Opinion
No. COA10-1577
Filed 19 July 2011 This case not for publication
Appeal by defendant from judgment entered 25 February 2010 by Judge Donald W. Stephens in Wake County Superior Court. Heard in the Court of Appeals 11 May 2011.
Attorney General Roy Cooper, by Assistant Attorney General Steven F. Bryant, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Katherine Jane Allen, for defendant-appellant.
Wake County No. 08 CRS 087609.
Where the trial court was not required to submit the charge of second-degree murder to the jury, where the admission of a co-defendant's prior bad acts did not amount to plain error, and where defendant contests the use of the short-form murder indictment merely for preservation purposes, we find no error.
Facts and Procedural History
The evidence presented at trial indicated the following: On the night of 15 December 2008, Alexander Hakeen Gonzales (defendant) and three other men — Xavia Barnes (Barnes), Jayshon Norment (Norment), and Eugene Dumas (Dumas) — were driving around in defendant's girlfriend's car. The four men discussed and decided to find someone to rob. Dumas supplied defendant with a 9 millimeter gun.
Defendant spotted a cab driver and told Barnes, the driver, to stop the vehicle. Defendant and Norment then exited the vehicle while Barnes and Dumas remained inside. Norment testified that as they were getting out of the car, defendant said "[p]retend we talking, having a conversation." Defendant asked the cab driver if he could get a ride to the bus station. As the cab driver rolled down the car window, defendant demanded that the cab driver give up his money. The cabdriver said, "I'm not giving you s — because I'm from up north."
Norment testified that after the cab driver refused to give defendant money, defendant pulled out the 9 millimeter gun and pointed it at the cab driver. Norment started running away from the scene and immediately thereafter heard a gunshot but did not look back to see what had occurred. Dumas testified that defendant "came back — running back to the car and told [him] to drive." After driving away from the scene, defendant told Dumas that he shot the cab driver. The cab driver died on the scene.
In January 2009, defendant was indicted for first-degree murder in violation of N.C. Gen. Stat. § 14-17. On 25 February 2010, a jury found defendant guilty of first-degree murder, and he was sentenced to life imprisonment without parole. From this judgment, defendant appeals.
On appeal, defendant advances three issues: whether the trial court (I) erred by denying defendant's request to submit the charge of second-degree murder to the jury; (II) committed plain error by admitting evidence about bad acts of a co-defendant; and (III) erred by charging defendant in a "short-form" murder indictment.
I
Defendant first argues that because the evidence presented at trial did not "point inexorably and unerringly" to him being guilty of felony murder, the trial court erred by denying his request to submit the charge of second-degree murder to the jury. Defendant asserts that the testimony of the three co-defendants who testified against him was biased because of their deals with the State. Defendant also asserts that if presented with the lesser offense of second-degree murder, the jury could have found that "the killing did not occur while [defendant] was attempting to perpetrate a robbery." We disagree.
[W]hen the state proceeds on a first-degree murder theory of felony murder only, the trial court must instruct on all lesser-included offenses [i]f the evidence of the underlying felony supporting felony murder is in conflict and the evidence would support a lesser-included offense of first-degree murder. Conversely, when the state proceeds on a theory of felony murder only, the trial court should not instruct on lesser-included offenses [i]f the evidence as to the underlying felony supporting felony murder is not in conflict and all the evidence supports felony murder.
State v. Gwynn, 362 N.C. 334, 336, 661 S.E.2d 706, 707 (2008) (citation and quotations omitted). In the case sub judice, the state proceeded on a theory of felony murder only with the underlying felony being attempted robbery with a firearm. Now, the dispositive question is whether the evidence of attempted armed robbery of the cab driver was in conflict.
"The two elements of an attempt to commit a crime are: first, the intent to commit the substantive offense; and, second, an overt act done for the purpose which goes beyond mere preparation but falls short of the completed offense." State v. Smith, 300 N.C. 71, 79, 265 S.E.2d 164, 169-70 (citation omitted). The elements of robbery with a dangerous weapon are: "(1) an unlawful taking or an attempt to take personal property from the person or in the presence of another; (2) by use or threatened use of a firearm or other dangerous weapon; (3) whereby the life of a person is endangered or threatened." State v. Gwynn, 362 N.C. 334, 337, 661 S.E.2d 706, 707-08 (2008) (citation omitted).
