Opinion
No. COA09-1617
Filed 17 August 2010 This case not for publication
Appeal by defendant from judgments entered 6 November 2008 by Judge Ronald K. Payne in Lincoln County Superior Court. Heard in the Court of Appeals 10 June 2010.
Attorney General Roy A. Cooper, III, by Special Deputy Jill Ledford Cheek, for the State. Richard E. Jester, for defendant-appellant.
Lincoln County Nos. 05 CRS 51310; 05 CRS 51314; 05 CRS 51328.
John Chavis Ross ("defendant") appeals his convictions for second-degree murder, attempted first-degree murder, and assault with a deadly weapon with intent to kill. For the reasons stated herein, we hold no error.
On 2 May 2005, in the presence of numerous witnesses, defendant shot Jarvis Ross ("Jarvis") in the yard of his girlfriend's house on Gastonia Highway. Defendant and Jarvis were at the house visiting their girlfriends, who were sisters. When Jarvis arrived at the house, he intended to confront defendant about "trying to hook someone else up with [his girlfriend]."
Shortly after arriving, Jarvis spoke with Jacquece Reeves ("Reeves") on the telephone and asked him if he would come to the house; Reeves agreed. Reeves and some others arrived at the house shortly thereafter. Defendant testified that during the week prior to 2 May 2005, Reeves and "a gang of guys" had approached defendant, shouting and threatening him. Since that time, defendant had been afraid of Reeves. According to witnesses, after Reeves's arrival, Jarvis confronted defendant, and the two argued about Jarvis's girlfriend. Defendant described Jarvis to be "hot" and "really mad" during the confrontation.
Thereafter, defendant temporarily left the house in his car with his girlfriend and another friend. Defendant testified that he retrieved a gun from his trunk prior to returning to the house because he was concerned for his safety.
When defendant returned, Jarvis approached his car window and again confronted him about Jarvis's girlfriend. After Jarvis left his car, defendant decided to "go over . . . and talk" to Jarvis, according to defendant. The two again argued about Jarvis's girlfriend, and after the argument escalated, defendant drew his gun. According to witnesses, defendant then shot Jarvis in the head. Defendant testified that his gun accidentally discharged when he hit Jarvis in the head with it. Jarvis later died from his injuries.
Defendant drove away from the house after the shooting. Shortly after leaving the house, he "bumped" the car of Jeffrey Neal Hutchins ("Hutchins"), but continued driving. Hutchins followed defendant and called 911. After approximately a quarter of a mile, defendant stopped his car and walked over to Hutchins's car to offer to pay for the damage he had caused, but Hutchins refused to accept his money. According to Hutchins, defendant held a gun to his head and started to pull the trigger. Hutchins grabbed defendant's arm and gun and put his car into reverse. He then lost his grip of defendant, and defendant escaped into the woods with the gun. Hutchins sustained minor injuries from the assault.
At defendant's 18 August 2008 hearing, the trial court allowed a motion for joinder of defendant's offenses. At his 15 October 2008 trial, defendant failed to move for severance of the joined offenses at the close of the State's evidence and at the close of all evidence. During the charge conference, defendant requested an instruction on the defense of accident, but the trial court rejected the requested instruction. The jury convicted defendant of assault with a deadly weapon with intent to kill on 3 November 2008, attempted first-degree murder on 4 November 2008, and second-degree murder on 6 November 2008. He was sentenced to consecutive prison terms for the convictions. Defendant appeals.
Defendant first argues that the trial court erred in joining his offenses for trial. We disagree.
Absent an abuse of discretion, this Court will not overrule a trial court's denial of a motion to sever. State v. McDonald, 163 N.C. App. 458, 463, 593 S.E.2d 793, 796 (citing State v. Brower, 289 N.C. 644, 658-59, 224 S.E.2d 551, 562 (1976), recons. denied, 293 N.C. 259, 243 S.E.2d 143 (1977)), disc. rev. denied, 358 N.C. 548, 599 S.E.2d 910 (2004). North Carolina General Statutes, section 15A-927(a)(2) provides that "[i]f a defendant's pretrial motion for severance is overruled, he may renew the motion on the same grounds before or at the close of all the evidence. Any right to severance is waived by failure to renew the motion." N.C. Gen. Stat. § 15A-927(a)(2) (2003).
In addition, we have held that "failure to renew a motion to sever . . . waives any right to severance and that on appeal the Court is limited to reviewing whether the trial court abused its discretion in ordering joinder at the time of the trial court's decision to join." McDonald, 163 N.C. App. at 463-64, 593 S.E.2d at 797 (citing State v. Agubata, 92 N.C. App. 651, 660-61, 375 S.E.2d 702, 708 (1989)). Abuse of discretion occurs when "`the court's ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.'" State v. Williams, 363 N.C. 689, 701, 686 S.E.2d 493, 501 (2009) (quoting State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988)).
