in the Court of Appeals 5 April 2017.
by defendant from judgment entered 28 January 2015 by Judge
W. Russell Duke, Jr. in Pitt County Superior Court Pitt
County, Nos. 14CRS3412, 3452, 57851-54.
Attorney General Joshua H. Stein, by Assistant Attorney
General Kimberly N. Callahan, for the State.
Cheshire Parker Schneider & Bryan, PLLC, by John Keating
Wiles, for defendant-appellant.
James Langley ("Defendant") appeals from his
judgment for assault with a deadly weapon with intent to
kill, assault with a deadly weapon with intent to kill
inflicting serious injury, two counts of attempted first
degree murder, possession of a firearm by a felon, discharge
of a weapon into an occupied motor vehicle, and attaining
habitual felon status. On appeal, he contends that the trial
court erred by (1) denying Defendant's Motion for a
Mistrial; (2) giving jury instructions that constructively
amended the habitual felon indictment; and (3) proceeding on
a facially defective habitual felon indictment. After careful
review, we hold that the trial court did not abuse its
discretion in denying Defendant's Motion for a Mistrial
as any error was invited by Defendant. However, we agree with
Defendant that the trial court proceeded on a facially
deficient habitual felon indictment. Therefore, we order that
the judgment regarding the habitual felon conviction be
vacated and the case be remanded for resentencing on the
underlying felonies without the habitual felon enhancement,
and we need not reach the issue of whether the trial
court's jury instructions materially varied from the
allegations in the habitual felon indictment.
September 2014,  Jesse Atkinson, Sr., Jesse Atkinson, Jr.,
and a friend of Atkinson Jr.'s, Kion, drove to Vance
Street in Greenville in a car belonging to Kion. When they
arrived, the men parked the car; Kion exited and the
Atkinsons remained in the car. A few minutes later, a blue
car, containing Defendant and Mr. Davron Lovick, passed by,
then U-turned and pulled up beside Kion's car. Defendant
began to fire a gun at the Atkinsons through the rolled-down
driver's side window. Atkinson, Sr. was shot in his right
calf and left thigh.
the above acts resulted in the charges now in dispute,
Defendant bases his appeal primarily on conduct that took
place at trial, after jury deliberation began. Approximately
an hour into deliberation, the foreman sent a question to the
trial judge: "With the charge of assault with a deadly
weapon of Atkinson, Jr. with intent to kill does the law
state intent to kill only or does it include inflicting
serious bodily injury as well?" In response, the trial
court returned the jury to the courtroom and reread the
pertinent instructions. Just over an hour later, the jury
sent another question: "With the two attempted first
degree murder charges do they have to have the same
verdict?" The trial court told the jury they did not,
and provided them with a written copy of the instructions for
each offense. Before recessing for the evening, the trial
court instructed the jurors not to deliberate on the case,
except when they were all together in the jury room, and not
to look at the television, read the newspaper, or listen to
next morning, the foreperson immediately sent the following
note to the court: "[O]ne juror Google'd intent to
kill on the internet to try to understand the law, and,
second, can we get clarification on the underlined item on
page four of Court's Exhibit Number 1?" The judge
again returned the jury to the room and inquired:
All right, now, first, I'm going to address the first
one. Which juror Google'd intent?
All right, now, Ladies and Gentlemen, at the beginning of the
case, I think y'all remember, that you are to follow the
law as given to you by the Court; do y'all remember that?
Remember me asking you that? And this is the reason. And
it's because everyone tried for the same crime in North
Carolina should be treated in the same way and have the same
law applied to him. That's only fair. Now, I'm going
to ask each one of you to pledge to me that, that's what
you're going to do. Now, if all of you can accept and
follow the law as given to you by the Court, a North Carolina
Judge, North Carolina Court, if you can do that, please,
raise your hand.
(All twelve jurors raise their hands.)
Thank you. And can you disregard any other definition of
intent to kill or anything else other than what I give you
because it is, I can assure, the accepted law in North
Carolina. It is applied in every case. Can you disregard any
other law other than the law that's given to you by the
Court? And if you can just raise your hand, please.
(All twelve jurors raise their hands.)
Thank you. Now, the underlined word is the legal effect. If
the Defendant intended to harm one person but instead harmed
a different person the legal effect would be the same as if
the Defendant had harmed the intended victim. And, Ladies and
Gentlemen, I have given you the instructions that - and
I've given you that the Defendant intended to commit
first degree murder. That's an element of the charge of
attempted first degree murder. And I've defined for you
intent. And then I've defined for you what happens when
someone else is hurt or harmed other than the person who was
intended - the Defendant intended to kill or harm. And
I'm going to just ask you to apply the law as I've
given it to you here. Do y'all understand?
(All jurors nod their heads affirmatively.)
Duke then turned to the second question, explaining the
underlined item on page four of Court's Exhibit Number 1.
the jury exited the courtroom, Defendant moved for a mistrial
and the following exchange took place:
[DEFENSE COUNSEL]: Your Honor, as to the way you presented, I
felt like you just restated what you had already said.
However, given the question - given the nature of what
happened, I feel like I need to move for the Court to declare
that this is a mistrial, that the jurors have gone outside of
the Court's instructions to follow the law as given to
them. They have gone on the Internet to look up the law. It
is unclear whether they went to the Internet last night and
did research and deliberated outside of the jury room.
It's unclear whether other jurors asked this juror to