State v. Williams

750 S.E.2d 917

STATE of North Carolina

v.Tremona Dremell WILLIAMS.

No. COA 13–193.

Court of Appeals of North Carolina.

Sept. 3, 2013.

Appeal by defendant from judgment entered 21 May 2012 by Judge Lucy N. Inman in Cumberland County Superior Court. Heard in the Court of Appeals 4 June 2013.

Attorney General Roy Cooper, by Special Deputy Attorney General Alexander McC. Peters, for the State.

M. Alexander, Charns for defendant-appellant.

HUNTER, JR., ROBERT N., Judge.

Tremona Dremell Williams ¹ (“Defendant”) appeals from judgment entered after a jury convicted him of: (i) first-degree murder; and (ii) felonious breaking or entering. On appeal, Defendant argues: (i) the trial court erred by instructing the jury that it could reach a verdict by majority vote; (ii) he received ineffective assistance of counsel; (iii) the trial court erred by instructing the jury that it could use armed robbery as a predicate felony for felony murder; and (iv) the trial court erred by instructing the jury on (a) false, contradictory, or conflicting statements; and (b) flight. Upon review, we determine Defendant received a fair trial, free from error.

I. Facts & Procedural History

On 11 October 2010, Defendant was indicted for: (i) first-degree murder; (ii) felonious breaking or entering; and (iii) felonious conspiracy to commit assault with a deadly weapon with intent to kill inflicting serious injury. The State's evidence at trial tended to show the following facts.

Defendant and Sean Foster (“Sean”) ² worked in the drug trade together. Sean supplied crack cocaine to Defendant, and Defendant sold the crack cocaine. In 2009, Sean loaned Defendant a sum of money. Defendant agreed to repay Sean by 25 September 2009.

On the afternoon of 25 September 2009, Sean's girlfriend, Desiree Santiago (“Desiree”), drove Sean and Sean's uncle to Defendant's house. After Defendant came outside, either Sean or Sean's uncle held a gun to Defendant's head and took Defendant's wallet and money. After taking almost $200 from Defendant, Sean said that although the money didn't fully satisfy the debt, they were now “good.” Defendant denied Sean said this. After the gun was put away, the parties got in a physical fight that carried them across the front yard and into the lot across the street. The fight ended when Sean and his uncle got back in their car and left.

About an hour later, Desiree, Sean, and Sean's uncle returned to Desiree's house. Minutes after getting home, two cars pulled up to Desiree's house and six people with guns jumped out, including Defendant. At the time, Desiree and her son were outside. When Desiree saw Defendant, she asked him not to “do this” because she had children. Defendant responded that she should tell her “punk-ass boyfriend to come outside.” Defendant's friends also said they would “come in there blazing ... if Sean didn't come outside.” Defendant's friends also said they would “come in there blazing ... if Sean didn't come outside.”

Desiree and her son ran inside. Desiree's two children hid in a back room. Desiree hid in the bathroom and called 911. From the window, Desiree saw Defendant and his friends surround her house. She then heard Marcus McAllister (“Marcus”), one of Defendant's friends, kick in the front door. Next, she heard fighting and shooting.

The trial court heard conflicting testimony as to what happened next. Marcus testified he and Defendant entered the home, and Defendant shot Sean. Defendant claimed he never entered Desiree's home or fired a gun that day. Instead, Defendant testified he simply came to Desiree's house to get his wallet back peacefully. Defendant claimed one of his friends shot Sean.

A neighbor then saw Defendant's group flee from the house and get in a pickup truck. Defendant got in the truck's cab, and Marcus got in the truck's bed. The neighbor testified Marcus fired a gun at Desiree's house from the truck's bed as the truck pulled away. However, Marcus testified he never touched a gun that day.

After Defendant and his friends left, Desiree checked on everyone. She found her children were unhurt, but Sean was lying in the carport bleeding. He was alive, but unable to communicate. Paramedics took Sean to the hospital, where he died shortly after arriving.

Desiree rode with her neighbor to the hospital. On her way, she received a call from Defendant on Sean's phone. Desiree testified Defendant told her “this wasn't over,” and she had “half-an-hour to get [him] his money.” However, Defendant denied threatening Desiree or asking for his money back. Later that day, Defendant found out Sean died. Marcus testified that Defendant called him to tell him Sean had died and to burn the clothes and shoes Marcus wore that day.

