Opinion
No. COA15-1097
04-19-2016
STATE OF NORTH CAROLINA, v. ALONZO ANTONIO MURRELL, Defendant.
Attorney General Roy Cooper, by Assistant Attorney General Oliver G. Wheeler, IV, for the State. James W. Carter 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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. Onslow County, No. 13 CRS 56479 Appeal by defendant from judgment entered 15 May 2015 by Judge John E. Nobles, Jr. in Onslow County Superior Court. Heard in the Court of Appeals 10 March 2016. Attorney General Roy Cooper, by Assistant Attorney General Oliver G. Wheeler, IV, for the State. James W. Carter for defendant-appellant. GEER, Judge.
Defendant Alonzo Antonio Murrell appeals his conviction of robbery with a dangerous weapon. On appeal, defendant primarily argues that the indictment was fatally defective because it fails to identify what kind of dangerous weapon was used or in what way it was dangerous. Instead, it alleges only that the defendant gave the bank teller a note saying that he was "armed." Because controlling case law establishes that the failure of the indictment to identify the "dangerous weapon" renders the indictment fatally defective, we must arrest the judgment of the trial court.
Facts
The State's evidence tended to show the following facts. On 13 September 2013, shortly before noon, a tall, black male wearing a baseball cap, sunglasses, and a white t-shirt entered the PNC Bank on Western Boulevard in Jacksonville, North Carolina where Stacey Phillips was working as a bank teller. The man walked up to Ms. Phillips' teller window and placed a note in front of her that read "armed" and instructed "eyes down, 2,000 -- or two straps of hundreds, two straps of fifties, two straps of twenties, no devices." Ms. Phillips then took the bills out of her bank drawer, along with a dye pack that looked like a $2,000.00 strap, and gave them to the man who placed them in a small, zippered case and exited the bank. Ms. Phillips did not see the man carrying anything else, other than the case and the note.
Once the man got to the exit door, Ms. Phillips set off the alarm and announced she had been robbed. An accounting executive indicated that the bank was short $1,880.00. Two other bank employees observed the man, wearing a baseball cap and t-shirt, get into a dark SUV, and both were able to provide its license plate number. Upon arriving at the bank, Detective Gary Manning of the Jacksonville Police Department reviewed the bank's surveillance video and determined that a dark-colored SUV had exited the bank parking lot shortly after the robbery. He noted that a "red bloom" emanated from the front passenger side of the SUV as it exited the parking lot. Surveillance from the Handy Mart across the street from the bank also showed a dark SUV parking behind the building and waiting. Dale Rossinger, an off-duty Jacksonville police officer, was at the Handy Mart prior to the robbery and reported a Black Suzuki XL7 circling the Handy Mart parking lot.
Using the video from the bank, Detective Manning sent video of the robbery suspect to local news media. On 23 September 2013, he received a Crime Stoppers call identifying defendant as the suspect shown in the video. Detective Manning found a photo of defendant and believed defendant bore a strong resemblance to the man in the video. He also determined that defendant had access to a black Suzuki XL7 that belonged to defendant's girlfriend, Heather Crider. Detective Manning later located the vehicle in Kinston, North Carolina, on 4 October 2013 and was able to interview Ms. Crider. Ms. Crider admitted defendant borrowed her car around 9:00 or 10:00 a.m. on the day of the robbery, and returned it around 2:15 p.m. that afternoon. Jacksonville crime scene investigators found red or pink residue and marks on the Suzuki.
Detective Manning reached defendant by phone on 4 October 2013. Defendant told Detective Manning that he had been out of town the day of the robbery, but he agreed to meet with Detective Manning. Defendant failed to show up for that meeting. Defendant was later located in an abandoned house in Kinston on 11 October 2013. He had in his possession a green bedsheet with a red stain consistent with the dye pack. Defendant was read his Miranda rights upon arrest, but later voluntarily initiated a conversation with Detective Manning. Detective Manning ensured that defendant understood he was still in custody and still had the same rights as had been read and explained to him, and defendant said, "I want to speak to you."
After the officer read defendant his rights again, defendant waived his rights and admitted to robbing the PNC Bank by giving the teller a note that said "armed." Defendant claimed that he was given a "pee shooter" to use prior to the robbery by individuals in a secret society that threatened him with bodily harm if he did not commit the robbery. Defendant never revealed the identity of those individuals, and no weapon was ever recovered from defendant.
On 12 August 2014, defendant was indicted for robbery with a dangerous weapon. At trial on 15 May 2015, the jury found defendant guilty of robbery with a dangerous weapon, and the trial court sentenced him to a presumptive-range term of 53 to 76 months imprisonment. Defendant timely appealed to this Court.
