STATE OF NORTH CAROLINA
v. Wake County
No. 04 CRS 43834
KEESHAN NATANIEL LYNCH
Attorney General Roy Cooper, by Special Deputy Attorney
General Thomas J. Ziko, for the State.
Nora Henry Hargrove for defendant-appellant.
STEELMAN, Judge.
A jury found defendant guilty of first-degree murder, upon
evidence that he attacked and killed Kirby Leon Eaton with a tire
iron, butcher knife, and a saw on the night of or in the early
morning hours of 8-9 April 2004, believing Eaton had stolen a
refrigerator from defendant's girlfriend. The trial court
sentenced defendant to life imprisonment without parole.
In his sole argument on appeal, defendant argues that the
“short form” murder indictment filed in this case was fatally
defective and insufficient to confer jurisdiction on the trial
court. He avers the indictment failed “to allege the essential
elements of [first-degree murder] as required by Article I, Section22 of the North Carolina Constitution” as well as the Fifth
Amendment of the United States Constitution. While acknowledging
the decisions of the North Carolina Supreme Court upholding the use
of the short form murder indictment, defendant “raises the issue to
preserve the same in the event of further review and in
anticipation of a change in the law on this issue.” Because we
agree with defendant that his claim has no merit under existing
law, we overrule his assignment of error and affirm the judgment of
the trial court.
“In indictments 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
(naming the person killed)[.]” N.C. Gen. Stat. § 15-144 (2005).
Here, the grand jury returned a true bill of indictment on 9 August
2004, alleging “that on or about the 9th day of April, 2004 in Wake
County [defendant] unlawfully, willfully and feloniously and of
malice aforethought did kill and murder Kirby Leon Eaton.”
Accordingly, the indictment contained all the necessary allegations
to sustain a charge of first-degree murder under N.C. Gen. Stat. §
15-144.
As conceded by defendant in his appeal, the North Carolina
Supreme Court “has consistently concluded that [the short-form
murder] indictment violates neither the North Carolina nor the
United States Constitution.” State v. Hunt, 357 N.C. 257, 278, 582
S.E.2d 593, 607, cert. denied, 539 U.S. 985, 156 L. Ed. 2d 702
(2003). Moreover, both this Court and the North Carolina SupremeCourt have reaffirmed the constitutionality of the short form
murder indictment in light of the United States Supreme Court
decisions cited by defendant, Jones v. United States, 526 U.S. 227,
232 (1999), and Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d
435 (2000). See, e.g., State v. Squires, 357 N.C. 529, 537, 591
S.E.2d 837, 842 (2003), cert. denied, 541 U.S. 1088, 159 L. Ed. 2d
252 (2004); State v. Byers, __ N.C. App. __, __, 623 S.E.2d 357,
365 (2006); State v. Wissink, __ N.C. App. __, __, 617 S.E.2d 319,
324 (2005). The instant indictment satisfied the requirements of
the North Carolina Constitution by providing defendant with
“sufficient notice of the nature and cause of the charges against
him[.]” Squires, 357 N.C. at 537, 591 S.E.2d at 842. “Furthermore,
'to this date, the United States Supreme Court has not applied the
Fifth Amendment indictment requirements to the states.'” Byers, __
N.C. App. at __, 623 S.E.2d at 365 (quoting Hunt, 357 N.C. at 273,
582 S.E.2d at 604).
The record on appeal includes additional assignments of error
not addressed by defendant in his brief to this Court. By rule, we
deem them abandoned. See N.C.R. App. P. 28(b)(6).
NO ERROR.
Judges McCULLOUGH and HUDSON concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***