Link to original WordPerfect file
Link to PDF file
How to access the above link?
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.
NORTH CAROLINA COURT OF APPEALS
Filed: 19 July 2005
STATE OF NORTH CAROLINA
Nos. 03 CRS 001762
JOHNNY SHANE CURRY 03 CRS 050655
03 CRS 050656
03 CRS 050657
03 CRS 054602
Appeal by defendant from judgments entered 16 January 2004 by
Judge Michael E. Helms in Wilkes County Superior Court. Heard in
the Court of Appeals 8 March 2005.
Attorney General Roy Cooper, by Assistant Attorney General
Jeffrey R. Edwards, for the State.
Appellate Defender Staples S. Hughes, by Assistant Appellate
Defender Barbara S. Blackman, for defendant-appellant.
Johnny Shane Curry (defendant) appeals from judgments
entered after a jury returned guilty verdicts for: (1) assault
with a deadly weapon with intent to kill inflicting serious injury;
(2) felonious breaking or entering; (3) felonious larceny; (4)
robbery with a dangerous weapon against Lloyd Triplett
(Triplett); (5) felonious conspiracy to commit first-degree
murder under the felony murder rule; (6) felonious conspiracy to
commit robbery against Ruth's Ice Cream and Sandwich Shop
(Ruth's); (7) felonious conspiracy to commit robbery with adangerous weapon against Triplett; and (8) attempted murder. We
find no error.
Defendant, twenty-nine years old, and Danielle Edsel
(Edsel), seventeen years old, were dating in February 2003.
Triplett operated Wood's Grocery Store (Wood's) and lived in a
house next door. Triplett had known Edsel since she was a child
and allowed her to live in a small apartment in the back of Wood's
Grocery. He also gave her money and food and permitted her to use
his bathroom when those at Wood's were not working. Edsel also
occasionally worked for Triplett at Wood's.
The State's evidence tended to show that defendant and Edsel
were seeking money. They discussed robbing Ruth's, where Edsel
formerly worked. However, on the day they planned to rob Ruth's,
bad weather had forced Ruth's to close early and they could not get
inside the store.
Defendant and Edsel next planned to rob Triplett. They
discussed several options to steal Triplett's money. The first
option involved Edsel seducing Triplett, tying him to the bed, then
forcing him to tell them where he kept his money. However, they
determined that plan would allow Triplett to identify both of them.
The next plan involved Edsel knocking Triplett out at his
house with defendant coming in and killing him. However, Edsel
later determined that she would kill Triplett, so defendant would
not be the one to live with it. On the evening of 16 February 2003, Edsel approached Triplett
as he was working at Wood's and asked if she could use his
bathroom. He agreed and the two walked from Wood's to Triplett's
house. Triplett cooked dinner while Edsel showered. The two ate
together, drank liquor, and watched television. Triplett asked
Edsel if she wanted to spend the night. She agreed and Triplett
left the house to move Edsel's car behind Wood's. After Triplett
left, Edsel called defendant and asked him to come over to complete
the robbery. When defendant hesitated, Edsel told him to never
mind, that she would call him later.
Triplett returned home after moving Edsel's car and the two
talked for a while. At about 11:00 p.m., Triplett heard someone
knocking on the door and went to answer it. Edsel, believing
defendant was at the door, panicked and grabbed a gun she had
hidden underneath the sofa. She aimed and shot Triplett in the
back of the head. Triplett was knocked unconscious by the bullet
Defendant came inside Triplett's house and began searching for
money. He went to Triplett's room and discovered another gun,
which he stole. Edsel and defendant also grabbed some jewelry and
another gun. Edsel checked Triplett and determined he was still
alive. She was about to shoot him again when defendant stopped
her. As Triplett regained consciousness, defendant and Edsel told
him that someone had hit him on the head. Defendant advised
Triplett to go to the hospital, but he refused. Edsel anddefendant asked Triplett where he kept his money. Triplett claimed
his niece held it all.
Defendant stayed with Triplett while Edsel went to Wood's to
look for money. She broke open video poker machines and stole all
of the quarters, but could not find additional cash. Edsel
returned to Triplett's house and she and defendant attempted to cut
the phone lines to Triplett's house. Defendant then left to search
Wood's for money. Triplett still refused to go to the hospital.
