Opinion
No. COA12–646.
2013-02-19
STATE of North Carolina v. Frederick Karl TAFT, Jr. and Fernandez Kabrer Taft.
Attorney General Roy Cooper, by Special Deputy Attorney General Phillip K. Woods, in the appeal of Frederick Karl Taft, Jr., for the State. Attorney General Roy Cooper, by Assistant Attorney General David N. Kirkman, in the appeal of Fernandez Kabrer Taft, for the State.
Appeal by defendants from judgments entered 30 September 2011 by Judge Wayland J. Sermons, Jr., in Martin County Superior Court. Heard in the Court of Appeals 28 November 2012. Attorney General Roy Cooper, by Special Deputy Attorney General Phillip K. Woods, in the appeal of Frederick Karl Taft, Jr., for the State. Attorney General Roy Cooper, by Assistant Attorney General David N. Kirkman, in the appeal of Fernandez Kabrer Taft, for the State.
Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Daniel Shatz, for Frederick Karl Taft, Jr., defendant appellant.
Sue Genrich Berry for Fernandez Kabrer Taft, defendant appellant.
McCULLOUGH, Judge.
Frederick Karl Taft, Jr. (“defendant 1”) and Fernandez Kabrer Taft (“defendant 2”) (together “defendants”) appeal from their convictions of voluntary manslaughter, assault with a deadly weapon inflicting serious injury, and discharging a firearm into an occupied vehicle while in operation. Defendant 1 additionally appeals from his conviction of possession of a firearm by a felon. For the following reasons, we find no prejudicial error.
I. Background
On 27 July 2009, warrants were issued for the arrest of defendants as a result of a 23 May 2009 shootout. Defendants were thereafter arrested. On 2 February 2010, defendants were each indicted on charges of murder, assault with a deadly weapon with intent to kill and inflicting serious injury, and discharging a weapon into an occupied vehicle while in operation. Defendant 1 was additionally indicted on charges of attempted murder and possession of a firearm by a felon. The charges against defendant 1 and defendant 2 were joined for trial and came on to be tried before a jury at the 26 September 2011 Criminal Session of Martin County Superior Court, the Honorable Wayland J. Sermons, Jr., presiding.
Testimony proffered by the State at trial tended to show that the 23 May 2009 shootout stemmed from a dispute earlier that day between defendant 2 and two males, Jarrell Lovette (“Lovette”) and Gregory Collier (“Collier”). The dispute arose when defendant 2 took a firearm from Lovette and Collier, who were trying to sell the firearm outside of a convenience store in Hamilton, North Carolina, and refused to return the firearm. As a result of the altercation, on the night of 23 May 2009, Lovette, Collier and two of their acquaintances, Patrick Staton (“Staton”) and Travonn Barnes (“Barnes”), traveled by vehicle from Hamilton to defendants' residence in Oak City, North Carolina.
Upon their arrival in Oak City, Staton drove the vehicle by defendants' residence at least one time before the shootout began. Staton then circled back around the block and slowed the vehicle to approximately fifteen miles per hour as they approached defendants' residence for another pass. Collier, Lovette, and Staton testified that they did not see anyone outside defendants' residence on their first pass. However, testimony indicated that defendants were waiting outside their residence with pistols in their hands when the vehicle approached for the subsequent pass.
It is unclear from the testimony proffered at trial who fired the first shots. Lovette and Staton testified that the first shots came from inside the vehicle. However, Collier offered contradictory testimony that the first shots came from outside the vehicle as the vehicle approached defendants' residence. Regardless of who fired the first shots, the evidence tended to show that Barnes, Collier, and Lovette fired shots from the vehicle and defendant 1 and defendant 2 each fired shots at the vehicle.
During the exchange of gunfire, Barnes and Collier were shot. Barnes, who was riding in the rear driver side seat, was struck in the head and killed. Collier, who occupied the rear passenger side seat, was struck in the neck and is now a quadriplegic.
