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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. WILFORD BENJAMIN SHELLY
Filed: 2 January 2007
1. Confessions and Incriminating Statements-_right to counsel-_hope of leniency--
totality of circumstances--failure to make written findings and conclusions
A review of the totality of the circumstances revealed that the trial court did not err in a
first-degree murder and conspiracy to commit first-degree murder case by admitting defendant's
confession even though defendant alleged error including a violation of his right to counsel, the
confession was made under the hope of leniency created by the interrogating officer, and the trial
court failed to make written findings of fact and conclusions of law, because: (1) while there are
no magic words which must be uttered in order to invoke one's right to counsel, a suspect must
unambiguously request counsel to warrant the cessation of questions and must articulate his
desire to have counsel present sufficiently clear that a reasonable police officer in the
circumstances would understand the statement to be a request for an attorney; (2) no reasonable
officer would have understood defendant's words as an actual request for an attorney; (3) in no
way did the pertinent officer badger, intimidate, or threaten defendant into waiving his rights, nor
did he ignore an unambiguous invocation of defendant's right to counsel; (4) after obtaining an
understanding of the process of having an attorney appointed, defendant chose to sign the waiver
form and proceed with the interview; (5) defendant did not ask the investigating officer if he
needed an attorney and was not told by the officer that he did not need one; (6) at no point did the
officer block defendant's right to remain silent or defendant's ability to actually request an
attorney; (7) the officer did not suggest that defendant might not receive appointed counsel, but
instead merely informed defendant that the appointment of counsel would not occur immediately;
(8) the officer did not promise any different or preferential treatment as a result of defendant's
cooperation, but merely offered an opinion based on his professional experience; and (9) contrary
to defendant's assertion, N.C.G.S. § 15A-977(f) does not mandate a written recording of findings
and conclusions, the trial court provided its rationale from the bench, and there were no material
conflicts in the evidence.
2. Appeal and Error--preservation of issues--waiver--switching legal theories
Although defendant contends the trial court erred by denying his motion to dismiss the
charge of first-degree murder, this assignment of error has been waived, because: (1) defendant
changed legal theories to support his position between the trial court and the Court of Appeals;
and (2) assuming arguendo that defendant had properly presented his corpus delicti argument to
the trial court and then to the Court of Appeals, it is without merit when in addition to
defendant's confession the State presented evidence through the chief medical examiner that the
victim died as a result of multiple gunshot wounds.
3. Conspiracy--first-degree murder--motion to dismiss--sufficiency of evidence
The trial court did not err by denying defendant's motion to dismiss the charge of
conspiracy to commit first-degree murder, because: (1) evidence of a conspiracy may be
circumstantial or inferred from defendant's behavior; (2) the crime of conspiracy does not require
an overt act for its completion and the agreement itself is the crime; and (3) taking the evidence
in the light most favorable to the State revealed that defendant and his cousin had fought with the
victims on 1 January 2002, and later that day defendant and two others procured weapons, sought
out the victims, and killed them.
4. Homicide--first-degree murder_indictment--failure to allege each element--
Our Supreme Court has already concluded that an indictment charging defendant with
first-degree murder is sufficient even though it does not allege every element of first-degree
5. Criminal Law--instruction--flight
The trial court did not err in a first-degree murder and conspiracy to commit first-degree
murder case by its instruction to the jury on flight, because: (1) evidence presented at trial
established that defendant left the scene of the shooting and did not return home, but instead he
spent the night at the home of his cousin's girlfriend; and (2) this action was not part of
defendant's normal pattern of behavior and could be viewed as a step to avoid apprehension.
Appeal by Defendant from judgments entered 12 October 2004 by
Judge James Floyd Ammons, Jr. in Cumberland County Superior Court.
Heard in the Court of Appeals 6 June 2006.
Attorney General Roy Cooper, by Special Deputy Attorney
General Alexander McC. Peters, for the State.
Stubbs, Cole, Breedlove, Prentis & Biggs, PLLC, by C. Scott
Holmes, for Defendant-Appellant.
