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.
1. Homicide--attempted common law murder--short-form indictment
The Court of Appeals erred by concluding that the short-form indictment in this
case charged defendant with the offense of attempted common law murder which is an offense
not recognized by our General Statutes because a reasonable implication of the indictment is that
when it alleged that defendant did attempt to murder, it could only have meant attempted first-
degree murder since North Carolina does not recognize a criminal offense denominated as
attempted second-degree murder.
2. Homicide--attempted first-degree murder--short-form indictment
N.C.G.S. § 15-144, when construed alongside N.C.G.S. § 15-170, implicitly
authorizes the use of a short-form indictment to charge attempted first-degree murder. When
drafting such an indictment, it is sufficient for statutory purposes for the State to allege that the
accused person feloniously, willfully, and of his malice aforethought, did [attempt to] kill and
murder the named victim.
3. Homicide--attempted first-degree murder--short-form indictment--
constitutionality
The short-form indictment used to charge defendant with attempted first-degree
murder was constitutional.
On discretionary review pursuant to N.C.G.S. § 7A-31 of
a unanimous decision of the Court of Appeals, 165 N.C. App. 540,
598 S.E.2d 694 (2004), vacating a judgment entered on 8 August
2001 by Judge Forrest D. Bridges in Superior Court, Mecklenburg
County. On 6 October 2004, the Supreme Court allowed defendant's
conditional petition for discretionary review as to additional
issues. Heard in the Supreme Court 14 March 2005.
Roy Cooper, Attorney General, by Daniel P. O'Brien,
Assistant Attorney General, for the State-
appellant/appellee.
Paul Pooley for defendant appellee/appellant.
MARTIN, Justice. This appeal presents the issue of whether N.C.G.S. §
15-144 authorizes the use of a short-form indictment to charge
attempted first-degree murder.
Evidence presented at trial tended to show that on 30
June 2000, defendant Christopher Nathaniel Jones had an argument
with his co-worker, Romario Robinson, at their Pineville, North
Carolina workplace, Buffalo Tire. After an angry exchange of
words, Robinson grabbed a baseball bat, raised it into the air,
and directed it towards defendant. Jonathan Lucas, a manager at
Buffalo Tire, overheard the argument and arrived just in time to
intercept and grab the baseball bat as Robinson swung it
downward. Defendant then left the building, retrieved a firearm
from his car, reentered the building, chased down Robinson, and
shot him twice.
On 17 July 2000, a Mecklenburg County grand jury
indicted defendant for assault by pointing a gun and assault with
a deadly weapon with intent to kill inflicting serious injury.
The grand jury also indicted defendant for attempted murder, the
indictment stating that defendant did unlawfully, wilfully, and
feloniously and of malice aforethought attempt to kill and murder
Romario Robinson. On 8 August 2001, the jury found defendant
guilty of all three offenses, and the trial court entered
judgments accordingly. Defendant gave notice of appeal in open
court.
In the Court of Appeals, defendant argued that N.C.G.S.
§ 15-144, which authorizes use of the short-form murder
indictment, did not support defendant's conviction for attemptedmurder. The Court of Appeals rejected defendant's argument,
explaining that [b]ecause the indictment is constitutional and
sufficient for murder, it will support a conviction for attempted
murder. State v. Jones, 165 N.C. App. 540, 541, 598 S.E.2d 694,
695 (2004). Nonetheless, the Court vacated defendant's
conviction, reasoning that the indictment charged the offense of
attempted common law murder, which is not recognized by our
General Statutes. Id.
In 1887, the General Assembly enacted N.C.G.S. § 15-
144, which authorizes the use of a short-form indictment for
homicide crimes. N.C.G.S. § 15-144 (2003). See generally State
v. Hunt, 357 N.C. 257, 268-70, 582 S.E.2d 593, 600-02 (2003)
(tracing the legislative history of the short-form indictment),
cert. denied, 539 U.S. 985, 156 L. Ed. 2d 702 (2003). We have
previously upheld the use of the short-form murder indictment in
the face of both constitutional and statutory challenges. See,
e.g., id. at 274, 582 S.E.2d at 604-605 (noting that this Court
has consistently and unequivocally upheld short-form murder
indictments as valid under both the United States and the North
Carolina Constitutions); State v. King, 311 N.C. 603, 609-10,
320 S.E.2d 1, 6 (1984) (stating that an indictment drawn in
conformity with section 15-144 . . . is sufficient in law to
charge first degree murder and all lesser included offenses).
