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No. COA 13-1353 THIRTEEN A DISTRICT
NORTH CAROLINA COURT OF APPEALS
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STATE OF NORTH CAROLINA ))
v. ) From Columbus)
SANTONIO THURMAN JENRETTE )
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DEFENDANT-APPELLANT’S BRIEF
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ii
INDEX
TABLE OF CASES AND AUTHORITIES............................................................iv
QUESTIONS PRESENTED.....................................................................................1
PROCEDURAL HISTORY......................................................................................2
GROUNDS FOR APPELLATE REVIEW...............................................................4
STATEMENT OF THE FACTS...............................................................................4A. An Altercation Which Began At A Football Game Ended With
A Drive-By Shooting............................................................................B. Investigators Found Casings At The Scene And The Stolen
Taurus Burned In A Field.....................................................................C. The Night Of September 22, Jenrette and Reaves Were Pulled
Over For A Faulty Taillight..................................................................D. Jones Went Missing On November 19 And His Body Was
Discovered In The Woods On December 5........................................E. Prisoner Testimony.............................................................................
ARGUMENT..........................................................................................................14
I. THE COURT ERRED BY DECIDING LYING IN WAIT MAY BE SUBMITTED TO THE JURY ANYTIME THERE IS NO ALTERCATION PRIOR TO THE MURDER........................................A. Lying In Wait Cannot Be Submitted Anytime No Altercation
Occurs Before A Murder....................................................................
iii
B. Finding Lying In Wait As Appropriate Any Time A Murder Occurs Without A Prior Altercation Renders The Theory Unconstitutionally Overbroad.............................................................
C. Expanding Lying In Wait To Include Any Murder Without A Prior Altercation Would Strip Intent From Almost All First Degree Murders..................................................................................
D. The Evidence Was Insufficient To Instruct On Lying In Wait...........
II. THE COURT ERRED BY INSTRUCTING ON THE THEORY OF FELONY MURDER BY KIDNAPPING AS FELONY MURDER WAS NOT SUPPORTED BY THE EVIDENCE..................
III. THE COURT COMMITTED PLAIN ERROR BY FAILING TO INSTRUCT THE JURY OF ITS DUTY TO RETURN A NOT GUILTY VERDICT IF THE STATE FAILED TO ESTABLISH GUILT BEYOND A REASONABLE DOUBT........................................
IV. THE JURY CHARGE FAILED TO INDIVIDUALIZE THE CHARGES SUFFICIENTLY TO PROTECT JENRETTE’S RIGHT TO DUE PROCESS AND A FAIR TRIAL................................
V. JOINING TWELVE CHARGES BASED ON INCIDENTS OCCURRING ON THREE DATES INVOLVING FOUR VICTIMS DENIED JENRETTE HIS CONSTITUTIONAL RIGHT TO DUE PROCESS......................................................................
CONCLUSION.......................................................................................................37
CERTIFICATE OF SERVICE AND FILING........................................................37
CERTIFICATE OF COMPLIANCE......................................................................38
APPENDIXJury Charge
iv
TABLE OF AUTHORITIES
Cases
In re Winship, 397 U.S. 358 (1970)..............................................................
Jackson v. Virginia, 443 U.S. 307 (1979).....................................................
N.C. Dep’t of Envtl. & Natural Res. V. Carroll, 358 N.C. 649, 599 S.E.2d 888 (2004).....................................
Pointer v. U.S., 151 U.S. 396 (1894)............................................................
State v, Gardner, 322 N.C. 591, 369 S.E.2d 593 (1988)..............................
State v. Aikens, 342 N.C. 567, 467 S.E.2d 99 (1996)...................................
State v. Allison, 298 N.C. 135, 257 S.E.2d 417 (1979)...............
State v. Baldwin, 330 N.C. 446, 412 S.E.2d 31 (1992).................................
State v. Camacho, 337 N.C. 224, 446 S.E.2d 8 (1994).................................
State v. Camp, 286 N.C. 148, 209 S.E.2d 754 (1974)...................................
State v. Cheek, 339 N.C. 725, 453 S.E.2d 862 (1995)..................................
State v. Daniels, 741 S.E.2d 354, __ N.C.App. __ (2012)............................
State v. Davis, 289 N.C. 500, 223 S.E.2d 296, vacated in part on other grounds, 429 U.S. 809 (1976).......................................
State v. Dunheen, 224 N.C. 738, 32 S.E.2d 322 (1944)................................
State v. Gardner, 322 N.C. 591, 369 S.E.2d 593 (1988)..............................
State v. Green, 348 N.C. 588, 502 S.E.2d 819 (1998)..................................
State v. Howell, 218 N.C. 280, 10 S.E.2d 815 (1940).............................
State v. Johnson, 317 N.C. 193, 344 S.E.2d 775 (1986)...............................
v
State v. Lawrence, 365 N.C. 506, 723 S.E.2d 326 (2012)................
State v. Lee, 28 N.C.App. 156, 220 S.E.2d 164 (1975)................................
State v. Leroux, 326 N.C. 368, 390 S.E.2d 314 (1990).................................
State v. McHone, 174 N.C.App. 289, 620 S.E.2d 903 (2005)......................
State v. Montford, 137 N.C. App. 495, 529 S.E.2d 247, disc. rev. denied, 353 N.C. 275, 546 S.E.2d 386 (2000).............................
State v. Osorio, 196 N.C. App. 458, 675 S.E.2d 144 (2009)............
State v. Overman, 257 N.C. 464, 125 S.E.2d 920 (1962).............................
State v. Sanford Video & News, Inc., 146 N.C. App. 554, 553 S.E.2d 217 (2001)........................................................................
State v. Silva, 304 N.C. 122, 282 S.E.2d 449 (1981)....................................
State v. Ward, 300 N.C. 150, 266 S.E.2d 581 (1980)...................................
State v. Wiggins, 171 N.C. 813, 89 S.E. 58 (1916).......................................
State v. Williams, 355 N.C. 501, 565 S.E.2d 609 (2002)..............................
State v. Wiseman, 178 N.C. 784, 101 S.E. 629 (1919).................................
Sullivan v. Louisianna, 508 U.S. 275 (1993)................................................
Statutes
Cal. Penal Code 189......................................................................................
N.C. Gen. Stat. § 7A-27(b).............................................................................
N.C. Gen. Stat. §14-17..................................................................................
N.C. Gen. Stat. § 15A-906(a)........................................................................
N.C. Gen. Stat. § 15A-907(c)(2)...................................................................
N.C. Gen. Stat. § 15A-926......................................................................
vi
N.C. Gen. Stat. § 15A-927......................................................................
N.C. Gen. Stat. § 15A-1443(b).....................................................................
N.C. Gen. Stat. § 15A-1444(a)........................................................................
Other Authorities
7 Strong’s North Carolina Index 2d Statutes § 5 (1968)..................................................................................................
Rules
Rule 4(a) N.C.R.App.P...................................................................................
Constitutional Provisions
N.C. Const. Art. I, § 19.....................................................................
N.C. Const. Art. I, § 24.................................................................................
N.C. Const. Art. I, § 27.................................................................................
