NO. COA05-17

NORTH CAROLINA COURT OF APPEALS

Filed: 7 March 2006

    Appeal by defendant from judgment entered 30 April 2004 by Judge Timothy S. Kincaid in Burke County Superior Court. Heard in the Court of Appeals 17 October 2005.

    Attorney General Roy A. Cooper, III, by Special Deputy Attorney General Alexander McC. Peters, for the State.

    Daniel Shatz for defendant-appellant.

    HUNTER, Judge.

    Jerry Lee Brown, Jr. (“defendant”) appeals from judgments and commitments of the trial court entered consistent with jury verdicts finding him guilty of first degree murder and conspiracy to commit murder. Defendant contends (1) the verdict in his case was fatally flawed; and that the trial court erred by (2) denying his motion to dismiss the charges; (3) admitting opinion evidence; and (4) sentencing him at prior record level III. Defendant also argues that (5) the indictment was fatally flawed. We find no error in defendant's convictions, but determine that the trialcourt erred in its sentencing of defendant. We therefore remand defendant's case to the trial court for resentencing.
    The State presented evidence at trial tending to show that defendant conspired with two women, Tiffany Robinson (“Robinson”) and Torree Benjamin (“Benjamin”), to kill Tyrone Deloatch (“Deloatch”) in revenge for Deloatch's suspected involvement in the murder of Benjamin's cousin. In the early morning hours of 24 February 2002, Robinson arranged to meet Deloatch at an isolated location in front of a small grocery store near Exit 96 off Interstate 40 in Burke County. Defendant concealed himself behind the grocery store. When Deloatch arrived, defendant came out from behind the building and shot Deloatch in the head, killing him.
    The trial court instructed the jury it could find defendant guilty of first degree murder based upon premeditation and deliberation, or under a theory of lying in wait, or both. Upon consideration of the evidence, the jury found defendant guilty of first degree murder and conspiracy to commit murder. The trial court sentenced defendant to life imprisonment without parole for his conviction of first degree murder, and 220 to 273 months imprisonment for the conspiracy charge. Defendant appeals.

    Defendant argues the jury verdict was fatally ambiguous and the trial court therefore erred in sentencing him for first degreemurder. The trial court instructed the jury that it could find defendant guilty of first degree murder under a theory of premeditation and deliberation, or under a theory of lying in wait, or both. The trial court did not inform the jury, however, that it had to be unanimous as to a particular theory of first degree murder. The verdict sheet presented the jury the choice of finding defendant guilty of first degree murder or not guilty, but did not require the jury to specify whether it had unanimously agreed that defendant committed first degree murder under one or both theories. Jury polling likewise contained no inquiry into any particular theory.
    We note that defendant did not object to the instructions or to the verdict sheet. “Normally, where the defendant appeals based on the content of the verdict sheet but failed to object when the verdict sheet was submitted to the jury, any error will not be considered prejudicial unless the error is fundamental.” State v. Wiggins, 161 N.C. App. 583, 592, 589 S.E.2d 402, 409 (2003). “Violations of constitutional rights, such as the right to a unanimous verdict, however, are not waived by the failure to object at trial and may be raised for the first time on appeal.” Id.; State v. Holden, 160 N.C. App. 503, 506-07, 586 S.E.2d 513, 516 (2003) (stating that “the failure to object to alleged errors by the trial court that violate a defendant's 'right to a trial by ajury of twelve' does not waive his right to raise the question on appeal”); see N.C. Const. art. I, § 24 (stating that, “[n]o person shall be convicted of any crime but by the unanimous verdict of a jury in open court”).
    We agree with defendant that a verdict of first degree murder must be unanimous as to the theory of the murder. See State v. Carroll, 356 N.C. 526, 545, 573 S.E.2d 899, 911 (2002) (recognizing “the requirement of a unanimous verdict on each theory of first-degree murder”). Where a verdict sheet does not indicate a theory of first degree murder, however, the Court may look to the jury's resolution of other issues to assist in its determination of the theory under which the defendant was convicted. See State v. Allen, 339 N.C. 545, 557-60, 453 S.E.2d 150, 156-58 (1995), overruled on other grounds by State v. Gaines, 345 N.C. 647, 676, 483 S.E.2d 396, 414 (1997). The jury instructions given in Allen were erroneous, and the verdict sheet did not indicate on which theory of guilt of first degree murder the jury based its verdict. Our Supreme Court determined that “[b]y rejecting the verdict of involuntary manslaughter, the jury indicated that . . . it concluded [the] defendant was more involved in the crime than [the] defendant's testimony suggested.” Id. at 559-60, 453 S.E.2d at 158. This indication by the jury in turn supported the Court'sconclusion that the erroneous jury instructions had not prejudiced the defendant. Id. at 560, 453 S.E.2d at 158.
    The jury here found defendant guilty of conspiracy to commit murder. With respect to the conspiracy charge, the trial court instructed the jury as follows:
        Now, for you to find the defendant guilty of this offense, the State must prove three things beyond a reasonable doubt;

