in the Court of Appeals 9 May 2019.
by Defendant from judgments entered 14 May 2018 by Judge
Rebecca W. Holt in Orange County Nos. 16 CRS 000123, 051476
Attorney General Joshua H. Stein, by Assistant Attorney
General Thomas H. Moore, for the State.
Coleman, Gledhill, Hargrave, Merritt & Rainsford, P.C.,
by James Rainsford and Cyrus Griswold, for
trial court errs in instructing the jury on a theory of guilt
that was not supported by the evidence adduced at trial, we
will not order a new trial unless the defendant can show the
instructional error was prejudicial. To prove such an error
prejudicial, the defendant must show that the State failed to
present exceedingly strong evidence of his guilt or that that
evidence was either in dispute or subject to serious
credibility-related questions. Here, the State presented
exceedingly strong evidence of Defendant's guilt that was
neither in dispute nor subject to serious credibility-related
questions. We hold the trial court committed no prejudicial
May 2016, Willie Stroud ("Stroud") and Bernard
Degraffenreidt ("Bernard") hosted two young women,
Jermisha Baldwin ("Jermisha") and Defendant's
niece, Kendretta Pierre ("Kendretta"), and also
Bernard's brother, Derrick Degraffenreidt, at their home
in Chapel Hill. Stroud, the owner of the house, called local
police during the visit and claimed one of the women had
stolen his wallet. Chapel Hill Police reported to the house
and identified Jermisha and Kendretta as the female
houseguests. The officers interviewed the women, who denied
taking Stroud's wallet, and left after Stroud informed
them that he did not wish to file any criminal charges. The
same group was back at Stroud's house the following day.
the second visit, Kendretta "went into a spell . . .
[and] started throwing things off the [kitchen] table. She
then went in the living room and fell down on the floor and
started kicking." This presumably occurred as a result
of Kendretta's drinking and consuming "synthetic
weed." Kendretta and Jermisha left the house shortly
after Kendretta regained her faculties, and "about an
hour later" Defendant, Kenneth Pierre, arrived at
was driving a car with at least two passengers. After parking
in the driveway, Defendant approached Stroud and Bernard, who
were on the porch when he arrived. Both Stroud and Bernard
testified that Defendant asked which one of them was Stroud
and accused Stroud of trying to take sexual advantage of
Kendretta. Defendant then said, "I'm coming to
kill-kill Willie[, ]" and reached down to draw a handgun
from a holster on his waist. Stroud struggled with Defendant
to keep him from drawing the gun, but, eventually, Defendant
was able to draw his gun and aim it at Stroud, who fled
inside his home. At this point, Bernard, who was already
inside the house, tried to call the police, "but my
nerves were so bad I couldn't even hit the numbers
believed Defendant had left and went to the door to see if he
had, but Stroud advised him that Defendant was still there
and knocked Bernard to the ground. "[T]hat's when
the shots went off." Multiple gunshots were fired and
one entered Stroud's house, landing in a dresser inside
Stroud's bedroom. After the gunshots, Stroud and Bernard
heard what they assumed was Defendant's car driving away.
Shortly thereafter, Stroud's son, Willie Stroud Jr., and
a neighbor both reported the shooting to police.
their investigation of the crime scene, police found two
.40-caliber bullet casings in the street in front of
Stroud's house and also recovered a .40-caliber bullet
from a dresser inside his home. Stroud told the officers he
did not know the man who had confronted him, but noted that
the man identified himself as "KP" and that he
thought the man was related to one of the women who had
visited his house earlier that day. While police remained on
the scene, Stroud called his niece, Retillias Byrd Johnson
("Retillias"), and Retillias traveled to
Stroud's house to comfort him and assist in cleaning up
Retillias arrived, Stroud told her what happened, and that
the perpetrator had identified himself as "KP."
I told him that I only knew one KP. So I actually pulled out
my cell phone. And I pulled up my Facebook; and I showed him
a picture of KP, which was actually [Defendant, ] Kenneth
Pierre. And from that picture, the Facebook photo I showed
him, he told me that's who he had just finished wrestling
with. So that's how we knew exactly who it was.
Defendant was the person who had shot into Stroud's home,
Retillias confronted Defendant about the incident the next
time the two saw each other, and Defendant told her he had
been the one who fired the weapon. Retillias testified that
she asked Defendant:
"Why did you go and shoot up my uncle's house and
why were you wrestling with him --"
Q: Okay. And he told you that he went there?
[Retillias:] --that he could have shot him. Yes.
Q: And shot and had a firearm?
[Retillias:] And that he was upset. Yes.
was eventually arrested and charged with discharging a
firearm into an occupied dwelling and possession of a firearm
by a convicted felon, and the grand jury for Orange County
subsequently indicted Defendant on the same. Defendant was
tried by a jury in Orange County Superior Court. During the
conference regarding jury instructions, Defendant objected to
the inclusion of an acting in concert instruction for the
discharging a firearm into an occupied dwelling charge. The
trial court overruled that objection and also chose not to
grant Defendant's request to include a separate box on
the verdict sheet that the jury could check if they found him
guilty by reason of his acting in concert with another
jury found Defendant guilty of both discharging a firearm
into an occupied dwelling and possession of a firearm by a
felon. Defendant was sentenced to consecutive active
sentences of 99 to 131 months and 18 to 31 months,