North Carolina General Statutes, section 15A-926(a) provides that "[t]wo or more offenses may be joined in one pleading or for trial when the offenses, whether felonies or misdemeanors or both, are based on the same act or transaction or on a series of acts or transactions connected together or constituting parts of a single scheme or plan." N.C. Gen. Stat. § 15A-926(a) (2003). When we review a trial court's joinder determination after the defendant has failed to preserve his right to severance, we must address (1) whether a sufficient transactional connection exists between the offenses and (2) whether a defendant can receive a fair trial if the offenses are joined. State v. Peterson, ___ N.C. App. ___, ___, ___ S.E.2d ___, ___, 2010 WL 2813622, at *4, 2010 N.C. App. LEXIS 1265, at *9 (COA09-365) (July 20, 2010) (citing State v. Silva, 304 N.C. 122, 126, 282 S.E.2d 449, 452 (1981)).
In determining whether a transactional connection exists, several factors must be considered: "(1) the nature of the offenses charged; (2) any commonality of facts between the offenses; (3) the lapse of time between the offenses; and (4) the unique circumstances of each case." State v. Montford, 137 N.C. App. 495, 498-99, 529 S.E.2d 247, 250 (citing State v. Herring, 74 N.C. App. 269, 273, 328 S.E.2d 23, 26 (1985), aff'd, 316 N.C. 188, 340 S.E.2d 105 (1986) (per curiam)), cert. denied, 353 N.C. 275, 546 S.E.2d 386 (2000). Joinder is proper if the offenses are not "so separate in time and place and so distinct in circumstances as to render the consolidation unjust and prejudicial to defendant." State v. Shipp, 155 N.C. App. 294, 305, 573 S.E.2d 721, 728 (2002) (citing State v. Howie, 116 N.C. App. 609, 615, 448 S.E.2d 867, 871 (1994)).
Here, although defendant objected to the State's motion for joinder at trial, he failed to renew his motion for severance at the close of the State's evidence and at the close of all the evidence, thereby waiving his right to severance. Nonetheless, our precedent requires that we determine whether the trial court abused its discretion in joining the two offenses for trial in the first place. See McDonald, 163 N.C. App. at 463-64, 593 S.E.2d at 797 (citation omitted).
Most significantly, the two offenses with which defendant was charged were connected temporally, in that they occurred within minutes of each other. Defendant was in the process of fleeing the prior scene when he encountered Hutchins. He also used the same gun during both incidents. Therefore, a sufficient transactional connection existed between the two offenses.
Furthermore, defendant has not shown that joinder was prejudicial. As discussed supra, the offenses are not strikingly distinct in time, place, and circumstance. See Shipp, 155 N.C. App. at 305, 573 S.E.2d at 728. Accordingly, because a sufficient transactional connection exists and because defendant has not shown that joinder was prejudicial to his defense, we cannot say that the trial court's decision to join the offenses was "`manifestly unsupported by reason[,]'" so as to overcome the plain words of the statute. Williams, 363 N.C. at 701, 686 S.E.2d at 501 (citation omitted).
Defendant next argues that the trial court erred by denying his request for a jury instruction on the defense of accident. We disagree.
"Assignments of error challenging the trial court's decisions regarding jury instructions are reviewed de novo by this Court." State v. Osorio, ___ N.C. App. ___, ___, 675 S.E.2d 144, 149 (2009) (citing State v. Ligon, 332 N.C. 224, 241-42, 420 S.E.2d 136, 145-46 (1992); State v. Levan, 326 N.C. 155, 164-65, 388 S.E.2d 429, 433-34 (1990)).
"Where an alleged assault is unintentional and the perpetrator acted without wrongful purpose in the course of lawful conduct and without culpable negligence, a resultant injury will be excused as accidental." State v. Thompson, 118 N.C. App. 33, 36, 454 S.E.2d 271, 273 (citing State v. Faust, 254 N.C. 101, 112, 118 S.E.2d 769, 776, cert. denied, 368 U.S. 851, 7 L. Ed. 2d 49 (1961)), disc. rev. denied, 340 N.C. 262, 456 S.E.2d 837 (1995).
"`A killing will be excused as an accident when it is unintentional and when the perpetrator, in doing the homicidal act, did so without wrongful purpose or criminal negligence while engaged in a lawful enterprise.'" State v. Vincent, 195 N.C. App. 761, 764, 673 S.E.2d 874, 876 (2009) (quoting State v. Riddick, 340 N.C. 338, 342, 457 S.E.2d 728, 731 (1995)) (emphasis added). However, the defense of accident is not available "where the defendant was engaged in unlawful conduct when the killing occurred[.]" Id. (citing Riddick, 340 N.C. at 342, 457 S.E.2d at 731).
"It is well established that when a defendant requests a special instruction which is correct in law and supported by the evidence, the trial court must give the requested instruction, at least in substance." State v. Tidwell, 112 N.C. App. 770, 773, 436 S.E.2d 922, 924 (1993) (citations omitted). "In order to prevail . . ., [a] defendant must show that the requested instruction was not given in substance, and that substantial evidence supported the omitted instruction." State v. White, 77 N.C. App. 45, 52, 334 S.E.2d 786, 792, cert. denied, 315 N.C. 189, 337 S.E.2d 864 (1985) (citations omitted). "The trial court need only give the jury instructions supported by a reasonable view of the evidence." Id.