U.S. Const. Amends. V.....................................................................
U.S. Const. Amends. VI................................................................................
U.S. Const. Amends. VIII.............................................................................
U.S. Const. Amends. XIV.................................................................
No. COA 13-1353 THIRTEEN A DISTRICT
NORTH CAROLINA COURT OF APPEALS
**************************************************
STATE OF NORTH CAROLINA ))
v. ) From Columbus)
SANTONIO THURMAN JENRETTE )
****************************************************
DEFENDANT-APPELLANT’S BRIEF
****************************************************
QUESTIONS PRESENTED
I. WHETHER THE COURT ERRED BY DECIDING LYING IN WAIT MAY BE SUBMITTED ANY TIME NO ALTERCATION OCCURED PRIOR TO A MURDER?
II. WHETHER THE COURT ERRED BY INSTRUCTING ON FIRST DEGREE MURDER BASED ON THE THEORY OF FELONY MURDER BY KIDNAPPING AS KIDNAPPING WAS NOT SUPPORTED BY THE EVIDENCE?
2
III. WHETHER THE COURT COMMITTED PLAIN ERROR BY FAILING TO INSTRUCT THE JURY OF ITS DUTY TO RETURN A NOT GUILTY VERDICT FOR FIRST-DEGREE MURDER IF THE STATE FAILED TO ESTABLISH GUILT BEYOND A REASONABLE DOUBT?
IV. WHETHER THE COURT’S FAILURE TO INSTRUCT INDIVIDUALLY ON EACH CHARGE VIOLATED JENRETTE’S CONSTITUTIONAL RIGHT TO DUE PROCESS?
V. WHETHER JOINING TWELVE CHARGES BASED ON INCIDENTS OCCURRING ON THREE DATES INVOLVING FOUR VICTIMS DENIED JENRETTE HIS CONSTITUTIONAL RIGHT TO DUE PROCESS?
PROCEDURAL HISTORY
On 11 November 2007 Santonio Jenrette was indicted on the
following charges:
07 CRS 53533 PWISD Cocaine
07 CRS 53537 Possession of a stolen firearm;
On 9 January 2008, Jenrette was indicted on the following charges:
08 CRS 00081 Possession of a firearm by a felon
08 CRS 00082 First degree murder of Darnell Antonio Frink
08 CRS 00083 AWDWIKISI: William Jermaine Inman
08 CRS 00084 AWDWIKISI: Antwan Tramaine Waddell
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08 CRS 00085 Conspiracy to commit 1st degree murder
08 CRS 00093 First degree murder of Rashed Delamez Jones
08 CRS 00091 Conspiracy to commit 1st degree murder
08 CRS 00092 Possession of a firearm by a felon
08 CRS 00094 First degree kidnapping
08 CRS 00096 Conspiracy to commit first degree kidnapping
The case came on for trial at the 24 June 2013 Session of the Columbus County
Superior Court, the Honorable Douglas B. Sasser, presiding. At the close of all of
the evidence, the Court dismissed possession of a stolen firearm. On 3 July 2013
the jury found Mr. Crowder not guilty of first degree kidnapping and not guilty of
conspiracy to commit first degree kidnapping. The jury found defendant guilty of
the remaining counts.
The Court sentenced Mr. Jenrette to life in prison without parole on each
murder convictions, 08 CRS 00082 and 08 CRS 00093, to run consecutively. The
Court ran the following sentences concurrently to 08 CRS 00093: in file number 07
CRS 53533, possession with intent to sell and/or deliver cocaine, eight month
minimum to ten month maximum; in file number 08 CRS 00081, a minimum of 15
months and a maximum of 18 months; in each count of assault with a deadly
weapon with intent to kill inflicting serious injury, 08 CRS 00083 and 08 CRS
4
00084, a minimum of 100 months and a maximum of 129 months; in each count of
conspiracy to commit murder, file numbers 08 CRS 00085 and 08 CRS 00091, a
minimum of 189 months and a maximum of 236 months, with credit for time
served; in file number 08 CRS 00092, possession of a firearm by a felon, a
minimum of 15, maximum of 18 months.
Notice of appeal was given in open court on 3 July 2013. The settled Record
on Appeal was filed in this Court on 4 December 2013 and docketed on 4
December 2013.
GROUNDS FOR APPELLATE REVIEW
This is an appeal of right pursuant to the provisions of N.C. Gen. Stats. §§
7A-27(b) and 15A-1444(a) and Rule 4(a) N.C.R.App.P. from final judgments of
conviction by a defendant who pled not guilty and was found guilty of non-capital
crimes.
STATEMENT OF THE FACTS
Santonio Jenrette was indicted on twelve charges, stemming from three
different incidents. The first incident occurred on September 21, 2007. Darnell
Frink was shot and killed and two other young men injured by bullets when
individuals fired shots from a stolen Ford Taurus which was being driven past a
crowd of young people gathered at Sam’s Pit Stop in Lake Waccamaw after a high
5
school football game. The second incident occurred the next evening. Jenrette was
the driver of an Acura stopped for a taillight violation. Jenrette’s brother Connail
Reaves was a passenger. Investigators found cocaine and firearms in the car and on
Reaves’s person. The third incident occurred on or about November 19, 2007.
Rashed Delamez Jones, a passenger in the Taurus during the drive-by shooting,
was shot numerous times. His body was found in the woods on December 5, 2007.
Marquell Hunter and Reaves entered guilty pleas. Joey Soles, who witnesses
testified was a passenger in the Taurus, died during an unrelated incident. (Tp.
1225) Jenrette entered a plea of not guilty and went to trial.
A. An Altercation Which Began At A Football Game Ended With A Drive-By Shooting
Jason Williams arrived at a Whiteville versus East Columbus football game
during the fourth quarter. Williams rode to the game in a Tahoe along with Darnell
Frink, Travis Williams, Eugene Williams and William Inman. Williams met up
with Reaves. Reaves was agitated. He took his shirt off preparing to fight, but the
men parted. (Tpp. 527-528) After the game, Williams and his friends drove to
Sam’s Pitt Stop. Travis was sent inside to pay for gas and buy beer. (Tpp. 531-532)
While waiting for Travis, Williams spotted a car driving in with guns pointing out
the windows. Williams was standing next to Frink. Frink was killed by shots fired
from the car. (Tpp. 533, 535) Williams never saw Jenrette at the game or at the
6
store. Williams told SBI Agent Hickman he was one hundred percent sure it was
Reaves who fired on him and Frink. (Tp. 551)
William Inman was standing with Williams and Frink. Inman saw four
masked people in the Taurus. When he saw the passengers had guns, Inman ran
behind the Tahoe. After he ducked down, Inman realized he had been shot. Inman
had not seen Jenrette that night, either at the game or at the store. (Tpp. 596, 601)
He didn’t learn until later there had been an argument at the game between Reaves
and Thurman Jenrette (known as L.T.), Jenrette’s older brother. (Tp. 596) Antwan
Waddell, a freshman at East Columbus, was also at Sam’s Pitt Stop. He did not
know Inman or Frink. Waddell heard shots, ran and then realized he was shot.
