An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 19 July 2005
STATE OF NORTH CAROLINA
No. 01 CRS 053837
JEREMY ANTUAN MARSH
Appeal by defendant from judgment entered 21 March 2003 by
Judge A. Moses Massey, and denial of his Motion for Appropriate
Relief on 14 January 2004 by Judge John O. Craig, III, in Randolph
County Superior Court. Heard in the Court of Appeals 9 May 2005.
Roy A. Cooper, III, Attorney General, by Joan M. Cunningham,
Assistant Attorney General, for the State.
Staples Hughes, Appellate Defender, by Katherine Jane Allen,
Assistant Appellate Defender, for defendant-appellant.
MARTIN, Chief Judge.
Defendant was indicted for first degree murder and discharging
a firearm into occupied property. He was convicted by a jury and
sentenced to life in prison without parole for first degree murder
and to a minimum of forty-six months and a maximum of sixty-five
months for discharging a firearm into occupied property.
At trial, the State's evidence tended to show that on Sunday,
22 July 2001 defendant shot Shaun Freeland (Freeland) as he stood
in the doorway of his residence. Cecil Walden testified that as
church was letting out, he heard two sets of gunshots and then a
church member approached him hysterically telling him that Freeland
had been shot. He went to Freeland's residence and assisted himuntil police arrived. Officer David Phillips testified that he
received a call for shots fired, and upon entering the residence he
saw Freeland on the floor bleeding from head wounds. He tried to
stop the bleeding while waiting for EMS to arrive. EMTs Tommy
McNeill and John Lapinski testified that upon their arrival
Freeland was not breathing, and they unsuccessfully attempted to
resuscitate him on the way to the hospital.
Lorenzo Covington (Covington) testified that he had visited
Freeland and was leaving when the shooting started. He did not see
who was shooting, but saw Freeland fall in the doorway as he ducked
down and ran around the house. Justin and Jordan Spruill both
testified that they heard gunshots and witnessed defendant firing
at Freeland. Tony Pumpkin Snuggs (Snuggs) testified that he
witnessed defendant fire shots at Freeland, at the house, and at
the woods where Covington was. He saw defendant return to the
vehicle, retrieve a second gun, and fire that weapon as well.
Snuggs also testified that Freeland had a gun but, to Snugg's
surprise, had not drawn it and returned fire. Janet Green, a
sometime resident at Freeland's house, also testified she was
asleep in the house that morning when she heard gunshots. After
being awakened by Snuggs and seeing the blood on Freeland, she
Defendant testified that on 19 July he was staying at his
girlfriend's apartment, and shortly after midnight they were
awakened by gunshots, which damaged his car. Due to a previous
disagreement, he thought Dallas Brady (Brady) was the perpetrator. After calling Brady and receiving no answer, he called Brady's best
friend, Freeland, and after speaking with him, traveled to
Freeland's house in an attempt to find Brady. At Freeland's
residence, he saw a vehicle he thought was Brady's, and as he was
parking his car, he heard at least three different kinds of weapons
firing. Defendant fled because someone ran into the road and fired
According to defendant's testimony, the next day, he arranged
to purchase two guns, and remained with his girlfriend at his home
in Seagrove, North Carolina. On Sunday morning, they returned to
his girlfriend's Asheboro apartment, and defendant realized he had
phone messages from Brady, Freeland, and Covington regarding the
Thursday night shooting. Unable to return these calls, he had his
girlfriend drive him by Freeland's residence. Freeland was not
home, but defendant left a message with Snuggs for Freeland to call
After returning home for a while, defendant had his cousin
Tracy Canty (Canty) drive him to Asheboro. After stopping to pay
for the guns, defendant discovered Freeland had left another
message, saying he was home if defendant wanted to speak with him.
On arrival at Freeland's residence, they discussed the cost of the
repairs to defendant's car and Freeland denied any involvement in
the Thursday shooting, but suggested others who might be
responsible, and told defendant he would contact him if he got
money for repairs. While defendant and Canty were en route to
Seagrove, defendant received a message from Freeland, advising himthat he had the money and asking him to return to his house to
receive it. Snuggs and Covington both testified that Freeland had
told each of them, shortly before the shooting, that Freeland and
defendant had settled matters between them.
Defendant testified when he returned to Freeland's, he noticed
Covington in the yard on the side of the house, and Freeland in the
doorway. Defendant stated that he realized Freeland had a gun in
his hand, and thinking he was being ambushed, reached in his pants
for his own nine millimeter gun, pulled it out, and started
shooting. After shooting a couple of times, the gun jammed, so he
had Canty hand him the other gun, which he also shot. Defendant
further testified that he believed Freeland had tricked him, that
he knew Freeland had guns and had seen him shoot people before.
Others corroborated defendant's testimony as to Freeland's
reputation for violence and use of guns.
