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No. COA 03-760TWENTY-SEVEN-A JUDICIAL DISTRICT
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NORTH CAROLINA COURT OF APPEALS
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STATE OF NORTH CAROLINA)
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v.)
)
DAMON DEMOND STAFFORD,)
Defendant)
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DEFENDANT-APPELLANT’S BRIEF
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INDEX
TABLE OF AUTHORITIES
QUESTIONS PRESENTED FOR REVIEW
NOTE REGARDING TRANSCRIPT IDENTIFICATION
STATEMENT OF THE CASE
STATEMENT OF GROUNDS FOR APPELLATE REVIEW
STATEMENT OF FACTS
ARGUMENT
I.The Trial Court lacked jurisdiction to increase Defendant’s valid sentences on the two armed robbery charges when the judgment had been entered and was final, and the original sentence was on appeal.
A.Introduction
B.Argument
II.The Trial Court subjected the Defendant to Double Jeopardy and denied him due process and/or committed plain error by allowing the State to proceed on two counts of Robbery with A Dangerous Weapon, by submitting both counts to the jury, and by failing to arrest judgment on one count when taken in the light most favorable to the State, the evidence showed only a single robbery; The Trial Court erred by denying Defendant’s motions to dismiss the armed robbery charges and allowing the jury to consider them when the evidence presented differed materially from that charged in the indictment; and The Trial Court erred by denying Defendant’s Motions to Dismiss and his Motion to Set Aside the Verdicts on the charges of Armed Robbery of Donald James Hunt, Sr., because taken in the light most favorable to the State, the evidence was insufficient to support convictions.
A.Introduction
B.Argument
III.The Trial Court erred by denying Defendant’s Motions to Dismiss and his Motion to Set Aside the Verdicts on the remaining counts because taken in the light most favorable to the State, the evidence was insufficient to support convictions.
IV.The short-form murder indictments in these cases were fatally defective and proceeding to trial on these indictments deprived violated the defendant’s constitutional rights.
V.Abandonment of Remaining Assignments of Error
CONCLUSION
CERTIFICATE OF SERVICE
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TABLE OF AUTHORITIES
Cases
Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) 22, 24
Bowen v. Hodge Motor Co., 292 N.C. 633, 234 S.E.2d 748 (1977)..14
Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990) 24
Lawing v. Lawing, 81 N.C. App. 159, 344 S.E.2d 100 (1986)...... 14
Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428,153 L.Ed.2d 556 (2002) 29
State v. Ballard, 280 N.C. 479, 186 S.E.2d 372 (1972)...... 25
State v. Beaty, 306 N.C. 491, 293 S.E.2d 760 (1982)...... 23, 27
State v. Bell, 205 N.C. 225, 171 S.E. 50 (1933)...... 24
State v. Birmingham, 44 N.C. 120 (1852)...... 23
State v. Brayboy, 105 N.C.App. 370, 413 S.E.2d 590 (1992)...... 28
State v. Cannon, 244 N.C. 399, 94 S.E.2d 339 (1956)...... 14
State v. Clemmons, 207 N.C. 276, 176 S.E. 760 (1934)...... 24
State v. Davis, 106 N.C.App. 596, 599, 418 S.E.2d 263, 265 (1992) 24
State v. Davis, 123 N.C. App. 240, 472 S.E.2d 392 (1996)...14, 15
State v. Dick, 126 N.C.App. 312, 485 S.E.2d 88 (1997)...... 28
State v. Fambrough, 28 N.C. App. 214, 220 S.E.2d 370 (1975)....22
State v. Freeman, 162 N.C. 594, 77 S.E. 780 (1913)...... 23
