Appeal by Defendant from judgment dated 31 March 2006 by Judge
William C. Gore, Jr. in Superior Court, Johnston County. Heard in
the Court of Appeals 6 June 2007.
Attorney General Roy Cooper, by Special Deputy Attorney
General Jonathan Babb, for the State.
Crumpler, Freedman, Parker, and Witt, by Vincent F. Rabil, for
Jeffrey Tremaine Williams (Defendant) was convicted on 31
March 2006 of first-degree murder. Defendant was convicted under
the felony murder rule, with the underlying felony being robbery
with a dangerous weapon. The trial court sentenced Defendant to
life imprisonment without parole. Defendant appeals.
At trial, Michelle Howell (Ms. Howell) testified that she was
a friend of Davie Stancil (the victim) and that she talked with him
by telephone around 10:30 p.m. on 9 May 2004. Ms. Howell testified
that they spoke for about ten or fifteen minutes and then hung up
because Ms. Howell's cell phone was "going dead."
Ms. Howell testified that the victim called her on her home
telephone about ten minutes later. She further testified, over
Defendant's objection, that the victim said, "I think somebody just
tried to get me." Ms. Howell continued her testimony, over
Defendant's objection, as to what the victim had said to her. Ms.Howell testified as follows: the victim said that a woman he did
not recognize had knocked on his door and told him that her car had
broken down, and that she was looking for Patricia Johnson. The
victim told the woman he did not know a Patricia Johnson. The
victim further said that the woman had refused the victim's offer
to use his telephone. The victim saw "a bulge in the front of her
pants" and he then went inside to get his gun. He returned to the
door and continued talking with the woman. The woman asked if she
could come back around 11:30 p.m., and he said okay, and she left.
Ms. Howell further testified that her conversation with the victim
ended around 12:15 a.m. when the victim told Ms. Howell: "[H]old on
for a minute. . . . I'm going to just call you back in a
minute[.]" However, the victim never called Ms. Howell back.
Brandie Spivey (Ms. Spivey) testified that in 2004 she had
been Defendant's girlfriend. Ms. Spivey testified that Defendant
sent her to the victim's house around 6:00 p.m. on 9 May 2004 to
see if a car was parked at the victim's house and to see if anyone
was at home. Ms. Spivey did not see a car. She then knocked on
the door, but no one answered, and Ms. Spivey walked back to her
Ms. Spivey testified that she returned to the victim's house
around 9:00 p.m. or 9:30 p.m., and knocked on the door. Ms. Spivey
testified that Defendant had again sent her to the victim's house
to see if she could "make entrance" to the victim's house so that
"[Defendant] could get inside and rob [the victim]." Ms. Spivey
further explained that Defendant sent her to the victim's house asa decoy pursuant to a plan to rob the victim, and that Defendant
knew the victim had money and drugs. When the victim came to the
door, Ms. Spivey gave him a false name, told him her car had broken
down, and told him that she was looking for someone. Ms. Spivey
and the victim continued to have a conversation for about ten
minutes. Ms. Spivey asked the victim if she could come back later,
and he told her to come back between 11:00 p.m. and 12:00 midnight.
Ms. Spivey testified that she returned to the victim's house
with Defendant around 11:00 p.m. Ms. Spivey testified that she
knocked on the door while Defendant knelt on the side of the steps
where the victim could not see him. Just before the victim opened
the door, Ms. Spivey heard the victim say to someone over the
telephone, "I'll call you back." When the victim opened the door,
Ms. Spivey testified that Defendant pushed his way into the
victim's house and Defendant and the victim began to "tussle." Ms.
Spivey further testified that Defendant and the victim continued
"wrestling for [a] gun" in the victim's bedroom. Ms. Spivey
testified she "was told it was a 9 millimeter[,]" and the trial
court instructed the jury not to consider what Ms. Spivey had been
told. Ms. Spivey also testified she saw a second, smaller gun that
Defendant was using to hit the victim. During the fight, Ms.
Spivey heard a gunshot and then "saw blood everywhere[.]" Ms.
Spivey did not testify that she saw who fired the gunshot.
Wayne Bell (Mr. Bell) testified that he met Defendant in 2005
when the two of them were incarcerated in the Johnston County jail.
Mr. Bell testified that Defendant told him the following: [Defendant] was telling me about his charge.
It was his girlfriend went to, was going with
this drug dealer and they was planning to rob
him. The girlfriend was already at the house
when [Defendant] entered the house.
[Defendant] and the drug dealer got to
tussling over the gun. The gun went off.
Shot the drug dealer in his left leg. The
girlfriend was in the other room. She didn't
know what, who had shot who at the time.
[Defendant] got the gun and left with it after
he got some drugs and money from the drug
dealer. And [Defendant] told me don't nobody
know where that gun at but him.
[Defendant's] girlfriend later on, she
changed her statement and said [Defendant]
done it. But [Defendant] told me out of his
own mouth that [Defendant] was the one that
did the shooting.
