Appeal by defendant from judgments dated 6 May 2004 by Judge
Jack A. Thompson in Cumberland County Superior Court. Heard in the
Court of Appeals 8 June 2005.
Attorney General Roy Cooper, by Assistant Attorney General
Robert M. Curran, for the State.
Linda B. Weisel for defendant.
BRYANT, Judge.
On 20 October 2003, Latwang Janell Reid (defendant) was
indicted for attempted first degree murder; assault with a deadly
weapon with intent to kill inflicting serious injury; attempted
armed robbery; and first degree burglary. Defendant was also
indicted for conspiracy to commit: first degree murder; assault
with a deadly weapon with intent to kill inflicting serious injury;
robbery with a dangerous weapon; and first degree burglary.
Defendant was tried before a jury at the 3 May 2004 criminal
session of the Cumberland County Superior Court, the Honorable Jack
A. Thompson presiding. On 6 May 2004, the jury returned guilty
verdicts for attempted first degree murder, assault with a deadly
weapon with intent to kill inflicting serious injury, attempted
armed robbery, first degree burglary, conspiracy to commit robbery
with a firearm and conspiracy to commit first degree burglary.
Defendant appeals his convictions.
Facts
On the evening of 13 October 2002, Michael David Fields was
playing video games with his friend, Michael Isreal, in his room at
his home in Hope Mills, North Carolina. Fields lived in the house
with his mother, Sarah McGougan, who was also home at the time.
Earlier in the afternoon, Fields had been drinking beer and smoking
marijuana. He had also sold marijuana from his home three or four
times earlier that day.
Responding to a knock on his front door, Fields looked out the
window, saw a car which he thought he recognized as belonging to
his friend, Melvin Franklin, but could not see who was at the door. When Fields opened the inside door, three armed men were standing
at the doorway, the glass storm door having already been opened.
Two of the men had their faces covered such that Fields did not
recognize them, but he recognized the third man, whose face was not
fully covered, as defendant, whom he had known for several years.
The men grabbed Fields and pulled him outside, demanding money and
drugs.
The two men whose faces were covered then entered the house
and made their way to Fields' bedroom where Isreal was waiting for
Fields to return. They demanded Isreal tell them where the money
and the marijuana were. Isreal replied that he didn't know. The
men then forced him onto the floor and took whatever was in his
pockets. Isreal testified he was certain that neither of the men
who came into the bedroom was the defendant. While the two men
were in the bedroom with him, Isreal heard two gunshots.
Fields testified that he “tussled” with the men holding him on
the front porch, then ran away toward his neighbor's house. Fields
heard a single shot and did not remember anything more from that
night. Police later discovered Fields lying face down and
partially conscious next to a neighbor's bush. A bullet hole was
observed in his back, and the bullet was found in the front of his
shirt when he was rolled over. Fields was taken to Cape Fear
Valley Medical Center, where he spent nearly a month in a coma, and
over eight months in the hospital. After coming out of his coma in
the hospital, Fields identified the defendant as the person he
recognized from the assault. Defendant was arrested and a shotgun and handgun were found in
the room in which defendant was staying. Defendant did not
testify, but did present the testimony of his cousin, Melvin
Franklin, who testified that he asked Fields in the hospital if he
knew who had shot him, and Fields appeared to shake his head
indicating no. On cross-examination, Franklin was asked by the
prosecutor whether he had talked with Sarah McGougan, Fields'
mother, shortly after the shooting and told her that the defendant
had shot her son. Franklin admitted talking with McGougan, but
denied that he said defendant did the shooting. McGougan then
testified in rebuttal that Franklin told her that defendant shot
her son.
_________________________
On appeal, defendant raises twelve issues discussed in turn
below.
I
[1] Defendant first argues that as North Carolina does not
specifically authorize the use of a short-form indictment for the
crime of attempted murder and because the indictment at issue did
not sufficiently allege the offense of attempted first-degree
murder, his conviction for attempted murder must be vacated. “To
be sufficient under our Constitution, an indictment 'must allege
lucidly and accurately all the essential elements of the offense
endeavored to be charged.'”