Defendant appeals from judgments entered on jury verdicts
finding him guilty of first-degree murder and conspiracy to commit
first-degree murder in the death of Malcom Jackson. Defendant was
sentenced to life imprisonment without parole on the conviction of
first-degree murder and to a minimum term of 157 months and a
maximum term of 198 months on the conviction of conspiracy to
commit first-degree murder, with the sentences to run
consecutively. At trial, the State's evidence tended to show the
following: On the afternoon of 1 January 2002, Andre Jackson (A.J.) and
his brother Malcom Jackson (Malcom) were murdered beside a wooded
dirt road near the Kelly Springfield plant in Cumberland County.
Their friends Rodney Wilkerson (Rodney) and Tracie New (Tracie)
witnessed the murders. The previous night, on New Year's Eve, A.J.
and Defendant's uncle, Earl Shelly (Earl), had an altercation at
Defendant's apartment. A.J. was removed from the apartment, but
during the morning of 1 January 2002, returned with his brother
Malcom and fought with Defendant and Defendant's cousin, Lamont
Later that day, Defendant and Lamont drove to their
grandmother's home to pick up Earl and then to Lamont's sister's
home, where they picked up a 12-gauge shotgun. The three men
returned to Defendant's apartment and located his .380 handgun.
Later that same day, Rodney, Malcom, A.J., and Tracie were parked
down a dirt road near the Kelly Springfield plant. Rodney, Malcom,
and A.J. were in one car, while Tracie was alone in her own car.
At trial, Rodney testified that, while they were parked, he
heard a car coming and saw Earl hanging out the window with a big
gun. Malcom got out and stood behind the driver's side door,
while Rodney ran around to the back of the car and put his hands
into the air. After Rodney was secure behind the car, he ran away
from the scene. As he was running, he heard a shot fired, glass
shattering, and Malcom yelling.
Tracie testified she saw Malcom get out of the car and put his
hands in the air before Earl shot him with the shotgun. The Shellycar then stopped, and Tracie saw Lamont get out of the car with a
handgun and shoot Malcom in the head while Malcom was lying on the
ground. She saw a third person in the Shelly vehicle, but could
not identify that person. When Earl fired another shot through the
windshield and hit A.J., Tracie drove away in her car.
After Rodney left the scene, he ran home and notified the
police. Upon investigation, deputies found a car parked off a dirt
road near the Kelly Springfield plant with the bodies of Malcom and
A.J. lying near it on the ground. They found six 12-gauge shotgun
shell casings and five .380 casings near the bodies. Dr. John D.
Butts, Chief Medical Examiner for the State of North Carolina,
determined that both A.J. and Malcom died as a result of multiple
gunshot wounds. A Lorcin .380 Model L 380 handgun was recovered in
the woods near the home of Defendant's cousin, Tommie Shelly.
Also, a Mossberg Model 88 12-gauge shotgun was obtained from a
source close to Defendant. A firearms expert examined the weapons
and determined that the shell casings, buckshot and bird shot
pellets, and bullets found at the scene and recovered from the
bodies of the deceased, were fired from these weapons.
After speaking with Rodney, Tracie, and other parties,
Cumberland County Sheriff's investigators identified Earl Shelly,
Lamont Shelly, and Defendant as suspects. At the time of
Defendant's detainment, on 2 January 2002, a .380 round of
ammunition was found in his pocket.
Defendant was interviewed by investigators at the Cumberland
County Sheriff's Office, where, after executing a General AdultRights Form, he confessed to shooting Malcom in the head with the
handgun. On 23 July 2002, a grand jury indicted Defendant on two
charges of first-degree murder and two charges of conspiracy to
commit first-degree murder, in the deaths of A.J. and Malcom.
Defendant's counsel filed a motion to suppress Defendant's
confession and a supporting affidavit as required by N.C. Gen.
Stat. § 15A-977. After hearing arguments on the motion, the trial
court orally entered the following findings of fact into the
record: (1) the interrogation occurred while Defendant was in
custody and lasted approximately one hour; (2) Defendant asked
about whether an attorney can come . . . up here and see me?; (3)
Defendant indicated, I am very ignorant of all this; (4) a
conversation ensued about the availability of a public defender;
and (5) Defendant never expressly stated that he wanted a lawyer
present, did not understand his rights, or wanted to stop talking.