Canty testified that he was simply driving defendant, which
was not unusual since defendant lacked a driver's license and
frequently paid Canty to drive him places, and did not see the guns
until immediately before the shooting. His recollection of the
shooting corroborated the defendant's, except that he did not
recall Freeland or Covington having a gun. After the shooting was
over, defendant and Canty fled the scene, switched vehicles and
traveled to Georgia. Canty testified he was afraid of defendant,
and that he wanted them both to turn themselves in, but defendant
refused. In Georgia, Canty turned himself in to a police officer
at a convenience store, and was extradited back to North Carolina,where he gave a statement to Detective Mark Lineberry of the
Asheboro Police Department. Defendant turned himself in the next
day at the Randolph County jail.
Within ten days of his conviction, defendant filed a motion
for appropriate relief alleging juror misconduct and ineffective
assistance of counsel. After an evidentiary hearing, the motion
was denied. Defendant appeals.
In his brief, defendant brings forward only six of the thirty-
six assignments of error set forth in the record on appeal. His
remaining assignments of error, including those related to his
motion for appropriate relief, are deemed abandoned. N.C. R. App.
P. 28(b)(6) (2004). Defendant argues that 1) the short form
indictment for murder was constitutionally invalid; 2) the trial
court erroneously excluded evidence of self defense; 3) the trial
court erroneously admitted testimony concerning a witness'
willingness to take a lie detector test; 4) the trial court's jury
instructions relating to discharging a weapon into occupied
property were improper because they combined elements of the
offense; 5) the trial court failed to give a self-defense
instruction in the final mandate to the jury; and 6) defendant
should have received credit for time served against his sentence
for discharging a firearm into occupied property. We conclude
there was no prejudicial error at defendant's trial, but remand for
correction of the judgment for discharging a firearm into occupied
property for an award of credit for time served awaiting trial.
Defendant argues that the short form indictment charging him
with murder is invalid and violates his rights under the Sixth,
Eighth and Fourteenth Amendments of the United States Constitution.
We are bound by our Supreme Court's holding that the short-form
indictment is sufficient to charge first-degree murder on the basis
of any of the theories . . . set forth in N.C.G.S. § 14-17. State
v. Braxton, 352 N.C. 158, 174, 531 S.E.2d 428, 437 (2000), cert.
denied, 531 U.S. 1130, 148 L. Ed. 2d 797 (2001). The indictment in
this case alleged first degree murder and referenced section 14-17;
therefore, this assignment of error is overruled.
Defendant maintains the trial court improperly excluded
hearsay testimony supporting his theory of self defense. This
argument is not properly preserved for review because defendant did
not make an offer of proof regarding the evidence and [i]t is well
established that an exception to the exclusion of evidence cannot
be sustained where the record fails to show the disputed
testimony. State v. May, 354 N.C. 172, 178, 552 S.E.2d 151, 155
(2001), cert. denied, 535 U.S. 1060, 152 L. Ed. 2d 830 (2002)
(citation omitted). The evidence in question is not part of the
record before us - neither the videotape of Snuggs' statement nor
a transcript of it appear in the record, nor did the trial counsel
make an offer of proof. N.C. R. App. P. 10(c)(4) (2004). This
assignment of error is dismissed.
Next, defendant contends the trial court erroneously admitted
testimony regarding Canty's willingness to take a polygraph
examination. We disagree. Since defendant did not object to the
mention of a polygraph test at trial, we examine for plain error,
i.e., error so fundamental that absent the error the jury probably
would have reached a different verdict. State v. Mitchell, 328
N.C. 705, 711, 403 S.E.2d 287, 290 (1991). While the results of a
polygraph are inadmissible in evidence, State v. Grier, 307 N.C.
628, 645, 300 S.E.2d 351, 361 (1983), [i]t is clear that the law
of this state does not mandate reversal upon the mere mention of a
polygraph. State v. Moose, 115 N.C. App. 707, 709, 446 S.E.2d
112, 113 (1994).
At trial, the State introduced Canty's statement to Detective
Lineberry as corroborative or impeachment evidence and the jury was
instructed accordingly. Trial counsel objected to the reference
to a polygraph test, which was Canty's affirmative response to the
question Will you take a polygraph to show your truthfulness?
During the conference, trial counsel stated I guess I would
withdraw my objection if I'm entitled to ask did you in fact give
it. I know the answer is no. I just don't want this to be couched
this way. If I can ask that question, I have no problem. The
statement was read to the jury and Lineberry testified on cross-
examination that Canty was never given a polygraph because the
statement was corroborated by other witnesses. We do not believe
that the jury would have reached a different verdict had Canty's
willingness to take a polygraph examination been stricken, giventhe fact that Canty testified and was cross-examined regarding the
statement and its substance, providing the jury with the
opportunity to assess his credibility. This assignment of error is
Defendant's next argument is that the pattern jury
instructions for discharging a weapon into occupied property
contain contradictory standards. Defendant argues the court's
initial instruction instructed the jury that defendant would be
guilty if he knew the property was occupied or had reasonable
grounds to believe that it might be occupied, while, in contrast,
the final mandate of the instruction states that defendant would be
guilty if he knew the property might be occupied.
