State v Richardson

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 A p p e l l a t e P r o c e d u r e . NO. COA11-285 NORTH CAROLINA COURT OF APPEALS Filed: 20 December 2011 STATE OF NORTH CAROLINA v. Durham County No. 06 CRS 59344 ANGEL LUIS IRIZAR RICHARDSON, Defendant. Appeal by defendant from judgment entered 15 February 2010 by Judge Cressie Thigpen, Jr., in Durham County Superior Court. Heard in the Court of Appeals 28 September 2011. Attorney General Roy Cooper, by Assistant Attorney General Derrick C. Mertz, for the State. Glover & Petersen, P.A., by Ann B. Petersen, for defendantappellant. HUNTER, Robert C., Judge. Angel Luis Irizar Richardson ( defendant ) appeals from the judgment entered after a jury found him guilty of first degree murder. motion Defendant argues the trial court erred in denying his for mistrial based exculpatory evidence in upon violation the of State s Brady suppression v. Maryland, of 83 - 2S. Ct. 1194, 10 L. Ed. 2d 215 (1963). trial court erred in denying his Defendant also argues the motion to dismiss and in instructing the jury on the theory of murder by lying in wait as the charge and the instruction were unsupported by the evidence. After careful review, we find no error. Background The State s evidence tended to establish the following: On 4 December 2006, Marlon Rand ( Rand ) was at his grandmother s house with his girlfriend and his niece. In the late afternoon, Rand walked out of the house and got into his car, which was parked on the street. Rand left the driver s door open as he sat in the car with the radio on. From inside the house Rand s niece was looking out the front door when she saw a man with a gun and wearing a black hoodie, black jeans, and green Jordan shoes run from the direction of the abandoned house next door to Rand s car. As the man raised his gun, Rand began kicking his legs in an apparent attempt to fend off the attack. fired two shots into the car and ran. The man Rand exited the car and fled across the street as the man fired two more shots before running from the scene. Rand collapsed in a neighbor s yard having suffered one gunshot wound to the upper chest with the bullet exiting through his neck and he died at the scene. The Durham Police Department s ( DPD ) investigation into the murder focused on several suspects. One suspect was Lemuel - 3Sherman, whom the police arrested and charged with murder. Custodial interviews with Sherman lead the DPD to conclude that Sherman did not kill Rand, but that he had perpetrator to and from the area of the shooting. driven the Sherman told the DPD the shooter was a person known as Rock. Sherman s attorney later told the DPD that Rock was, in fact, defendant. Shortly thereafter, the DPD arrested defendant for the murder of Rand and obtained defendant s consent to search his residence. As a result of the search, the police found a pair of florescent green Nike Air Jordan shoes and a black hooded coat in defendant s bedroom. On 16 January 2007, defendant was indicted by County Grand Jury for the murder of Marlon Rand. a Durham Six days later, while in custody, defendant contacted a DPD investigator and, after waiving his Massiah rights, provided a signed written confession to the murder. In his confession, defendant provided multiple details that corroborated evidence discovered by the DPD, including that the shooter took a rocking chair from a neighbor s porch and placed it by a window in the vacant house next door where the shooter waited overnight for the opportunity to attack. a beer. As he waited, defendant smoked cigarettes and drank Defendant s confession corroborated the brand of beer and cigarettes found in the vacant house; the description of the clothing the shooter was wearing (which matched the clothing - 4seized from defendant s bedroom); the caliber of the murder weapon; that Rand was kicking his feet during the attack and that he was shot in the neck while seated in his car. Defendant also stated in his confession that immediately prior to pulling the trigger, Rand grabbed the front of defendant s gun and attempted to reach under the driver s seat. An agent of the State Bureau of Investigation analyzed the DNA left on the beer can and cigarette butts found in the vacant house and determined it matched defendant s DNA. Additionally, the right arm of the black coat seized from defendant s bedroom tested positive for gunshot residue. When the case came on for trial on 19 January 2010 in Durham County Superior Court, defendant presented a defense theory that the wrong man was on trial that the perpetrator of the murder was Reginald defendant and Rand. Jones, a mutual acquaintance of However, during the second week of the trial, and during the State s case-in-chief, the State provided defendant with evidence that could be