On these findings, the trial court denied Defendant's motion
to suppress his confession. The case was then tried in Cumberland
County Superior Court between 29 September and 8 October 2004. At
the end of the trial, the jury found Defendant not guilty of first-
degree murder or conspiracy to commit first-degree murder in the
death of A.J. The same jury found Defendant guilty of first-degree
murder and conspiracy to commit first-degree murder in the death of
Malcom. From the judgments entered upon these convictions,
Defendant appeals. We find no error.
 Defendant first assigns error to the trial court's
admission of his confession. Defendant argues that his confession
should have been suppressed because he invoked his right to counsel
and it was not honored by the police; the police advised Defendant
of his right to counsel and then effectively blocked the assertion
of this right; the confession was made under the hope of leniency
created by the interrogating officer; and the trial court failed to
make written findings of fact and conclusions of law after the
Defendant contends that the trial court's findings of fact and
conclusions of law regarding the voluntariness of the confession
constitute reversible error because there were material conflicts
in the evidence during the motion to suppress hearing. That is,
Defendant argues that the trial court erred in denying his motion
to suppress the confession because there was competent evidence
presented at the suppression hearing supporting his position that
he invoked his right to counsel, the assertion of his right to
counsel was blocked by the interrogating officer, and his
confession was made under the hope of leniency. Findings of fact
relating to the voluntariness of a confession are binding on our
Court if supported by competent evidence in the record. State v.
Buchanan, 353 N.C. 332, 543 S.E.2d 823 (2001). We may not set
aside or modify findings substantiated by evidence, even if the
evidence is conflicting. State v. Jackson, 308 N.C. 549, 304
S.E.2d 134 (1983) (citations omitted). In determining whether the trial court's finding that
Defendant's statement was voluntary is supported by competent
evidence, we must review the totality of the surrounding
circumstances in which the statement was made.
State v. Brewington, 352 N.C. 489, 532 S.E.2d 496 (2000), cert.
denied, 531 U.S. 1165, 148 L. Ed. 2d 992 (2001). A statement is
involuntary or coerced if it is the result of government tactics so
oppressive that the will of the interrogated party 'has been
overborne and his capacity for self-determination critically
impaired[.]' Schneckloth v. Bustamonte, 412 U.S. 218, 225, 36 L.
Ed. 2d 854, 862 (1973) (quoting Culombe v. Connecticut, 367 U.S.
568, 602, 6 L. Ed. 2d 1037, 1057-58 (1961) (citation omitted)).
Our Supreme Court has established several factors that should be
considered in determining the voluntariness of statements:
[W]hether defendant was in custody, whether he
was deceived, whether his Miranda rights were
honored, whether he was held incommunicado,
the length of the interrogation, whether there
were physical threats or shows of violence,
whether promises were made to obtain the
confession, the familiarity of the declarant
with the criminal justice system, and the
mental condition of the declarant.
State v. Hardy, 339 N.C. 207, 222, 451 S.E.2d 600, 608 (1994)
First, Defendant argues the trial court improperly determined
that he failed to invoke his right to counsel and, consequently, we
should view his statement as involuntary. Defendant cites State v.
Torres, 330 N.C. 517, 412 S.E.2d 20 (1992), to support his
contention that a defendant can invoke his right to counsel simplyby asking a law enforcement officer if he needed a lawyer, since
that question may indicate a desire to have the help of an attorney
during police interrogation. While we acknowledge there are no
'magic words' which must be uttered in order to invoke one's right
to counsel, id. at 528, 412 S.E.2d at 26, we have, since Torres,
held that [a] suspect must unambiguously request counsel to
warrant the cessation of questions and 'must articulate his desire
to have counsel present sufficiently clearly that a reasonable
police officer in the circumstances would understand the statement
to be a request for an attorney.' State v. Barnes, 154 N.C. App.
111, 118, 572 S.E.2d 165, 170 (2002) (quoting Davis v. United
States, 512 U.S. 452, 459, 129 L. Ed. 2d 362, 371 (1994)), disc.
review denied, 356 N.C. 679, 577 S.E.2d 892 (2003). Until a
suspect makes such an unambiguous request, the police may continue
to question him. Id.
