Opinion
No. COA15-555
04-19-2016
STATE OF NORTH CAROLINA v. QUIVONTE DARNELL BLOUNT
Attorney General Roy Cooper, by Assistant Attorney General Shawn Maier, for the State. Richard Croutharmel, for defendant-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. Mecklenburg County, No. 13 CRS 214818 Appeal by defendant from judgment entered 14 May 2014 by Judge Richard D. Boner in Mecklenburg County Superior Court. Heard in the Court of Appeals 20 October 2015. Attorney General Roy Cooper, by Assistant Attorney General Shawn Maier, for the State. Richard Croutharmel, for defendant-appellant. CALABRIA, Judge.
Quivonte Darnell Blount ("defendant") appeals from a judgment entered upon a jury verdict finding him guilty of robbery with a firearm. We conclude defendant received a fair trial free from reversible error.
I. Background
Around midnight of 12 April 2013, Mr. Delfino Lopez ("Lopez") drove home from work and parked his vehicle in a parking space outside his apartment. Upon exiting his vehicle, two men approached him from behind. When Lopez turned around, one man standing about one foot away cocked and pointed a silver handgun at him. Lopez froze. The other man reached into his pockets and took his mobile phone, car and house keys, and $40 in cash. After being robbed at gunpoint, Lopez observed both men sprint away, and then he ran into his apartment. While Lopez watched from his kitchen window, the two men returned to the parking lot and opened his car door. In response, Lopez and his wife ran outside, attempting to frighten the men away. The two men sprinted away in opposite directions. Lopez chased one man, later identified as defendant, but quickly lost sight of him in some trees. After hearing a noise, Lopez observed defendant stand up about thirty feet away, brandish a silver handgun, and point it at him. Lopez left, returned home, and his wife called the Charlotte-Mecklenburg Police Department ("CMPD").
A short time later, Officer Joseph Wilson of the CMPD ("Officer Wilson") and his partner arrived to interview the Lopezes about the incident. The officers broadcast a basic description of the suspects to other officers in the area. Officer Stephen Altman of the CMPD ("Officer Altman") heard radio traffic indicating that an officer was chasing two suspects on foot near a church. Officer Altman drove toward the church and parked his vehicle in the church parking lot. After Officer Altman and his canine unit, Ronnie, exited his patrol car, he observed one suspect emerge from the shadows of the church and sprint past his vehicle. After chasing and providing a verbal warning for the suspect to stop, Officer Altman deployed Ronnie. Ronnie caught and subdued the suspect within seconds.
After the suspect was apprehended, Officer Altman searched the area where the suspect emerged and found a black t-shirt, an unloaded silver handgun, and a set of keys later identified as Lopez's. Officer Altman did not find any gun magazines or bullets. Crime Scene Investigator Shari Walton ("Walton") arrived at the church to process the evidence and noted that the handgun was unloaded and did not contain a magazine. A few hours later, after defendant left the hospital from being treated for wounds inflicted by Ronnie, Detective Adrian Washington ("Detective Washington") interviewed defendant. During the interview, defendant admitted to robbing Lopez but maintained that the handgun used did not contain a magazine or bullets.
On 29 April 2013, a Mecklenburg County grand jury indicted defendant on charges of robbery with a dangerous weapon and assault by pointing a gun. The case was heard in Mecklenburg County Superior Court before the Honorable Richard D. Boner. At the close of the State's evidence, the State voluntarily dismissed the charge of assault by pointing a gun. Defendant did not present any evidence but moved to dismiss the robbery with a dangerous weapon charge for insufficient evidence, which the trial court denied.
During the charge conference, the parties assented to the trial court's decision to instruct on robbery with a firearm and on the lesser offense of common law robbery, in accordance with the North Carolina Pattern Jury Instructions. During the jury charge, the trial judge instructed on robbery with a firearm in accordance with North Carolina Pattern Jury Instruction 217.20 but omitted the following bolded clause:
Sixth, that the defendant had a firearm in his possession at the time he obtained the property (or that it reasonably appeared to the victim that a firearm was being used, in which case you may infer that the said instrument was what the defendant's conduct represented it to be).[]
[S]eventh, that the defendant obtained the property by endangering or threatening the life of that person with a firearm.
After twenty minutes of deliberation, the jury sent out a note requesting clarification on its instruction. The note read as follows:
Please allow us to see laws/charges in writing.
1. Guilty of robbery with a firearm vs.
2. Guilty of common law robbery
clarification, more commentary of distinction of last point
if gun does not have to be loaded to be 'Robbery with a firearm.'