During cross-examination of Mr. Bell, Defendant sought to
introduce a motion for downward departure and a plea agreement,
both pertaining to unrelated federal criminal charges against Mr.
Bell. The documents demonstrated that the federal prosecutor
dismissed several charges against Mr. Bell and that Mr. Bell
received a reduced sentence for his cooperation with the federal
prosecutor. However, the trial court sustained the State's
objections to the introduction of this evidence.
Deputy Chief Medical Examiner Thomas Clark (Dr. Clark)
testified that he performed an autopsy on the victim. Dr. Clark
testified that the victim had a gunshot wound in his left leg that
tore a major artery in the victim's leg, and that the victim had
blunt force injuries on his face, head, shoulder, back, and
abdomen. Dr. Clark further testified that the gunshot wound "would
not have immediately caused [the victim's] death. It would
probably have taken several minutes for [the victim] to bleed outto the point of losing consciousness."
At the close of the State's evidence, Defendant moved to
dismiss the charge of first-degree murder. The trial court denied
Defendant's motion. Defendant did not present evidence. Defendant
renewed his motion to dismiss, and the trial court again denied the
The following colloquy regarding acting in concert occurred
during the charge conference:
THE COURT: . . . . I will also include the
acting in concert instruction at 202.10. Or
is the [S]tate requesting that?
[THE STATE]: We would request.
THE COURT: You would? I've just got it in
here. I don't -- I'm just asking.
[THE STATE]: Well . . .
THE COURT: I think all the evidence is that
. . . [D]efendant did all of the acts
[THE STATE]: [Defendant] just used [Ms.
Spivey], you know, as a decoy to get his way
in. [Ms. Spivey] . . . knew about the plan,
had some knowledge. That's the only reason I
would say it's appropriate but we can live
without it, also.
THE COURT: What is the defense position on it?
[DEFENSE COUNSEL]: Your Honor, I object to it.
[Ms. Spivey] [is] not even . . . indicted.
THE COURT: All right. If you object to it,
[and] the [S]tate doesn't care, I won't give
The trial court instructed the jury, inter alia, on first-
degree murder on the basis of malice, premeditation, and
deliberation, and also under the felony murder rule. The jurybegan its deliberations and sent the following note to the trial
court: "One, could we get a definition of first-degree murder?
Two, reread the difference between malice, premeditation, and
deliberation versus first-degree felony murder rule." In response,
the trial court re-read the substantive instruction to the jury
After this instruction, a juror tendered the following note to
the trial court: "If I am not entirely convinced that
. . . [D]efendant pulled the trigger but I do believe he was at the
scene of the crime, can I still return a guilty verdict?" In
response, the trial court instructed the jury as follows: "[A]ll of
you must decide the case based on the evidence that has been
presented and on the law that I have given you. I cannot
specifically answer this question for you." The trial court also
re-instructed the jury on the presumption of innocence, reasonable
doubt, and the State's burden to prove the identity of Defendant as
the perpetrator of the crime.
The jury continued its deliberations. The jury subsequently
submitted the following question to the trial court: "[W]e would
like to request to have the first-degree murder rule reread, if
possible. If not, we would need the whole law reread." Defendant
requested that, in addition to a re-instruction on the felony
murder rule, the trial court also re-instruct the jury regarding
the burden of proof. The trial court denied Defendant's request
and instructed the jury on the felony murder rule for the third
time. The jury resumed its deliberations and later informed thetrial court that "[w]e cannot come to a unanimous verdict on this
decision." The trial court then inquired about the numerical
breakdown of the deadlock:
THE COURT: Without giving me any other
information, can you just give me two numbers
representing those who are one way and those
who are another?
FOREPERSON MORGAN: Eleven and one.
The trial court then stated the following outside the presence
of the jury:
Pursuant to [N.C. Gen. Stat. §] 15A-1234, at
this time, the Court proposes to charge the
jury as to the law relating to acting in
concert. . . . Now, the charge I will give is
the acting in concert charge as relates to the
offense of robbery with a dangerous weapon.
Because I intend to charge, I want to give
counsel an opportunity to argue to the jury.
Defendant objected and requested an instruction to the effect that
a person's mere presence at the scene of a crime does not make him
guilty of any crime, even if he was aware the crime was being
committed and made no effort to prevent it. The trial court
allowed counsel for the State and Defendant to present new
arguments to the jury. The State argued, in part, as follows:
In the case before you, you've heard all
the evidence of [Ms.] Spivey and [Defendant].
You've heard the testimony and the [S]tate's
contention that there was a common plan to go
to [the victim's] house that night to rob him.
And during the course of that robbery, [the
victim] was killed. The [S]tate has argued
the felony murder theory that during the
course of the robbery, if someone is killed,
that's felony murder.
It doesn't matter who pulled the trigger.