During questioning, Defendant said to the investigator,
Officer Disponzio, I don't know if I go ahead an tell you then
when I do get my lawyer . . . I've done wrong, because I went ahead
and said anything or -- I don't know. This statement is
ambiguous because Defendant neither refused nor agreed to answer
Officer Disponzio's questions without an attorney present. This
ambiguous statement fails to meet the standard established by Davis
and Barnes as a guide for police investigation and interrogation.
We hold that no reasonable officer under the circumstances would
have understood Defendant's words as an actual request for an
attorney. Additionally, questions from Defendant such as, Oh, so I can
have a lawyer come here now?, and one won't be appointed to me
now?, when examined in the context in which they were made, also
fail to meet the current standard for invoking one's right to
counsel. That is, after a thorough review of the interview
transcript, we note the informative nature of the conversation
between Defendant and the officer in the beginning of the
interview, and believe that Defendant asked these questions and
received answers from Officer Disponzio in an effort to understand
his rights and the interview process before choosing to invoke or
forego his constitutional right to counsel. In no way did Officer
Disponzio badger, intimidate, or threaten Defendant into waiving
his rights, nor did he ignore an unambiguous invocation of
Defendant's right to counsel. For example, when Defendant asked
these questions, Officer Disponzio offered a clear and truthful
answer by telling Defendant that unless you have your own personal
lawyer . . . [o]ne will be appointed to you when you go to court.
After obtaining an understanding of the process of having an
attorney appointed, Defendant chose to sign the waiver form and
proceed with the interview. Therefore, in asking these questions,
we do not believe that Defendant unambiguously requested counsel.
Furthermore, Defendant's questions are clearly distinguishable
from the circumstances present in Torres. For example, in Torres,
the defendant 'asked [Sheriff] Nelson [Sheppard] did she need a
lawyer and he told her no that it was best right now to cooperate
and tell the truth and that they had been friends for a longtime.' Torres, 330 N.C. at 523, 412 S.E.2d at 23. In this case,
Defendant did not ask the investigating officer if he needed an
attorney and was not told by the officer that he did not need one.
Rather, Defendant asked general questions about his right to
counsel and explained his discomfort with the situation in which he
found himself. In return, the officer, after explaining to
Defendant that I can't legally tell you to do something[,]
informed him about the logistics of the process. Since Defendant
did not clearly and unambiguously invoke his right to counsel, his
statements to the officer were admissible.
Next, Defendant argues Officer Disponzio blocked the
exercise of his right to counsel by emphasizing the difficulties
and time delay involved in obtaining a court-appointed attorney.
In support of his contention, Defendant cites State v. Steptoe, 296
N.C. 711, 252 S.E.2d 707 (1979). However, unlike the defendant in
Steptoe, Defendant had not invoked his right to counsel or
requested a court-appointed attorney during interrogation.
Defendant in this case never specifically requested that an
attorney be present during interrogation and thus never invoked his
right to counsel. Rather, Defendant made numerous ambiguous
statements and asked numerous ambiguous questions. By way of
explaining Defendant's options, Officer Disponzio responded,
[T]his is totally your choice. . . . No one can make you do
anything. Officer Disponzio went on to explain:
Tomorrow morning you'll have a first
appearance in court. At that time the judge
is gonna read you your rights . . . you'll
tell him I need a public defender and he'llassign you one and then from there it's up to
your public defender to come and contact you.
We don't contact you any more after today.
Defendant then asked Officer Disponzio, Would there be like --
somebody to come up here and see me?, to which Officer Disponzio
replied, Today? Not today, no. While Officer Disponzio's
responses to Defendant's questions were intended to eventually
procure a voluntary statement from Defendant, at no point did
Officer Disponzio block Defendant's right to remain silent or
Defendant's ability to actually request an attorney.
Furthermore, Officer Disponzio did not suggest, as did the
officer in Steptoe, that Defendant might not receive appointed
counsel; instead, he merely informed Defendant that the appointment
of counsel would not occur immediately. Thus, at no point was
Defendant inhibited from unambiguously articulating his desire to
have counsel present. On the contrary, as a result of Officer
Disponzio's explanations, Defendant was fully informed of his
rights and knowingly, understandingly and voluntarily waived his
right to counsel, as evidenced by his execution of a waiver form.
