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State v. Cox

Court of Appeals of North Carolina

November 21, 2017


          Heard in the Court of Appeals 24 August 2017.

         Appeal by Defendant from judgment entered 21 October 2015 by Judge J. Carlton Cole in Wayne County Superior Court. Nos. 12 CRS 55798-99; 13 CRS 3281

          Attorney General Joshua H. Stein, by Special Deputy Attorney General Steven M. Arbogast for the State.

          Patterson Harkavy LLP, by Narendra K. Ghosh, for defendant-appellant.

          HUNTER, JR., Robert N., Judge.

         Jujuan Maquis Cox ("Defendant") appeals from a 21 October 2015 judgment entered after a jury convicted him of first-degree murder, second-degree murder, attempted first-degree murder, two counts of assault with a deadly weapon with intent to kill, and five counts of discharging a weapon into occupied property. Defendant argues the trial court erred by: (1) failing to dismiss the first-degree murder charge on the theory of lying in wait; (2) failing to dismiss the charge of second-degree murder; (3) failing to dismiss the charge of assault with a deadly weapon with the intent to kill inflicting serious injury ("AWDWIKISI"); and (4) giving a coercive jury instruction after the jury repeatedly stated it was deadlocked. Defendant also argues ineffective assistance of counsel. We find the court committed no error on the issues raised on appeal and dismiss Defendant's claim of ineffective assistance of counsel without prejudice to refile the claim in a Motion for Appropriate Relief.

         I. Procedural and Factual Background

         On 5 August 2013, a grand jury indicted Defendant on multiple counts of first-degree murder, attempted first-degree murder, AWDWIKISI, discharging a firearm into an occupied dwelling, and two counts of discharging a firearm into an occupied vehicle. The State tried Defendant on the following: two charges of first-degree murder, two charges of attempted first-degree murder, two charges of AWDWIKISI, three charges of discharging a firearm into an occupied dwelling, and two charges of discharging a firearm into an occupied vehicle in operation.

         On 12 October 2015, the trial court called Defendant's case for trial. The State's evidence tended to show the following. The State first called Aaron Michael Cantwell ("Cantwell") with the Wayne County Sheriff's Office. While on duty on 2 December 2012, Cantwell received a "shots fired" call over the radio as he was driving. Upon arrival at the scene, Cantwell saw another officer's patrol car approach. Cantwell then spoke to a man walking on a path crossing Mt. Olive Road, when he heard a female voice crying for help. The two officers approached the screaming woman, who directed them to a trailer. Cantwell entered the trailer through its back door, and heard a "painful holler."

         Advancing into the trailer, Cantwell saw three victims lying on the floor. The first man Cantwell saw was shot and immobile. The second man, later identified as Trae Stokes ("Stokes"), was also shot, but was "coherent and yelling." Cantwell noticed a .40 caliber Glock handgun under some clothing between the unconscious individual and Stokes. Cantwell instructed the other officer to keep people from entering the trailer. Cantwell then "secured" the weapon by locking it in the trunk of his car, and called EMS. Upon arrival, EMS initially treated Stokes in the trailer's kitchen. EMS then "removed and transported [Stokes] to Wayne Memorial Hospital." While EMS treated Stokes, Cantwell checked the other two individuals for signs of life.

         The State next called Stokes. Stokes and the victim, Jamal Anthony Kornegay ("Kornegay"), had a fifteen year-long friendship. Stokes also knew the other victims Leonard Darden ("Darden") and Nakiea Felicia Garner ("Garner"). Stokes recognized Defendant in the courtroom, and stated they attended school together their entire lives. Stokes was "absolutely" familiar with Defendant's voice.

          On 2 December 2012, Stokes drove to Kornegay's trailer. Upon entering the trailer, Stokes saw Kornegay, Garner, and Darden sitting around the kitchen table. Stokes saw Defendant drive his van outside Kornegay's trailer.

         At this point, Kornegay went outside. Kornegay returned within 10 seconds and stated, "Juan outside on that bullshit." Stokes knew Kornegay referred to Defendant. Stokes then heard Defendant yell from outside, "tell your bitch ass home boy [Darden] to come outside." About three seconds later, Stokes heard gun shots and ran into another room. "After that it was just multiple shots came [sic] through the trailer."

         Stokes knew the shots went through the trailer, "[b]ecause you could see the debris as they hit." Stokes stated Kornegay and Garner stayed in the kitchen, on the floor:

As I heard shots I'm laying in this doorway, like laying in the doorway. As I heard shots I peeked out, and I see that [Kornegay] has a pool of blood up under his chest because he's face-down, but he has a pool of blood so I'm trying to see where he's shot. As I'm sliding out, [Garner] raise her head up, and I seen that she had got shot . . . I slid across the floor like right here. I got in between both of them trying to assess their wounds.

         As Stokes slid across the room towards Kornegay and Garner, Stokes received a shot in his leg. After Stokes was shot, he heard more shots. He remained still until the police arrived.

         The shots subsided, and Darden exited a different room. Stokes told Darden to leave and to call an ambulance. Stokes "[saw Darden] go out the back door, " and he "heard his car leave." Once Darden "got about to the top of the path pulling out on to the highway[, ]" Stokes heard more shots. Stokes saw Kornegay's handgun and took it in case someone entered the trailer.

         At this point, Stokes saw Thompson enter the trailer. Stokes told Thompson to call an ambulance. Thompson left and the police arrived shortly thereafter.

         Stokes admitted he lied to the Sheriff's deputies when they interviewed him in the hospital. Stokes told members of the Sheriff's Department he did not recognize Defendant's voice, when he actually did. Stokes felt "the police that we have in Wayne County, they don't really do their job on murders, so I would much rather handle it myself."