On 30 September 2011, the jury returned separate verdicts finding each defendant guilty of voluntary manslaughter, assault with a deadly weapon inflicting serious injury with the aggravating factor that the serious injury is permanent and debilitating, and discharging a weapon into an occupied vehicle while in operation. In addition, the jury also returned a guilty verdict on the charge for possession of a firearm by a felon against defendant 1. The trial court entered judgments as to both defendants. Defendant 1 was sentenced to terms of 117 to 150 months, 46 to 65 months, 94 to 122 months, and 20 to 24 months, the last three terms to be served concurrently and consecutive to the first term. Defendant 2 was sentenced to terms of 51 to 71 months, 31 to 47 months, and 51 to 71 months, the last two terms to be served concurrently and consecutive to the first term. Defendant 1 and defendant 2 timely appealed.
II. Analysis
Each defendant raises multiple issues on appeal. For the common issues raised by both defendants, we address defendants' arguments together. For the dissimilar issues raised by each defendant, we address each defendant's arguments separately.
Self-defense/Defense of Family
Both defendants argue that the State failed to offer substantial evidence that the shootings of Barnes and Collier were anything but perfect self-defense and defense of family. Thus, defendants contend that the trial court erred in failing to grant their motions to dismiss the charges at the close of the State's evidence. “This Court reviews the trial court's denial of a motion to dismiss de novo.” State v. Smith, 186 N.C.App. 57, 62, 650 S.E.2d 29, 33 (2007).
Perfect self-defense is a complete defense “and requires a verdict of not guilty, not only as to the charge of murder in the first degree but as to all lesser included offenses as well.” State v. Norris, 303 N.C. 526, 530, 279 S.E.2d 570, 573 (1981). In order for perfect self-defense to justify a killing, the following four elements must be present at the time of the killing:
(1) it appeared to defendant and he believed it to be necessary to kill the deceased in order to save himself from death or great bodily harm; and
(2) defendant's belief was reasonable in that the circumstances as they appeared to him at the time were sufficient to create such a belief in the mind of a person of ordinary firmness; and
(3) defendant was not the aggressor in bringing on the affray, i.e., he did not aggressively and willingly enter into the fight without legal excuse or provocation; and
(4) defendant did not use excessive force, i.e., did not use more force than was necessary or reasonably appeared to him to be necessary under the circumstances to protect himself from death or great bodily harm.
Id. at 530, 279 S.E.2d at 572–73. If defendant “was the aggressor in bringing on the difficulty, or defendant used excessive force, the defendant under those circumstances has only the imperfect right of self-defense, having lost the benefit of perfect self-defense, and is guilty at least of voluntary manslaughter.” Id. at 530, 279 S.E.2d at 573. “The above principles are equally applicable when a person acts in defense of a family member.” State v. Irby, 113 N.C.App. 427, 433, 439 S.E .2d 226, 231 (1994).
When there is some evidence in a case that a defendant acted in self-defense, it is well established that “[t]he burden is upon the State to prove beyond a reasonable doubt that the defendant did not act in self-defense....” State v. Herbin, 298 N.C. 441, 445, 259 S.E.2d 263, 267 (1979). “However, ... the test on a motion to dismiss is whether the State has presented substantial evidence which, taken in [the] light most favorable to the State, is sufficient to convince a rational trier of fact the defendant did not act in self-defense.” State v. Gilreath, 118 N.C.App. 200, 208, 454 S.E.2d 871, 876 (1995). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78–79, 265 S.E.2d 164, 169 (1980).
In the present case, defendants argue that the State's own evidence unequivocally establishes that the shooting was committed in defense of self and family. We disagree.
First, although both Staton and Lovette testified that the first shots were fired from inside the vehicle, Collier testified that the first shots were fired from outside the vehicle as the vehicle was approaching defendants' residence. Second, testimony also revealed that defendants continued to fire shots at the vehicle after the vehicle had passed defendants' residence and was driving away. Viewing this evidence in the light most favorable to the State, we find the evidence sufficient to raise questions for the jury as to whether defendants were the aggressors in bringing on the affray or whether defendants used excessive force to repel an attack.