State v. Froneberger, 81 N.C.App. 398, 344 S.E.2d 344 (1986)...23
State v. Gardner, 315 N.C. 444, 340 S.E.2d 701 (1986)...... 22
State v. Hankins, 136 N.C. 621, 48 S.E. 593 (1904)...... 23
State v. Haynesworth, 146 N.C.App. 523, 553 S.E.2d 103 (2001)..22
State v. Hicks, 233 N.C. 511, 64 S.E.2d 871 (1951)...... 24
State v. Hooker, 145 N.C. 581, 59 S.E. 866(1907)...... 23
State v. Hunt, ___ N.C. ___, 584 S.E.2d 79 (2003)...... 29
State v. Jesse, 20 N.C. 95 (1838)...... 23
State v. Martin, 47 N.C.App. 223, 267 S.E.2d 35, disc. rev. denied, 301 N.C. 238, 283 S.E.2d 134 (1980) 23
State v. Martin, 82 N.C. 672 (1880)...... 23
State v. Nash, 86 N.C. 650, 41 Am.Rep. 472 (1882)...... 23
State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983)...... 25
State v. Ray, 97 N.C.App. 621, 389 S.E.2d 422 (1990)...... 24
State v. Revels, 44 N.C. 200 (1853)...... 23
State v. Simons, 70 N.C. 336 (1874)...... 23
State v. Simpson, ____ N.C. App. ___, 583 S.E.2d 714 (2003)....28
State v. White, 322 N.C. 506, 369 S.E.2d 813 (1988)...... 27
State v. Williams, 133 N.C.App. 326, 515 S.E.2d 80 (1999)...... 28
United States v. McCaskill, 676 F.2d 995 (4th Cir. 1982)...... 25
Constitutional Provisions
N.C. Const. Art. I, § 19...... 21
U.S. Const. amend. V...... 21
U.S. Const. amend. XIV...... 21
Other Authorities
19 Strong’s N.C. Index 4thJudgments § 92 (1989)...... 14
22 C.J.S., Criminal Law, § 279...... 24
50 Am.Jur.2d Larceny § 3...... 23
Annot., 136 A.L.R. 948...... 23
Black’s Law Dictionary 546 (Pocket Edition 1996)...... 17
Rules
N.C. R. App. P 10(c)(4) (2003)...... 25
N.C. R. App. P. 11...... 14
Statutes
N.C. Gen. Stat. § 15-1340.16 (2000)...... 17
N.C. Gen. Stat. § 15A-1340.17 (2000)...... 17
N.C. Gen. Stat. § 15A-1445 (2000)...... 18
N.C. Gen. Stat. § 15A-1448 (2003)...... 14
N.C. Gen. Stat. § 15A-1453 (2003)...... 13
N.C. Gen. Stat. § 7A-27(b) (2003)...... 4
N.C. Gen.Stat. § 14-87 (2003)...... 30
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No. COA 03-760TWENTY-SEVEN-A JUDICIAL DISTRICT
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NORTH CAROLINA COURT OF APPEALS
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STATE OF NORTH CAROLINA)
)
v.)
)
DAMON DEMOND STAFFORD,)
Defendant)
QUESTIONS PRESENTED FOR REVIEW
I.Whether the Trial Court lacked jurisdiction to increase Defendant’s valid sentences on the two armed robbery charges when the judgment had been entered and was final, and the original sentence was on appeal.
II.Whether the Trial Court subjected the Defendant to Double Jeopardy and denied him due process and/or committed plain error by allowing the State to proceed on two counts of Robbery with A Dangerous Weapon, by submitting both counts to the jury, and by failing to arrest judgment on one count when one indictment charged that the Defendant took items from Donald James Hunt, the second indictment charged that the Defendant took the same items from Donald James Hunt, Jr. and taken in the light most favorable to the State, the evidence showed only a single robbery of the stated items.
III.Whether the Trial Court erred by denying Defendant’s Motions to Dismiss and his Motion to Set Aside the Verdicts, because taken in the light most favorable to the State, the evidence was insufficient to support convictions.
IV.Whether the short-form murder indictments in these cases were fatally defective and proceeding to trial on these indictments deprived violated the defendant’s constitutional rights.
