No. COA 03-1248JUDICIAL DISTRICT TWENTY-SEVEN A

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No. COA 03-1248JUDICIAL DISTRICT TWENTY-SEVEN A

NORTH CAROLINA COURT OF APPEALS

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STATE OF NORTH CAROLINA,)

Plaintiff)

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v.) From Gaston County

) 02 CRS 19622

ANTHONY BERNARD JARRETT,) 02 CRS 648

Defendant)

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DEFENDANT APPELLANT’S BRIEF

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S U B J E C T I N D E X

TABLE OF CASES AND AUTHORITIES………………………………………………...... iii

QUESTIONS PRESENTED………………………………………………………………………1

STATEMENT OF THE CASE……………………………………………………………………2

STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW…………………………..…2

STATEMENT OF THE FACTS………………………………………………………………3 - 6

ARGUMENT…………………………………………………………………………………6 - 10

CONCLUSION…………………………………………………………………………………..11

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TABLE OF CASES AND AUTHORITIES

Cases

Banks v. Shepard, 230 N.C. 86, 52 S.E.2d 215 (1949)…………………………………………..9

State v. Bartley, 156 N.C. App. 490, 577 S.E.2d 319 (2003)……………………………………7

Statev. Billinger, 9 N.C. App. 573, 176 S.E.2d 901 (1970)……………………………………..9

Statev.Faulkner, 5 N.C. App. 113, 168 S.E.2d 9 (1969)...... 7, 8

State v. Hare, 243 N.C. 262, 90 S.E.2d 550 (1955)………………………………………………8

State v. Keller, 214 N.C. 447, 199 S.E. 620 (1938)………………………………………………7

Statutes

N.C. Gen. Stat. § 14-87 (2002)……………………………………….……………………7, 9, 10

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QUESTION PRESENTED

1. THE DEFENDANT’S CONVICTIONS FOR ROBBERY WITH A DANGEROUS WEAPON MUST BE VACATED BECAUSE THE DEFENDANT NEVER POSSESSED A FIREARM DURING THE COMMISSION OF THE CRIMES.

2.THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN THE JURY INSTRUCTION EXPANDED THE OFFENSE TO ALLOW THE JURY TO CONVICT WITHOUT FINDING THAT THE DEFENDANT HAD ACTUALLY POSSESSED A WEAPON

STATEMENT OF THE CASE

On 10 March 2002, Anthony Bernard Jarrett was arrested and charged with two counts of Robbery with firearms or other dangerous weapons (02-CRS-648, 02-CRS-19622) (R. p.2) pursuant to N.C. Gen. Stat. § 14-87 (2002). Mr. Jarrett was tried at the Criminal Session of the Superior Court of Gaston County, before the Honorable Judge Gentry Caudill presiding. The jury found the Defendant guilty on both counts and Judge Caudill sentenced Mr. Jarrett to a minimum of 150 months and a maximum of 189 months in prison on each count, the sentences to be served consecutively.

STATEMENT OF GROUNDS FOR APPELLATE REVIEW

As a matter of right, pursuant to N.C.G.S. 7A-27(b), defendant gave notice of appeal. The defendant seeks correction of errors pursuant to N.C. Gen. Stat. §§ 15A-1441 and 15A-1442.

STATEMENT OF THE FACTS

The State of North Carolina filed two charges of Robbery with a firearm or other dangerous weapon against the Defendant, Anthony Bernard Jarrett.

At approximately 2:30 a.m. of the morning of 10 March 2002, Rebecca Sargent was working a night shift as a cashier for Bi-Lo #243 on East Franklin Blvd. in Gaston Co. when a man motioned for her to provide assistance to him at the cash register (T. pp. 74-77). After ringing up this customer’s purchases, two candy bars, Ms. Sargent turned to put the items in a bag, when the customer advised her that he had a gun and asked “are you going to give me the money?” (T. p. 78). Ms. Sargent complied with the person’s “request” and put all of the money from her till (approximately $100) into a bag and handed it to him whereupon the person ran out of the store (T. pp. 79-80). Ms. Sargent testified that she believed that the offender possessed a gun (T. p. 80). After following the store procedure for a robbery, the victim and other store employees exited the store and witnessed a red car leaving the scene (T. pp. 80-81). Ms. Sargent was able to identify the Defendant, Mr. Jarrett as the perpetrator out of a photographic lineup administered by a Detective Schwartz the next day and was able to identify him in court (T. pp. 81-84). Ms. Sargent testified positively that she did not see Mr. Jarrett with a gun (T. p. 85). She did not testify that she felt like her life was in danger or that her life felt threatened.

