An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA04-358

NORTH CAROLINA COURT OF APPEALS

Filed: 19 July 2005

STATE OF NORTH CAROLINA

v .                         Cumberland County
                            No. 01 CRS 54636
ABDUL FRANCISCO HERNANDEZ,
        Defendant.

    Appeal by defendant from judgment entered 29 July 2003 by Judge James Floyd Ammons, Jr. in Cumberland County Superior Court. Heard in the Court of Appeals 18 November 2004.

    Attorney General Roy Cooper, by Assistant Attorney General Robert C. Montgomery, for the State.

    Miles & Montgomery, by Mark Montgomery, for defendant- appellant.

    GEER, Judge.

    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.

Facts
    The State's evidence tended to show the following. At the time of the crime, Goldie Willis was the owner of a commercial building in Fayetteville, North Carolina. In one half of the building, Willis operated a grocery store. In the other half of the building, there was a tackle shop operated by Willis' son, Danny Bayless. The two businesses shared a common public entrance on the street: patrons of the tackle shop had to enter the grocery store first and then turn to the right and walk through swinging doors to enter the tackle shop.
    On 17 April 2001, Willis was behind her counter, talking with two customers, when defendant and two other men entered the grocery store. The men announced, "This [is] a robbery. Get down." Willis and her customers obeyed, and one of the robbers took $200.00 from Willis' pocket. Defendant then entered the tackle shop through the swinging doors. Willis and her customers testified that they heard at least one gunshot come from the direction of the tackle shop and heard the sound of a counter being overturned. Defendant emerged from the tackle shop and fled the scene with the two other men.
    As soon as they left, one of the customers went into the tackle shop and found Danny Bayless face down among some shelves. He had been shot once in the chest and was dead. One of the counters had been knocked over, glass was shattered across the floor, and a cash register was sitting on some of the contents of the overturned counter.     On 31 May 2001, defendant turned himself in to the police and, after being advised of his rights and waiving them, he gave a statement in which he admitted that he and the two other men were looking for places to rob after spending a day and night smoking "weed" and "tooting powder." He further admitted that he and his two companions entered the grocery store with the intent to rob it and that he went into the tackle shop. According to defendant's statement, he pointed his gun at Bayless and ordered him to lie down, but Bayless instead jumped on defendant and they struggled over the gun. Defendant claimed that he pulled the trigger twice and heard "click, click;" the two men then knocked over the counter; and, as the men fell to the ground, defendant's gun went off. Defendant jumped up and left.   (See footnote 1) 
    Defendant was indicted on 19 May 2003 for first degree murder using a short-form murder indictment. He was also indicted for conspiracy to commit robbery with a dangerous weapon and robbery with a dangerous weapon. Following a capital murder trial, the jury found defendant guilty of first degree murder under the felony murder rule, but acquitted defendant of first degree murder based on malice, premeditation, and deliberation. With respect to the felony underlying the murder, the jury found that the murder had been committed during the course of an attempted robbery with a dangerous weapon of Danny Bayless and not during the commission ofa robbery with a dangerous weapon of the Willis Grocery Store. The jury also found defendant guilty of conspiracy to commit robbery with a dangerous weapon, but acquitted him of robbery with a dangerous weapon.
    After the capital sentencing proceeding, the jury recommended that defendant be sentenced to life imprisonment without parole. The trial court accordingly entered a sentence of life imprisonment without parole on the first degree murder charge and, after finding that factors in aggravation outweighed factors in mitigation, a consecutive aggravated sentence of 36 to 53 months on the charge of conspiracy to commit robbery with a dangerous weapon. Defendant timely appealed.
Discussion
    Defendant first argues that the trial court should have granted his motion to dismiss because, in violation of his federal constitutional rights, the short-form murder indictment failed to give notice as to the theory of first degree murder that the State intended to rely upon: premeditation and deliberation or felony murder. Our appellate courts have, however, repeatedly held that the short-form murder indictment is constitutionally sufficient to support a conviction for felony murder even though it does not distinguish between first degree murder theories and does not identify the felony providing the basis for felony murder.
    In Garcia, our Supreme Court stated:
It is well settled that short-form indictments authorized by [ N.C. Gen. Stat. § 15-144] meet state and federal constitutional requirements. . . . More specifically, this Court hasconsistently held that murder indictments that comply with N.C.G.S. § 15-144 are sufficient to charge first-degree murder on the basis of any theory set forth in N.C.G.S. § 14-17. . . . Therefore, a short-form indictment is sufficient to charge first-degree murder on the basis of felony murder . . . . Because defendant was convicted of felony murder . . . and because defendant was charged in a short- form indictment in compliance with N.C.G.S. § 15-144, we find the indictment to be constitutionally sufficient.

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 murder.

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.

    No error.
    Judges TIMMONS-GOODSON and CALABRIA concur.
    Report per Rule 30(e).


Footnote: 1
    At trial, defendant presented the testimony of a clinical psychologist who expressed the opinion that because of intoxication and fear defendant's ability to form the specific intent to kill was probably impaired.

*** Converted from WordPerfect ***