Opinion
No. COA12–1110.
2013-05-21
STATE of North Carolina v. Jamil Demond RORIE.
Attorney General Roy Cooper, by Special Deputy Attorney General Victoria L. Voight, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Emily H. Davis, for Defendant.
Appeal by defendant from judgments entered 27 April 2012 by Judge W. Robert Bell in Mecklenburg County Superior Court. Heard in the Court of Appeals 13 February 2013. Attorney General Roy Cooper, by Special Deputy Attorney General Victoria L. Voight, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Emily H. Davis, for Defendant.
ERVIN, Judge.
Defendant Jamil Demond Rorie appeals from judgments entered against him based upon his convictions for attempted robbery with a dangerous weapon and assault with a deadly weapon inflicting serious injury. On appeal, Defendant contends that the trial court erred by instructing the jury concerning the issue of flight and peremptorily instructing the jury that the alleged victim had sustained a serious bodily injury. After careful consideration of the record in light of the applicable law, we conclude that the trial court's judgments should remain undisturbed.
I. Factual Background
A. Substantive Facts
1. State's Evidence
At around 8:00 p.m. on 5 February 2011, Kelle Yager was standing at a bus stop after cashing his disability check. As Mr. Yager waited for the bus, Defendant approached him from the rear, put a firearm to his back, and ordered him to hand over his money. In response, Mr. Yager turned around, grabbed Defendant's hair, and pulled Defendant into the street, causing a considerable quantity of Defendant's hair to fall to the ground. While Mr. Yager was attempting to get up from the ground, Defendant fired two rounds at him, one of which pierced Mr. Yager in his right hand and passed all the way through that appendage, breaking a bone in the process.
After shooting Mr. Yager, Defendant took off running while Mr. Yager walked across the street to a location where a crowd of people was gathered and remained there until someone called the police. Once investigating officers arrived, Mr. Yager told them what had occurred. In his initial statement to police, Mr. Yager said that he actually wrestled with Defendant and that they both fell to the ground.
On cross-examination, Mr. Yager testified that Defendant was standing ten to fifteen feet away at the time that he shot Mr. Yager and that Defendant never fell to the ground.
After speaking with police, Mr. Yager was taken to the emergency room at University Hospital. At the hospital, treating physicians had to pull the broken bone back into place and put a cast on his hand, a process which Mr. Yager described as painful. Even so, Mr. Yager appeared to be very calm while at the hospital and did not seem upset by what had occurred.
As a result of his injury, Mr. Yager, a right-handed individual, could not use his right hand for three months and was unable to play his guitar or play golf for three weeks. At the time of trial, Mr. Yager had recovered about 75% of his ability to use his hand. However, Mr. Yager had permanently lost the ability to bend his thumb as much as he could bend it prior to the date on which he was injured.
Officer Jay L. Zederbaum of the Charlotte–Mecklenburg Police Department came to the scene of the shooting in response to a call for assistance. After his arrival, Officer Zederbaum observed dreadlocks lying on the ground. However, he did not find a gun in the vicinity of the shooting. In addition, Sergeant Jem Jones of the Charlotte–Mecklenburg Police Department, who had also responded to the scene of the shooting, observed Mr. Yager and noticed that he had sustained what appeared to be a gunshot wound to his hand. At the time of Sergeant Jones' arrival, Mr. Yager was standing over a trashcan with his hand wrapped in blood-soaked baby wipes.
The DNA associated with the dreadlocks found at the scene matched that of Defendant. After his arrest, Defendant was interviewed by Detective Stephen Todd of the Charlotte–Mecklenburg Police Department. Although Defendant initially denied having been present at the time that Mr. Yager was injured, he eventually informed Detective Todd that he had been the victim of a crime himself. Defendant stated that he had walked away after Mr. Yager had approached him about purchasing drugs. When Defendant looked back, Mr. Yager had a gun. At that point, Defendant rushed towards Mr. Yager. During the ensuing “tussle,” the gun discharged. After being wounded in the head, Defendant left the scene and went to Chester, South Carolina, where he checked into a hospital under the name “Quinton Coles.” Defendant decided to refrain from reporting the crime and to seek medical attention using a false name based upon his belief that there were outstanding unserved warrants for his arrest; however, the latest warrant for Defendant's arrest had been served on 4 January 2011.