Edsel walked out of Triplett's house for a moment to get away from
him. Triplett locked Edsel out of the house and called the police
and his sister. Defendant returned to the house and he and Edsel
asked Triplett to let them back inside. Triplett refused and
informed them that he had called the police and his sister.
Defendant and Edsel returned to Wood's. Defendant broke open
another video poker machine, stole cigarettes, and other items.
They gathered the stolen goods into several bags and placed them
inside Edsel's car. Both entered the vehicle, which they started
to defrost the windows.
Wilkes County Sheriff's deputies were dispatched to Triplett's
house in response to the 911 call. They arrived and saw Edsel's
car parked behind Wood's. Triplett told the deputies that someone
had knocked him unconscious. When he regained consciousness, he
observed defendant and Edsel going through his things. The
deputies approached Edsel's car and asked Edsel if they could
search the vehicle. Edsel consented to the search. The deputies
recovered two guns, a large quantity of cigarette cartons, bags ofjewelry, and cash. When asked about these items, defendant and
Edsel responded that they did not know how the items got into the
Triplett was taken to Wilkes Regional Medical Center and was
treated for a gunshot wound to the head. The bullet fractured
Triplett's skull and he was transferred to Baptist Hospital in
Winston-Salem. He underwent neurosurgery to treat the gunshot
wound and skull fracture.
On 14 April 2003 and 8 December 2003, the grand jury of Wilkes
County returned true bills of indictment against defendant for:
(1) assault with a deadly weapon with intent to kill inflicting
serious injury; (2) felonious breaking and entering; (3) felonious
larceny; (4) robbery with a dangerous weapon against Triplett; (5)
felonious conspiracy to commit first-degree murder under the felony
murder rule; (6) felonious conspiracy to commit robbery against
Ruth's; (7) felonious conspiracy to commit robbery with a dangerous
weapon against Triplett; and (8) attempted murder.
A. Defendant's Evidence
Defendant was tried by a jury during the 12 January 2004
Criminal Session of Wilkes County. Defendant offered evidence from
a fellow inmate of Edsel that she had planned the entire event and
intended on having sex with Triplett in exchange for money. This
testimony tended to show that after Edsel engaged in sexual
intercourse, Triplett did not pay her and she shot him. The fellow
inmate also testified Edsel stated she did not contact or involvedefendant until after she had shot Triplett. Defendant did not
B. Verdict and Sentence
On 16 January 2004, the jury found defendant to be guilty of
all charges. The trial court arrested judgment on the charge of
conspiracy to commit robbery with a dangerous weapon (03 CRS 50657)
and consolidated the verdicts for the charges of felonious larceny
(03 CRS 50656) and felonious breaking and entering (03 CRS 50656).
During sentencing, defendant was found to have a prior record level
of III. Defendant was sentenced in the presumptive range for all
charges, the following to run consecutively: (1) 220 months
minimum to 273 months maximum for attempted murder; (2) 116 months
minimum to 149 months maximum for assault; (3) 220 months minimum
to 273 months maximum for conspiracy to commit murder; (4) 103
months minimum to 133 months maximum for armed robbery; and (5) ten
months minimum to twelve months maximum for breaking and entering.
Defendant was also sentenced for a concurrent term of ten months
minimum to twelve maximum for conspiracy to commit robbery.
Defendant argues: (1) the trial court erred in admitting into
evidence letters written between defendant and Edsel; (2) the trial
court erred in posing a question to a defense witness; (3) he was
improperly charged for conspiracy to commit felony murder; and (4)
defendant received ineffective assistance of counsel.
III. Admissibility of Letters
Defendant argues the trial court committed plain error by
failing to edit or redact highly prejudicial portions from letters
written by defendant and Edsel and later admitted into evidence at
trial. We disagree.