            First, that the defendant and at least one other person entered into an agreement.

            Second, that the agreement was to commit murder. And the definition of murder has already been explained to you. That is the unlawful killing of another with malice, with premeditation, and with deliberation, or perpetrated by lying in wait.

            And third, the State must prove beyond a reasonable doubt that the defendant and at least one other person intended that the agreement be carried out at the time it was made.

“The intentional and unlawful killing of a human being with malice and with premeditation and deliberation is first degree murder.” State v. Hunt, 330 N.C. 425, 427, 410 S.E.2d 478, 480 (1991). “Premeditation means that the act was thought out beforehand for some length of time, however short, but no particular amount of time is necessary for the mental process of premeditation; it is sufficient if the process of premeditation occurred at any point prior to the killing.” Id. “Deliberation means an intent to killcarried out in a cool state of blood, in furtherance of a fixed design for revenge or to accomplish an unlawful purpose and not under the influence of a violent passion, suddenly aroused by lawful or just cause or legal provocation.” Id. An unlawful killing is deliberate and premeditated if perpetrated “as part of a fixed design to kill, notwithstanding the fact that the defendant was angry or emotional at the time, unless such anger or emotion was strong enough to disturb the defendant's ability to reason.” Id.
    By finding defendant guilty of conspiracy to commit murder, the jury unanimously found that defendant agreed with at least one other person to commit murder. We agree with the State's position that such an agreement would necessarily entail premeditation and deliberation. Compare State v. Arnold, 98 N.C. App. 518, 529, 392 S.E.2d 140, 147 (1990) (where the evidence showed that the defendant conspired with another to kill her husband, and the jury found the defendant guilty of conspiracy to commit murder, “the evidence reasonably construed indicates a coldly calculated killing planned well in advance, and it belies anything other than a premeditated and deliberate killing” such that the trial court erred in submitting a charge of second degree murder), affirmed, 329 N.C. 128, 404 S.E.2d 822 (1991); People v. Cortez, 960 P.2d 537, 542 (Cal. 1998) (holding that all conspiracy to commit murderis necessarily conspiracy to commit premeditated and deliberated first degree murder because “[t]he mental state required for conviction of conspiracy to commit murder necessarily establishes premeditation and deliberation of the target offense of murder”); Mitchell v. State, 767 A.2d 844, 854 (Md. 2001) (stating that “the kind of awareness and reflection necessary to achieve the unity of purpose and design for a conspiracy is essentially the same as that required for deliberation and premeditation”); People v. Hammond, 466 N.W.2d 335 (Mich. App. 1991) (same). By finding defendant guilty of conspiracy to commit murder, as well as guilty of first degree murder, the jury implicitly found that defendant was guilty of murder under a theory of premeditation and deliberation. Thus, the jury was unanimous as to first degree murder under a theory of premeditation and deliberation. Whether or not the jury also unanimously found defendant guilty of first degree murder under a theory of lying in wait is therefore irrelevant. We conclude that the trial court's failure to instruct the jury as to the required unanimity of the theory of first degree murder in the jury charge, as well as the verdict sheet's failure to denote such, did not prejudice defendant and did not result in a fatally flawed verdict, and we overrule this assignment of error.
    Defendant contends the State presented insufficient evidence that Deloatch was unaware of defendant's impending assault. As such, defendant contends the evidence did not support the charge of murder under a theory of lying in wait, and the trial court therefore erred in denying his motion to dismiss the murder charge as to this theory. Defendant further argues there was insufficient evidence that defendant conspired with Robinson and Benjamin to kill Deloatch, and that the trial court therefore erred in denying the motion to dismiss the conspiracy charge. We disagree.
    A murder perpetrated by means of lying in wait is murder in the first degree. State v. Brown, 320 N.C. 179, 192, 358 S.E.2d 1, 10 (1987). Premeditation and deliberation are not elements of the crime of first degree murder perpetrated by means of lying in wait, nor is a specific intent to kill. The presence or absence of these elements is irrelevant. State v. Evangelista, 319 N.C. 152, 158, 353 S.E.2d 375, 380 (1987). A murder committed by lying in wait “refers to a killing where the assassin has stationed himself or is lying in ambush for a private attack upon his victim.” State v. Allison, 298 N.C. 135, 147, 257 S.E.2d 417, 425 (1979). “The assassin need not be concealed, nor need the victim be unaware of his presence.” State v. Leroux, 326 N.C. 368, 375, 390 S.E.2d 314, 320 (1990).        “If one places himself in a position to make a private attack upon his victim and assails him at a time when the victim does not know of the assassin's presence or, if he does know, is not aware of his purpose to kill him, the killing would constitute a murder perpetrated by lying in wait.”

