State v. Banner
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-563 NORTH CAROLINA COURT OF APPEALS Filed: 15 April 2014 STATE OF NORTH CAROLINA v. Mecklenburg County Nos. 11 CRS 233836-37 MONTREALL LAVELL BANNER Defendant. Appeal by defendant from judgment entered 9 November 2012 by Judge Yvonne Mims Evans in Mecklenburg County Superior Court. Heard in the Court of Appeals 10 October 2013. Roy Cooper, Attorney General, by Francis W. Crawley, Special Deputy Attorney General, and Jennie Wilhelm Hauser, Special Deputy Attorney General, for the State. Glenn Gerding for defendant-appellant. DAVIS, Judge. Defendant from his Montreall convictions for Lavell Banner first-degree robbery with a dangerous weapon. ( Defendant ) murder and appeals attempted His primary contentions on appeal are that (1) the trial court erred in failing to instruct the jury concerning the defense of withdrawal; and (2) his trial counsel s failure to request a withdrawal instruction -2constituted ineffective assistance of counsel. After careful review, we conclude that Defendant received a fair trial free from error. Factual Background The State s following evidence facts: ( Boetius ), On Mr. at 23 Jeremy trial July Jackman tended 2011, Ms. to establish Shenelle ( Jackman ), Ms. the Boetius Shanika Franklin ( Franklin ), and Mr. Deone Varra ( Varra ) decided to rob Isaac Rodriguez ( Rodriguez ) at his room at the Brookwood Inn ( the Inn ). Varra called Defendant and told Defendant to meet him at the Inn. Varra, Boetius, Once at the Inn, Defendant met up with Jackman, and Franklin outside Varra s room, where Varra asked Defendant to participate in the robbery. The group ultimately decided upon a plan in which Boetius and Franklin would knock on Rodriguez s door, gain entry, and distract Rodriguez while Defendant, Jackman, and Varra listened in on what transpired in the room by way of a cell phone set on speakerphone and hidden on Boetius s person. When they determined that Rodriguez was distracted, Defendant and Jackman would then enter the room and hold Rodriguez at gunpoint so that they could do the robbery. Both Defendant and Jackman were armed with firearms. Shortly invited in after by knocking Rodriguez, on Boetius Rodriguez s and door Franklin and being changed their -3minds about participating in the robbery. After turning off the concealed cell phone, they informed Rodriguez that he was about to be robbed. Franklin then left the motel room and Boetius began to follow her. While Boetius was still in the doorway, Defendant and Jackman came down the hallway and pushed past her into Rodriguez s room. Boetius then took off running. As she was running away, Boetius heard a single gunshot. Shortly thereafter, Jackman called Boetius on her cellphone and told her to meet him in the back of the Inn parking lot. Boetius complied and went to the back of the lot where she met up with Defendant and Jackman. She observed Jackman had wrapped up his gun in his T-shirt. Jackman demanded Boetius go back up to Rodriguez s room and take the money and the drugs. As Boetius began to walk up the stairs to Rodriguez s room, however, she, Jackman, and Defendant saw a police car turning into the Inn parking lot. Upon seeing the police car, Jackman ran from the lot and was eventually caught and arrested by Officer Elvir Charlotte-Mecklenburg Police Department. Redzepovic of the Meanwhile, Boetius ran back to Varra s room where she was joined by Defendant, Varra, and Franklin. Defendant and Varra left the room briefly and, upon returning, told her that Rodriguez was dead. Defendant and Boetius then decided to leave the scene of the crime by climbing over a wall located at the back of the Inn -4parking lot. Before climbing the wall, Defendant put both his gun and Jackman s gun still wrapped in Jackman s T-shirt into Boetius s pocketbook. They then fled the area, proceeding to an apartment complex where they sat and waited on the curb until an unknown individual who was driving by asked them if they wanted a ride. Defendant and Boetius got into the car, and the individual began driving. While in the car, Defendant took his and Jackman s guns from Boetius s pocketbook. Defendant was still in possession of the firearms when he was dropped off per his instructions at [t]he Plaza across the street from the BP. Later Department that same received sell a firearm. day, the information Charlotte-Mecklenburg that Defendant was Police trying to Detective Terrence Gerald ( Detective Gerald ) of the Charlotte-Mecklenburg Police Department, who was working undercover, arranged to meet Defendant in the parking lot of the Wal-Mart on Eastway Defendant. Drive, where he purchased the gun from The gun was later identified by Mr. Todd Nordhoff, a firearm and tool mark examiner with the Charlotte-Mecklenburg crime laboratory, as the gun that had been used to shoot and kill Rodriguez. arrested and Immediately taken to the after Law the sale, Enforcement Defendant Center to was be interviewed. After being read his Miranda rights and waiving them, Defendant, during the course of an interview with Detectives -5Todd Burkard ( Detective Burkard ) and J.A. Sterrett ( Detective Sterrett ), disclosed that he had been in Rodriguez s room either during or immediately after Rodriguez s murder. On 1 August 2011, Defendant was indicted on one count of first-degree murder and one count of attempted robbery with a dangerous weapon. A jury trial was held in Mecklenburg County Superior Court on 5 November 2012. Defendant