A. Preservation of Potential Error for Appellate Review
Rule 10(b)(1) of the North Carolina Rules of Appellate
In order to preserve a question for appellate
review, a party must have presented to the
trial court a timely request, objection or
motion, stating the specific grounds for the
ruling the party desired the court to make if
the specific grounds were not apparent from
the context. It is also necessary for the
complaining party to obtain a ruling upon the
party's request, objection or motion. Any
such question which was properly preserved for
review by action of counsel taken during the
course of proceedings in the trial tribunal by
objection noted or which by rule or law was
deemed preserved or taken without any such
action, may be made the basis of an assignment
of error in the record on appeal.
N.C.R. App. P. 10(b)(1) (2004). Assignments of error are generally
not considered on appellate review unless an appropriate and timely
objection was entered. State v. Short, 322 N.C. 783, 790, 370
S.E.2d 351, 355 (1988) (citing State v. Reid, 322 N.C. 309, 367
S.E.2d 672 (1988)); N.C. Gen. Stat. § 15A-1446(a) (2003).
Our review of the transcripts and record fails to show that
defendant moved to redact portions of or exclude the letters or
made a timely and specific objection when the State proffered the
letters and Edsel's corroborating testimony into evidence.
Defendant had access to the letters prior to trial, knew the State
intended to introduce them, but failed to request the trial courtto edit the allegedly prejudicial portions. Under Rule 10(b)(1),
defendant failed to preserve this assignment of error for review.
B. Plain Error Rule
Our Supreme Court adopted the plain error rule as an exception
to Rule 10 in State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983)
(applied to assignments of error regarding jury instructions). A
defendant seeking plain error review must specifically and
distinctly contend that any error committed by the trial court
amounted to plain error. State v. Nobles, 350 N.C. 483, 514-15,
515 S.E.2d 885, 904 (1999). The proponent must show that:
[A]fter reviewing the entire record, it can be
said the claimed error is a fundamental
error, something so basic, so prejudicial, so
lacking in its elements that justice cannot
have been done, or where [the error] is
grave error which amounts to a denial of a
fundamental right of the accused, or the
error has resulted in a miscarriage of
justice or in the denial to appellant of a
fair trial or where the error is such as to
seriously affect the fairness, integrity or
public reputation of judicial proceedings or
where it can be fairly said the instructional
mistake had a probable impact on the jury's
finding that the defendant was guilty.
Odom, 307 N.C. at 660, 300 S.E.2d at 378 (quoting United States v.
McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982) (footnotes omitted),
cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982)). We may only
apply the plain error rule in exceptional cases. State v. Sams,
317 N.C. 230, 241, 345 S.E.2d 179, 186 (1986) (citation omitted).
Our Supreme Court has extended plain error review to issues
concerning admissibility of evidence. State v. Black, 308 N.C.
736, 741, 303 S.E.2d 804, 807 (1983). We examine the entire record to decide whether the error had
a probable impact on the jury's finding of guilt. Odom, 307 N.C.
at 661, 300 S.E.2d at 379 (citation omitted). We determine
whether, absent the error, the jury would have returned a different
verdict. State v. Riddle, 316 N.C. 152, 161, 340 S.E.2d 75, 80
(1986). Defendant properly argued in his brief with citations to
relevant authority that the admission of portions of the letters
constitutes plain error, warranting this Court's review of an
otherwise unpreserved assignment of error.
C. Relevant Evidence
'Relevant evidence' means evidence having any tendency to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it
would be without the evidence. N.C. Gen. Stat. § 8C-1, Rule 401
(2003). Evidence is relevant if it has any logical tendency,
however slight, to prove a fact at issue. State v. Sloan, 316
N.C. 714, 724, 343 S.E.2d 527, 533 (1986) (citations omitted). Our
Supreme Court has interpreted Rule 401 broadly and [has] explained
on a number of occasions that in a criminal case every circumstance
calculated to throw any light upon the supposed crime is admissible
and permissible. State v. Collins, 335 N.C. 729, 735, 440 S.E.2d
559, 562 (1994) (citations omitted).
Generally, all relevant evidence is admissible. N.C. Gen.
Stat. § 8C-1, Rule 402 (2003). However, relevant evidence may be
excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleadingthe jury, or by the considerations of undue delay, waste of time,
or needless presentation of cumulative evidence. N.C. Gen. Stat.