2. Defendant's Evidence
Defendant worked for Charlotte AC Repair, where he earned $650.00 per week in take-home pay. Defendant was on his way to purchase minutes for his prepaid cellular phone when the incident underlying the present case occurred. As Defendant was about to cross the street, Mr. Yager approached him and asked him if he had any heroin. After Defendant responded in the negative, Mr. Yager said “You are the one” and pulled out a firearm. Defendant responded by reaching for the weapon, which was in Mr. Yager's left hand, while Mr. Yager pulled on his hair. During the struggle, both individuals fell to the ground. As Defendant was falling, a shot was fired, hitting Mr. Yager in the hand. After the two men reached the ground, another shot was fired, which struck Defendant in the head. During his altercation with Mr. Yager, Defendant lost multiple dreadlocks.
As soon as Defendant realized that he could not extract the gun from Mr. Yager's hand, he got up and ran to his wife's residence, where he told her what had happened. At that point, Defendant and his wife went to the hospital in Chester, where he checked in under a false name because he “thought” that there were outstanding unserved warrants for his arrest. At the hospital, Defendant was given a tetanus shot and underwent a CAT scan. After being discharged from the hospital, Defendant returned to his wife's residence.
B. Procedural History
Warrants for arrest charging Defendant with attempted robbery with a dangerous weapon and assault with a deadly weapon with the intent to kill were issued on 22 April 2011. The Mecklenburg County grand jury returned bills of indictment charging Defendant with attempted robbery with a dangerous weapon and assault with a deadly weapon inflicting serious injury on 23 May 2011. The charges against Defendant came on for trial at the 25 April 2012 criminal session of the Mecklenburg County Superior Court criminal session before the trial court and a jury. At the conclusion of the trial, the jury returned verdicts convicting Defendant of the charged offenses. On 27 April 2012, the trial court entered judgments sentencing Defendant to a term of 84 to 110 months imprisonment for attempted robbery with a dangerous weapon and to a consecutive term of 33 to 49 months imprisonment for assault with a dangerous weapon inflicting serious injury and ordering Defendant to pay $4,860.27 in restitution to Mr. Yager. Defendant noted an appeal to this Court from the trial court's judgments.
II. Legal Analysis
A. Jury Instruction Concerning Flight
1. Standard of Review
“The prime purpose of a court's charge to the jury is the clarification of issues, the elimination of extraneous matters, and a declaration and an application of the law arising on the evidence.” State v. Cameron, 284 N.C. 165, 171, 200 S.E.2d 186, 191 (1973), cert. denied,418 U.S. 905, 94 S.Ct. 3195, 41 L.Ed.2d 1153 (1974). “[A] trial judge should not give instructions to the jury which are not supported by the evidence produced at the trial.” Id. “Where jury instructions are given without supporting evidence, a new trial is required.” State v. Porter, 340 N.C. 320, 331, 457 S.E.2d 716, 721 (1995). If a contemporaneous objection is lodged against a particular jury instruction, the “challeng[e][to] the trial court's decisions regarding jury instructions [is] reviewed de novo by this Court.” State v. Osorio, 196 N.C.App. 458, 466, 675 S.E.2d 144, 149 (2009). “ ‘Under a de novo review, the court considers the matter anew and freely substitutes its own judgment’ for that of the lower tribunal.” State v. Williams, 362 N.C. 628, 632–33, 669 S.E.2d 290, 294 (2008) (quoting In re Greens of Pine Glen, Ltd. P'ship, 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003)). “[A]n error in jury instructions is prejudicial and requires a new trial only if ‘there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises.’ “ State v. Castaneda, 196 N.C.App. 109, 116, 674 S.E .2d 707, 712 (2009) (quoting N.C. Gen.Stat. § 15A–1443 (a) (2007)).
2. Propriety of the Trial Court's Flight Instruction
In his brief, Defendant argues that the trial court erred by instructing the jury concerning the manner in which they should consider evidence of Defendant's flight because the evidence presented at trial did not support the delivery of such an instruction. We do not find Defendant's contention persuasive.
“Evidence of a defendant's flight following the commission of a crime may properly be considered by a jury as evidence of guilt or consciousness of guilt.” State v. King, 343 N.C. 29, 38, 468 S .E.2d 232, 238 (1996). However, “a trial court may not instruct a jury on defendant's flight unless ‘there is some evidence in the record reasonably supporting the theory that defendant fled after commission of the crime charged.’ “ State v. Levan, 326 N.C. 155, 164–65, 388 S.E.2d 429, 433–34 (1990) (quoting State v. Irick, 291 N.C. 480, 494, 231 S.E.2d 833, 842 (1977)). Moreover, “[m]ere evidence that defendant left the scene of the crime is not enough to support an instruction on flight,” so that, to adequately support a flight instruction, “[t]here must also be some evidence that defendant took steps to avoid apprehension.” State v. Thompson, 328 N.C. 477, 490, 402 S.E.2d 386, 392 (1991). In making this determination, the evidence must be considered in the light most favorable to the State. See State v. Grooms, 353 N.C. 50, 80, 540 S.E.2d 713, 732 (2000) (holding that “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”), cert. denied, 534 U.S. 838, 122 S.Ct. 93, 151 L.Ed.2d 54 (2001).