See id. at 717, 252 S.E.2d at 711. Accordingly, this argument is
Defendant further argues, however, that his statement was
rendered involuntary by statements of the officer which created a
hope of leniency. Specifically, Defendant contends that Officer
Disponzio's comment, I can tell you that a person who cooperates
and shows remorse and is honest and has no criminal background --
when it goes to court, has the best chance of getting the mostleniency because he cooperated[,] created a hope of leniency that
induced Defendant to confess to the murder, where he would have
otherwise made no statement. We disagree.
When evaluating the voluntariness of a confession, [t]he
proper determination is whether the confession at issue was the
product of 'improperly induced hope or fear.' State v. Gainey, 355
N.C. 73, 84, 558 S.E.2d 463, 471 (quoting State v. Corley, 310 N.C.
40, 48, 311 S.E.2d 540, 545 (1984)), cert. denied, 537 U.S. 896,
154 L. Ed. 2d 165 (2002). For a confession to be held involuntary,
the improper inducement must promise relief from the criminal
charge to which the confession relates, and not merely provide the
defendant with a collateral advantage. Gainey, 355 N.C. at 84,
558 S.E.2d at 471 (citing State v. Pruitt, 286 N.C. 442, 212 S.E.2d
In this case, Officer Disponzio did not promise Defendant any
different or preferential treatment as a result of Defendant's
cooperation. The officer merely offered an opinion based on his
professional experience. Thus, competent evidence supports the
trial court's findings that no improper promises were made to
Defendant to induce an involuntary confession. This argument is
likewise without merit.
Finally, Defendant argues that the trial court erred by not
making written findings of fact when it denied the motion to
suppress his confession. North Carolina General Statute section
15A-977(f) states that, following a hearing on a motion to suppress
evidence, [t]he judge must set forth in the record his findings offacts and conclusions of law. N.C. Gen. Stat. § 15A-977(f)(2003).
Defendant contends the statute mandates a written recording of
these findings and conclusions. We disagree.
In State v. Jacobs, 174 N.C. App. 1, 8, 620 S.E.2d 204, 209
(2005), this Court determined that the trial court did not err when
it failed to enter written findings because the trial court did
provide its rationale from the bench. The Jacobs Court further
relied on a prior decision from our Supreme Court that determined
[i]f there is no material conflict in the evidence on voir dire,
it is not error to admit the challenged evidence without making
specific findings of fact. . . . In that event, the necessary
findings are implied from the admission of the challenged
evidence. Id. (quoting State v. Phillips, 300 N.C. 678, 685, 268
S.E.2d 452, 457 (1980)). In this case, as in Jacobs, the trial
court provided its rationale from the bench and there were no
material conflicts in the evidence. Rather, the conflict occurred
between how Defendant and the trial court interpreted his alleged
assertion of his right to counsel and the facts surrounding this
alleged assertion. Therefore, we find this argument without merit.
Defendant's assignment of error relating to the admission of his
confession is overruled.
By his next argument, Defendant contends that the trial court
erred in denying his motion to dismiss the charges of first-degree
murder and conspiracy to commit first-degree murder. Upon a motion to dismiss, the trial court must determine
whether there is substantial evidence, taken in the light most
favorable to the State, of each essential element of the offense
charged, or of a lesser offense included therein, and of the
defendant's being the perpetrator of the offense. State v. Powell,
299 N.C. 95, 261 S.E.2d 114 (1980). Substantial evidence is such
relevant evidence as a reasonable mind might accept as adequate to
support a conclusion. State v. Smith, 300 N.C. 71, 78-79, 265
S.E.2d 164, 169 (1980). The evidence is considered in the
light most favorable to the State; the State
is entitled to every reasonable intendment and
every reasonable inference to be drawn
therefrom; contradictions and discrepancies
are for the jury to resolve and do not warrant
dismissal; and all of the evidence actually
admitted, whether competent or incompetent,
which is favorable to the State is to be
considered by the court in ruling on the
Powell, 299 N.C. at 99, 261 S.E.2d at 117 (citing State v. Thomas,
296 N.C. 236, 250 S.E.2d 204 (1978); State v. McKinney, 288 N.C.
113, 215 S.E.2d 578 (1975))
. The trial court is concerned only
with the sufficiency of the evidence to go to the jury, and not the
weight to be accorded the evidence. State v. Thaggard, 168 N.C.