§ 8C-1, Rule 403 (2003). Exclusion or admission of evidence under
Rule 403 rests within the sound discretion of the trial court.
State v. Mason, 315 N.C. 724, 731, 340 S.E.2d 430, 435 (1986).
Here, defendant asserts the following portions of the letters
read into evidence and Edsel's testimony were highly prejudicial:
(1) Edsel's opinion that defendant was guilty of felony larceny and
felony breaking and entering; (2) defendant had prior criminal
convictions; (3) defendant had previously been incarcerated; (4)
defendant threatened to assault Edsel; (5) defendant advised Edsel
how to pass a gunshot residue test; (6) defendant had no intention
of testifying or taking a plea offer; (7) defendant thought a
fixer was the only means to prevent his conviction; (8) defendant
thought he had a piss-poor lawyer; and (9) defendant knew of
things that can be done to get shorter sentences.
Our review of these instances set out in the transcript and
the entire record indicate absent this evidence, the jury would not
have returned a different verdict. Riddle, 316 N.C. at 161, 340
S.E.2d at 80. The State proffered separate and overwhelming
testimonial and physical evidence against defendant to prove his
guilt. Defendant has failed to show any alleged error in
permitting introduction of the above evidence was fundamental
error, something so basic, so prejudicial, so lacking in its
elements that justice cannot have been done. Odom, 307 N.C. at
660, 300 S.E.2d at 378 (quotation omitted). Under the otherevidence presented, defendant has failed to show this is the
exceptional case where the claimed error is so fundamental that
justice was not done. Sams, 317 N.C. at 241, 345 S.E.2d at 186.
This assignment of error is overruled.
IV. Trial Court's Question
Defendant asserts the trial court committed prejudicial error
by asking a defense witness a question. We disagree.
Here, defendant was arrested with $19.75 in quarters in his
pockets. The State presented evidence that the quarters came from
the video poker machines located inside Wood's. To rebut the
State's evidence, defense witness Joshua Curry testified that he
and defendant tended bar the night before the incident. He
continued that it had been fifty-cent beer night and customers
had left quarters as tips. The following exchange took place:
Defense Counsel: What happens when they
tell you to keep the
Joshua Curry: You put the quarters in
the tip jar.
Defense Counsel: That night did you get a
bunch of quarters in the
Joshua Curry: Yeah. We do every night
when we have 50-cent
beer. They don't tip
dollars; they tip 50
Defense Counsel: Okay. If you remember,
do you remember whether
[defendant] got a bunch
of tips that night? How
do you split the tips?
Joshua Curry: We split it right down
the middle. Divide them
at the end of the night.
Defense Counsel: Take the jug or whatever
and pour it out?
Joshua Curry: Count it out and split it
right down the middle.
Defense Counsel: Okay.
Trial Court: What do you do with your
quarters when you get
Joshua Curry: Cash them in.
Trial Court: For dollars?
Joshua Curry: Sometimes I do, sometimes
Trial Court: You carry them for 48
hours in your pocket if
there are 80 quarters?
Joshua Curry: He left early that night.
Trial Court: Go ahead.
Our Supreme Court considered this issue in State v. Fleming,
350 N.C. 109, 125-26, 512 S.E.2d 720, 732, cert. denied, 528 U.S.
941, 145 L. Ed. 2d 274 (1999).
The judge may not express during any stage of
the trial, any opinion in the presence of the
jury on any question of fact to be decided by
the jury. . . . The law imposes on the trial
judge the duty of absolute impartiality. The
trial judge also has the duty to supervise and
control a defendant's trial, including the
direct and cross-examination of witnesses, to
ensure fair and impartial justice for both
parties. Furthermore, it is well recognized
that a trial judge has a duty to question a
witness in order to clarify his testimony or
to elicit overlooked pertinent facts.
. . . .
In evaluating whether a judge's comments cross
into the realm of impermissible opinion, a
totality of the circumstances test is
utilized. The trial court has a duty to
control the examination of witnesses, both for
the purpose of conserving the trial court's
time and for the purpose of protecting the
witness from prolonged, needless, or abusive
examination. In performing this duty,
however, the trial court's position as the
standard-bearer of impartiality requires that
the trial judge must not express any opinion
as to the weight to be given to or credibility
of any competent evidence presented before the
Id. (internal citations and quotations omitted).
