Heard in the Supreme Court March 17, 2014.
Durham County. No. 10CRS53879. Henry W. Hight, Judge.
Roy Cooper, Attorney General, by Teresa M. Postell, Phillip A. Lehman, Assistant Attorney General, for the State-appellant.
Sue Genrich Berry for defendant-appellee.
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision of the Court of Appeals, __ N.C.App. __, 743 S.E.2d 252 (2013), reversing a judgment entered on 23 March 2013 by Judge Henry W. Hight in Superior Court, Durham County, and remanding for a new sentencing hearing. Heard in the Supreme Court on 17 March 2014.
The sole issue in this case is whether the evidence necessary to prove that a defendant is guilty of a crime under the doctrine of acting in concert is the same evidence necessary to establish the aggravating factor that the defendant joined with more than one other person in committing the offense and was not charged with committing a conspiracy. Because the aggravating factor requires additional evidence beyond the evidence that is necessary to prove acting in concert, the trial court properly submitted the aggravating factor to the jury in this case. Accordingly, we reverse the Court of Appeals on this issue.
The State presented evidence at trial tending to established the following facts. On 19 April 2010, David Andrews and Brian Rhode were both employed at a Chili's Restaurant in Durham, North Carolina. That afternoon, Andrews borrowed Rhode's red Ford Fusion to go buy crack cocaine. When Andrews ran out of money, he let other people use Rhode's car in exchange for crack. At some point, Andrews " rent[ed]" the car to a group of men that included defendant, Demetrius Lloyd, and Neiko Malloy. When the car was not returned at the agreed-upon time, Rhode's reported the vehicle as stolen.
At approximately noon on 20 April 2010, Pebbles Kersey walked out of her Durham apartment, located on Dearborn Drive, to go to her mailbox. As she was walking toward her mailbox, Kersey saw a red car pull up to the park across the street. Inside the car were three men, all wearing red bandanas over their faces. Jermaine Jackson, who was standing in the park, yelled at Kersey to " [g]et down," and Kersey saw a man in the backseat of the car fire a gun at Jackson.
Also around midday on 20 April 2010, Dennis Diaz, M.D., was waiting at the stoplight at the intersection of Old Oxford Road and Dearborn Drive when he saw Kersey " duck" to the ground. He immediately heard gunshots and noticed two men leaning out of a car, both holding guns and shooting in Jackson's direction. After firing multiple shots, the men in the car fled the scene.
Jackson suffered a .38 caliber gunshot wound to his left jaw area and subsequently died as a result of the injury. Police recovered twelve bullet casings from the scene of the ...