(Tpp. 556-563)
Reaves testified he drove to the game in a silver Taurus that Soles was
allowing him to drive. Hunter rode with Reaves and Soles. Jenrette did not go to
the game with Reaves. (Tpp. 1142, 1147) His nephew, Delamez Jones, came up to
Reaves during the game. Delamez complained to Reaves that Eugene Williams
“had jacked him up.” Reaves walked over to Williams and asked if he had
problems with his little cousin. He saw Williams and others taking off their shirts,
so he took his off too. Reaves told L.T. they shouldn’t fight there because of police
presence. (Tpp. 1144-1145) After Reaves drove away from the stadium, he turned
7
in to the store where Eugene Williams was standing. Soles, Hunter and Jones were
riding in the Taurus with Reaves. Reaves had three guns, a 24 caliber, a 45 caliber
and a 44 caliber. Reaves testified he fired the 25 caliber one time. Soles and Hunter
were also shooting. Reaves told the jury the shooting was in retaliation for an
earlier incident during which individuals fired shots at an Expedition he was
driving. His friend had been shot in the chest. (Tpp. 1148 -1149) After the
shooting, Reaves dropped off Jones at Shooters. He burned the car in a field. (Tp.
1149) After pleading guilty to second degree murder, he was sentenced to 157 to
197 months. (Tp. 1156) On cross-examination, Reaves admitted he had signed a
written statement attached to his plea agreement which alleged Jenrette was at the
game and in the Taurus. Reaves testified he would have signed anything to get a
lesser sentence. (Tpp. 1168, 1176)
Jenrette testified on the night of the game he was in Stanley Circle, where
his grandmother lived, selling marijuana. He denied going to the game, picking
anyone up at the game or dropping anyone off at the pool hall. (Tpp. 1187. 1190)
Sabrina Moody, an aunt of Delamez, attended the game because her son
played for Whiteville. (Tp. 644) Moody drove Delamez to the game. She told him
he could walk around during the game, but to find her before the game ended.
During the game, Moody saw L.T., Reaves, Hunter and Delamez standing together
8
at the food stand. She did not see Jenrette at the game. (Tp. 668) After the game,
her daughter spotted Delamez in the crowd, but was unable to get his attention.
Moody called his mother and was told she could leave without Delamez. (Tpp.
647-648) Moody dropped off other children she had taken to the game, including
her mother’s foster son. As Moody was backing out of her mother’s driveway, she
saw a green Taurus. She testified she saw Jenrette, Hunter and another person get
out of the Taurus and move guns to an abandoned car. (Tpp. 651-653) Delamez’s
mother, Maybelline Moody, testified she called Jenrette twice after the football
game. The second time Jenrette told her he had given L.T. and Delamez a ride
from the game to Shooters. She picked up Delamez at Shooters. (Tpp. 852-853,
855)
B. Investigators Found Casings At The Scene And The Stolen Taurus Burned In A Field
Adam Sellers, an officer with the Lake Waccamaw Police Department, was
assigned to Sam’s Pit Stop on September 21, 2007. After high school games
anywhere from 50 to 60 cars could be gathered at the Pit Stop. (Tp. 606) The
owner of the Pit Stop complained merchandise was missing after games and “a
little stuff” went on in the parking lot. (Tp. 607) Somewhere around 10:00 p.m.,
when he was inside the store, Sellers heard gunshots and people screaming. (Tpp.
9
609-612) Sellers collected shell casings and fragments at the scene. He estimated
there were seven or eight shots. (Tpp. 619, 628)
Johnny Sellers called in a car stolen from his used car lot the morning of
September 21, 2007. A 25 caliber handgun was also stolen from his business. (Tpp.
492, 498) A video of the Taurus driving through Sam’s Pit Stop was shown to the
jury. (Tp. 520)
Eric Pike called the police at about 10:45 on September 22 when barking
dogs alerted him to flames over the hill in the back of a field. He could see a car
with flames shooting out the top. Pike saw a small four-door car driving away. A
very tall black male, 6’3” or 6’5”, got into the passenger side of the car. (Tpp. 677,
681, 684, 686) SBI Agent Kevin Oliver examined the Taurus. In his opinion the
fire started around the right rear quarter panel area, most likely by sticking a rag
material into the filler neck of the gas tank. (697, 702).
Pathologist John D. Butts testified the Frink autopsy revealed seven shots.
Frink died from the gunshot wounds. (Tp. 1015)
C. The Night Of September 22 , Jenrette and Reaves Were Pulled Over For A Faulty Taillight
Whiteville patrol officer Ronald Edwards testified he was patrolling the area
around Shooters on September 22. Edwards saw an Acura he thought suspicious
10
because it parked parallel to the building. (Tp. 727) Officer Memory told Edwards
over the radio that a taillight on the Acura was out. (Tp. 730) Memory stopped the
car. Jenrette was the driver. Reaves was in the rear passenger seat. (Tpp. 712-714)
Edwards aimed his flashlight in the car and spotted pistols on the floorboard
between Reaves’s legs. (Tpp. 715-716) Officer Hedwin took custody of Jenrette,
handcuffed him and placed him in the back seat of his patrol car. (Tpp. 720, 742)
The 25 caliber pistol stolen from Sellers was found in Reaves’s pocket. (Tpp. 758,
812) Reaves testified the two guns found in the car and the one found in his pocket
were his. (Tpp. 1147, 1152-1153) Hedwin found two baggies containing crack in
the patrol car and another hard rock substance in the Acura. Marijuana was found
in Reaves’s pocket. (Tpp. 723, 752-755, 808, 812) SBI Agent Timothy Suggs
tested the materials and determined the crack in one baggie weighed seven tenths
of a gram and the crack in the second baggie weighed nine point three grams. (Tp.
777) Reaves testified all of the seized marijuana and crack belonged to him. (Tp.
1153)
After patting down and handcuffing Jenrette, Hedwin placed him in the back
seat of his patrol car. While searching the Acura, Hedwin noticed the backdoor of
his patrol car was open and Jenrette was gone. (Tp. 750) Jenrette testified he
opened the back door of the patrol car by shifting in his seat and reaching for the
handle. When the door came open he ran, flagged down a car and drove to his
11
aunt’s house, where he stayed for about two months. (Tpp. 1197-1198) He then
took a bus to Indiana where he had family. (Tp. 1199) Peter Baum, a police officer
in Indiana, received information that Jenrette was living in the Dory Miller projects
in Gary. He arrested Jenrette. (Tpp. 938-939) Jenrette waived extradition and was
transported back to North Carolina based on charges stemming from the September
22 arrest. (Tp. 1113-1114) A camcorder, containing a video of Jenrette performing
rap, was seized from Jenrette in Indiana. The rap video was played for the jurors.
(Tp. 1105)
Eugene Bishop, a detective with the Cumberland County Sheriff’s Office,
examined shell casings recovered from Sam’s Pit Stop with the guns recovered
September 22nd. In Bishop’s opinion the seven recovered shell casings were fired
from the 45 caliber pistol found on the floorboard of the Acura. (Tp. 1056)
D. Jones Went Missing On November 19 And His Body Was Discovered In The Woods On December 5
Maybeline Moody testified she last saw her son when he boarded a school
bus on the morning of November 19, 2007. That afternoon she was delayed
returning from a medical appointment and asked her mother care for Delamez.