The trial court did not comment on the credibility of the
witness or his testimony. Rather, it just clarified the line of
questioning concerning defendant's possession of the quarters, a
pertinent fact. Fleming, 350 N.C. at 126, 512 S.E.2d at 732 ([I]t
is well recognized that a trial judge has a duty to question a
witness in order to clarify his testimony or to elicit overlooked
pertinent facts.) (citations omitted).
In addition, the trial court provided the following
instruction to the jury immediately prior to their deliberations:
As presiding judge, I am required by law to be
impartial. Therefore, you shouldn't
mistakenly infer that I have implied that any
of the evidence should or should not be
believed, that a fact has or has not been
proven or what your findings ought to be.
Instead, you alone are to find the facts and
to render a verdict reflecting the truth as
you find it.
We hold the trial court's questions to the defense witness on the
pertinent facts surrounding defendant's possession of quarters was
not a comment on the witness's credibility or his testimony. Thejury was instructed that the trial judge is required to be
impartial. This assignment of error is overruled.
V. Conspiracy to Commit Felony Murder
Defendant argues that North Carolina does not recognize
conspiracy to commit felony murder and the trial court erred in
submitting the offense to the jury. We disagree.
Our Supreme Court addressed this issue in State v. Gibbs, 335
N.C. 1, 51, 436 S.E.2d 321, 350 (1993), cert. denied, 512 U.S.
1246, 129 L. Ed. 2d 881 (1994). The defendant in Gibbs contended
the trial court erred by instructing the jurors that they could
convict him of conspiracy to commit murder if they found an
agreement to commit felony murder. Id. The Court disagreed,
holding [f]irst-degree murder by reason of felony murder is
committed when a victim is killed during the perpetration or
attempted perpetration of certain enumerated felonies or a felony
[is] committed or attempted with the use of a deadly weapon . . .
. In felony murder, the killing may, but need not, be
intentional. Id. The key component, however, is the jurors must
be instructed that to find a conspiracy to commit murder, they
must first find an agreement to commit first-degree murder. Id.
Here, the trial court instructed the jury as follows:
the State must prove three things beyond a
reasonable doubt: First, that the defendant
and Danielle Edsel entered into an agreement;
second, that the agreement was to commit
first-degree murder . . . [;] [a]nd third,
that the defendant and Danielle Edsel intended
the agreement to be carried out at the time it
This instruction requiring the jury to find an agreement and
specific intent to kill eliminated the possibility that an
unintentional felony murder formed the basis for the specific
intent underlying the conspiracy of which they convicted
defendant. Id. at 52, 436 S.E.2d at 350. This assignment of
error is overruled.
VI. Ineffective Assistance of Counsel
Defendant contends he was deprived of his constitutional right
to effective assistance of counsel when defense counsel allowed the
letters to be admitted. We disagree.
Our Supreme Court adopted the United States Supreme Court's
language in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d
674 (1984), concerning claims of ineffective assistance of counsel.
State v. Braswell, 312 N.C. 553, 324 S.E.2d 241 (1985). The
Braswell Court developed a two-part test in considering these
First, the defendant must show that counsel's
performance was deficient. This requires
showing that counsel made errors so serious
that counsel was not functioning as the
'counsel' guaranteed by the Sixth Amendment.
Second, the defendant must show that the
deficient performance prejudiced the defense.
This requires showing that counsel's errors
were so serious as to deprive the defendant of
a fair trial, a trial whose result is
312 N.C. at 562, 324 S.E.2d at 248 (quoting Strickland, 466 U.S. at
687, 80 L. Ed. 2d at 693).
The fact that counsel made an error, even an
unreasonable error, does not warrant reversal
of a conviction unless there is a reasonable
probability that, but for counsel's errors,there would have been a different result in
the proceedings. This determination must be
based on the totality of the evidence before
the finder of fact.