After an exchange with trial counsel, the trial court decided to repeat the pattern jury instructions for the two offenses and then provide the jury an additional instruction as to the permissive inference articulated by our Supreme Court in State v. Allen, 317 N.C. 119, 126, 343 S.E.2d 893, 897-98 (1986). This Allen rule was triggered because there was some evidence that the handgun was unloaded during the robbery, which would render it incapable, in fact, of endangering Lopez's life. This rule permitted the jury to infer that the weapon was what defendant's conduct represented it to be—an operable firearm capable of endangering Lopez's life.
About one hour later, on 14 May 2013, the jury returned a verdict finding defendant guilty of robbery with a firearm. The trial court sentenced defendant to a minimum of 60 months and a maximum of 84 months to be served in the North Carolina Division of Adult Correction. Defendant appeals.
II. Analysis
A. Additional Instruction on Allen's Permissive Inference
Defendant contends the trial court abused its discretion by placing undue prominence on the permissive inference articulated in Allen. Specifically, defendant asserts that the trial court's additional instruction misled the jury into believing that they could find defendant guilty of robbery with a firearm, even if they believed the firearm was unloaded. We disagree.
The trial court has discretionary authority, after instructing the jury, to provide an additional instruction in response to a jury deliberation question. N.C. Gen. Stat. § 15A-1234(a)(1) (2015) ("After the jury retires for deliberation, the judge may give appropriate additional instructions to . . . [r]espond to an inquiry of the jury made in open court[.]"); see also State v. Smith, 194 N.C. App. 120, 126, 669 S.E.2d 8, 12 (2008) (citation omitted), disc. review denied, 363 N.C. 661, 687 S.E.2d 293 (2009).
[T]he trial court is in the best position to determine whether further additional instruction will aid or confuse the jury in its deliberations, or if further instruction will prevent or cause in itself an undue emphasis being placed on a particular portion of the court's instructions.State v. Prevette, 317 N.C. 148, 164, 345 S.E.2d 159, 169 (1986). Accordingly, this Court reviews a trial court's decision to include an additional instruction for abuse of discretion. Id.
Furthermore, this Court considers jury instructions
contextually and in [their] entirety. The charge will be held to be sufficient if it presents the law of the case in such a manner as to leave no reasonable cause to believe the jury was misled or misinformed. Under such a standard of review, it is not enough for the appealing party to show that error occurred in the jury instructions; rather, it must be demonstrated that such error was likely, in light of the entire charge, to mislead the jury.State v. Ballard, 193 N.C. App. 551, 559, 668 S.E.2d 78, 83 (2008) (citation omitted). Even if an instruction could have been stated more accurately, "every poorly stated instruction does not result in such prejudice as to require a new trial." State v. Harris, 290 N.C. 681, 699, 228 S.E.2d 437, 447 (1976).
In State v. Allen, 317 N.C. 119, 124-25, 343 S.E.2d 893, 897 (1986), our Supreme Court articulated the following rules when instructing on robbery with a firearm or dangerous weapon:
(1) When a robbery is committed with what appeared to the victim to be a firearm or other dangerous weapon capable of endangering or threatening the life of the victim and there is no evidence to the contrary, there is a mandatory presumption that the weapon was as it appeared to the victim to be. (2) If there is some evidence that the implement used was not a firearm or other dangerous weapon which could have threatened or endangered the life of the victim, the mandatory presumption disappears leaving only a permissive inference, which permits but does not require the jury to infer that the instrument used was in fact a firearm or other dangerous weapon whereby the victim's life was endangered or threatened. (3) If all the evidence shows the instrument could not have been a firearm or other dangerous weapon capable of threatening or endangering the life of the victim, the armed robbery charge should not be submitted to the jury.Id. (citing State v. Joyner, 312 N.C. 779, 324 S.E.2d 841 (1985)).
In the instant case, shortly after the robbery occurred, the silver handgun was recovered unloaded and without a magazine. The officers who searched the crime scene found the handgun but were unable to locate any bullets or magazines associated with it. In addition, when defendant confessed to robbing Lopez hours later, he stated that the handgun used during the robbery was unloaded and had no magazine. Thus some evidence was presented that the firearm was unloaded, which, if true, would render it incapable, in fact, of endangering Lopez's life. The trial judge properly determined Allen's second rule applied: that the jury was permitted, but not required, to infer that the firearm was what defendant's conduct represented it to be, which was an operable firearm. Additionally, because of this evidence, the trial judge properly submitted to the jury the lesser charge of common law robbery.
