State v. Wilson

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NO. COA13-1395 NORTH CAROLINA COURT OF APPEALS Filed: 16 September 2014 STATE OF NORTH CAROLINA v. Guilford County No. 11 CRS 082533 JAMES LEWIS WILSON, JR. Appeal by Defendant from judgment entered 22 March 2013 by Judge David L. Hall in Superior Court, Guilford County. Heard in the Court of Appeals 12 August 2014. Attorney General Roy Cooper, by Special Deputy General David P. Brenskelle, for the State. Attorney Kimberly P. Hoppin for Defendant. McGEE, Chief Judge. James Lewis Wilson ( Defendant ) appeals his conviction of attempted first-degree murder. Defendant contends that (1) the corresponding short form indictment against him for attempted first-degree murder was defective and ineffective assistance of counsel at trial. (2) he received We agree that the -2indictment against Defendant was defective, but we do not agree that Defendant received ineffective assistance of counsel. I. Background Around five or six in the evening of 19 July 2011, Timothy Lynch ( Mr. Lynch ) was walking on a street in the Five Points area in High Point. Mr. Lynch was accompanied by a small group of people. A blue Cavalier ( the Cavalier ) approached and near where Mr. Lynch and his companions were standing. stopped Four men inside the Cavalier, including Defendant, exited the vehicle. Defendant had been riding in the front passenger seat of the Cavalier and was carrying a gun. Defendant testified at trial that the four men were there to confront Mr. Lynch, whom they believed had recently beaten up Defendant s cousin. Defendant further testified that, upon exiting the Cavalier, he pointed his gun at the group with Mr. Lynch in order to get them to disperse. Mr. Lynch s companions fled the scene immediately, but Mr. Lynch remained. There was conflicting testimony as to what happened next. Multiple witnesses testified that Defendant pulled on the slide of his gun to cock it and then pointed the gun at Mr. Lynch. One witness testified that Defendant next tried to pull the -3trigger three or four times, but the gun jammed and did not fire. Defendant testified that he tried to cock the gun after Mr. Lynch s companions began running, but the slide itself was jammed and did not move in spite of his multiple efforts. Defendant also testified that he never pointed the gun at Mr. Lynch or tried to pull the trigger after the crowd dispersed. Defendant then left in the Cavalier, along with the three men who were accompanying him. over the vehicle and took However, the police soon pulled Defendant into custody. Upon performing a protective sweep of the Cavalier, one officer found Defendant s gun with its safety still on. Defendant was indicted on 7 November 2011 for attempted first-degree murder. A charge on 20 March 2013. jury found Defendant guilty of that The following day, Defendant gave oral notice of appeal in open court. II. Defective Indictment A. Standard of Review On appeal, this indictment de novo. Court reviews the sufficiency of an State v. McKoy, 196 N.C. App. 650, 652, 675 S.E.2d 406, 409 (2009) (citation omitted). B. Analysis -4Defendant contends that the indictment against him for attempted first-degree murder was defective because it omitted an essential element of the offense: short form indictment states as follows: against malice aforethought. Defendant, in relevant The part, The jurors for the State upon their oath present that on or about the date of offense shown and in the county named above the defendant named above unlawfully, willfully and feloniously did attempt to murder Timothy Lynch. By contrast, N.C. Gen. Stat. § 15-144 (2013), entitled Essentials of bill for homicide, states that in the body of the indictment, it is sufficient in describing murder to allege that the malice accused person aforethought, did feloniously, kill and willfully, murder (naming and the killed), and concluding as is now required by law. The purpose of an indictment is to inform the defendant of the charge against him with sufficient certainty to enable him to prepare a defense. An indictment is insufficient if it fails to allege the essential elements of the crime charged as required by Article I, Section 22 of the North Carolina Constitution and our legislature in N.C.G.S. § 15-144. When an indictment has failed to allege the essential elements of the crime charged, it has failed to give the trial court subject matter jurisdiction over the matter, and the reviewing court must arrest judgment. of his person -5State v. Bullock, 154 N.C. App. 234, 244 45, 574 S.E.2d 17, 23 24 (2002) (citations omitted). In this case, the indictment on its face failed to include the essential element of malice aforethought as required by Article I, Section 22 of the N.C.G.S. § 15-144, and North Bullock. As Carolina a Constitution, result, just as in Bullock, we arrest the judgment in Defendant s attempted firstdegree murder conviction. (arresting the judgment See id. at 245, 574 S.E.2d at 24 in an attempted first-degree murder conviction where the short form indictment failed to allege that the defendant acted with malice aforethought). However, again, as in Bullock, where the indictment does sufficiently allege a lesser-included offense, we may remand for sentencing and entry of judgment thereupon. manslaughter consists premeditation, Robbins, Because 309 the or N.C. jury's of an unlawful deliberation. 