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.
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.
I. Jury Verdict
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
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.
, 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
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.
, 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.
, 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
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.
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.
II. Motion to Dismiss
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.
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.
III. Opinion Evidence
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
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
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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