Opinion
No. 06-1061.
Filed January 15, 2008.
Mecklenburg County Nos. 02 CRS 204851; 05 CRS 48516; 05 CRS 48517.
Appeal by defendant from judgments entered 30 August 2005 by Judge Timothy S. Kincaid in Mecklenburg County Superior Court. Heard in the Court of Appeals 8 May 2007.
Attorney General Roy Cooper, by Special Deputy Attorney General H. Dean Bowman, for the State. Appellate Defender Staples Hughes, by Assistant Appellant Defender Katherine Jane Allen, for defendant-appellant.
Rodney Christopher Craig ("defendant") appeals from judgments entered upon jury verdicts finding him guilty of first-degree murder, first-degree burglary, and second-degree kidnapping. We vacate defendant's conviction for first-degree burglary, but otherwise find no prejudicial error.
At trial, Kathy Edwards ("Edwards") testified that she and Antron Lindsay ("the victim") were living at the home of Pinkston Ware ("Ware") in Charlotte when the victim was murdered. On the night the victim was murdered, Edwards was in the kitchen when she heard a knock at the back door. When she opened the door, two men armed with guns rushed inside. Defendant, one of the gunmen, placed a gun to Edwards' head. Edwards then heard a knock at the front door and the other gunman went and opened the door, allowing two more armed men to enter. During this time Ware was lying on the couch in the living room. When the four gunmen had been inside the house for approximately ten minutes, Edwards heard another knock at the back door. Defendant grabbed Edwards and again placed his gun to her head, saying, "Bitch, open the door."
Edwards opened the door and spoke to the victim, saying, "Tron, these guys got guns." Defendant grabbed the victim and pulled her inside the house. Two other people were outside with the victim, a male and a female. The female escaped, but the male was forced into the house and marched, along with Edwards and Ware, to the back bedroom. The gunman who forced them into the bedroom told them to stay there. Defendant and one of his accomplices took the victim to the other bedroom.
Edwards stated that she could hear defendant and the victim talking in the other bedroom. The two had previously been in a relationship. Edwards testified she heard the victim say, "Baby, you know you ain't fixing to shoot me," and defendant responded, "Bitch, you know I got to kill you." Edwards then heard four shots.
Defendant was indicted for first-degree murder, first-degree burglary, and second-degree kidnapping. Following his trial, a Mecklenburg County jury returned verdicts finding defendant guilty of first-degree felony murder, first-degree burglary, and second-degree kidnapping. Upon the verdict finding defendant guilty of first-degree murder, Superior Court Judge Timothy S. Kincaid entered judgment, sentencing defendant to life imprisonment in the North Carolina Department of Correction without the possibility of parole. Judge Kincaid sentenced defendant to a minimum of 117 months and a maximum of 150 months for first-degree burglary, and a minimum of 46 months and a maximum of 65 months for second-degree kidnapping. From those judgments, defendant appeals.
Defendant initially argues the trial court erred in failing to dismiss his first-degree burglary conviction. Defendant contends his Fifth Amendment right to be free from double jeopardy was violated because the charge of first-degree burglary merged into the felony murder charge. We agree.
[W]hen the State, in the trial of a charge of murder, uses evidence that the murder occurred in the perpetration of another felony so as to establish that the murder was a murder in the first degree, the underlying felony becomes a part of the murder charge to the extent of preventing a further prosecution of the defendant for, or a further sentence of the defendant for, commission of the underlying felony.
State v. Squire, 292 N.C. 494, 506, 234 S.E.2d 563, 570 (1977).
Here, defendant was convicted of first-degree felony murder with the underlying felony being first-degree burglary. In accordance with the authority cited above, we determine that it was error for the trial court to impose an additional sentence for the crime of first-degree burglary beyond the life sentence imposed for first-degree felony murder. As such, we vacate the judgment entered upon defendant's conviction for first-degree burglary.