Despite the evidence, defendants additionally argue that even if they fired the first shot or continued to fire after the vehicle had passed, self-defense and defense of family includes reasonably responding to repel an apparent or imminent threat. While defendants are correct in their assertion, the reasonableness of their apprehension and response are questions for the jury to decide. See Herbin, 298 N.C. at 447, 259 S.E.2d at 268 (“The reasonableness of [defendants'] belief[s] is to be determined by the jury from the facts and circumstances as they appeared to the defendant[s] at the time of the killing.”); see also State v. Marsh, 293 N.C. 353, 237 S.E.2d 745 (1977); State v. Kirby, 273 N.C. 306, 160 S.E.2d 24 (1968). Therefore, the trial court did not err in denying defendants' motion to dismiss.
Acting in Concert Instruction
In addition to challenging the sufficiency of the evidence supporting the charges against defendants, defendant 2 contends that the trial court erred by providing an acting in concert instruction to the jury over his objection. On appeal, “[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).
In general,
[u]nder the theory of acting in concert, a defendant “may be found guilty of an offense if he is present at the scene of the crime and the evidence is sufficient to show he is acting together with another who does the acts necessary to constitute the crime pursuant to a common plan or purpose to commit the crime.”
State v. Evans, 346 N.C. 221, 231, 485 S.E.2d 271, 276 (1997) (quoting State v. Wilson, 322 N.C. 117, 141, 367 S.E.2d 589, 603 (1988)). Yet, “ ‘[t]he theory of acting in concert does not require an express agreement between the parties. All that is necessary is an implied mutual understanding or agreement to do the crimes.’ “ State v. Hill, 182 N.C.App. 88, 93, 641 S.E.2d 380, 385 (2007) (quoting State v. Giles, 83 N.C.App. 487, 350 S .E.2d 868 (1986)).
Although it is clear defendant 2 was present at the scene of the crimes, defendant 2 argues that there is no evidence that he and defendant 1 were acting “pursuant to a common plan or purpose to commit the crime[s].” Thus, defendant 2 claims that it was error for the trial court to submit the acting in concert instruction to the jury because it lessened the State's burden to prove that he personally committed every element of the offenses charged. We disagree.
“It is the duty of the trial court to instruct the jury on all substantial features of a case raised by the evidence.” State v. Shaw, 322 N.C. 797, 803, 370 S.E.2d 546, 549 (1988). As previously noted, testimony elicited at trial indicated that defendants were waiting outside with pistols drawn when the vehicle made a second pass by their residence; the first shots were fired from outside the vehicle as the vehicle was approaching defendants' residence; both defendants fired shots at the vehicle, and defendant 1 ran across the street behind the vehicle and continued to fire shots as the vehicle drove away. Although “a trial judge should not give instructions to the jury which are not supported by the evidence produced at the trial[,]” State v. Cameron, 284 N.C. 165, 171, 200 S.E.2d 186, 191 (1973), we find the above evidence sufficient to warrant a concerted action instruction to the jury.
Discharging a Weapon into an Occupied Vehicle
Both defendants additionally contend that there was insufficient evidence to support their conviction for discharging a weapon into an occupied vehicle while in operation as that offense was defined in the jury charge. In asserting this contention, defendants frame the issue in terms of sufficiency of the evidence and claim that the trial court erred in failing to dismiss the charges of firing a weapon into an occupied vehicle upon their motions to dismiss at the conclusion of the State's presentation of evidence, motions decided well before the jury was provided instructions and the issue presented by defendants on appeal came to maturity.