Id. at 563, 324 S.E.2d at 248 (citations omitted) (emphasis
supplied). [I]f a reviewing court can determine at the outset
that there is no reasonable probability that in the absence of
counsel's alleged errors the result of the proceeding would have
been different, then the court need not determine whether counsel's
performance was actually deficient. Id. at 563, 324 S.E.2d at
The State presented overwhelming testimonial and physical
evidence of defendant's guilt. Triplett, Triplett's sister and
brother-in-law, Wilkes County Sheriff's deputies, and Edsel
testified defendant and Edsel planned to rob and kill Triplett to
prevent their identification. Triplett survived the murder attempt
and identified both defendant and Edsel as those who shot him. He
also identified both as those who stole items from his home and
Wood's. Triplett's sister and brother-in-law corroborated
Triplett's testimony and testified when they arrived at Triplett's
home, defendant and Edsel were found with items stolen from
Triplett's home and from Wood's. Wilkes County Sheriff's deputies
testified defendant and Edsel were found in a car in possession of
items stolen from Triplett's home and from Wood's. A State Bureau
of Investigation agent testified bullet fragments removed from
Triplett's skull were fired from a gun like the one defendant and
Edsel used. Defendant asserts his trial counsel committed prejudicial
error by allowing the admission of letters written back and forth
between defendant and Edsel. All of the evidence set out above was
presented and properly admitted in addition to the letters
allegedly admitted by defense counsel's error in judgment.
Defendant fails to show and our review of the record and
transcripts does not indicate a reasonable probability that in the
absence of counsel's alleged errors the result of the proceeding
would have been different . . . . Braswell, 312 N.C. at 563, 324
S.E.2d at 249. This assignment of error is overruled.
The trial court did not commit plain error by admitting
letters written by defendant and Edsel into evidence. The trial
court clarified and did not improperly comment on testimony by
asking a witness additional questions. Defendant was properly
charged and convicted of conspiracy to commit first-degree murder
under the felony murder rule. Defendant was not prejudiced by his
counsel's alleged error in judgment leading to the admission of
evidence. Defendant received a fair trial, free from prejudicial
errors he assigned and argued.
Judge ELMORE concurs.
Judge WYNN concurs in the result by separate opinion.
NORTH CAROLINA COURT OF APPEALS
Filed: 19 July 2005
STATE OF NORTH CAROLINA
Nos. 03 CRS 001762
JOHNNY SHANE CURRY 03 CRS 050655-57
03 CRS 054602
WYNN, Judge concurring in result.
While I concur in the result, I write separately to comment
further on the trial court's questioning of a witness and the
conspiracy to commit felony murder.
Regarding the trial court's questioning of a witness, the
trial court is permitted to 'interrogate witnesses, whether called
by itself or by a party,' N.C.G.S. § 8C-1, Rule 614(b) (1992), 'in
order to clarify confusing or contradictory testimony,' State v.
Ramey, 318 N.C. 457, 464, 349 S.E.2d 566, 571 (1986). State v.
Corbett, 339 N.C. 313, 328, 451 S.E.2d 252, 260 (1994).
In the case at bar, Defendant had $19.75 in quarters in his
pockets, and the State presented evidence that the quarters came
from game machines located inside Wood's Grocery Store. The
defense rebutted with witness Joshua Curry, who testified that he
and Defendant tended bar together the night before the alleged
crimes, when it had been fifty-cent beer night. Joshua Curry
testified that customers left quarters as tips. After testifying
that he and Defendant split the quarters in the tip jar in half,
the trial court then asked: Trial Court: What do you do with your
quarters when you get them?
Joshua Curry: Cash them in.
Trial Court: For dollars?
Joshua Curry: Sometimes I do, sometimes I
Trial Court: You carry them for 48 hours in
your pocket if there are 80
Joshua Curry: He left early that night.
The trial court's questions here do not clarify confusing or
contradictory testimony. While we have only the benefit of the
cold record to review this exchange, it is logical to conclude that
the questioning, particularly You carry them for 48 hours in your
pocket if there are 80 quarters? with voice inflections, may have
come uncomfortably close to an opinion as to the credibility of the
witness's testimony. As this Court has made clear,
Trial judges are prohibited from expressing an
opinion by N.C. Gen. Stat. § 15A-1222 (1978).
