STATE OF NORTH CAROLINA
v
.
Wake County
No. 02 CRS 34170
DESHUNE RONRICES BENNETT
Attorney General Roy Cooper, by Special Deputy Attorney
General Jill Ledford Cheek, for the State.
Nora Henry Hargrove, for the defendant-appellant.
STEELMAN, Judge.
On the evening of 25 August 2002 Esther Williams returned to
her house to find defendant and Rodreguise L. Calhoun inside. She
then left to run an errand, and when she returned a short time
later she noticed a group of people around her house. Upon
entering, she found Kamara Samuels laying face down inside her
house, wearing only a black t-shirt and boxer shorts. Samuels had
been shot. She asked Samuels who had shot him and he answered
“Chico” and “Worm.” Samuels subsequently died of his injuries.
Calhoun was later identified as “Chico,” and defendant was
identified as “Worm.”
Albert Jones lived across the street from Williams, and heard
a gunshot that evening. He went to Williams' house to investigateand saw Calhoun through the back door, holding a gun. Jones
returned to his house and got his shotgun. Upon seeing defendant
and Calhoun running from Williams' house, he fired his shotgun,
hitting defendant in the arm and buttocks.
Near where Samuels was lying police found a pair of pants and
an empty wallet. The defendant, Calhoun and Samuels were involved
in the drug trade together, and were known to carry large amounts
of cash. Defendant was arrested early the next morning, and was
carrying $853.00 in cash, a box of .44 caliber bullets, and two
rocks of crack cocaine. When interviewed by police, after several
contradictory stories, defendant admitted that he was present that
evening and that he and Calhoun had gone to Williams' house (which
was used by Samuels to sell drugs) to retrieve $3000.00 defendant
claimed Samuels owed to him. Defendant denied taking any money
from Samuels. Defendant stated that while he was with Calhoun and
Samuels that night, it was Samuels who had first reached towards
his waistband as if going for a gun. It was then, according to
defendant, that Calhoun pulled out his gun, precipitating a scuffle
between Samuels and Calhoun for Calhoun's gun. Defendant stated
that the gun discharged in the fight, wounding Samuels. Defendant
claimed he did not know how Calhoun's pants were removed.
At trial, the State proceeded on the theory that Calhoun was
the shooter, and that defendant was guilty of non-capital first-
degree murder based on either the doctrine of acting in concert
under felony murder, or aiding and abetting under premeditated and
deliberated murder. At the close of evidence, the trial courtinstructed the jury on first-degree murder under two theories _
felony murder based on robbery with a dangerous weapon and
premeditation and deliberation, and second-degree murder. The
trial court instructed the jury on the theory of aiding and
abetting as to the charge of first-degree murder based upon
premeditation and deliberation, and upon the theory of acting in
concert as to the felony murder charge. The jury found defendant
guilty of first-degree murder under the felony murder rule. From
a sentence of life imprisonment without parole defendant appeals.
In his first argument, based upon his eleventh assignment of
error, defendant contends that the trial court erred in not
instructing the jury on the theory of acting in concert on the
charge of second-degree murder. We disagree.
Defendant did not object to the trial court's instruction on
second-degree murder at trial.
A party may not assign as error any portion of
the jury charge or omission therefrom unless
he objects thereto before the jury retires to
consider its verdict, stating distinctly that
to which he objects and the grounds of his
objection; provided, that opportunity was
given to the party to make the objection out
of the hearing of the jury, and, on request of
any party, out of the presence of the jury.
Rule 10(b)(2), North Carolina Rules of Appellate Procedure.
Outside the presence of the jury, the trial court provided all
counsel with written copies of the jury instructions he intended to
give to the jury. The trial court then asked counsel to review the
proposed instructions “to see if there are any additional requests
for modifications, deletions, corrections.” After affording theparties an opportunity to review the instructions, the trial court
asked both parties if they had any objections. The defendant did
not object to the instruction on second-degree murder at that time.
After charging the jury, the trial judge again asked the parties
whether they had any “additional instructions, corrections,
modifications or if you want to do anything else?” Again defendant
failed to object to the instruction on second-degree murder. “Rule
10(b)(2) of our Rules of Appellate Procedure requiring objection to
the charge before the jury retires is mandatory and not merely
directory.” State v. Fennell, 307 N.C. 258, 263, 297 S.E.2d 393,
396 (1982); State v. Bradley, 91 N.C. App. 559, 564, 373 S.E.2d
130, 133 (1988); see also State v. Morgan, 315 N.C. 626, 644, 340
S.E.2d 84, 95 (1986)(even where trial court has an affirmative duty
ex mero motu to give an instruction, failure on the part of
defendant to object precludes assigning the lack of instruction as
error on appeal except as plain error). We further note that
defendant has not assigned as plain error in the record the trial
court's instruction on the offense of second-degree murder, and
thus waives the right to plain error analysis of this issue on
appeal. State v. Moore, 132 N.C. App. 197, 511 S.E.2d 22 (1999).
We therefore do not consider this argument.
In his second argument, encompassing his fifth and ninth
assignments of error, defendant contends that the trial court erred
in failing to grant his motion to dismiss because there was
insufficient evidence to prove robbery with a dangerous weaponbeyond a reasonable doubt, and thus there was insufficient evidence
to convict him of felony murder. We disagree.
