Heard in the Court of Appeals April 9, 2014.
Columbus County. Nos. 07 CRS 53533, 08 CRS 81-85, 08 CRS 91-93.
Roy Cooper, Attorney General, by Marc X. Sneed, Assistant Attorney General, for the State.
Marilyn G. Ozer for defendant-appellant.
DAVIS, Judge. Judges ELMORE and McCULLOUGH concur.
Appeal by defendant from judgments entered 3 July
2013 by Judge Douglas B. Sasser in Columbus County Superior Court.
Santonio Thurman Jenrette (" Defendant" ) appeals from his convictions of two counts of first-degree murder, possession with intent to sell and/or deliver cocaine, two counts of possession of a firearm by a felon, two counts of assault with a deadly weapon with intent to kill inflicting serious injury, and two counts of conspiracy to commit first-degree murder. On appeal, he contends that the trial court erred in (1) granting the State's motion to join all of the charges against him for trial; (2) failing to provide an adequate not guilty mandate at the conclusion of its jury instructions as to one of the first-degree murder charges; (3) instructing the jury on a charge of first-degree murder based on the lying in wait doctrine; (4) failing to adequately distinguish between the separate offenses with which Defendant was charged in its jury instructions; and (5) instructing the jury on a charge of first-degree murder based on the felony murder doctrine where there was insufficient evidence of the predicate felonies. After careful review, we conclude that Defendant received a fair trial free from prejudicial error.
The State presented evidence at trial tending to establish the following facts: On 21 September 2007, a confrontation took place between Connail Reaves (" Reaves" ) and Eugene Williams (" Williams" ) at a high school football game in Columbus County, North Carolina between East Columbus High School and Whiteville High School. Williams and Reaves were members of two rival gangs with a history of animosity toward each other. Williams was a member of the " Chadbourne Boys" and Reaves -- like Defendant -- was a member of the " Whiteville Circle Boys." Members of both groups, including Reaves and Williams, were prepared to fight as a result of the confrontation but ultimately backed down due to the presence of law enforcement officers at the game.
After the game, several members of the Chadbourne Boys, including Williams, Darnell Frink (" Frink" ), Travis Williams, Jason Williams, and William Inman (" Inman" ), went to the stadium parking lot where they ran into Reaves again. Reaves was talking on his cellphone, and when he saw them, he pointed his finger at them as if he was pulling the trigger of a gun. Without engaging Reaves, they got into Jason Williams' Chevrolet Tahoe and drove to a local gas station, Sam's Pitt Stop.
At Sam's Pitt Stop, Williams, Frink, Travis Williams, Jason Williams, and Inman parked in front of a gas pump and were standing around the Tahoe when Jason Williams and Inman noticed a Ford Taurus pulling up toward them with the windows down. Jason Williams saw gun barrels protruding from both the front passenger window and the rear passenger-side window of the Taurus. He yelled " get down" and immediately thereafter occupants of the Taurus -- all of whom were wearing ski masks -- opened fire on them. Defendant, Reaves, and Defendant's 14-year-old cousin Rashed Delamez Jones (" Jones" ) were three of the occupants of the Taurus who fired guns.
Inman and Frink were both struck by bullets fired by the masked persons in the Taurus. Frink died as a result of his gunshot wounds. Inman was wounded in his left thigh and was taken to the hospital for treatment. A bystander, Antwan Waddell, was struck by bullets in his left thigh and ankle.
Shortly after the shooting, Sabrina Moody (" Moody" ) saw a Taurus containing Defendant, Marquell Hunter, and an unknown person pull into Stanley Circle directly in front of her parked car. Moody saw Defendant and the other two men get out of their vehicle, remove guns from the back of the Taurus, and then quickly run across the street in order to place the guns inside another vehicle.
The Taurus was found burning in a field off of Prison Camp Road later that night. It was ultimately identified as a car belonging to Johnny Sellers (" Sellers" ), a used car salesman, that had been stolen along with Sellers' .25 caliber semi-automatic pistol from
the dealership lot the evening of the shooting.
The following evening, Defendant and Reaves were driving a black Acura when they were pulled over by Officers Donald Edwards (" Officer Edwards" ) and Edward Memory (" Officer Memory" ) of the Whiteville Police Department because the rear taillight of the Acura was not working. Upon inspecting the backseat of the vehicle where Reaves was sitting, Officer Edwards observed two pistols between Reaves' legs. Defendant and Reaves were removed from the vehicle, and the firearms were seized.
Officer Donnie Hedwin (" Officer Hedwin" ) of the Whiteville Police Department, who had arrived on the scene, patted down Defendant, handcuffed him, and placed him in the backseat of Officer Memory's patrol car. However, while the officers were securing the scene, Defendant managed to force open the door of Officer Memory's car and escape unobserved.
Upon searching the backseat of Officer Memory's car after Defendant had escaped, Officer Edwards discovered two baggies containing a substance that was later identified as cocaine wedged underneath the seat. A .45 caliber pistol recovered from the Acura was identified as the same weapon used in the shooting at Sam's Pitt Stop.