interpreted to support a defense theory that Lemuel Sherman confessed to the murder of Rand. The evidence at issue was a statement from Khalid Abdallah, an inmate in federal prison in Colorado. On 28 October 2008, Abdallah was interviewed by a dually-sworn DPD officer and FBI agent, Jonathan Butler, as part of a FBI narcotics investigation - 5into a Durham-based interview with organized Officer crime Butler, family. Abdallah Sherman told him (Abdallah), I m real. Smut. stated that the Lemeul I killed that n[----] (Smut was Marlon Rand s alias.) Upon request evidence County During related District Abdallah by to the defendant, Attorney s statement ) prosecution on 29 the Office for FBI with January any exculpatory provided this the Durham statement 2010. The (the prosecution delivered the statement to defendant s counsel the same day. Officer Butler later testified, however, that he gave the Abdallah statement to the DPD in October 2008, although he could not recall to whom he had provided the statement. The trial court recessed from 3 February 2010 to 8 February 2010 to allow defendant time to make effective use of the newly disclosed evidence. Defendant was given the opportunity to interview Abdallah, who was transferred to North Carolina for questioning, Durham. mistrial On and 4 arguing to interview February the Lemeul 2009, State had Sherman, defendant been made aware of who a lived motion the in for Abdallah statement since October 2008, that the statement was material exculpatory evidence, and the State s failure to disclose the evidence to defendant until the second week of his trial was a violation of his constitutional right to due process, citing the - 6United States Supreme Court s holding in Brady, 83 S. Ct. at 1196-97, 10 L. Ed. 2d at 218. The statement was favorable to defendant in that it was exculpatory evidence. The trial trial court court acknowledged further noted the that Abdallah there was evidence of suppression, albeit inadvertent suppression, in that there was testimony that the statement was provided to the DPD, but the DA s Office was unaware of its existence until after defendant s trial began. issue was disclosure Thus, the trial court concluded the dispositive whether of the defendant was statement. prejudiced After by permitting the late defendant s counsel to provide an ex parte statement as to what defendant would have done differently had the prior to trial, the trial court prejudiced by its late statement concluded disclosure. The been provided defendant was not trial court denied defendant s motion, noting that defendant provided a detailed confession to the crime, which corroborated much of the State s evidence of defendant s guilt. Abdallah would statement, not result or in The trial court concluded the additional a leads different resulting outcome in therefrom, the jury s deliberation. At the conclusion of the State s evidence, defendant made a motion to dismiss the charge for insufficient evidence, which the trial court denied. Defendant also renewed his motion for - 7mistrial, which was denied. Defendant then elected to present evidence, and before doing so, requested that he be able to preserve his right to give the last closing argument to the jury despite his intention to introduce evidence. The trial court indicated it was inclined to deny the request, and ultimately, the State gave the last closing argument. At the conclusion of all the evidence, defendant renewed his motion to dismiss the charge against him for insufficient evidence and his motion for mistrial. Both motions were denied. During the charge conference, defendant objected to instructing the jury on the theory of murder by lying in wait, but was overruled. find The trial court instructed the jury that it could defendant guilty of murder based on the theory premeditation and deliberation, or lying in wait, or both. of The jury found defendant guilty of first degree murder by lying in wait. The trial court sentenced defendant to imprisonment for life without parole. Defendant gave notice of appeal in open court. Discussion A. Brady Violation Defendant argues that the State s late disclosure of the Abdallah statement was a violation of his right to due process pursuant to the holding of Brady, 83 S. Ct. at 1196-97, 10 L. - 8Ed. 2d at 218, and, consequently, denying his motion for mistrial. the trial court erred in We disagree. We review the trial court s legal conclusion as to whether there was a Brady violation de novo and its decision to deny defendant s motion for mistrial based violation for abuse of discretion. on the alleged Brady See, e.g., United States v. Cole, 293 F.3d 153, 163 (4th Cir. 2002) (reviewing alleged Brady violation de novo and trial court s denial of the defendant s motion for mistrial for abuse of discretion); State v. Hodge, 118 N.C. App. 655, 657, 456 S.E.2d 855, 857 (1995). In Brady, the United States Supreme Court held that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. 