Opinion
No. COA12–1191.
2013-05-7
STATE of North Carolina v. Keenan Daryl HARTE.
Attorney General Roy Cooper, by Special Deputy Attorney General Danielle Marquis Elder, for the State. Glover & Petersen, P.A., by Ann B. Petersen, for defendant-appellant.
Appeal by defendant from judgment entered 5 March 2012 by Judge Hugh B. Lewis in Mecklenburg County Superior Court. Heard in the Court of Appeals 27 March 2013. Attorney General Roy Cooper, by Special Deputy Attorney General Danielle Marquis Elder, for the State. Glover & Petersen, P.A., by Ann B. Petersen, for defendant-appellant.
HUNTER JR., ROBERT N., Judge.
Keenan Daryl Harte (“Defendant”) appeals from a judgment sentencing him to life imprisonment following a jury verdict convicting him of first-degree murder. On appeal, Defendant argues the trial court erred when it instructed the jury on flight, because “there was no evidence that Defendant took steps to avoid apprehension.” We find no error.
I. Factual & Procedural Background
Defendant was indicted for first-degree murder on 15 June 2009, and was tried during the 27 February 2012 Regular Criminal Session of Mecklenburg County Superior Court. The State's evidence tended to show the following. In the early morning hours of 30 May 2009, a man driving a white Dodge Charger parked near Club Crystal (“the Club”) in Charlotte, and was observed entering and exiting the Club twice by the Club's security guard, Woodson Harris (“Mr.Harris”). Thereafter, the man left the immediate vicinity of the Club and parked in an adjoining parking lot. Mr. Harris heard loud music coming from the man's car. Mr. Harris approached the driver of the car and asked him to turn down the music, which he did. At that time Mr. Harris noticed a group of four men and two women standing around talking in the parking lot near the white Charger.
One of the women, Heather Trent (“Ms.Trent”), was speaking with the driver of the white Charger, who identified himself as “Flea.” During their conversation, Flea gave Ms. Trent his cell phone number, which she entered into her phone. She did this by calling his phone number from her phone, thereby creating a record of the call. Flea also spoke with Ms. Trent's friend Adrianna Daniel (“Ms .Daniel”). Ms. Daniel and Flea spoke for approximately fifteen minutes. Before they finished talking, Flea took her cell phone and entered his number into the phone, thereby calling himself and creating a record of the call.
Shortly thereafter, Flea walked through the group of four men who had been with Ms. Daniel and Ms. Trent, including twenty-one year old Brandon Blakeney (“Mr.Blakeney”). As he walked through the group of men, Flea bumped into Mr. Blakeney. Mr. Blakeney confronted Flea, stating “you bumped me.” Flea appeared to ignore him, and walked towards his car. Mr. Blakeney again announced that he had been bumped. Flea then asked Mr. Blakeney, “What did you say?” and Mr. Blakeney reiterated that Flea had bumped into him. Mr. Blakeney's friend, Brentnol Bess (“Mr.Bess”), attempted to diffuse the situation by telling Flea not to pay his friend any attention.
Flea then emerged from his car with a revolver, walked up to Mr. Blakeney, and fired one shot into Mr. Blakeney's throat, killing him . After shooting Mr. Blakeney, Flea got back in his car and rapidly drove away, screeching his tires as he left the parking lot. Emergency services received a call for help at approximately 4:00 am on 30 May 2009.
The medical examiner determined that the bullet grazed Mr. Blakeney's chin and entered his neck, puncturing his larynx, esophagus, and spinal cord before exiting the back of his neck.
During the course of their investigation, detectives determined that the cell phone number Flea entered into the cell phones of Ms. Trent and Ms. Daniel belonged to Defendant's mother, Gweneth Blair (“Ms.Blair”), and that Defendant had represented this cell phone number as his own on at least one occasion. Their investigation also discovered that Ms. Blair owned a white Charger and that Defendant had been linked to a white Charger in another separate police report. The investigation further revealed that Defendant was known as “Flea.”
Additionally, witnesses at the scene of the shooting were interviewed and shown photo lineups which included Defendant's photograph. While neither Ms. Daniel nor Ms. Trent chose Defendant's photograph from the photo lineup, Mr. Bess was able to identify Defendant as the shooter.
