.
5. Evidence--victim's identification of defendant--personal knowledge
There was no plain error in the admission of testimony from the victim of an attempted
murder and assault that it was defendant who had shot him where the victim did not see
defendant and based his testimony on what he perceived as the shooting occurred, particularly
what he heard. The victim was defendant's uncle, had heard defendant's voice frequently, and
had sufficient personal knowledge to identify defendant. N.C.G.S. § 8C-1, Rule 602.
6. Homicide_attempted murder_defendant as shooter--sufficiency of evidence
The evidence in an assault and attempted murder prosecution was sufficient for the jury
to determine that defendant was the one who shot the victim.
7. Homicide_attempted murder_evidence of premeditation and deliberation_sufficient
There was sufficient evidence of premeditation and deliberation in an attempted murder
prosecution where defendant entered the victim's house without permission, a fight resulted
when defendant broke the victim's television, defendant pulled a knife, he was seen later leaving
his house with a gun in his truck, and he later yelled that he had gotten one after shooting the
victim in the shoulder.
Appeal by defendant from judgment entered 29 August 2003 by
Judge W. Osmond Smith, III in Caswell County Superior Court. Heard
in the Court of Appeals 16 November 2004.
Attorney General Roy Cooper, by Assistant Attorney General
Philip A. Lehman, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Daniel R. Pollitt, for defendant-appellant.
Defendant appeals convictions of attempted murder and assault
with a deadly weapon with intent to kill inflicting serious injury.
Among the grounds for appeal, defendant argues that the trial court
admitted improper evidence and erred by not granting defendant's
motion to dismiss. Defendant also argues that his conviction for
attempted murder must be vacated. For the reasons stated herein,
we find no error at trial but vacate defendant's judgment for
Defendant was indicted on 9 April 2002 for attempted murder
and 13 May 2003 for assault with a deadly weapon with intent to
kill inflicting serious injury. Following several days of trial,
on 29 August 2003 a jury found defendant guilty of both crimes.
The events giving rise to these convictions occurred on 22
November 2001, which was Thanksgiving Day. Defendant was living in
a house located on a large family farm in rural Caswell County.
Other members of defendant's family lived in separate houses on the
farm, including the victim, Walter Bigelow (Bigelow), who was
defendant's uncle. On Thanksgiving morning, defendant, Bigelow,
and two other friends met at Bigelow's house and began drinking
gin, beer, and liquor. After drinking for several hours, the men
went to the home of a friend to see his new puppies. Defendant was
bitten by the mother dog after he took off his shirt and attacked
Following defendant and Bigelow's return to Bigelow's house,
defendant wanted to continue drinking and entered the house against
Bigelow's wishes. While he was inside, defendant stumbled into
Bigelow's television and broke the screen. During a scuffle that
followed, defendant pulled out a knife. Bigelow kicked the knife
out of defendant's hand and threatened to call the police.
Defendant then walked out into Bigelow's yard and eventually left
in his truck after backing into Bigelow's fence.
At about 2:30 p.m. of the same day, Bigelow and his brother,
Huston Bigelow (Huston), were walking near their mother's house
when Bigelow was struck in the shoulder by two gunshots. As he
fell to the ground, he heard defendant yell, I got one of the
SOBs. Huston testified that after additional shots were fired, he
heard defendant yell, I got one now and I got one more to go. Officer Clayton Myers of the Caswell County Sheriff's
Department arrived shortly after the shooting and interviewed
Donita Riley (Riley), defendant's girlfriend. Officer Myers
testified that during their conversation, Riley said defendant had
left his home earlier with a scoped rifle to go hunting. As part
of his investigation, Officer Myers called in a bloodhound to
search the area where the shots had likely been fired. The
bloodhound led the officers to a piece of camouflage cloth hanging
from a barbed wire fence. From there, the bloodhound followed a
trail to defendant's house.