Although we agree with Defendant that the mere fact that he sought medical treatment at a hospital after his altercation with Mr. Yager does not suffice, standing alone, to support the delivery of a flight instruction, the record contains substantial evidence bearing on the appropriateness of the trial court's flight instruction in addition to the fact that Defendant sought medical treatment for his injuries. For example, instead of seeking treatment in Charlotte, Defendant went to a hospital in an adjoining state and used a false name while there. In addition, despite Defendant's claim to have sought treatment in South Carolina because he “thought” that there were outstanding unserved warrants for his arrest on other charges in Mecklenburg County, Detective Todd testified that all of the warrants upon which Defendant's claim was based had, in fact, been served upon him on 4 January 2011. As a result, when taken in the light most favorable to the State, the record contains evidence tending to show that Defendant failed to notify the police that he had been attacked, that he sought medical treatment in another state under a false name, and that his excuse for seeking medical treatment in this manner lacked factual support, thus supporting an inference that Defendant's post-altercation actions did, in fact, reflect an effort to “avoid apprehension.” Thompson, 328 N.C. at 490, 402 S.E.2d at 392. Although the record does, as Defendant suggests, also provide support for the alternative theory which he espouses, we conclude that the record contained “some evidence ... reasonably supporting the theory that defendant fled after commission of the crime charged.” Levan, 326 N.C. at 164–65, 388 S.E.2d at 434 (quotation marks and citations omitted). Thus, the trial court did not err by instructing the jury concerning the issue of Defendant's flight.
B. Jury Instruction Concerning “Serious Injury”
1. Standard of Review
“In criminal cases, an issue that was not preserved by objection noted at trial and that is not deemed preserved by rule or law without any such action nevertheless may be made the basis of an issue presented on appeal when the judicial action questioned is specifically and distinctly contended to amount to plain error.” N .C.R.App. P. 10(a)(4). An alleged error rises to the level of plain error when it is “ ‘so basic, so prejudicial, so lacking in its elements that justice cannot have been done.’ “ State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.1982), cert. denied,459 U.S. 1018, 103 S.Ct. 381, 74 L.Ed.2d. 513 (1982)). A determination that an error rises to the level of “plain error” is only appropriate “in the exceptional case” and requires a determination that, “after examination of the entire record, the error had a probable impact on the jury's finding that defendant was guilty.” State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (quotation marks and citations omitted).
2. Propriety of the Trial Court's Instruction
As his second challenge to the trial court's judgment, Defendant contends that the trial court committed plain error by peremptorily instructing the jury that Mr. Yager sustained a serious injury as a matter of law. We do not find Defendant's argument persuasive.
“The term ‘serious injury[,]’ as employed in N.C. [Gen.Stat.] § 14–32(a) [,] means physical or bodily injury resulting from an assault with a deadly weapon. Whether a serious injury has been inflicted must be determined according to the facts of the particular case.” State v. James, 321 N.C. 676, 688, 365 S.E.2d 579, 586–87 (1988). Among the considerations relevant to determining whether a serious injury was, in fact, inflicted, are “pain, loss of blood, hospitalization and time lost from work.” State v. Owens, 65 N.C.App. 107, 111, 308 S.E.2d 494, 498 (1983) (citing State v. Pettiford, 60 N.C.App. 92, 94–98, 298 S .E.2d 389, 390–92 (1982), and State v. Stephenson, 43 N.C.App. 323, 327, 258 S.E.2d 806, 808 (1979), disc. review denied, 299 N .C. 124, 262 S.E.2d 8 (1980)). Although this Court has, “[i]n exceptional cases,” allowed “the trial court [to] remove the element of serious injury from consideration by the jury by peremptorily declaring the injury to be serious,” “such a declaration is appropriate only when the evidence ‘is not conflicting and is such that reasonable minds could not differ as to the serious nature of the injuries inflicted.’ “ State v. Bagley, 183 N.C.App. 514, 527, 644 S.E.2d 615, 623–24 (2007) (citing State v. Hedgepeth, 330 N.C. 38, 53–54, 409 S.E.2d 309, 318 (1991)) (quoting Pettiford, 60 N.C.App. at 97, 298 S.E.2d at 392). As a result, the ultimate issue raised by this aspect of Defendant's challenge to the trial court's judgments is whether the record contains evidence which, if believed, would tend to show that Mr. Yager's injuries were not “serious” as that term is used in N.C. Gen.Stat. § 14–32.