When Moody arrived at her mother’s house, Delamez had left. (Tpp. 860-863)
That night she rode around searching for him. The next morning she contacted
Columbus County Law Enforcement to file a missing person’s report. (Tp. 864)
12
She spent the following days searching for Delamez. She testified on the day after
her son’s disappearance she passed by Jenrette. He told her he didn’t know where
Delamez was and he would not look at her. (Tpp. 664, 866) On December 5, 2007,
the Columbus County Sheriff’s Department told her they had found Delamez’s
body. (Tpp. 666, 867)
Scott Hyatt, Chief of Police of Lake Waccamaw, called Moody in early
November to tell her he was at her house to question Delamez about the Sam’s Pit
Stop shooting. When Moody arrived home, Hyatt was standing on the outside of
the patrol car. Another Lake Waccamaw officer was in the driver’s seat. Delamez
was in the front passenger seat. (Tpp. 858-860) Delamez did not tell her anything
after the police interview. He became nervous and fidgeted. (Tpp. 656, 861)
Rebecca White testified she lent her car to Jenrette on November 18, 2007
and he returned it on November 19, 2007. (Tpp. 902, 904) The car had been
washed and vacuumed. (Tpp. 905, 1073)
Thomas Ward discovered a body in the woods on December 5. Pallets were
lying in the woods about fifty feet from the road. Ward saw a hand sticking out
from underneath the pallets. (Tpp. 878-881) Several photographs of the scene and
the body were shown to the jury. (Tp. 915) Dr. Butts testified the cause of death
13
was a gunshot wound that struck Jones’s back, damaging the lungs, spinal cord and
blood vessels. Three bullets were collected during the autopsy. (Tp. 1018)
E. Prisoner Testimony
The State called Rufus McMillian, Aaron McDowell and Jeffrey Allen
Morton to testify to what they allegedly heard or overheard while in custody.
McMillian testified he could not recall if he had talked with Jenrette about Frink.
He had not had a conversation about Jones. (Tpp. 952-953) Jeffrey Morton was
called to testify to conversations he allegedly overheard between Jenrette and
McMillian. According to Morton, Jenrette told McMillian that Jenrette fired one
shot in Sam’s Pit Stop and then handed the gun to Jones. Later Jones was shot
because he was the weak link. (Tp. 985, 987, 989) Aaron McDowell grew up in
Bladen County. (Tp. 959) He and Jenrette were both in custody in the Columbus
County jail from August to October 2012. (Tp. 975) McDowell testified Jenrette
told him he was not at the football game, but that Jones was involved in a shooting.
According to McDowell, Jenrette was afraid Jones would snitch. McDowell
testified Jenrette and Jones were at a football game together, Jones got drunk and
Jenrette took him to a secluded area where he shot him. (Tpp. 967-969)
14
ARGUMENT
I. THE COURT ERRED BY DECIDING LYING IN WAIT MAY BE SUBMITTED TO THE JURY ANYTIME THERE IS NO ALTERCATION PRIOR TO THE MURDER
During the charge conference, the prosecutor requested the jury be instructed
on the first degree murder of Darnell Frink based on three theories: premeditation
and deliberation; felony murder based on assaults; and lying in wait. (Tp. 1291)
Jenrette objected to submission of lying in wait. (Tpp. 1292-1293) Jenrette
motioned to dismiss all charges based on insufficiency of the evidence. (Tpp. 1121,
1268) The court overruled the objections and instructed the jury on lying in wait.
The jury found Jenrette guilty under all three theories. The evidence viewed in the
light most favorable to the state is insufficient to support lying in wait. As the
court’s interpretation of when lying in wait applies was contrary to the statute,
contrary to case law and violated the defendant’s constitutional rights to due
process and trial before an unbiased jury, this Court must find reversible error.
The constitutional right to due process requires the State prove beyond a
reasonable doubt every fact necessary for a criminal conviction. In re Winship, 397
U.S. 358 (1970). A conviction predicated on evidence insufficient to permit a
reasonable juror to find that the State has proven beyond a reasonable doubt every
element of the offense is a violation of due process of law. Jackson v. Virginia, 443
15
U.S. 307 (1979). When an error is based on a constitutional right, the trial court’s
ruling is a question of law and is reviewed de novo. State v. Gardner, 322 N.C.
591, 594, 369 S.E.2d 593, 597(1988).
A. Lying In Wait Cannot Be Submitted Any Time A Murder Occurs Without A Prior Altercation
The state argued the jury should be instructed on lying in wait based on a
Lexis headnote in State v. Allison, 298 N.C. 135, 257 S.E.2d 417 (1979):
MR. BOLLINGER: If you will look at headnote 13 I think it kind of goes to the crux of the issue there. The gravamen of lying in wait is that it was an assault upon the victim, a murderous assault upon the victim, when he was unaware that it was coming.
(Tpp. 1291-1292) Defendant objected. (Tpp. 1292-1293) The court read the
headnotes and concluded that lying in wait would fit just about any murder:
THE COURT: Look at the headnotes, there is testimony that they drove by, saw the people standing around, went around, repositioned the car, came back by, no advance notice—what it seems to boil down to—he may be aware of his presence but, again, is not aware of his purpose to kill him. I’m surprised it’s not used more often based upon the language in the headnote, but certainly based upon the Court’s prior holding it can be used in a lot more situations. Any time you have a murder that there’s not some kind of altercation prior to the murder occurring.
(Tpp. 1295-1296) (emphasis added) Defense counsel objected, but the court
reiterated that in accordance with the headnote, drive-by shootings could be
16
considered lying in wait: “At this point I am following the law and it certainly
seems to—based on the headnote that’s what the qualification would be and they
can probably seek a lot more often than they do.” (Tp. 1296) Defense counsel
objected again and the objection was noted. (Tp. 1296)
Lexis headnotes are not precedential authority. If the judge had instead
depended on the opinion in the context of the facts it would have been clear that
the reasoning in Allison is in accord with almost 100 years of North Carolina
precedent which repeatedly holds that lying in wait means what the words say—
the assailant situated himself in a location to wait for the victim. Allison cites to
cases from 1916, 1919 and 1944. In the 1916 case the victim was riding a mule
down toward Robbinsville around 7:30 a.m. when he passed two men at a big
chestnut tree at Hazel Branch. After he passed the chestnut tree, the defendants
shot him in the back. State v. Wiggins, 171 N.C. 813, 89 S.E. 58 (1916). Allison
next discussed State v. Wiseman, 178 N.C. 784, 101 S.E. 629 (1919). Wiseman
was killed at twilight by two men waiting for him to disembark from a train at
Glen Alpine. The third case discussed in Allison is State v. Dunheen, 224 N.C. 738,
32 S.E.2d 322 (1944). William Dunheen purchased a twelve-gauge shotgun and
five shells, telling the seller he wanted them to shoot frogs and moccasins. He
concealed the gun in a hedge around a mill log in the town of Gibsonville. At about
8:00 a.m. Dunheen was seen stooping behind the hedge. As Laura Riley passed by
17
with a companion at about 9:15 a.m Dunheen shot and killed Ms. Riley. Dunheen
at 738, 32 S.E.2d at 322. Our Supreme Court in Allison interpreted these older
cases as holding:
[T]hat when G.S. 14-17 speaks of murder perpetrated by lying in wait, it refers to a killing where the assassin has stationed himself or is lying in ambush for a private attack upon his victim. An assailant who watches and waits in ambush for his victim is most certainly lying in wait. However, it is not necessary that he be actually concealed in order to lie in wait.