testified in his own defense at trial. His testimony presented the following account of the events of 23 July 2011: Defendant met with Varra, Jackman, Franklin, and Boetius at the Inn, and the group ultimately decided to rob Rodriguez. Defendant s only role in the planned robbery was to take any drugs and money he found in Rodriguez s room while Jackman held up Rodriguez. Boetius s and Franklin s roles in the planned robbery were to distract Rodriguez, thereby enabling Defendant and Jackman to enter Rodriguez s room and catch him by surprise. As Defendant and Jackman were approaching Rodriguez s room and were roughly two feet away from the door, Defendant saw that Boetius was walking out of the room. Rodriguez s Because her departure from room was not part of the plan, Defendant real nervous and punked out. became Defendant further explained that [b]y punked out, I mean like I didn t follow out the plan, I gave up, got nervous. I wasn t down with it no more, I just -6kept walking. Without saying anything to Jackman who, according to Defendant, was already ahead of him and walking into Rodriguez s room abruptly or the turn other away conspirators, from the door located next to Rodriguez s room. Defendant and head stairs returning to Franklin. and Varra s down a to staircase As he was walking down the stairs, Defendant heard a single gunshot. remaining proceeded out into the room where he He then ran down the parking met up lot, with ultimately Boetius and Shortly thereafter, Jackman returned to Varra s room and informed Defendant, Boetius, and Franklin that he had shot Rodriguez in the heart and that Rodriguez was dead. Jackman then took the gun he had used to shoot Rodriguez and wrapped it in a pillowcase from Varra s room as well as the T-shirt Jackman had been wearing. Boetius s purse. Jackman placed the parcel in Defendant then fled over the back wall of the Inn parking lot with Boetius and eventually got a ride away from the scene in the minivan of a friend whom Boetius had called. While in the back of the minivan, Defendant admitted to taking Jackman s gun from Boetius s purse. Later that day, Defendant put the word out that he had a gun to sell. Defendant subsequently sold the gun to Detective Gerald. With regard Detectives Burkard and to his Sterrett, subsequent Defendant interrogation testified that by -7contrary to his statements during the recorded interrogation which was played for the jury at trial he had not been in Rodriguez s room at any point. been deliberately He further stated that he had untruthful with Detectives Burkard and Sterrett because he thought they would allow him to leave if he told them what he believed they wanted to hear. Defendant claimed that he would never have lied during his interrogation if he had been aware of the felony murder rule and the theory of acting in concert. Defendant was convicted of (1) felony murder; and (2) attempted robbery with a firearm. The trial court arrested judgment robbery on conviction Defendant s and attempted sentenced him to life with a imprisonment firearm with the possibility of parole after 25 years of incarceration for firstdegree felony murder. Defendant gave notice of appeal in open court. Analysis I. Instruction on Withdrawal Defendant s court erred in first failing defense of withdrawal. argument to on appeal instruct is the jury this issue only for plain error. 368 S.E.2d 613, the trial concerning the Defendant did not specifically request an instruction about withdrawal at trial. 380, that 616 Therefore, we review State v. Loftin, 322 N.C. 375, (1988) (holding that plain error -8standard of review is applied on appeal to unpreserved arguments concerning jury instructions). For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial. To show that an error was fundamental, a defendant must establish prejudice that, after examination of the entire record, the error had a probable impact on the jury's finding that the defendant was guilty. Moreover, because plain error is to be applied cautiously and only in the exceptional case, the error will often be one that seriously affects the fairness, integrity or public reputation of judicial proceedings. State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (internal citations, Furthermore, our quotation Supreme marks, Court has and brackets established omitted). that [a] prerequisite to our engaging in a plain error analysis is the determination that error at all. the instruction complained of constitutes State v. Torain, 316 N.C. 111, 116, 340 S.E.2d 465, 468, cert. denied, 479 U.S. 836, 93 L.Ed.2d 77 (1986). Therefore, we must first determine whether the trial court s omission of the withdrawal instruction was erroneous. During the jury charge, the trial court instructed the jury with respect to the attempted robbery with a dangerous weapon charge under a theory of acting in concert. instructed the jury on felony murder The trial court then predicated on the underlying felony of attempted robbery with a dangerous weapon. -9The doctrine of acting in concert provides that [i]f two persons join in a purpose to commit a crime, each of them, if actually or constructively present, is not only guilty as a principal if the other commits that particular crime, but he is also guilty of any other crime committed by the other in pursuance of the common purpose . . . or as a natural or probable consequence thereof. State v. Herring, 176 N.C. App. 395, 399, 626 S.E.2d 742, 745 (citation omitted), appeal dismissed and