STATE OF NORTH CAROLINA
No. 01 CRS 54636
ABDUL FRANCISCO HERNANDEZ,
Attorney General Roy Cooper, by Assistant Attorney General
Robert C. Montgomery, for the State.
Miles & Montgomery, by Mark Montgomery, for defendant- appellant.
Defendant Abdul Francisco Hernandez appeals from his convictions for first degree murder under the felony murder rule and conspiracy to commit robbery with a dangerous weapon. Defendant's arguments on appeal are based primarily on his general contention that he did not receive sufficient notice prior to trial of the State's theory regarding the first degree murder charge. Based on State v. Garcia, 358 N.C. 382, 597 S.E.2d 724 (2004), cert. denied, __ U.S. __, 161 L. Ed. 2d 122, 125 S. Ct. 1301 (2005), we are compelled to uphold defendant's convictions.
Garcia, 358 N.C. at 388, 597 S.E.2d at 731-32. See also State v.
Andrews, __ N.C. App. __, __, 612 S.E.2d 178, 182 (2005) (short-
form murder indictment was sufficient to support conviction for
felony murder when defendant committed murder in the course of an
armed robbery). Based on this authority, the trial court properly
denied defendant's motion to dismiss. Although defendant makes
various arguments contrary to Garcia, we are not free to disregard
Garcia or our own precedent.
In a related argument, defendant contends that the State erred in submitting to the jury a felony murder theory not set out in the indictment. The trial court instructed the jury that it could find defendant guilty of felony murder if defendant committed the murder during an attempted robbery of Danny Bayless. Defendant argues that this instruction was at variance with the indictment because while the short-form murder indictment did not allege the felony at issue, the indictment also included a count charging defendant with armed robbery of the grocery store. According to defendant, the armed robbery count of the indictment precluded the trial court from instructing the jury that the attempted robbery of Bayless could be a basis for felony murder. Defendant's argument fails because the State is not required to indict a defendant for the felony used as the basis for felony murder. State v. Scott, 150 N.C. App. 442, 454, 564 S.E.2d 285, 294 ("When the State prosecutes a defendant for first-degree murder under the felony murder rule, the State is not required to secure a separate indictment for the underlying felony."), appeal dismissed and disc. review denied, 356 N.C. 443, 573 S.E.2d 508 (2002). As a result, any variance between a felony indictment and the charge to the jury as to that felony for purposes of felony murder does not taint the felony murder conviction. As this Court stated in Scott:
Any alleged error arising from the variance between the burglary indictment and the trial court's instructions on burglary has no effect on defendant's felony murder convictions because the State is not required to secure a separate indictment for the underlying felony in a felony murder prosecution. . . .
. . . .
In sum, the State was not required to
return an indictment for burglary in order to
use burglary as the underlying felony in the
prosecution of defendant for felony murder.
Therefore, any variance between the burglary
indictment and the charge to the jury on
burglary did not prevent the State from using
burglary as the underlying felony for felony
Id. at 456, 564 S.E.2d at 295. Under Scott, therefore, the fact
that the indictment charged armed robbery of the grocery did not
prevent the State from contending that attempted robbery of Bayless
constituted the felony for purposes of the felony murder charge.
Defendant next argues that the trial court erred in denying
his request for a bill of particulars. Specifically, defendant
asserts that "[i]n murder cases, where the indictment itself does
not put the defendant on notice of the state [sic] theory of first-
degree murder, the defendant is entitled to a bill of particulars
with that information." While defendant acknowledges that the
State is not required to decide prior to trial which theory or
theories it will ultimately rely upon, defendant contends that "the
state must at least give the defendant notice of those theories it
may pursue." Garcia rejected this argument as well.
The defense counsel in Garcia had asked that the State be required to provide a bill of particulars identifying the State's theory _ whether it was premeditation and deliberation or felony murder _ and, if felony murder, the particular felonies upon which the State intended to rely. After observing that N.C. Gen. Stat. § 15A-925(b) (2003) requires that the motion for a bill of particulars specify items of factual information desired by the defendant, our Supreme Court held that "[s]uch legal theories of the prosecution are not 'factual information' within the meaning of N.C.G.S. § 15A-925." Garcia, 358 N.C. at 389, 597 S.E.2d at 732 (quoting N.C. Gen. Stat. § 15A-925(b)). The Court summed up: "The State is not required to choose its theory of prosecution prior to trial. Accordingly, defendant was not entitled to learn the State's theory of the case by a bill of particulars." Id. at 389- 90, 597 S.E.2d at 732. Since we cannot distinguish defendant'sargument in this case from the defendant's argument in Garcia, we must overrule this assignment of error.
Finally, defendant contends that in the absence of a more detailed indictment or a bill of particulars, the trial court should have granted his motion to require the State "to specify its theory o[r] theories." Defendant contends that he was prejudiced by the lack of notice regarding the State's theories because he was misled into believing that the State was either relying upon only premeditation and deliberation or, if proceeding under the felony murder rule, that the State was contending that the murder occurred in the course of an armed robbery of the grocery store rather than the attempted robbery of Bayless in the tackle shop. Defendant suggests that he was prejudiced when the State was nonetheless allowed to argue that the murder occurred during the attempted robbery of Bayless because "[t]he defendant went into trial knowing that he would have strong evidence that he neither premeditated or deliberated a killing. Moreover, he knew that the evidence would show that there was no armed robbery of Willis' Grocery Store. The defendant's prescience on these points was validated by the jury's verdicts."
Defendant is not, however, suggesting that he did not know of the potential for the State to rely upon the attempted robbery. As defendant acknowledges in his brief, "there was stronger evidence that there was at least an attempted robbery of Danny Bayless in his bait and tackle shop next door." Defendant has pointed to no factual information presented by the State of which defendant wasunaware or that was necessary in order for defendant to be adequately prepared for trial. In light of defendant's voluntary statement to the police, this is hardly surprising. In addition, the State notified the trial court: "We have open file and continue to have open file discovery."
In Garcia, the Supreme Court held that such circumstances demonstrated a lack of prejudice to the defendant:
[I]t is apparent from the transcript that defendant knew the State possessed at least some evidence to support a conviction for felony murder based upon robbery or attempted rape. . . . In light of counsel's discussion with the trial court [in the pre-trial hearing], there does not appear to be any factual information later introduced at trial which was beyond defendant's knowledge and necessary to enable defendant to adequately prepare or conduct his defense. . . . To the contrary, the record shows that the State voluntarily provided defendant with open file discovery.
Id. at 390, 597 S.E.2d at 733 (internal quotation marks omitted).
See also State v. Hines, 122 N.C. App. 545, 551, 471 S.E.2d 109,
113 (1996) (although denied a bill of particulars, defendant was
not significantly impaired in preparation of her defense because
through discovery she received enough of the requested information
to adequately prepare her case), disc. review improvidently
allowed, 354 N.C. 627, 481 S.E.2d 85 (1997).
Defendant argues, however, that his expert witness would have testified differently had defendant had notice that the State was contending that the murder was committed in the course of an attempted robbery of Bayless. This argument does not address a failure to provide notice of factual information, but rather theState's failure to commit to a particular theory prior to trial. We are not, however, permitted to revisit Garcia's holding that no such disclosure or commitment is required. So long as a defendant does not point to any factual information of which he was deprived, Garcia provides that a conviction of felony murder based on a short-form indictment will stand even in the absence of a bill of particulars or any other disclosure of the State's theories of prosecution.
Judges TIMMONS-GOODSON and CALABRIA concur.
Report per Rule 30(e).
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