in the Court of Appeals 24 August 2017.
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
HUNTER, JR., Robert N., Judge.
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.
Procedural and Factual Background
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
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
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.
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
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.
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."
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.
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.
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.
point, Stokes saw Thompson enter the trailer. Stokes told
Thompson to call an ambulance. Thompson left and the police
arrived shortly thereafter.
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
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
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
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.
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.
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
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.
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.
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.
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
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 ...