On 10 March 2002, witness James Elrod arrived early for his 8 a.m. – 4 p.m. shift as a cashier at the Bi-Lo supermarket located on Davis Rd. (T. pp. 25-27). At 7:30 a.m., Mr. Elrod was already checking out customers when one customer placed a pack of gum on the conveyor belt in order to be rung up (T. p. 28). Mr. Elrod rang up the customer’s gum and handed the customer his receipt for the purchase (T. p. 31). According to Mr. Elrod’s testimony, the customer next stated that he possessed a concealed weapon and demanded all of the money from the till, which Mr. Elrod provided. Id. Mr. Elrod testifies that he was convinced that the offender possessed a firearm and followed his orders so that his life would not be put in danger (T. p.33). After the perpetrator was given the money, he put the cash, coins and receipt into his front pants pockets and ran out the front door of the store (T. p. 34). Mr. Elrod was later taken to the scene of Mr. Jarrett’s arrest and asked if Mr. Jarrett was the same person who had just robbed him, to which he answered in the affirmative (T. pp. 35-36). Mr. Elrod was also able to identify the perpetrator from the witness stand as the Defendant, Mr. Jarrett (T. p. 30). Mr. Elrod also testified positively that he did not see Mr. Jarrett with a gun (T. p. 41).

Following the crime at the Bi-Lo on Davis Rd., Detective M.A. Chambers read Mr. Jarrett his Miranda rights and took a statement from him (T. pp.46-53). Mr. Jarrett’s statement acknowledges his involvement in the Bi-Lo robbery but denies the possession of a firearm (T. p. 53).

Due to the similarities in the crimes, the police brought in Rebecca Sargent, the victim of the robbery that took place earlier that same morning, and showed her a photographic lineup out of which she picked Mr. Jarrett as her robber (T. p. 54).

Detective Chambers testified that he didn’t remember what kind of car that Mr. Jarrett’s alleged accomplice was driving, other than it was red (T. p. 58). He also admits that he did not see, much less search the vehicle (T. p. 58).

Officer John Terry was the next officer to testify (T. p. 87). He was on routine patrol when he spotted a vehicle matching a car to be on the lookout for in relation to the two robberies (T. pp. 88-89). He first saw the car between 8:00 a.m., at most, thirty minutes following the robbery at the Davis Rd. Bi-Lo (the 2nd offense) parked in front of a home (T pp. 90-91). Officer Terry kept an eye on the car from a distance in order to provide time for back-up officers (T. p. 91). While Officer Terry was awaiting back-up, he observed three black males exit the house, one of whom fit the description of the robbery suspect from the Bi-Lo incidents (T. pp. 91-93). Officer Terry exited his patrol car and attempted to make an arrest, but Mr. Jarrett ran (T. p. 94). Officer Terry continued in pursuit and radioed for help (T. pp. 94-95). Ultimately, Officer Helms came to Terry’s assistance and apprehended the Defendant (T. pp. 95-96). Officer Terry testified that upon searching the Defendant, the officers recovered rolled coins, different denominations of money, a pack of chewing gum and the Bi-Lo receipt for the gum (T. p. 97). A gun was not found on the person of Mr. Jarrett. Officer Terry next returned to the house from which the three men exited and executed a search of the premises which turned up no relative evidence (T. pp. 98-99). Officer Terry did not search the suspect vehicle, a red Chevrolet Cavalier, and did not know whether or not any other officer did (T. p. 98).

Officer Ashley Helms, the officer who physically apprehended Mr. Jarrett following Officer Terry’s foot pursuit, was the next to testify (T. p. 101). Officer Helms testifies to the search of Mr. Jarrett’s person which yielded evidence from the crime but did not produce a firearm or other dangerous weapon (T. pp 103-104, 107).

Detective Michael Schwartz, called upon to testify regarding the identification of the suspect, positively declares that in relation to these crimes, to his knowledge, no handgun was ever recovered (T. p. 124).

ARGUMENT

I. THE DEFENDANT’S CONVICTIONS FOR ROBBERY WITH A DANGEROUS WEAPON MUST BE VACATED BECAUSE THE DEFENDANT NEVER POSSESSED A FIREARM DURING THE COMMISSION OF THE CRIMES.

