State v Ross

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA09-1617 NORTH CAROLINA COURT OF APPEALS Filed: 17 August 2010 STATE OF NORTH CAROLINA v. Lincoln Nos. 05 05 05 County CRS 51310; CRS 51314; CRS 51328 JOHN CHAVIS ROSS Appeal by defendant from judgments entered 6 November 2008 by Judge Ronald K. Payne in Lincoln County Superior Court. Heard in the Court of Appeals 10 June 2010. Attorney General Roy A. Cooper, III, by Special Deputy Jill Ledford Cheek, for the State. Richard E. Jester, for defendant-appellant. JACKSON, Judge. John Chavis Ross ( defendant ) appeals his convictions for second-degree murder, attempted first-degree murder, and assault with a deadly weapon with intent to kill. For the reasons stated herein, we hold no error. On 2 defendant May shot 2005, Jarvis in the Ross presence of ( Jarvis ) girlfriend s house on Gastonia Highway. in numerous the witnesses, yard of his Defendant and Jarvis were at the house visiting their girlfriends, who were sisters. When -2Jarvis arrived at the house, he intended to confront defendant about trying to hook someone else up with [his girlfriend]. Shortly after arriving, Jarvis spoke with Jacquece Reeves ( Reeves ) on the telephone and asked him if he would come to the house; Reeves agreed. Reeves and some others arrived at the house shortly thereafter. Defendant testified that during the week prior to 2 May defendant, 2005, Reeves shouting and and a gang threatening of guys him. had Since approached that time, defendant had been afraid of Reeves. According to witnesses, after Reeves s arrival, Jarvis confronted defendant, and the two argued about Jarvis s girlfriend. Defendant described Jarvis to be hot and really mad during the confrontation. Thereafter, defendant temporarily left the house in his car with his girlfriend and another friend. Defendant testified that he retrieved a gun from his trunk prior to returning to the house because he was concerned for his safety. When defendant returned, Jarvis approached his car window and again confronted him about Jarvis s girlfriend. After Jarvis left his car, defendant decided to go over . . . and talk to Jarvis, according to defendant. The two again argued about Jarvis s girlfriend, and after the argument escalated, defendant drew his gun. According to witnesses, defendant then shot Jarvis in the head. Defendant testified that his gun accidentally discharged when he hit Jarvis in the head with it. injuries. Jarvis later died from his -3Defendant drove away from the house after the shooting. Shortly after leaving the house, he bumped the car of Jeffrey Neal Hutchins ( Hutchins ), but continued followed defendant and called 911. driving. Hutchins After approximately a quarter of a mile, defendant stopped his car and walked over to Hutchins s car to offer to pay for the damage he had caused, but Hutchins refused to accept his money. According to Hutchins, defendant held a gun to his head and started to pull the trigger. Hutchins grabbed defendant s arm and gun and put his car into reverse. He then lost his grip of defendant, and defendant escaped into the woods with the gun. Hutchins sustained minor injuries from the assault. At defendant s 18 August 2008 hearing, the trial court allowed a motion for joinder of defendant s offenses. At his 15 October 2008 trial, defendant failed to move for severance of the joined offenses at the close of the State s evidence and at the close of all evidence. During the charge conference, defendant requested an instruction on the defense of accident, rejected the requested instruction. but the trial court The jury convicted defendant of assault with a deadly weapon with intent to kill on 3 November 2008, attempted first-degree murder on second-degree murder on 6 November 2008. 4 November 2008, and He was sentenced to consecutive prison terms for the convictions. Defendant appeals. Defendant first argues that the trial court erred in joining his offenses for trial. We disagree. -4Absent an abuse of discretion, this Court will not overrule a trial court s denial of a motion to sever. State v. McDonald, 163 N.C. App. 458, 463, 593 S.E.2d 793, 796 (citing State v. Brower, 289 N.C. 644, 658 59, 224 S.E.2d 551, 562 (1976), recons. denied, 293 N.C. 259, 243 S.E.2d 143 (1977)), disc. rev. denied, 358 N.C. 548, 599 S.E.2d 910 (2004). North Carolina General Statutes, section 15A-927(a)(2) provides that [i]f a defendant s pretrial motion for severance is overruled, he may renew the motion on the same grounds before or at the close of all the evidence. Any right to severance is waived by failure to renew the motion. N.C. Gen. Stat. § 15A-927(a)(2) (2003). In addition, we have held that failure to renew a motion to sever . . . waives any right to severance and that on appeal the Court is limited to reviewing whether the trial court abused its discretion in ordering joinder at the time of the trial court s decision to join. McDonald, 163 N.C. App. at 463 64, 593 S.E.2d at 797 (citing State v. Agubata, 92 N.C. App. 651, 660 61, 375 S.E.2d 702, 708 (1989)). court s ruling is Abuse of discretion occurs when the manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision. State v. Williams, 363 N.C. 689, 701, 686 S.E.2d 493, 501 (2009) (quoting State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988)). North Carolina General Statutes, section 15A-926(a) provides