Opinion
No. COA12–367.
2012-11-20
STATE of North Carolina v. Daniel FOSTER.
Attorney General Roy Cooper, by Special Deputy Attorney General Gary R. Govert, for the State. Rudolf Widenhouse and Fialko, by M. Gordon Widenhouse, Jr., for defendant-appellant.
Appeal by defendant from judgment entered 2 August 2011 by Judge Robert C. Ervin in Mecklenburg County Superior Court. Heard in the Court of Appeals 10 October 2012. Attorney General Roy Cooper, by Special Deputy Attorney General Gary R. Govert, for the State. Rudolf Widenhouse and Fialko, by M. Gordon Widenhouse, Jr., for defendant-appellant.
CALABRIA, Judge.
Daniel Foster (“defendant”) appeals from judgments entered upon jury verdicts finding him guilty of first degree murder, discharging a weapon into an occupied vehicle inflicting serious bodily injury, and possession of a firearm by a convicted felon. We find no error.
I. Background
On 2 July 2010, defendant visited Melissa Razor (“Lisa”) at her residence in Charlotte, North Carolina. At that time, a party was in progress and defendant, Lisa, and others were “drinking and doing cocaine.” Sometime after 2:00 a.m., Lawanda Razor (“Lawanda”) arrived at Lisa's residence. Lawanda was Lisa's sister and defendant's former girlfriend. After Lawanda's arrival, defendant “got all rowdy,” displayed a gun and threatened to kill Willie Richard Hopper, Jr. (“Hopper”). Lawanda had been corresponding with Hopper after ending her romantic relationship with defendant. Other individuals at the party were eventually able to diffuse the confrontation between defendant and Hopper.
Lawanda spent the night at Lisa's residence. The following morning, Hopper drove to Lisa's residence with two other men and waited outside in his vehicle. Lawanda went to speak to him. During their conversation, defendant approached them, and Hopper attempted to speak to defendant. Defendant ignored Hopper and walked to his own vehicle to get a cigarette. When defendant returned, he fired a gun multiple times into Hopper's vehicle. Hopper was struck in his heart and right lung and subsequently died from these injuries.
Immediately after the shooting, defendant fled to a motel in Albemarle, North Carolina. Later, defendant contacted the Albemarle Police Department (“APD”) and reported that he had “done something bad.” After officers of the APD arrested defendant, he was transferred to Mecklenburg County.
On 28 March 2011, defendant was indicted for first degree murder, discharging a firearm into a motor vehicle resulting in serious bodily injury, and possession of a firearm by a felon. Defendant pled not guilty, and beginning 1 August 2011, he was tried by a jury in Mecklenburg County Superior Court.
During jury selection, defendant objected to the State's use of peremptory challenges on the grounds that the State had arbitrarily excused an African–American woman based upon age discrimination. The trial court overruled defendant's age discrimination objection and the case proceeded to trial. Defendant testified on his own behalf at trial and admitted that he was trying to shoot Hopper when he fired into Hopper's vehicle.
During closing arguments, defense counsel attempted to establish that his client acted in self-defense. After the conclusion of closing arguments, the trial court instructed the jury on the charge of first degree murder under two theories, premeditation and deliberation and the felony murder rule. The jury returned a verdict finding defendant guilty under both theories. The jury also returned verdicts finding defendant guilty of the remaining offenses.
The trial court sentenced defendant to life imprisonment without parole for the offense of first degree murder, a minimum of 96 months to a maximum of 125 months for the offense of discharging a firearm into occupied property causing serious bodily injury, and a minimum of 17 months to a maximum of 21 months for the offense of possession of a firearm by a felon. The sentences were to be served consecutively in the North Carolina Department of Correction. Defendant appeals.
II. First Degree Murder
Defendant argues that his first degree murder conviction should be overturned because the trial court erred by including the felony murder rule on the verdict sheet for the jury to consider whether or not he was guilty. We disagree.
As an initial matter, we note that defendant fails to argue that the trial court erred by including premeditation and deliberation as a basis for first degree murder. Therefore, we must only determine if the trial court erred by submitting the instruction for felony murder.
This Court has held that where instructions are submitted to the jury for first degree murder based upon both felony murder and premeditation and deliberation, “any error in allowing a jury to consider felony murder does not require a new trial if the jury also found the defendant guilty based on premeditation and deliberation.” State v. Mays, 158 N.C.App. 563, 577, 582 S.E.2d 360, 369 (2003). In State v. Brewington, the defendant appealed his first degree murder conviction based on felony murder, but did not appeal the conviction for first degree murder on the basis of premeditation and deliberation. 195 N.C.App. 317, 320, 672 S.E.2d 94, 96 (2009). This Court held that there was no need to analyze whether the evidence supported the defendant's conviction for premeditation and deliberation when he had not appealed that issue. Id. at 321, 672 S.E.2d at 97.