Allison at 147-148, 257 S.E.2d at 425. The facts in Allison comport with this
interpretation. The defendant had parked his car waiting for his wife to return to
her son’s trailer. Mrs. Allison set her purse on the car fender and carried packages
into the trailer. While she did this, defendant stood near a tree. When Mrs. Allison
returned to retrieve her purse, defendant shot her. Id. The issue discussed in Allison
was whether the defendant needed to be concealed at the time of the murder, not
whether the defendant needed to be lying in wait. In Allison and in all of the cases
cited by Allison, the defendants were lying in wait for the victim to pass by:
Wiggins by the chestnut tree; Wiseman at the train station; Dunheen behind a
hedge; and Allison near a tree.
In Jenrette’s trial, the prosecutor convinced the trial court to take language
from the headnote in Allison and ignore the context. Allison holds, in accordance
with long-standing precedent, submission of the theory of lying in wait depends on
evidence that the defendant placed himself somewhere and waited for the victim.
18
The prosecutor’s argument that lying in wait can be submitted anytime a victim
who is not expecting to be killed is killed is not the Allison holding nor is it a
rational extension of Allison. Later cases which cite to Allison as authority do not
support the prosecutor’s argument. See, e.g. State v. Aikens, 342 N.C. 567, 467
S.E.2d 99 (1996) (Defendant hid in a bedroom came out, shot the victim once, hid
in the kitchen and shot the victim again when the victim entered the kitchen.);
State v. Camacho, 337 N.C. 224, 446 S.E.2d 8 (1994) (Defendant hid in a closet,
waited for the victim, jumped out of the closet and beat her to death with a
hammer.); State v. Baldwin, 330 N.C. 446, 412 S.E.2d 31 (1992) (Lying in wait is
the physical act of a person “who watches and waits in ambush for his victim”);
State v. Leroux, 326 N.C. 368, 390 S.E.2d 314 (1990) (Assailants were waiting on
the fairway of a dark golf course.).
B. Finding Lying In Wait As Appropriate Any Time A Murder Occurs Without A Prior Altercation Renders The Theory Unconstitutionally Overbroad
Our appellate courts have applied lying in wait narrowly to situations in
which the perpetrator has stationed himself in a location to wait for the victim. The
judge’s suggestion that it should instead apply anytime there is no prior altercation
would render the statute unconstitutionally vague and overbroad. A criminal statute
must be definite as to the persons within its scope and acts proscribed. “A statute is
unconstitutionally vague if it either: (1) fails to ‘give the person of ordinary
19
intelligence a reasonable opportunity to know what is prohibited’; or (2) fails to
‘provide explicit standards for those who apply [the law].’” State v. Daniels, 741
S.E.2d 354, __ N.C.App. __ (2012), quoting State v. Sanford Video & News, Inc.,
146 N.C. App. 554, 556, 553 S.E.2d 217, 218 (2001), quoting State v. Green, 348
N.C. 588, 597, 502 S.E.2d 819, 824 (1998). “A statute which either forbids or
requires the doing of an act in terms so vague that men of common intelligence
must necessarily guess at its meaning and differ as to its application violates the
first essential of due process of law.” Green at 597, 502 S.E.2d at 824. The judge
in this case interpreted lying-in-wait as encompassing any murder in which
“there’s not some kind of altercation prior to the murder occurring.” As this would
include just about all murders, it renders the statutory theory “lying-in-wait” an act
for which “men of common intelligence” would necessarily have to guess when it
would be submitted to the jury.
N.C. Gen. Stat. §14-17 lists theories by which an individual can be
convicted of first degree murder. One of the theories in the list is simply termed
“lying in wait.” It is an established rule of statutory construction that “where the
language of a statute is clear and unambiguous, there is no room for judicial
construction, and the courts must give [the statute] its plain and definite meaning,
and are without power to interpolate, or superimpose, provisions and limitations
not contained therein.” State v. Camp, 286 N.C. 148, 152, 209 S.E.2d 754, 756
20
(1974) (quoting 7 Strong’s North Carolina Index 2d Statutes § 5 (1968). In
Jenrette’s trial, the court’s interpretation of lying in wait had no connection to the
words of the statute. Instead the court superimposed provisions that ignore the
statutory words. By finding lying in wait means anytime a murder occurs without a
prior altercation, the court violated well-established statutory construction and in
so doing rendered the statute unconstitutionally vague and overbroad.
C. Expanding Lying In Wait To Include Any Murder Without A Prior Altercation Would Strip Intent From Almost All First Degree Murders
Our Supreme Court has held that in order to convict a defendant under the
theory of lying in wait it is not necessary for the state to prove intent: “a specific
intent to kill is . . . . irrelevant when the homicide is perpetrated by means of
poison, lying in wait, imprisonment, starving, or torture.” State v. Johnson, 317
N.C. 193, 203, 344 S.E.2d 775, 781 (1986). Thus, if lying in wait can be submitted
in any case in which there has not been a prior altercation, the lying in wait theory
will be applicable to almost every first degree murder. Only those murders which
take place during a fight or in which the victim has prior knowledge that the
defendant intends murder will retain the element of specific intent.
D. The Evidence Was Insufficient To Instruct On Lying In WaitThe evidence in the light most favorable to the state showed two groups of
young men, one group from Stanley Circle and one group from Chadbourn, were
21
involved in an altercation at the stadium. Jason Williams testified Reaves
approached him at the game, was “aggressive like”, “trying to fight” and “came out
of his shirt.” Eugene Williams was involved in this confrontation. The fight did not
take place, because “Somebody came up and stood between us.” (Tpp. 528, 548-
549) As he left the game, Williams saw Reaves sitting beside the road talking on
his cellphone. The prosecutor asked the record show Williams “reached his arm
out and pointing his finger as if he’s pulling the trigger.” (Tp. 530) Reaves agreed
the confrontation began at the game. Reaves explained Jones walked up to him at
the game and told him he had been “jacked up” by Eugene Williams. Reaves saw
the group that had “jacked up” Jones taking their shirts off. Reaves told L.T. they
could not fight then because of the police. (Tp. 1144) According to Reaves the bad
feeling between the two groups of young men was long standing. He testified an
earlier shooting had occurred when one of his friends was shot in the chest while
he was riding with Reaves. (Tp. 1148) The two groups left the stadium heading for
Sam’s Pit Stop. The Chadbourn group arrived at the gas station first, parked the
Tahoe and stood around the vehicle. Reaves drove into the station in the stolen
Taurus. Williams testified he saw the Taurus drive in: “I seen the car, I seen the
guns, I seen the windows down and the guns and I told everybody to get down.”