         The State next called Darden. Darden knew Defendant, Kornegay, and Garner for ten years. Darden also knew Stokes and Thompson. According to Darden, Kornegay lived alone and possessed a .40 caliber Glock handgun. On 2 December 2012, Darden visited Kornegay at Kornegay's trailer. Stokes and Garner arrived later. Kornegay received a phone call from Thompson and went outside for about three to five minutes. Kornegay then came back inside and said, "[Defendant] outside on that bullshit." As Darden stood in the hallway with Kornegay, he heard approximately ten gunshots. More gunshots continued for fifteen minutes. Kornegay walked past a window to check on Garner, and he received a shot in the head. Garner received a shot in her head as she jumped to grab Kornegay.

         Darden went to Kornegay, and noticed his faint breath. Darden also noticed Stokes's leg wound. After the shooting stopped, Darden ran out the back door and jumped into his vehicle. Defendant stood by the trailer's driveway with an assault rifle. Darden drove down the path toward Old Mt. Olive Highway, and Defendant shot at Darden's vehicle. Darden saw police lights at the highway. Darden then pulled up in front of the police, and told them Defendant shot him in the arm.

         Thompson testified next for the State. Thompson and Defendant knew each other all their lives. Thompson visited Kornegay the evening of the shooting. Initially, Thompson remained in his car, and saw Defendant's van. He also saw Defendant exit the van while holding a rifle. Thompson yelled for Kornegay to come outside and also called out Defendant had a rifle. Thompson heard Defendant yell, "tell your pussy ass home boy[Darden] to come outside." Thompson testified as he left Kornegay's trailer:

I back up, I go back where [Defendant] was, and ah -- I tell him, I said man, you need to leave before you do something you regret tonight. He said whatever, whatever I do tonight I make bond off tomorrow; so I pull up a little bit, a few feet, I stop because I get a feeling like, yo, I roll the window down, I said Jujuan Cox, you better not shoot in my car when I drive off. He says to me Antonio Thompson, I don't have no problems with you; I got a problem with your cousin. So I drives off. I get to the end of the path. When I get on the highway I hear gunshots, so I start calling [Kornegay's] phone and he won't pick up.

         Thompson then phoned Stokes. Stokes told Thompson everyone in the house was shot. Thompson travelled back toward Kornegay's trailer. On his way, Thompson saw the police stop at the trailer. The police talked to an unknown man by Defendant's van. Thompson returned and entered the trailer before the police arrived. Thompson saw everyone was shot. Only Stokes was alive, but he suffered a shot in his leg. Thompson then heard several more gunshots.

         The State rested. At the close of the State's evidence, Defendant moved to dismiss the two first-degree murder charges, the attempted first-degree murder charges, the assault with a deadly weapon with intent to kill, and the shooting into an occupied dwelling and an occupied vehicle. Defendant's trial counsel specifically argued "there's been not one scintilla of evidence that the [D]efendant, with malice aforethought, which is intent to kill or premeditation or deliberation has been presented in this case concerning either Jamal Anthony Kornegay or Neekea Felicia Garner." Defendant's counsel further argued, "there's been no evidence whatsoever presented in this courtroom by anyone that the [D]efendant unlawfully, willfully and feloniously and of malice aforethought, which again is intent to kill with premeditation and deliberation, attempted to kill or murder Trey Stokes." In response, the State argued, "looking at the evidence in the light most favorable to the State . . . [the evidence sufficiently] shows an intent to kill." The trial court denied Defendant's motions.

          Counsel for the defense presented an alibi witness, Maurice Whitehead ("Whitehead"). Whitehead was friends with Defendant's aunt, Dorothy Cox ("Cox"). Whitehead recalled at the time of the shooting, Defendant was with him at Cox's house watching a football game. However, Whitehead also recalled Defendant leaving with his van sometime after 10:00 p.m.

         At the close of all the evidence, Defendant renewed his motions to dismiss the charge of first-degree murder of Kornegay, the charge of first-degree murder of Garner, and the charge of assault with a deadly weapon with intent to kill inflicting serious injury of Stokes. Defense counsel argued, "there is not one scintilla of evidence that's been offered that the Defendant fired any shots killing anybody." The trial court denied both Defendant's motions.

         During the charge conference, defense counsel objected to the jury instruction of acting in concert. The trial court allowed the instruction to go to the jury. Defendant's counsel also objected to the trial court's instructing the jury on three different theories of murder. The State responded, "the State's not required to pick a theory. We contend the evidence is there for all three of these [theories]." The trial court noted for the record Defendant did not object to the State proceeding on the felony murder rule. However, the trial court noted Defendant's objection to the case proceeding on the theories of premeditation and deliberation and lying in wait. In its discretion, the trial court allowed instructions on all three murder theories to go to the jury. Defendant did not object to the jury instruction for AWDWIKISI.

         The jury began to deliberate at 10:57 a.m. About an hour and a half later, the jury submitted a note to the trial court stating "We cannot come to a unanimous decision on any of the charges against [Defendant]." The trial court said to counsel, "I'll hear from you at this time as to how we can proceed." The State responded, "at some point we need to give the Allen charge[.]" Defense counsel agreed.

After lunch, the trial court gave the jury an Allen charge:
Jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, it if can be done without violence to individual judgment. Each juror must decide the case for himself or herself, as the case may be, but only after impartial consideration of the evidence with his fellow jurors - - his or her fellow jurors. In the course of deliberations a jury should not hesitate to re-examine his or her own views and change his opinion if convinced it is erroneous, and no juror should surrender his or her honest conviction as to the weight or effect of evidence solely because of the ...

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