No. COA 03-244EIGHTEENTH JUDICIAL DISTRICT
NORTH CAROLINA COURT OF APPEALS
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STATE OF NORTH CAROLINA)
)
v.)From:GUILFORD COUNTY
JERRY DALE NELSON,)01 CRS 98940-41
DEFENDANT/APPELLANT
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DEFENDANT-APPELLANT’S BRIEF
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NORTH CAROLINA COURT OF APPEALS
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STATE OF NORTH CAROLINA)
)
v.)From:GUILFORD COUNTY
JERRY DALE NELSON,)01 CRS 98940-41
DEFENDANT/APPELLANT
****************************************************
INDEX
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Page
INDEX...... i-ii
TABLE OF CASES AND AUTHORITIES ...... iii-v
QUESTIONS PRESENTED...... 1
STATEMENT OF THE CASE ...... 2-5
STATEMENT OF GROUNDS FOR APPELLATE REVIEW . . . . . 5
STATEMENT OF THE FACTS ...... 5-11
ARGUMENTS:
I.THE INDICTMENTS RETURNED AGAINST DEFENDANT
IN THESE CASES WERE INSUFFICIENT...... 11-14
II.THE TRIAL COURT ERRED BY DENYING CO-DEFENDANT,
GARY DEAN NELSON’S REQUEST FOR A JURY INSTRUCTION
REGARDING INTOXICATION...... 14-20
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III.THE TRIAL COURT ERRED WHEN IT INSTRUCTED THE
JURY ON ACTING IN CONCERT WITH RESPECT TO THE
CHARGES AGAINST DEFENDANT...... 20-24
IV.THE TRIAL COURT ERRED BY DENYING THE DEFENDANT’S
MOTIONS TO DISMISS THE CHARGES AGAINST HIM FOR
INSUFFICIENCY OF THE EVIDENCE AT THE CLOSE OF THE
STATE’S EVIDENCE AND AGAIN AT THE CLOSE OF
ALL EVIDENCE...... 24-30
A.Case number 01 CRS 98940: Assault with
a deadly weapon inflicting serious injury
upon Dwayne Kearns...... 26-27
B.01 CRS 98941: Assault with a deadly
weapon with intent to kill inflicting
serious injury against Larry Ayers.. . . . 27-28
C:01 CRS 98936: First Degree Burglary.. . . 28-30
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TABLE OF AUTHORITIES
STATUTES AND RULES:
Pages
N.C. App. Rule of Procedure 10(b)(2)...... 20
N.C. App. Rule of Procedure 10(b)(3)...... 26
N.C. App. Rule of Procedure Rule 2...... 18
N.C.G.S. 7A-27(b) ...... 5
N.C.G.S. 14-32(A) ...... 2,3
N.C.G.S. 14-32(B) ...... 2
N.C.G.S. 14-32(a) ...... 27
N.C.G.S. 14-51...... 2,3
N.C.G.S. 15A-924...... 11,14
N.C.G.S. 15A-924(a)(5)...... 11
N.C.G.S. 15A-1227(a)(3)...... 25
CONSTITUTIONAL PROVISIONS:
N. C. Constitution, Article 1, Section 18. . .19,24
N. C. Constitution, Article 1, Section 19. . . 19,24,25
N. C. Constitution, Article 1, Section 22. . . 11,14
N. C. Constitution, Article 1, Section 23. . .19,24
U.S. Constitution, V Amendment...... 14,25
U. S. Constitution, VI Amendment...... 19
U.S. Constitution, XIV Amendment...... 14,19,24
CASES:
Guyther v. Nationwide Insurance Co.,109 NC
App. 506,516-517 (1993)...... 18
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Lemmerman v. Williams Oil Company, 318 NC
577,580 (1986)...... 12
State v. Barnes, 345 NC 184, cert. denied,
522 US 876 (1997), 523 US 1024 (1988). . . . . 13,16
State v. Brown, 80 NC App.307 (1986). . . . . 20
State v. Bullock, 154 NC App. 234,244 (2002),
writ of supersedeas, disc. rev. denied, 357 NC
64, cert. denied, ___ US ___, 2003 U.S. LEXIS
7162 (2003)...... 12,14