State v. Hunt, 357 N.C. 257, 267, 582
S.E.2d 593, 600 (2003) (quoting
State v. Greer, 238 N.C. 325, 327,
77 S.E.2d 917, 919 (1953)). “The elements of an attempt to commita crime are: '(1) the intent to commit the substantive offense, and
(2) an overt act done for that purpose which goes beyond mere
preparation, but (3) falls short of the completed offense.'”
State
v. Coble, 351 N.C. 448, 449, 527 S.E.2d 45, 46 (2000) (quoting
State v. Miller, 344 N.C. 658, 667, 477 S.E.2d 915, 921 (1996)).
Subsequent to defendant's filing of his brief, the North
Carolina Supreme Court held short-form indictments for attempted
first-degree murder are constitutional and statutorily authorized.
State v. Jones, 359 N.C. 832, 616 S.E.2d 496 (2005). See also
State v. Andrews, 154 N.C. App. 553, 559-60, 572 S.E.2d 798, 803
(2002);
State v. Trull, 153 N.C. App. 630, 640, 571 S.E.2d 592, 599
(2002); and
State v. Choppy, 141 N.C. App. 32, 41, 539 S.E.2d 44,
50-51 (2000); all finding short-form indictments sufficient to
charge attempted first-degree murder.
Section 15-144 of the North Carolina General Statutes provides
in an indictment for murder, “it is sufficient in describing murder
to allege that the accused person feloniously, willfully, and of
his malice aforethought, did kill and murder [victim's name] . . .
.” N.C. Gen. Stat. § 15-144 (2005). Section 15-170 further
provides that “[u]pon the trial of any indictment the prisoner may
be convicted of the crime charged therein or of a less[er] degree
of the same crime, or of an attempt to commit the crime so charged,
or of an attempt to commit a less[er] degree of the same crime.”
N.C. Gen. Stat. § 15-170 (2005). The North Carolina Supreme Court
has held that when Section 15-144 is construed alongside Section
15-170, the use of a short-form indictment to charge attemptedfirst-degree murder is authorized.
Jones, 359 N.C. at 838, 616
S.E.2d at 499. “[W]hen drafting such a [sic] indictment, it is
sufficient for statutory purposes for the state to allege 'that the
accused person feloniously, willfully, and of his malice
aforethought, did [attempt to] kill and murder' the named victim.”
Id.
The indictment in the case at hand charges defendant with the
offense of attempted murder using the language from Section 15-144,
and states: “The jurors for the State upon their oath present that
on or about the date 13th day of October, 2002, in the County named
above the defendant named above unlawfully, willfully and
feloniously did of malice aforethought attempt to kill and murder
Michael David Fields.” Defendant was properly charged in a short-
form indictment with attempted first-degree murder. This
assignment of error is overruled.
II
[2] Defendant next argues his conviction for attempted first-
degree murder must be vacated because there is insufficient
evidence of specific intent to kill, premeditation, and
deliberation. Defendant contends there is no evidence he or the
“two unidentified black males or other unknown persons” had a
specific intent for their actions to result in Fields' death and
therefore defendant's motion to dismiss the charge of attempted
first degree murder was improperly denied.
In a motion to dismiss, the trial court must consider the
evidence in the light most favorable to the State and give theState every reasonable inference to be drawn from the facts and
evidence presented.
State v. Lee, 348 N.C. 474, 488, 501 S.E.2d
334, 343 (1998). “Upon defendant's motion for dismissal, the
question for the Court is whether there is substantial evidence (1)
of each essential element of the offense charged, or of a lesser
offense included therein, and (2) of defendant's being the
perpetrator of such offense. If so, the motion is properly denied.”
State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (2000)
(citation and quotations omitted). “Substantial evidence is
defined as relevant evidence which a reasonable mind could accept
as adequate to support a conclusion.”
Lee, 348 N.C. at 488, 501
S.E.2d at 343. “The evidence need only give rise to a reasonable
inference of guilt for the case to be properly submitted to the
jury.”