In attempting to persuade us that the evidence, when considered in the light most favorable to Defendant, would permit a determination that Mr. Yager did not sustain a serious injury, Defendant advances a number of arguments based upon the factors enunciated in Owens. As an initial matter, Defendant argues that Mr. Yager “never testified that the gunshot or gunshot wound was painful or caused any pain.” However, this aspect of Defendant's argument overlooks the fact that Mr. Yager did describe the pain that he experienced while undergoing treatment for his injuries at the hospital. We are unable to understand why pain experienced as the result of medical treatment necessitated by Defendant's conduct should be treated any differently than pain experienced at the time that the injury in question was inflicted given that the alleged perpetrator would be equally responsible for both types of pain. Moreover, none of our prior decisions addressing the appropriateness of a peremptory instruction relating to the “serious injury” issue have required the presence of testimony quantifying the amount of pain that the victim suffered as a precondition for the delivery of such an instruction.
Secondly, Defendant argues that the record is devoid of any “evidence [that] any bleeding occurred on the way to the hospital.” However, we are unable to see why the location at which bleeding occurs has any bearing on the extent to which an injury was or was not “serious.” As we have already noted, the record contains ample evidence that Mr. Yager experienced significant bleeding, including Sergeant Jones' testimony that, at the time that he arrived on the scene, Mr. Yager was holding his hand, which was wrapped in a blood-soaked bandage, over a trashcan. As a result, the undisputed evidence contained in the record establishes that Defendant's conduct caused Mr. Yager to sustain a significant loss of blood.
Thirdly, Defendant argues that the trial court should have refrained from peremptorily instructing the jury concerning the “serious injury” issue because Mr. Yager was not hospitalized overnight and did not require surgery. According to Defendant, the reason this Court found that reasonable minds could differ as to the seriousness of the victim's injuries in Owens stemmed from the fact that he was only hospitalized for three hours. Instead, however, Owens hinged on the fact that “[t]here was no evidence as to the degree of injury to [the victim], either immediate or residual.” Owens, 65 N.C.App. at 111, 308 S.E.2d at 498. In this case, Defendant was taken to the emergency room after being injured and received medical treatment. As a result, although the extent to which the alleged victim was hospitalized is relevant to the required “serious injury” analysis, our decisions have not established that a hospital stay of any particular length is a necessary precondition for the delivery of a peremptory instruction such as that at issue here.
Finally, Defendant points out that Mr. Yager did not claim to have been unable to work as a result of his injuries. However, aside from the fact that Mr. Yager was already on disability and unable to work at the time that he was shot, it is clear that our prior “serious injury” cases treat the victim's inability to work as a proxy for the victim's ability to engage in ordinary life activities. At trial, Mr. Yager testified that he could not write for two months, was unable to play the guitar or golf for three weeks, and had sustained a permanent injury to his ability to use his thumb. As a result, contrary to the implication of Defendant's argument, the record clearly establishes that Mr. Yager's injuries had both a short-term and permanent impact on his ability to engage in ordinary life activities.
After carefully considering the evidence in the light most favorable to Defendant, we have no hesitation in concluding that the trial court correctly concluded that the record was devoid of support for any conclusion other than that Mr. Yager sustained a “serious injury” at the time of the incident in question. Mr. Yager sustained a through and through gunshot wound which broke a bone in his hand. In the aftermath of his injury, Mr. Yager lost a significant amount of blood. At the hospital, Mr. Yager's bone was reset, causing him to experience pain. In addition, Mr. Yager wore a cast on his hand for weeks, could not use his dominant hand for a material period of time, was unable to play the guitar or golf for three weeks, and is permanently unable to fully bend his right thumb. We believe that this evidence, which is not contradicted in the record, establishes that Mr. Yager sustained a “serious injury” as a matter of law.
Although Defendant has likened the facts of this case to that at issue in Bagley, we do not find this argument persuasive. In Bagley, we made no mention of the fact that the victim had been bleeding, did not indicate that the victim had suffered a broken bone, noted that the medical treatment received by the victim was limited to having water squirted on the wound and the provision of pain medication, and pointed out that the victim had experienced “no on-going difficulties from the wound.” Bagley, 183 N.C.App. at 527, 644 S.E.2d at 624. Simply put, the facts at issue in Bagley are markedly different from those at issue here. As a result, for all of these reasons, the trial court did not err, much less commit plain error, by peremptorily instructing the jury with respect to the “serious injury” element.
III. Conclusion
Thus, for the reasons set forth above, we hold that none of Defendant's challenges to the trial court's judgments have merit. As a result, the trial court's judgments should, and hereby do, remain undisturbed.
NO ERROR. Judges BRYANT and ELMORE concur.
Report per Rule 30(e).