Id. (quoting Allison, 298 N.C. at 148, 257 S.E.2d at 425). “Both Leroux and Allison and cases relied upon therein do establish, however, that a lying in wait killing requires some sort of ambush and surprise of the victim.” State v. Lynch, 327 N.C. 210, 217, 393 S.E.2d 811, 815 (1990).
    Citing Lynch, defendant contends there was insufficient evidence of murder under a lying in wait theory. The defendant in Lynch was observed walking with his arm around the victim through a parking lot where he eventually stabbed her to death. Prior to the fatal stabbing, the defendant chased the victim across the lot, caught her, and forced her back to a car in the lot. The victim was heard to say, “'[n]o, please, don't do that[,]'” after which she was observed coming from between some cars, bleeding and calling for help. Id. at 219, 393 S.E.2d at 816. The defendant was observed running across the parking lot. In reviewing the evidence and reversing the defendant's conviction of murder under a theory of lying in wait, our Supreme Court stated that “[t]here is simply no evidence that [the] defendant lay in wait by ambushing or surprising his victim immediately before he inflicted the fatalstab wounds. Such evidence as there is tends to the contrary.” Id.
    In contrast to Lynch, there was substantial evidence in the present case to support a theory of murder by lying in wait. Taken in the light most favorable to the State, there was evidence from which a reasonable juror could find that defendant told Robinson to call Deloatch and arrange a meeting at the grocery store. Defendant, Robinson, Benjamin, and two other people drove to the location. Defendant concealed himself behind the grocery store to await Deloatch's arrival. When Deloatch arrived, he walked toward Robinson, who was standing next to Benjamin's car. As he did so, defendant came from behind the building holding a gun. Deloatch began “backpedaling” and exclaimed “'[w]hat are you doing, Lee?'” Defendant then fatally shot Deloatch in the head.
    Defendant argues the statement, “'[w]hat are you doing, Lee?,'” made by Deloatch before defendant shot him, “conclusively establishes that Deloatch was aware of the impending assault,” thus negating an essential element of murder by lying in wait. A victim's discovery of an impending assault immediately before its onset does not negate the element of surprise in the crime of murder by lying in wait, however. “Certainly one who has lain in wait would not lose his status because he was not concealed at the time he shot his victim. The fact that he reveals himself or thevictim discovers his presence will not prevent the murder from being perpetrated by lying in wait.” Allison, 298 N.C. at 147-48, 257 S.E.2d at 425. We conclude the trial court properly denied defendant's motion to dismiss the charge of murder under a theory of lying in wait.
    Defendant also contends there was insufficient evidence to show that he conspired to kill Deloatch, rather than merely assault him. Defendant points to testimony by Robinson that she believed defendant intended to fight Deloatch rather than kill him. Defendant's argument overlooks substantial conflicting testimony by Robinson detailing the conspiracy to kill Deloatch. For example, Robinson testified several times that she formed an agreement with defendant and Benjamin to kill Deloatch when they reached the grocery store and defendant concealed himself behind the building. Robinson admitted she “knew that [Deloatch] was going to be killed[.]” Such testimony supports the denial of defendant's motion to dismiss. See State v. Martin, 309 N.C. 465, 308 S.E.2d 277 (1983). We overrule this assignment of error.