During its deliberations, the jury submitted a written request to clarify the following issue: "[I]f gun does not have to be loaded to be 'Robbery with a firearm.' " After consulting the parties, the trial court provided the following additional instruction (emphasis added) to address the jury's question:
Now you asked--let me make sure I understand the question. Does the gun have to be loaded to be robbery with a firearm. The State bears the burden . . . of proving beyond a reasonable doubt that . . . the victim's life was threatened or endangered by the use of the firearm, and of necessity, that would require the State to prove that, in fact, the weapon . . . was capable of endangering the life of the victim.
Now, under our law, if it appeared to the victim that an instrument being used was a firearm or an instrument capable of inflicting a life-threatening injury, you can infer from that evidence that the weapon was a firearm capable of inflicting a life-threatening injury, but you're not required to. That's just an inference you draw from the evidence. But ordinarily it's your determination whether the State has proven beyond a reasonable doubt that on the date in question the defendant threatened . . . the life or endangered the life of Mr. Lopez with a firearm.
Does that answer your question? All right. You may resume your deliberations.
Defendant contends this instruction placed undue prominence on the Allen permissive inference, which misled the jury into believing that they could find defendant guilty of robbery with a firearm, even if the jury found the handgun unloaded. We disagree.
This Court's decision in State v. Bell, 227 N.C. App. 339, 741 S.E.2d 919, disc. review denied, 367 N.C. 252, 749 S.E.2d 861 (2013), is instructive. In that case, we addressed whether a trial court erred when it instructed the jury on Allen's permissive inference. Id. at 345, 741 S.E.2d at 923-24. The trial judge provided the following additional instruction:
Now, members of the jury, a robbery victim; that is, one who is a victim of a robbery—more particularly an armed robbery—should not have to force the issue of whether the instrument being used actually is loaded and can shoot a bullet. In an armed robbery case, the jury may conclude that the weapon is what it appeared to the victim to be—a loaded gun. In the absence of any evidence to the contrary if, however, there is any evidence that weapon was, in fact, not what it appeared to be; that is, a loaded gun to the victim, the jury must determine what, in fact, the instrument was. It is for the jury to determine the nature of the weapon and how it was used, and that you could, but you are not required, to infer from the appearance of the instrument to the victim or alleged victim that it was a firearm or otherwise dangerous weapon[,] . . . or that it reasonably appeared to the alleged victim in this case . . . that a dangerous weapon was being used, in which case you may infer—you are not required to do but you may infer that the instrument was what the defendant's conduct represented it to be, otherwise, the dangerous weapon is a weapon that is likely to cause death or serious bodily injury[.]Id. at 345-46, 741 S.E.2d at 924 (emphasis added). The defendant contended that the trial court erred by adding the word "otherwise" to the instructions. According to the defendant, the instruction "allowed the jury to ignore the overwhelming evidence that the gun was unloaded" and the judge "presented the definition of dangerous weapon as if it were optional." Id. at 346, 741 S.E.2d at 924. This Court disagreed. Under a de novo standard of review, this Court explained that "[t]he trial court plainly stated that it was 'for the jury to determine' whether the firearm was or was not a dangerous weapon" and held that in viewing the instructions in their entirety, "there is 'no reasonable cause to believe the jury was misled or misinformed.' " Id. at 344, 741 S.E.2d at 924 (citing Ballard, 193 N.C. App. at 559, 668 S.E.2d at 83).
In the instant case, the trial court properly instructed the jury that it may infer that the firearm was capable of inflicting a life-threatening injury, which would imply the jury found the firearm was operable. Similar to Bell, the trial court plainly stated it was for the jury to determine whether the firearm was capable of inflicting a life-threatening injury. The trial court was best situated to determine, as it did, that an additional instruction would aid the jury. Although the court's instruction focused in part on Lopez's subjective belief the firearm was operable, it did so in the context of explaining the permissive inference. The trial court explicitly stated that it was for the jury to determine from the evidence by stating that they "can . . . but [were] not required to" infer from the evidence that the firearm was capable of inflicting a life- threatening injury. Furthermore, the trial court reemphasized: "That's just an inference you draw from the evidence." This additional instruction, as a whole, mirrors in substance the language employed by the Allen Court. See Allen, 317 N.C. at 126, 343 S.E.2d at 897 ("The jury should have been instructed that they could, but were not required to, infer from the instrument's appearance to the victim that it was a firearm or other dangerous weapon."). In addition, the transcript reflects that the trial judge received clarification from the jury that his additional instruction answered the jury's question.