During the investigation, officers asked Riley, who lived in
defendant's house, for permission to enter a shop building located
near the house. Riley initially refused, but she gave officers a
key to the shed after they told her they would get a warrant and
tear down the door. At that time, Riley also signed a form stating
that she consented to the search. Inside the building, officers
found a vehicle that defendant was working on along with a .22
rifle and bullets on the floorboard. In addition, when officers
asked Riley for defendant's camouflage pants, she provided a pair
with a missing swatch of cloth. Officers determined that the
swatch of cloth recovered from the barbed wire fence perfectly
matched the hole in defendant's pants.
 In his first assignment of error, defendant contends that
the indictment for attempted murder is defective since it lacksallegations that defendant acted with the specific intent to kill,
premeditation, or deliberation. Defendant's indictment stated:
The jurors for the State upon their oath
present that on or about [November 22, 2001]
and in . . . [Caswell County] the defendant
named above unlawfully, willfully and
feloniously did of malice and aforethought
attempt to kill and murder Walter Bigelow.
This indictment for attempted murder follows the language
authorized by N.C. Gen. Stat. § 15-144 for short-form indictments
for murder or manslaughter.
This Court has issued inconsistent opinions on whether the
language authorized in section 15-144 states all the essential
elements for attempted
murder. Most recently in State v. Jones
165 N.C. App. 540, 598 S.E.2d 694, temp. stay allowed
, 358 N.C.
736, 601 S.E.2d 202, disc. review granted
, 359 N.C. 73, 604 S.E.2d
924 (2004), a panel of this Court determined that an indictment
following the short-form language in section 15-144 did not allege
all the essential elements of the crime of attempted murder and
must be vacated. Yet, in State v. Andrews
, 154 N.C. App. 553, 559-
60, 572 S.E.2d 798, 803, cert. denied
, 358 N.C. 156, 592 S.E.2d 696
(2004), as well as State v. Choppy
, 141 N.C. App. 32, 41, 539
S.E.2d 44, 50-51 (2000), disc. review denied
, 353 N.C. 384, 547
S.E.2d 817 (2001), this Court determined that attempted murder
indictments following section 15-144 were constitutional.
None of these cases dealt with the statutory argument that
defendant raises here. Defendant argues that the plain language of
section 15-144 limits its application to cases of murder or
manslaughter, not attempted murder. Notably, defendant arguesthat the short-form language found in section 15-144.1, dealing
with rape, and section 15-144.2, dealing with sex offense, include
attempt within the statute whereas section 15-144 does not.
While our appellate opinions are replete with occasions in which
our Supreme Court has upheld the constitutionality of using section
15-144 to allege murder, there is no authority on point that
specifically applies the language in N.C. Gen. Stat. § 15-144 to
(See footnote 1)
applied North Carolina
Supreme Court opinions holding that section 15-144 is
constitutional for murder
indictments as their precedent for
holding that N.C. Gen. Stat. § 15-144 states all the essential
elements for the crime of attempted
We agree with defendant that the application of N.C. Gen.
Stat. § 15-144 to indictments for attempted murder goes beyond the
plain language of the statute. Absent statutory authority for a
short-form indictment, the State must allege all essential elements
of the crime charged. See State v. Hunt
, 357 N.C. 257, 267, 582
S.E.2d 593, 600 (2003) (To be sufficient under our Constitution,
an indictment 'must allege lucidly and accurately all the essential
elements of the offense endeavored to be charged.' (quoting State
, 238 N.C. 325, 327, 77 S.E.2d 917, 919 (1953)). Nothing
in G.S. 15-153 or in G.S. 15-155 [statutes dealing with certaininformalities and defects that do not vitiate a warrant or
indictment] dispenses with the requirement that the essential
elements of the offense must be charged. State v. King
, 285 N.C.
305, 308, 204 S.E.2d 667, 669 (1974) (internal quotations omitted).
