Heard in the Court of Appeals January 6, 2015
Hoke County, Nos. 11CRS051708, 13CRS000233, 13CRS000235.
Attorney General Roy A. Cooper III, by Assistant Attorney General Joseph L. Hyde, for the State.
Amanda S. Zimmer, for defendant-appellant.
STROUD, Judge. Judges BRYANT and HUNTER, JR concur.
Appeal by defendant from judgments entered 10 December 2013 by Judge Richard T. Brown in Superior Court, Hoke
Delandre' Baldwin (" defendant" ) appeals from judgments entered upon jury verdicts finding him guilty of attempted first-degree murder, assault with a deadly weapon with the intent to kill and inflicting serious injury (" AWDWIKISI" ), and assault inflicting serious bodily injury (" AISBI" ). Defendant contends that the trial court erred in (1) denying his motion to require the State to elect the offense upon which it would proceed at trial; (2) admitting defendant's recorded interview with a police detective; (3) failing to instruct the jury on imperfect self-defense; (4) instructing
the jury on wounds inflicted after the victim was felled; and (5) sentencing him for both the AWDWIKISI and AISBI offenses. We find no error in part, vacate in part, and remand for resentencing.
On 23 September 2011, Lee Richardson and some of his family members were drinking alcohol together in a vacant lot adjacent to Richardson's mother's house. Around 2:00 p.m., defendant drove to the lot. Defendant bought Richardson a shot and a beer from a man selling alcohol out of his truck.
Shortly thereafter, defendant and Richardson began a fistfight. According to Richardson, the fight began because defendant insulted Richardson for grieving over the recent loss of his father. According to defendant, the fight began because Richardson demanded that defendant buy him another shot and another beer. The fight ended after about five minutes when others were able to separate the two men. After the fight, defendant told his cousin to drive him to his house so that he could get his gun to kill Richardson.
Defendant and his cousin drove away from the lot, and defendant returned about a minute and a half later. Defendant jumped out of his car while Richardson was walking to his mother's house. Richardson's mother told defendant that he should not shoot Richardson. Defendant responded that he was going to kill Richardson. Defendant walked up to Richardson and shot him in the abdomen with a handgun. Richardson fell to the ground, and defendant kicked him in the head. Defendant then drove away from the lot. After several days of treatment in the hospital, Richardson recovered from his injuries.
On or about 4 June 2012, a grand jury indicted defendant for attempted-first degree murder. See N.C. Gen. Stat. § 14-17 (2011). On or about 8 April 2013, a grand jury indicted defendant for AWDWIKISI and AISBI. See N.C. Gen. Stat. § § 14-32(a), -32.4(a) (2011). On 9 August 2013, defendant moved to require the State to elect the offense upon which it would proceed at trial. At a hearing on or about 20 September 2013, the trial court orally denied this motion.
At trial, defendant testified that he never threatened to kill Richardson. Defendant testified that he returned to the lot after the fistfight to deliver marijuana to another man there. Defendant further testified that he did not pick up a gun from his house; rather, he kept a gun under the driver's seat of his car. Defendant further testified that, in their final confrontation, Richardson approached him and threatened him. Defendant testified that he was afraid that another fight would aggravate a preexisting injury. Defendant also testified that he intended to shoot Richardson in the leg " to slow him down" and denied that he had any intent to kill Richardson.
On or about 10 December 2013, a jury found defendant guilty of all charges. The trial court sentenced defendant to 180 to 225 months' imprisonment for the attempted first-degree murder conviction. The trial court consolidated the AWDWIKISI and AISBI convictions and sentenced defendant to 67 to 90 months' imprisonment for those convictions. The trial court ordered that defendant serve these sentences consecutively. Defendant gave timely notice of appeal in open court.
II. Motion to Require the State to Elect
A. Standard of Review
We review double jeopardy issues de novo. State v. Williams, 201 N.C.App. 161, 173, 689 S.E.2d 412, 418 (2009).
Defendant contends that the trial court erred in denying his motion to require the State to elect the offense upon which it would proceed at trial. Defendant asserts that allowing the State to proceed on the attempted first-degree murder offense and the AWDWIKISI offense subjected him to double jeopardy.
The Fifth Amendment of the U.S. Constitution provides that no person shall be " subject for the same offence to be twice put in jeopardy of life or limb[.]" U.S. Const. amend. V. The right to be free from double jeopardy is also rooted in article 1, section 19 of the North Carolina Constitution
as " the law of the land" and in our common law. State v. Ezell, 159 N.C.App. 103, 106, 582 S.E.2d 679, 682 (2003); see also N.C. Const. art. 1, § 19. The double jeopardy clause prohibits (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple convictions for the same offense. Ezell, 159 N.C.App. at 106, 582 S.E.2d at 682.
In State v. Tirado, the North Carolina Supreme Court held that the trial court had not subjected the defendants to double jeopardy when it convicted them of attempted first-degree murder and AWDWIKISI, offenses arising from the same conduct. 358 N.C. 551, 579, 599 S.E.2d 515, 534 (2004), cert. denied, Queen v. North Carolina, 544 U.S. 909, 125 S.Ct. 1600, 161 L.Ed.2d 285 (2005). Following Tirado, we hold that the trial court did not subject defendant to double jeopardy when it denied his motion ...