Opinion
No. 06-731.
Filed 5 June 2007.
Alamance County Nos. 03 CRS 59477-79, 04. CRS 491.
Appeal by defendant from judgment entered 6 September 2005 by Judge James C. Spencer, Jr. in Alamance County Superior Court. Heard in the Court of Appeals 25 January 2007.
Attorney General Roy Cooper, by Special Deputy Attorney General Jonathan P. Babb, for the State. Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Charlesena Elliott Walker, for defendant-appellant.
Ramone Donte Stewart ("defendant") appeals from judgment entered upon a jury verdict finding him guilty of felony murder, assault with a deadly weapon inflicting serious injury, three counts of discharging a firearm into an occupied vehicle, and possession of a firearm by a felon. We find no error.
The State presented the following evidence: On 12 October 2003, at approximately 3:00 a.m., Deon Jones ("Jones") drove into the parking lot of the Jackson Park After Dark Nightclub ("the nightclub") in Burlington, North Carolina. Jones was accompanied by his cousin and three of his friends including the victim, Montel Kendall ("the victim"). Jones backed his car into a parking space between two other vehicles. A Chevrolet truck ("the Chevrolet") was parked on the passenger side of Jones' car and a Ford Explorer was parked on the driver's side. Jones and his friends rolled down the windows of his car and began socializing. After a few minutes, the victim, who was seated in the backseat of Jones' car on the passenger side, climbed out of the car to stretch his legs and smoke a cigarette. The victim stood beside the door of the car that he exited then placed one arm on the door of the car and the other arm on the roof of the car. After the nightclub closed, Jones observed defendant, one of the patrons, exit the nightclub and walk to a car that was parked on the other side of the Ford Explorer that was parked beside Jones' car.
A few minutes later, Garland Bigelow ("Bigelow"), another patron of the nightclub, walked between Jones' car and the Chevrolet to talk to the occupants of the Chevrolet. Bigelow talked to the occupants of the Chevrolet for a few minutes and then walked away. A few minutes later, Jones heard gunshots and noticed defendant firing a gun and running from the direction of defendant's car towards the Chevrolet. Derrick Leath ("Leath"), Bigelow's acquaintance and the driver of the Chevrolet, testified that he saw Bigelow running away from defendant. Bigelow ran between the Chevrolet and Jones' car to the rear of the Chevrolet. Bigelow then ran to the passenger side of the Chevrolet before he fell to the ground. Defendant fired two to three more shots in front of the Chevrolet before he stopped shooting. The victim suffered fatal injuries during the shooting. Defendant presented the testimony of Gregory Dixon ("Dixon"), defendant's friend, who testified that on 12 October 2003, he was sitting with defendant in a red Nissan in the parking lot of the nightclub when Bigelow approached defendant. Dixon testified that Bigelow and defendant started arguing about something and that Bigelow "dove in there on [defendant]" and defendant and Bigelow were "wrestling in the car." Dixon testified that he got out of the car and ran behind the nightclub when he heard the sound of a gun being cocked. Dixon stated that he did not see the shooting, but only heard the gunshots.
Defendant also presented the testimony of Delphine Anderson ("Ms. Anderson"), defendant's aunt. Ms. Anderson testified that defendant visited her house during the early morning hours of 12 October 2003. Ms. Anderson testified that when she opened her door to let defendant inside, defendant's mouth was covered with blood, his lip was cut, and some of his teeth were knocked out.
Finally, defendant presented the testimony of Detective Mark Yancey ("Detective Yancey"). Detective Yancey testified that he interviewed Bigelow on 13 October 2003 while Bigelow was admitted to Moses Cone Hospital in Greensboro, North Carolina. Detective Yancey testified that Bigelow stated that he had been involved in an argument with defendant before the shooting and Bigelow admitted that he hit defendant in the mouth with a bottle.
On 29 August 2005, a jury found defendant guilty of first-degree murder, assault with a deadly weapon with intent to kill inflicting serious injury, three counts of discharging a weapon into an occupied vehicle, and possession of a firearm by a felon. Alamance County Superior Court Judge James C. Spencer, Jr. entered judgment upon the first-degree murder verdict and sentenced defendant to life imprisonment without parole in the North Carolina Department of Correction. For the remaining convictions, defendant received a prayer for judgment continued. Defendant appeals.