Defendant next argues the trial court erred in failing to instruct the jury that it could consider evidence of voluntary intoxication on the charge of first-degree felony murder. During the charge conference, defendant requested that the trial court instruct the jury on voluntary intoxication. Defense counsel stated,
I don't think there is any question in this case that the State's own evidence presents substantial evidence that my client was intoxicated at the time these events occurred on the early morning hours of January 31, 2002. That goes squarely on the point of whether or not he formed the requisite intent required for first degree murder.
Over the prosecutor's objection, the trial court agreed and instructed the jury as follows:
Members of the jury, you may find that ? there is evidence which tends to show that the defendant was intoxicated or drugged at the time of the acts alleged in this case. Generally speaking, voluntary intoxication or a voluntarily drugged condition is not a legal excuse for a crime. However, if you find that the defendant was intoxicated or drugged, you should consider whether this condition affected his ability to formulate the specific intent which is required for a conviction of first degree murder. In order for you to find the defendant guilty of first degree murder, you must find beyond a reasonable doubt that he had the specific intent required to commit this crime; that is, the specific intent to kill. If as a result of intoxication or a drugged condition the defendant did not have the required specific intent, you must find the defendant not guilty of first degree murder based on premeditation, malice, and deliberation.
. . .
Further, the Court charges that if upon consideration of the evidence with respect to the defendant's intoxication or drugged condition you have a reasonable doubt as to whether the defendant formulated the specific intent required for a conviction of first degree murder based on malice, premeditation and deliberation, you will not return a verdict of guilty of first degree murder on the basis of malice, premeditation, and deliberation.
Defendant never specifically requested a voluntary intoxication instruction with respect to felony murder or the underlying felonies. Nevertheless, defendant contends that the court committed error by failing to instruct the jury on voluntary intoxication for felony murder. We disagree.
We first note that voluntary intoxication may provide a defense against specific intent crimes. "Although voluntary intoxication is no excuse for crime, where a specific intent is an essential element of the offense charged, the fact of intoxication may negate the existence of that intent." State v. Bunn, 283 N.C. 444, 458, 196 S.E.2d 777, 786 (1973). "Where the defendant's or the State's evidence when viewed in the light most favorable to the defendant discloses facts which are `legally sufficient' to constitute a defense to the charged crime, the trial court must instruct the jury on the defense." State v. Marshall, 105 N.C. App. 518, 522, 414 S.E.2d 95, 97 (1992).
In support of his argument that the trial court erred by failing to give a voluntary intoxication instruction on felony murder, defendant relies on State v. Golden, 143 N.C. App. 426, 546 S.E.2d 163 (2001), and State v. Kyle, 333 N.C. 687, 430 S.E.2d 412 (1993). However, the case sub judice is distinguishable from those cases in that those cases involved defendants who had requested voluntary intoxication instructions as to specific offenses, whereas here, defendant limited his request to the charge of premeditated and deliberate murder.
In Golden, we determined that it was error for the trial court to deny defendant's request that the jury be instructed on voluntary intoxication for felony murder when the evidence supported such an instruction. Likewise, in Kyle, our Supreme Court held it was error for a trial court to limit a voluntary intoxication instruction to first-degree murder when such an instruction was also appropriate to charges of burglary and kidnapping and when defendant had requested such an instruction. "Defendant was entitled, upon his request, to have the trial court instruct the jury on the law regarding voluntary intoxication as it applied to the offenses of burglary and kidnapping." Kyle, 333 N.C. at 699, 430 S.E.2d at 418.
The record clearly shows that the trial court gave a detailed account of the instructions it planned to give prior to instructing the jury. Defendant failed to object to these proposed instructions and failed to request that the jury be instructed on voluntary intoxication with respect to the felony murder charge. This omission is highlighted by defendant's failure to request voluntary intoxication requests for the first-degree burglary and second-degree kidnapping charges. A defendant must object to the instruction or any error resulting from the trial court's failure to give the instruction will be reviewed under a plain error standard. State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983).