State v. Bunn, 283 NC 444 (1973)...... 17
State v. Earnhardt, 307 NC 62,67 (1982). . . . . 26
State v. Faircloth, 297 NC 388 (1979). . . . . 13
State v. Ferguson, 261 NC 558 (1964). . . . . 28
State v. Grisgby, 351 NC 454 (2000). . . . . 28
State v. Harris, 145 NC App 570,578 (2001). . . 26
State v. Jolly, 297 NC 121 (1979)...... 29
State v. Joyner, 297 NC 349,356 (1979). . . . . 21
State v. Keitt, 153 NC App. 671,677 (2002)
affirmed, 357 NC 155 (2003)...... 19,20
State v. Lamb, 321 NC 633,644 (1988). . . . . 17
State v. Ledford, 23 NC App. 314, 316 (1974). . . 26
State v.Mann, 335 NC 294, cert. denied., 537
U.S. 1005 (2002)...... 21
State v. Mash, 323 NC 339, 350 (1988). . . . . 20
State v. Musselwhite, 59 NC App. 477 (1982). . . 28
State v. Reece, 319 NC 110,141-142 (1987). . . 13
State v. Reid, 335 NC 647 (1994)...... 27
State v. Rick, 342 NC 91,102 (1995). . . . . 29
State v. Robertson, 138 NC App. 506,507 (2000) 17
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State v. Stevens, 244 NC 380,383 (1956). . . . . 25
State v. Squalls, 65 NC App. 599 (1983)...... 29
State v. Thacker, 281 NC 477 (1982)...... 28
State v. Thomas, 65 NC App. 539 (1983)...... 25
State v. Thomas, 329 NC 423,433 (1991)...... 26
State v. VanJordon, 140 NC App. 594 (2000). . . . 28
State v. White, 307 NC 42,48 (1982), quoted. . . .13,28
Wood v. Guilford County, 355 NC 161,164 (2002). . 12
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No. COA 03-244EIGHTEENTH JUDICIAL DISTRICT
NORTH CAROLINA COURT OF APPEALS
****************************************************
STATE OF NORTH CAROLINA)
)
v.)From:GUILFORD COUNTY
JERRY DALE NELSON,)01 CRS 98940-41
DEFENDANT/APPELLANT
****************************************************
DEFENDANT-APPELLANT’S BRIEF
****************************************************
Questions Presented
I.WHETHER THE INDICTMENTS RETURNED AGAINST
DEFENDANT IN THESE CASES WERE
INSUFFICIENT?
II.WHETHER THE TRIAL COURT ERRED BY DENYING CO-
DEFENDANT, GARY DEAN NELSON’S REQUEST FOR A JURY
INSTRUCTION REGARDING INTOXICATION?
III.WHETHER THE TRIAL COURT ERRED WHEN IT INSTRUCTED
THE JURY ON ACTING IN CONCERT WITH RESPECT
TO THE CHARGES AGAINST DEFENDANT?
IV.WHETHER THE TRIAL COURT ERRED BY DENYING THE
DEFENDANT’S MOTIONS TO DISMISS THE CHARGES AGAINST
HIM FOR INSUFFICIENCY OF THE EVIDENCE AT THE CLOSE
OF THE STATE’S EVIDENCE AND AGAIN AT THE CLOSE OF
ALL EVIDENCE?
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Statement of the Case
On or about September 26, 2001, issuance of a warrant for arrest charged Defendant/Appellant, Jerry Dale Nelson (hereinafter “Defendant”) with first degree burglary, in violation of NCGS 14-51, in Guilford County case number 01 CR 98936. R., pp. 4,5. On or about September 27, 2001, issuance of warrants for arrest charged Defendant with assault with a deadly weapon inflicting serious injury (against Dwayne Kearns), in violation of NCGS 14-32(B), in Guilford County case number 01 CR 98940; and assault with a deadly weapon with intent to kill inflicting serious injury (against Larry Ayers); in violation of NCGS 14-32(A), in Guilford County case number 01 CR 98941. R., pp. 8-11.