They must be careful in what they say and do
because a jury looks to the court for guidance
and picks up the slightest intimation of an
opinion. It does not matter whether the
opinion of the trial judge is conveyed to the
jury directly or indirectly as every defendant
in a criminal case is entitled to a trial
before an impartial judge and an unbiased
jury. State v. Whitted, 38 N.C. App. 603, 248
S.E. 2d 442 (1978).
State v. Sidbury, 64 N.C. App. 177, 178-79, 306 S.E.2d 844, 845
(1983). Nevertheless, not every improper remark made by the trial
judge requires a new trial[,] and the underlying result may
manifest mere harmless error. State v. Summerlin, 98 N.C. App.
167, 174, 390 S.E.2d 358, 361 (citations omitted), disc. reviewdenied, 327 N.C. 143, 394 S.E.2d 183 (1990). Here, given the
overwhelming weight of the evidence against Defendant, any error in
the trial court's questioning would have been harmless.
Regarding conspiracy to commit felony murder, Defendant posits
that North Carolina does not recognize conspiracy to commit felony
murder. The two cases on which Defendant heavily relies in making
his argument are State v. Lea, 126 N.C. App. 440, 485 S.E.2d 874
(1997), and State v. Coble, 351 N.C. 448, 527 S.E.2d 45 (2000).
While those cases addressed attempted felony murder and attempted
second-degree murder, respectively, their reasoning, particularly
that in Lea, also applies to conspiracy to commit felony murder.
In Lea, this Court stated:
[A] conviction of felony murder requires no
proof of intent other than the proof of intent
necessary to secure conviction of the
underlying felony. Id.
To convict a defendant of criminal attempt, on
the other hand, requires proof that the
defendant specifically intended to commit the
crime that he is charged with attempting.
E.g., State v. McAlister, 59 N.C. App. 58, 60,
295 S.E.2d 501, 502 (1982), disc. review
denied, 307 N.C. 471, 299 S.E.2d 226 (1983).
An attempt, by definition, is an act done
with intent to commit that crime, carried
beyond mere preparation to commit it, but
falling short of its actual commission. Id.
"Although a murder may be committed without an
intent to kill, attempt to commit murder
requires a specific intent to kill. Braxton
v. United States, 500 U.S. 344, 351, 114 L.
Ed. 2d 385, 393, 111 S. Ct. 1854 (1991)
We conclude that a charge of attempted felony
murder is a logical impossibility in that it
would require the defendant to intend what is
by definition an unintentional result.Accordingly, the offense of attempted felony
murder does not exist in North Carolina.
, 126 N.C. App. at 449-50, 485 S.E.2d at 880. And in Coble
Supreme Court affirmed Lea
Because specific intent to kill is not an
element of second-degree murder, the crime of
attempted second-degree murder is a logical
impossibility under North Carolina law. The
crime of attempt requires that the actor
specifically intend to commit the underlying
offense. See Hageman
, 307 N.C. at 13, 296
S.E.2d at 441. It is logically impossible,
therefore, for a person to specifically intend
to commit a form of murder which does not
have, as an element, specific intent to kill.
, 351 N.C. at 451, 527 S.E.2d at 48.
While neither Lea
addresses conspiracy to
commit felony murder, extending the logic particularly of
could lead one to conclude that conspiracy to commit
felony murder is also a logical impossibility, given the
requirement for specific intent for conspiracy and the
lack of such requisite intent for felony murder.
Nevertheless, a prior North Carolina Supreme Court case,
State v. Gibbs
, 335 N.C. 1, 51-52, 436 S.E.2d 321, 350
(1993), explicitly upheld a conspiracy to commit felony
murder conviction. And because Lea
, a Court of Appeals
case, could not overrule Gibbs
, and neither Lea
directly addressed conspiracy to commit felony murder,
controls, and this Court is constrained to hold
that Defendant's conviction of conspiracy to commit
felony murder must stand. I do, however, respectfullyurge our Supreme Court to grant review on this issue, if
requested by Defendant, to give greater clarity on the
law controlling this issue.
*** Converted from WordPerfect ***