During the early morning hours of 30 May 2009 Defendant's girlfriend, Dana Cloud (“Ms.Cloud”), repeatedly called and sent several text messages to Defendant, whom she knew as “Flea.” Ms. Cloud had been out to a bar that night and later went to an IHOP restaurant with a friend. Around 4:00 am, she asked Defendant to pick her up from her friend's house. Defendant agreed to do so, and shortly before sunrise, he arrived to pick Ms. Cloud up driving his mother's white Charger.
From there, Defendant and Ms. Cloud drove to Ms. Blair's home where Defendant entered the house briefly. Defendant parked the white Charger in the garage, and Defendant and Ms. Cloud left together in a black Nissan Maxima. Defendant and Ms. Cloud then drove to Salisbury, where they rented a hotel room in Ms. Cloud's name. Next, they went shopping for toiletries, because Defendant had not packed anything. They left Salisbury and returned to Charlotte at night on 30 May 2009, when Ms. Cloud received a call from her daughter requesting some help with Ms. Cloud's grandson. Ms. Cloud subsequently rented another hotel room in her name on North Tyron Street in Charlotte, where Ms. Cloud, her daughter, her grandson, and Defendant stayed the night.
The next day, 31 May 2009, Ms. Cloud received a phone call from Ms. Blair, who was trying to reach Defendant on his cell phone, which had run out of battery power. Defendant and Ms. Cloud returned to Ms. Blair's home, ate with her briefly, and then left to run some errands. Later that day, they returned to Ms. Blair's home to pick up some things to bring back to the hotel room on North Tryon. When they arrived Ms. Cloud, who was driving, drove past the house, around a cul-de-sac and back, before parking in the driveway. A police officer nearby was conducting surveillance on the house and alerted for backup assistance to effectuate an arrest of Defendant. Defendant was arrested a short distance from his mother's home at around 7:00 pm on 31 May 2009. In addition to first-degree murder, Defendant was also charged with possession of a firearm by a felon.
At Defendant's trial, the State requested that the court's jury charge include an instruction regarding evidence of flight. Defendant's counsel objected, and argued that there was insufficient evidence of Defendant having attempted to avoid apprehension to warrant the instruction. After consideration of the totality of the evidence, the trial court indicated that it would include the instruction on flight, noting that the language of the instruction itself allows for the jury to determine whether or not the evidence presented supported the State's theory that Defendant fled. The trial court eventually instructed the jury on flight as follows:
The State contends and the Defendant denies that the Defendant fled. Evidence of flight may be considered by you together with all other facts and circumstances in this case in determining whether the combined circumstances amount to an admission or show a consciousness of guilt; however, proof of this circumstance is not sufficient in itself to establish the Defendant's guilt. Further, this circumstance has no bearing on the question of whether the Defendant acted with premeditation or deliberation, therefore it must not be considered by you as evidence of premeditation or deliberation.
On 5 March 2012 the jury convicted Defendant of the first-degree murder of Mr. Blakeney and possession of a firearm by a felon. Defendant stipulated that he had a prior felony conviction in New York for first-degree robbery. Sentenced at a Level III, Defendant received life imprisonment without parole for the murder and 16–20 months imprisonment to run concurrently with the life sentence for his possession of a firearm by a felon conviction. Defendant gave oral notice of appeal in open court.
II. Jurisdiction & Standard of Review
As Defendant appeals from the final judgment of a superior court, we have jurisdiction over his appeal of right. SeeN.C. Gen.Stat. § 7A–27(b) (2011).
“[Arguments] challenging the trial court's decisions regarding jury instructions are reviewed de novo by this Court.” State v. Osorio, 196 N.C.App. 458, 466, 675 S.E.2d 144, 149 (2009) (citations omitted).
III. Analysis
Defendant's sole argument on appeal is that the trial court erred when it instructed the jury, over his objection, on the issue of flight. Defendant contends that insufficient evidence was presented to suggest Defendant sought to avoid apprehension, and therefore an instruction on flight was improper. We disagree.
