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State v. Tart

Supreme Court of North Carolina

March 29, 2019

STATE OF NORTH CAROLINA
v.
JERMAINE ANTWAN TART

          Heard in the Supreme Court on 8 January 2019.

          On discretionary review pursuant to N.C. G.S. § 7A-31 of a unanimous, unpublished decision of the Court of Appeals, __ N.C.App. __, 808 S.E.2d 178 (2017), vacating in part and finding no error in part in judgments entered on 26 August 2016 by Judge V. Bradford Long in Superior Court, Forsyth County. On 9 May 2018, the Supreme Court allowed defendant's conditional petition for discretionary review as to additional issues.

          Joshua H. Stein, Attorney General, by Michael T. Henry, Assistant Attorney General, for the State-appellant/appellee.

          Sarah Holladay for defendant-appellee/appellant.

          MORGAN, JUSTICE.

         This criminal appeal presents two issues for the Court to resolve: whether a short-form indictment sufficiently charged attempted first-degree murder when the wording of the indictment did not precisely duplicate the language of the relevant statute and whether a prosecutor's remarks during closing argument were so grossly improper that the trial court should have intervened ex mero motu. While we agree with the Court of Appeals that the State's characterizations during its closing argument do not entitle defendant to a new trial, we reject the lower appellate court's determination regarding the short-form indictment and hold that the indictment was sufficient to vest the trial court with subject-matter jurisdiction to try defendant for attempted first-degree murder. Accordingly, we affirm in part and reverse in part the decision of the Court of Appeals.

         Factual and Procedural Background

         In late February 2014, defendant Jermaine Antwan Tart was residing at a homeless shelter in Winston-Salem where the victim in this case, Richard Cassidy, was a volunteer worker. On 2 March 2014, Cassidy was leading a group of shelter residents, including defendant, as they walked to an overflow location of the shelter. During the walk to this area, defendant made several inappropriate comments and began to speak incoherently. Defendant suddenly began to assault Cassidy from behind, stabbing Cassidy in the head and knocking him to the ground. Defendant then got on top of Cassidy and continued to attack him, striking Cassidy's head, neck, shoulder, and back with a knife. Even after another shelter resident attempted to intervene in order to try to stop the attack, defendant persisted in his assault of Cassidy. A law enforcement officer arrived on the scene and was able to stop defendant's attack on Cassidy. Although the injuries that Cassidy sustained were serious and life-threatening, he survived the assault. Defendant subsequently stated during interviews with law enforcement officers and mental health professionals that he was upset with Cassidy because Cassidy had allowed others to steal from him, had disrespected defendant, and had shot defendant when defendant was a child.

         Defendant was charged with the offenses of attempted first-degree murder and assault with a deadly weapon with intent to kill inflicting serious injury. At trial, there was no dispute that defendant had stabbed Cassidy. The sole contested question concerned defendant's mens rea, namely, whether defendant had the specific intent to attempt to commit first-degree murder.

         The State introduced testimony from Richard Blanks, M.D., an expert in the field of forensic psychiatry, who opined that an individual can have a specific intent and a delusion at the same time. Also in his testimony, Dr. Blanks offered defendant's belief that Cassidy had allowed others to steal from defendant as an example of defendant's non-delusional reasons for being angry with Cassidy, even if defendant's beliefs were actually inaccurate. Dr. Blanks testified that these beliefs constituted identifiable non-delusional reasons that could cause defendant to be angry with Cassidy and would further evidence defendant's specific intent to kill Cassidy.

         Dr. Christine Herfkens, a psychologist and expert in forensic and clinical neuropsychology who was a witness for the defense, testified that defendant had a long history of mental illness, including schizoaffective disorder and antisocial personality disorder, which is a disorder formerly known as sociopathy. Defendant's medical records indicated that he had been admitted to state hospitals at least twelve times between 2002 and 2014, each time exhibiting homicidal ideation, which Herfkens defined as the desire to kill another person. In addition, defendant was dependent on both alcohol and marijuana.

         At the close of the State's evidence and again at the close of all of the evidence, defendant moved to dismiss both charges against him, arguing that he had demonstrated diminished capacity and the absence of the specific intent to kill. The trial court denied these motions. The jury subsequently found defendant guilty of attempted first-degree murder and assault with a deadly weapon with intent to kill inflicting serious injury. The trial court sentenced defendant to concurrent terms totaling 207 to 261 months of imprisonment.

         Defendant appealed to the Court of Appeals and raised two arguments, neither of which was presented to the trial court. First, defendant challenged the indictment that purported to charge him with attempted first-degree murder, claiming that it was insufficient to confer subject-matter jurisdiction on the trial court. Specifically, defendant noted that the short-form indictment utilized for the attempted first-degree murder charge included one word from the statutorily approved language for charging manslaughter along with the prescribed wording for a murder offense. Second, defendant contended that certain remarks in the prosecutor's closing argument at trial were so grossly improper that the trial court committed reversible error in failing to intervene ex mero motu. In a unanimous, unpublished opinion issued on 5 December 2017, the North Carolina Court of Appeals agreed with defendant's indictment argument and vacated his attempted first-degree murder conviction, but found no error in the trial court's silence during the State's closing argument and therefore upheld the assault conviction. See State v. Tart, __ N.C.App. __, 808 S.E.2d 178, 2017 WL 6002771 (2017) (unpublished).

