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State v. Murrell

Supreme Court of North Carolina

September 29, 2017


          Heard in the Supreme Court on 10 April 2017.

         On discretionary review pursuant to N.C. G.S. § 7A-31 of a unanimous, unpublished decision of the Court of Appeals, ___ N.C.App. ___, S.E.2d (2016), arresting a judgment entered on 15 May 2015 by Judge John E. Nobles, Jr., in Superior Court, Onslow County, and remanding for resentencing.

          Joshua H. Stein, Attorney General, by Oliver G. Wheeler, IV, Assistant Attorney General, for the State-appellant.

          Glenn Gerding, Appellate Defender, by Daniel L. Spiegel, Assistant Appellate Defender, for defendant-appellee.

          ERVIN, JUSTICE.

         The issue before us in this case is whether an indictment returned for the purpose of charging defendant with the offense of robbery with a dangerous weapon sufficed to give the trial court jurisdiction to enter judgment against defendant based upon his conviction for having committed that offense. After careful consideration of the record in light of the applicable law, we hold that the challenged indictment was fatally defective because it did not sufficiently allege all of the essential elements of the offense of robbery with a dangerous weapon and, for that reason, affirm the Court of Appeals' decision.

         At 11:45 a.m. on 13 September 2013, Stacy Phillips, a teller at a PNC Bank branch located in Jacksonville, was the victim of a robbery. At that time, a man entered the bank and laid a note on the counter in front of Ms. Phillips. "[T]he first thing [Ms. Phillips] saw on [the note] was 'armed, ' " which led her to believe that a robbery was in progress. More specifically, the note that the man placed before Ms. Phillips read "armed" and instructed, "eyes down, 2, 000 - or two straps of hundreds, two straps of fifties, two straps of twenties, no devices." In spite of the fact that the only item that she saw in the robber's possession was a case that he carried under his arm, Ms. Phillips believed that the robber was armed based upon the information contained in the note that he presented to her.

         Although Ms. Phillips attempted to grab the note, the robber said, "Don't touch it." At that point, Ms. Phillips gave the robber a bait strap, which included $330 in marked bills; some additional $20, $50, and $100 bills; and a dye pack, all of which the robber placed in the case. As the robber reached the door and began to leave the bank, Ms. Phillips activated a silent alarm and complied with PNC's robbery protocol by calling the police, locking the facility's doors, preparing an account of what she had experienced, and providing assistance to the other persons present at the time of the robbery.

         Detective Gary Manning of the Jacksonville Police Department, accompanied by several other officers, arrived at the bank shortly after the robbery. After securing the crime scene and obtaining information from other witnesses, Detective Manning viewed surveillance video footage related to the robbery. As he did so, Detective Manning observed that a "red bloom . . . emanat[ed] from the . . . front passenger area of the vehicle" apparently used by the robber to facilitate his escape. According to Karen Salefsky, the bank manager, the "red bloom" that could be seen in the surveillance video resulted from the explosion of the dye pack contained in the bait strap.

         On the following day, Detective Manning received a call from an individual who "had found money in a dumpster in Phoenix Park Apartments." While searching the dumpster, Detective Manning retrieved money "stained with a bright red" dye "consistent with the manner in which a dye pack is prepared." In addition, Detective Manning determined that the serial numbers of the currency retrieved from the dumpster matched those printed on the currency taken during the robbery.

         On 23 September 2013, Crime Stoppers received a tip identifying the suspect depicted in the surveillance footage, which had been released to the public, as defendant, a resident of Kinston. After noticing "a striking resemblance between photographs . . . of [defendant] and the person depicted in the surveillance footage, " Detective Manning began to investigate defendant's possible connection to the robbery. Detective Manning learned that defendant had access to a vehicle resembling the one shown in the surveillance video footage, which was a black Suzuki XL7 that was registered to defendant's girlfriend, Heather Crider. On 4 October 2013, Ms. Crider's Suzuki XL7 was located in downtown Kinston. While searching the vehicle with Ms. Crider's consent, Detective Manning observed red smudges on the vehicle's exterior consistent with those that would have been made during the release of the dye pack contained in the bait strap.

         At the time that he was arrested in Kinston on 11 October 2013, defendant possessed a duffle bag that contained, among other things, a green bed sheet stained with red material that was consistent with the color of certain stains found in the dumpster and on the exterior of Ms. Crider's Suzuki XL7. After waiving his Miranda rights, defendant admitted that he had robbed the Jacksonville PNC Bank and gave an account of that episode consistent with the information that Detective Manning developed during his investigation. Although defendant told Detective Manning that he had been "provided" with a "pee shooter, " which Detective Manning "took to mean a small caliber pistol, " before entering the PNC Bank, investigating officers never recovered it or any other weapon believed to have been used during the robbery.

         On 12 August 2014, the Onslow County grand jury returned a bill of indictment that was intended to charge defendant with robbery with a dangerous weapon. The indictment alleged, in pertinent part, that:

defendant [ ] unlawfully, willfully and feloniously did steal, take and carry away another's personal property, U.S. Money from PNC Financial Services Group, Inc., at the location of "PNC Bank" . . . when a bank employee, Stacy Phillips was present. The defendant committed this act by way of it reasonably appearing to the victim Stacy Phillips that a dangerous weapon was in the defendant's possession, being used and threatened to be used by communicating that he was armed to her in a note with demands and instructions for her to complete, whereby the life of Stacy Phillips was threatened and endangered.

         The charges against defendant came on for trial before the trial court and a jury at the 11 May 2015 criminal session of the Superior Court, Onslow County. On 15 May 2015, the jury returned a verdict convicting defendant as charged. Based upon the jury's verdict, the trial court entered a judgment sentencing defendant to a term of fifty-three to seventy-six months imprisonment. Defendant noted an appeal from the trial court's judgment to the Court of Appeals.

         In seeking relief from the trial court's judgment before the Court of Appeals, defendant argued, among other things, that the trial court had erred by failing to dismiss the indictment returned against him in this case on the grounds that it failed to properly charge him with the commission of robbery with a dangerous weapon. According to defendant, "[t]he requirements for an indictment charging a crime in which one of the elements is the use of a deadly weapon are (1) to 'name the weapon and (2) either to state expressly that the weapon used was a "deadly weapon" or to allege such facts as would necessarily demonstrate the deadly character of the weapon, ' " quoting State v. Brinson, 337 N.C. 764, 768, 448 S.E.2d 822, 824 (1994) (emphasis omitted) (quoting State v. Palmer, 293 N.C. 633, 639-40, 239 S.E.2d 406, 411 (1997)). More specifically, defendant asserted that

[a]lthough the language "robbery with a dangerous weapon" appears in the caption, the indictment fails to name any weapon. Since no weapon was named, the State could not expressly state that the weapon was a deadly weapon or allege facts that demonstrate the deadly character of the weapon. The indictment also fails to allege any facts of how the victim's life was threatened or endangered. The indictment simply ...

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