(Tp. 536) In the light most favorable to the state, the confrontation began at the
stadium. The venue of the confrontation moved to Sam’s Pit Stop to avoid police.
22
When Reaves drove in, the guns were visible, giving Williams time to yell to
everyone to duck. Jason Williams knew it was Reaves who fired on him. (Tp. 551)
No evidence showed that Reaves and his passengers were waiting, either hidden or
observable, for the Chadbourn group.
“Where the language of a statute is clear and unambiguous, there is no room
for judicial construction and the courts must construe the statute using its plain
meaning.” State v. Cheek, 339 N.C. 725, 728, 453 S.E.2d 862, 864 (1995). The
words “lying in wait” are clear and unambiguous. If our legislature determines that
drive-by shootings deserve a separate theory, a statute can be enacted. See e.g.,
Cal. Penal Code 189. Interpreting lying in wait to include drive-by shootings,
renders the theory unconstitutionally broad and vague, as according to the trial
court’s interpretation lying in wait would include any murder in which the victim
did not know he or she was about to be killed. As lying in wait does not require
proof of intent, an expansive interpretation of the theory would remove the element
of intent from most murders. The trial court erred by instructing the jury on lying
in wait, as the evidence most favorable to the State was insufficient to prove first
degree murder by lying in wait.
23
II. THE COURT ERRED BY INSTRUCTING ON THE THEORY OF FELONY MURDER BY KIDNAPPING AS FELONY MURDER WAS NOT SUPPORTED BY THE EVIDENCE
The court instructed the jury to consider two theories of first degree murder
for the death of Delamez Jones: premeditation and deliberation and felony murder
based on kidnapping. The jury was also instructed on the separately indicted
offenses of first degree kidnapping and conspiracy to commit kidnapping of Jones.
The jury returned verdicts finding Jenrette guilty under both submitted theories of
first degree murder, but not guilty of either first degree kidnapping or conspiracy to
commit kidnapping. The only evidence which could possibly support kidnapping
came from the testimony of jailhouse snitches. This paucity of evidence led to the
jury verdicts of not guilty for kidnapping and conspiracy to kidnap. Viewed in the
light most favorable to the State, the evidence was insufficient to permit a
reasonable juror to find beyond a reasonable doubt the State had proven Jenrette
committed first degree murder under the theory of felony murder. Defendant had
motioned to dismiss all charges based on insufficiency of the evidence and to set
aside the verdict at the end of the trial. (Tpp. 1121, 1268. 1432)
Whether the trial court’s instruction explained the law as supported by the
evidence presents a question of law, subject to de novo review by this Court. State
v. Osorio, 196 N.C. App. 458, 466, 675 S.E.2d 144, 149 (2009). When reviewing
an issue de novo, the Court considers the matter anew and may substitute its own
24
judgment for that of the trial court. N.C. Dep’t of Envtl. & Natural Res. V. Carroll,
358 N.C. 649, 660, 599 S.E.2d 888, 895 (2004) When an instructional error is not
objected to, the defendant must demonstrate fundamental error, that, after
examination of the entire record, the error had a probable impact on the jury’s
finding. State v. Lawrence, 365 N.C. 506, 723 S.E.2d 326 (2012).
Jones disappeared from his grandmother’s home on the evening of
November 9, 2007. His body was found in the woods on December 5, 2007. The
only information the jurors heard concerning how he got to the woods came from
differing jailhouse snitch stories. Aaron McDowell told the jurors he talked with
Jenrette while he was locked up in the Columbus County jail. McDowell said
Jenrette told him he and Jones were together at a football game. Jenrette got Jones
drunk at the game and then took him to a secluded area. (Tp. 968) This story
conflicts with all of the other testimony as no witness mentioned a football game
on Monday, November 19, 2007. Moody testified her son was at his grandmother’s
house up until the time he disappeared. Jeffrey Allen Morton, in custody in West
Virginia, testified he overheard Jenrette telling someone else that “he smoked a
couple of blunts with this young guy and took him out and gave him a pistol and
they shot some and then he turned the pistol on him and shot him five or six
times.” (Tp. 989) The jurors clearly did not believe this testimony sufficient to
convict Jenrette of either kidnapping or conspiracy to commit kidnapping. It is
25
equally insufficient to find Jenrette guilty beyond a reasonable doubt of felony
murder based on kidnapping.
Absent an instruction on felony murder based on kidnapping, there is a
reasonable possibility that a different result would have occurred at trial in that
Jenrette would only have been convicted of first degree murder based on
premeditation and deliberation. In any retrial, the State should be precluded from
submitting the case on the theory of felony murder based on kidnapping as it is
unsupported by the evidence.
III. THE COURT COMMITTED PLAIN ERROR BY FAILING TO INSTRUCT THE JURY OF ITS DUTY TO RETURN A NOT GUILTY VERDICT IF THE STATE FAILED TO ESTABLISH GUILT BEYOND A REASONABLE DOUBT.
The jury in Jenrette’s trial was instructed it could find Jenrette guilty of the
first degree murder of Darnell Frink based on three theories: premeditation and
deliberation; felony murder; and lying-in-wait. The trial court failed to instruct the
jury of its duty to return a not guilty verdict should the State fail to establish guilt
beyond a reasonable doubt. The magnitude of this error rendered these proceedings
fundamentally unfair and unreliable, warranting relief under the plain error
standard. Had the trial court instructed the jury as required by the federal and state
constitutions, it is probable a different outcome would have occurred. Jenrette is
entitled to a new trial.
26
Whether the trial court’s instruction correctly explains the law is a question
of law, subject to de novo review by this Court. State v. Osorio, 196 N.C. App.
458, 466, 675 S.E.2d 144, 149 (2009). When reviewing an issue de novo, the Court
considers the matter anew and may substitute its own judgment for that of the trial
court. N.C. Dep’t of Envtl. & Natural Res. V. Carroll, 358 N.C. 649, 660, 599
S.E.2d 888, 895 (2004) When an instructional error is not objected to, the
defendant must demonstrate fundamental error, that, after examination of the entire
record, the error had a probable impact on the jury’s finding. State v. Lawrence,
365 N.C. 506, 723 S.E.2d 326 (2012).
In every criminal trial a defendant is entitled to have a jury “instructed as to
its right to return, and the condition upon it should render, a verdict of not guilty.”
State v. Howell, 218 N.C. 280, 282, 10 S.E.2d 815, 817 (1940). This instruction is
generally give during the final mandate after the trial court has instructed the jury
as to elements it must find to reach a guilty verdict. State v. Ward, 300 N.C. 150,
156-157, 266 S.E.2d 581, 585-86 (1980). Jenrette’s trial was exceptionally
complicated in that twelve offenses stemming from three incidents occurring on
three dates, involving four victims were joined for trial. The complexity of the jury
charge was exacerbated when the court agreed to submit the first degree murder
charge based on the death of Frink on three theories and the first degree murder
charge based on the death of Jones on two theories.