State v. Barnett, 141 N.C. App. 378, 383, 540 S.E.2d 423,
427 (2000).
“The elements of attempted first degree murder are: '(1) a
specific intent to kill another person unlawfully; (2) an overt act
calculated to carry out that intent, going beyond mere preparation;
(3) the existence of malice, premeditation, and deliberation
accompanying the act; and (4) a failure to complete the intended
killing.'”
State v. Poag, 159 N.C. App. 312, 318, 583 S.E.2d 661,
666 (2003) (quoting
State v. Peoples, 141 N.C. App. 115, 117, 539
S.E.2d 25, 28 (2000)). Premeditation and deliberation “are usually
proven by circumstantial evidence because they are mental processes
that are not readily susceptible to proof by direct evidence.”
State v. Sierra, 335 N.C. 753, 758, 440 S.E.2d 791, 794 (1994). Inthe context of attempted first-degree murder, circumstances that
may tend to prove premeditation and deliberation include, among
others: (1) lack of provocation by the intended victim or victims;
and (2) conduct and statements of the defendant both before and
after the attempted killing.
State v. Myers, 299 N.C. 671, 677-78,
263 S.E.2d 768, 773 (1980).
Evidence presented at trial established Fields was unarmed
when he was grabbed and pulled from the front doorway of his home
by defendant and his two accomplices, all of whom were armed.
Fields was trying to run away and thus did not see the person who
shot him. However, the evidence also indicated the two accomplices
were in the bedroom when Fields was shot. While circumstantial,
this evidence is sufficient for the jury to conclude defendant,
after sufficient deliberation, intentionally shot Fields in the
back as he was attempting to flee, intending to cause Fields'
death. This assignment of error is overruled.
III
[3] Defendant argues his conviction for burglary must be
vacated because there is insufficient evidence of a breaking.
Burglary is committed when a person “breaks or enters into the
dwelling house or sleeping apartment of another in the nighttime
with the intent to commit a felony therein.”
State v. Little, 163
N.C. App. 235, 239, 593 S.E.2d 113, 116 (2004),
appeal docketed,
No. 183A04 (N.C. Apr. 20, 2004). “A breaking in the law of
burglary constitutes any act of force, however slight, employed to
effect an entrance through any usual or unusual place of ingress,whether open, partly open, or closed.”
State v. Jolly, 297 N.C.
121, 127-28, 254 S.E.2d 1, 5-6 (1979) (citation and quotations
omitted) (constructive breaking occurred when defendant gained
entry into victim's motel room by pushing victim into the room as
the victim opened the door);
see also State v. Wilson, 289 N.C.
531, 223 S.E.2d 311 (1976).
At trial, Fields' testimony indicated he was forcibly grabbed
and dragged outside by one or more individuals when he opened his
front door, whereupon one or two of the assailants rushed past him
and into his home. This use of force is sufficient to constitute
the element of breaking necessary to support a conviction of
burglary. This assignment of error is overruled.
IV
[4] Defendant next argues his conviction for conspiracy must
be vacated because there was insufficient evidence of every element
of the crime charged and because the evidence and jury instructions
were at material variance with the allegations of the indictment.
We disagree.
“Because the crime of conspiracy lies in the agreement itself,
and not the commission of the substantive crime, a defendant can,
under certain fact situations, be convicted of a single conspiracy
when there are multiple acts or transactions.”
State v. Wilson,
106 N.C. App. 342, 345, 416 S.E.2d 603, 605 (1992) (citations
omitted). “Courts have uniformly upheld multiple-object
conspiracies, and they have consistently concluded that a guilty
verdict must be sustained if the evidence shows that the conspiracyfurthered any one of the objects alleged.”
United States v.
Bolden, 325 F.3d 471, 492 (4th Cir. 2003) (citing
Griffin v. United
States, 502 U.S. 46, 56-57, 116 L. Ed. 2d 371, 381 (1991) (“When a
jury returns a guilty verdict on an indictment charging several
acts in the conjunctive, . . . the verdict stands if the evidence
is sufficient with respect to any one of the acts charged.”)