[1] Defendant raises two challenges to the indictment
at issue. First, defendant contends that this indictment is
statutorily defective. Defendant notes that N.C.G.S. . 15-144
does not include specific language authorizing a short-formindictment for attempted murder. Defendant compares this statute
to the statutes authorizing short-form indictments for rape and
sex offenses, which do include language expressly authorizing
such indictments to support verdicts of attempted rape and
attempt to commit a sex offense. N.C.G.S. § 15-144.1 (2003);
N.C.G.S. § 15-144.2 (2003). Defendant contends that under the
canon of construction expressio unius est exclusio alterius, it
logically follows that the General Assembly did not intend for
the short-form indictment for murder to support a charge of
attempted murder. We disagree.
In State v. Coble, a jury found the defendant guilty of
attempted second-degree murder. 351 N.C. 448, 448, 527 S.E.2d
45, 46 (2000). This Court in Coble explained that second-degree
murder is a general intent crime requiring intent to commit the
act resulting in death, whereas the crime of attempt is a
specific intent crime requiring intent to commit the underlying
offense. Id. at 449-50, 527 S.E.2d at 46-47. Because specific
intent to kill is not an element of second-degree murder, we
concluded that the crime of attempted second-degree murder is a
logical impossibility under North Carolina law. Id. at 451, 527
S.E.2d at 48. One reasonable implication of Coble is that, when
the short-form indictment in the instant case alleged that
defendant did . . . attempt to . . . murder, the indictment
could only have meant attempted first-degree murder because North
Carolina does not recognize a criminal offense denominated as
attempted second-degree murder. Id. Accordingly, we reject the
Court of Appeals' conclusion that the instant indictment chargedthe offense of attempted common law murder, an offense not
recognized by our General Statutes.
[2] We next address whether N.C.G.S. § 15-144, which
authorizes the use of the short-form indictment to charge murder
and manslaughter, also authorizes the use of the short-form
indictment for attempted first-degree murder. Although a
question of first impression for this Court, the Court of Appeals
has sustained this use of the short-form indictment on at least
three occasions.
See, e.g., State v. Andrews, 154 N.C. App. 553,
559-60, 572 S.E.2d 798, 803 (2002), cert. denied, 358 N.C. 156,
592 S.E.2d 696 (2004); State v. Trull, 153 N.C. App. 630, 640,
571 S.E.2d 592, 599 (2002); appeal dismissed, 356 N.C. 691, 578
S.E.2d 596 (2003), disc. rev. denied, 356 N.C. 691, 578 S.E.2d
597 (2003); State v. Choppy, 141 N.C. App. 32, 41, 539 S.E.2d 44,
50-51 (2000) (upholding indictment alleging defendant . . .
unlawfully, willfully and feloniously and of malice aforethought
did attempt to kill and murder [the victim]), appeal dismissed
and disc. rev. denied, 353 N.C. 384, 547 S.E.2d 817 (2001).
The cardinal principle of statutory construction is to
discern the intent of the legislature. N.C. Sch. Bds. Ass'n v.
Moore, ___ N.C. ___, ___, 614 S.E.2d 504, 512 (2005); Burgess v.
Your House of Raleigh, Inc., 326 N.C. 205, 209, 388 S.E.2d 134,
137 (1990). In discerning the intent of the General Assembly,
statutes in pari materia should be construed together and
harmonized whenever possible. Williams v. Williams, 299 N.C.
174, 180-81, 261 S.E.2d 849, 854 (1980). In light of these
canons of construction, we construe N.C.G.S. § 15-144 alongsideN.C.G.S. § 15-170, another statutory provision in Chapter 15
related to the sufficiency of indictments. N.C.G.S. § 15-170
provides that [u]pon the trial of any indictment the prisoner
may be convicted of the crime charged therein or of a less degree
of the same crime, or of an attempt to commit the crime so
charged, or of an attempt to commit a less degree of the same
crime. N.C.G.S. § 15-170 (2003) (emphasis added). This
statute, which was enacted in 1891, permits an indictment for
first-degree murder to sustain a conviction for attempted first-
degree murder. See id.