Mays and Brewington establish that a defendant cannot prevail when appealing a first degree murder conviction based upon both theories unless he specifically appeals both the premeditation and deliberation theory and the felony murder theory of the conviction. Otherwise, the conviction will stand on either ground alone. Mays, 158 N.C.App. at 577, 582 S.E.2d at 369;Brewington, 195 N.C.App. at 320–21, 672 S.E.2d at 97.
In the instant case, the jury returned a verdict finding the defendant guilty of first degree murder based on premeditation and deliberation and under the felony murder rule. Since defendant makes no argument regarding his first degree murder conviction based on premeditation and deliberation, there is no need to determine if the evidence supported his first degree murder conviction on that basis and we will not disturb defendant's first degree murder conviction. See Brewington, 195 N.C.App. at 320–21, 672 S.E.2d at 97. This argument is overruled.
III. Batson Claim
Defendant contends that the trial court erred in ruling that the defense failed to establish a prima facie case of discrimination in jury selection under Batson v. Kentucky, 476 U.S. 79, 90 L.Ed.2d 69 (1986), after the State used one of its peremptory challenges. Defendant claims that Ruth Singleton (“Ms.Singleton”), a seventy-five-year-old African–American woman, was the sole African–American that was called into the jury box and that she was wrongly excluded from the jury. We disagree.
In the instant case, defendant objected to the State's peremptory challenge of Ms. Singleton during jury selection, claiming that the State wrongly dismissed her. The State indicated that the reason for dismissing Ms. Singleton was that “she didn't want to be here, she didn't want to serve.” The trial court concluded that defendant failed to make a prima facie showing of discrimination under Batson, and that even if defendant had met his burden, the State offered a nondiscriminatory reason for dismissing Ms. Singleton.
During jury selection, defendant's purported Batson challenge was based upon age discrimination:
Well, your Honor, I think with the questioning the only issue that was raised was her age. She is able to hear and comprehend from her answers and I think this is a Batson type of issue. She's the only person over age I would say age 65, I think she said age 75, and we would contend that age is—would be an impermissible ground to exclude somebody. As the Court is aware, race, gender, natural origin, those are factors that have previously been declared to be impermissible grounds for a juror to be excluded by anybody and we would contend that under the law and the norms today that age would also be one where if someone has full citizenship status that age alone should not be a ground to exclude somebody.
However, on appeal, defendant argues that Ms. Singleton was removed from the jury pool based on racial discrimination. “This Court will not consider arguments based upon matters not presented to or adjudicated by the trial court. Even alleged errors arising under the Constitution of the United States are waived if defendant does not raise them in the trial court.” State v. Haselden, 357 N.C. 1, 10, 577 S.E.2d 594, 600 (internal quotations and citations omitted). Therefore, defendant has failed to preserve a Batson challenge on the basis of racial discrimination for appellate review. See State v. Augustine, 359 N.C. 709, 721, 616 S.E.2d 515, 525 (2005) (“[W]here a theory argued on appeal was not raised before the trial court, the law does not permit parties to swap horses between courts in order to get a better mount in the [Appellate] Court.” (internal quotations and citation omitted)).
Furthermore, we note that the record indicates that, despite defendant's repeated contentions that Ms. Singleton was the “sole African American in the jury box[,]” two African–Americans served on defendant's jury, and defendant exercised one of his peremptory challenges to remove the only African–American male in the jury pool.
In addition, while the Courts of our State have not faced a Batson challenge alleging age discrimination, the federal courts have unanimously rejected such an interpretation. See United States v. Helmstetter, 479 F.3d 750, 754 (10th Cir.2007) (collecting cases); United States v. Jackson, 983 F.2d 757, 762 (7th Cir.1993)(“[N]o court has found a Fourteenth Amendment equal protection violation based upon the exclusion of a certain age group from the jury.”). This argument is overruled.
IV. Conclusion
Even if the trial court's instruction to the jury on felony murder was error, defendant's conviction for first degree murder stands because the jury was also instructed on, and returned a verdict finding defendant guilty of, first degree murder based on the theory of premeditation and deliberation. In addition, defendant failed to preserve his Batson challenge on the basis of racial discrimination during jury selection. Therefore, defendant waived appellate review of that issue.
No error. Judges HUNTER, Robert C. and HUNTER, JR., ROBERT N. concur.
Report per Rule 30(e).