Discussion
Defendant first contends that we should arrest the judgment for robbery with a dangerous weapon pursuant to N.C. Gen. Stat. § 14-87 (2015) because the indictment was facially defective in that it failed to identify the specific dangerous weapon defendant used. Although defendant failed to object to the indictment at trial, whether an indictment is facially invalid is an issue that may be raised "upon appellate review even though no corresponding objection, exception or motion was made in the trial division." State v. Sturdivant, 304 N.C. 293, 308, 283 S.E.2d 719, 729 (1981). See also State v. Wallace, 351 N.C. 481, 503, 528 S.E.2d 326, 341 (2000) ("[W]here an indictment is alleged to be invalid on its face, thereby depriving the trial court of its jurisdiction, a challenge to that indictment may be made at any time, even if it was not contested in the trial court.").
The indictment in this case alleged that the defendant
unlawfully, willfully and feloniously did steal, take and carry away another's personal property, U.S. Money from PNC Financial Services Group, Inc., . . . when a bank employee, Stacy Phillips was present. The defendant committed this act by way of it reasonably appearing to the victim Stacy Phillips that a dangerous weapon was in the defendant's possession, being used and threatened to be used by communicating that he was armed to her in a note with demands and instructions for her to complete, whereby the life of Stacy Phillips was threatened and endangered.
It is well settled that for an indictment to be valid it "must allege every element of an offense in order to confer subject matter jurisdiction on the court." State v. Kelso, 187 N.C. App. 718, 722, 654 S.E.2d 28, 31 (2007). The elements of the crime of robbery with a dangerous weapon as set out in N.C. Gen. Stat. § 14-87 are "(1) the unlawful taking or attempted taking of personal property from another; (2) the possession, use or threatened use of firearms or other dangerous weapon, implement or means; and (3) danger or threat to the life of the victim." State v. Joyner, 295 N.C. 55, 63, 243 S.E.2d 367, 373 (1978) (internal quotation marks omitted).
Our Supreme Court has stated: "With regard to indictments 'seeking to charge a crime in which one of the elements is the use of a deadly weapon,' we have held that it is sufficient to '(1) name the weapon and (2) either to state expressly that the weapon used was a "deadly weapon" or to allege such facts as would necessarily demonstrate the deadly character of the weapon.' " State v. Brinson, 337 N.C. 764, 768, 448 S.E.2d 822, 824 (1994) (quoting State v. Palmer, 293 N.C. 633, 639-40, 239 S.E.2d 406, 411 (1977)).
In State v. Marshall, 188 N.C. App. 744, 656 S.E.2d 709 (2008), this Court applied the principles from Brinson and Palmer to a charge of robbery with a dangerous weapon under circumstances very similar to those of this case. In Marshall, the defendant was indicted for two counts of robbery with a dangerous weapon, one at a Kangaroo Express and one at a Circle K gas station. 188 N.C. App. at 745-46, 656 S.E.2d at 711. During both robberies, the defendant kept his right arm in his coat pocket, and the victim at each store thought or believed the defendant had a weapon based on the way he carried himself. Id. at 746, 656 S.E.2d at 711. In other words, the defendant did not display a weapon, but behaved in a manner to make the victim believe that he in fact had a weapon in his pocket. Id.
The indictment in Marshall alleged that the defendant " 'ha[d] in [his] possession and threaten[ed] the use of an implement, to wit, keeping his hand in his coat pocket demanding money[.]' " Id. at 749, 656 S.E.2d at 713. In addressing whether this indictment was facially invalid, this Court first noted "that a firearm or other dangerous weapon need not be displayed, and our Courts have upheld convictions for robbery with a dangerous weapon when, as in the case sub judice, the evidence showed that the defendant did not possess a firearm or dangerous weapon but merely pretended to possess a firearm or dangerous weapon." Id. at 750, 656 S.E.2d at 714. The Court recognized, however, that " '[t]he gravamen of the offense is the endangering or threatening of human life by the use or threatened use of firearms or other dangerous weapons in the perpetration of or even in the attempt to perpetrate the crime of robbery.' " Id. (quoting State v. Ballard, 280 N.C. 479, 485, 186 S.E.2d 372, 375 (1972)). "Therefore, pretending to possess a dangerous weapon is not a dangerous weapon in and of itself; instead, pretending to possess a dangerous weapon creates a presumption that the defendant, in fact, possessed a dangerous weapon." Id. at 750-51, 656 S.E.2d at 714.