Defendant contends that N.C.G.S. § 15-170 is inapposite
for two reasons. First, defendant argues that section 15-170 is
applicable only when there is evidence tending to show that the
defendant may be guilty of a lesser-included offense. In support
of this contention, defendant relies on State v. Jones, in which
we stated that G.S. 15-169 and G.S. 15-170 are applicable only
when there is evidence tending to show that the defendant may be
guilty of a lesser offense. 249 N.C. 134, 139, 105 S.E.2d 513,
516 (1958). But the issue presented in Jones and in the cases
cited therein was whether the trial court's failure to instruct
the jury as to a lesser-included offense constituted reversible
error. Id. With respect to this issue, we concluded that
'[t]he necessity for instructing the jury as to an included
crime of lesser degree than that charged arises when and only
when there is evidence from which the jury could find that such
included crime of lesser degree was committed.' Id. (quoting
State v. Hicks, 241 N.C. 156, 159, 84 S.E.2d 545, 547 (1954)). In the present case, by contrast, we consider the express
provision in N.C.G.S. § 15-170 that an indictment will support a
conviction of an attempt to commit the crime so charged.
N.C.G.S. § 15-170 (emphasis added). It is implausible to suggest
that N.C.G.S. § 15-170 permits an indictment to support a
conviction for attempt only when the evidence supports the
defendant's conviction for a lesser-included offense. Because
Jones did not address the language in N.C.G.S. § 15-170
concerning attempt, it does not foreclose our consideration of
the statute in the instant case.
Second, defendant argues that because he was charged
with attempted murder, not murder, the statute has no application
to the instant case.
Defendant emphasizes that N.C.G.S. § 15-170
permits an indictment to support a conviction for attempt to
commit the crime charged and that the instant indictment
expressly charged defendant with attempted murder.
As defendant
puts it, whether he could be convicted of . . . 'attempted'
attempted murder is not at issue in this case.
We agree with defendant that N.C.G.S. § 15-170 does
not, in and of itself, authorize the use of the short-form
indictment to allege attempted first-degree murder. Indeed, the
question presented is whether the instant indictment is valid
under N.C.G.S. § 15-144, not N.C.G.S. § 15-170. Nonetheless,
N.C.G.S. § 15-170 is relevant to our inquiry in that it reflects
the General Assembly's judgment that, for purposes of the
indictment requirement, attempt is generally treated as a subset
of the completed offense. This general principle is furtherreflected in other provisions in Chapter 15 and in our case law
arising under that Chapter. See, e.g., N.C.G.S. § 15-144.1(a)
(providing that a short-form indictment for rape will support a
conviction for attempted rape); N.C.G.S. § 15-144.2(a)
(providing that a short-form indictment for sex offense will
support a conviction for attempted sex offense); State v. Surles,
230 N.C. 272, 52 S.E.2d 880 (1949) (upholding the defendant's
conviction for attempted second-degree burglary in a prosecution
for burglary).
Moreover, construing N.C.G.S. § 15-144 to permit the
use of the short-form indictment for attempted first-degree
murder in no way undermines the purposes of the indictment
requirement. We have previously stated that the chief policies
underlying the indictment requirement are (1) to give the
defendant notice of the charge against him to the end that he may
prepare a defense and be in a position to plead double jeopardy
if he is again brought to trial for the same offense and (2) to
enable the court to know what judgment to pronounce in case of
conviction. State v. Sills, 311 N.C. 370, 375-76, 317 S.E.2d
379, 382 (1984). In the instant case, the addition of the word
attempt to the indictment at issue could only have bolstered
these salutary principles by narrowing the focus of the trial and
restricting the range of possible convictions beyond those
authorized by an unmodified short-form murder indictment.
It is well settled that [i]n construing statutes
courts normally adopt an interpretation which will avoid absurd
or bizarre consequences, the presumption being that thelegislature acted in accordance with reason and common sense and
did not intend untoward results. State ex rel. Comm'r of Ins.
v. N.C. Auto. Rate Admin. Office, 294 N.C. 60, 68, 241 S.E.2d
324, 329 (1978). Applying this principle, there is no question
that a short-form indictment for first-degree murder would
support a conviction for attempted first-degree murder. See
N.C.G.S. § 15-170; see also
Hunt, 357 N.C. 257, 582 S.E.2d 593
(upholding an indictment virtually identical to that in the
instant case, with the exception of the attempt to language)
.