97, 10 L. Ed. 2d at 218. In subsequent 83 S. Ct. at 1196cases, the Court established that the prosecutor s duty to disclose favorable and material evidence under Brady applies even in the absence of a request for such evidence by an accused and encompasses evidence known only to police or other individuals acting on behalf of the government in the accused s case. Strickler v. Greene, 119 S. Ct. 1936, 1948, 144 L. Ed. 2d 286, 298 (1999). Thus, there are three components to a Brady violation: (1) suppression by the State, whether willfully or inadvertently; (2) of evidence - 9that is favorable to the defendant, because it is exculpatory or impeaching; and (3) is material to the defendant in that it prejudiced the defendant to the extent there is a reasonable probability defense, that, the different. at 302 whether had result the of evidence the been proceeding disclosed would to the have been See Strickler, 119 S. Ct. at 1948-49, 144 L. Ed. 2d (explaining the the determinative petitioner issue Strickler was prejudice established in necessary to satisfy the materiality inquiry for his Brady claim). Here, in denying defendant s motion for mistrial, the trial court concluded the Abdallah statement appeared to be favorable to defendant and material. However, defendant was granted a continuance to allow for his effective use of the evidence, and, in the trial court s opinion, the statement and any leads resulting therefrom would not result in a different verdict. note that material, while in the light trial of its court found ultimate the statement conclusion that We was the evidence would not result in a different verdict, we conclude the trial court did not determine it was material under Brady and its progeny, as defendant contends. See State v. Berry, 356 N.C. 490, 517, 573 S.E.2d 132, 149 (2002) (explaining that for an alleged Brady violation, [e]vidence is considered material if there is a reasonable probability of a different result had the evidence been disclosed (citation omitted)). Rather, it is -10reasonable to conclude the trial court used material pursuant to the term as used in section 15A-910 of our General Statutes, which defendant cited in support of his motion for mistrial. N.C. Gen. imposing Stat. § 15A-910 for sanctions discovery (2009) party s requirements consider both the a in (providing failure superior materiality courts of the that prior to to comply with the court shall subject matter and the totality of the circumstances surrounding an alleged failure to comply with this Article ) (emphasis added). Regardless, upon our de novo review, we conclude the Abdallah statement was not material under Brady. While prosecutors have a broad duty to disclose favorable evidence prior to trial, our Supreme Court has held that due process and Brady are satisfied by the disclosure of the evidence at trial, so long as disclosure is made in time for the defendant to make effective use of the evidence. State v. Taylor, 344 N.C. 31, 50, 473 S.E.2d 596, 607 (1996) (emphasis added) (concluding the defendants were not entitled to mistrial for alleged Brady violation where defendants had ample opportunity to make effective use of evidence disclosed during trial; the evidence was provided four days before the State rested its case, the State provided contact information for new witnesses, and the defendants did not ask for a continuance); cf. State v. Canady, 355 N.C. 242, 252, 559 S.E.2d 762, 767 -11(2002) (concluding informants effective denied use the the the State s failure defendant to the information i.e., disclose names opportunity acquire from to of make informants names of others involved in the crimes charged and created a reasonable probability of a different outcome at trial). On appeal, defendant argues the State s late disclosure of the Abdallah statement was a Brady violation because he was not able to make effective use of the information. Had he known of the Abdallah statement prior to trial, defendant argues he would have modified theory, given his a jury voir different dire, opening used a different statement, and defense questioned witnesses differently. We allow note the defendant trial court effective made use of several the accommodations evidence including to a continuance to permit defendant time to interview Abdallah and Sherman; a special instruction to the jury explaining the late disclosure of the Abdallah statement and that the statement should have been turned over to defendant prior to trial; and a second opening statement to the jury. mistrial, defendant s counsel In arguing his motion for conceded that the Abdallah statement could be interpreted