Opinion
No. COA11–1272.
2012-04-3
STATE of North Carolina v. Fronta Lamont GILCHRIST.
Attorney General Roy Cooper, by Assistant Attorney General Philip A. Lehman and Assistant Attorney General Stuart M. (Jeb) Saunders, for the State. Parish & Cooke, by James R. Parish, for Defendant.
Appeal by Defendant from judgments entered 10 March 2011 by Judge James M. Webb in Guilford County Superior Court. Heard in the Court of Appeals 6 March 2012. Attorney General Roy Cooper, by Assistant Attorney General Philip A. Lehman and Assistant Attorney General Stuart M. (Jeb) Saunders, for the State. Parish & Cooke, by James R. Parish, for Defendant.
STEPHENS, Judge.
In connection with a robbery and shooting that occurred in Greensboro, North Carolina, Defendant Fronta Lamont Gilchrist was arrested and indicted on one count each of (1) first-degree murder, (2) attempted robbery with a dangerous weapon, and (3) conspiracy to commit robbery with a dangerous weapon. Gilchrist pled not guilty to the charges and was tried before a jury in Guilford County Superior Court, the Honorable James M. Webb presiding. The jury returned verdicts finding Gilchrist guilty of the charges, and the trial court sentenced Gilchrist to life imprisonment without parole for the first-degree murder conviction, 77 to 102 months imprisonment for the attempted robbery conviction, and 29 to 44 months for the conspiracy to commit robbery conviction. Gilchrist appeals.
On appeal, Gilchrist first argues that the trial court's denial of “the jury's request to look at transcripts of witness testimonies” was “prejudicial and plain error” because the trial court violated N.C. Gen.Stat. § 15A–1233(a) by “failing to exercise [its] discretion.” We disagree.
Section 15A–1233(a) vests the trial court with the discretion to grant a jury's request to review testimony or evidence after deliberations have begun. N.C. Gen.Stat. § 15A–1233(a) (2011). In this case, after the jurors began their deliberations, they returned to the courtroom and asked if they “were allowed to look at transcripts.” The trial court responded as follows:
With respect to that inquiry, Members of the Jury, it is your duty to recall and remember the evidence that you heard during the presentation of the evidence, and that is what you are to rely upon in sifting through the evidence and finding the facts and applying the law and rendering verdicts.
Thereupon, the trial court released the jury for the day with instructions to return the following morning to resume deliberations. The following colloquy then took place between the court and counsel:
THE COURT: All right. These proceedings are taking place outside of the hearing and presence of all the trial jurors.
Does either side have any requests or objections to the Court's response to the foreperson's inquiry about transcripts?
[PROSECUTOR]: Your Honor, I just ask that you state for the record that it was in the exercise of your discretion that you denied that, just to
THE COURT: Well, it was.
[PROSECUTOR]: I just want to make sure that's on the record.
THE COURT: Yes.
[DEFENSE COUNSEL]: Nothing for the defendant, Your Honor.
Initially we note that after the jurors were out of the courtroom, the trial court explicitly stated that the denial was made in its discretion. Furthermore, although the trial court at first gave no reason for its decision, our Supreme Court has previously held that when no reason is assigned by the court for a ruling that may be made as a matter of discretion, “the presumption on appeal is that the court made the ruling in the exercise of its discretion.” State v. Johnson, 346 N.C. 119, 126, 484 S.E.2d 372, 376 (1997) (quoting Brittain v. Piedmont Aviation, Inc., 254 N.C. 697, 703, 120 S.E.2d 72, 76 (1961)). Because Gilchrist has presented no evidence to rebut this presumption, and because the court confirmed that it ruled as a matter of discretion, we cannot conclude that the trial court failed to exercise its discretion in denying the jury's request. Gilchrist's argument is overruled.