    By further assignment of error, defendant contends the trial court erred in allowing testimony by a detective that an earlier witness, John Cole (“Cole”), was “an eyewitness to the crime.” At trial, Cole testified that he watched as defendant “came out ofnowhere and shot [Deloatch].” Specifically, Cole testified he saw “a shiny metal thing” in defendant's hand and a “flash” and heard and felt the vibration from the gunshot. In his initial statement given to police, however, Cole wrote merely that he “heard a shot.” Defendant contends the detective's reference to Cole as an eyewitness amounted to an improper expression of opinion on the credibility of Cole's trial testimony and should have been excluded. We reject defendant's contention on several grounds.
    First, the detective never directly referred to Cole as an eyewitness. Rather, he testified that he “found out that we had an eyewitness to the crime.” Later, the detective stated that he interviewed Cole. Second, although defendant objected to the detective's statement, he did not state the basis for his objection. Third, even assuming that the detective's testimony regarding an eyewitness was erroneously admitted, it did not prejudice defendant, in that Cole was only one of several witnesses who testified as witnesses to the shooting. Given the substantial evidence against defendant, the exclusion of the detective's identification of Cole as an eyewitness could not have possibly resulted in a different verdict. We overrule this assignment of error.
    Defendant argues the trial court erred in finding him to be at prior record level III for sentencing purposes with regard to the conspiracy charge. At sentencing, the State introduced a prior record worksheet, but presented no other evidence regarding defendant's prior record. Counsel for defendant specifically declined to stipulate to the record as shown in the worksheet prepared by the State. As such, defendant argues the State did not meet its burden of proving defendant's prior record level for sentencing purposes. We agree.
    “The State bears the burden of proving, by a preponderance of the evidence, that a prior conviction exists[.]” N.C. Gen. Stat. § 15A-1340.14(f) (2005). A prior conviction may be proven by (1) stipulation of the parties; (2) an original or copy of the court record of the prior conviction; (3) a copy of records maintained by the Division of Criminal Information, the Division of Motor Vehicles, or of the Administrative Office of the Courts; or (4) any other method found by the Court to be reliable. See id. “There is no doubt that a mere worksheet, standing alone, is insufficient to adequately establish a defendant's prior record level.” State v. Alexander, 359 N.C. 824, 827, 616 S.E.2d 914, 917 (2005); see also State v. Eubanks, 151 N.C. App. 499, 505, 565 S.E.2d 738, 742 (2002) (stating that, “[t]here is no question that a worksheet, prepared and submitted by the State, purporting to list adefendant's prior convictions is, without more, insufficient to satisfy the State's burden in establishing proof of prior convictions”).
    Because the State presented no evidence of defendant's prior record level other than the prior record level worksheet, and as defendant did not stipulate to his prior record level, the State did not meet its burden of proving defendant's prior record level. We must therefore remand defendant's conspiracy conviction for a new sentencing hearing.

    Finally, defendant contends the short-form indictment charging him with first degree murder was fatally defective in that it failed to allege every element of the offense. Defendant acknowledges that our Supreme Court has consistently and unequivocally upheld short-form murder indictments as valid under both the United States and the North Carolina Constitutions. See, e.g., State v. Jones, 359 N.C. 832, 838, 616 S.E.2d 496, 499 (2005); State v. Hunt, 357 N.C. 257, 268-70, 582 S.E.2d 593, 600-02, cert. denied, 539 U.S. 985, 156 L. Ed. 2d 702 (2003). We overrule defendant's final assignment of error.
    In conclusion, we hold the trial court did not err in denying his motion to dismiss the charges against him, or by admitting the testimony of the detective. We further hold that neither theindictment nor the jury verdict were fatally flawed. Thus, we find no error in defendant's convictions. We hold, however, that the trial court erred in sentencing defendant at a prior record level III with respect to his conspiracy conviction, where the State presented insufficient evidence to prove defendant's prior record level. We therefore remand defendant's conviction of conspiracy to commit murder to the trial court for a new sentencing hearing.
    No error; remanded for resentencing.
    Chief Judge MARTIN and Judge STEELMAN concur.
    Report per Rule 30(e).

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