Appeal by defendant from judgment entered 16 November 2004 by
Judge Howard E. Manning, Jr. in Wake County Superior Court. Heard
in the Court of Appeals 7 June 2006.
Attorney General Roy A. Cooper, III, by Special Deputy
Attorney General Jill Ledford Cheek, for the State.
Nora Henry Hargrove for defendant-appellant.
HUNTER, Judge.
Devon Maurice Glynn (“defendant”) appeals from a judgment
dated 16 November 2004 entered consistent with a jury verdict
finding him guilty of first degree murder. For the following
reasons, we find defendant's trial to be without error.
The State's evidence tended to show that defendant and Brandie
Bullock (“Bullock”) were involved in a romantic relationship, and
Bullock believed they would get married someday, according to
Christina Holder (“Holder”), Bullock's friend. On 30 July 2003,
while riding around Raleigh with defendant and friends, Bullock
received a phone call from Christopher Moore (“Moore”), whom she
had met previously at a club, a meeting staged by Jonathan Allen
(“Allen”). Bullock told Allen that the caller was “the guy in the
club you put me on[.]” Allen then told defendant the caller was
the person who had given Allen counterfeit money for drugs. Holder
testified that defendant responded, “m----- f---ers can't get away
with getting over on him.”
Defendant continued driving Bullock, Holder, Allen, and Lamont
Turner (“Turner”) around Raleigh most of the day, making multiple
stops at various places. During one stop, defendant and Allen went
inside an apartment, quickly returning to the vehicle. Holder then
noticed a gun on the floorboard by her foot. The group next went
to an apartment belonging to Paula Lucas (“Lucas”), where drugswere frequently bought and sold. Allen, Bullock, and defendant
went into a bedroom while the rest of the group waited in the
living room. Bullock soon emerged carrying a pocketbook which held
the gun.
The group returned to the vehicle, where defendant and Bullock
sat in the front seat. Defendant again told Bullock, “m-----
f---ers can't get away with doing this[.]” Holder testified
defendant instructed Bullock how to use the gun, and told Bullock
to shoot Moore. Bullock responded that she knew how to use the
gun.
Bullock and Moore exchanged additional telephone calls, making
a plan for Moore to pick up Bullock and Holder at a McDonald's
restaurant. On the way to the restaurant, defendant told Bullock,
“yo, boo, you can do this for me. Ain't nobody else can do it, you
can do it.” Defendant told Bullock, “I['ve] got my cell phone and
I'm going to be behind you all.”
At McDonald's, the two girls got into the backseat of Moore's
vehicle, with Bullock seated behind Moore. Moore drove them to
Tysean Lunsford's (“Lunsford”) apartment complex. Bullock and
Holder saw defendant following Moore's vehicle to the apartment
parking lot. As Moore began to park the vehicle, Bullock stated,
“f--- this s_--,” and shot Moore in the back of the head. Bullock
and Holder then jumped out of the vehicle and ran to defendant's
Suburban. Defendant drove away with Bullock and Holder, stating,
“[m]y boo did it. My boo did it. . . . I won't [sic] believe she
did it, but my boo did it.” The group drove around in search of marijuana, then went to
Bullock's apartment. Bullock told the group what had happened.
She said she “had to do it” because if she had thought about it,
she “would have never did [sic] it,” so she “just went ahead and
did it.” Defendant responded, “my boo gangster,” and “my boo did
it[.]” Defendant also told the group, “If you all want to hang
around me, you all got to put in work[,]” which Holder testified
meant that they had to “do dirt,” meaning to commit crimes.
The group eventually left for Lucas's apartment, dropping off
Allen before arriving. Once there, defendant handed Lucas the gun
and told her she would be “going down” for the murder. Defendant
then gave the gun to Turner, who disposed of the gun by burying it.
Around midnight on 31 July 2003, Lunsford and a friend
discovered Moore slumped over in the driver's seat of his vehicle
in the parking lot of Lunsford's apartment complex. They called
the police, who found the front doors of Moore's vehicle locked and
the rear doors unlocked. Holder's fingerprints were lifted from
the right rear passenger window. The pathologist found that
Moore's death was caused by a gunshot wound to the back of the
neck.
