Appeal by defendant from judgment entered 23 July 2003 by
Judge Catherine C. Eagles in Guilford County Superior Court. Heard
in the Court of Appeals 10 December 2008.
Attorney General Roy Cooper, by Assistant Attorney General
Mary Carla Hollis, for the State.
Public Defender Jennifer Harjo, by Assistant Public Defender
Nora Henry Hargrove, for defendant-appellant.
BRYANT, Judge.
Defendant Anthony Johnson, born 12 July 1986, appeals from
judgments and commitments entered 23 July 2007 consistent with a
jury verdict finding him guilty of two counts of second degree
murder. For the reasons stated herein, we find no error.
On 18 April 2005, defendant was indicted for two counts of
first degree murder in the deaths of Regina Shelton and Bobby
Handy. At trial, evidence presented by the State tended to show
that on 18 December 2003 Jacob Snipes, a long-time friend of
defendant's, sold crack cocaine to Regina Shelton and Bobby Handy
along Randleman Road in Greensboro, North Carolina. Snipes and
Shelton exchanged phone numbers, and Shelton called Snipes the next
afternoon to arrange another cocaine purchase. Snipes did not havethe requested amount of cocaine so he manufactured “counterfeit
dope to make up the difference between what [he] had . . . and what
[he] didn't have.” Snipes was with defendant that afternoon and
told defendant that Shelton and Handy were spending $100.00 every
time they purchased cocaine from him. Snipes also told defendant
about his plan to sell Shelton and Handy “counterfeit dope.”
That evening, Snipes traveled to Shelton and Handy's room at
AmeriSuites where he sold them fake drugs for $150.00. Before
Snipes made it back home, Handy called to complain. He wanted
either real drugs or his money back. Snipes said he was unaware
the drugs were not real, but if Handy agreed to buy more drugs, he
would get an extra $50.00 worth of cocaine. Handy agreed.
When Snipes returned home, he informed defendant what had
happened. Snipes stated, “I'm about to head back out there,” and
defendant responded, “Well, we need to go ahead and get them.”
Counsel: What did he mean, “We need to go
ahead and get them”?
Snipes: Just to get the money and leave.
Counsel: Are you saying that was
[defendant's] idea?
Snipes: Yes, sir.
Counsel: Was he going to sell them any drugs
at any time?
Snipes: No, sir.
Snipes acquired four grams of crack cocaine and along with
defendant headed to meet Shelton and Handy. At approximately 9:00
p.m., on 19 December 2003, Snipes and defendant entered Shelton and
Handy's hotel room. Snipes sold two grams of cocaine, the first ofwhich Shelton and Handy smoked immediately. Snipes then excused
himself to use a bathroom where defendant called him on his cell
phone and told him to “get it all started.”
When Snipes returned from the bathroom, he attacked Handy, but
Handy soon got the upper hand. Defendant pushed Handy away and
told Snipes “to go get the girl.” Shelton had begun to scream and
had reached the outside door when Snipes pulled her back inside.
Snipes held her by the neck and choked her until she was no longer
moving. Defendant also stood over an unconscious Handy.
Counsel: What did [defendant] do when he got
up?
Snipes: He stood up and went over to _ We
already knew where the money was at
by that time, so we went over there,
got the money _ dumped the
pocketbook out on the bed, got the
money, and then we picked up the
cell phone.
Then he grabbed the iron and hit
Regina [Shelton] in the head with
the iron two times and then went
over there and hit Mr. Handy like
three times with the iron.
Defendant testified that he sold Shelton and Handy cocaine in
the hotel room and that Shelton attacked him to get more drugs.
Although he saw Snipes pick up an iron, he left the room before
anyone was struck with any kind of blunt object.
Dr. Maryane Gaffney-Kraft, qualified as an expert in forensic
pathology, testified that the cause of death of Bobby Handy was
asphyxia by strangulation. Dr. Thomas Owens, also qualified as an
expert in forensic pathology, testified that the cause of death ofRegina Shelton was some type of attack, “unspecified homicidal
violence” but most likely asphyxiation.