In support of their argument, defendants cite State v. Wilson, 345 N.C. 119, 478 S.E.2d 507 (1996), for the proposition that “[t]he Due Process Clause of the United States Constitution requires that the sufficiency of the evidence to support a conviction be reviewed with respect to the theory of guilt upon which the jury was instructed.” Id. at 123, 478 S.E.2d at 510. In Wilson, where a defendant was on trial for murder, the “[trial] court explicitly told the jury that acting in concert was only to be considered with respect to the felony murder rule and that acting in concert did not apply to first-degree murder on the basis of premeditation and deliberation.” Id. Consequently, the State had to prove every element of first-degree murder on the basis of premeditation and deliberation. In Wilson, our Supreme Court determined the evidence was insufficient to do so. Id. at 125, 478 S.E.2d at 511–12;see also State v. Cunningham, 140 N.C.App. 315, 536 S.E.2d 341 (2000) (Upon review of a conviction for first-degree burglary where defendant was one of several individuals involved in the alleged offense, this Court held there was insufficient evidence that the defendant personally committed a breaking and therefore the conviction could not stand where the court did not instruct the jury on acting in concert.); State v. Roberts, 176 N.C.App. 159, 625 S.E.2d 846 (2006) (Upon review of a conviction for first-degree sex offense, this Court held there was insufficient evidence that the defendant personally employed or displayed a dangerous weapon and therefore the conviction could not stand where the court did not instruct the jury on acting in concert or aiding and abetting.).
Contrary to defendants' position, the State frames the issue as an instructional error and claims that the trial court issued the wrong pattern jury instruction for discharging a weapon into an occupied vehicle in operation pursuant to N.C. Gen.Stat. § 14–34.1. The State further contends that the instructional error was not preserved for appeal and does not amount to plain error. We agree with the State.
After reviewing the arguments and applicable case law, we find a distinction between the cases cited by defendants in which the trial court failed or refused to give an acting in concert instruction and there was otherwise insufficient evidence to support the convictions, and the case presently before this Court, where the trial court mistakenly issued the wrong instruction but there is otherwise sufficient evidence to support the convictions for discharging a weapon into an occupied vehicle pursuant to N.C. Gen.Stat. § 14–34.1 (2011).
As indicated in State v. Small, 201 N.C.App. 331, 341, 689 S .E.2d 444, 450 (2009), N.C. Gen.Stat. § 14–34.1 covers both the discharging of a firearm into an occupied vehicle and the discharging of a barreled weapon with a muzzle velocity over 600 feet per second into an occupied vehicle. 201 N.C. App 331, 341, 689 S.E.2d 444, 450 (2009). The Pattern Jury Instructions further reflect both ways a defendant may be found guilty under N.C. Gen.Stat. § 14–34.1 by discharging a weapon into an occupied vehicle. See N.C.P.I.-Crim. 208.90D (2011); N.C.P.I.-Crim. 208.90E (2011). The only difference between the instructions is the distinction between a firearm and a barreled weapon, defined to include only those barreled weapons with a muzzle velocity over 600 feet per second. Comparing N.C.P.I.-Crim. 208.90D and N.C.P.I.-Crim. 208.90E.
In the present case, although there was no evidence of muzzle velocity, there was sufficient evidence that defendants fired “firearms” into the vehicle occupied by Barnes, Collier, Staton, and Lovette. Thus, the trial court did not err in failing to dismiss the charges upon defendants' motions to dismiss. The issue now raised by defendants did not arise until the trial court mistakenly instructed the jury pursuant to N.C.P.I.-Crim. 208.90E, concerning the use of a barreled weapon, instead of N.C.P.I.-Crim. 208.90D, concerning the use of a firearm. As a result, we think the trial court's error was instructional. Furthermore, although the State may have erred in failing to object to the jury instruction given, defendants cannot idly accept the mistaken instruction and wait to take advantage of the error on appeal.
An instructional error not objected to at trial is not preserved for appeal. SeeN.C.R.App. P. 10(a)(2) (2011) (“A party may not make any portion of the jury charge or omission therefrom the basis of an issue presented on appeal unless the party objects thereto before the jury retires ....”); see also State v. McNeil, 350 N.C. 657, 691, 518 S.E.2d 486, 507 (1999). Nonetheless, “plain error review is available in criminal appeals, for challenges to jury instructions and evidentiary issues, ... [but] only in truly exceptional cases when absent the error the jury probably would have reached a different verdict.” Dogwood Dev. & Mgmt. Co. LLC v. White Oak Transp. Co., 362 N.C. 191, 196, 657 S.E .2d 361, 364 (2008) (internal quotation marks and citations omitted). Furthermore, defendants must specifically contend that the judicial action amounts to plain error. SeeN.C.R.App. P. 10(a)(4).