Defendant cross-examined Holder regarding her testimony at an
earlier trial that defendant was not the leader of the group, and
that defendant did not make anyone do anything they didn't want to
do. Holder testified at defendant's trial that people did what
defendant told them to do “the majority of the time.” Defendant appeals after being found guilty of first degree
murder and sentenced to life imprisonment without parole.
I.
[1] Defendant first contends that the jury instructions were
erroneous and lessened the State's burden of proof. We disagree.
Under the due process clauses of the Fifth and Fourteenth
Amendments of the United States Constitution, the State carries the
burden to prove the defendant's guilt beyond a reasonable doubt.
In re Winship, 397 U.S. 358, 362, 25 L. Ed. 2d. 368, 374 (1970);
State v. Jordan, 305 N.C. 274, 279, 287 S.E.2d 827, 831 (1982).
Accordingly, the Sixth Amendment guarantee of a trial by jury
requires a defendant be found guilty beyond a reasonable doubt.
Sullivan v. Louisiana, 508 U.S. 275, 278, 124 L. Ed 2d 182, 188
(1993).
Jury instructions must clearly show the State's burden to
prove each element beyond a reasonable doubt.
State v. Morgan, 359
N.C. 131, 163, 604 S.E.2d 886, 906 (2004),
cert. denied, ___ U.S.
___, 163 L. Ed. 2d 79 (2005). The standard of review for jury
instructions is well-established:
“This Court reviews jury instructions
'contextually and in its entirety. The charge
will be held to be sufficient if “it presents
the law of the case in such manner as to leave
no reasonable cause to believe the jury was
misled or misinformed[.]” . . . “Under such a
standard of review, it is not enough for the
appealing party to show that error occurred in
the jury instructions; rather, it must be
demonstrated that such error was likely, in
light of the entire charge, to mislead the
jury.”'”
State v. Blizzard, 169 N.C. App. 285, 296-97, 610 S.E.2d 245, 253
(2005) (citations omitted). When reviewed as a whole, “isolated
portions of [a charge] will not be held prejudicial when the charge
as a whole is correct. [T]he fact that isolated expressions,
standing alone, might be considered erroneous will afford no ground
for a reversal.”
State v. McWilliams, 277 N.C. 680, 684-85, 178
S.E.2d 476, 479 (1971) (citations omitted);
see also State v. Rich,
351 N.C. 386, 393-94, 527 S.E.2d 299, 303 (2000).
“All distinctions between accessories before the fact and
principals to the commission of a felony” have been abolished by
our statutes. N.C. Gen. Stat. § 14-5.2 (2005). A defendant may be
convicted of first degree murder under a theory of aiding and
abetting.
State v. Brewington, 352 N.C. 489, 524, 532 S.E.2d 496,
516-17 (2000).
A person is guilty of a crime by aiding and
abetting if (i) the crime was committed by
some other person; (ii) the defendant
knowingly advised, instigated, encouraged,
procured, or aided the other person to commit
that crime; and (iii) the defendant's actions
or statements caused or contributed to the
commission of the crime by that other person.
State v. Goode, 350 N.C. 247, 260, 512 S.E.2d 414, 422 (1999).
The State asserted Bullock was the shooter, but that defendant
was guilty of first degree murder by aiding and abetting Bullock.
The judge initially instructed the jury:
[I]f you find from the evidence beyond a
reasonable doubt that . . . [defendant]
knowingly instigated, encouraged, advised or
procured or aided Brandie Bullock to commit
the crime of first degree murder of
Christopher Moore, and that in so doing
[defendant]'s actions or statements caused thecommission of the crime by Brandie Bullock, it
would your [sic] duty to return a verdict of
guilty of first degree murder. However, if
you do not so find or have a reasonable doubt
as to one or more of these things, it would be
your duty to return a verdict of not guilty of
first degree murder.