After the close of the evidence, during the charge conference,
the trial court stated that it would give a second degree murder
instruction that the State had to prove “malice, unlawfulness,
intent to wound with a deadly weapon . . . but [did not] have to
prove specific intent to kill, premeditation or deliberation.” In
its instructions to the jury, the trial court stated the following:
Court: In order for you to find [defendant]
guilty of second-degree murder, the
State must prove beyond a reasonable
doubt that [defendant], or someone
acting in concert with him,
intentionally and with malice
wounded Ms. Shelton and thereby
proximately caused her death.
If the State proves beyond a
reasonable doubt that [defendant],
or someone acting in concert with
him, intentionally inflicted a wound
upon Ms. Shelton that proximately
caused her death, you may infer,
first, that the killing was
unlawful, and second, that it was
done with malice, but you are not
compelled to do so.
You may consider the inferences,
along with all other facts and
circumstances, in determining
whether the killing was unlawful and
done with malice. If it was
unlawful and done with malice,
[defendant] would be guilty of
second-degree murder.
(Emphasis added). Once the jury was excused, the trial court
addressed counsel for both the State and defendant.
Court: [A]s to what I've told them so far,
any objections, corrections or
additions to the charge as given? Its a complicated charge, so if I
did not say it right just let me
know.
State: None from the State, Your Honor.
Defense: Not from the defense.
For the deaths of Bobby Handy and Regina Shelton, the jury found
defendant guilty of two counts of second degree murder. The trial
court entered judgments in accordance with the jury's verdicts and
committed defendant to two consecutive terms of 264 to 326 months
in the custody of the North Carolina Department of Correction.
Defendant appeals.
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On appeal, defendant raises the following two questions: (I)
Did the trial court commit plain error in instructing the jury on
second degree murder; and (II) did the trial court commit
reversible error in sentencing defendant.
I
First, defendant argues that the trial court committed plain
error in instructing the jury on the charge of second degree murder
as it pertained to Regina Shelton. Defendant argues that the trial
court failed to require that the jury find that “[defendant],
acting alone or together with others, intentionally and with malice
wounded Ms. Shelton
with a deadly weapon . . . .” (Emphasis
added). We disagree.
When reviewing jury instructions, our Supreme Court has stated
the following:
The charge of the [trial] court must be read
as a whole . . . . It will be construedcontextually, and isolated portions will not
be held prejudicial when the charge as a whole
is correct. If the charge presents the law
fairly and clearly to the jury, the fact that
some expressions, standing alone, might be
considered erroneous will afford no ground for
reversal.
State v. Hooks, 353 N.C. 629, 634, 548 S.E.2d 501, 505 (2001)
(internal and external citations omitted). “Under a plain error
analysis, defendant is entitled to a new trial only if the error
was so fundamental that, absent the error, the jury probably would
have reached a different result.”
Id. at 633, 548 S.E.2d at 505
(citation omitted).
“Murder in the second degree is the unlawful killing of a
human being with malice but without premeditation and
deliberation.”
State v. Leazer, 353 N.C. 234, 237, 539 S.E.2d 922,
924 (2000) (citation omitted).
Here, the trial court defined second degree murder as “the
unlawful killing of a human being with malice, but without
premeditation and deliberation.” Malice was described as follows:
If the State proves beyond a reasonable doubt
that [defendant], or someone acting in concert
with him, intentionally killed Ms. Shelton
with a deadly weapon or intentionally
inflicted a wound upon Ms. Shelton with a
deadly weapon, and that that proximately
caused Ms. Shelton's death, then you may infer
that the killing was unlawful and that it was
done with malice, but you are not compelled to
do so.
. . .
Hands or other body parts can be a deadly
weapon under some circumstances, as can
ordinarily household items, such as irons or
telephones, but whether such items or body
parts are used as deadly weapons, alone or inconjunction with each other, in this case is a
factual question to be determined by you in
light of all the evidence and circumstances
you find.
The trial court stated that “[i]n order for you to find
[defendant] guilty of second-degree murder, the State must prove
beyond a reasonable doubt that [defendant], or someone acting in
concert with him, intentionally and
with malice wounded Ms. Shelton
and thereby proximately caused her death.” (Emphasis added). The
trial court then recapped its second degree murder instruction with
the following statement:
So[,] if you find from the evidence beyond a
reasonable doubt that on or about December
19
th, 2003 [defendant], acting alone or
together with others, intentionally and
with
malice wounded Ms. Shelton with a deadly
weapon and that this proximately caused her
death, it would be your duty to return a
verdict of guilty of second-degree murder.