If [Ms.] Spivey pulled the trigger, if [the
victim] pulled the trigger, the trigger waspulled during a fight over a gun and it went
off, they were acting together in concert to
rob [the victim]. And . . . [the victim] was
killed during the course of that armed
robbery. So we're talking about acting in
concert and felony murder.
Following arguments of counsel, the trial court instructed the jury
on acting in concert and mere presence. The jury returned a
verdict of guilty of first-degree murder under the felony murder
 Defendant first argues the trial court violated his
constitutional right to confront the witnesses against him by
allowing Ms. Howell to testify regarding a conversation she had
with the victim. However, because Defendant failed to raise any
constitutional objection to this testimony at trial, this argument
is not properly before us. See State v. Lloyd
, 354 N.C. 76, 86-87,
552 S.E.2d 596, 607 (2001) (recognizing that "[c]onstitutional
issues not raised and passed upon at trial will not be considered
for the first time on appeal.").
Nevertheless, even assuming arguendo
that Defendant had
preserved this issue, Defendant's argument lacks merit. Defendant
argues the victim's "statements to [Ms.] Howell were testimonial
because [the victim] must have expected them to be relayed to law
enforcement for ultimate use at trial should something happen to
In Crawford v. Washington
, 541 U.S. 36, 158 L. Ed. 2d 177
(2004), the United States Supreme Court held that "[w]here
testimonial evidence is at issue, . . . the Sixth Amendment demandswhat the common law required: unavailability and a prior
opportunity for cross-examination." Id.
at 68, 158 L. Ed. 2d at
203. However, "[w]here nontestimonial hearsay is at issue, it is
wholly consistent with the Framers' design to afford the States
flexibility in their development of hearsay law[.]" Id.
, 547 U.S. ___, 165 L. Ed. 2d 224 (2006), the Supreme
Court clarified that
[s]tatements are nontestimonial when made in
the course of police interrogation under
circumstances objectively indicating that the
primary purpose of the interrogation is to
enable police assistance to meet an ongoing
emergency. They are testimonial when the
circumstances objectively indicate that there
is no such ongoing emergency, and that the
primary purpose of the interrogation is to
establish or prove past events potentially
relevant to later criminal prosecution.
at ___, 165 L. Ed. 2d at 237. In Davis
, the Supreme Court also
noted: "As in Crawford
[,] . . . our holding today makes it
unnecessary to consider whether and when statements made to someone
other than law enforcement personnel are 'testimonial.'" Id.
___ n. 2, 165 L. Ed. 2d at 238 n. 2.
do not speak to the issues of when
and whether statements made to individuals other than police and
their agents are testimonial, our Court has addressed these issues.
In State v. Lawson
, 173 N.C. App. 270, 619 S.E.2d 410 (2005), disc.
, 360 N.C. 293, 629 S.E.2d 276 (2006), the victim
testified that another individual had told him that the defendant
was his attacker. Id.
at 274, 619 S.E.2d at 413. Our Court
recognized that the statements to the victim "were not made duringany police investigation, rather they were made during a private
conversation . . . and outside the presence of any police officer."
at 276, 619 S.E.2d at 413. Our Court held that when the
individual made these statements to the victim, "it was unlikely
that . . . [the individual] was thinking in terms of anything
outside the scope of their private conversation-certainly not about
testifying as to this matter before the court." Id.
at 276, 619
S.E.2d at 414.
Likewise, in the present case, the statements the victim made
to Ms. Howell were made during the course of a private
conversation, outside the presence of any police officer. They
were, in fact, made before any crime had occurred. There was no
indication that the statements were made with the thought of a
future trial in mind. Therefore, pursuant to Lawson
statements at issue in the present case were nontestimonial.
Moreover, applying the recent test articulated in Davis
statements were not made under circumstances that objectively
indicated the purpose was to prove events potentially relevant to
a later criminal prosecution. See Davis
, 547 U.S. at ___, 165 L.
Ed. 2d at 237. Therefore, we hold these statements were
nontestimonial, and the trial court did not err by allowing the
admission of this testimony. For the same reason, the admission of
this testimony did not amount to plain error as Defendant also
argues. See State v. Torain
, 316 N.C. 111, 116, 340 S.E.2d 465,
468, cert. denied
, Torain v. North Carolina
, 479 U.S. 836, 93 L.
Ed. 2d 77 (1986) (recognizing that "[a] prerequisite to ourengaging in a 'plain error' analysis is the determination that the
instruction complained of constitutes 'error' at all.").
 Defendant also argues the trial court abused its
discretion by admitting the testimony because the statements did
not qualify as present sense impressions. We disagree. N.C. Gen.
Stat. § 8C-1, Rule 803(1) (2005) provides that the following type
of statement is not excluded by the hearsay rule: "Present Sense
Impression._A statement describing or explaining an event or
condition made while the declarant was perceiving the event or
condition, or immediately thereafter." Defendant argues that Ms.
