STATE OF NORTH CAROLINA
v. Sampson County
No. 02 CRS 54238
ROBERT J. FENNELL
Attorney General Roy Cooper, by Special Deputy Attorney
General A. Danielle Marquis, for the State.
Nora Henry Hargrove, for defendant-appellant.
CALABRIA, Judge.
Robert J. Fennell (“defendant”) appeals his conviction for the
first-degree murder of Algenion Carr (the “victim”). We find no
error.
On the night of 11 September 2002, Jodie Carr (“Carr”), who
shared a house with his cousin, Daphney Edge (“Edge”) and her
boyfriend, Nicholas Hinson (“Hinson”), was sitting on their porch
drinking a beer, listening to music, and talking with the victim.
While the victim and Carr sat on the porch, two men walked past on
the sidewalk, approximately twenty-four feet from the porch. One
man was short and stocky and wore a red shirt and baggy pants. The
other man was tall and wore a dark blue or black shirt and jeans. Carr saw the men's faces as they walked underneath a street light
next to the sidewalk. The victim called out to the men, “What's
up?” The men asked, “Who's that?” The victim answered, “Alg.”
The two men did not reply and kept walking.
Fifteen minutes later, the stocky man in the red shirt
returned and walked to the edge of Hinson's truck, which was parked
in the front yard. The man pulled out a pistol, said, “What's up
now?” and shot the victim six times. Carr, who was approximately
five feet away from the shooter and approximately three feet away
from the victim, felt the gun powder hit his face. The stocky man
placed the pistol in his pocket, walked out of the yard, and ran
down the road. After hearing five or six gunshots, Edge and Hinson
went to the front door. Edge saw a man with a stocky build wearing
a red shirt walking out of the front yard. Hinson saw a large man
in a red shirt about forty feet away from the house, jogging away.
The following day, police showed Jodie Carr forty-five
photographs. Carr pointed to defendant's picture as a person who
“look[s] like the shooter.” A month later, Carr picked out a more
recent photograph of defendant from a photo array of six
photographs. At trial, Carr identified defendant as the shooter.
A jury found defendant guilty of first-degree murder. The trial
court sentenced defendant to life imprisonment without parole.
Defendant appeals.
Defendant first asserts the trial court erred by denying his
motion to dismiss based on insufficiency of the evidence.
Specifically, defendant contends the State did not presentsubstantial evidence that he was the perpetrator of the crime. We
disagree.
The standard for ruling on a motion to dismiss “is whether
there is substantial evidence (1) of each essential element of the
offense charged and (2) that defendant is the perpetrator of the
offense.” State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814
(1990). “'Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.'”
State v. Patterson, 335 N.C. 437, 449-50, 439 S.E.2d 578, 585
(1994) (citation omitted). In ruling on a motion to dismiss, the
trial court must consider all of the evidence “in the light most
favorable to the State, and the State is entitled to all reasonable
inferences which may be drawn from the evidence.” State v. Davis,
130 N.C. App. 675, 679, 505 S.E.2d 138, 141 (1998). “Any
contradictions or discrepancies arising from the evidence are
properly left for the jury to resolve and do not warrant
dismissal.” State v. King, 343 N.C. 29, 36, 468 S.E.2d 232, 237
(1996).
“First-degree murder is the intentional and unlawful
killing of a human being with malice and with premeditation and
deliberation.” State v. Thomas, 350 N.C. 315, 346, 514 S.E.2d 486,
505 (1999).
Viewed in the light most favorable to the State, the evidence
tended to show that a stocky man in a red shirt and another male
walked down the sidewalk, about twenty-four feet from the victim
and Carr. The victim called out to them, “What's up?” and the men
responded, “Who's that?” The victim responded, “Alg” and the mencontinued down the sidewalk. Fifteen minutes later, the stocky man
in the red shirt returned, asked the victim, “What's up now?”,
pointed a pistol at the victim and shot him six times. Carr, who
sat less than five feet from the shooter, identified defendant as
the shooter in a photo line-up after the shooting and at trial.
Accordingly, we conclude there was substantial evidence upon which
the jury could reasonably infer defendant was the perpetrator of
the crime charged.
Defendant next asserts the trial court erred in sustaining the
State's objection to the following portion of the defense counsel's
closing argument:
DEFENSE COUNSEL: . . . Another piece of
evidence that's missing is do you have any
evidence before you, ladies and gentlemen, of
an admission or confession? No.
PROSECUTOR: Objection.
THE COURT: Approach.
. . .
THE COURT: The objection is sustained. The
jury will disregard the last argument of the
defense counsel.
Specifically, defendant argues, by sustaining the State's
objection, the trial court deprived him of his constitutional right
to present a defense . We disagree.
A defendant has a constitutional right to present a closing
argument. State v. Fletcher, 354 N.C. 455, 474, 555 S.E.2d 534,
546 (2001). However, “[t]he scope and control of these arguments
lies [primarily] within the discretion of the trial court.” State
v. Carroll, 356 N.C. 526, 536, 573 S.E.2d 899, 906 (2002). Upon
objection, it is the duty of the trial court to censor remarks not
warranted by the law or the evidence. State v. Barden, 356 N.C.316, 354, 572 S.E.2d 108, 133 (2002). Our appellate courts “will
not disturb the trial court's exercise of discretion over the
latitude of counsel's argument absent any gross impropriety in the
argument that would likely influence the jury's verdict.” State v.
Cummings, 353 N.C. 281, 297, 543 S.E.2d 849, 859 (2001). Moreover,
attorneys may not “make arguments on the basis of matters outside
the record except for matters concerning which the court may take
judicial notice.” N.C. Gen. Stat. § 15A-1230(a) (2003).
The record shows that defendant made a pre-trial statement to
police. However, this statement was not admitted into evidence.
Because the statement was not in the record and the remainder of
the defense counsel's closing argument was undisturbed, we hold the
trial court did not abuse its discretion by sustaining the State's
objection and directing the jury to disregard that portion of the
defense counsel's argument concerning the absence of an admission
or confession.
Defendant finally asserts the “short-form” indictment for
murder did not allege the elements of first-degree murder and,
therefore, it was inadequate to charge him with first-degree murder
under the United States Constitution and the Constitution of North
Carolina. Defendant acknowledges our Supreme Court has held that
short-form indictments, as authorized under N.C. Gen. Stat. § 15-
144, are sufficient to allege first-degree murder and are in
compliance with the United States and North Carolina Constitutions.
State v. Braxton, 352 N.C. 158, 174, 531 S.E.2d 428, 437 (2000).
We are bound by our Supreme Court's holding and, accordingly,reject defendant's assertion that the short-form murder indictment
violated his constitutional rights.
We have carefully considered defendant's remaining arguments
and consider them to be without merit. For the foregoing reasons,
we hold defendant received a fair trial free from error.
No error.
Chief Judge MARTIN and Judge McCULLOUGH concur.
Report per Rule 30(e).
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