On or about November 5, 2001, a Guilford County Grand Jury returned indictments against Defendant in cases number 01 CRS 98936 (first degree burglary), in violation of NCGS 14-51; 01 CRS 98940 (assault with a deadly weapon inflicting serious injury against Dwayne Kearns), in violation of NCGS 14-32(B); and 01 CRS 98941 (assault with intent to kill inflicting serious injury against Larry Ayers), in violation 14-32(A). R., pp. 16,21,24. On or about November 26, 2001, Guilford County Grand Jury returned a superceding indictment against Defendant in case number 01 CRS 98940, charging Defendant with assault with a deadly weapon with intent to kill inflicting serious injury
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against Dwayne Kearns. R., p. 22. On or about December 10, 2001, a Guilford County Grand Jury returned a superceding indictment against Defendant in case number 01 CRS 98940, charging Defendant with assault with a deadly weapon with intent to kill inflicting serious injury against Dwayne Kearns, in violation of NCGS 14-32(A). R., p. 23. On or about May 6, 2002, a Guilford County Grand Jury returned a superceding indictment against Defendant in case number 01 CRS 98936, charging Defendant with first degree burglary, in violation of NCGS 14-51. R., p. 17.
At sometime prior to trial, Presiding Judge Ron Spivey allowed State’s motion to join Defendant and Defendant’s brother, Gary Dean Nelson, charged with identical crimes, for trial in Guilford County Criminal Superior Court. T., p. 5.
State called Defendants’ cases for trial in Guilford County Criminal Superior Court beginning on or about May 20, 2002. R., p. 94; T., pp. 1,3,5. Gary Dean Nelson entered a plea of guilty to assault with a deadly weapon inflicting serious injury on Dwayne Kearns in Guilford County case number 01 CRS 98939. R., pp. 61-65,79; T., pp. 9-18. John O. Craig, III, Judge presiding continued Prayer for Judgment pending trial of the remaining matters. R., p. 65; T., pp. 17,18. The State proceeded to trial against Defendant in case number 01 CRS 98940 without intent to
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kill, leaving assault with a deadly weapon inflicting serious injury in the matter of Dwayne Kearns. T., pp. 6,7.
Following jury selection and trial, a Guilford County jury returned verdicts of guilty against Defendant of first degree burglary (in case 01 CRS 98936), assault with a deadly weapon inflicting serious injury on Dwayne Kearns (in case number 01 CRS 98940), and guilty of assault with deadly weapon with intent to kill inflicting serious injury on Larry Ayers (in case number 01 CRS 98941). R., pp. 67-69; T., pp. 347-349. The same jury also convicted Gary Dean Nelson of first degree burglary (case number 01 CRS 98935) and assault with a deadly weapon with intent to kill inflicting serious injury on Larry Ayers (in case number 01 CRS 98942). R., pp. 66,70; T., p. 349. The same jury was unable to reach verdicts on companion charges of attempted first-degree murder of Larry Ayers in the matter of both Defendant and Gary Dean Nelson. T., Id.
Following return of verdicts, Judge Craig sentenced Defendant in case number 01 CRS 98941 to a minimum of 107 months to a maximum of 138 months active imprisonment in the North Carolina Department of Corrections. R., pp. 81-82; T., p. 379. Judge Craig further sentenced Defendant in case number 01 CRS 98936 to a minimum of 100 months to a maximum of 129 months active imprisonment in North Carolina Department of Corrections
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to begin at the expiration of the sentence imposed in case number 01 CRS 98941. R., pp. 77,78; T., p. 379.
Defendant entered Notice of Appeal to the North Carolina Court of Appeals on or about May 24, 2002. R., pp. 88-89; T. p. 380.
STATEMENT OF GROUNDS FOR APPELLATE REVIEW
Defendant appeals pursuant to NCGS 7A-27(b) from final judgments entered in Guilford County Criminal Superior Court.