Moreover, the trial court emphasized and then repeated that the State bore the burden of proving beyond a reasonable doubt that, "in fact, the weapon . . . was capable of endangering" Lopez's life. The trial court correctly instructed the jury that in order to find defendant guilty of robbery with a firearm, it must find that defendant "obtained the property by endangering or threatening the life of that person with a firearm." Even if the trial court could have answered the issue more directly, "[w]e assume, as our system for administration of justice requires, that the jurors in this case were possessed of sufficient character and intelligence to understand and comply with this instruction by the court." State v. Montgomery, 291 N.C. 235, 244, 229 S.E.2d 904, 909 (1976) (citation omitted).
Considering the initial charge, the reinstruction, and this additional instruction through the lens that trial courts are best situated to determine whether an additional instruction will aid or confuse the jury, or whether an instruction might place undue prominence on any particular portion of the charge, we conclude that the trial court did not abuse its discretion or mislead the jury when it responded to the jury's question by providing this additional instruction. Therefore, we overrule defendant's challenge.
B. Repeating Instruction Rather Than Clarifying Difference
Defendant next argues that, despite the instructions on the offenses of robbery with a firearm and common law robbery being stated in accordance with the pattern instructions, the trial judge "further confused the jurors by allowing them to convict for the lesser-included offense of common law robbery without clearly delineating the difference between robbery with a firearm and common law robbery." We disagree.
" 'Pattern' jury instructions have existed for years, compiled as trial court judges individually developed effective, appeals-tested instructions and informally shared them with each other." State v. Walston, 367 N.C. 721, 730, 766 S.E.2d 312, 318 (2014) (citing N.C.P.I.—Crim. Intro. 3-4 (2014)). Although "the pattern instructions have neither the force nor the effect of law, . . . [our appellate courts] have often approved of jury instructions that are consistent with the pattern instructions[.]" Id. at 731, 766 S.E.2d at 318-19 (citation and quotation marks omitted). "The trial court's decision whether to repeat previously given instructions to the jury is reviewed for abuse of discretion." Smith, 194 N.C. App. at 126, 669 S.E.2d at 13 (citation omitted).
In the instant case, the trial court's instruction and reinstruction on the offenses of robbery with a firearm and common law robbery were stated separately and distinctly and in accordance with the pattern instructions. See N.C.P.I.—Crim. 217.20 and Crim. 217.30 (2015). The trial judge did not abuse its discretion when it responded to the jury's request for clarification between the two offenses by repeating the instructions in accordance with the pattern instructions. See, e.g., Carrington v. Emory, 179 N.C. App. 827, 829, 635 S.E.2d 532, 534 (2006) ("Jury instructions in accord with a previously approved pattern jury instruction provide the jury with an understandable explanation of the law.") (citing State v. Anthony, 354 N.C. 372, 395, 555 S.E.2d 557, 575 (2001)). Once again, "[w]e assume, as our system for administration of justice requires, that the jurors in this case were possessed of sufficient character and intelligence to understand and comply with this instruction by the court." Montgomery, 291 N.C. at 244, 229 S.E.2d at 909 (citation omitted). Therefore, we overrule defendant's challenge.
C. Use of "Firearm" Without Reference to it Being Life-threatening
Defendant contends that the trial judge "erred in his initial jury instruction by using the term 'firearm' without any reference to whether the firearm was still life-threatening, even if unloaded." According to defendant, this "created a presumption that a firearm is per se dangerous within the meaning of N.C. Gen. Stat. § 14-87." However, defendant has failed to cite any legal authority supporting this position, which constitutes abandonment of the argument. State v. Velazquez-Perez, 233 N.C. App. 585, 595, 756 S.E.2d 869, 876 ("Failure to cite to supporting authority is a violation of Rule 28(b)(6) of the North Carolina Rules of Appellate Procedure, and constitutes abandonment of this argument.") (citing N.C.R. App. P. 28(b)(6)), appeal dismissed, disc. review denied, 367 N.C. 509, 758 S.E.2d 881 (2014).
Furthermore, defendant did not properly preserve this issue at trial. See N.C. R. App. P. 10(a)(2) ("A party may not make any portion of the jury charge or omission therefrom the basis of an issue presented on appeal unless the party objects thereto before the jury retires to consider its verdict[.]"). In this case, although trial counsel did request that the trial court define "dangerous weapon," she assented to the trial court's use of "firearm" rather than "dangerous weapon" during the charge conference and did not object to its use afterward. "The defendant will not be heard to complain on appeal when the trial court has instructed adequately on the law and in a manner requested by the defendant." State v. Wilkinson, 344 N.C. 198, 236, 474 S.E.2d 375, 396 (1996) (dismissing the defendant's jury instruction challenge as invited error, "because, as the transcript reveal[ed], defendant consented to the manner in which the trial court gave the instructions to the jury") (citation omitted). Therefore, we overrule defendant's challenge.
