Heard in the Court of Appeals March 16, 2015.
Mecklenburg County, Nos. 12CRS202925, 12CRS202927.
Attorney General Roy A. Cooper III, by Assistant Attorney General Jess D. Mekeel, for the State.
Brendan O'Donnell, for defendant-appellant.
STROUD, Judge. Judges DILLON and DAVIS concur.
Appeal by defendant from judgments entered on 4
February 2014 by Judge Richard D. Boner in Superior Court, Mecklenburg County.
Rashawn Mackey (" defendant" ) appeals from judgments entered on jury verdicts, in which the jury found him guilty of first-degree murder and discharging a firearm into an occupied vehicle. Defendant contends that the trial court violated (1) his constitutional rights to an impartial jury and a fair trial; (2) his constitutional right to presence; and (3) N.C. Gen. Stat. § 15A-1234 (2013). We hold that the trial court committed no prejudicial error.
On or about 13 January 2012, Mr. Anderson approached two female teenagers, Ms. Lewis and her friend, at a Charlotte bus stop. Lewis and her friend were going to a party. Anderson offered to drive them, and they accepted. Before Anderson dropped
them off, Lewis gave him her cell phone number.
On 15 January 2012, Lewis and three female teenage friends went to a party at defendant's apartment, where they met defendant and four or five other male teenagers. Ms. Jones, one of Lewis's friends, observed one of the men holding a handgun. During the party, the teenagers smoked marijuana and played a video game. After finishing work at 5:00 p.m., Anderson called Lewis to get directions to defendant's apartment so that he could pick her up. Lewis did not know the directions, so she passed her cell phone to a few of the men, who then gave Anderson directions to a dead-end road in defendant's apartment complex. Lewis overheard some of the men discussing robbing Anderson.
While it was dark outside, Lewis, Jones, and another female friend walked to the dead-end road to meet Anderson. Anderson soon arrived in his car. Lewis entered the car and sat in the passenger seat, while Jones spoke to Anderson through the driver's side window.
Defendant and two other men then approached the car, and Lewis quickly got out of the car. One of the men nudged Jones out of their way. Defendant then pointed a gun at Anderson and told him to give him his money. Anderson was frightened and did not respond. Defendant then shot Anderson in the head, killing him.
On or about 30 January 2012, a grand jury indicted defendant for murder and discharging a firearm into an occupied vehicle. See N.C. Gen. Stat. § § 14-17, -34.1 (2011). At the trial in January and February 2014, Mr. Smith, one of defendant's fellow jail inmates, testified that he and defendant had once been members of the same gang and that in January 2012, while they were in jail, defendant confessed to him that he had killed a man during a botched robbery. Smith also testified that in December 2013, defendant told him more details about the murder and gave him the names of potential witnesses whom he wanted to be persuaded to not testify. Smith testified that later that month, defendant told him to mark certain potential witnesses for execution and to threaten to mark one potential witness's mother and grandmother for execution. Smith further testified that on Sunday, 26 January 2014, defendant asked him to mark Jones for execution; Jones had begun testifying on Friday, 24 January 2014. Smith also testified that defendant had told him that two of his fellow gang members would be present in the courtroom to observe which witnesses testified. Smith finally testified that on Monday, 27 January 2014, while waiting in a holding cell at the courthouse, he overheard defendant telling a fellow gang member to mark Smith for execution, because Smith had agreed to testify against defendant.
In his own testimony, defendant denied that he had killed Anderson and testified that he was smoking a cigarette on the porch of his apartment when he heard the gunshot. Defendant also testified that he neither asked Smith to mark certain witnesses for execution nor did he speak to Smith about his case.
On 30 January 2014, during the trial, the jury sent its first note to the trial judge, in which it asked, " What is the expected length of the case at this point in time?" The trial judge did not disclose this note to defendant or his counsel, nor did it address the note on the record. In the late afternoon on Monday, 3 February 2014, the jury began its deliberations. Around 10:00 a.m. on Tuesday, 4 February 2014, the jury sent its second note to the trial judge, in which it requested the following pieces of evidence: the audio recording and transcript of a phone call between defendant and his mother, a letter written by one of defendant's fellow inmates, a transcript of defendant's interview with a police detective, and four notes which defendant gave to Smith listing the names of potential witnesses that he wanted to be intimidated or killed. The jury also requested the legal definitions of direct evidence and circumstantial evidence. The trial court disclosed this jury note to the parties and, without objection from either party, denied the jury's request for the transcript of defendant's interview with a police detective as it was never tendered or received into evidence,
but granted the jury's remaining requests.
On 4 February 2014, during the jury's deliberations, the jury sent its third note to the trial judge. The trial judge did not disclose this note to defendant or his counsel, nor did it address the note on the record. The third jury note reads as follows:
(1) Do we have any concern for our safety following the verdict? Based on previous witness gang [information] and large [number] of people in court during the trial[.]
Please do not bring this up in court[.]
(2) We need 12 letters--1 for each juror showing we have been here throughout this trial[.]
At 3:30 p.m. on Tuesday, 4 February 2014, the jury rendered its verdicts, in which it found defendant guilty of first-degree murder under the felony murder rule but not on the basis of premeditation and deliberation, and discharging a firearm into an occupied vehicle. The trial court sentenced defendant to life imprisonment without parole for the first-degree murder conviction and arrested judgment for the conviction of discharging a firearm into an occupied vehicle. Defendant gave notice of appeal in open court.
II. Standard of Review
We review alleged violations of constitutional rights de novo. State v. Ward, __ N.C.App. __, __, 742 S.E.2d 550, 552 (2013). " Questions of statutory interpretation are questions of law, which are reviewed de novo by an appellate court." State v. Jones, __ N.C.App. __, __, 767 S.E.2d 341, 344 (2014), disc. review denied, ___ N.C. ___, 771 S.E.2d 304 (2015).
III. Rights to an Impartial Jury and a Fair Trial
Defendant contends that the trial court's failure to question the jurors about the third jury note violated his rights to an impartial jury and a fair trial under the Sixth and Fourteenth Amendments of the U.S. Constitution and article I, sections 19 and 23 of the North Carolina ...