After deliberations began, the jury asked the trial court for
a definition of cause for element three of the charge. After
hearing arguments by counsel, the trial court re-instructed the
jury:
It is generally recognized that a person is
criminally responsible for a homicide only if
his act caused or directly contributed to the
death of the victim. In this case, where the
Defendant . . . is prosecuted as an aider and
abetter of the crime of first degree murder,
the State must prove beyond a reasonable doubt
that the actions or statements of [defendant]
somehow caused . . . the victim's death.
(Emphasis added.) The trial court then repeated the words of the
original mandate, “and that in so doing [defendant]'s actions or
statements caused the commission of the crime by Brandie
Bullock[.]”
Defendant argues the word “somehow” lessened the State's
burden by vitiating the “knowing” aspect of defendant's actions.
However, the trial court's instruction is supported by case law.
In
State v. Davis, 319 N.C. 620, 356 S.E.2d 340 (1987), our Supreme
Court stated, “[i]n cases where a defendant is prosecuted as an
accessory before the fact to murder, the [S]tate must prove beyond
a reasonable doubt that the actions or statements of the defendant
somehow caused or contributed to the actions of the principal,
which in turn caused the victim's death.”
Id. at 624-25, 356S.E.2d at 343 (emphasis added). Taken as a whole, the trial
court's clarifying instructions properly set out the elements of
the crime and did not lessen the State's burden of proof.
Defendant's assignment of error is overruled.
II.
[2] Defendant next contends the indictment was fatally
defective, as it did not give defendant notice of the charge of
aiding and abetting. Defendant further contends there was a fatal
variance between the indictment and the proof at trial. We
disagree.
Due process requires that a defendant receive notice and an
opportunity for an appropriate hearing.
Hamdi v. Rumsfeld, 542
U.S. 507, 533, 159 L. Ed. 2d 578, 601 (2004). “At a minimum, due
process requires adequate notice of the charges and a fair
opportunity to meet them, and the particulars of notice and hearing
must be tailored to the capacities and circumstances of those who
are to be heard.”
State v. Young, 140 N.C. App. 1, 7, 535 S.E.2d
380, 384 (2000) (citation omitted) (emphasis omitted). The
indictment must be sufficiently specific to provide notice of the
charges and allow the defendant to prepare his case.
State v.
Thrift, 78 N.C. App. 199, 201, 336 S.E.2d 861, 862 (1985).
An indictment is sufficient if the charge against the
defendant is expressed “in a plain, intelligible, and explicit
manner[.]” N.C. Gen. Stat. § 15-153 (2005). “[T]he indictment
must allege all of the essential elements of the crime sought to be
charged.”
State v. Westbrooks, 345 N.C. 43, 57, 478 S.E.2d 483,492 (1996). The North Carolina Supreme Court has repeatedly held
that the short form indictment which complies with N.C. Gen. Stat.
§ 15-144 is constitutionally and statutorily sufficient to charge
first degree murder “on the basis of
any theory set forth in
N.C.G.S. § 14-17.”
State v. Garcia, 358 N.C. 382, 388, 597 S.E.2d
724, 731 (2004),
cert. denied, 543 U.S. 1156, 161 L. Ed. 2d 122
(2005).
“[T]he State is not required to elect between theories of
prosecution [for first degree murder] prior to trial.”
Id. at 389,
597 S.E.2d at 732. When the State sufficiently pleads the factual
basis of the prosecution, “a defendant must be prepared to defend
against any and all legal theories which [the] facts may support.”
State v. Holden, 321 N.C. 125, 135, 362 S.E.2d 513, 522 (1987).
But see State v. Silas, 360 N.C. 377, 383, 627 S.E.2d 604, 608
(2006) (“[i]f the State seeks an indictment which contains specific
allegations of the intended felony, the State may not later amend
the indictment to alter such allegations”).
Furthermore, a defendant may request a bill of particulars to
supplement the facts in the indictment in order to better prepare
his defense.