App. 263, 608 S.E.2d 774 (2005).
 We first address Defendant's argument regarding the charge
of first-degree murder. When Defendant made his motion for
judgment of acquittal before the trial court, he argued
as to Malcom Jackson, the only evidence that
has been presented by the state concerning
this defendant's involvement in the death of
Malcom Jackson was through this defendant's
testimony that there was an accidentaldischarge which occurred during a struggle, in
an attempt to assist . . . his uncle . . . to
keep Malcom from taking the shotgun away from
It is clear from this statement that Defendant argued to the trial
court that Malcom's death was accidental, and therefore, that the
charge of first-degree murder, which by statute requires a
willful, deliberate, and premeditated killing, should have been
dismissed. See N.C. Gen. Stat. § 14-17 (2003). However, in his
brief to this Court, Defendant presents an argument based on the
rule of corpus delicti. The corpus delicti rule requires that
there be corroborative evidence, independent of defendant's
confession, which tended to prove the commission of the charged
crime. State v. Trexler, 316 N.C. 528, 531, 342 S.E.2d 878, 880
(1986) (citations omitted). The corpus delicti rule only requires
evidence aliunde the confession which, when considered with the
confession, supports the confession and permits a reasonable
inference that the crime occurred. Trexler, 316 N.C. at 532, 342
S.E.2d at 880 (citing 30 Am.Jur.2d Evidence § 1142 (1967)). On
appeal, the State asserts that because Defendant changed legal
theories to support his position between the trial court and this
Court, this assignment of error has been waived by Defendant. We
The North Carolina Rules of Appellate Procedure govern the
preservation of error for appellate review. The applicable rule
In order to preserve a question for appellate
review, a party must have presented to thetrial court a timely request, objection or
motion, stating the specific grounds for the
ruling the party desired the court to make if
the specific grounds were not apparent from
the context. It is also necessary for the
complaining party to obtain a ruling upon the
party's request, objection or motion. Any
such question which was properly preserved for
review by action of counsel taken during the
course of proceedings in the trial tribunal by
objection noted or which by rule or law was
deemed preserved or taken without any such
action, may be made the basis of an assignment
of error in the record on appeal.
N.C. R. App. P. 10(b)(1). Our Supreme Court has long held that
where a theory argued on appeal was not raised before the trial
court, the law does not permit parties to swap horses between
courts in order to get a better mount in the appellate courts.
State v. Holliman, 155 N.C. App. 120, 123, 573 S.E.2d 682, 685
(2002) (citations and quotations omitted); see also State v.
Benson, 323 N.C. 318, 372 S.E.2d 517 (1988). When a party changes
theories between the trial court and an appellate court, the
assignment of error is not properly preserved and is considered
In the case currently before this Court, it is clear that
Defendant has impermissibly changed theories between the trial
court and the appellate Court. As a result, this argument has been
waived. Moreover, assuming arguendo that Defendant had properly
presented his corpus delicti argument to the trial court and then
to this Court, we find it without merit. In addition to
Defendant's confession, the State presented evidence, through Dr.
Butts, the Chief Medical Examiner, that Malcom died as a result ofmultiple gunshot wounds. This evidence, along with Defendant's
confession, is sufficient to support the trial court's decision to
deny Defendant's motion to dismiss.
 We likewise are unpersuaded by Defendant's argument that
the State failed to offer substantial evidence on the conspiracy
charge to survive his motion to dismiss. 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. In order to prove
conspiracy, the State need not prove an express agreement; evidence
tending to show a mutual, implied understanding will suffice.
State v. Morgan, 329 N.C. 654, 658, 406 S.E.2d 833, 835 (1991)
(citations omitted). This evidence may be circumstantial or
inferred from the defendant's behavior. See State v. Choppy, 141
N.C. App. 32, 539 S.E.2d 44 (2000), appeal dismissed and disc.
review denied, 353 N.C. 384, 547 S.E.2d 817 (2001). The crime of
conspiracy does not require an overt act for its completion; the
agreement itself is the crime. State v. Bindyke, 288 N.C. 608, 220
S.E.2d 521 (1975).
