STATE OF NORTH CAROLINA
Alamance County
v
.
Nos. 03 CRS 59477-79
04 CRS 491
RAMONE DONTE STEWART
Attorney General Roy Cooper, by Special Deputy Attorney
General Jonathan P. Babb, for the State.
Appellate Defender Staples S. Hughes, by Assistant Appellate
Defender Charlesena Elliott Walker, for defendant-appellant.
CALABRIA, Judge.
Ramone Donte Stewart (“defendant”) appeals from judgment
entered upon a jury verdict finding him guilty of felony murder,
assault with a deadly weapon inflicting serious injury, three
counts of discharging a firearm into an occupied vehicle, and
possession of a firearm by a felon. We find no error.
The State presented the following evidence: On 12 October
2003, at approximately 3:00 a.m., Deon Jones (“Jones”) drove into
the parking lot of the Jackson Park After Dark Nightclub (“the
nightclub”) in Burlington, North Carolina. Jones was accompanied
by his cousin and three of his friends including the victim, Montel
Kendall (“the victim”). Jones backed his car into a parking spacebetween two other vehicles. A Chevrolet truck (“the Chevrolet”)
was parked on the passenger side of Jones' car and a Ford Explorer
was parked on the driver's side. Jones and his friends rolled down
the windows of his car and began socializing. After a few minutes,
the victim, who was seated in the backseat of Jones' car on the
passenger side, climbed out of the car to stretch his legs and
smoke a cigarette. The victim stood beside the door of the car
that he exited then placed one arm on the door of the car and the
other arm on the roof of the car. After the nightclub closed,
Jones observed defendant, one of the patrons, exit the nightclub
and walk to a car that was parked on the other side of the Ford
Explorer that was parked beside Jones' car.
A few minutes later, Garland Bigelow (“Bigelow”), another
patron of the nightclub, walked between Jones' car and the
Chevrolet to talk to the occupants of the Chevrolet. Bigelow
talked to the occupants of the Chevrolet for a few minutes and then
walked away. A few minutes later, Jones heard gunshots and noticed
defendant firing a gun and running from the direction of
defendant's car towards the Chevrolet. Derrick Leath (“Leath”),
Bigelow's acquaintance and the driver of the Chevrolet, testified
that he saw Bigelow running away from defendant. Bigelow ran
between the Chevrolet and Jones' car to the rear of the Chevrolet.
Bigelow then ran to the passenger side of the Chevrolet before he
fell to the ground. Defendant fired two to three more shots in
front of the Chevrolet before he stopped shooting. The victim
suffered fatal injuries during the shooting. Defendant presented the testimony of Gregory Dixon (“Dixon”),
defendant's friend, who testified that on 12 October 2003, he was
sitting with defendant in a red Nissan in the parking lot of the
nightclub when Bigelow approached defendant. Dixon testified that
Bigelow and defendant started arguing about something and that
Bigelow “dove in there on [defendant]” and defendant and Bigelow
were “wrestling in the car.” Dixon testified that he got out of
the car and ran behind the nightclub when he heard the sound of a
gun being cocked. Dixon stated that he did not see the shooting,
but only heard the gunshots.
Defendant also presented the testimony of Delphine Anderson
(“Ms. Anderson”), defendant's aunt. Ms. Anderson testified that
defendant visited her house during the early morning hours of 12
October 2003. Ms. Anderson testified that when she opened her door
to let defendant inside, defendant's mouth was covered with blood,
his lip was cut, and some of his teeth were knocked out.
Finally, defendant presented the testimony of Detective Mark
Yancey (“Detective Yancey”). Detective Yancey testified that he
interviewed Bigelow on 13 October 2003 while Bigelow was admitted
to Moses Cone Hospital in Greensboro, North Carolina. Detective
Yancey testified that Bigelow stated that he had been involved in
an argument with defendant before the shooting and Bigelow admitted
that he hit defendant in the mouth with a bottle.
On 29 August 2005, a jury found defendant guilty of first-
degree murder, assault with a deadly weapon with intent to kill
inflicting serious injury, three counts of discharging a weaponinto an occupied vehicle, and possession of a firearm by a felon.
Alamance County Superior Court Judge James C. Spencer, Jr. entered
judgment upon the first-degree murder verdict and sentenced
defendant to life imprisonment without parole in the North Carolina
Department of Correction. For the remaining convictions, defendant
received a prayer for judgment continued. Defendant appeals.