Statement of the Facts
On or about Wednesday, September 26, 2001, Larry Ayers asked his neighbor, Brian Hayes to go with him to a bar and shoot some pool. T., pp. 47,115-116. Brian Hayes had known Larry Ayers for about four years. T., pp. 103,110,116. They were friends and worked together. T., pp. 110,116.
Defendant and his brother, Gary Dean Nelson were already present at Pinecroft Sports Bar/Club, located at 2804 Pinecroft Road, Greensboro, Guilford County, North Carolina. T., p. 148. Defendant and his brother had gone to the bar from Defendant’s residence. T., p. 176. Gary Dean Nelson had drank at least a couple of beers at his brother’s house before going to the bar. Id. Gary Dean Nelson had endured double hernia surgery nine days prior to the events in question. T., p. 173-174. Pursuant to a prescription for pain from Dr. Hayworth, Gary Dean Nelson
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had been eating Oxycodone for nine days. T., pp. 175,198. Defendant and Gary Dean Nelson had been at the bar for a couple of hours since at or before 6:00 p.m. T., p. 177. Since arriving at the bar, Gary Dean Nelson had drank several beers. T., p. 178. Defendant had drank four or five beers before leaving for the bar. T., p. 222. Defendant had drank at least three beers since arriving at the bar. Id. Defendant could have drank up to the equivalent of a twelve pack that afternoon. T., p. 212.
Brian Hayes and his son Jason gave Larry Ayers a ride to Pinecroft Bar. T., p. 103 As Larry Ayers, Brian Hayes and Jason approached Pinecroft Bar, Defendant, Gary Dean Nelson and Kelly Shropshire were standing just outside the bar. T., pp. 104,139,212. Larry Ayers used to date Kelly. T., p. 139. Larry Ayers hugged Kelly Shropshire. T., p. 106. Words were exchanged outside of the bar before Larry Ayers, Brian Hayes and Jason entered the bar. T., pp. 105-106.
Upon entering the bar, Larry Ayers and Brian Hayes started to drink beer. T., p. 106. Larry Ayers and Jason began playing at a pool table. Id. An altercation ensued between Larry Ayers and Gary Dean Nelson. T., p. 107. Larry Ayers beat Gary Dean Nelson, who was significantly larger than Larry Ayers. T., pp. 107,111-112,118. Larry Ayers hit Gary Dean Nelson with a pool stick. T., pp. 117,178,213-214. Larry Ayers was about to rip
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out Gary Dean Nelson’s stitches from his recent surgery. T., p. 178. Larry Ayers was on top of Gary Dean Nelson. T., p. 118. Defendant began to approach the altercation to aid his brother, Gary Dean Nelson; however, Defendant touched no one in the bar. T., pp. 160,214,234. Larry Ayers took off. T., pp. 108,119.
Larry Ayers and Brian Hayes testified at trial that Gary Dean Nelson pulled a knife at the bar. T., pp. 108,119. Gary Dean Nelson denied pulling a knife at the bar. T., p. 186. On the day of the incident, in a statement to Officer A. W. Stout of the Greensboro Police Department, Brian Hayes made no mention of Gary Dean Nelson having a knife at the bar. T., p. 151. Officer Stout testified that had Brian Hayes told him anything about Gary Dean Nelson having a knife at the bar, he would have written it down in Mr. Hayes’ statement. T., p. 155.
When Larry Ayers exited the bar, he had cell phone. T., pp. 120,142. Instead of calling the police for assistance, Larry Ayers called his brother to come pick him up. T., pp. 72, 97, 108, 120,142. Larry Ayers walked to his friend, Wyman Dwayne Kearns’ house, with whom he works, located at 2019 West Vandalia Street, Greensboro, Guilford County, North Carolina. T., pp. 47,51,120. Gary Dean Nelson and Defendant followed Larry Ayers. T. p. 179.
Dwayne Kearns, Sandra Renee Hunt (also known as Angel, Kearns’ fiancée) and Kearns’ daughter, Ashley (ten years old)
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were at Dwayne Kearns’ house. T., pp. 46-48,71. Sandra Hunt found Ashley outside talking to Larry Ayers. T., p. 48. Sandra Hunt and Ashley let Larry Ayers in the house. Id. In a statement to Officer L. F. Gore, of the Greensboro Police Department, Larry Ayers said he told Sandra Hunt about the incident at the bar. T., p. 161. Sandra Hunt denied this happened. T., p. 65.