A jury instruction on flight is appropriate when there is “some evidence in the record reasonably supporting the theory that the defendant fled after the commission of the crime charged.” State v. Allen, 346 N.C. 731, 741, 488 S.E.2d 188, 193 (1997) (quotation marks and citation omitted). “The relevant inquiry concerns whether there is evidence that [the] defendant left the scene of the crime and took steps to avoid apprehension.” State v. Ethridge, 168 N.C.App. 359, 362, 607 S.E.2d 325, 327–28 (2005) (quotation marks and citation omitted). The evidence is to be viewed in the light most favorable to the State when it requests a flight instruction. See State v. Grooms, 353 N.C. 50, 80, 540 S.E.2d 713, 732 (2000) (“These facts, taken in the light most favorable to the State, permit an inference that defendant had a consciousness of guilt and took steps, albeit unsuccessful, to avoid apprehension.” (emphasis added)).
A flight instruction may properly be given when evidence has been presented that the defendant quickly left the scene of a crime without rendering aid to the victim. See, e.g., State v. Anthony, 354 N.C. 372, 425, 555 S.E.2d 557, 591 (2001) (holding evidence sufficient to warrant flight instruction when, after shooting the victim, “defendant immediately entered his car and quickly drove away from the crime scene without rendering any assistance to the victims or seeking to obtain medical aid for them”).
Here, several witnesses testified that after shooting Mr. Blakeney, Flea got back in his white Charger and immediately drove away, screeching his tires as he left the parking lot. Furthermore, the State presented evidence suggesting Flea and Defendant were the same person. This constitutes some evidence of flight on the part of Defendant, as it showed that Defendant left the scene rapidly without rendering aid to the victim. See State v. Taylor, 362 N.C. 514, 540–41, 669 S.E.2d 239, 261–62 (2008) (jury instruction on flight appropriate where defendant left the scene of a robbery and murder hurriedly and failed to render aid to the victims); State v. Reeves, 343 N.C. 111, 113, 468 S.E.2d 53, 55 (1996) (holding that an instruction for flight was appropriate when the evidence showed that after shooting the victim the defendant “ran from the scene of the crime, got in a car waiting nearby, and drove away”).
Furthermore, the State presented evidence that shortly after the shooting, Defendant picked up his girlfriend, drove to his mother's home, swapped the car he was driving for another car, and left town. Ms. Cloud testified that they eventually stopped in Salisbury, where they rented a hotel room in her name. Ms. Cloud also testified that they had to shop for toiletries for Defendant, since he had not brought any with him. From this evidence the jury could reasonably conclude that Defendant left town with some haste, so as to avoid apprehension by the police.
Defendant makes much of the fact that there was another reasonable explanation for Defendant's conduct. Specifically, Defendant points to Ms. Cloud's testimony that it was not uncommon for her and Defendant to rent a room out of town after having a falling out, and that the Charger was Ms. Blair's car, which is why Defendant swapped cars before leaving town.
However, “[t]he fact that there may be other reasonable explanations for defendant's conduct does not render the instruction improper.” State v. Irick, 291 N.C. 480, 494, 231 S.E.2d 833, 842 (1977). It is enough that the State presented evidence from which the jury could reasonably conclude that Defendant fled and was attempting to avoid apprehension.
This is clear from the text of the jury instruction itself. The trial court instructed the jury, consistent with Pattern Jury Instruction 104.36, as follows:
The State contends and the Defendant denies that the Defendant fled. Evidence of flight may be considered by you together with all other facts and circumstances in this case in determining whether the combined circumstances amount to an admission or show a consciousness of guilt; however, proof of this circumstance is not sufficient in itself to establish the Defendant's guilt. Further, this circumstance has no bearing on the question of whether the Defendant acted with premeditation or deliberation, therefore it must not be considered by you as evidence of premeditation or deliberation.
As the trial court noted in deciding to give the instruction, whether the evidence proved Defendant's consciousness of guilt was ultimately a jury question. Accordingly, the instruction given to the jury merely acknowledged that the State and Defendant disputed whether Defendant fled and permitted, but in no way required, the jury to draw the reasonable inference that Defendant's conduct constituted an attempt to avoid apprehension. The charge then correctly instructed the jury, in the event they found that Defendant fled, that such flight could only be considered by it as conduct evidencing “a consciousness of guilt,” and could not be considered as substantive evidence of Defendant's guilt.
IV. Conclusion
In sum, the State presented sufficient evidence to reasonably support the theory that Defendant was the shooter, that he fled after commission of the shooting, and that then he took steps to avoid apprehension. Accordingly, the trial court did not err in granting the State's request for an instruction on flight.
NO ERROR. Judges BRYANT and McCULLOUGH concur.
Report per Rule 30(e).