(Emphasis added).
Furthermore, the trial court also instructed the jury on the
charges against defendant as they pertained to Bobby Handy.
For you to find [defendant] guilty of second
degree murder the State must prove beyond a
reasonable doubt that [defendant], or someone
acting in concert with him, unlawfully,
intentionally and
with malice wounded Mr.
Handy with a deadly weapon, thereby
proximately causing his death . . . .
(Emphasis added). Also, in recapping its instructions on second
degree murder, the trial court stated the following:
If you find from the evidence beyond a
reasonable doubt that on or about December 19
th
of 2003 [defendant], acting by himself or
together with others, intentionally and
with
malice . . . wounded Mr. Handy with a deadly
weapon, thereby proximately causing Mr.Handy's death, it would be your duty to return
a verdict of guilty to second-degree murder.
(Emphasis added).
We hold that the trial court's lapse in stating “with a deadly
weapon” when describing the State's theory as to the element of
malice did not prejudice defendant.
See State v. Perez, 182 N.C.
App. 294, 300, 641 S.E.2d 844, 849 (2007) (holding that where the
charge viewed as a whole, contextually leaves no reasonable cause
to believe the jury was misled there was no prejudicial error).
Accordingly, this assignment of error is overruled.
II
Next, defendant argues the trial court erred in failing to
find substantial and uncontested mitigating factors prior to
sentencing and he is entitled to a new sentencing hearing wherein
his mitigating evidence will be reconsidered. We disagree.
Prior to imposing a sentence other than the
presumptive term for a particular offense, the
trial court is required to consider the
statutory list of aggravating and mitigating
sentencing factors listed in N.C.G.S. §
15A-1340.16 [], to make written findings of
fact concerning the factors, and to determine
whether one set outweighs the other or whether
they are counterbalanced.
State v. Hilbert, 145 N.C. App. 440, 442, 549 S.E.2d 882, 884
(2001) (citation omitted). “A sentencing judge must find a
statutory mitigating sentence factor if it is supported by a
preponderance of the evidence. A mitigating factor is proven when
the evidence is substantial, uncontradicted, and there is no reason
to doubt its credibility.”
State v. Kemp, 153 N.C. App. 231, 241,
569 S.E.2d 717, 723 (2002) (internal citations omitted). “A trialjudge is given wide latitude in determining the existence of . . .
mitigating factors, and the trial court's failure to find a
mitigating factor is error only when no other reasonable inferences
can be drawn from the evidence.”
State v. Norman, 151 N.C. App.
100, 105-06, 564 S.E.2d 630, 634 (2002) (citation omitted).
Here, defendant asked the trial court to find the following
statutory mitigating factors:
1) [T]hat the defendant was suffering from a
mental or physical condition that was
insufficient to constitute a defense, but
significantly reduced his culpability for
the offense;
2) [T]hat the defendant's age or immaturity
significantly reduced his culpability for
the act;
3) [T]hat the defendant acted under strong
provocation;
4) [T]hat the defendant has a good treatment
prognosis.
The trial court found only one statutory mitigating factor,
that “defendant's age, or immaturity, at the time of the commission
of the offense significantly reduced the defendant's culpability
for the offense.”
Defendant states that his youth and home life “were abysmal”
and that he has been diagnosed with mental health issues such as
attention deficit disorder, conduct disorder, and adjustment
disorder; however, we hold it was within the trial court's
discretion to determine that such conditions did not significantly
reduce defendant's culpability. Evidence was also presented on the issue of defendant's
redeemability. Dr. Jerry Noble, an expert in clinical psychology,
testified that he thought there was hope for defendant, that he was
redeemable given a structured setting and resources such as are
available in the Department of Correction. On such evidence, we
hold the trial court was within its discretion to determine that
defendant did not have a good treatment prognosis. Accordingly,
this assignment of error is overruled.
Further, we hold defendant's argument that he acted under
strong provocation to be without merit.
No error.
Judges MCGEE and GEER concur.
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