Defendant was arrested on 7 October 2009. He was indicted on 11 October 2010 for: (i) first-degree murder; (ii) felonious breaking or entering; and (iii) felonious conspiracy to commit assault with a deadly weapon with intent to kill inflicting serious injury.³

After the close of all the evidence, the trial court issued jury instructions. The transcript reflects that the trial court made the following statement during jury instructions:

It is your duty to find the facts and to render a verdict reflecting the truth. All 12 of you must agree to your verdict. You can reach a verdict by majority vote. When you have agreed upon a unanimous verdict as to each charge, your foreperson should so indicate on the jury form.... When you have unanimously agreed upon a verdict as to each charge and are ready to announce your verdicts, your foreperson should record your verdict form ...

(Emphasis added.) Defendant did not object to this statement at trial. The trial court also instructed the jury on: (i) armed robbery; (ii) flight; and (iii) giving false, contradictory or conflicting statements. Defendant did object to these three jury instructions at trial.

Before instructing the jury, the trial court gave printed copies of the instructions to the jurors so they could read along. The trial court also allowed the jury to take a copy of the printed instructions into the deliberation room. The printed instruction about unanimous verdicts differs from the trial transcript:

It is your duty to find the facts and to render a verdict reflecting the truth. All twelve of you must agree to your verdict. You cannot reach a verdict by majority vote.

(Emphasis added.)

After the jury reached a verdict, the trial court asked the foreperson if the verdict was unanimous. The foreperson replied affirmatively for both offenses. The trial court then asked the jury, “Members of the jury, if each of you agree to and assent to this verdict, please raise your hand.” In response, each juror raised his or her hand.

On 21 May 2012, the jury found Defendant guilty of: (i) first-degree murder; and (ii) felonious breaking or entering. The verdict form stated the verdict was “unanimous.” The trial court: (i) sentenced Defendant to life imprisonment without parole for murder; and (ii) arrested judgment for the breaking or entering conviction. Defendant gave oral notice of appeal in open court.

II. Jurisdiction

This Court has jurisdiction to hear the instant case pursuant to N.C. Gen.Stat. § 7A–27(b) (2011).

“A criminal defendant has a constitutional right to the effective assistance of counsel.” State v. Redman, ––– N.C.App. ––––, ––––, 736 S.E.2d 545, 550 (2012) (citing State v. Braswell, 312 N.C. 553, 561, 324 S.E.2d 241, 247 (1985)). “The standard of review for alleged violations of constitutional rights is de novo.” State v. Graham, 200 N.C.App. 204, 214, 683 S.E.2d 437, 444 (2009), appeal dismissed and disc. rev. denied,363 N.C. 857, 694 S.E.2d 766 (2010); see also Piedmont Triad Reg'l Water Auth. v. Sumner Hills Inc., 353 N.C. 343, 348, 543 S.E.2d 844, 848 (2001) (“[D]e novo review is ordinarily appropriate in cases where constitutional rights are implicated.”).

Additionally, “[a]s a question of law, this Court reviews the sufficiency of jury instructions de novo.” State v. Boyd, 214 N.C.App. 294, ––––, 714 S.E.2d 466, 471 (2011). “ ‘Under a de novo review, the court considers the matter anew and freely substitutes its own judgment’ for that of the lower tribunal.” State v. Williams, 362 N.C. 628, 632–33, 669 S.E.2d 290, 294 (2008) (quoting In re Greens of Pine Glen Ltd., 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003)).

However, “[a] party may not make any portion of the jury charge or omission therefrom the basis of an issue presented on appeal unless the party objects thereto before the jury retires to consider its verdict.” N.C. R.App. P. 10(a)(2). Still, “[u]npreserved error in criminal cases ... is reviewed ... for plain error” at the defendant's request. State v. Lawrence, 365 N.C. 506, 512, 723 S.E.2d 326, 330 (2012). To receive plain error review, the defendant must “specifically and distinctly” request plain error review on appeal. N.C. R.App. P. 10(a)(4).

For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial. To show that an error was fundamental, a defendant must establish prejudice that, after examination of the entire record, the error had a probable impact on the jury's finding that the defendant was guilty. Moreover, because plain error is to be applied cautiously and only in the exceptional case, the error will often be one that seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.

Lawrence, 365 N.C. at 518, 723 S.E.2d at 334 (quotation marks and internal citations omitted) (alteration in original).

III. Analysis

On appeal, Defendant argues: (i) the trial court erred by instructing the jury that it could reach a verdict by majority vote; (ii) he received ineffective assistance of counsel when his trial attorney failed to object to the erroneous jury instruction on unanimity; (iii) the trial court erred by instructing the jury that it could use armed robbery as a predicate felony for felony...