in the Court of Appeals 30 November 2016.
by the State from order entered 2 December 2015 by Judge C.
Winston Gilchrist in Lee County Superior Court Nos. 05 CRS
54493, 54506, 08 CRS 261.
Attorney General Joshua H. Stein, by Senior Deputy Attorney
General Robert C. Montgomery, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate
Defender Amanda S. Zimmer, for defendant-appellee.
Travon Spruiell ("Defendant") was convicted of
first-degree murder under the felony murder rule after he
fired a single shot into a parked car at close range,
striking and killing the victim. This case presents the issue
of whether Defendant received ineffective assistance of
counsel on direct appeal when his appellate counsel failed to
argue that it was error to instruct the jury on felony murder
based upon the underlying felony of discharging a weapon into
occupied property given that Defendant only fired a single
shot at a single victim. The State appeals from the trial
court's order granting Defendant's motion for
appropriate relief ("MAR") and vacating his
convictions for first-degree murder and discharging a weapon
into occupied property. Because we conclude that Defendant
was not prejudiced by his counsel's failure to raise this
argument, we reverse.
and Procedural Background
evening of 1 November 2005, Jose Lopez drove Ricardo Sanchez
to a car wash in Sanford, North Carolina where Sanchez
planned to complete a drug transaction with Defendant. When
they arrived and parked Lopez's Ford Explorer, Lopez
remained in the driver's seat while Sanchez sat in the
rear passenger side seat with the window rolled down.
Sanchez called Defendant over to the vehicle, Defendant and
Shawn Hooker approached the Explorer from the passenger side.
Defendant and Sanchez proceeded to argue about "money
and about drugs" for several seconds. Defendant then
aimed a revolver at Sanchez and fired one shot through the
open rear passenger side window, striking him in the stomach.
Defendant was so close to Sanchez when he fired the shot that
his gun "was almost touching [Sanchez's]
then started to drive away as Sanchez fired several shots at
Defendant from the backseat of the moving vehicle, striking
Defendant twice. Lopez drove Sanchez to a local hospital
where he ultimately died from his gunshot wound.
November 2005, Defendant was indicted on charges of
first-degree murder, discharging a weapon into occupied
property, and possession of a firearm by a felon. At trial,
defense counsel objected to instructing the jury on the
theory of felony murder based upon the predicate offense of
discharging a weapon into occupied property, but the
objection was overruled.
jury found Defendant guilty of first-degree murder based upon
the felony murder rule and also convicted him of discharging
a weapon into occupied property and possession of a firearm
by a felon. Defendant was sentenced to life
imprisonment without parole for the murder conviction and to
a consecutive sentence of 15 to 18 months imprisonment for
the possession of a firearm by a felon conviction. His
conviction for discharging a weapon into occupied property
direct appeal to this Court, Defendant's appellate
counsel asserted several arguments but did not raise the
issue of whether instructing the jury on felony murder based
on these facts had constituted error. On 19 May 2009, this
Court issued an opinion upholding Defendant's
convictions. State v. Spruiell, 197 N.C.App. 232,
676 S.E.2d 669, 2009 WL 1383399 (2009) (unpublished),
disc. review denied, 363 N.C. 588, 684 S.E.2d 38
June 2012, Defendant filed an MAR in which he primarily
argued that his appellate counsel had rendered ineffective
assistance of counsel by failing to challenge on direct
appeal the felony murder instruction. Specifically, Defendant
argued in his MAR that - based on the specific facts of the
underlying crime - the offense of discharging a weapon into
occupied property could not legally constitute the predicate
felony upon which to base his felony murder conviction.
Defendant filed subsequent amendments to his MAR on 13
September 2013 and 31 October 2014.
hearing on Defendant's MAR was held before the Honorable
C. Winston Gilchrist on 16 December 2013. On 2 December 2015,
Judge Gilchrist issued an order (the "MAR Order")
granting Defendant's motion. In the MAR Order, Judge
Gilchrist made the following pertinent findings of fact:
14. [Defendant's appellate counsel] did not have any
strategic reason for not arguing to the Court of Appeals that
the facts of Defendant's case did not support submission
to the jury of first degree murder in perpetration of the
felony of shooting into an occupied vehicle.
15. Published precedents of the courts of North Carolina
supporting reversal of Defendant's conviction for felony
murder existed at the time Defendant's case was appealed,
briefed and decided.
16. Reasonable counsel would have known of the precedents
supporting Defendant's argument that felony murder based
on discharging a weapon into an occupied vehicle was not
properly submitted to the jury, or would have become aware of
these authorities in the course of reasonable representation
of Defendant on appeal.
17. Appellate counsel should have been aware of the need to
challenge the trial court's submission of felony murder,
given that the Defendant was not convicted of first degree
murder on any theory except murder in perpetration of
discharging a weapon into occupied property.
setting forth a detailed legal analysis articulating his
reasoning, Judge Gilchrist made the following pertinent
conclusions of law:
4. Counsel on direct appeal should have argued that the trial
court erred in submitting felony murder in perpetration of
shooting into an occupied vehicle to the jury. In not so
contending, appellate counsel's representation was not
5. Had Defendant's appellate counsel raised the issue of
felony murder, there is a reasonable probability that
Defendant's conviction for first degree murder - which
was based solely on felony murder in perpetration of
discharging a weapon into occupied property - would have been
reversed on direct appeal. Counsel's performance
undermines confidence in the outcome of this case. The
performance of appellate counsel in fact prejudiced the
6. Defendant Spruiell has met his burden of proving the
ineffective assistance of counsel. . . . 
upon these findings and conclusions, Judge Gilchrist vacated
Defendant's convictions for first-degree murder and for
discharging a weapon into occupied property and ordered that
Defendant receive a new trial on these charges. On 12 January
2016, the State filed a petition for writ of