Defendant Anthony Jarrett was tried and convicted under the statute which describes the crime of robbery with guns or other dangerous weapons as follows:

Any person or persons who, having in possession or with the use or threatened use of any firearms or other dangerous weapon, implement or means, whereby the life of a person is endangered or threatened, unlawfully takes or attempts to take personal property from another or from any place of business, residence or banking institution or any other place where there is a person or persons in attendance, at any time, either day or night, or who aids or abets any such person or persons in the commission of such crime, shall be guilty of a Class D felony.

N.C. Gen. Stat. § 14-87. The Defendant's two convictions for robbery with a dangerous weapon must be vacatedbecause there was insufficient evidence that he actually possessed a dangerous weapon. As recently as this year, the Court of Appeals has upheld a conviction under § 14-87 stating:

Where the evidence tends to show that the victim reasonably believed that the defendant possessed, or used or threatened to use a firearm in the perpetration of the crime, the result should be the same whether a defendant verbally stated he had a firearm or visually indicated he had a firearm, even when the victim did not actually see a firearm.

State v. Bartley, 156 N.C. App. 490, 496, 577 S.E.2d 319, 323 (2003).However, the N.C. Supreme Court has clearly stated, “the actual possession and use or threatened use of firearms or other dangerous weapon is necessary to constitute the offense of robbery with firearms or other dangerous weapon.” Statev.Faulkner, 5 N.C. App. 113, 119, 168 S.E.2d 9, 13 (1969) (emphasis added). These conflicting decisions show that the meaning of the statute is in doubt. The N.C. Supreme Court has maintained, “if the meaning of the statute be in doubt, reference may be had to the title and context as legislative declarations of the purpose of the act.” State v. Keller, 214 N.C. 447, 448 199 S.E. 620, 621 (1938). The title of the statute, “robbery with firearms or other dangerous weapons,” unequivocally requires that a firearm be present during the commission of the robbery. N.C. Gen. Stat. § 14-87. The legislative intent is unambiguous:

The primary purpose and intent of the legislature in enacting this section, was to provide for more severe punishment for the commission of robbery when such offense is committed or attempted with the use or threatened use of firearms or other dangerous weapons. It does not add to or subtract from the common-law offense of robbery except to provide that when firearms or other dangerous weapons are used in the commission or attempted commission of the offense sentence shall be imposed as therein directed.

State v. Hare, 243 N.C. 262, 263-264, 90 S.E.2d 550, 551 (1955).

The phrase in Hare, “when such offense is committed or attempted with the use or threatened use of firearms,” leaves open the interpretation that a person may be convicted by merely threatening to use a firearm during the commission of a robbery. That door, however, was shut by the Supreme Court in 1969 when it declared in Faulkner that actual possession was necessary to constitute the offense. Statev.Faulkner, 5 N.C. App. 113, 119, 168 S.E.2d 9, 13 (1969). Considering Faulkner, it is clear that the mere threatened use of a firearm not actually in existence does not satisfy the statute nor the intent of the Legislature. A probable explanation for the confusion among the courts is the pattern jury instruction. In the sixth element of the pattern jury instruction, Judge Caudill read the following:

Sixth, that the defendant had a firearm in his possession at the time he obtained the property or that it reasonably appeared to the victim that a firearm was being used, in which you may infer that the said instrument was what the defendant’s conduct represented it to be. (T. p. 160)

This jury instruction incorrectly permits jurors to find that the Defendant did not in fact possess a firearm but because he claimed to have a gun and because the victim believed that the Defendant might possess a firearm, he may be found guilty of robbery with the use of a firearm. This instruction, this representation of the law, is not an accurate reflection of the statute and makes it much easier for the State to obtain a conviction because it negates the requirement the State prove the Defendant actually possessed a firearm, unfairly prejudicing the Defendant under the statute for robbery with a firearm. The thrust of the State’s argument in support of this charge was that Mr. Elrod believed a firearm existed (T. pp. 32-33).