[T]he plain error rule . . . is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done, or where [the error] is grave error which amounts to a denial of a fundamental right of the accused, or the error has resulted in a miscarriage of justice or in the denial to appellant of a fair trial or where the error is such as to seriously affect the fairness, integrity or public reputation of judicial proceedings or where it can be fairly said the instructional mistake had a probable impact on the jury's finding that the defendant was guilty.
Odom, 307 N.C. at 660, 300 S.E.2d at 378 (citation and quotation marks omitted). See also N.C. R. App. P. 10(b)(2) (2006) ("A party may not assign as error any portion of the jury charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly that to which he objects and the grounds of his objection. . . .").
Although we note that the jury found defendant not guilty based on premeditation and deliberation, the burden is on the defendant to show that absent any omission in the jury instructions a different result would have been reached on the other charges. Defendant has failed to show and we are not convinced that, if the jury had been instructed on voluntary intoxication with respect to felony murder, that defendant would have been acquitted of that charge. Defendant argues that his acquittal on premeditated murder demonstrates that the jury determined he was too intoxicated to form the specific intent to kill. However, there are other reasons the jury might have relied upon, and it is mere speculation to assert that jurors must have found defendant too intoxicated to kill with a specific purpose.
Although there was evidence that defendant committed the murder while intoxicated, there was also abundant evidence that he acted with purpose and design in regards to the commission of the burglary. Defendant stated his desire to "do a lick" to Karon Tucker sometime between 7:00 p.m. and 8:00 p.m. on the night of the murder. At around 11:45 p.m., defendant left his neighborhood and drove himself and his accomplices to Statesville Avenue. Once there, defendant and his accomplices executed a plan, storming the house in stages, and taking and isolating the hostages. Defendant was able to drive away from the scene and direct his accomplices to dispose of the weapons they had taken from the house. He further warned his accomplices that if they said anything about the murder, he would kill them. In light of this evidence, we do not believe it probable that the jury would have found defendant not guilty of felony murder. As such, this assignment of error is overruled.
In a related argument, defendant contends the trial court committed plain error in failing to instruct the jury that it could consider evidence of voluntary intoxication on the charge of first-degree burglary and second-degree kidnapping. We disagree. As stated above, we review this argument under a plain error standard.
Assuming, arguendo, that the trial court erred by not instructing the jury that it could consider evidence of voluntary intoxication on the charges of first-degree burglary and kidnapping, we are not convinced that any such error was so serious as to have a "probable impact" on the jury's finding of guilt. As previously stated, there was ample evidence that defendant acted with a clear, deliberate purpose, and it is unlikely the jury would have concluded that voluntary intoxication rendered him unable to form the requisite intent. As such, this assignment of error is overruled.
Defendant next argues the trial court erred in admitting statements from the victim in violation of his Confrontation Clause rights. We disagree.
Defendant specifically objects to the admission of testimony by two police officers who stated that the victim had reported abuse and threats by defendant to them. Brendan Hopkins ("Officer Hopkins"), a Charlotte-Mecklenburg police officer, testified that he responded to a 911 call made by the victim on 4 November 2001. The victim reported to Officer Hopkins that she and defendant began arguing while riding in a car. Defendant brandished a pistol and threatened to kill the victim and said he would do so even in the presence of police officers. He then ordered her out of the vehicle. In addition, William Colligan ("Officer Colligan") testified that he responded to a 911 call by the victim on 10 July 2001. Officer Colligan stated that the victim told him she had been in a vehicle with defendant when the two began arguing. Defendant threatened to kill the victim, saying he would "take her out of her misery." The victim got out of the car and called police.