(citations and quotations omitted)).
In the instant case, defendant was indicted for conspiracy as
follows:
THE JURORS FOR THE STATE UPON THEIR OATH
PRESENT that on or about the 13th day of
October, 2002, in the County named above the
defendant named above unlawfully, willfully
and feloniously did agree, plan, combine,
conspire and confederate with two black males
and other unknown persons to commit the
felonies of First Degree Murder, . . . Assault
with a Deadly Weapon with Intent to Kill
Inflicting Serious Injury, . . . Robbery with
a Dangerous Weapon, . . . and First Degree
Burglary . . . against Michael David Fields
and Sarah McGougan, 4600 Rita Court, Hope
Mills, North Carolina.
The trial court initially instructed the jury that in order to find
defendant guilty of conspiracy:
[T]he State had to prove three things beyond a
reasonable doubt. First, that the defendant
and two other black males entered into an
agreement. Second, that the agreement was to
commit first degree murder; assault with a
deadly weapon with intent to kill inflicting
serious injury; robbery with a firearm and
first degree burglary. And, third, that the
defendant and two other black males intended
that the agreement be carried out at the time
it was made.
In response to questions from the jury concerning the conspiracy
charge, and over defendant's objection, the trial court changed itsconspiracy instruction and gave the jury an amended verdict sheet
which read:
AS TO COUNT NUMBER TWO:
___ GUILTY OF CONSPIRACY TO COMMIT THE
FELONIES OF (CHECK EACH OFFENSE THAT YOU FIND
THE DEFENDANT CONSPIRED TO DO)
___ FIRST DEGREE MURDER
___ ASSAULT WITH A DEADLY WEAPON
WITH INTENT TO KILL INFLICTING
SERIOUS INJURY
___ ROBBERY WITH A FIREARM
___ FIRST DEGREE BURGLARY
OR
___ NOT GUILTY
The trial court instructed the jury to simply “check the space
beside the offense you find the defendant has conspired to.” The
jury returned the verdict sheet finding defendant guilty of
conspiracy to commit the felonies of robbery with a firearm and
first degree burglary.
A plain reading of the indictment indicates defendant was
charged with one conspiracy that included the commission of
multiple crimes. To convict defendant of conspiracy under the
indictment at issue, the jury was not required to find that
defendant agreed to commit every unlawful act alleged, only that
defendant agreed to commit at least one of the unlawful acts.
Furthermore, the change in the jury instructions did not constitute
a material variance in the conspiracy charge, it merely established
which unlawful acts were proven to the jury to support theirverdict of guilty on the charge of conspiracy. The jury found
defendant guilty of conspiracy to commit the felonies of robbery
with a firearm and first-degree burglary and defendant was
subsequently sentenced based upon a single conviction of
conspiracy. This assignment of error is overruled.
V
[5] Defendant next argues that his conspiracy conviction must
be vacated because there is insufficient evidence he entered into
an agreement to commit the offenses in this case. “A criminal
conspiracy is an agreement between two or more people to do an
unlawful act or to do a lawful act in an unlawful manner.”
State
v. Morgan, 329 N.C. 654, 658, 406 S.E.2d 833, 835 (1991). To prove
conspiracy it is unnecessary for the State to prove an express
agreement.
Id. The State must only present evidence tending to
show a mutual, implied understanding.
Id. “Direct proof of the
charge is not essential, for such is rarely obtainable. It may be,
and generally is, established by a number of indefinite acts, each
of which, standing alone, might have little weight, but, taken
collectively, they point unerringly to the existence of a
conspiracy.”
State v. Whiteside, 204 N.C. 710, 712, 169 S.E. 711,
712 (1933);
see also State v. Lamb, 342 N.C. 151, 155-56, 463
S.E.2d 189, 191 (1995) (finding sufficient evidence that a robbery
was carried out pursuant to a common plan when the evidence
established three men drove to the home of the victim, left their
vehicle and entered the victim's home, robbed and shot him). The evidence presented at trial tended to show that Fields was
dragged out of his home by three men armed with firearms, one of
which Fields identified as defendant. At least two of the
assailants entered Fields' home looking to steal drugs and money.