The elements of an attempt to commit a crime are: '(1) the
intent to commit the substantive offense, and (2) an overt act done
for that purpose which goes beyond mere preparation, but (3) falls
short of the completed offense.' State v. Coble
, 351 N.C. 448,
449, 527 S.E.2d 45, 46 (2000) (internal quotations omitted). As a
necessary element of attempted murder, the specific intent to kill
must be alleged in the indictment. See id
351 N.C. at 451, 527
S.E.2d at 48 ([T]he crime of attempted murder is logically
possible only where specific intent to kill is a necessary element
of the underlying offense.); State v. Jerrett
, 309 N.C. 239, 259,
307 S.E.2d 339, 350 (1983) (Absent adoption of a short-form
indictment by the General Assembly, each essential element must be
Accordingly, we hold that an indictment for attempted murder
must allege the necessary element of specific intent to kill. See
Jones v. United States
, 526 U.S. 227, 232, 143 L. Ed. 2d 311, 319
(1999) (holding that elements of the offense must be charged in the
indictment). An indictment for attempted
murder is not
constitutional when it only complies with the language of N.C. Gen.
Stat. § 15-144, a section that remains untarnished when applied as
plainly intended: to indictments for murder and manslaughter. See
State v. Holder
, 138 N.C. App. 89, 93, 530 S.E.2d 562, 565 (holdingthat Jones
did not invalidate North Carolina's short-form
indictment for murder), disc. review denied
, 352 N.C. 359, 544
S.E.2d 551 (2000). Defendant's indictment for attempted murder
failed to allege that defendant acted with the specific intent to
kill, and this omission was fatally defective.
 Defendant next argues that the search of the shop outside
of his house was unconstitutional and the evidence obtained therein
should have been suppressed. Specifically, defendant argues that
Riley did not have the apparent authority to authorize the search
and did not provide valid consent for the search. When reviewing
a trial court's ruling on a motion to suppress, the trial court's
findings of fact are conclusive on appeal if supported by
competent evidence, even if the evidence is conflicting. State v.
Brewington, 352 N.C. 489, 498, 532 S.E.2d 496, 501 (2000) (internal
quotations omitted), cert. denied, 531 U.S. 1165, 148 L. Ed. 2d 992
(2001); see also State v. Barnett, 307 N.C. 608, 613, 300 S.E.2d
340, 343 (1983).
Resolving any conflict within the evidence, the trial court
found that Riley was defendant's girlfriend for thirteen years and
had resided in defendant's home for the entire time. Further, the
trial court found that Riley's status as a resident of the home was
known to those officers seeking permission for approximately three
to four years and that officers had no reason suspect she did not
have control over the premises, including the shop that was
determined to be located within the curtilage of the home. Notably, the trial court found that Riley's consent was voluntary
and without hesitation. Despite some evidence to the contrary, we
see no reason to determine that these findings were not supported
by the evidence.
Once this Court concludes that the trial court's findings of
fact are supported by the evidence, then this Court's next task 'is
to determine whether the trial court's conclusion[s] of law [are]
supported by the findings.' Brewington, 352 N.C. at 498-99, 532
S.E.2d at 502 (quoting State v. Hyde, 352 N.C. 37, 45, 530 S.E.2d
281, 288 (2000)). This Court has previously determined that
officers may rely on the consent of third-parties who have apparent
control over the area requested to be searched. See State v.
Jones, 161 N.C. App. 615, 620, 589 S.E.2d 374, 377 (2003) (One who
shares a house or room or auto with another understands that the
partner, may invite strangers[, and that his] privacy is not
absolute, but contingent in large measure on the decisions of
another. Decisions of either person define the extent of the
privacy involved . . .) (internal quotations omitted); see also
State v. Garner, 340 N.C. 573, 592, 459 S.E.2d 718, 728 (1995) (A
third party may give permission to search where the third party
possesses common authority over or other sufficient relationship to
the premises or effects sought to be inspected.) (internal
quotations omitted). Based on its findings, the trial court did
not err in determining that the search and subsequent seizure of
property did not offend the Constitution.
 Defendant's next three assignments of error all deal with
the alleged erroneous admission of evidence. Since defendant did
not object to any of these admissions, we review them for plain
error. Under this standard of review, defendant has the burden of
showing: '(i) that a different result probably would have been
reached but for the error or (ii) that the error was so fundamental
as to result in a miscarriage of justice or denial of a fair
trial.' State v. Jones, 358 N.C. 330, 346, 595 S.E.2d 124, 135
(2004) (quoting State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d 769,
Defendant first contends that the trial court erred by
admitting statements of Riley through the testimony of Officer
Myers and Officer Eugene Riddick, another officer with the Caswell
County Sheriff's Office investigating the shooting. The officers
testified that Riley told them on 22 November 2001 defendant came
home to get a long gun with a scope, telling her that he was going
hunting. Reporting from their notes, they further testified she
told them defendant was drunk, irate, bleeding from the face, and
fell out the door. The officers also noted that Riley had told
them defendant and Bigelow did not get along and defendant was
becoming more uncontrollable.
The State argues that Riley's statements corroborated her
earlier testimony where she described for the jury a substantially
similar course of events. While we may be inclined to find that
Riley's statements corroborated her earlier testimony, and thus
admissible, we are convinced that the absence of these statementswould not have changed the jury's verdict. See State v. Howard,
320 N.C. 718, 724, 360 S.E.2d 790, 793-94 (1987) (discussing
corroborative testimony). The jury heard evidence of an earlier
fight between defendant and Bigelow; positive voice identification
of defendant as the shooter by two people who had known him his
whole life; the fact that police had tracked defendant from the
scene of the shooting and were able to connect the pants he was
wearing to cloth found at the scene; and that defendant had a long
rifle in his truck. Thus, this assignment of error is overruled.
 Next, defendant contends that the trial court erred in
admitting testimony that at various times he declined to make a
statement to investigators. We disagree.
At trial, Officer Myers testified about his interaction with
defendant during defendant's arrest. He said that defendant had
been drinking, was found hiding in a shower, and charged at an
officer once he was discovered. The State then asked Officer Myers
questions regarding defendant's demeanor following his arrest. It
was in answering these questions that Officer Myers described
instances in which defendant refused to make a statement.
A defendant has the right to remain silent, and the State
cannot use his exercise of that right as evidence that he is
guilty. State v. Ladd , 308 N.C. 272, 283, 302 S.E.2d 164, 171
(1983) (We have consistently held that the State may not introduce
evidence that a defendant exercised his fifth amendment right to
remain silent.). Nonetheless, when reviewed for plain error, a
witness's incidental testimony that a defendant exercised his rightto silence may be a de minimis violation and not prejudicial. See,
e.g., Bishop, 346 N.C. at 385, 488 S.E.2d at 779. Under these
circumstances, Officer Myers's testimony regarding defendant's
exercise of his right to silence was incidental to Myers's
testimony in its entirety.
Moreover, it is doubtful that the jury assigned heavy weight
to defendant's exercise of his right to silence in light of the
evidence against him. Accordingly, we find that no error occurred
 Concluding our plain error review, defendant states that
the trial court erred by admitting Bigelow's testimony that it was
defendant who shot him. We disagree.
Rule 602 of the North Carolina Rules of Evidence does provide
that a witness may not testify to a matter unless evidence is
introduced sufficient to support a finding that he has personal
knowledge of the matter. N.C. Gen. Stat. § 8C-1, Rule 602 (2003).
Yet, the Rule's official commentary states that personal knowledge
is not an absolute but may consist of what the witness thinks he
knows from personal perception. N.C. Gen. Stat. § 8C-1, Rule 602
(Commentary) (2003); see also State v. Poag, 159 N.C. App. 312,
323, 583 S.E.2d 661, 669 (2003). Although Bigelow did not see
defendant shoot him, his testimony was based on what he perceived
as the shooting occurred. In particular, Bigelow testified that he
heard defendant shout, I got one of the SOBs while he was
falling. Bigelow, as defendant's uncle, was certain it was
defendant's voice because he heard defendant's voice all thetime. As confirmation of Bigelow's testimony, Huston, Bigelow's
brother, testified that he also heard defendant's voice shortly
after the shooting and that he had known defendant since the day
he was born. As a result, we conclude that Walter Bigelow had
sufficient personal knowledge to identify defendant and that his
opinion was rationally based on his perception of the shooting.