to support the State s theory that Sherman meant that he had Rand killed, not that he killed Rand himself. despite knowing Defendant s prior to counsel trial that also acknowledged Sherman was a that viable -12suspect, and despite knowing there was evidence in the State s discovery files that Sherman was hired to murder Rand, counsel made a strategic decision to utilize a defense theory that did not implicate Sherman as the perpetrator. Moreover, in light confession, and other defendant s arguments of defendant s substantial do not detailed evidence persuade us of that written his guilt, there is a reasonable probability that had the State provided the Adballah statement reached to defendant a prior different corroborated many to trial verdict. details of the the jury would Defendant s State s have confession evidence, including that defendant hid in a vacant home next door to his victim s house drinking beer and smoking cigarettes before committing the crime. The State identified defendant s DNA on the beer can and cigarette butts left in the vacant house. With this substantial disclosure of the Abdallah confidence in the verdict. evidence statement We of his does conclude guilt, not no the undermine Brady late our violation occurred and the trial court did not abuse its discretion in denying defendant s motion. See Strickler, 119 S. Ct. at 1954, 144 L. Ed. 2d at 309 (concluding the record provided strong support for convicted available the even to conclusion if the the that petitioner suppressed defendant and evidence rejecting would have been had been made the petitioner s -13allegation of a Brady violation); State v. Campbell, 133 N.C. App. 531, 541-42, 515 S.E.2d 732, 739 (1999) (concluding the suppressed evidence s effect, if any, was vastly diminish[ed] by defendant s confession and other evidence of his guilt and was therefore not material under Brady and its progeny). Defendant further contends that because of the late disclosure of the Abdallah statement he was forced to introduce evidence after the State rested its case and, consequently, he was improperly denied his right to the last closing argument. See State v. Macon, 346 N.C. 109, 114, 484 S.E.2d 538, 541 (1997) (explaining that when the defendant introduces evidence he loses his right to give the last closing argument); State v. English, 194 N.C. App. 314, 321, 669 S.E.2d 869, 873 (2008) (concluding the defendant was entitled to a new trial where the trial court wrongly denied the defendant his right to give the last closing argument). Defendant argues that had the Abdallah statement been disclosed prior to trial he could have preserved his right to give the last closing argument. This is because the witnesses called by defendant were initially called during the State s case-in-chief. elicited the necessary Consequently, defendant could have testimony from these witnesses during cross-examination and done so without introducing evidence with the exception of a few defense exhibits. -14The record reveals that when the State rested its case defendant requested argument despite evidence. The he the State be allowed fact that objected. to he give the intended Defendant last to closing introduce requested the accommodation as a sanction pursuant to N.C. Gen. Stat. § 15A910 in light of the State s late disclosure of the Abdallah statement. The trial court stated it was inclined to deny the request in light of the other accommodations it had provided defendant, but that it would give the request consideration. Our review of the record, however, does not disclose a ruling by the trial court on defendant s request. By not obtaining a ruling on his request, defendant waived his right to appeal the issue. N.C. R. App. P. 10(a)(1) (2009). In sum, we conclude defendant has failed to establish that the Abdallah statement was material; he has not demonstrated a reasonable probability that had he been provided the Abdallah statement prior to trial that the jury would have reached a different verdict. B. Motion to Dismiss Defendant also appeals the trial court s denial of his motion to dismiss the charge of first degree murder on a theory of lying in wait, arguing the evidence was insufficient to permit a reasonable juror to conclude beyond a reasonable doubt -15that defendant committed the crime by lying in wait. We disagree. In order to deny defendant s motion the State must have presented sufficient evidence to convince a rational jury, beyond a reasonable doubt, that each element of the crime was committed and that defendant was the perpetrator of the crime. See State v. Leroux, 326 N.C. 368, 375-76, 390 S.E.2d 314, 32021 (1990). reasonable Additionally, we must view the evidence, and all inferences favorable to the State. drawn therefrom, in the light most Id. at 377, 390 S.E.2d at 321. In