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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 5 June 2007
STATE OF NORTH CAROLINA
Nos. 04 CRS 109571 & 73
Nos. 04 CRS 115142-4
DEVON MARQUIS CARTER
Appeal by Defendant from judgments entered 9 January 2006 by
Judge Kenneth C. Titus in Superior Court, Durham County. Heard in
the Court of Appeals 20 February 2007.
Attorney General Roy Cooper, by Steven M. Arbogast, Special
Deputy Attorney General, for the State.
Marilyn G. Ozer, for defendant-appellant.
This appeal arises from Defendant Devon Marquis Carter's
conviction on the charges of the first-degree murder of Phillip
Taing and four counts of robbery with a dangerous weapon. We have
carefully reviewed this matter and find that Defendant received a
fair trial that was free of prejudicial error.
At trial, the evidence tended to show that Defendant went to
Mr. Taing's apartment on 2 December 2004 with four other
individuals, on the pretext of purchasing marijuana from Mr. Taing
but with the actual intention of robbing him. Three of Defendant's
co-defendants testified at his trial, in exchange for a reduction
in charges from first- to second-degree murder. They stated that
Defendant shot and killed Mr. Taing during the course of therobbery at his apartment. The robbery victims corroborated the
testimony of Defendant's co-defendants.
Following the robbery and shooting, Defendant went to the
house of Michael Weller, who lived close by to Mr. Taing. Mr.
Weller testified that he did not know Defendant but allowed him to
use his telephone and gave him a jacket and money for a taxi after
Defendant told him he had been mugged. After the taxi took him to
a nearby convenience store, Defendant encountered an acquaintance
from high school and asked him for a ride; Defendant was arrested
after his friend's car was pulled over by the police shortly after
picking him up.
On 9 January 2006, a jury found Defendant guilty of first-
degree murder and four counts of robbery with a dangerous weapon.
The trial court entered judgment and sentenced Defendant to life in
prison without possibility of parole for the first-degree murder
charge, under the felony murder rule, and to sixty-five to eighty-
seven months in prison on the robbery charges, to run concurrently
with the life sentence.
Defendant appeals, arguing the trial court erred by (I)
failing to comply fully with the mandatory charge conference
statute; (II) allowing questions related to his invocation of his
right to counsel during interrogation; (III) giving instructions to
the jury that improperly focused attention on his invocation of his
right to counsel; (IV) failing to arrest judgment on the underlying
armed robbery charges; and, (V) imposing a sentence of life without
First, Defendant argues that the trial court erred by failing
to comply fully with North Carolina General Statute § 15A-1231,
which requires him to hold a recorded conference on [jury]
instructions out of the presence of the jury. N.C. Gen. Stat. §
15A-1231(b) (2005). Because we conclude that the trial court did,
in fact, fully comply with this statute, this assignment of error
The charge conference statute reads in pertinent part:
Before the arguments to the jury, a judge must
hold a recorded conference on instructions out
of the presence of the jury. At the
conference the judge must inform the parties
of the offenses, lesser included offenses, and
affirmative defenses on which he will charge
the jury and must inform them of what, if any,
parts of tendered instructions will be given.
A party is also entitled to be informed, upon
request, whether the judge intends to include
other particular instructions in his charge to
the jury. The failure of the judge to comply
fully with the provisions of this subsection
does not constitute grounds for appeal unless
his failure, not corrected prior to the end of
the trial, materially prejudiced the case of
N.C. Gen. Stat. § 15A-1231(b) (emphasis added).
Here, Defendant concedes that the trial court held the
mandatory charge conference, gave the parties the opportunity to
tender instructions, and informed them as to which of those
tendered instructions he planned to use in his charge to the jury,
in addition to the full first degree instruction because the
evidence could support a verdict of felony murder. Nevertheless,
Defendant maintains that the trial court erred by including anadditional charge to the jury _ one not discussed in the charge
conference _ on false, contradictory, or conflicting statements of
a defendant. Defendant argues that this added instruction
materially prejudiced him, as it would have led the jury to make
certain assumptions as to whether he had given a sworn statement to
the police. We disagree.
During the charge conference, the trial court asked both
parties whether they had requests for specific instructions and
then indicated which of those tendered he would include and which
he would not. He also informed the parties that he would give the
full first degree instruction, which leaves second degree as an
option as well, because the circumstances in the case are closely
[sic] to felony murder. During the charge conference, defense
counsel made no request, as required by the statute, as to what
other particular instructions the trial court intended to include
in his charge to the jury, despite having the opportunity to do so.