On 19 November 2007, approximately two months after the shooting, Defendant, who was still at large, took Jones out to the woods in a car he had borrowed from a woman named Rebecca White on the pretext of getting in some " target practice." While in the woods, Defendant shot Jones five times, killing him. Defendant then left Jones' body in the woods after wedging it under several nearby wooden pallets. The next day, Jones' mother and aunt, who were searching for Jones, saw Defendant walking along the side of the road. When Jones' mother asked him whether he had seen Jones, Defendant " just kept walking, he wouldn't look at [her]." On 5 December 2007, Jones' body was discovered in the woods off of Barney Tyler Road in Hallsboro, North Carolina.
Defendant fled to Gary, Indiana, where he was eventually apprehended and extradited back to North Carolina. Prior to being apprehended, Defendant filmed a video of himself performing a piece of rap music that he had composed. The lyrics of the song mentioned both the location where Jones' body was found and the manner in which he had been killed.
While in custody pending trial, Defendant told Aaron McDowell (" McDowell" ), Defendant's cellmate at the Columbus County Jail, how and why he had killed Jones, explaining that he had done so in order to prevent Jones from revealing Defendant's role in the 21 September 2007 shooting. He also told McDowell he had taken Jones out to a secluded area in Hallsboro to shoot him.
Jeffrey Morton (" Morton" ), another inmate in the Columbus County Jail who was incarcerated in the same cell block as Defendant, overheard Defendant talking to a third inmate, Rufus McMillian, about the murder of Jones. Specifically, Morton heard Defendant state that he considered Jones to be " a weak link," that he took Jones " to a wooded area for target practice[,]" and that he " basically . . . smoked a couple of blunts with this young guy and took him out and gave him a pistol and they shot some and then he turned the pistol on him and shot him five or six times."
Defendant was indicted on (1) two counts of possession of a firearm by a felon; (2) the first-degree murder of Frink; (3) two counts of assault with a deadly weapon with intent to kill inflicting serious injury; (4) two counts of conspiracy to commit first-degree murder; (5) the first-degree murder of Jones; (6) first-degree kidnapping; (7) conspiracy to commit first-degree kidnapping; (8) one count of possession with intent to sell and/or deliver cocaine; and (9) possession of a stolen firearm. A jury trial was held in Columbus County Superior Court on 24 June 2013. At the close of all the evidence, the trial court dismissed the charge of possession of a stolen firearm.
Defendant was convicted of all remaining charges except for the charges of first-degree kidnapping and conspiracy to commit first-degree kidnapping. With regard to the murder of Frink, the jury found him guilty on theories of premeditation and deliberation,
felony murder, and lying in wait. As to the murder of Jones, the jury found him guilty on theories of premeditation and deliberation and felony murder.
Defendant was sentenced to two consecutive life sentences without the possibility of parole for the murders of Frink and Jones. In addition, he was sentenced to (1) 8-10 months for possession with intent to sell and/or deliver cocaine; (2) 15-18 months for each count of possession of a firearm by a felon; (3) 100-129 months for each count of assault with a deadly weapon with intent to kill inflicting serious injury; and (4) 189-236 months for each count of conspiracy to commit murder. These sentences were ordered to run concurrently with the sentence imposed for the first-degree murder of Jones. Defendant gave notice of appeal in open court.
Defendant argues that the trial court abused its discretion in allowing all 12 of the offenses for which he was charged to be joined for trial. Specifically, he contends that joinder was improper due to the lack of a sufficient transactional similarity between the 12 charges.
" The motion to join is within the sound discretion of the trial judge, and the trial judge's ruling will not be disturbed absent an abuse of discretion. However, if there is no transactional connection, then the consolidation is improper as a matter of law." State v. Simmons, 167 N.C.App. 512, 516, 606 S.E.2d 133, 136 (2004) (internal citations and quotation marks omitted), appeal dismissed and disc. review denied, 359 N.C. 325, 611 S.E.2d 844 (2005). " On appeal, the question of whether offenses are transactionally related so that they may be joined for trial is a fully reviewable question of law." State v. Huff, 325 N.C. 1, 22, 381 S.E.2d 635, 647 (1989) (citation omitted), vacated on other grounds, 497 U.S. 1021, 110 S.Ct. 3266, 111 L.Ed.2d 777 (1990).
We have held that
in ruling upon a motion for joinder, a trial judge must utilize a two-step analysis: (1) a determination of whether the offenses have a transactional connection and (2) if there is a connection, a consideration of whether the accused can receive a fair hearing on the consolidated offenses at trial. . . . In determining whether offenses are part of the same series of transactions, the following factors must guide the court: (1) the nature of the offenses charged; (2) any commonality of facts between the offenses; (3) the lapse of time between the offenses; and (4) the unique circumstances of each case. No single factor is dispositive.
Simmons, 167 N.C.App. at 516, 606 S.E.2d at 136-37 (internal citations and quotation marks omitted).