Finding no drugs or money in Fields' home, the three men left the
scene, leaving Fields lying on the ground shot in the back. This
evidence is sufficient to support an inference by the jury that
defendant was involved with the two other assailants in a
conspiracy to commit the felony of robbery with a firearm and a
conspiracy to commit the felony of first-degree burglary. This
assignment of error is overruled.
VI
[6] Next, defendant argues he is entitled to a new trial on
the assault charge because the trial court failed to submit to the
jury instructions they could find defendant guilty of assault with
a deadly weapon inflicting serious injury. The trial court stated
it would not give any lesser included offenses concerning the
charge of assault with a deadly weapon with intent to kill
inflicting serious injury. The defendant did not request an
instruction on a lesser included offense.
[W]hen there is conflicting evidence of the
essential elements of the greater crime and
evidence of a lesser included offense, the
trial judge
must instruct on the lesser
included offense even where there is no
specific request for such instruction. An
error in this respect will not be cured by a
verdict finding a defendant guilty of the
greater crime.
State v. Rowland, 54 N.C. App. 458, 461, 283 S.E.2d 543, 545 (1981)
(citations and quotations omitted). “The presence of such
[conflicting] evidence is the determinative factor. . . . Mere
contention that the jury might accept the State's evidence in part
and might reject it in part will not suffice.”
State v. Hicks, 241
N.C. 156, 159-60, 84 S.E.2d 545, 547 (1954). Where “there is
no
evidence to negate [the elements of the crime charged] other than
defendant's denial that he committed the offense, the trial judge
should properly exclude from jury consideration the possibility of
a conviction of [a lesser included offense.]”
State v. Millsaps,
356 N.C. 556, 560, 572 S.E.2d 767, 771 (2002) (citations and
quotations omitted).
Defendant chose to base his defense on the theory that he did
not commit the crimes and never attacked the State's evidence
supporting an intent to kill. Defendant presented no evidence
which would have supported the submission of the lesser included
offense. This assignment of error is overruled.
VII
[7] Defendant argues he is entitled to a new trial as to all
charges because the trial court erroneously admitted “other crimes”
evidence under Rule 404(b) that he was a local drug dealer.
“Evidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show that he acted in
conformity therewith. It may, however, be admissible for other
purposes, such as proof of . . . identity . . . .” N.C. Gen. Stat.
§ 8C-1, Rule 404(b) (2005). At trial, when Fields was asked how he knew defendant, he
responded they had “hustled together” which he explained meant they
had “sold drugs together.” This line of questioning came when the
prosecutor was establishing how Fields knew defendant such that
Fields was able to identify defendant as one of his assailants.
This testimony was properly admitted for the purpose of
establishing how Fields could identify defendant and was not
admitted “to prove the character of [defendant] in order to show
that he acted in conformity therewith.”
Id. This assignment of
error is overruled.
VIII
[8] Defendant next argues he is entitled to a new trial
because the trial court erroneously admitted “other crimes”
evidence that he was a fugitive and had guns in his possession when
he was arrested. Rule 404(b) of the North Carolina Rules of
Evidence provides that “[e]vidence of other crimes, wrongs, or acts
is not admissible to prove the character of a person in order to
show that he acted in conformity therewith.”
Id.
There is nothing in the testimony challenged by defendant that
indicates there were any warrants out for defendant's arrest for
crimes other than those for which defendant was currently on trial.
While a shotgun and a handgun were recovered from the room in which
defendant was arrested, there had been previous testimony that a
shotgun and handgun were used in the commission of the crimes at
hand. There is absolutely no indication that this testimony
involves other crimes which would be inadmissible under the NorthCarolina Rules of Evidence.
Cf. State v. Evans, 149 N.C. App. 767,
773, 562 S.E.2d 102, 105-06 (2002) (no error under Rule 404(b)
where challenged testimony did not relate to the defendant's prior
conduct). This assignment of error is overruled.