27
Concerning the murder of Frink, the court charged the jury on three theories.
At the end of the third theory, the court simply stated:
If you do not so find or have a reasonable doubt as to one or more of these things, it would be your duty to return a verdict of not guilty.
(Tp. 1394; Rp. 158)1. As this sentence followed directly after the section on lying
in wait, at best the jurors might have understood it to refer to that theory, not to
either of the other theories or to the first degree murder charge as a whole. More
likely, the jurors did not at all grasp what the court meant. The one sentence
concerning a verdict of not guilty, without any explanation as to which theory or
which elements it pertained, is constitutionally insufficient under North Carolina
case law. In State v. McHone, 174 N.C.App. 289, 620 S.E.2d 903 (2005), the court
instructed the jury after both premeditation and deliberation and felony murder that
the jury would not return a verdict of guilty if the State failed in one or more of the
elements of each theory, but failed to tell the jury that “it must or would return a
verdict of not guilty should they completely reject the conclusion that the
defendant committed first degree murder.” Id. at 297, 620 S.E.2d at 909. McHone
was granted a new trial. The omission in Jenrette’s trial is significantly more
prejudicial as the court failed to instruct the jurors they would not find a theory if
1 The jury charge is attached hereto as Appendix A.
28
the state had not provided proof for the elements of each theory and would not find
Jenrette guilty of murder if the State failed to prove the necessary elements.
The error was heightened when after the Jones murder instruction, the Court
emphasized the hurdles the jurors faced before they could find Jenrette not guilty
of the murders:
Let me make sure it’s absolutely clear on that language. Again under—for Mr. Frink, you will have three choices under first degree murder. You will go through and consider each of those three bases for first degree murder, consider all three. You will only render not guilty if you find that none of those exist.
(Tp. 1402; Rp. 166) (emphasis added) No balancing instruction was given at this
point concerning the State’s burden to prove the elements beyond reasonable
doubt.
The one sentence tagged on after the lying-in-wait instruction at the end of
the charge on the murder of Frink without any reference as to what theory or
theories it applied is constitutionally inadequate. The lack of a final mandate
specifying that the jury would not find Jenrette guilty of first degree murder if it
did not find or had a reasonable doubt as to one or more of the elements of each
theory effectively eliminated the “not guilty” option from the jury’s consideration
for each theory and for first degree murder. The omissions struck at the heart of
Jenrette’s right to the due process presumption of innocence. Appellate courts may
not speculate on the consequences of such error, which is structural and
29
automatically reversible. In State v. Howell our Supreme Court held the
constitutionally correct jury charge is required even when the State’s evidence is
substantial:
There is ample evidence in the record to sustain the charge of murder in the first degree and it may be that upon a retrial the same result will be reached. And yet it is important that a defendant, however humble or defenseless he may be, shall not suffer the penalty of death until he has been convicted in a trial in which there has been a scrupulous observance of constitutional and statutory safeguards protecting and preserving his rights.
Howell at 282, 10 S.E.2d at 817. See also, State v. Overman, 257 N.C. 464, 125
S.E.2d 920 (1962); Sullivan v. Louisiana, 508 U.S. 275, 281-82 (1993). Omission
of the “not guilty” mandate was plain error, rendering these proceedings
fundamentally unfair and unreliable. Jenrette must receive a new trial.
IV. THE JURY CHARGE FAILED TO INDIVIDUALIZE THE CHARGES SUFFICIENTLY TO PROTECT JENRETTE’S RIGHT TO DUE PROCESS AND A FAIR TRIAL
In addition to failing to give the final mandate in the first degree murder
charge, the trial court also failed to separately instruct on the two counts of assault,
the two counts of conspiracy to commit first degree murder and the two counts of
felon in possession of a firearm. The jurors were not instructed to consider
Jenrette’s guilt or innocence for each count separately. The same error occurs in
the felony murder instruction for the death of Frink, as the jury was not told which
assault could be considered as the basis for the felony murder charge. The court
30
gave the mandate for the Jones murder, but gave no mandate for the underlying
felony, kidnapping. Defense counsel objected strenuously to the State’s joinder
motion, based on dissimilarities between the murders and the tendency for a jury to
convict on both murders because they were tried together. (Tp. 5) The court
overruled the objection. (Tp. 6) Once the twelve charges had been joined for trial,
the court had a duty to guarantee the defendant’s due process rights for each
separate charge.
Whether the trial court’s instruction correctly explains the law is a question
of law, subject to de novo review by this Court. State v. Osorio, 196 N.C. App.
458, 466, 675 S.E.2d 144, 149 (2009). When reviewing an issue de novo, the Court
considers the matter anew and may substitute its own judgment for that of the trial
court. N.C. Dep’t of Envtl. & Natural Res. V. Carroll, 358 N.C. 649, 660, 599
S.E.2d 888, 895 (2004) When an instructional error is not objected to, the
defendant must demonstrate fundamental error, that, after examination of the entire
record, the error had a probable impact on the jury’s finding. State v. Lawrence,
365 N.C. 506, 723 S.E.2d 326 (2012).
“Each defendant is entitled to the same clarity in the instructions necessary
to promote a fair determination of his guilt or innocence of each offense in a joint
trial, as he would be given if tried separately.” State v. Lee, 28 N.C.App. 156, 160,
220 S.E.2d 164, 166 (1975). In Lee the state argued on appeal that in cases which
31
involve multiple defendants, victims and charges even a correct charge would be
confusing. This Court responded:
Even if that is the case, we simply say that the confusion is assured when incorrect and conflicting instructions are given. We also realize the almost impossible burden the case law of this State has imposed on the trial judges with reference to their instructions to the jury and the burden was made heavier when all of these cases were consolidated.
Id. at 159, 220 S.E.2d at 166. This Court emphasized the trial court had “elected to
compound its burden when it granted the State’s motion to consolidate the
charges.” Id. at 160, 220 S.E.2d at 166.
As in Lee, the trial court in this case elected to compound its burden when it
granted the State’s motion to consolidate. But instead of using more care to avoid
jury confusion, the court gave less explicit instructions than it would have done if
the charges had been tried separately. For the assault with a deadly weapon with
intent to kill inflicting serious injury charges for two victims, the court named both
victims, but then gave an instruction as to “the victim.” No instruction was given
that the jurors should deliberate on each victim separately, or that the instructions
applied to each victim individually. (Tp. 1387-1388; Rpp. 151-152) Under the
instruction for felony murder in the death of Frink, no victim is named for the
underlying felony. Similarly, the court combined the two charges of felon in
possession without specifying the dates of the offenses or instructing the jurors that
32
guilt for one of the offenses did not mean guilt for the other offense. (Tpp. 1406-
1407; Rpp. 170-171) After hearing the joined instruction, the jury’s natural
assumption would be that guilt for one charge of felon in possession mandated
guilt for the other charge of felon in possession.