D. Requested Reinstruction
Defendant appears to contend that the trial court abused its discretion by not providing an instruction that "if the firearm was 'incapable of discharging [a round],' it was not life threatening." We disagree.
"Whether the trial court instructs using the exact language requested by counsel is a matter within its discretion and will not be overturned absent a showing of abuse of discretion." State v. Herring, 322 N.C. 733, 742, 370 S.E.2d 363, 369 (1988). "The trial court . . . is not required to give a requested instruction in the exact language of the request, so long as the instruction is given in substance." State v. Williams, 136 N.C. App. 218, 221, 523 S.E.2d 428, 431 (1999) (citation omitted). Furthermore, "[t]he trial court is not required to frame its instructions with any greater particularity than is necessary to enable the jury to understand and apply the law to the evidence bearing upon the elements of the crime charged." State v. Weddington, 329 N.C. 202, 210, 404 S.E.2d 671, 677 (1991) (citation omitted).
After the jury submitted its deliberation question in writing, the following exchange occurred:
[DEFENSE COUNSEL]: Your Honor, I just want to ask for, I guess, further clarification. I believe the jury's question was if a gun is unloaded, whether or not it's dangerous. So I think that what makes a weapon dangerous should be defined for them. And in that same case, State v. Allen, that no matter what the instrument appears to be if, in fact, it is a cap pistol or a toy pistol or some instrument, it is incapable to threaten or endanger a life, it cannot be a dangerous weapon.
COURT: The thing at the time this guy was robbed, whether he -- there was an operable firearm being used, that's what they've got to determine, and that's for the jury to decide.
[DEFENSE COUNSEL]: But I believe the question was whether or not it was dangerous. I think that should be defined for them.
COURT: A gun does not have to be loaded to be robbery with a firearm. If they ask can you have robbery with a firearm if the gun is not loaded. I can tell them, and I'll follow up with it, that the State bears the burden of proof of proving beyond a reasonable doubt that, in fact, his life was being endangered or threatened with a firearm, and that - - to prove the firearm was capable of discharging a bullet.
[DEFENSE COUNSEL]: Thank you.
After the trial court instructed the jury on Allen's permissive inference, the following exchange occurred:
COURT: Any objection or additional instructions?
[DEFENSE COUNSEL]: Your Honor, I believe that you stated you would say that if it was incapable of discharging, then it could not threaten the life of the victim.
COURT: I think I gave that, in essence. What I said was if the weapon is capable of inflicting a life-threatening injury.
[DEFENSE COUNSEL]: Thank you.
In this case, the questions asked by the jury indicated a confusion about whether an unloaded gun could be a dangerous weapon, and the trial court properly emphasized multiple times that the weapon must have the capability to inflict a life- threatening injury by using phrases such as "capable of endangering the life of the victim" and "threatened the life . . . or endangered the life of Mr. Lopez." Although the instruction was not stated exactly as the trial court indicated and could have been clearer, the trial court stated in substance that the firearm must be one capable of inflicting a life-threatening injury, which, by implication, is one capable of discharging a bullet. Therefore, we overrule defendant's challenge.
III. Conclusion
The trial court did not abuse its discretion when it reinstructed the jury in response to the jury's deliberation questions. The trial court's additional instruction on Allen's permissive inference did not mislead the jury into believing it could find defendant guilty of robbery with a firearm, even if the jury believed the firearm was, in fact, unloaded. The trial court's reinstruction on the pattern jury instructions for robbery with a firearm and common law robbery did not confuse the jury by failing to clarify the difference between the two offenses. Defendant's argument that the trial court's use of the term "firearm," without reference to whether it could be life-threatening if unloaded, created a presumption that a firearm is per se dangerous within the robbery with a firearm statute, is not properly before us. The trial court did not reversibly err by omitting the statement that the State must prove the firearm was capable of discharging a bullet, when it instructed this in substance by stating multiple times the State must prove the weapon was capable of inflicting a life- threatening injury. There being no abuse of discretion by the trial judge's reinstruction or additional instruction, we conclude defendant received a fair trial free from reversible error.
NO REVERSIBLE ERROR.
Judges BRYANT and ZACHARY concur.
Report per Rule 30(e).