Because the N.C. Supreme Court requires a Defendant to actually possess a functional firearm during the commission of a robbery, the State assumes the burden of proving this element. “Burden of proof means the necessity or duty of affirmatively proving a fact or facts in dispute on an issue raised between the parties in a cause.” Banks v. Shepard, 230 N.C. 86, 91, 52 S.E.2d 215, 218 (1949). “When a defendant pleads not guilty the burden is on the State to prove every element of the offense beyond a reasonable doubt.”Statev. Billinger, 9 N.C. App. 573, 575, 176 S.E.2d 901, 903 (1970). In this case, “actual possession” of a firearm is an element to the crime charged, therefore, the burden is upon the State to prove beyond a reasonable doubt that Mr. Jarrett possessed a firearm. N.C. Gen. Stat. § 14-87. The state did not even bother to try to prove the Defendant possessed a gun. There is insufficient evidence in the record tending to prove the Defendant actually possessed a firearm at either of the two robberies. When Mr. Jarrett was detained by Officer Helms, the Defendant possessed all of the evidence of the robbery but, of critical importance, did not possess a firearm or any other weapon (T. p. 103). Mr. Jarrett was detained approximately thirty minutes following the robbery at Mr. Elrod’s Bi-Lo supermarket (T. p. 93). Moreover, the residence Mr. Jarrett exited just before being arrested was searched and no firearm was recovered from that home (T. pp. 98-99). Additionally, no firearm was recovered from the vehicle allegedly used as the “get-away” car. Id. In fact, none of the testifying police officers had searched the suspect vehicle, although Officer Terry states that he assumed the car was searched (T. pp. 58, 98). If the vehicle was searched and a firearm recovered, the State presumably would have used it as overwhelming evidence that Mr. Jarrett possessed a firearm during the commission of the offenses. Just as powerful is the inference that the car was searched and a firearm was not found. The proper inference is that no gun was recovered from the Defendant, his car or in the residence from which he fled. As stated in the jury instructions, the burden of proof of guilt of the Defendant lies on the State and the State has clearly failed to offer sufficient evidence that the Defendant possessed a firearm during the commission of the offenses. Accordingly the trial court should have dismissed this case for lack of sufficient evidence.

II. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN THE JURY INSTRUCTION EXPANDED THE OFFENSE TO ALLOW THE JURY TO CONVICT WITHOUT FINDING THAT THE DEFENDANT HAD ACTUALLY POSSESSED A WEAPON

Assignment of Error No. 4

(T pp. 170)

The trial court erroneously instructed the jury on the elements of robbery with a dangerous weapon when it expanded the element of possession of a weapon to include the reasonable appearance of use of a weapon. The jury in this case was obviously troubled by the instruction as it related to the evidence. They twice requested clarification of the possession element (R.p. 28, 29). Here the jury asked the court the following question:

Does the have to be in possession of a dangerous weapon or convince the victim that they have one but don’t really see it (R.p.28)

The jury instruction does not clarify the issue of whether the defendant must actually have a weapon. The improper instruction was prejudicial to the defendant in that it materially expanded the substantive offense. The defendant was charged under N.C.G.S. 14-87(a), which describes the offense of robbery with a dangerous weapon. The relevant portion of this statute states, “Any person or persons who, having in possession or with the use or threatened use of any firearms or other dangerous weapon, implement or means, whereby the life of a person is endangered or threatened...” N.C.G.S. 14-87(a).

In this case, the evidence at trial did not establish that the defendant had a weapon in his possession during either robbery. None of the State’s witnesses testified to seeing defendant in possession of a weapon during the robbery. The State relied upon the defendant’s conduct and statements to establish the possession element of the charge. The trial court instructed the jury as follows:

Now, I charge that for you to find the defendant guilty of robbery with a dangerous weapon, the State must prove seven things beyond a reasonable doubt:

...Sixth, the defendant had a dangerous weapon in his possession at the time he obtained the property or that it reasonably appeared to the victim that a dangerous weapon was being used, in which case you may infer, but you are not required to infer, that said instrument was what the defendant’s conduct represented it to be. . . (T pp. 170).

However, the supposition that it may have reasonably appeared that the defendant had a gun is not the substantive offense. N.C.G.S. 14-87(a) requires the actual possession of a weapon. Here the jury was confused by the ambiguity between the requirement of possession of a weapon and the permitted inference. The jury repeatedly returned to the courtroom to ask for clarification of this point. Proper instruction on the law in this case would eliminate the ambiguity. The jury that they must find, beyond a reasonable doubt, that the defendant actually had a dangerous weapon. In this case, the evidence did not demonstrate that a weapon was used in either robbery. The trial court’s ambiguous instruction on the element of possession of a dangerous weapon radically expands the substantive offense. The court’s instruction to the jury – “...or that it reasonably appeared to the victim that a dangerous weapon was being used, in which case you may infer, that said instrument was what the defendant’s conduct represented it to be” (T pp. 170) – allowed the jury to convict upon concluding that it “reasonably appeared” to the victims that the defendant was using a gun, although they never saw a gun. The jury instruction equivocates possession with mere supposition of possession, rather than requiring the State to prove that the defendant actually had a dangerous weapon in his possession.