Sandra Hunt looked outside from the kitchen and saw somebody in the backyard. T., p. 48. She then saw Defendant and his brother Gary Dean Nelson outside on the porch. Id. Neither Defendant nor Gary Dean Nelson wore disguise. T., p. 96.
Defendant and Gary Dean Nelson entered the Kearns house. T. p. 48. Sandra Hunt did not know which individual entered first. T., p. 50. The evidence is undisputed and uncontradicted that only Gary Dean Nelson had exclusive possession of a knife at any point in time. T., pp. 53-54,78,123,161,216,227. Defendant first saw and was aware of Gary Dean Nelson’s knife after later entering a bathroom in the Kearns’ house. T., p., 216,224.
After entering the Kearns’ house, Defendant approached Dwayne Kearns and asked “Where’s Larry?” and then said “Get out of my way.” T., pp. 75,215,228. Defendant denied holding Dwayne Kearns. T., p. 229,230,235. Defendant intended to beat up Larry Ayers. T., p. 238. Gary Dean Nelson testified he stuck
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Dwayne Kearns when Kearns kicked him. T., p. 187. Defendant testified he meant no harm to Dwayne Kearns, as Defendant was solely going after Larry Ayers because of what Larry Ayers had done to Gary Dean Nelson. T, p. 214. Defendant did not see Dwayne Kearns get cut by Gary Dean Nelson. T., p. 215. No testimony indicated Defendant knew Gary was going to cut or had cut Dwayne Kearns. As Defendant proceeded by Dwayne Kearns, the testimony of Mr. Kearns stated Gary Dean Nelson reached over Defendant to cut Kearns. T., p. 100. Dwayne Kearns testified Defendant gave no instructions in any way to Gary Dean Nelson. T., p. 101. It was not obvious Gary Dean Nelson had a knife, as Dwayne Kearns did not see it coming. T., p. 96.
Dwayne Kearns testified that both Defendant and Gary Dean Nelson were visibly upset. T., p. 96,98. Gary Dean Nelson testified that he had no plan; he simply followed Larry Ayers. T, p. 179. Gary Dean Nelson testified he only felt rage and pain. T., p. 181. Gary Dean Nelson testified he regretted the situation. T., p. 83. Gary Dean Nelson testified he had no intent to kill Larry Ayers. T., pp. 183,197. Gary Dean Nelson asked for forgiveness. T., p. 198. Gary Dean Nelson repeatedly testified that at the time, he was not in his right mind. T., pp. 181,195. Saying he would not lie for the Defendant, Gary Dean Nelson testified that he never related to Defendant any intent to cut or kill anyone. T., pp. 194,199-200. Defendant
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did not know Gary Dean Nelson’s intent. T., p. 217. Defendant had no idea what Gary Dean Nelson had in mind. T., p. 239.
Defendant continued through the Kearns’ house, where he found Larry Ayers with a struggle ensuing during which Defendant hit Larry Ayers three to five times. T, p. 216. Gary Dean Nelson testified that he fell and stuck Larry Ayers with the knife. T., p 181. The evidence is undisputed that Gary Dean Nelson stabbed Larry Ayers. T., pp. 125,161. Defendant first became aware Gary Dean Nelson had a knife when Larry Ayers said, “Don’t Porky (Defendant), don’t let him cut me no more.” T., pp. 137,216,224. Defendant and Gary Dean Nelson then walked away. T., p. 55.
When contacted by police, both Defendant and Gary Dean Nelson met the police and turned themselves in. T, pp. 194,221.
Jerry Franklin Bennett, a sergeant with the North Carolina Department of Corrections of 15 years, testified that he had known Gary Dean Nelson all of his life and that he had a reputation for truthfulness. T., pp 201-203. Danny Ray Fagg testified that he was Gary Dean Nelson’s supervisor at Pike Electric. T., pp. 205-206. Mr. Fagg testified that Gary Dean Nelson was a good worker and that he had presented evidence of his double hernia surgery through work. T., pp. 206-210. Mr. Fagg also testified that Gary Dean Nelson was truthful. T., pp. 207-209.