Howell testified to a telephone conversation about earlier events
which were no longer occurring at the time the victim spoke with
Ms. Howell. However, according to Ms. Spivey's subsequent
testimony, it appears that the victim was speaking with Ms. Howell
immediately before Ms. Spivey and Defendant approached the victim's
house, which was only about two hours after Ms. Spivey had talked
with the victim the first time. Ms. Spivey testified that she
first talked with the victim at his house between 9:00 p.m. and
9:30 p.m. Ms. Spivey testified that she returned to the victim's
house with Defendant about 11:00 p.m. Just before the victim
opened the door, Ms. Spivey heard the victim say the following to
someone over the telephone: "I'll call you back." We hold that the
trial court did not abuse its discretion by admitting the
challenged statements as present sense impressions.
However, even assuming arguendo
that the challenged statements
were not admissible as present sense impressions, Ms. Spiveysubsequently testified, without objection, to substantially the
same subject matter. Therefore, Defendant lost the benefit of his
earlier objection. See State v. Whitley
, 311 N.C. 656, 661, 319
S.E.2d 584, 588 (1984) (holding that "[w]here evidence is admitted
over objection, and the same evidence has been previously admitted
or is later admitted without objection, the benefit of the
objection is lost."). For the reasons stated above, we overrule
the assignments of error grouped under this argument.
 Defendant next argues the trial court deprived him of his
constitutional right to confront and cross-examine the witnesses
against him by not allowing Defendant to cross-examine Mr. Bell as
to Mr. Bell's bias. Defendant sought to introduce a motion for
downward departure and a plea agreement, both pertaining to
unrelated federal criminal charges against Mr. Bell. The records
demonstrated that the federal prosecutor dismissed several charges
against Mr. Bell and that Mr. Bell received a reduced sentence for
his cooperation with the federal prosecutor.
However, the documents did not demonstrate that Mr. Bell
received concessions for his participation in this state criminal
case against Defendant. The trial court specifically clarified
THE COURT: Well, let me stop you. [Defense
Counsel], . . . did it involve cooperation in
[DEFENSE COUNSEL]: No. I said, what I, what
I'm saying is this.
THE COURT: Well, I'm asking you, though. DidI misunderstand you or did you misunderstand
[DEFENSE COUNSEL]: I don't know -- I may have
misunderstood you. I don't know --
THE COURT: Did [Mr. Bell] get, is there some
document somewhere that says this witness, Mr.
Bell, got favorable treatment from the
government for his cooperation in this instant
case against [Defendant], the State v. Jeffrey
[DEFENSE COUNSEL]: No, sir.
THE COURT: All right. Objection is sustained.
Accordingly, the records sought to be introduced by Defendant did
not establish that Mr. Bell had entered into a plea bargain in
return for his cooperation in the case against Defendant.
Therefore, the trial court did not err by denying Defendant's
request to cross-examine Mr. Bell as to those records.
Defendant argues the trial court erred because the documents
related to Mr. Bell's federal criminal case indicated that "[Mr.
Bell] has a propensity . . . to trade his way out of cases."
However, "[t]he right to cross examine a witness to expose the
witness' bias is not unlimited." State v. Hatcher
, 136 N.C. App.
524, 526, 524 S.E.2d 815, 816 (2000). "'The trial judge may and
should rule out immaterial, irrelevant, and incompetent matter.'"
State v. Jacobs
, 172 N.C. App. 220, 228, 616 S.E.2d 306, 312 (2005)
(quoting State v. Stanfield
, 292 N.C. 357, 362, 233 S.E.2d 574, 578
(1977)). "On appeal, the trial court's decision to limit
cross-examination is reviewed for abuse of discretion, and 'rulings
in controlling cross examination will not be disturbed unless it is
shown that the verdict was improperly influenced.'" Id.
, 136 N.C. App. at 526, 524 S.E.2d at 816).
In the present case, Mr. Bell's propensity to bargain his way
out of cases was irrelevant because there was no showing that Mr.
Bell received anything in exchange for his testimony against
Defendant. Therefore, the trial court did not abuse its discretion
or violate Defendant's constitutional rights by refusing to allow
this cross-examination. Accordingly, we overrule these assignments
 Defendant next argues the trial court violated his
constitutional rights to due process and a fair trial by denying
his motions to dismiss. We first note that Defendant did not make
these particular constitutional arguments to the trial court.
Therefore, these arguments are not properly before us. See Lloyd
354 N.C. at 86-87, 552 S.E.2d at 607 (recognizing that
"[c]onstitutional issues not raised and passed upon at trial will
not be considered for the first time on appeal.").
Defendant also argues the trial court erred by denying his
motions to dismiss because there was insufficient evidence that
Defendant was the perpetrator of the crime. On a motion to dismiss
for insufficiency of the evidence, a trial court must determine
"whether there is substantial evidence of each essential element of
the offense charged and of the defendant being the perpetrator of
the offense." State v. Vause
, 328 N.C. 231, 236, 400 S.E.2d 57, 61
(1991). "Substantial evidence is relevant evidence that a
reasonable mind might accept as adequate to support a conclusion." State v. Vick
, 341 N.C. 569, 583-84, 461 S.E.2d 655, 663 (1995).
