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State v. Pierre

Court of Appeals of North Carolina

December 17, 2019

STATE OF NORTH CAROLINA
v.
KENNETH PIERRE, Defendant.

          Heard in the Court of Appeals 9 May 2019.

          Appeal by Defendant from judgments entered 14 May 2018 by Judge Rebecca W. Holt in Orange County Nos. 16 CRS 000123, 051476 Superior Court.

          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 defendant-appellant.

          MURPHY, JUDGE.

         When a 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 error.

         BACKGROUND

         On 17 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.

         During 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 Stroud's house.

         Defendant 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 right."

         Bernard 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.

         During 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 the house.

         When Retillias arrived, Stroud told her what happened, and that the perpetrator had identified himself as "KP." Retillias testified:

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.

         Suspecting 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.

         Defendant 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 individual.[1]

         The 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, ...


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