An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-732


Filed: 19 July 2005


v .                             Randolph County
                                No. 01 CRS 053837

    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 left.
    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 at him.
    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 him.
    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 dismissed.
    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, holding:
        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 persons.

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 without merit.
    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 defense.
    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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