Here, defendants do not allege plain error. Nevertheless, assuming arguendo that defendants did allege plain error, defendants have not shown that the outcome would have been different had the trial court issued the correct jury instruction, N.C.P.I.-Crim. 208.90D, for discharging a firearm into an occupied vehicle in operation.
Jury Instructions
The last issue raised by both defendants is whether the trial court erred by failing to instruct the jury that defendants had no duty to retreat and by instructing the jury that they could find that defendants were the initial aggressors. We find no prejudicial error in the jury instructions.
As previously noted, “[arguments] challenging the trial court's decisions regarding jury instructions are reviewed de novo by this Court.” Osorio, 196 N.C.App. at 466, 675 S.E.2d at 149. Yet, “[a] party may not make any portion of the jury charge or omission therefrom the basis of an issue presented on appeal unless the party objects thereto before the jury retires ....“ N.C.R.App. P. 10(a)(2); see also McNeil, 350 N.C. at 691, 518 S.E.2d at 507.
In this case, defendants failed to object to the instructions at trial. However, defendants now assert that the lack of a no duty to retreat instruction and the inclusion of an instruction on initial aggressors amount to plain error. Plain error arises when the error 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). “Under the plain error rule, defendant must convince this Court not only that there was error, but that absent the error, the jury probably would have reached a different result.” State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993).
Specifically regarding the lack of a no duty to retreat instruction, defendants argue that because self-defense and defense of family were their primary defenses, it was plain error not to give an instruction on the issue of retreat. This argument is analogous to the issues addressed in State v. Morgan, 315 N.C. 626, 340 S.E.2d 84 (1986), and State v. Effler, 207 N.C.App. 91, 698 S.E.2d 547 (2010). In Morgan and Effler, our Courts acknowledged that it was error not to provide an instruction on the issue of retreat but held the defendants had not carried their burden of showing plain error. See Morgan, 315 N.C. at 647, 340 S.E.2d at 97 (“Our review of the whole record fails to convince us that absent the error, the jury probably would have reached a different verdict.”); Effler, 207 N.C.App. at 101, 698 S.E.2d at 553 (“Viewing the evidence in the present case, we conclude that the jury would have reached the same verdict if the jury was instructed that defendant did not have a duty to retreat in the curtilage of his home.”). Likewise, we acknowledge the trial court's error but conclude defendants have failed to demonstrate that the jury probably would have reached a different result absent the error.
In the present case, defendants were charged with murder, assault with a deadly weapon with intent to kill and inflicting serious injury, and discharging a weapon into an occupied vehicle while in operation. At trial, the State's case centered on proving defendants were the aggressors and used excessive force. Then, while providing the jury charge on murder, the trial court instructed the jury on lesser included offenses and explained that “if the State proves beyond a reasonable doubt that the defendant, though otherwise acting in self-defense, used excessive force or was the aggressor, though the defendant had no murderous intent when the defendant entered the fight, the defendant[s] would be guilty of Voluntary Manslaughter.” Following deliberations, the jury ultimately found defendants guilty of voluntary manslaughter.
The Pattern Jury Instruction on the issue of retreat requested by defendants provides:
If the defendant was not the aggressor and the defendant was [in the defendant's own home] [on the defendant's own premises] [in the defendant's place of residence] [at the defendant's workplace] [in the defendant's motor vehicle] [at a place the defendant had a lawful right to be], the defendant could stand the defendant's ground and repel force with force regardless of the character of the assault being made upon the defendant. However, the defendant would not be excused if the defendant used excessive force.