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Brian Hayes and Larry Ayers both testified they had talked with each other about this case prior to their trial testimony. T., pp. 111,142. Larry Ayers testified under oath that he had been convicted, in the ten years prior to this trial, of resist/delay/obstruct a public officer, injury to personal property, felony maintaining a dwelling for controlled substances, three counts of felonious selling or delivering marijuana, and conspiracy. T., p. 145.
Argument
I.THE INDICTMENTS RETURNED AGAINST DEFENDANT IN THESE CASES WERE INSUFFICIENT.
Assignments of Error Number 11. (R., p. 108)
Article 1, Section 22 of the North Carolina Constitution provides, “[e]xcept in misdemeanor cases initiated in the District Court Division, no person shall be put to answer any criminal charge but by indictment, presentment, or impeachment.…” NCGS 15A-924 requires that “[a] criminal pleading must contain… [a] plain and concise factual statement of each count which, without allegations of an evidentiary nature, asserts facts supporting every element of the criminal offense and the defendant’s commission thereof with sufficient precision clearly to apprise the defendant or defendants of the conduct which is the subject of the accusation. …” NCGS 15A-924(a)(5).
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The Court of Appeals has inherent judicial authority to inquire into and determine questions regarding its own jurisdiction. Lemmerman v. Williams Oil Co., 318 NC 577, 580 (1986). An invalid indictment fails to grant a trial court subject matter jurisdiction. State v. Bullock, 154 NC App. 234, 244 (2002), writ of supersedeas, disc. rev. denied, 357 NC 64, cert. denied, ____ US ____, 2003 U.S. LEXIS 7162 (2003). Validity of an indictment may be challenged initially on appeal. Wood v. Guilford County, 355 NC 161, 164 (2002).
On November 5, 2001, in Guilford County Grand Jury returned an indictment against Defendant, alleging that he “…did assault Larry Ayers with a long knife, a deadly weapon. The assault was intended to kill and did result in serious injury, to wit: a laceration to the head, a laceration to the wrist and a stab wound to the body.” R., p. 24. On or about December 10, 2001, in case number 01 CRS 98940, a Guilford County Grand Jury returned a superceding indictment against Defendant, alleging that he, “…did assault Dwayne Kearns with a long knife, a deadly weapon. The assault was intended to kill and did result in serious injury, to wit: a knife wound to the side of the face/head.” R., p. 23. On or about May 6, 2002, a Guilford County Grand Jury returned a superceding indictment against Defendant in case number 01 CRS 98936, alleging that he “…did during the night time break and enter a dwelling house of Dwayne Kearns, located at 2019 West Vandalia Road, Greensboro, North
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Carolina. At the time of the breaking and entering, the dwelling house was actually occupied by Larry Ayers and Dwayne Kearns and others. The Defendant broke and entered with the intent to commit a felony therein, to wit: a felonious assault.” R., p. 17.
Each of the indictments returned against Defendant alleged a specific intent crime. “When an indictment alleges an intent to commit a particular felony, the State must prove the particular felonious intent alleged.” State v. White, 307 NC 42, 48 (1982), quoting, State v. Faircloth, 297 NC 388 (1979). Former law in North Carolina required that for crimes requiring a specific mens rea, said mens rea must be shown as to each defendant tried. State v. Reese, 319 NC 110, 141-142 (1987). In State v. Barnes, 345 NC 184, cert. denied, 522 US 876 (1997), 523 US 1024 (1998), The North Carolina Supreme Court excepted from this requirement the theory of acting in concert. Id. at 233. An individual could be found equally guilty of another’s acts if that individual acted with the other in a common purpose to commit a crime, committed by the other as a probable consequence of that common purpose. Id. In so ruling, the Court effectively relieved the State of its burden of proving a specific intent against each defendant if they were found to have acted in concert with another.