A trial court views the evidence in the light most favorable to the
State, drawing all inferences in the State's favor. Id.
461 S.E.2d at 663.
"When considering a motion to dismiss, the trial court is
concerned 'only with the sufficiency of the evidence to carry the
case to the jury; it is not concerned with the weight of the
evidence.'" State v. Jackson
, 161 N.C. App. 118, 122, 588 S.E.2d
11, 14-15 (2003) (quoting State v. Lowery
, 309 N.C. 763, 766, 309
S.E.2d 232, 236 (1983)). "[T]he credibility of a witness's
testimony and the weight to be given that testimony is a matter for
the jury, not for the court, to decide." Id.
at 122, 588 S.E.2d at
14. However, if the evidence "is sufficient only to raise a
suspicion or conjecture as to either the commission of the offense
or the identity of the defendant as the perpetrator, the motion to
dismiss must be allowed." State v. Malloy
, 309 N.C. 176, 179, 305
S.E.2d 718, 720 (1983).
Pursuant to N.C. Gen. Stat. § 14-17 (2005), "[a] murder
. . . which shall be committed in the perpetration or attempted
perpetration of any arson, rape or a sex offense, robbery,
kidnapping, burglary, or other felony committed or attempted with
the use of a deadly weapon shall be deemed to be murder in the
first degree[.]" "In accordance with this statute, the two
elements of first-degree (felony) murder are: 1) a murder that was
2) committed in the perpetration of a felony." State v. Bumgarner
147 N.C. App. 409, 413, 556 S.E.2d 324, 328 (2001). Defendant argues that "all the physical evidence, coupled with
the only eye-witness testimony of [Ms.] Spivey, establishes that
the victim was shot in the leg by his own weapon, a 9mm pistol."
Therefore, Defendant argues that the State did not prove that the
victim's death was caused by an act of Defendant. We disagree.
Mr. Bell testified that "[Defendant] told me out of
[Defendant's] own mouth that [Defendant] was the one that did the
shooting." Moreover, Ms. Spivey testified that after Defendant
pushed his way into the victim's house, Defendant and the victim
began to "tussle." Ms. Spivey further testified that Defendant and
the victim continued "wrestling for [a] gun" in the victim's
bedroom. Ms. Spivey testified she "was told it was a 9
millimeter[,]" and the trial court instructed the jury not to
consider what Ms. Spivey had been told. Ms. Spivey also testified
she saw a second, smaller gun that Defendant was using to hit the
victim. During the fight, Ms. Spivey heard a gunshot and then "saw
blood everywhere[.]" Ms. Spivey did not testify that she saw who
fired the gunshot. Based upon the testimony of Ms. Spivey, it is
reasonable to infer that Defendant shot the victim, either with
Defendant's own gun or with the victim's gun. We hold that the
testimony of Mr. Bell and Ms. Spivey was sufficient evidence from
which the jury could find that an act by Defendant caused the
victim's death. Accordingly, the trial court did not err by
denying Defendant's motions to dismiss.
 Defendant next argues the trial court deprived him of hisconstitutional rights to due process and a fair trial by failing to
intervene ex mero motu
to strike the State's closing argument that
Defendant would be guilty of first-degree murder even if the victim
had pulled the trigger. Where a defendant does not object at trial
to the State's closing argument, "our standard of review is whether
the [State's] arguments were so grossly improper that the trial
court erred in failing to intervene ex mero motu
." State v.
, 356 N.C. 316, 358, 572 S.E.2d 108, 135 (2002), cert.
, Barden v. North Carolina
, 538 U.S. 1040, 155 L. Ed. 2d 1074
(2003). However, "'where the trial court's instructions to the
jury cure the [State's] alleged improper arguments, the court's
failure to correct the arguments ex mero motu
will not constitute
prejudicial error.'" State v. Poag
, 159 N.C. App. 312, 319, 583
S.E.2d 661, 667 (quoting State v. Shope
, 128 N.C. App. 611, 614,
495 S.E.2d 409, 412 (1998)), disc. review denied
, 357 N.C. 661, 590
S.E.2d 857 (2003).
Under a theory of acting in concert,
"'[i]f "two persons join in a purpose to
commit a crime, each of them, if actually or
constructively present, is not only guilty as
a principal if the other commits that
particular crime, but he is also guilty of any
other crime committed by the other in
pursuance of the common purpose . . . or as a
natural or probable consequence thereof."'"
State v. Mann
, 355 N.C. 294, 306, 560 S.E.2d 776, 784 (citations
omitted), cert. denied
, Mann v. North Carolina
, 537 U.S. 1005, 154
L. Ed. 2d 403 (2002).
Defendant contends that the State's argument "was grossly
improper because it not only misstated N.C. law requiring [that] anact attributable to [D]efendant cause[d] the death[,] [but it also]
allowed the jury to circumvent the glaring insufficiency of
evidence as to how the victim died." However, despite Defendant's
argument to the contrary, we have already held that there was
sufficient evidence that Defendant killed the victim. The
testimony of Ms. Spivey and Mr. Bell provided substantial evidence
from which the jury could have found that Defendant shot the
victim, either with Defendant's gun or with the victim's gun.