N.C.P.I.--Crim. 208.90 (2002) (emphasis supplied). Defendant
maintains that the language of the mandate lowers the standard of
reasonable proof that defendant actually knew the building was
occupied to one where the jury could convict if the defendant knew
the building might be occupied. We are unpersuaded.
Where a defendant tells the trial court that he has no
objection to an instruction, he will not be heard to complain on
appeal. State v. White, 349 N.C. 535, 570, 508 S.E.2d 253, 275
(1998), cert. denied, 527 U.S. 1026, 144 L. Ed. 2d 779 (1999). Our
Supreme Court approved of the pattern jury instruction, noting that
N.C. Gen. Stat. § 14-34.1 does not have any knowledge element.
Addressing an argument similar to defendant's regarding the use of
might, the Court noted that a previous interpretation of thestatute added a knowledge requirement and had been followed in a
series of cases decided by this Court and our Court of Appeals.
State v. James, 342 N.C. 589, 596, 466 S.E.2d 710, 714-15 (1996).
The Court in James affirmed the interpretation of the statute,
that a person is guilty of the felony created
by G.S. 14-34.1 if he intentionally, without
legal justification or excuse, discharges a
firearm into an occupied building with
knowledge that the building is then occupied
by one or more persons or when he has
reasonable grounds to believe that the
building might be occupied by one or more
Id., 466 S.E.2d at 715 (quoting State v. Williams, 284 N.C. 67, 73,
199 S.E.2d 409, 412 (1973)). Therefore, it was not error for the
trial court to instruct the jury using the pattern instructions.
Moreover, defendant requested this instruction and did not object
to the use of the word might. This assignment of error is
In his next argument, defendant asserts the trial court erred
by failing to include self defense in its final mandate to the jury
on the charge of discharging a firearm into occupied property.
Where [a] possible verdict of not guilty by reason of self-defense
[is] not included in the final mandate to the jury, State v.
Williams, 154 N.C. App. 496, 499, 571 S.E.2d 886, 888 (2002), the
failure to include such an instruction in its final mandate to the
jury [is] prejudicial error. State v. Dooley, 285 N.C. 158, 166,
203 S.E.2d 815, 820 (1974). In the present case, the trial court instructed the jury:
Even if you are satisfied beyond a reasonable
doubt that the defendant committed first
degree murder or second degree murder, you may
return a verdict of first degree murder or
second degree murder only if the State has
also satisfied you beyond a reasonable doubt
that the defendant did not act in self
defense. . . . If you do not so find, that is
as to the State's burden regarding proving
beyond a reasonable doubt self defense in the
ways that I've explained it to you, or you
have a reasonable doubt that the State has
proved any of these three things, then the
defendant's actions would be justified by self
defense. Therefore, you would return a
verdict of not guilty to either first degree
murder or second degree murder.
The trial court, however, did not instruct the jurors, in its final
mandate, that they could return a verdict of not guilty of
discharging a firearm into occupied property by reason of self
Because defense counsel, when asked if there were any other
corrections or additions which needed to be made to the
instructions, did not call the omission to the court's attention
and affirmatively indicated that the defendant was satisfied with
the instruction, we apply a plain error analysis to the court's
omission. See N.C.R. App. P. 10(c)(4) (2004). On the facts of
this case, we conclude the trial court's omission does not
constitute plain error.
The jury clearly rejected self defense in any form, as
demonstrated by its verdict of guilty of first degree murder. The
facts giving rise to the charge of murder are the same as those
supporting the charge of discharging a firearm into occupiedproperty, i.e., defendant's firing a weapon at the victim while he
was in the entry to his residence. The jury's verdict of guilty of
first degree murder necessarily required the jury to find that
defendant fired a weapon, not in self-defense, into the victim's
residence while it was occupied; a verdict of not guilty of
discharging a firearm into occupied property by reason of self-
defense would require the jury to reject the very facts upon which
it based its verdict to the murder charge. Therefore, we conclude
there is no probability the jury would have reached a different
result as to the charge of discharging a firearm into occupied
property had the mandate for that charge included self defense.
Defendant's final argument is that the trial court failed to
give him credit against his sentence for discharging a firearm into
occupied property for 424 days spent in confinement prior to the
judgment. The State concedes error in this regard. Defendant was
sentenced for both discharge of a firearm into an occupied dwelling
and first degree murder, but the judgments do not indicate if the
terms of imprisonment are concurrent or consecutive. In the
absence of a statutory requirement, the trial court determines
whether to impose multiple sentences concurrently or consecutively.
The sentences shall run concurrently if the trial court otherwise
does not specify. N.C. Gen. Stat. § 15A-1354(a) (2003).
Concurrent sentences each are credited with so much of the time as
was spent in custody due to the offense resulting in the sentence.
N.C. Gen. Stat. § 15-196.2 (2003). Accordingly, we remand withinstructions that the judgment for discharging a firearm into
occupied property reflect that defendant be credited 424 days
credited for time spent in pre-trial confinement.
No error, remanded with instructions.
Judges TYSON and LEVINSON concur.
Report per Rule 30(e).
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