State v. Randolph, 312 N.C. 198, 210, 321 S.E.2d 864,
872 (1984). A motion for such a bill “must request and specify
items of factual information desired by the defendant which pertain
to the charge and which are not recited in the pleading, and must
allege that the defendant cannot adequately prepare or conduct his
defense without such information.” N.C. Gen. Stat. § 15A-925(b)
(2005). We note the record does not show that defendant requesteda bill of particulars. As the short form indictment properly
apprised defendant of the charges against him, this assignment of
error is overruled.
[3] Defendant further argues that a material variance existed
between the indictment charging first degree murder and the
evidence presented at trial. We disagree.
When a variance exists between allegations in the indictment
and evidence presented at trial, the defendant may be deprived of
adequate notice to prepare a defense.
State v. Norman, 149 N.C.
App. 588, 594, 562 S.E.2d 453, 457 (2002). Only a material
variance warrants reversal, as it involves an essential element of
the alleged crime.
Id.
As discussed
supra, the State is not required to declare any
specific theory of prosecution for first degree murder prior to
trial.
Garcia, 358 N.C. at 389, 597 S.E.2d at 732. Here,
defendant appears to contend that evidence presented at Bullock's
trial presented a theory that defendant was the shooter. We note
that defendant fails to point to any evidence presented at his
trial that he was the shooter. The State's evidence, regardless of
the theory, supported the indictment for first degree murder, and
this assignment of error is overruled.
III.
[4] Defendant next asserts that testimony given by Bullock
contained inadmissible hearsay which was erroneously admitted at
trial. We disagree. Hearsay is generally inadmissible. N.C. Gen. Stat. § 8C-1,
Rule 802 (2005). “'Hearsay' is a statement, other than one made by
the declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.” N.C. Gen.
Stat. § 8C-1, Rule 801(c) (2005). However, out-of-court statements
offered for a purpose other than to prove the truth of the matter
asserted are not hearsay and are not excluded by the hearsay rule.
State v. Reid, 335 N.C. 647, 661, 440 S.E.2d 776, 784 (1994).
Statements used to explain the subsequent conduct of the person to
whom the statement was made are admissible, as they are not offered
to prove the truth of the matter asserted.
State v. Coffey, 326
N.C. 268, 282, 389 S.E.2d 48, 56 (1990).
In the instant case, Holder testified that when the group was
in the car, Bullock received a phone call on her cell phone.
Bullock then told Allen that the caller was Moore, the same person
Allen had pointed out to her at a club. The State argued, and the
trial court agreed, that the statement was offered only to show its
effect on defendant.
As Bullock's statement was not offered to prove the truth of
the matter asserted but rather to show its effect on defendant,
regardless of its truth, the statement was admissible. Bullock's
statement affected the subsequent conduct of defendant; he
immediately began persuading Bullock to shoot Moore. Therefore,
the trial court's admission of the statement was not error.
Defendant's assignment of error is overruled.
IV.
[5] Defendant finally asserts the trial court was without
jurisdiction to try defendant because the indictment was
insufficient to charge first degree murder. We disagree.
As discussed
supra, the short form indictment has repeatedly
been held sufficient by the North Carolina Supreme Court to charge
a defendant with first degree murder, regardless of the theory
under which the State proceeds.
Garcia, 358 N.C. at 388, 597
S.E.2d at 731. This Court is bound by decisions of the North
Carolina Supreme Court.
Dunn v. Pate, 334 N.C. 115, 118, 431
S.E.2d 178, 180 (1993). Defendant acknowledges that the North
Carolina Supreme Court has upheld the constitutionality of the
short form indictment, but raises the issue to preserve it in the
event of further review and in anticipation of a change in the law
on this issue. Defendant's assignment of error is overruled.
We find no error in the trial court's instructions to the
jury, and no defect in the indictment for first degree murder or
variance with the evidence presented at trial. We further find the
trial court properly admitted non-hearsay statements. Defendant's
trial was without error.
No error.
Judges BRYANT and CALABRIA concur.
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