As to Defendant's contention that the State's argument
misstated North Carolina law, Defendant relies on State v. Jones
290 N.C. 292, 225 S.E.2d 549 (1976), for the following proposition:
"To warrant a conviction for homicide the State must establish that
the act of the accused was a proximate cause of the death." Id.
298, 225 S.E.2d at 552. Defendant also relies upon State v.
, 330 N.C. 536, 411 S.E.2d 598 (1992), in which our Supreme
Court held that the felony murder rule does not apply to hold a
defendant liable for the killing of the defendant's co-felon by the
lawful acts of a law enforcement officer resisting the criminal
at 542, 411 S.E.2d at 601. In Bonner
, our Supreme
Court recognized that its ruling was
consistent with the prevailing rule in the
overwhelming majority of states in this
country_that "for a defendant to be held
guilty of murder, it is necessary that the act
of killing be that of the defendant, and for
the act to be his, it is necessary that it be
committed by him or by someone acting in
concert with him."
at 542-43, 411 S.E.2d at 601-02 (quoting Erwin S. Barbre,
Annotation, Criminal Liability Where Act of Killing Is Done By OneResisting Felony or Other Unlawful Act Committed by Defendant
A.L.R.3d 239, § 2 at 242 (1974)).
In the present case, the victim cannot be said to have been
acting in concert with Defendant or Ms. Spivey. Rather, like the
law enforcement officer in Bonner
, the victim's actions were in
direct opposition to the criminal scheme of Defendant and Ms.
Spivey. See Bonner
, 330 N.C. at 542, 411 S.E.2d at 601
(recognizing that the law enforcement officer did not "act in
concert with [the defendants and their accomplices] in a manner
that furthered a common design or purpose. On the contrary, his
every action was in direct opposition to the criminal scheme in
which [the] defendants and their accomplices were engaged.").
Therefore, it was improper for the State to argue that Defendant
would be guilty under a theory of acting in concert even if the
victim had pulled the trigger. However, following this improper
argument, the trial court instructed the jury on acting in concert
and the trial court's instructions correctly stated the law
regarding acting in concert. Therefore, the trial court's
subsequent instructions cured the improper statement made by the
State. See Poag
, 159 N.C. App. at 320, 583 S.E.2d at 668 (holding
that "[t]he trial court's instructions to the jury regarding acting
in concert correctly stated the law and cured the improper
statements made by the State during closing arguments.").
 In its closing argument, the State also argued that under
the felony murder rule, it did not matter whether Defendant or the
victim pulled the trigger. This was also improper, as NorthCarolina adheres to the agency theory, and not the proximate cause
theory, of felony murder. See Bonner
, 330 N.C. at 542-44, 411
S.E.2d at 601-02.
Under the agency theory of felony murder, a
felon is not guilty of murder when the
homicide is done by a person other than the
felon or a co-felon. In other words, the
agency theory limits the reach of the felony
murder doctrine to homicides committed by the
felon or a co-felon.
James W. Hilliard, Felony Murder in Illinois_The "Agency Theory"
vs. The "Proximate Cause Theory": The Debate Continues
, 25 S. Ill.
U. L.J. 331, 344 (2001). In contrast,
Under the proximate cause theory of felony
murder, a felon is guilty of murder when a
killing is committed by a person other than
the felon or a co-felon. Indeed, the
proximate cause theory attaches felony murder
liability for any death proximately resulting
from the felony, regardless of who actually
killed the victim.
at 346. Accordingly, in North Carolina, the felony murder rule
only applies where the lethal act of a defendant, or someone acting
in concert with a defendant, caused the death. See Bonner
N.C. at 542-43, 411 S.E.2d at 601-02.
We have found few cases in other jurisdictions where courts
have applied the proximate cause theory of felony murder to hold a
defendant liable for the killing of the victim where the victim
accidentally killed himself. In State v. Stout
, 154 P.3d 1176,
1182 (Kan. Ct. App. 2007), the Kansas Court of Appeals recognized:
In this situation it really does not matter
whether the victim is shot by himself or
herself or by the co-felon. The entire
incident in this case, from [the co-felon's]
breaking down [the victim's] door to thewrestling where each participant is shot, was
a continuous felonious event without any break
in the chain of causation.
In Miers v. State
, 251 S.W.2d 404, 407-08 (Tex. Crim. App. 1952),
the Court of Criminal Appeals of Texas held that the fact that the
victim may have accidentally shot and killed himself did not
provide the defendant with a defense because the defendant "set in
motion the cause which occasioned the death of [the] deceased[.]"