IX
[9] Defendant also argues he is entitled to a new trial as to
all charges because the trial court erroneously admitted, over his
objection, the testimony of Fields that he had no reason to lie
about defendant. The credibility of a witness is for a jury to
decide and it is improper for counsel to ask his witness, “Are you
telling this jury the truth?”
State v. Skipper, 337 N.C. 1, 39,
446 S.E.2d 252, 273 (1994)
. In the instant case, the prosecution,
over objection by defendant, asked Fields, “Do you have any reason
to lie on him?” This question is substantially different from “are
you telling this jury the truth” and goes to whether or not the
witness has any reason to lie, not whether or not he is currently
lying.
See State v. Corbett, 339 N.C. 313, 333-34, 451 S.E.2d 252,
263 (1994) (no error in questioning defendant to show he had a
motive to lie). The trial court did not err in overruling
defendant's objection. This assignment of error is overruled.
X
[10] Defendant next claims he is entitled to a new trial as to
all charges because the trial court erred in admitting State
witness McGougan's evidence that defense witness Melvin Franklin
called her on the phone, told her defendant “did it,” and told her
to call Crime Stoppers. Franklin was called as a defense witnessand testified on direct about several things, but not about talking
to Fields' mother, Sarah McGougan, about defendant. On cross, the
Prosecutor asked Franklin whether he had talked to McGougan and
told her he “knew it was [defendant] who shot him[.]” Franklin
denied making that statement to McGougan. On rebuttal, McGougan
testified without any limiting instruction that Franklin called her
on the phone, told her defendant “did it,” told her to call Crime
Stoppers, and she said “God knows I'm telling the truth.”
However, defendant failed to object to this line of
questioning and any error must be reviewed under the plain error
rule. Defendant must therefore convince this Court not only that
there was error, but that absent the error, the jury probably would
have reached a different result.
State v. Black, 308 N.C. 736,
741, 303 S.E.2d 804, 806 (1983) (applying plain error analysis to
the admission of evidence);
State v. Cole, 343 N.C. 399, 419-20,
471 S.E.2d 362, 372 (1996).
[T]he plain error rule . . . is always to be
applied cautiously and only in the exceptional
case where, after reviewing the entire record,
it can be said the claimed error is a
“
fundamental error, something so basic, so
prejudicial, so lacking in its elements that
justice cannot have been done,” or “where [the
error] is grave error which amounts to a
denial of a fundamental right of the accused,”
or the error has “'resulted in a miscarriage
of justice or in the denial to appellant of a
fair trial'” or where the error is such as to
“seriously affect the fairness, integrity or
public reputation of judicial proceedings” or
where it can be fairly said “the . . . mistake
had a probable impact on the jury's finding
that the defendant was guilty.”
State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)
(quoting
United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.
1982) (footnotes omitted)).
“When a cross-examiner seeks to discredit a witness by showing
prior inconsistent statements . . . the answers of the witness to
questions concerning collateral matters are generally conclusive
and may not be contradicted by extrinsic testimony.”
State v.
Cutshall, 278 N.C. 334, 349, 180 S.E.2d 745, 754 (1971). “Such
collateral matters . . . include testimony contradicting a witness'
denial that he made a prior statement when that testimony purports
to reiterate the substance of the statement.”
State v. Hunt, 324
N.C. 343, 348, 378 S.E.2d 754, 757 (1989);
see also State v.
Mitchell, 169 N.C. App. 417, 610 S.E.2d 260 (2005). “[O]nce a
witness
denies having made a prior inconsistent statement, the
State may not introduce a prior statement in an attempt to
discredit the witness; the prior statement concerns only a
collateral matter, i.e., whether the statement was ever made.”
State v. Najewicz, 112 N.C. App. 280, 289, 436 S.E.2d 132, 138
(1993).
The State should not have been allowed to introduce extrinsic
evidence offered by McGougan to impeach the testimony of Franklin.
However, in consideration of the eyewitness testimony of the
victim, Fields, that defendant was one of his attackers, defendant
has not met his burden that without the improper extrinsic evidence
offered by McGougan the jury would probably have reached a
different result. This assignment of error is overruled.