Yet on defendant's construction of the applicable statutes, the
insertion of the words attempt to in the instant indictment
would render the indictment invalid and unable to support a
conviction for the crime charged. In other words, the state
would be penalized for amending the indictment in a manner that
better reflects the state's theory of the case and limits the
range of possible convictions to one particular offense--
attempted first-degree murder. We will not countenance a
construction of N.C.G.S. § 15-144 that would operate in such a
manner. Accordingly, we hold that N.C.G.S. § 15-144, when
construed alongside N.C.G.S. § 15-170, implicitly authorizes the
state to utilize a short-form indictment to charge attempted
first-degree murder. We further hold that when drafting such a
indictment, it is sufficient for statutory purposes for the state
to allege that the accused person feloniously, willfully, and of
his malice aforethought, did [attempt to] kill and murder the
named victim.
[3] Defendant next argues that the instant indictment
violates the United States and North Carolina Constitutions.
Defendant argues that since the indictment fails to allege
specific intent, premeditation, and deliberation, it is
unconstitutional. In State v. Hunt, this Court thoroughly
addressed the issue of whether short-form indictments pursuant to
N.C.G.S. .15-144 are constitutional in light of the United States
Supreme Court decisions in Ring v. Arizona, 536 U.S. 584, 153 L.
Ed. 2d 556 (2002), Apprendi v. New Jersey, 530 U.S. 466, 147 L.
Ed. 2d 435 (2000), and Jones v. United States, 526 U.S. 227, 143
L. Ed. 2d 311 (1999), and held that the short-form indictment for
first-degree murder fully comports with the United States
Constitution. 357 N.C. at 265-78, 582 S.E.2d at 599-607.
Indeed, multiple decisions of this Court have upheld the
constitutionality of N.C.G.S. . 15-144 under both the federal and
state constitutions. See State v. Braxton, 352 N.C. 158, 173-75,
531 S.E.2d 428, 436-38 (2000) (federal and state constitutions),
cert. denied, 531 U.S. 1130, 148 L. Ed. 2d 797 (2001); State v.
Wallace, 351 N.C. 481, 508, 528 S.E.2d 326, 343 (federal
constitution), cert. denied, 531 U.S. 1018, 148 L. Ed. 2d 498
(2000); State v. Kilpatrick, 343 N.C. 466, 472, 471 S.E.2d 624,
628 (1996) (federal constitution); State v. Avery, 315 N.C. 1,
12-14, 337 S.E.2d 786, 792-93 (1985) (state constitution).
Defendant contends that Hunt does not control in the instant case
because Hunt concerned a short-form indictment and attempted
first-degree murder cannot validly be charged by a short-form
indictment. As discussed above, however, the short-formindictment in the instant case is statutorily sufficient.
Therefore, Hunt applies, and the indictment in the present case
is constitutionally valid.
Similarly, defendant's reliance on State v. Lucas, 353
N.C. 568, 597-98, 548 S.E.2d 712, 731 (2001) (holding that the
state must allege a firearm enhancement in an indictment), is
misplaced. Hunt makes clear that the principles of Lucas do not
otherwise apply to short-form indictments. Hunt, 357 N.C. at
273, 582 S.E.2d at 603. Consequently, the indictment in the
instant case comports with both statutory and constitutional
requirements.
As a practical matter, the record reflects that there
was no doubt at any stage of the proceedings that defendant was
being tried for attempted first-degree murder. There were
several indications throughout the trial that defendant had
proper notice of the attempted murder charge. For instance,
defense counsel requested that the trial court instruct on the
element instructions on attempted murder. Without objection,
the trial court instructed the jury as follows: As I said, the
Defendant has been charged, first of all, with attempted murder,
which in North Carolina means attempted first degree murder. We
therefore believe that the indictment gave defendant adequate
notice of the alleged criminal offense under North Carolina law
and that defendant was in no way prejudiced by the use of the
short-form indictment.
Accordingly, we reverse the decision of the Court of
Appeals and remand to that Court for further remand to theSuperior Court of Mecklenburg County for entry of judgment
consistent with this opinion.
REVERSED.
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