The Confrontation Clause of the Sixth Amendment provides: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." In Crawford v. Washington, 541 U.S. 36, 158 L.Ed.2d 177 (2004), the United States Supreme Court held that a defendant's Confrontation Clause right prevents the admission of testimonial statements made by a declarant unless the declarant is unavailable and the defendant has had a prior opportunity to cross-examine the declarant. Here, the victim's statements concerning past threats from defendant were admitted over defendant's objection. Defendant had no prior opportunity to cross-examine the declarant. Thus, our analysis turns on whether the statements offered by the State were testimonial in nature.
The United States Supreme Court has decided two companion cases, Davis v. Washington, and Hammon v. Indiana, on the issue of whether emergency encounters with police resulting from 911 calls involve testimonial statements by the caller. Davis v. Washington, 547 U.S. ___, 165 L.Ed.2d 224 (2006). Davis involved a 911 call in which Michelle McCottry ("McCottry") called police to report that her former boyfriend was attacking her. The boyfriend fled during the course of the call, but not before McCottry identified him. Id. at ___, 165 L.Ed.2d at 234.
In Hammon, police received a domestic disturbance call to the home of Amy Hammon ("Hammon"). Upon arriving, the officers separated the couple and separately interviewed them. During the inverview, Hammon executed an affidavit stating her husband had battered her. Id. at ___, 165 L.Ed.2d at 235-36. Neither McCottry nor Hammon testified at trial, and their statements were admitted over the defendants' objections. Id. The United States Supreme Court held that the statements made by McCottry were nontestimonial in nature and thus their introduction did not offend the Confrontation Clause, but determined the statements made by Hammon were in fact testimonial and were barred by the Confrontation Clause since the declarant was unavailable and there was no opportunity for cross-examination. The Court set forth its test as follows:
Statements 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.
Id. 547 U.S. at ___, 165 L.Ed.2d at 237.
In the case sub judice, the statements made to Officers Hopkins and Colligan were made by the victim following 911 calls to report threats made by defendant. Defendant argues that these statements are more similar to Hammon because there was no immediate danger to the victim, and the statements took place after the events had taken place, thus converting this into a criminal investigation to prove past events. We disagree. In Davis the Supreme Court relied on multiple factors to determine that the Hammon statements were testimonial. Similarly to Crawford, the Court found the formal features of the interrogation, the separation of the declarant for the purpose of that interrogation, as well as the amount of time between the incident and the interrogation all relevant considerations. Id. at ___, 165 L.Ed.2d at 242. When evaluating the Davis statements the Court found the difference in the level of formality "striking" in finding them nontestimonial. Id. at ___, 165 L.Ed.2d at 240.
In the present case, officers each responded to emergency calls and questioned the victim to "enable police assistance to meet an ongoing emergency." Even though defendant was not present when the officers arrived, the officers were responding to an emergency call and could not have knowledge of the risks to the victim or themselves unless they questioned the victim to determine the situation. Officers may, and should, respond to 911 calls as if they are emergencies until they obtain sufficient information that indicates otherwise.
The record indicates that the questioning never went beyond this initial informal interview to establish the facts surrounding the call and determine that the victim and officers were not in any risk of harm. If, as in Hammon, upon determining the emergency situation has passed, police continue their interrogation in a more formal way, the statements may be testimonial. However, the officers questioned the victim "under circumstances objectively indicating that the primary purpose [was] to enable police assistance to meet an ongoing emergency." Therefore, the statements by the victim were nontestimonial, and the defendant's Confrontation Clause rights were not violated by their admission.
Defendant lastly argues the trial court erred by allowing him to be tried upon a short-form indictment charging him with murder. Defendant acknowledges that our Supreme Court has allowed the use of short-form indictments for murder and brings this issue for preservation only. In State v. Wallace, 351 N.C. 481, 528 S.E.2d 326 (2000), the North Carolina Supreme Court recognized the constitutionality of the short-form murder indictment. Since our courts have specifically addressed this issue and rejected arguments identical to the one now advanced by defendant, this assignment of error is overruled.
Vacated in part; no prejudicial error in part.
Judges WYNN and TYSON concur.
Report per Rule 30(e).