In People v. Payne
, 194 N.E. 539, 543 (Ill. 1935), the Illinois
Supreme Court recognized that "[i]t reasonably might be anticipated
that an attempted robbery would meet with resistance, during which
the victim might be shot either by himself or some one else in
attempting to prevent the robbery, and those attempting to
perpetrate the robbery would be guilty of murder."
Nevertheless, in the present case, even if the trial court
erred by failing to intervene ex mero motu
, any error was cured by
the trial court's other instructions to the jury. The trial court
correctly instructed the jury on felony murder before the jury
originally began its deliberations. Specifically, the trial court
instructed the jury that to convict Defendant of felony murder, the
jury would have to find that "[D]efendant killed the victim with a
deadly weapon[.]" The trial court then re-instructed the jury on
felony murder on two other occasions in response to inquiries from
the jury. Therefore, the jury had been correctly instructed on
felony murder three times when the State made its improper
statement. Moreover, after the State's improper statement, and
before instructing the jury on acting in concert, the trial courtinstructed the jury as follows:
Now, ladies and gentlemen, you've heard the
additional arguments of counsel. I want to
give you some further instructions on the law
and before that, I want to remind you that you
are to consider these instructions in context
with and in light of all of the other
instructions I have previously given you, both
at the original time I charged you and the
subsequent instructions that I have given you
at your request. If all of you understand
that you must do that and will agree to do
that, please indicate by raising your hand.
(All jurors indicate.)
THE COURT: Let the record show that all jurors
have so indicated.
For these reasons, we hold the trial court did not commit
reversible error by failing to intervene ex mero motu
State's improper argument.
 Defendant argues the trial court violated his
constitutional rights to due process, a fair trial, and a trial by
a fair and impartial judge, when the trial court expressed an
opinion regarding Defendant's guilt. Specifically, Defendant
argues the trial court impermissibly expressed an opinion as to
Defendant's guilt by instructing the jury, ex mero motu
, on acting
in concert after (1) a juror asked whether the juror could return
a guilty verdict if Defendant was at the scene of the crime but did
not pull the trigger, (2) the jury could not come to a unanimous
decision, (3) the trial court inquired of the numerical breakdown,
(4) the jury foreman said it was 11-1, and (5) the trial court did
not give the jury an Allen
charge. Defendant argues that "[b]yinstructing for the first time on acting-in-concert, long after the
jury had been deliberating, the trial judge's additional
instructions clearly communicated to the jury that he was
frustrated and they should convict . . . Defendant." Defendant
By framing its instruction on acting-in-
concert as a direct response to the jury's
note that it was deadlocked so soon after the
previous note from a juror stating they did
not believe [Defendant] pulled the trigger,
the trial court directly signaled the jury
that it should convict [Defendant] of the
charges against him. In the context in which
it was given, the instruction was susceptible
to no other interpretation than that
[Defendant] was guilty no matter who fired the
N.C. Gen. Stat. § 15A-1222 (2005) provides that a "judge may
not express during any stage of the trial, any opinion in the
presence of the jury on any question of fact to be decided by the
jury." N.C. Gen. Stat. § 15A-1232 (2005) provides: "In instructing
the jury, the judge shall not express an opinion as to whether or
not a fact has been proved and shall not be required to state,
summarize or recapitulate the evidence, or to explain the
application of the law to the evidence." "A defendant's failure to
object to alleged expressions of opinion by the trial court in
violation of [N.C.G.S. § 15A-1222 and N.C.G.S. § 15A-1232] does not
preclude his raising the issue on appeal." State v. Young
N.C. 489, 494, 380 S.E.2d 94, 97 (1989). "Whether the accused was
deprived of a fair trial by the challenged remarks must be
determined by what was said and its probable effect upon the jury
in light of all attendant circumstances, the burden of showingprejudice being upon the appellant." State v. Faircloth
, 297 N.C.
388, 392, 255 S.E.2d 366, 369 (1979). "In evaluating whether a
judge's comments cross into the realm of impermissible opinion, a
totality of the circumstances test is utilized." State v.
, 340 N.C. 119, 155, 456 S.E.2d 789, 808 (1995).
In the present case, the trial court did not instruct the jury
on acting in concert in response to a juror's question regarding
whether the juror could find Defendant guilty if Defendant did not
pull the trigger. Rather, in response to the juror's question, the
trial court merely instructed the jury to "decide the case based on
the evidence that has been presented and on the law that I have
given you." The trial court also re-instructed the jury on the
presumption of innocence, reasonable doubt, and the State's burden
to prove the identity of Defendant as the perpetrator of the crime.
The trial court did not instruct the jury on acting in concert
until after the jury had deadlocked. Pursuant to N.C. Gen. Stat.