Defendant contends the trial court erred by not giving an
instruction to the jury to disregard a previous instruction
limiting Detective Yancey's testimony when the State withdrew its
objection to the witness' testimony. We disagree.
“In order to preserve a question for appellate review, a party
must have presented the trial court with a timely request,
objection or motion, stating the specific grounds for the ruling
sought if the specific grounds are not apparent.” State v. Eason,
328 N.C. 409, 420, 402 S.E.2d 809, 814 (1991); N.C. R. App. P.
10(b)(1) (2006). “The admission of evidence, competent for a
restricted purpose, will not be held error in the absence of a
request by defendant for a limiting instruction.” State v.
Chandler, 324 N.C. 172, 182, 376 S.E.2d 728, 735 (1989). “Such an
instruction is not required unless specifically requested by
counsel.” State v. Stager, 329 N.C. 278, 309, 406 S.E.2d 876, 894
(1991) (quoting State v. Chandler, 324 N.C. 172, 182, 376 S.E.2d
728, 735 (1989)) (emphasis in original). Defendant failed to
object when the trial court did not give an instruction to the jury
that Detective Yancey's testimony could be used for substantive
purposes. Further defendant failed to “specifically and distinctlycontend” in his brief that the trial court's failure to instruct
the jury amounted to plain error. N.C. R. App. P. 10(c)(4) (2006).
Defendant has therefore waived appellate review of this assignment
of error. See State v. Nobles, 350 N.C. 483, 515, 515 S.E.2d 885,
904 (1999).
Defendant next argues he received ineffective assistance of
counsel and is entitled to a new trial because defense counsel made
an admission to the jury during the guilt-innocence phase of the
trial that defendant was guilty of possession of a firearm by a
felon.
Pursuant to N.C. Gen. Stat. § 15A-1444(a) (2006), “A defendant
who has entered a plea of not guilty to a criminal charge, and who
has been found guilty of a crime, is entitled to appeal as a matter
of right when final judgment has been entered.” Id. “Judgment is
entered when sentence is pronounced. Prayer for judgment continued
upon payment of costs, without more, does not constitute the entry
of judgment.” N.C. Gen. Stat. § 15A-101(4a) (2006).
During sentencing, the trial court entered a prayer for
judgment continued for the possession of a firearm by a felon
conviction. Therefore, no final judgment has been entered for the
possession of a firearm by a felon conviction and we are unable to
address this assignment of error. See State v. Escoto, 162 N.C.
App. 419, 590 S.E.2d 898 (2004).
Defendant next argues the trial court's felony-murder
instruction to the jury was confusing and thereby constituted plain
error. We disagree. “When analyzing jury instructions, we must read the trial
court's charge as a whole.” State v. Fowler, 353 N.C. 599, 624,
548 S.E.2d 684, 701 (2001). “We construe the jury charge
contextually and will not hold a portion of the charge prejudicial
if the charge as a whole is correct.” Id. “The charge of the court
must be read as a whole in the same connected way that the judge is
supposed to have intended it and the jury to have considered it.”
State v. Rich, 351 N.C. 386, 393, 527 S.E.2d 299, 303 (2000). “If
the charge presents the law fairly and clearly to the jury, the
fact that isolated expressions, standing alone, might be considered
erroneous will afford no ground for a reversal.” State v.
McWilliams, 277 N.C. 680, 685, 178 S.E.2d 476, 479 (1971) (citation
omitted). “In order to rise to the level of plain error, the error
in the trial court's instructions must be so fundamental that (i)
absent the error, the jury probably would have reached a different
verdict; or (ii) the error would constitute a miscarriage of
justice if not corrected.” State v. Holden, 346 N.C. 404, 435, 488
S.E.2d 514, 531 (1997).
We conclude that the trial court did not commit plain error
when giving an instruction on felony-murder. The trial court's
instruction to the jury tracked the language of the pattern jury
instruction on felony-murder. See N.C.P.I._Crim. 206.15 (2002).
Further, when the trial court's instructions are read as a whole,
they adequately explain both the elements of first-degree felony-
murder and the elements of defendant's underlying felony charges.
Finally, defendant has not shown that absent the alleged error, thejury would have reached a different verdict. Defendant has failed
to present an argument in support of assignments of error numbers
1 and 5. Therefore, these assignments of error are deemed
abandoned pursuant to N.C. R. App. P. 28(b)(6) (2006). For the
foregoing reasons, we find no error.
No error.
Judges GEER and JACKSON concur.
Report per Rule 30(e).
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