When taking the evidence in the light most favorable to the
State, the evidence tended to show that Defendant and his cousin
had fought with A.J. and Malcom on 1 January 2002. Later that day,
Defendant, his cousin, and their uncle procured weapons, sought out
A.J. and Malcom, and killed them. From these actions, a conspiracy
can be inferred. Accordingly, this argument is overruled.
Defendant next assigns error to the failure of the
indictment to allege every element of first-degree murder. In
State v. Wallace, 351 N.C. 481, 528 S.E.2d 326, cert. denied, 531
U.S. 1018, 148 L. Ed. 2d 498 (2000), our Supreme Court rejected the
same argument that Defendant presents to this Court. Defendant
acknowledges the prior decision by our State's high court and only
raises the issue to preserve the error for a future appeal.
Regardless, based on the direction provided by our Supreme Court,
we must overrule this assignment of error.
By his final argument, Defendant contends the trial court
erred because there was insufficient evidence to support the
court's instruction to the jury on flight, that is, that he fled
the scene of the crime. Judge Ammons instructed the jury within
the guidelines provided by the North Carolina pattern jury
instructions, as follows:
Now, the State contends and the defendant
denies that the defendant fled. Evidence of
flight may be considered by you together with
all other facts and circumstances in this case
in determining whether the combined
circumstances amounted to an admission or a
show of consciousness of guilt. However,
proof of this circumstance is not sufficient
in and of itself to establish the defendant's
guilt. Further, this circumstance has no
bearing on the question of whether the
defendant acted with premeditation and deliberation. Therefore, it
must not be considered by you as evidence of premeditation or
A jury instruction on flight is proper where 'some evidence in the
record reasonably support[s] the theory that defendant fled aftercommission of the crime charged.' State v. Levan
, 326 N.C. 155,
164-65, 388 S.E.2d 429, 434 (1990) (quoting State v. Irick
N.C. 480, 494, 231 S.E.2d 833, 842 (1977)). When there is some
evidence, it is the duty of the jury to determine whether the
facts and circumstances support the State's theory. State v.
, 173 N.C. App. 112, 120, 618 S.E.2d 257, 263 (2005) (citing
State v. Norwood
, 344 N.C. 511, 476 S.E.2d 349 (1996) (citations
omitted), cert. denied
, 520 U.S. 1158, 137 L. Ed. 2d 500 (1997)).
The relevant inquiry is whether the evidence shows that defendant
left the scene of the crime and took steps to avoid apprehension.
State v. Grooms
, 353 N.C. 50, 80, 540 S.E.2d 713, 732 (2000)
, 326 N.C. at 165, 388 S.E.2d at 429), cert. denied
534 U.S. 838, 151 L. Ed. 2d 54 (2001).
Defendant relies on State v. Thompson
, 328 N.C. 477, 402
S.E.2d 386 (1991), to support his contention that a jury
instruction on flight was not warranted. In Thompson
defendant assigned error to the trial court's decision not
provide his requested jury instruction on flight. In rejecting the
defendant's argument in that case, our Supreme Court determined
that evidence showing that the defendant left the scene of the
crime, drove to an off-limits area of a military base, stopped his
vehicle next to a dumpster behind the officer's club, and drove off
when approached by a military police car, standing alone is not
enough to warrant an instruction on flight. Id.
at 490, 402
S.E.2d at 393. However, in Thompson
, the military base to which
the defendant drove was the same base to which he was stationed asa member of the United States Army. Id.
Therefore, the defendant
returned to a place where, if necessary, law enforcement officers
could find him. Essentially, the defendant returned home.
Here, evidence presented at trial established that Defendant
left the scene of the shooting and did not return home. Rather, he
spent the night at the home of his cousin's girlfriend, an action
that was not part of Defendant's normal pattern of behavior and
could be viewed as a step to avoid apprehension. Accordingly, the
trial court did not err in instructing the jury on flight.
In the trial of Defendant on charges of first-degree murder
and conspiracy to commit first-degree murder, we find
Judges WYNN and GEER concur.
The judges concurred and submitted this opinion for filing
prior to 31 December 2006.
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