Defendant contends the trial court erred by not giving an instruction to the jury to disregard a previous instruction limiting Detective Yancey's testimony when the State withdrew its objection to the witness' testimony. We disagree.
"In order to preserve a question for appellate review, a party must have presented the trial court with a timely request, objection or motion, stating the specific grounds for the ruling sought if the specific grounds are not apparent." State v. Eason, 328 N.C. 409, 420, 402 S.E.2d 809, 814 (1991); N.C. R. App. P. 10(b)(1) (2006). "The admission of evidence, competent for a restricted purpose, will not be held error in the absence of a request by defendant for a limiting instruction." State v. Chandler, 324 N.C. 172, 182, 376 S.E.2d 728, 735 (1989). "Such an instruction is not required unless specifically requested by counsel." State v. Stager, 329 N.C. 278, 309, 406 S.E.2d 876, 894 (1991) (quoting State v. Chandler, 324 N.C. 172, 182, 376 S.E.2d 728, 735 (1989)) (emphasis in original). Defendant failed to object when the trial court did not give an instruction to the jury that Detective Yancey's testimony could be used for substantive purposes. Further defendant failed to "specifically and distinctly contend" in his brief that the trial court's failure to instruct the jury amounted to plain error. N.C. R. App. P. 10(c)(4) (2006). Defendant has therefore waived appellate review of this assignment of error. See State v. Nobles, 350 N.C. 483, 515, 515 S.E.2d 885, 904 (1999).
Defendant next argues he received ineffective assistance of counsel and is entitled to a new trial because defense counsel made an admission to the jury during the guilt-innocence phase of the trial that defendant was guilty of possession of a firearm by a felon.
Pursuant to N.C. Gen. Stat. § 15A-1444(a) (2006), "A defendant who has entered a plea of not guilty to a criminal charge, and who has been found guilty of a crime, is entitled to appeal as a matter of right when final judgment has been entered." Id. "Judgment is entered when sentence is pronounced. Prayer for judgment continued upon payment of costs, without more, does not constitute the entry of judgment." N.C. Gen. Stat. § 15A-101(4a) (2006).
During sentencing, the trial court entered a prayer for judgment continued for the possession of a firearm by a felon conviction. Therefore, no final judgment has been entered for the possession of a firearm by a felon conviction and we are unable to address this assignment of error. See State v. Escoto, 162 N.C. App. 419, 590 S.E.2d 898 (2004).
Defendant next argues the trial court's felony-murder instruction to the jury was confusing and thereby constituted plain error. We disagree. "When analyzing jury instructions, we must read the trial court's charge as a whole." State v. Fowler, 353 N.C. 599, 624, 548 S.E.2d 684, 701 (2001). "We construe the jury charge contextually and will not hold a portion of the charge prejudicial if the charge as a whole is correct." Id. "The charge of the court must be read as a whole in the same connected way that the judge is supposed to have intended it and the jury to have considered it." State v. Rich, 351 N.C. 386, 393, 527 S.E.2d 299, 303 (2000). "If the charge 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." State v. McWilliams, 277 N.C. 680, 685, 178 S.E.2d 476, 479 (1971) (citation omitted). "In order to rise to the level of plain error, the error in the trial court's instructions 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).
We conclude that the trial court did not commit plain error when giving an instruction on felony-murder. The trial court's instruction to the jury tracked the language of the pattern jury instruction on felony-murder. See N.C.P.I. — Crim. 206.15 (2002). Further, when the trial court's instructions are read as a whole, they adequately explain both the elements of first-degree felony-murder and the elements of defendant's underlying felony charges. Finally, defendant has not shown that absent the alleged error, the jury would have reached a different verdict. Defendant has failed to present an argument in support of assignments of error numbers 1 and 5. Therefore, these assignments of error are deemed abandoned pursuant to N.C. R. App. P. 28(b)(6) (2006). For the foregoing reasons, we find no error.
No error.
Judges GEER and JACKSON concur.