As noted by our Supreme Court, a defendant cannot prohibit
the giving of an instruction to the jury by failing to request the
instruction. State v. Harris, 306 N.C. 724, 727, 295 S.E.2d 391,
393 (1982). Indeed, [r]egardless of requests by the parties, a
judge has an obligation to fully instruct the jury on all
substantial and essential features of the case embraced within the
issue and arising on the evidence. Id. (internal citation
omitted). Moreover, [t]he trial judge has wide discretion in
presenting the issues to the jury. Id. at 728, 295 S.E.2d at 393.
In the instant case, Defendant contends that the trial courterred by charging the jury with a non-requested instruction on
false, contradictory, or conflicting statements. He argues the
error was due to failing to give the parties the chance to object
to the instruction before it was given to the jury. However, the
statute has no such requirement. Further, Defense counsel objected
to the instruction after it was given, which afforded the
opportunity to correct any error prior to the end of the trial; the
objection was overruled. We find no abuse of discretion in that
Additionally, even assuming arguendo that charging the jury
with N.C.P.I.-Crim. 150-21 was error, we conclude that it did not
materially prejudice Defendant. N.C.P.I.-Crim. 150-20, Impeachment
or Corroboration by Prior Statement, accepted by Defendant at
trial, concerns the testimony of witnesses that is shown to be
inconsistent with their earlier statements not made under oath at
trial. N.C.P.I.-Crim. 150-21, False, Contradictory, or Conflicting
Statements, by contrast, addresses the possibly conflicting
statements of a defendant, rather than just witnesses, and does not
mention the issue of whether any of the defendant's statements were
made under oath. Defendant argues in his brief that the inclusion
of both instructions could have led the jury to assume that
Defendant had made a sworn statement to the police that had been
suppressed out of evidence because it would conflict with his
We find this argument to be without merit, as it relies on
speculation that the jury engaged in a series of tenuousassumptions and leaps of logic. Based on the record before us, we
find it equally, if not more, likely that the jury believed the
instructions referred to the contrast between Defendant's testimony
and that of Mr. Weller, the State witness who recounted the story
Defendant told him on the night of the murder and robbery. We
decline to engage in this type of inappropriate speculation,
concluding that such ambiguity cannot rise to the level of material
prejudice to Defendant. This assignment of error is accordingly
Defendant next argues that the trial court erred by allowing
questions related to his invocation of his right to counsel during
interrogation by the police, thereby entitling him to a new trial.
In general, a defendant's right to remain silent is protected
by the Fifth Amendment to the United States Constitution. See
Miranda v. Arizona, 384 U.S. 436, 469, 16 L. Ed. 2d 694, 721
(1966); State v. Elmore, 337 N.C. 789, 792, 448 S.E.2d 501, 502
(1994). Moreover, [i]t [is] fundamentally unfair to impeach
defendants concerning their post-arrest silence after they had been
impliedly assured through the Miranda warnings that their silence
would not result in any penalty. State v. Lane, 301 N.C. 382,
384, 271 S.E.2d 273, 275 (1980). Nevertheless, [t]he shield
provided by Miranda cannot be perverted into a license to use
perjury by way of a defense, free from the risk of confrontation
with prior inconsistent utterances. Harris v. New York, 401 U.S.222, 226, 28 L. Ed. 2d 1, 5 (1971). Thus, as noted by this Court:
When a defendant chooses to testify in his own
behalf, . . ., his 5th amendment right to
remain silent must give way to the state's
right to seek to determine, by way of
impeachment, whether a defendant's prior
silence is inconsistent with his trial
testimony. The test is whether, under the
circumstances at the time of arrest, it would
have been natural for defendant to have
asserted the same defense asserted at trial.
State v. McGinnis, 70 N.C. App. 421, 424, 320 S.E.2d 297, 300
(1984) (citing Lane, 301 N.C. 382, 271 S.E.2d 273).
Under North Carolina law, if the trial court's rulings in the
instant case violated Defendant's constitutional rights, such error
would be considered prejudicial unless the error was harmless
beyond a reasonable doubt. N.C. Gen. Stat. § 15A-1443(b) (2005);
Elmore, 337 N.C. at 792, 448 S.E.2d at 502; State v. Ladd, 308 N.C.
272, 284, 302 S.E.2d 164, 172 (1983). The burden is upon the
State to demonstrate, beyond a reasonable doubt, that the error was
harmless. N.C. Gen. Stat. § 15A-1443(b). Thus, in this case, we
consider whether a reasonable possibility exists that the
reference to Defendant's request for counsel contributed to his
conviction, using as the lynchpin in our analysis . . . whether
other overwhelming evidence of guilt was presented against
defendant. State v. Rashidi, 172 N.C. App. 628, 639, 617 S.E.2d
68, 76, aff'd per curiam, 360 N.C. 166, 622 S.E.2d 493 (2005).