In the present case, while the charges against Defendant stemmed from a series of events that occurred over the course of approximately two months, they were factually related. The State's evidence tended to show that Defendant was present during, and participated in, the shooting at Sam's Pitt Stop along with Reaves and Jones. The following night, Defendant and Reaves were pulled over, and two firearms were recovered from their possession, one of which was ultimately shown to have been used in the shooting the previous evening. This evidence shows a direct link between the possession of a firearm by a felon charges and the charges arising directly out of the shooting at the gas station. Furthermore, the discovery of the cocaine forming the basis for the charge of possession with intent to sell and/or deliver cocaine occurred during the course of the traffic stop.
The charges related to the killing of Jones were also transactionally related. In State v. Hunt, 323 N.C. 407, 373 S.E.2d 400 (1988), vacated on other grounds, 494 U.S. 1022, 110 S.Ct. 1464, 108 L.Ed.2d 602 (1990), our Supreme Court held that two murders are transactionally related when the second is committed in order to cover up the first. " It is apparent that the second murder in this case was an act connected to the first murder. The second murder was committed to avoid detection for the first murder. This transactional connection supports the consolidation of all the charges for trial pursuant to
N.C.G.S. § 15A-926(a)." Id. at 421, 373 S.E.2d at 410.
Similarly, the evidence in the present case tended to show that Defendant killed Jones so as to avoid being implicated in the murder of Frink. As such, we are satisfied that the transactional connection between these events was sufficient to support the trial court's granting of the State's motion for joinder of all of these charges. Furthermore, Defendant has failed to offer any persuasive argument why the consolidation of these charges rendered him unable to receive a fair trial on all of the charges against him. See State v. Bowen, 139 N.C.App. 18, 29, 533 S.E.2d 248, 255 (2000) (where " [t]here is no evidence defendant was hindered or deprived of his ability to defend one or more of the charges [against him] . . . [t]he trial court's error in joining the offenses for trial was harmless" (internal citation and quotation marks omitted)).
Based on our consideration of the factors set out in Simmons, we conclude that the trial court did not abuse its discretion in granting the State's motion for joinder. Therefore, Defendant's argument on this issue is overruled.
II. Not Guilty Mandate
Defendant next contends that the trial court erred in its instructions to the jury regarding the first-degree murder charge as to Frink by failing to adequately instruct the jury of its duty to return a verdict of not guilty if the State failed to establish his guilt beyond a reasonable doubt. Where, as here, a defendant does " not object at trial to the omission of the not guilty option from the trial court's final mandate to the jury, we review the trial court's actions for plain error." State v. McHone, 174 N.C.App. 289, 294, 620 S.E.2d 903, 907 (2005), disc. review denied, 360 N.C. 294, 362 N.C. 368, 628 S.E.2d 9 (2006).
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 affects the fairness, integrity or public reputation of judicial proceedings.
State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (internal citations, quotation marks, and brackets omitted).
Our Supreme Court has held that " [e]very criminal jury must be instructed as to its right to return, and the conditions upon which it should render, a verdict of not guilty." State v. Chapman, 359 N.C. 328, 380, 611 S.E.2d 794, 831 (2005) (citation and quotation marks omitted); see also State v. McArthur, 186 N.C.App. 373, 380, 651 S.E.2d 256, 260 (2007). Furthermore, " [i]t is well established that the trial court's charge to the jury must be construed contextually and isolated portions of it will not be held prejudicial error when the charge as a whole is correct." McHone, 174 N.C.App. at 294, 620 S.E.2d at 907 (citation and quotation marks omitted).
In order to fully understand Defendant's argument on this issue, it is necessary to quote in full the trial court's instructions on first-degree murder with regard to the killing of Frink:
The defendant has been charged with the first degree murder of Darnell Antonio Frink. Under the law and the evidence in this case it is your duty to return a verdict of either guilty of first degree murder or not guilty. You may find the defendant guilty of first degree murder on either the basis of malice, premeditation and deliberation or under the first degree felony murder rule, or on the basis of lying in wait, or any combination of those three.
First degree murder on the basis of malice, premeditation and deliberation is the intentional and unlawful killing of a human being with malice and with premeditation and deliberation.
First degree murder under the first degree felony murder rule is the killing of a human being in the perpetration of an assault with a deadly weapon with intent to kill inflicting serious injury.
For you to find the defendant guilty of first degree murder on the basis of malice, premeditation and deliberation, the State must prove five things beyond a reasonable doubt.
First, that the defendant intentionally and with malice killed the victim with a deadly weapon. Malice means not only hatred, ill will or spite, as is ordinarily understood, to be sure that is malice, but it also means that condition of the mind that prompts a person to take the life of another intentionally or to intentionally inflict a wound with a deadly weapon upon another which proximately results in his death without just cause, excuse or justification.
If the State proves beyond a reasonable doubt that the defendant intentionally killed the victim with a deadly weapon or intentionally inflicted a wound upon the victim with a deadly weapon that proximately caused his death, you may infer, first, that the killing was unlawful and, second, that it was done with malice, but you are not compelled to do so. You may consider the inference along with all of the facts and circumstances in determining whether the killing was unlawful and whether it was done with malice. A firearm is a deadly weapon.
Second, the State must prove that the defendant's act was a proximate cause of the victim's death. A proximate cause is a real cause, a cause without which ...