N.C.P.I.-Crim. 308.10 (2012) (footnote omitted). In accordance with the language of the pattern instruction, the duty not to retreat only becomes a factor for the jury's consideration when defendants are found not to have been the initial aggressors or to have used excessive force.
Where sufficient evidence exists that defendants were the initial aggressors or used excessive force and where
[n]either the instruction given at trial, nor the instruction sought by defendant on appeal, excuse defendant if he used excessive force or was the aggressor in the affray[,] ... defendant has not shown that the jury would have reached a different verdict absent the trial court's refusal to instruct on the duty not to retreat.
Effler, 207 N.C.App. at 100, 698 S.E.2d at 553. Thus, “defendant has not carried his burden of showing ‘plain error.’ “ Morgan, 315 N.C. at 647, 340 S.E.2d at 97.
In regard to the instruction concerning initial aggressors, defendants contend there was insufficient evidence to support a finding that defendants were the initial aggressors and therefore the trial court erred in providing the instruction to the jury. We disagree. As previously discussed, sufficient evidence exists to permit the instruction on initial aggressors.
Ineffective Assistance of Counsel
In addition to the issues common to both defendants, defendant 1 contends that he received ineffective assistance of counsel when his counsel failed to request an instruction on necessity in regard to the charge for possession of a firearm by a felon and when his counsel conceded that a necessity defense was unavailable. We disagree.
“To prevail on a claim of ineffective assistance of counsel, a defendant must first show that his counsel's performance was deficient and then that counsel's deficient performance prejudiced his defense.” State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271, 286 (2006). “Decisions concerning which defenses to pursue are matters of trial strategy and are not generally second-guessed by this Court.” State v. Prevatte, 356 N.C. 178, 236, 570 S.E.2d 440, 472 (2002).
After reviewing the applicable case law, we find it unclear whether necessity is an available defense to a defendant charged with possession of a firearm by a felon in North Carolina. This Court has previously noted that justification has been recognized as an affirmative defense to a charge of possession of a firearm by a felon in federal court. See State v. Craig, 167 N.C.App. 793, 795, 606 S.E.2d 387, 389 (2005) (referencing United States v. Deleveaux, 205 F.3d 1292 (11th Cir.2000)). “However, this Court has [also] specifically noted ‘that the Deleveaux court limited the application of the justification defense to 18 U.S.C. § 922(g)(1) cases (federal statute for possession of a firearm by a felon) in “only extraordinary circumstances.” ‘ “ Id. at 796,606 S.E.2d at 389 (quoting State v. Napier, 149 N.C.App. 462, 465, 560 S.E.2d 867, 869 (2002) (quoting Deleveaux, 205 F.3d at 1297)).
Addressing whether the trial court erred in failing to give the jury instructions on necessity as a defense to possession of a firearm by a felon in prior cases, we have assumed arguendo that a necessity defense was available. See Craig, 167 N.C.App. at 795–97, 606 S.E.2d at 388–89;Napier, 149 N.C.App. at 465, 560 S.E.2d at 869. However, in Craig and Napier the ultimate decisions of this Court did not decide the availability of a necessity defense because evidence in both cases revealed that the defendants possessed firearms at times when it was determined to be unnecessary. Furthermore, this Court explicitly stated in Napier that it was deciding the case “[w]ithout ruling on the general availability of the justification defense in possession of a firearm by a felon cases in North Carolina[.]” Napier, 149 N.C.App. at 465, 560 S.E.2d at 869.
Likewise, we need not address whether a necessity defense is generally available to combat a charge of possession of a firearm by a felon in North Carolina. In order to decide the issue presently before this Court, it is sufficient that we recognize the uncertainty surrounding the availability of the defense. Given that uncertainty, defendant 1 cannot show that his counsel's representation was deficient, and thus we cannot conclude that defendant 1 received ineffective assistance of counsel.
III. Conclusion
For the reasons set forth above, we find no prejudicial error in the proceedings below.
No error. Judges STEELMAN and STEPHENS concur.
Report per Rule 30(e).