Leroux, our Supreme Court described the crime of murder by lying in wait as follows: Murder perpetrated by lying in wait refers to a killing where the assassin has stationed himself or is lying in ambush for a private attack upon his victim. The assassin need not be concealed, nor need the victim be unaware of his presence. If one places himself in a position to make a private attack upon his victim and assails him at a time when the victim does not know of the assassin s presence or, if he does know, is not aware of his purpose to kill him, the killing would constitute a murder perpetrated by lying in wait. 326 N.C. at 375, 390 S.E.2d at 320 (citations omitted). In the present case, the record reveals ample evidence to permit a rational jury to murder by lying in wait. conclude that defendant committed This evidence included defendant s confession that he hid in the vacant house next door to Rand s -16home and waited until Rand was reclining in his defendant ran from his hiding place to shoot him. car before Defendant emphasizes, however, that Rand had sufficient time to perceive defendant, grab defendant s gun, and begin kicking his legs in defense. Defendant contends Rand s actions evidence an awareness of the attack, and a defense from the same, which negate the essential elements of lying in wait. In support of his argument defendant cites to Leroux for the proposition that to support a charge of murder by lying in wait the victim must be unaware of the impending attack. 326 N.C. at 376, 390 S.E.2d at 320 ( Even a moment s deliberate pause before killing one unaware of the impending assault and consequently without opportunity to defend himself satisfies the definition of murder perpetrated (emphasis added) (citations omitted)). by lying in wait. While we agree that our case law requires an element of surprise in the attack, State v. Lynch, 327 N.C. 210, 218, 393 S.E.2d 811, 816 (1990) ( [S]ome sort of ambush and surprise of the victim are required. ), we conclude the case law requires the attack be unexpected, not that the victim be completely unaware of what is occurring. See State v. Allison, 298 N.C. 135, 148, 257 S.E.2d 417, 425 (1979) ( The fact that [the assailant] reveals himself or the victim discovers his presence will not prevent the murder from being perpetrated by lying in wait. ); State v. Richardson, 346 N.C. -17520, 536-37, 488 S.E.2d 148, 158 (1997) (concluding evidence that the defendant waited 15 minutes for his murder victim to exit her workplace before abducting her and that the victim did not see her assailant until he was right up to her was sufficient to support a charge of murder by lying in wait), cert. denied, 118 S. Ct. 710, 139 L. Ed. 2d 652 (1998). Similarly, defendant s insistence that his victim s brief attempt to deflect the imminent attack negates the propriety of a charge for murder by lying in wait is unsupported by our case law. See Leroux, 326 N.C. at 376, 390 S.E.2d at 320 (concluding charge of murder by lying in wait was not defeated by evidence that victim perceived the defendant and had time to tell other police officers to take evasive actions before the victim was shot). court We conclude the evidence was sufficient for the trial to instruct the jury on murder by lying in wait. Defendant s argument is overruled. C. Jury Instruction Defendant next argues the trial court erred by instructing the jury on a theory of murder by lying in wait. motion to dismiss, defendant contends the As with his evidence was insufficient to permit a reasonable juror to conclude beyond a reasonable doubt that defendant committed the crime by lying in wait. We disagree. -18We review the instructions de novo. trial court s decision regarding jury State v. Osorio, 196 N.C. App. 458, 466, 675 S.E.2d 144, 149 (2009). The trial court should not give instructions to the jury which are not supported by the evidence produced at the trial. State v. Cameron, 284 N.C. 165, 171, 200 S.E.2d 186, 191 (1973), cert. denied, 94 S. Ct. 3195, 41 L. Ed. 2d 1153 (1974). If a jury instruction is given that is not supported by the evidence, the defendant is entitled to a new trial. State v. Porter, 340 N.C. 320, 331, 457 S.E.2d 716, 721 (1995). For the same reasons we have outlined in our discussion of defendant s motion to dismiss, we conclude there was sufficient evidence to instruct the jury on a theory of murder by lying in wait. Defendant s argument is overruled. Conclusion For the reasons stated herein, we conclude the trial court did not err in denying defendant s motion for mistrial, in denying defendant s motion to dismiss, or in charging the jury with an instruction on first degree murder by lying in wait. No error. Judges STEELMAN and McCULLOUGH concur. Report per Rule 30(e).

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