disc. review denied, 360 N.C. 651, 637 S.E.2d 183 (2006), cert. denied, 549 U.S. 1293, 167 L.Ed.2d 342 (2007). Thus, [t]he acting in concert doctrine allows a defendant acting with another person for a common purpose of committing some crime to be held guilty of a murder committed in the pursuit of that common plan even though the defendant did not personally commit the murder. State v. Roache, 358 N.C. 243, 306, 595 S.E.2d 381, 421 (2004). North Carolina law does recognize that it is possible for a defendant to withdraw from a criminal enterprise and thereby establish an affirmative defense to criminal liability. See State v. Wright, 210 N.C. App. 697, 700, 709 S.E.2d 471, 473-74 (2011) (explaining that [o]nce an individual has joined in a purpose to commit a crime, it is possible for him to withdraw under certain circumstances ). However, in order to actually withdraw from a criminal enterprise, a defendant must clearly manifest such an intention by plainly and unambiguously -10renouncing his participation in the crime to his accomplices. Id. Without such an express renunciation of the common plan or scheme, a defendant will be deemed to have remained an active participant in the criminal enterprise under the theory of acting in concert. Where the perpetration of a felony has been entered on, one who had aided or encouraged its commission cannot escape criminal responsibility by quietly withdrawing from the scene. The influence and effect of his aiding or encouraging continues until he renounces the common purpose and makes it plain to the others that he has done so and that he does not intend to participate further. State v. Spears, 268 N.C. 303, 310, 150 S.E.2d 499, 504 (1966); see also State v. Wilson, 354 N.C. 493, 508, 556 S.E.2d 272, 282 (2001) ( Although Spears dealt with the law of aiding and abetting, we hold that for the purposes of acting in concert the above statement is equally applicable to withdrawal from a common plan. ), overruled on other grounds by State v. Millsaps, 356 N.C. 556, 572 S.E.2d 767 (2002). Any withdrawal by a defendant may not be done silently in his own mind without any outward manifestation perpetrators. or communication to the other Wright, 210 N.C. App. at 700, 709 S.E.2d at 474. Defendant s testimony at trial tended to establish that he was present during at least some part of the discussion and planning of the robbery. Furthermore, Defendant testified that -11(1) he was walking with Jackman towards Rodriguez s room at the Inn for the purpose of robbing Rodriguez; (2) after Jackman had pushed past him into Rodriguez s room with his gun drawn, Defendant punked out meaning that he no longer wished to participate in the robbery; (3) at that point, he turned and walked down the stairwell by Rodriguez s room without verbalizing or alerting Jackman or any of the others that he was abandoning the plan of robbing Rodriguez; (4) he heard a gunshot; (5) shortly thereafter, he met with Jackman, Franklin, and Boetius in Varra s room; (6) Jackman admitted that he had shot Rodriguez; (7) he fled the scene with Boetius; (8) he took the gun used to shoot Rodriguez out of Boetius s purse where it was hidden; and (9) he thereafter sold that same gun to Detective Gerald. Even if Defendant walked away from Rodriguez s room and down a flight accomplices Wright, of that we stairs, he was rejected he did not withdrawing the expressly from defendant s the inform robbery. argument that his In he communicated his withdrawal by physically leaving the scene and returning incident, to the holding getaway that vehicle the for defendant the remainder failed to of the verbally communicate any intent to withdraw to [the other perpetrators] when he returned to the vehicle and thus was not entitled to an instruction on withdrawal. Wright, 210 N.C. App. at 701, 709 -12S.E.2d at 474. Because We believe the same result is required here. Defendant did not expressly renounce his participation in the criminal enterprise, he failed to satisfy the prerequisites for a withdrawal instruction. The trial court s decision not to give such an instruction, therefore, did not constitute error much less plain error. Consequently, Defendant s argument with respect to this issue is overruled. II. Ineffective Assistance of Counsel Defendant s counsel s final failure argument to request on appeal an is that instruction his trial concerning withdrawal amounted to ineffective assistance of counsel. To prevail on a claim of ineffective assistance of counsel, a defendant must first show that his counsel's performance was deficient and then that counsel's deficient performance prejudiced his defense. Deficient performance may be established by showing that counsel's representation fell below an objective standard of reasonableness. Generally, to establish prejudice, a defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. State v. Rodelo, ___ N.C. App. ___, ___, 752 S.E.2d 766, 773 (2014) (internal citations and quotation marks omitted). As discussed above, the evidence Defendant presented at trial was legally insufficient to support a jury instruction concerning withdrawal. Consequently, the failure of Defendant s -13trial counsel to request such an instruction cannot logically support a claim of ineffective assistance of counsel. Conclusion For the reasons stated above, we conclude that Defendant received a fair trial free from error. NO ERROR. Judges HUNTER, JR. and ERVIN concur. Report per Rule 30(e).
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