The trial court did not instruct on accident in Vincent. There, the defendant testified that while having a verbal argument with one victim, he reached into his truck and retrieved a gun. 195 N.C. App. at 763, 673 S.E.2d at 875. The gun fired during a struggle, and another victim was killed. Id. at 762-63, 673 S.E.2d at 875. In that case, this Court's holding turned on the defendant's introduction of a gun into a verbal altercation. Id. at 764, 673 S.E.2d at 876. Because the defendant caused the encounter to "escalate[] to the point of deadly violence" by engaging in unlawful conduct, he deprived himself of the instruction on accident. Id.
In the case sub judice, defendant relies upon his own testimony of the events to support his requested instruction. Defendant testified that he introduced his gun into the conflict because he and Jarvis were arguing intensely about Jarvis's girlfriend and defendant was "scared." He testified that, while using his gun to "punch" Jarvis in the head, the gun accidently discharged, shooting Jarvis in the head and killing him. However, defendant, by his own admission, was engaged in an assault when the shooting occurred. As in Vincent, because defendant's conduct at the time of the shooting was unlawful, defendant's request for an instruction on the defense of accident was properly denied. See id. Accordingly, we hold that the trial court did not err in denying defendant's request for an instruction on accident.
Defendant's final argument is that the trial court expressed an opinion as to the presumption of innocence afforded defendant in violation of North Carolina General Statutes, sections 15A-1222 and 15A-1232. We disagree.
"Whenever a defendant alleges a trial court made an improper statement by expressing an opinion on the evidence in violation of [North Carolina General Statutes, sections] 15A-1222 and 15A-1232, the error is preserved for review without objection due to the mandatory nature of these statutory prohibitions." State v. Duke, 360 N.C. 110, 123, 623 S.E.2d 11, 20 (2005) (citing State v. Young, 324 N.C. 489, 494, 380 S.E.2d 94, 97 (1989)).
North Carolina General Statutes, section 15A-1222 provides that "[t]he judge may not express during any stage of the trial, any opinion in the presence of the jury on any question of fact to be decided by the jury." N.C. Gen. Stat. § 15A-1222 (2003). North Carolina General Statutes, section 15A-1232 provides that "[i]n instructing the jury, the judge shall not express an opinion as to whether or not a fact has been proved and shall not be required to state, summarize or recapitulate the evidence, or to explain the application of the law to the evidence." N.C. Gen. Stat. § 15A-1232 (2003).
"`In evaluating whether a judge's comments cross into the realm of impermissible opinion, a totality of the circumstances test is utilized.'" State v. Fleming, 350 N.C. 109, 126, 512 S.E.2d 720, 732 (1999) (quoting State v. Jones, 347 N.C. 193, 207, 491 S.E.2d 641, 649 (1997)). If a judge's statements are determined to be an impermissible expression of opinion, the defendant must further show that he was prejudiced by the remarks. State v. Jones, 358 N.C. 330, 355, 595 S.E.2d 124, 140 (citing State v. Weeks, 322 N.C. 152, 158, 367 S.E.2d 895, 899 (1988)), cert. denied, 543 U.S. 1023, 160 L. Ed. 2d 500 (2004).
Our Supreme Court has recognized the importance of viewing a trial court's instruction in context, rather than carving out an isolated statement made by a trial court in order to formulate a claim of prejudice. See State v. Jones, 294 N.C. 642, 653, 243 S.E.2d 118, 125 (1978). In Jones, the Supreme Court held that the isolated statements of a trial judge "may not be detached from the charge as a whole and critically examined for an interpretation from which prejudice to defendant may be inferred." Id. (citations omitted).
Here, during jury selection, defense counsel commented that a potential juror must "look at the defendant . . . being innocent, as innocent as the driven snow." The State objected. During a subsequent interview of another prospective juror, defense counsel stated that "[o]ur system requires us to believe and to know that a defendant is innocent until proven guilty." The State again objected. In response to the State's objections, the trial court explained that "[defendant] is presumed to be innocent is the law, not that he is innocent. But he is presumed to be innocent and that presumption stays with him." Although defendant argues that these comments expressed the trial judge's belief that defendant was not innocent, the trial court clearly set forth the correct legal presumption without prejudicing defendant.
In addition, the trial court made clear in its concluding instructions to the jury that "[u]nder our system of justice, when a defendant pleads not guilty he is not required to prove his innocence. He is presumed to be innocent. The State must prove to you that the [d]efendant is guilty beyond a reasonable doubt." Accordingly, we hold that the trial court did not err in its statements.
For these reasons, we hold that the trial court did not err in joining defendant's offenses into one trial. It also did not err in failing to instruct the jury on the defense of accident. We further hold that the trial court did not express an impermissible opinion by explaining the legal presumption of innocence to the jury.
No error.
Judges GEER and BEASLEY concur.
Report per Rule 30(e).