NOTE REGARDING TRANSCRIPT IDENTIFICATION
This case involved a lengthy trial and a separate sentencing hearing on the first-degree murder convictions. Multiple transcripts prepared by several different court reporters are part of the Record on Appeal. Transcript references in this Brief are as follows:
“11/14/01 T” refers to Transcript of Trial, taken November 14, 2001 through November 16, 2001 by Court Reporter Teresa H. Bland, consisting of 487 pages, numbered 1-487 and bound in one volume.
“11/19/01 T (Vol. I or Vol. II)” refers to Transcript of Partial Trial Proceedings, taken November 19, 2001 through November 21, 2001 by Court Reporter B.J. Ward, consisting of 505 pages, numbered 1-595 and bound in two volumes.
“11/21/01 T” refers to Transcript labeled Trial Transcript, November 21, 2001 - PM, taken on November 21, 2001 by Court Reporter Sandra B. Carpenter, consisting of 72 pages, numbered 1-72 and bound in one volume.
“11/26/01 T” refers to Transcript of Trial, taken November 26, 2001 through November 29, 2001 by Court Reporter Mitzy Bondurant, consisting of 432 pages, numbered 1-432 and bound in one volume.
“7/15/02 T” refers to Transcript of Resentencing Hearing, taken on July 15, 2002 by Court Reporter Mitzy Bondurant, consisting of nine pages, numbered 1-9 and bound in one volume.
STATEMENT OF THE CASE
Defendant Damon Demond Stafford was charged with two counts of first-degree murder, two counts of Robbery with a Dangerous Weapon, and one count of Felony Breaking or Entering. (R pp. 3-7) He was tried capitally during the November 13, 2001 Criminal Session of Gaston County Superior Court, the Honorable Beverly T. Beal, Superior Court Judge Presiding. Following jury verdicts of guilty on all charges (R pp. 9-13), a capital sentencing hearing was conducted on the two first-degree murder convictions. The jury unanimously recommended life imprisonment on both counts. (R pp. 14-25)
Judge Beal entered life sentences on the two murder convictions. (R pp. 28-31) In each of the remaining three cases, he found two aggravating factors and no mitigating factors, and held that the aggravating factors outweighed the mitigating. Judge Beal then sentenced Mr. Stafford to 10-12 months in the Breaking or Entering count and to 75 to 99 months on each Robbery count. All sentences were consecutive. (R pp. 28-44) Mr. Stafford gave oral notice of appeal. (11/26/01 T p. 427, lines 22-23)
While the original appeal was pending, Judge Beal resentenced Mr. Stafford in the two robbery cases, increasing the sentences to 77-102 months each. (R pp. 51-54) Mr. Stafford did not give Notice of Appeal within the requisite timeframe, but this Court granted his Petition for Writ of Certiorari from the resentencing, and joined that appeal with the original. (R p. 55)
The trial court and the Court of Appeals extended the time for serving the transcripts and the time for serving the Proposed Record on Appeal. (R pp. 47-50 and pp. 55-64) The trial court ordered the resentencing transcript on March 5, 2003. (R pp. 61-62) With extensions granted by the Court of Appeals, the proposed Record was ultimately due on May 22, 2003. (R p. 64)
Counsel for Defendant Stafford served the Proposed Record on Appeal on counsel for the State by mail on May 22, 2003. The Record was thereafter settled by agreement between the parties. (R p. 65) The Record on Appeal was filed in the Court of Appeals on June 11, 2003 and docketed on June 13, 2003. (R p. 2) The Clerk mailed the printed Record on Appeal to the parties on June 23, 2003. On Defendant-Appellant’s Motions, the Court of Appeals thereafter extended the time to file his brief, until September 19, 2003.
STATEMENT OF GROUNDS FOR APPELLATE REVIEW
This appeal arises from the final judgment of the Superior Court in a criminal matter following trial by jury. N.C. