1. Homicide--first-degree murder--instruction--acting in concert
The trial court erred by instructing the jury on acting in concert with respect to the charge
of first-degree murder, and defendant is entitled to a new trial on this charge, because: (1) the
State presented evidence tending to show that defendant was the perpetrator of the acts; (2) the
State presented no evidence that defendant acted with others in killing the victim or that anyone
other than defendant shot and killed the victim; and (3) although defendant was found guilty of
first-degree murder on the basis of felony murder as well as premeditation and deliberation, the
trial court erroneously informed the jury that it could convict defendant of first-degree murder on
the basis of acting in concert in its instructions under both theories.
2. Constitutional Law--right to confrontation--nontestimonial evidence--law
enforcement fingerprint card
The trial court did not violate defendant's Sixth Amendment right to confrontation by
admitting into evidence law enforcement record cards allegedly bearing his fingerprint and
defendant is not entitled to a new trial on the conspiracy to traffic in cocaine conviction, because
the fingerprint card created upon defendant's arrest and contained in the Automated Fingerprint
Identification System database was a business record and therefore nontestimonial.
Attorney General Roy Cooper, by Assistant Attorney General
John G. Barnwell, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Charlesena Elliott Walker, for defendant-appellant.
MARTIN, Chief Judge.
Defendant appeals from judgments imposing a sentence of life
imprisonment without parole upon his conviction of murder in the
first degree and a concurrent sentence of not less than 175 months
nor more than 219 months upon his conviction of conspiracy to
traffic in cocaine. After careful review, we find no error indefendant's conviction of conspiracy to traffic in cocaine, but
conclude defendant must be granted a new trial upon the charge of
first-degree murder.
The State presented evidence at trial tending to show that
defendant shot and killed Jamel Morehead (“Morehead”) during a
dispute over a cocaine transaction. Michael Branch (“Branch”) and
Willie Dowd, Jr. (“Dowd”) testified for the State that on 19
January 2002, defendant met with them and Morehead at a residence
in Kernersville, North Carolina, in order to exchange twenty
thousand dollars for a kilogram of cocaine. Defendant gave the
twenty thousand dollars to Morehead, who then departed the
residence and returned approximately forty-five minutes later.
Branch and Dowd remained with defendant. When Morehead returned,
he gave defendant a small package wrapped in duct tape. When
defendant opened the package, he discovered it contained cornstarch
instead of cocaine. Morehead and defendant began arguing.
Morehead told defendant he had never dealt cocaine before, did not
realize the package contained cornstarch, and that he would
reimburse defendant the twenty thousand dollars. Defendant removed
a nine-millimeter handgun from the waistband of his pants, followed
Morehead into a bedroom, and shot him numerous times.
Defendant's fingerprint was found on the frame of the door of
the Kernersville residence. Bullets and bullet casings recovered
from the scene and from Morehead's body matched bullet casings
seized at the scene of a 20 March 2001 shooting incident between
defendant and another individual in Beaufort, North Carolina. Defendant testified that he was acquainted with Branch and
knew him to be a drug dealer. According to defendant, he followed
Branch to the Kernersville residence on 19 January 2002 in order to
purchase marijuana. Inside the residence, he observed two other
men, but did not know who they were and was not introduced to them.
Branch informed defendant that it would take at least thirty
minutes for the individual with the marijuana to arrive. However,
defendant left before the marijuana arrived because he had to pick
up his girlfriend at the bus station. Defendant, his brother, and
his girlfriend drove to New York the following morning in order to
attend the funeral of a friend. Defendant's brother and
defendant's girlfriend both corroborated his testimony, testifying
that they drove to New York with defendant. Defendant denied
having ever met Morehead and denied shooting him. Defendant also
denied conspiring with anyone to purchase cocaine. Defendant
admitted to the 20 March 2001 exchange of gunfire in Beaufort, but
stated he fired his weapon in self-defense. Defendant testified he
sold his gun to Branch several months after the 20 March 2001
shooting.
Following the presentation of evidence, the State requested
the trial court to instruct the jury on the theory of acting in
concert as a part of the murder and conspiracy to traffic in
cocaine charges. Defendant objected to the instruction on the
ground that there was no evidence of acting in concert. The trial
court initially expressed some reservation as to the applicability
of the doctrine: Let me tell you what my concerns are on that .
. . . when I look at the formation of why in
the legal field I ought to use acting in
concert is if you have other people who do any
of the acts and because, just like we had the
bank robbery case, the bank robber goes in and
actually does the robbery, and you have the
person as a lookout, you've got the one in the
car, so you create acting in concert, and when
you have the actual perpetrator because of all
of the elements that I look at, they always
refer to everybody except for the perpetrator
since they do all the acts necessary. And at
this point I don't think acting in concert
would apply for this particular case since all
of the evidence is from the State is that this
is the person who did the shooting. The only
thing you have to consider is the other two
people what their participation was.
The trial court eventually overruled defendant's objection,
however, and instructed the jury it could convict defendant of
first-degree murder on the theories of both premeditation and
deliberation and felony murder if it found he acted in concert with
others.
_____________________________________________________
[1] Defendant contends the trial court erred when it
instructed the jury on the legal doctrine of acting-in-concert with
respect to the charge of first-degree murder. He argues the State
failed to present substantial evidence that he acted with another
person in perpetrating the offense. After careful review of the
evidence, we agree there was no evidence from which a reasonable
jury could find that defendant acted in concert with others in the
murder of Morehead.
The doctrine of acting in concert may be summarized as
follows: “If 'two persons join in a purpose to commit a
crime, each of them, if actually or
constructively present, is not only guilty as
a principal if the other commits that
particular crime, but he is also guilty of any
other crime committed by the other in
pursuance of the common purpose . . . or as a
natural or probable consequence thereof.'”
State v. Mann, 355 N.C. 294, 306, 560 S.E.2d 776, 784 (quoting
State v. Erlewine, 328 N.C. 626, 637, 403 S.E.2d 280, 286 (1991)),
cert. denied, 537 U.S. 1005, 154 L. Ed. 2d 403 (2002). Under the
doctrine, “[a] person is constructively present during the
commission of a crime if he or she is close enough to be able to
render assistance if needed and to encourage the actual
perpetration of the crime.” Id. (quoting State v. Willis, 332 N.C.
151, 175, 420 S.E.2d 158, 169 (1992)).
In State v. Brown, 80 N.C. App. 307, 311, 342 S.E.2d 42, 44
(1986), this Court granted a new trial where the trial court
erroneously instructed the jury on the theory of acting in concert.
The State presented evidence tending to show the victim was beaten
by a number of people during an altercation. Although the
defendant was present at the scene, he was not involved in the
altercation. The victim pulled out a gun and fired shots into the
ceiling. Several people began struggling with the victim for
possession of the gun. The victim was wrestled to the floor, where
he fired several more shots. For the next several minutes a group,
variously estimated at between six and fifteen people, kicked,
stomped and struck the victim with various objects including
chairs, pool cues and their feet. The defendant was not observedamong this group of people. Following the beating, the victim was
left unconscious on the floor and the defendant was observed with
a bullet wound to his leg.
Emergency response teams arrived at the scene and started to
transport the injured to area hospitals. The victim and the
defendant were placed in the same ambulance. Once inside the
ambulance, the defendant beat the prone victim, resulting in his
death. At trial, the court instructed the jury it could find the
defendant guilty upon a theory of acting in concert. The jury
found the defendant guilty of voluntary manslaughter.
On appeal, the defendant argued the acting in concert
instructions permitted the jury to convict him on the theory that
he aided and abetted the other persons involved in the beating of
the victim, a theory unsupported by the evidence. The Brown Court
agreed, stating that
[t]here is no evidence that defendant acted as
an aider and abettor to other persons in
beating [the victim]. All the evidence shows
that defendant acted independently of the
others in his assault on the victim. Thus,
there was no basis in the evidence for the
court to instruct the jury on the law of
aiding and abetting.
Id. at 311, 342 S.E.2d at 44. The Court noted that “[i]t is
generally error, prejudicial to defendant, for the trial court to
instruct the jury upon a theory of a defendant's guilt which is not
supported by the evidence.” Id.
As was the case in Brown, the State presented evidence in the
present case tending to show that defendant was the perpetrator of
the acts. The State presented no evidence, however, that defendantacted with others in killing Morehead, or that anyone other than
defendant shot and killed Morehead. The trial court's error in
instructing the jury requires a new trial for defendant.
The State argues that even if there was no evidence of
concerted action, the trial court's instruction nevertheless did
not prejudice defendant in that the jury found him guilty of first-
degree murder, not only on the basis of felony murder but also on
the basis of premeditation and deliberation. Citing State v. Mays,
158 N.C. App. 563, 577, 582 S.E.2d 360, 369 (stating that “any
error in allowing a jury to consider felony murder does not require
a new trial if the jury also found the defendant guilty based on
premeditation and deliberation”), disc. review denied, 357 N.C.
510, 588 S.E.2d 379 (2003), cert. denied, 358 N.C. 547, 599 S.E.2d
913 (2004), and State v. McKeithan, 140 N.C. App. 422, 434, 537
S.E.2d 526, 534 (2000) (same), appeal dismissed and disc. review
denied, 353 N.C. 392, 547 S.E.2d 35 (2001), the State contends that
any error in the instructions for felony murder was harmless,
because the evidence supported the conviction based on
premeditation and deliberation. The State's position would be
correct if the flawed concerted action instructions were addressed
to the felony murder charge only. In Mays and McKeithan, the error
in instructing on the felony murder charge was harmless in that the
jury properly found the defendant guilty on the basis of
premeditation and deliberation. Here, however, the trial court
erroneously informed the jury it could convict defendant of first-
degree murder on the basis of acting in concert in its instructionsunder both the felony murder and premeditation and deliberation
theories. The trial court clearly instructed the jury that the
acting in concert doctrine could be used to apply to the
premeditation and deliberation charge:
Now Members of the Jury, for a person to be
guilty of a crime it is not necessary that he
personally do all of the acts necessary to
constitute the crime. If two or more persons
join in a common purpose to commit conspiracy
to traffic by possession of four hundred grams
of cocaine, each of them, if actually present
or constructively present is not only guilty
of that crime if the other person commits the
crime, he is also guilty of any other crime
committed, that being murder by the other in
pursuance of a common purpose . . . to commit
conspiracy to possess four hundred grams or
more of cocaine, or as a natural or probable
consequence thereof.
. . . .
Members of the Jury, if you find from the
evidence beyond a reasonable doubt that on or
about the alleged date the Defendant acting
either by himself or acting together with
others, acted with malice, killed the victim
with a deadly weapon, thereby proximately
causing the victim's death, and the Defendant
intended to kill the victim, and that the
Defendant acted after premeditation and
deliberation, it would be your duty to return
a verdict of guilty of first-degree murder on
the basis of malice, premeditation and
deliberation.
. . . .
Again I read to you, if you find from the
evidence beyond a reasonable doubt that on or
about the alleged date the Defendant acting
either by himself or acting together with
others committed conspiracy to possess four
hundred grams or more of cocaine, and that
while committing conspiracy to posses[] four
hundred grams or more of cocaine the Defendant
or acting together with others killed the
victim, and the Defendant's act was aproximate cause of the victim's death, it
would be your duty to return a verdict of
guilty of first-degree murder under the felony
murder rule.
Because the trial court's instructions for felony murder and murder
based on premeditation and deliberation were both flawed, the
jury's conviction of defendant for first-degree murder based on
premeditation and deliberation is equally flawed. Defendant must
be granted a new trial as to the murder conviction.
[2] Defendant further argues he must be granted a new trial as
to the conspiracy conviction. He contends the trial court violated
his Sixth Amendment right to confrontation by admitting into
evidence law enforcement record cards allegedly bearing his
fingerprints. Defendant argues the fingerprint cards were
“testimonial” evidence as defined by the United States Supreme
Court in Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177
(2004). We disagree.
Sergeant Darrell Hicks of the Forsyth County Sheriff's Office
testified as an expert in the field of latent fingerprint lifting
and fingerprint identification. Sergeant Hicks testified he
obtained several latent fingerprints at the Kernersville residence
crime scene and compared them to fingerprints contained in a
computer system database known as “AFIS” or “Automated Fingerprint
Identification System.” Sergeant Hicks stated the AFIS consists
“of a known database of fingerprints of criminal arrest cards of
people [who've] been arrested in the state.” Using the database,
Sergeant Hicks received a reference to defendant. Sergeant Hicks
then compared one of the latent fingerprints he obtained at thecrime scene to the actual fingerprint card containing defendant's
fingerprints. Sergeant Hicks testified that such fingerprint cards
were kept in the normal course of business in the police record
files. According to Sergeant Hicks, the fingerprint obtained from
the door of the Kernersville residence matched the fingerprint card
containing defendant's fingerprints. Defendant objected to the
admission of the fingerprint card, but the trial court admitted the
card as a business record. Defendant argues that admission of the
fingerprint card, without testimony by the police officer who made
the fingerprint card, violated his confrontation rights under
Crawford. We do not agree.
“Where testimonial evidence is at issue, . . . the Sixth
Amendment demands what the common law required: unavailability and
a prior opportunity for cross-examination.” Id. at 68, 158 L. Ed.
2d at 203. Under Crawford, we must determine: “(1) whether the
evidence admitted was testimonial in nature; (2) whether the trial
court properly ruled the declarant was unavailable; and (3) whether
defendant had an opportunity to cross-examine the declarant.”
State v. Clark, 165 N.C. App. 279, 283, 598 S.E.2d 213, 217, disc.
review denied, 358 N.C. 734, 601 S.E.2d 866 (2004). Notably, the
Crawford Court indicated that business records are nontestimonial.
Crawford, 541 U.S. at 56, 158 L. Ed. 2d at 195.
In the instant case, we conclude the fingerprint card created
upon defendant's arrest and contained in the AFIS database was a
business record and therefore nontestimonial. See State v.
Carroll, 356 N.C. 526, 574, 573 S.E.2d 899, 913 (2002) (statingthat fingerprint cards are “clearly admissible” under the business
records exception to the hearsay rule), cert. denied, 539 U.S. 949,
156 L. Ed. 2d 640 (2003); State v. Arita, 900 So.2d 37, 45 (La.
App. Ct. 2005) (stating that a latent fingerprint admitted pursuant
to public record and report exception to the hearsay rule “was
clearly non-testimonial”). We overrule this assignment of error.
In view of our decision, we deem it unnecessary to address
defendant's remaining assignments of error.
First Degree Murder - New Trial.
Conspiracy to Traffic in Cocaine - No Error.
Judges WYNN and TIMMONS-GOODSON concur.
*** Converted from WordPerfect ***