Defendant argues that the jury "could have concluded that the shooting did not occur while [the cab driver] was being robbed because at the time of the killing [defendant] was simply defending himself and was no longer in any position to rob [the cab driver[.]" Defendant relies solely on the testimony of Officer Kevin Norman of the Raleigh Police Department. Officer Norman testified that during an interview with Dumas, Dumas described what defendant had told him about the 15 December 2008 incident. Defendant had told Dumas he was merely defending himself from the cab driver. Defendant also told Dumas that he believed the cab driver "was reaching for a weapon because he wasn't going to give up his money." Nevertheless, even considering defendant's statements to Dumas, defendant cannot show a conflict in the evidence that shows defendant was acting in self-defense. See State v. Jacobs, 363 N.C. 815, 822, 689 S.E.2d 859, 864 (2010) (stating that "[a]s to felony murder, self-defense is available only to the extent that it relates to applicable underlying felonies. We fail to see how defendant could plead self-defense to a robbery the jury found he had attempted to commit himself.")
Despite defendant's argument, the evidence presented at trial was not in conflict and supported the underlying felony of attempted robbery with a dangerous weapon. We hold that there was ample evidence regarding defendant's intent to commit the substantive offense of robbery with a dangerous weapon. There was a discussion amongst the four men involved and a plan to find someone to rob. Defendant obtained a 9 millimeter gun from Dumas. The evidence also indicated that defendant stopped a cab driver to demand money while displaying the 9 millimeter gun. This act of demanding money while displaying a gun constituted an overt act beyond mere preparation with intent to achieve the underlying substantive offense of robbery with a dangerous weapon. Based on a thorough review of the evidence, the trial court did not err by denying defendant's request to submit the charge of second-degree murder to the jury. Defendant's argument is overruled.
II
Next, defendant argues that the trial court committed plain error by admitting evidence of the bad acts of co-defendant Norment because the evidence "created such undue prejudice and caused such confusion of the issues that it outweighed any probative value [of] the testimony[.]" Defendant contends that but for the admission of this evidence, "there may have been a different result."
Because defendant failed to object to the admission of this testimony at trial we review for "plain error." State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (stating that "[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.")
[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" . . .
Id. (citing United States v. McCaskill, 676 F.2d 995, 1002 *4th Cir. 1982)). "In order to rise to the level of plain error, the error . . . 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).
Defendant asserts that viewing the evidence under Rule 403(b), the trial court erred by admitting unduly prejudicial and confusing testimony. Defendant contends that this evidence
infected the jury with the idea that because [defendant] knew [] Yates and Norment, he was a dangerous criminal with a propensity for guns, drugs, and violence. The evidence permitted the jury to confuse defendant with the bad general record of his companions and denied him a fair opportunity to defend against the charge for which he was convicted.
Joseph Yates (Yates), a witness for the State, testified regarding a previous burglary and robbery he committed. In November 2008, he entered an apartment with a 9 millimeter gun, that had been stolen from Yates' brother-in-law, and stole a purse. Yates testified that he had dropped the gun and lost it after the burglary and robbery and had informed Norment about the gun he had dropped. However, Norment testified that Dumas had retrieved the gun that was used on 15 December 2008 from the back of the apartment Yates had burglarized in November 2008. The admitted testimony indicated how and where Dumas obtained the 9 millimeter gun defendant used to shoot the cab driver. It was evident from the testimony provided by Yates that defendant had no relation to the burglary committed by Yates in November 2008. Therefore, this evidence was not unduly prejudicial to defendant. Accordingly, defendant's argument is overruled.
III
Defendant contends that the short-form indictment charging him with murder was "invalid [under the Sixth, Eighth, and Fourteenth Amendments to the United Constitution as well as corresponding provisions of the North Carolina Constitution] and, therefore, that the trial court erred by trying him for first-degree murder and entering judgment against him for first-degree felony murder." However, defendant concedes that this issue was raised for preservation purposes only, as our Supreme Court has upheld the constitutionality of the "short form" indictment. See State v. Allen, 360 N.C. 297, 316-17, 626 S.E.2d 271, 286 (2006). Accordingly, defendant's argument is overruled.
No error.
Judges HUNTER, Robert C., and MCCULLOUGH concur.
Report per rule 30(e).