Gilchrist next argues that the trial court erred in denying his motion to dismiss the first-degree murder charge because the “ ‘short-form’ indictment [did] not satisfy [Gilchrist's] rights to due process in that it fails to provide adequate notice of all the elements of the offense.” However, in raising this issue Gilchrist acknowledges (1) that his argument is contrary to our Supreme Court's decision in State v. Hunt, 357 N.C. 257, 582 S.E.2d 593,cert. denied,539 U.S. 985, 156 L.Ed.2d 702 (2003), and (2) that this Court is bound by that decision. Accordingly, Gilchrist's argument is overruled.
Gilchrist next argues that the trial court erred in denying his motion to dismiss the charge of conspiracy to commit robbery with a dangerous weapon. Specifically, Gilchrist contends that because the indictment alleged there were three other coconspirators, while the evidence at trial “tends to show only two,” there is a “fatal variance between the indictment and proof.” This argument is meritless. “In order for a variance [in an indictment] to warrant reversal, the variance must be material.” State v. Jones, 188 N .C.App. 562, 565, 655 S.E.2d 915, 917 (2008) (quoting State v. Norman, 149 N.C.App. 588, 594, 562 S.E.2d 453, 457 (2002)) (bracket in original). “A variance is not material, and is therefore not fatal, if it does not involve an essential element of the crime charged.” Id. To show conspiracy, the State must show an agreement (1) between two or more persons, (2) to do an unlawful act. State v. Gell, 351 N.C. 192, 209, 524 S.E.2d 332, 343,cert. denied, 531 U.S. 867, 148 L.Ed.2d 110 (2000). Our Supreme Court has previously held that an indictment for conspiracy, which must “contain all essential elements of the crime charged,” was sufficient where it alleged that the defendant “with others” committed the crime of conspiracy. State v. Gallimore, 272 N.C. 528, 533–34, 158 S.E.2d 505, 509–10 (1968); see also State v. Andrews, 12 N.C.App. 421, 426–27, 184 S.E.2d 69, 73 (1971) (following Gallimore and holding that indictments referring to the co-conspirators as “and others” are sufficient), cert. denied, 279 N.C. 728, 186 S.E.2d 176 (1971). The clear indication from the holding in Gallimore is that the names, or even the number, of coconspirators are not essential elements of the crime of conspiracy. Accordingly, we conclude that any alleged variance in the number and names of the co-conspirators in this case is immaterial and, thus, does not warrant reversal. See Jones, 188 N.C.App. at 565, 655 S.E.2d at 917. Gilchrist's argument is overruled.
Finally, Gilchrist argues, and the State concedes, that the trial court erroneously failed to arrest judgment for the conviction of attempted robbery with a dangerous weapon because Gilchrist “was convicted of first[-]degree murder only upon the theory that the murder was committed during the attempted commission of robbery with a dangerous weapon and acquitted on the basis of malice, premeditation and deliberation.” We agree. The verdict sheet shows that the jury convicted Gilchrist of first-degree murder under the felony murder rule and not on the basis of malice, premeditation, and deliberation. Further, the trial court instructed the jury that Gilchrist could be convicted under the felony murder rule only if the jury found that Gilchrist attempted to commit robbery with a firearm. Our Supreme Court has held that when a defendant is convicted of first-degree murder pursuant to the felony murder rule, and a verdict of guilty is also returned on the underlying felony, the conviction on the underlying felony “merges into the murder conviction, and any judgment imposed on the underlying felony must be arrested.” State v. Silhan, 302 N.C. 223, 261–62, 275 S.E.2d 450, 477 (1981), modified on other grounds by State v. Sanderson, 346 N.C. 669, 488 S.E.2d 133 (1997). In this case, because attempted robbery with a firearm was the underlying felony for Gilchrist's felony murder conviction, the judgment imposed on the attempted robbery with a firearm charge must be arrested.
Based on the foregoing, we conclude that Gilchrist received a fair trial, free of error. However, we hold that judgment for the conviction of attempted robbery with a dangerous weapon must be arrested.
NO ERROR at trial; JUDGMENT ARRESTED as to the conviction for attempted robbery with a dangerous weapon. Chief Judge MARTIN and Judge HUNTER, ROBERT C. concur.
Report per Rule 30(e).