XI
[11] Defendant next claims he is entitled to a new trial in
the attempted first-degree murder case because the trial court
failed to instruct the jury that flight has no bearing on the
question of premeditation and deliberation. The trial court
instructed the jury that:
Evidence of flight may be considered by you
together with all other facts and
circumstances in this case in determining
whether the combined circumstances amount to
an admission or show of [sic] consciousness of
guilt. However, proof of this circumstance is
not sufficient in itself to establish the
defendant's guilt.
The trial court subsequently gave the following instruction on
premeditation and deliberation, which are elements of the crime of
attempted murder:
Neither premeditation nor deliberation are
usually susceptible of direct proof. They may
be proved by circumstances from which they may
be inferred, such as lack of provocation by
the victim, conduct of the defendant before,
during and after the attempted killing, the
manner or means by which the killing was
attempted.
Defendant claims that because the trial court did not instruct
the jury that flight has no bearing on whether defendant acted with
premeditation and deliberation, the court impermissibly lessened
the State's burden to prove the elements of premeditation and
deliberation beyond a reasonable doubt. While defendant did voice
an objection to the inclusion of the instruction on flight, the
objection was based not on defendant's flight from the scene of the
crime for which he was on trial, but rather for defendant'sattempted flight when he was arrested. At trial, defendant did not
object to the inclusion of the instruction on flight because of a
belief that such an instruction would impermissibly lighten the
State's burden to prove the elements of premeditation and
deliberation. Rather, defendant was arguing that his attempt to
flee during his arrest should not have been considered at all, as
he was actually trying to flee because of another offense.
Because defendant did not object to the trial court's
instruction on premeditation and deliberation and his objection to
the instruction on flight was for a reason other than that argued
on appeal, we review only for plain error.
See Wood v. Weldon, 160
N.C. App. 697, 699, 586 S.E.2d 801, 803 (2003) (“[A] contention not
raised and argued in the trial court may not be raised and argued
for the first time in the appellate court.”),
disc. review denied,
358 N.C. 550, 600 S.E.2d 469 (2004);
Odom at 659-61, 300 S.E.2d at
378-79 (adopting plain error review for arguments alleging improper
jury instructions where no objections to the instructions were made
at trial). Our Supreme Court has held that the failure to
specifically instruct the jury that it was not to consider the
defendant's flight as evidence of premeditation and deliberation
does not constitute plain error:
[W]e note that the court did not say the jury
could consider evidence of flight as evidence
of premeditation and deliberation. It charged
the jury that it could consider it as showing
a consciousness of guilt, which is a correct
statement of the law. It is speculative as to
whether the jury took this to mean it could
consider this as evidence of premeditation and
deliberation.
State v. Gray, 347 N.C. 143, 167-68, 491 S.E.2d 538, 547 (1997),
overruled in part on other grounds by State v. Long, 354 N.C. 534,
557 S.E.2d 89 (2001). As the challenged instruction and standard
of review here are indistinguishable from those in
Gray, this
assignment of error is overruled.
XII
[12] Finally, defendant argues the trial court erred in
entering judgment for attempted first-degree murder and assault
with a deadly weapon with intent to kill inflicting serious injury
in violation of his right to be free from multiple convictions for
the same offense. However, as defendant concedes in his brief,
this Court has previously held the conviction of attempted murder
and assault with a deadly weapon with intent to kill inflicting
serious injury based on the same act is not a violation of double
jeopardy because “each offense requires proof of at least one
element that the other does not.”
State v. Peoples, 141 N.C. App.
115, 119, 539 S.E.2d 25, 29 (2000);
State v. Ramirez, 156 N.C. App.
249, 259, 576 S.E.2d 714, 721,
disc. review denied, 357 N.C. 255,
583 S.E.2d 286,
cert. denied, 540 U.S. 991, 157 L. Ed. 2d 388
(2003). Defendant cites no new authority contrary to the above.
Accordingly, this assignment of error is overruled.
No prejudicial error.
Judges McCULLOUGH and TYSON concur.
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