§ 15A-1234(a) (2005),
After the jury retires for deliberation, the
judge may give appropriate additional
(1) Respond to an inquiry of the jury
made in open court; or
(2) Correct or withdraw an erroneous
(3) Clarify an ambiguous instruction; or
(4) Instruct the jury on a point of law
which should have been covered in the
"Whether or not to give additional instructions rests within thesound discretion of the trial court and will not be overturned
absent abuse of that discretion." State v. Bartlett
, 153 N.C. App.
680, 685, 571 S.E.2d 28, 31 (2002), disc. review denied
, 356 N.C.
679, 577 S.E.2d 892 (2003).
In the present case, the trial court did not specify the
specific subsection of N.C.G.S. § 15A-1234(a) under which it was
giving the additional instruction. However, the trial court gave
the additional instruction following a jury deadlock rather than in
response to an inquiry of the jury. Therefore, the trial court was
not proceeding under N.C.G.S. § 15A-1234(a)(1). There is also no
indication that the trial court gave the additional instruction to
correct or withdraw an erroneous instruction or to clarify an
ambiguous instruction. Accordingly, the trial court did not
proceed under N.C.G.S. § 15A-1234(a)(2) or (3). However, the State
had offered evidence that Ms. Spivey and Defendant had a plan to
rob the victim and that Ms. Spivey acted as a decoy to allow
Defendant to enter the victim's house. Therefore, it was entirely
appropriate for the trial court to instruct the jury on acting in
concert. Because acting in concert should have been addressed in
the trial court's original instructions, we hold that the trial
court appropriately proceeded under N.C.G.S. § 15A-1234(a)(4).
Defendant argues that given the events preceding the
additional instruction, the trial court expressed an opinion
regarding Defendant's guilt by giving the additional instruction.
However, this argument calls for excessive speculation. As we have
already recognized, the trial court did not give the additionalinstruction in response to the question from the juror who was "not
entirely convinced that . . . [D]efendant pulled the trigger[.]"
Moreover, because the trial court could have and should have
instructed the jury on acting in concert at the time of the
original instructions, the trial court acted appropriately in
giving the additional instruction. Under the totality of the
circumstances, we cannot say that by giving the additional
instruction the trial court expressed an opinion regarding
Defendant's guilt. Accordingly, we overrule these assignments of
 In a related argument, Defendant argues the trial court
impermissibly coerced a jury verdict by instructing the jury, ex
, on acting in concert after the jury had begun
deliberating. "Article I, section 24 of the North Carolina
Constitution prohibits a trial court from coercing a jury to return
a verdict." State v. Dexter
, 151 N.C. App. 430, 433, 566 S.E.2d
493, 496, aff'd per curiam
, 356 N.C. 604, 572 S.E.2d 782 (2002).
[A] defendant is entitled to a new trial if
the circumstances surrounding jury
deliberations "might reasonably be construed
by [a] member of the jury unwilling to find
the defendant guilty as charged as coercive,
suggesting to him that he should surrender his
well-founded convictions conscientiously held
or his own free will and judgment in deference
to the views of the majority and concur in
what is really a majority verdict rather than
a unanimous verdict."
(quoting State v. Roberts
, 270 N.C. 449, 451, 154 S.E.2d 536,
538 (1967)). In the present case, Defendant relies upon the same sequence
of events he relied upon in his previous argument to argue that the
trial court impermissibly coerced a verdict. However, for the same
reasons stated above, we hold that the trial court did not coerce
the jury's verdict.
Defendant also relies upon Brasfield v. United States
U.S. 448, 450, 71 L. Ed. 345, 346 (1926), where the United States
Supreme Court held that it was reversible error for a trial court
to inquire into the numerical division of a jury deadlock.
However, in Lowenfield v. Phelps
, 484 U.S. 231, 240 n. 3, 98 L. Ed.
2d 568, 578 n. 3, reh'g denied
, 485 U.S. 944, 99 L. Ed. 2d 286
(1988), the United States Supreme Court noted that its decision in
"makes no mention of the Due Process Clause or any other
constitutional provision. The Federal Courts of Appeals have
uniformly rejected the notion that Brasfield's per se
approach must be followed when reviewing state proceedings on
habeas corpus." In State v. Fowler
, 312 N.C. 304, 308, 322 S.E.2d
389, 392 (1984), our Supreme Court held:
We do not consider questions concerning the
division of the jury to be a per se
of Art. I, § 24 when the trial court makes it
clear that it does not desire to know whether
the majority is for conviction or acquittal.
Such inquiries are not inherently coercive,
and without more do not violate the right to
trial by jury guaranteed by the North Carolina
In the present case, we hold the trial court's inquiry into
the numerical division of the jury's deadlock did not coerce the
jury's verdict. The trial court did not inquire whether themajority favored conviction. Moreover, the trial court had earlier
given an appropriate response to the question from a juror who was
"not entirely convinced that . . . [D]efendant pulled the
trigger[.]" Furthermore, under the facts of the case, acting in
concert was an appropriate instruction for the trial court to give
to the jury. We overrule the assignments of error grouped under
Judges STEPHENS and SMITH concur.
*** Converted from WordPerfect ***