         On 14 December 2017, the State filed a petition for writ of supersedeas and application for temporary stay in this Court. The following day, this Court stayed the decision of the Court of Appeals. On 11 January 2018, the State filed a petition seeking discretionary review of the Court of Appeals' decision regarding sufficiency of the indictment for attempted first-degree murder, and on 22 January, defendant filed a conditional petition for discretionary review of the Court of Appeals' resolution of the closing argument issue. This Court allowed both petitions for discretionary review on 9 May 2018.

         Analysis

         I. Facial Sufficiency of the Short-form Attempted First-degree Murder Indictment

         North Carolina General Statutes section 15-144 sets out the appropriate phrasing which can be utilized in indictments for the criminal offenses of murder and manslaughter. The statute reads in pertinent part:

[I]t is sufficient in describing murder to allege that the accused person feloniously, willfully, and of his malice aforethought, did kill and murder (naming the person killed), and concluding as is now required by law; and it is sufficient in describing manslaughter to allege that the accused feloniously and willfully did kill and slay (naming the person killed), and concluding as aforesaid . . . .

N.C. G.S. § 15-144 (2017). The indictment in the case at bar, in charging defendant with the criminal offense of attempted first-degree murder, states in pertinent part: "the defendant [Jermaine Antwan Tart] unlawfully, willfully and feloniously did attempt to kill and slay Richard Cassidy with malice aforethought." (Emphasis added).

         A comparison of the statutory requirements to sufficiently charge a person in an indictment for an offense pertaining to murder under N.C. G.S. § 15-144 and the challenged indictment in the instant case offers two notable observations: (1) the phrase "malice aforethought" appears in both the statutory requirements and the current indictment, and (2) the phrase "kill and murder," which is statutorily associated with an offense pertaining to murder in an indictment, is replaced in the current indictment with the phrase "kill and slay," which is statutorily associated with an offense pertaining to manslaughter in an indictment. Therefore, the indictment that this Court evaluates for its sufficiency to charge defendant with the offense of attempted first-degree murder contains language associated not only with an offense pertaining to murder-namely, "malice aforethought"-but also with an offense pertaining to manslaughter-namely, "kill and slay"-as designated in N.C. G.S. § 15-144.

         The State argues that the Court of Appeals erred by employing a new "interchangeability" analysis with respect to the construction of indictments that do not adhere verbatim to their authorizing statutes. In considering the indictment charging defendant with attempted first-degree murder in the present case, the Court of Appeals concluded:

The indictment in question fails to comply with the short form indictment authorized by N.C. G.S. § 15-144. It states the following: "[t]he jurors for the State upon their oath present that on or about [the dates of offense shown and in the county named above] the defendant named above unlawfully, willfully and feloniously did attempt to kill and slay Richard Cassidy with malice aforethought." (emphasis added). It does not allege Defendant attempted to "kill and murder"-the requisite language for murder. Instead it contains the phrase "kill and slay"-the requisite language for manslaughter. The terms "murder" and "slay" are not interchangeable. Thus, this indictment is insufficient to charge attempted murder and the trial court lacked jurisdiction to enter judgment on this charge.

Tart, 2017 WL 6002771, at *3 (second set of brackets in original). We agree with our colleagues at the lower appellate court that "[t]he terms 'murder' and 'slay' are not interchangeable," id.; however, the usage of the word "slay" in place of the word "murder" in the indictment here is a distinction without a difference because the indictment against defendant also charged that the killing was done "with malice aforethought." Id. Under such circumstances as those present in the case at bar, the words that appear in the short-form indictment are sufficient to charge attempted first-degree murder.

         The plain language of N.C. G.S. § 15-144, coupled with consideration of the constitutional purpose of indictments, dictates our determination that the indictment here effectively withstands challenge. An indictment is "a written accusation of a crime drawn up by the public prosecuting attorney and submitted to the grand jury, and by them found and presented on oath or affirmation as a true bill." State v. Thomas, 236 N.C. 454, 457, 73 S.E.2d 283, 285 (1952) (citations omitted). "Except in misdemeanor cases initiated in the District Court Division, no person shall be put to answer any criminal charge but by indictment, presentment, or impeachment." N.C. Const. art. I, § 22. This constitutional provision is intended

(1) [to provide] such certainty in the statement of the accusation as will identify the offense with which the accused is sought to be charged; (2) to protect the accused from being twice put in jeopardy for the same offense; (3) to enable the accused to prepare for trial, and (4) to enable the court, on conviction or plea of nolo ...

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