Other factors include how the reference was elicited, whether it
was emphasized by the State, and whether the State sought to
capitalize on the invocation. Id. (citing Elmore, 337 N.C. at
792-93, 448 S.E.2d at 503). Here, Defendant specifically objects to a line of questions by
the State which included references to whether Defendant had
received his Miranda warnings while in a room with police officers,
as well as a question of whether he had decided to go with that
option to allow for an attorney to be present before [Defendant]
made a statement[.] We conclude that, even assuming arguendo that
the questions allowed by the trial court were error, the State has
demonstrated that such error would have been harmless beyond a
reasonable doubt. At trial, the State presented overwhelming
evidence of Defendant's guilt, including the testimony of three of
his co-defendants and prior inconsistent statements as to the
events of the evening in question. Additionally, the State did not
again refer to nor attempt to capitalize on Defendant's invocation
of his right to counsel; his cross-examination was the only time
that it was mentioned.
In sum, we hold that any error in allowing questions regarding
Defendant's Miranda rights was harmless beyond a reasonable doubt.
Accordingly, this assignment of error is overruled.
Defendant also asserts that the trial court erred by giving
instructions to the jury that improperly focused on his invocation
of his right to counsel during interrogation by the police. We
When reviewing instructions to a jury, this Court must
consider the charge in context, and isolated portions of it will
not be held prejudicial when the charge as a whole is correct. State v. Morgan, 359 N.C. 131, 163, 604 S.E.2d 886, 905 (2004),
cert. denied, 546 U.S. 830, 163 L. Ed. 2d 79 (2005). Indeed, [i]f
the charge as a whole 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. Id.
Defendant's argument is closely related to his first
assignment of error; he contends that charging the jury with
N.C.P.I.-Crim. 150-21, False, Contradictory, or Conflicting
Statements of Defendant, would have focused the jury's attention on
questions posed by the prosecution concerning his interrogation by
the police. As given by the trial judge, the relevant portion of
the jury instruction was:
The State contends, and the defendant denies,
that the defendant made false, contradictory,
or conflicting statements. If you find that
the defendant made such statements, they may
be considered by you as a circumstance tending
to reflect the mental process of a person
possessed of a guilty conscience, seeking to
divert suspicion or exculpate himself, and you
should consider that evidence, along with all
other believable evidence, in the case.
Given that Defendant's testimony conflicted with what Mr. Weller
recounted as to the story Defendant told him on the evening of the
robbery and murder, we conclude that this instruction did, in fact,
present the law clearly and fairly to the jury. We decline to
speculate as to other possible interpretations the jury might have
given to the instructions, when the context and evidence of the
trial supported the trial court's decision to give this
instruction. This assignment of error is therefore overruled.
Next, Defendant contends that the trial court erred in
sentencing by failing to arrest judgment on the underlying armed
robbery charges. We agree.
The jury in the instant case returned a verdict sheet
indicating that they found Defendant guilty of first-degree murder
under the felony murder rule, as well as of four counts of robbery
with a dangerous weapon, of murder victim Phillip Taing and the
other three individuals in the apartment that night. Because
Defendant was convicted of first-degree murder under the felony
murder rule, the trial court should have arrested judgment on the
underlying charge of robbery with a dangerous weapon, as related to
the murder victim Phillip Taing. See State v. Millsaps, 356 N.C.
556, 560, 572 S.E.2d 767, 770 (2002) (When a defendant is
convicted of felony murder only, the underlying felony constitutes
an element of first-degree murder and merges into the murder
conviction.); State v. Silhan, 302 N.C. 223, 261-62, 275 S.E.2d
450, 477 (1981) (When a defendant is convicted of first degree
murder pursuant to the felony murder rule, and a verdict of guilty
is also returned on the underlying felony, this latter conviction
. . . merges into the murder conviction, and any judgment imposed
on the underlying felony must be arrested.), overruled on other
grounds, State v. Sanderson, 346 N.C. 669, 488 S.E.2d 133 (1997).
Because the trial court failed to arrest judgment on the
underlying charge of robbery with a dangerous weapon of Phillip
Taing, we remand for resentencing in accordance with the felonymurder rule.
Finally, Defendant asserts that the trial court erred by
imposing a sentence of life without parole, arguing that such a
sentence is unconstitutional because the jury did not find an
intent to kill. Defendant essentially asks this Court to find that
North Carolina's felony murder rule, mandating a sentence of life
in prison without parole, is cruel, excessive, and unusual. In
light of the extensive statutory law and judicial precedent
supporting the constitutionality of such sentences, we decline to
do so. This assignment of error is without merit and accordingly
No prejudicial error in part, remanded in part.
Judges STEELMAN and JACKSON concur.
Report per Rule 30(e).
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