that [t]wo or more offenses may be joined in one pleading or for trial when the offenses, whether felonies or misdemeanors or both, -5are based on the same act or transaction or on a series of acts or transactions connected together or constituting parts of a single scheme or plan. N.C. Gen. Stat. § 15A-926(a) (2003). When we review a trial court s joinder determination after the defendant has failed to preserve his right to severance, we must address (1) whether a sufficient transactional connection exists between the offenses and (2) whether a defendant can receive a fair trial if the offenses are joined. State v. Peterson, __ N.C. App. __, __, __ S.E.2d __, __, 2010 WL 2813622, at *4, 2010 N.C. App. LEXIS 1265, at *9 (COA09-365) (July 20, 2010) (citing State v. Silva, 304 N.C. 122, 126, 282 S.E.2d 449, 452 (1981)). In determining whether a transactional connection exists, several factors must be considered: (1) the nature of the offenses charged; (2) any commonality of facts between the offenses; (3) the lapse of time between the offenses; and (4) the unique circumstances of each case. State v. Montford, 137 N.C. App. 495, 498 99, 529 S.E.2d 247, 250 (citing State v. Herring, 74 N.C. App. 269, 273, 328 S.E.2d 23, 26 (1985), aff d, 316 N.C. 188, 340 S.E.2d 105 (1986) (per curiam)), cert. denied, 353 N.C. 275, 546 S.E.2d 386 (2000). Joinder is proper if the offenses are not so separate in time and place and so distinct in circumstances as to render the consolidation unjust and prejudicial to defendant. State v. Shipp, 155 N.C. App. 294, 305, 573 S.E.2d 721, 728 (2002) (citing State v. Howie, 116 N.C. App. 609, 615, 448 S.E.2d 867, 871 (1994)). -6Here, although defendant objected to the State s motion for joinder at trial, he failed to renew his motion for severance at the close of the State s evidence and at the close of all the evidence, thereby waiving his right to severance. Nonetheless, our precedent requires that we determine whether the trial court abused its discretion in joining the two offenses for trial in the first place. See McDonald, 163 N.C. App. at 463 64, 593 S.E.2d at 797 (citation omitted). Most significantly, the two offenses with which defendant was charged were connected temporally, in that they occurred within minutes of each other. Defendant was in the process of fleeing the prior scene when he encountered Hutchins. gun during both incidents. He also used the same Therefore, a sufficient transactional connection existed between the two offenses. Furthermore, prejudicial. defendant has not shown that joinder was As discussed supra, the offenses are not strikingly distinct in time, place, and circumstance. App. at 305, 573 S.E.2d at 728. See Shipp, 155 N.C. Accordingly, because a sufficient transactional connection exists and because defendant has not shown that joinder was prejudicial to his defense, we cannot say that the trial court s decision to join the offenses was manifestly unsupported by reason[,] so as to overcome the plain words of the statute. omitted). Williams, 363 N.C. at 701, 686 S.E.2d at 501 (citation -7Defendant next argues that the trial court erred by denying his request for a jury instruction on the defense of accident. We disagree. Assignments of error challenging the trial court s decisions regarding jury instructions are reviewed de novo by this Court. State v. Osorio, __ N.C. App. __, __, 675 S.E.2d 144, 149 (2009) (citing State v. Ligon, 332 N.C. 224, 241 42, 420 S.E.2d 136, 145 46 (1992); State v. Levan, 326 N.C. 155, 164 65, 388 S.E.2d 429, 433 34 (1990)). Where an alleged assault is unintentional and the perpetrator acted without wrongful purpose in the course of lawful conduct and without culpable negligence, a resultant injury will be excused as accidental. State v. Thompson, 118 N.C. App. 33, 36, 454 S.E.2d 271, 273 (citing State v. Faust, 254 N.C. 101, 112, 118 S.E.2d 769, 776, cert. denied, 368 U.S. 851, 7 L. Ed. 2d 49 (1961)), disc. rev. denied, 340 N.C. 262, 456 S.E.2d 837 (1995). A killing will be excused as an accident when it is unintentional and when the perpetrator, in doing the homicidal act, did so without wrongful purpose or criminal negligence while engaged in a lawful enterprise. State v. Vincent, 195 N.C. App. 761, 764, 673 S.E.2d 874, 876 (2009) (quoting State v. Riddick, 340 N.C. 338, 342, 457 S.E.2d 728, 731 (1995)) (emphasis added). However, the defense of accident is not available where the defendant was occurred[.] 731). engaged in unlawful conduct when the killing Id. (citing Riddick, 340 N.C. at 342, 457 S.E.2d at -8 It is well established that when a defendant requests a special instruction which is correct in law and supported by the evidence, the trial court must give the requested instruction, at least in substance. S.E.2d 922, 924 State v. Tidwell, 112 N.C. App. 770, 773, 436 (1993) (citations omitted). In order to prevail . . . , [a] defendant must show that the requested instruction was not given in substance, and that substantial evidence supported the omitted instruction. State v. White, 77 N.C. App. 45, 52, 334 S.E.2d 786, 792, cert. denied, 315 N.C. 189, 337 S.E.2d 864 (1985) (citations omitted). The trial court need only give the jury instructions supported by a reasonable view of the evidence. Id. The trial court did not instruct on accident in Vincent. There, the defendant testified that while having a verbal