Based on this authority, this Court concluded in Marshall that "a defendant's keeping his hand in his coat may create a presumption that he possessed a firearm or other dangerous weapon, but his keeping his hand in his coat cannot constitute, in and of itself, a dangerous weapon." Id. at 751, 656 S.E.2d at 715. Consequently, "the allegation in the indictment that defendant 'ha[d] in possession and threaten[ed] the use of an implement, to wit, keeping his hand in his coat demanding money,' was insufficient to satisfy the jurisdictional requirement that an indictment for robbery with a dangerous weapon allege that the defendant 'use[d] or threatened use of a firearm or other dangerous weapon.' " Id. at 752, 656 S.E.2d at 715 (quoting State v. Call, 349 N.C. 382, 417, 508 S.E.2d 496, 518 (1998)). The Court, therefore, concluded that the indictment for robbery with a dangerous weapon "failed to allege all of the essential elements, [and] the indictment failed to provide the trial court with subject matter jurisdiction to convict defendant of robbery with a dangerous weapon." Id.
Marshall is materially indistinguishable from this case. In both this case and Marshall, the defendants did not display a weapon, but they made the victims believe they had a weapon and threatened to use it -- the defendant in Marshall by keeping his hand inside his coat so that it appeared he was armed, and defendant, in this case, by handing a note to the teller saying he was "armed." Since the indictment in Marshall -- which described the threat, but failed to identify any particular weapon -- was insufficient, we must, under Marshall, hold that the indictment in this case was invalid as well. An indictment alleging that defendant claimed to be "armed," without more, does not sufficiently allege that defendant used or threatened to use a dangerous weapon. See also State v. Moses, 192 N.C. App. 734, 666 S.E.2d 217, 2008 WL 4210556, at *1, 2008 N.C. App. LEXIS 1660, at *3 (2008) (unpublished) (holding that an indictment for robbery with a dangerous weapon was facially invalid when it stated, in pertinent part, that " '[t]he defendant committed this act by means of an assault consisting of having in possession and threatening the use of a dangerous weapon to wit: an unknown type of weapon' ").
Whether an indictment for robbery with a dangerous weapon is facially defective because it failed to allege a defendant appeared to possess a dangerous weapon is a separate and distinct issue from whether a defendant was alleged to have actually possessed a dangerous weapon in order to be properly convicted under N.C. Gen. Stat. § 14-87. See, e.g., State v. Jarrett, 167 N.C. App. 336, 338-39, 607 S.E.2d 661, 662-63 (2004) (holding that evidence tending to show the defendant, who did not actually possess a weapon, told a robbery victim he "had a gun" was "sufficient to sustain a conviction under [N.C. Gen. Stat. § 14-87]" where the indictment using AOC CR-135 form alleged that "defendant committed this act having in possession and with the use and threatened use of firearms and other dangerous weapons, implements and means, handgun").
Here, because the dangerous weapon was not named in the indictment, the indictment " 'failed to allege the essential elements of the crime charged' " and, therefore, the indictment " 'has failed to give the trial court subject matter jurisdiction over the matter[.]' " Kelso, 187 N.C. App. at 722, 654 S.E.2d at 32 (quoting State v. Bullock, 154 N.C. App. 234, 244, 575 S.E.2d 17, 23 (2002)). Accordingly, we must arrest judgment. "When judgment is arrested because of a fatal flaw which appears on the face of the record, such as a substantive error on the indictment, the verdict itself is vacated and the [S]tate must seek a new indictment if it elects to proceed again against the defendant." State v. Pakulski, 326 N.C. 434, 439, 390 S.E.2d 129, 132 (1990).
We note that in Marshall, this Court remanded to the trial court for resentencing on a charge of common law robbery. 188 N.C. App. at 752, 656 S.E.2d at 715. We cannot, however, reconcile Marshall with the longstanding holdings of our Supreme Court that "[t]he legal effect of arresting the judgment is to vacate the verdict and sentence of imprisonment below, and the State, if it is so advised, may proceed against the defendant upon a sufficient bill of indictment." State v. Fowler, 266 N.C. 528, 531, 146 S.E.2d 418, 420 (1966). Indeed, in State v. Locklear, 361 N.C. 688, 654 S.E.2d 704 (2007), in which this Court had remanded for resentencing after arresting judgment because of a fatally flawed indictment, our Supreme Court granted review "for the limited purpose of vacating that portion of the Court of Appeals' opinion which remands for re-sentencing[,]" citing Pakulski.
Therefore, although we arrest the judgment, we do not remand to the trial court for resentencing on the lesser included offense of common law robbery. See, e.g., State v. Justice, 219 N.C. App. 642, 645, 723 S.E.2d 798, 802 (2012) ("The indictment against Defendant for larceny from a merchant is fatally flawed, and accordingly, we arrest the judgment, which serves to vacate the verdict entered against Defendant."). Because of our holding on this issue, we need not address defendant's remaining arguments.
JUDGMENT ARRESTED.
Judges TYSON and INMAN concur.
Report per Rule 30(e).