See N.C. Gen. Stat. § 8C-1, Rule 701 (2003) (opinion testimony is
limited to those opinions or inferences which are (a) rationally
based on the perception of the witness and (b) helpful to a clear
understanding of his testimony or the determination of a fact in
 In defendant's final two assignments of error, he asserts
that the State presented insufficient evidence to 1) identify him
as the shooter, and 2) establish premeditation and deliberation.
When a defendant moves for dismissal, the trial court is to
determine only whether there is substantial evidence of each
essential element of the offense charged and of the defendant being
the perpetrator of the offense. State v. Vause, 328 N.C. 231,
236, 400 S.E.2d 57, 61 (1991). Substantial evidence is that
evidence which 'a reasonable mind might accept as adequate to
support a conclusion.' Id. (quoting State v. Smith, 300 N.C. 71,
78-79, 265 S.E.2d 164, 169 (1980)). In determining whether the
State's evidence is substantial, the trial court must examine the
evidence in the light most favorable to the State, and the State is
entitled to every reasonable inference and intendment that can bedrawn therefrom. Id. at 237, 400 S.E.2d at 61 (citing State v.
Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980)).
In the light most favorable to the State, we conclude that
there was ample evidence for the jury to determine that defendant
was the one that shot Walter Bigelow. In particular, the evidence
showed that defendant and Bigelow fought with each other before the
shooting and that defendant pulled a knife on Bigelow. The State
also showed that after the fight, defendant sat in his truck and
pointed a gun toward Bigelow's house. Both Bigelow and Huston
identified defendant's voice as the voice they heard when the
shooting occurred. In addition, Riley testified that she saw
defendant leave shortly after 2:00 p.m. in his truck. Finally,
when officers searched defendant's shop building, they found a .22
rifle and bullets. Based on this evidence, we conclude that the
trial court did not err in denying defendant's motion to dismiss.
 Defendant also argues that the evidence was insufficient
to establish premeditation or deliberation. Our Supreme Court has
stated that premeditation means that the act is thought out
beforehand for some length of time, however short, but no
particular amount of time is necessary for the mental process of
premeditation. State v. Jones, 342 N.C. 628, 630, 467 S.E.2d 233,
234 (1996) (internal quotations omitted). The Court has also
defined deliberation as an intention to kill, executed by the
defendant in a cool state of the blood, in furtherance of a fixed
design to gratify a feeling of revenge, or to accomplish someunlawful purpose . . . State v. Wise, 225 N.C. 746, 749, 36
S.E.2d 230, 232 (1945) (internal quotations omitted).
To determine whether evidence shows premeditation and
deliberation, a court should consider the following factors: (1)
lack of provocation by the deceased; (2) conduct and statements of
the defendant before and after the killing; and (3) 'ill-will or
previous difficulty between the parties.' State v. Hood, 332 N.C.
611, 622, 422 S.E.2d 679, 685 (1992) (quoting State v. Williams,
308 N.C. 47, 69, 301 S.E.2d 335, 349 (1983)).
Taken in the light most favorable to the State, evidence at
trial tended to show that defendant entered Bigelow's house without
his permission, a fight resulted when defendant broke Bigelow's
television, and defendant pulled a knife on Bigelow. Riley
testified that ill-will had developed between defendant and
Bigelow. Defendant left his house with a gun in his truck and
after shooting Bigelow in the shoulder yelled out I got one now
and I got one more to go. There is more than ample evidence that
a jury could determine deliberation and premeditation beyond a
reasonable doubt. Thus, defendant's final assignment of error is
For the foregoing reasons, we conclude that defendant's
conviction based on the indictment for attempted murder must be
vacated. However, there was no error regarding defendant's trial
on the remaining charge of assault with a deadly weapon with intent
to kill inflicting serious bodily injury. Vacated in part, no error in part.
Judges WYNN and HUDSON concur.
We note that our appellate holdings have properly allowed
attempted murder to be presented to the jury as a lesser included
offense of murder, see N.C. Gen. Stat. § 15-170; but here,
attempted murder is the charged offense, not a lesser included
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