771, 777, guilty 309 verdict See killing id. S.E.2d of Id. Voluntary without (citing 188, attempted 191 malice, State v. (1983)). first-degree murder necessarily means that they found all of the elements of the lesser-included offense of attempted voluntary manslaughter, we remand this matter to the trial court for sentencing and entry of judgment for attempted voluntary manslaughter. See id. -6(citing State v. Wilson, 128 N.C. App. 688, 696, 497 S.E.2d 416, 422 (1998)). III. Ineffective Assistance of Counsel A. Standard of Review On appeal, this Court reviews whether a denied effective assistance of counsel de novo. defendant was See State v. Martin, 64 N.C. App. 180, 181, 306 S.E.2d 851, 852 (1983). B. Analysis In his next assignment of error, Defendant contends that he received ineffective assistance of counsel at trial, purportedly because his counsel made concessions of Defendant s guilt during closing arguments without Defendant's express consent. Specifically, during closing arguments, Defendant s counsel told the jury: You have heard my client basically admit that while pointing the gun at someone, he basically committed a crime: Assault by pointing a gun. Pointing the gun with what was some sort of guilt in mind, some intent to use the gun, that can be a crime: Assault with a deadly weapon, intent to kill. So if this guilty mind points a weapon at someone, assault with a deadly weapon, intent to kill. But, again, what are we here for? Attempted first-degree murder of Timothy Lynch. And you're thinking to yourself, those of you who have worked with attorneys, those lawyers need to split -7hairs. Mr. Green was talking about client splitting hairs; maybe I am. my But, ladies and gentlemen, this is a case about details. Hopefully, you saw that with the questions that I was asking witnesses. Attempted first-degree murder, intent to kill, pointing the weapon at Timothy Lynch. This is mere preparation; moving the slide. Moving the slide is mere preparation. The Judge will instruct you on that; mere preparation is not enough. Intent to kill. [T]here has to -- what is that? Mr. Green argued to you in his opening statement and so did I is the pulling of the trigger. That is what this case is about. Guilty mind, intent to kill Timothy Lynch by my client pointing the weapon at Timothy Lynch. Not moving the slide; pointing, clicking the trigger. That is what this case is about, amd [sic] that is also what you'll need to decide if that has been proven beyond a reasonable doubt. In State v. Harbison, 315 N.C. 175, 180, 337 S.E.2d 504, 507 08 (1985), cert. denied, 476 U.S. 1123, 90 L.Ed.2d 672 (1986), [the North Carolina Supreme Court] held that a defendant receives ineffective assistance of counsel per se when counsel concedes the defendant's guilt to the offense or a lesser- included offense without the defendant's consent. State v. Berry, 356 N.C. 490, 512, 573 S.E.2d 132, 147 (2002). Admission by defense counsel of an element of a crime charged, while still maintaining the defendant s innocence, does not necessarily -8amount to a Harbison error. See State v. Fisher, 318 N.C. 512, 533, 350 S.E.2d 334, 346 (1986) ( Although counsel stated [at closing that] there was malice, he did not admit guilt . . . . [Therefore,] this case does not fall with the Harbison line of cases[.] ). In the case before us, Defendant s trial counsel did state that my client basically admit[ed] that while pointing the gun at someone, he basically committed a crime: a gun. Notably, at trial, Defendant Assault by pointing testified and openly admitted to pointing a gun at the crowd with Mr. Lynch in order to get them to disperse. Although Defendant s counsel used the singular someone to describe those at whom Defendant pointed a gun, dispersing the crowd was the only time Defendant admitted to pointing the gun at anyone. Indeed, throughout direct and cross-examination, Defendant consistently denied that he pointed the gun at Mr. Lynch after the crowd dispersed, despite the State s repeated attempts to elicit such an admission. Defendant was not charged with the offense of assault by pointing a first-degree gun at murder the of crowd; Mr. he Lynch was charged after the with crowd attempted dispersed. Even if we were to assume arguendo that Mr. Lynch was in fact the someone referred to by Defendant s trial counsel, assault -9by pointing a gun is not a lesser-included offense of attempted first-degree murder. Cf. State v. Dickens, 162 N.C. App. 632, 638, 592 S.E.2d 567, 572 (2004) (holding that [a]ssault by pointing a gun is not a lesser-included offense of assault with a firearm on a law enforcement officer because the latter offense does not include the element of pointing a gun at a person. (emphasis added)). Because this purported admission by Defendant s counsel did not refer to either the crime charged or to a lesser-included offense, counsel s statements in this case fall outside of Harbison. At best, an admission by Defendant s trial counsel that Defendant pointed a gun at Mr. Lynch, while still maintaining Defendant s innocence of attempted first- degree murder, would appear to place counsel s statements within the rule in Fisher, and thus still outside of Harbison. See Fisher at 533, 350 S.E.2d at 346 (finding no Harbison error where degree the defendant s murder at trial counsel but admitted still an element maintained the of first- defendant s innocence). Also, the declaration by Defendant s trial counsel that [p]ointing the gun with what was some sort of guilt in mind, some intent to use the gun, that can be a crime: deadly weapon, intent to kill was merely Assault with a a hypothetical -10statement, not an admission. described Attempted the crime with first-degree (emphasis added). which murder, Defendant intent to had kill, Next, counsel been charged: pointing the weapon at Timothy Lynch and then contrasted this to Defendant s theory of the case that Defendant s acts during the incident with Mr. Lynch amounted to mere preparation; moving the slide. Moving the slide is mere preparation. Here, too, Defendant himself testified that he tried to move the slide on the gun after pointing it at the crowd. Defendant s point: counsel concluded by highlighting the key Guilty mind, intent to kill Timothy Lynch by my client pointing the weapon at Timothy Lynch. Not moving the slide; [but] pointing, clicking the trigger. . . . [Y]ou'll need to decide if that has been proven beyond a reasonable doubt. In total, and despite Defendant s contention that his trial counsel admitted Defendant pointed a gun at Timothy Lynch with the intent to kill him, we find no such admission in the record before us. Although Defendant s counsel s statements were less than clear at closing, none of his statements amount to Harbison error. We find no other basis for supporting Defendant s claim of ineffective assistance of counsel. -11Judgment remanded for arrested on attempted sentencing and entry voluntary manslaughter. Judges BRYANT and STROUD concur. of first-degree judgment on murder; attempted

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