argument with one victim, he reached into his truck and retrieved a gun. 195 N.C. App. at 763, 673 S.E.2d at 875. The gun fired during a struggle, and another victim was killed. Id. at 762 63, 673 S.E.2d at 875. In that case, this on the defendant s introduction of a gun into a verbal altercation. Id. at 764, 673 S.E.2d at 876. Court s holding turned Because the defendant caused the encounter to escalate[] to the point of deadly violence by engaging in unlawful instruction on accident. In the case sub conduct, he deprived himself of the his own Id. judice, defendant relies upon testimony of the events to support his requested instruction. Defendant testified that he introduced his gun into the conflict -9because he and Jarvis were arguing girlfriend and defendant was scared. intensely about Jarvis s He testified that, while using his gun to punch Jarvis in the head, the gun accidently discharged, shooting Jarvis in the head and killing him. However, defendant, by his own admission, was engaged in an assault when the shooting occurred. As in Vincent, because defendant s conduct at the time of the shooting was unlawful, defendant s request for an instruction on the defense of accident was properly denied. id. See Accordingly, we hold that the trial court did not err in denying defendant s request for an instruction on accident. Defendant s final argument is that the trial court expressed an opinion as to the presumption of innocence afforded defendant in violation of North Carolina General Statutes, sections 15A-1222 and 15A-1232. We disagree. Whenever a defendant alleges a trial court made an improper statement by expressing an opinion on the evidence in violation of [North Carolina General Statutes, sections] 15A-1222 and 15A-1232, the error is preserved for review without objection due to the mandatory nature of these statutory prohibitions. State v. Duke, 360 N.C. 110, 123, 623 S.E.2d 11, 20 (2005) (citing State v. Young, 324 N.C. 489, 494, 380 S.E.2d 94, 97 (1989)). North Carolina General Statutes, section 15A-1222 provides that [t]he judge may not express during any stage of the trial, any opinion in the presence of the jury on any question of fact to be decided by the jury. N.C. Gen. Stat. § 15A-1222 (2003). North Carolina General Statutes, section 15A-1232 provides that [i]n -10instructing the jury, the judge shall not express an opinion as to whether or not a fact has been proved and shall not be required to state, summarize or recapitulate the evidence, or to explain the application of the law to the evidence. N.C. Gen. Stat. § 15A-1232 (2003). In evaluating whether a judge s comments cross into the realm of impermissible opinion, a totality of the circumstances test is utilized. State v. Fleming, 350 N.C. 109, 126, 512 S.E.2d 720, 732 (1999) (quoting State v. Jones, 347 N.C. 193, 207, 491 S.E.2d 641, 649 (1997)). If a judge s statements are determined to be an impermissible expression of opinion, the defendant must further show that he was prejudiced by the remarks. State v. Jones, 358 N.C. 330, 355, 595 S.E.2d 124, 140 (citing State v. Weeks, 322 N.C. 152, 158, 367 S.E.2d 895, 899 (1988)), cert. denied, 543 U.S. 1023, 160 L. Ed. 2d 500 (2004). Our Supreme Court has recognized the importance of viewing a trial court s instruction in context, rather than carving out an isolated statement made by a trial court in order to formulate a claim of prejudice. See State v. Jones, 294 N.C. 642, 653, 243 S.E.2d 118, 125 (1978). In Jones, the Supreme Court held that the isolated statements of a trial judge may not be detached from the charge as a whole and critically examined for an interpretation from which prejudice to defendant may be inferred. Id. (citations omitted). Here, during jury selection, defense counsel commented that a potential juror must look at the defendant . . . being innocent, -11as innocent as the driven snow. The State objected. During a subsequent interview of another prospective juror, defense counsel stated that [o]ur system requires us to believe and to know that a defendant is innocent until proven guilty. objected. The State again In response to the State s objections, the trial court explained that [defendant] is presumed to be innocent is the law, not that he is innocent. But he is presumed to be innocent and that presumption stays with him. Although defendant argues that these comments expressed the trial judge s belief that defendant was not innocent, the trial court clearly set forth the correct legal presumption without prejudicing defendant. In addition, the trial court made clear in its concluding instructions to the jury that [u]nder our system of justice, when a defendant pleads not guilty he is not required to prove his innocence. He is presumed to be innocent. The State must prove to you that the [d]efendant is guilty beyond a reasonable doubt. Accordingly, we hold that the trial court did not err in its statements. For these reasons, we hold that the trial court did not err in joining defendant s offenses into one trial. It also did not err in failing to instruct the jury on the defense of accident. We further hold that the trial court did not express an impermissible opinion by explaining the legal presumption of innocence to the jury. No error. Judges GEER and BEASLEY concur. -12Report per Rule 30(e).

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