The two charges of conspiracy to commit murder are joined in the
instruction with no instruction to consider the two charges separately. The two
charges are treated in the instruction as one offense. The final mandate is in the
singular, instructing the jurors if they find from the evidence that on the alleged
date the defendant and another conspired “it would be your duty to return a verdict
of guilty.” (Tpp. 1394-1395; Rpp. 158-159) The one instruction for both charges
implied if Jenrette was guilty of conspiracy to commit murder as to one of the
victims, he was guilty of conspiracy to commit both murders. This was extremely
prejudicial as the evidence as to the two murders differed greatly. The murder of
Frink involved a drive-by shooting, witnessed by a crowd of individuals and
captured on videotape. Witnesses saw co-defendants at the game and two men
leaving the scene of the burned Taurus. Evidence concerning the murder of Jones
was quantitatively different: 1) no witnesses observed the shooting; 2) no witness
observed any events leading up to the shooting; and 3) no witness observed any
events after the shooting. Convicting Jenrette of the Jones murder depended on
circumstantial evidence and jailhouse snitch testimony. The differences in the
33
supporting evidence between the two murders heightened the need for separate
instructions for each conspiracy charge. Without a separate instruction, the jurors
could have easily assumed that guilt of conspiracy for one murder weighed heavily
toward finding guilt for the other charged conspiracy. The jurors were not
instructed to consider the evidence supporting each conspiracy separately.
Although a verdict sheet was submitted for each charge, verdict sheets cannot
substitute for an instruction to the jurors to consider the evidence for each charge
individually, especially when the final mandate for each type of charge referred to
“a verdict.”
Failure to instruct the jury to consider each offense individually rendered
Jenrette’s trial arbitrary, capricious, unreliable and fundamentally unfair, in
violation of his rights to a reliable jury verdict, due process, equal protection, and
the freedom from cruel and unusual punishment. U.S. Const. Amends. V, VI, VIII,
XIV; N.C. Const. Art. I, §§ 19, 24, 27. The confusing jury instructions must have
impacted the jury’s verdict and constitutes plain error. The multiple errors in the
jury charge in this case should be considered cumulatively. As the incorrect
instructions—on lying in wait, felony murder by kidnapping, the failure to give a
final mandate for specific charges and the failure to instruct individually on
charges involving different victims and different dates—permeated the entire jury
charge, Jenrette’s convictions must be vacated.
34
V. JOINING TWELVE CHARGES BASED ON INCIDENTS OCCURRING ON THREE DATES INVOLVING FOUR VICTIMS DENIED JENRETTE HIS CONSTITUTIONAL RIGHT TO DUE PROCESS
The court’s order joining twelve charges, based on three incidents, occurring
on three dates, involving four victims rendered Jenrette’s trial fundamentally unfair
because it prevented the jurors from arriving at a fair determination of Jenrette’s
guilt or innocence on each count. As shown in Arguments I through IV, the
joinder, combined with the constitutional errors in the court’s attempt to instruct
the jury on the various charges, rendered the trial unconstitutional.
Whether a group of offenses are transactionally related so that they are
joinable for trial is an issue of law, determined de novo on appeal. State v.
Williams, 355 N.C. 501, 529, 565 S.E.2d 609, 626 (2002). When offenses are
transactionally related and joinable under the provisions of 15A-926(a), they may,
nonetheless, require severance for separate trials if that is “necessary to promote a
fair determination of the defendant’s guilt or innocence of each count.” N.C. Gen.
Stat. § 15A-927(c)(2). This issue of severance of joinable charges is a matter for
trial court discretion. State v. Montford, 137 N.C. App. 495, 498, 529 S.E.2d 247,
250, disc. rev. denied, 353 N.C. 275, 546 S.E.2d 386 (2000).
The state moved for joinder pre-trial. Defendant opposed joinder arguing the
two murders were dissimilar, as the only similarity was that both victims were
35
shot. (Tp. 6) The court granted the state’s motion. (Tp. 7) Defense counsel renewed
his motions. (Tpp. 1121, 1268) Even if this Court should find the offenses
transactionally similar, consolidation may not be proper under N.C. Gen. Stat. §
15A-926. State v. Silva, 304 N.C. 122, 126, 282 S.E.2d 449, 452 (1981) The judge
must consider whether the accused can receive a fair hearing on more than one
charge at the same trial. Charges should not be joined where consolidation hinders
or deprives the accused of the ability to present his defense. Pointer v. U.S., 151
U.S. 396 (1894); State v. Davis, 289 N.C. 500, 508, 223 S.E.2d 296, 301, vacated
in part on other grounds, 429 U.S. 809, (1976). N.C. Gen. Stat § 15A-927
provides the court must grant a severance if it is found necessary to promote a fair
determination of the defendant’s guilt or innocence of each offense.
The State’s evidence that Jenrette was present at the scene of the drive-by
shooting of Darnell Frink was scant. Witnesses testified he was not seen at the
game. (Tpp. 551, 596, 601, 668, 1142, 1147, 1187, 1190) Testimony indicated four
other young men were in the Taurus when it drove through Sam’s Pit Stop.2
Evidence concerning the death of Delamez Jones was even weaker. No eyewitness
testified as to how Jones left his grandmother’s house or what happened after he
left. The State’s evidence on the Jones murder depended heavily on accounts of
2 A statement, written and signed by Reaves as part of his plea, alleged that Jenrette was at the game and in the Taurus. (SE 120; Tpp. 1168, 1176) These allegations were contradicted by Reaves testimony.
36
jailhouse snitches, one of whom testified to details which were contradicted by
other witnesses. (Tpp. 967-969) In order for the state to meet its burden of
persuading the jury beyond a reasonable doubt as to guilt for each murder, it was
necessary to convince the jurors that the murders were related and that they could
consider evidence of involvement in one murder as evidence of involvement in the
other murder.
The State must show erroneous joinder of the twelve charges was harmless
beyond a reasonable doubt. N.C. Gen. Stat. § 15A-1443(b). As shown in the above
arguments, the State cannot meet this burden. The cumulative errors in the jury
instructions, resulting from the joinder of so many disparate charges, allowed the
jurors to consider guilt of one charge as meeting the State’s burden of evidence for
guilt on other charges. Jenrette must be granted a new trial.
37
CONCLUSION
For the reasons set forth above, Defendant respectfully contends that this
Court should reverse his convictions.
Respectfully submitted this the 23rd day of December 2013.
Electronic Filing/s/ Marilyn G. OzerAttorney for Appellant211 North Columbia StreetChapel Hill, NC 27514(919) [email protected]
CERTIFICATE OF FILING AND SERVICE
I hereby certify that the original Defendant-Appellant’s Brief has been filed
electronically pursuant to Rule 26.
I further hereby certify that a copy of the above and foregoing Defendant-
Appellant’s Brief has been duly served upon Robert C. Montgomery, Special
Deputy Attorney General, by email to [email protected].
This the 23rd day of December 2013.
Electronic FilingMarilyn G. OzerAttorney at Law
38
CERTIFICATE OF COMPLIANCE
I hereby certify that this Brief was prepared using Microsoft Word, Times
New Roman, 14-point type. The word count, including footnotes and citations, is
8,746 words.
This the 23rd day of December 2013.
Electronic FilingMarilyn G. OzerAttorney at Law
39
APPENDIX
JURY CHARGE
Transcript Pages 1381 - 1413