[U]pon a motion to dismiss in a criminal
action, all the evidence admitted, whether
competent or incompetent, must be considered
by the trial judge in the light most favorable
to the State, giving the State the benefit of
every reasonable inference that might be drawn
therefrom. Any contradictions or discrepancies
in the evidence are for resolution by the
jury. The trial judge must decide whether
there is substantial evidence of each element
of the offense charged. Substantial evidence
is such relevant evidence as a reasonable mind
might accept as adequate to support a
conclusion.
State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587
(1984)(internal citations omitted).
“The elements of [robbery with a dangerous weapon] are an
unlawful taking or an attempt to take personal property from the
person or in the presence of another, by use or threatened use of
a firearm or other dangerous weapon, whereby the life of a person
is endangered or threatened. N.C.G.S. § 14-87 (1993).” State v.
Thomas, 350 N.C. 315, 343, 514 S.E.2d 486, 503 (1999). State's
evidence tends to show that defendant was at the scene of the
shooting; that when Samuels was shot he was wearing pants; that
defendant remained in the house for several minutes after the
shooting; that when Samuels was found lying on the floor his pants
were removed and his wallet was out and empty; and that defendant
and Calhoun fled the scene of the shooting together. When
defendant was arrested he had $853.00 in cash. Defendant told
police the reason he had gone to the scene that day was to
retaliate against Samuels because Samuels had stolen $5000.00 incash from him and a $2000.00 medallion and a Rolex pinky ring from
a friend of his at gunpoint. He also told police that the reason
he went there that night was to retrieve $3000.00 that Samuels owed
him.
When viewed in the light most favorable to the State, allowing
every reasonable inference in its favor, this constitutes relevant
and substantial evidence that a reasonable mind might accept as
adequate to support a conclusion that defendant, acting in concert
with Calhoun, committed robbery with a dangerous weapon. This
argument is without merit.
In his third argument, which he asserts is based on assignment
of error nine, defendant contends that the trial court erred in its
instruction on robbery with a dangerous weapon as an underlying
felony supporting felony murder on the basis that the instruction
was contrary to the law of North Carolina. We disagree.
Defendant argues that the trial court committed reversible
error by incorrectly charging the jury in its final mandate that if
it found
from the evidence presented beyond a
reasonable doubt that on or about April 25th of
2002, that the defendant, acting by himself or
together with another, committed or attempted
to commit robbery with a dangerous weapon, and
that while committing robbery with a dangerous
weapon the defendant, acting by himself or
with another, killed Mr. Samuels and that
defendant's actions were a proximate cause of
Mr. Samuels' death, it would be your duty to
return a verdict of guilty of first degree
murder under the felony murder rule.
Defendant argues that this instruction is contrary to the law of
North Carolina because the jury was never given the legaldefinition of attempt, the State did not argue attempt at trial,
and that because there was insufficient evidence to support a
completed robbery, giving the instruction on attempt allowed the
jury to convict defendant of felony murder where it would otherwise
have been unable to do so. We first note that the evidence was
sufficient at trial to support a charge of completed robbery with
a dangerous weapon. The State based its case for felony murder on
a completed robbery with a dangerous weapon. It was thus error for
the trial court to mention attempted robbery with a dangerous
weapon in its instruction to the jury. However, in its initial
instruction on felony murder, the trial court charged only on
completed robbery, and included no instruction on attempt. The
trial court mentioned “robbery with a dangerous weapon” five
separate times in its instruction on felony murder without
mentioning attempt. It is clear to this Court that the mention of
attempted robbery in the trial court's final mandate was merely a
lapsus linguae, and did not confuse the jury. The fact that the
trial court never defined attempt for the jury supports this view.
“A lapsus linguae in the instruction will not be held to be
prejudicial error if not called to the attention of the court and
if it does not appear that the jury could have been prejudiced
thereby.” State v. Willis, 22 N.C. App. 465, 468-69, 206 S.E.2d
729, 731 (1974)(citation omitted).
The charge to the jury must be considered as a
whole, in the same connected way as given to
the jury with the presumption that the jury
did not overlook any portion of it and if,
when so construed, it presents the law fairly
and correctly, there is no ground forreversal, although some of the expressions,
when standing alone, may be regarded as
erroneous.
State v. Humphrey, 13 N.C. App. 138, 142, 184 S.E.2d 902
(1971)(citation omitted). We note that although defendant's
counsel objected to the instruction on armed robbery, based on his
belief that one of the elements of the crime was missing from the
instruction, he did not object to it on the basis that the language
on attempt constituted error. Thus, defendant did not draw the
trial court's attention to its lapsus linguae. Considering the
entire instruction, we hold that the trial court's misstatement was
not enough to confuse the jury, the instruction as a whole
presented the law “fairly and correctly,” and thus there is no
ground for reversal. Id.; see also State v. Ware, 31 N.C. App.
292, 294, 229 S.E.2d 249, 251 (1976). This argument is without
merit.
In defendant's fourth argument, based on his first assignment
of error, he argues that the trial court lacked jurisdiction to try
him because he was charged under an unconstitutional “short form”
indictment. We disagree.
As defendant acknowledges, our Supreme Court has held the
“short form” indictment is constitutional. State v. Hunt, 357 N.C.
257, 582 S.E.2d 593 (2003); State v. Braxton, 352 N.C. 158, 531
S.E.2d 428 (2000), cert. denied, 531 U.S. 1130 (2001). This
argument is without merit. Because defendant has not argued his other assignments of
error in his brief, they are deemed abandoned. N.C. R. App. P.
Rule 28(b)(6) (2003).
NO ERROR.
Judges CALABRIA and GEER concur.
Report per Rule 30(e).
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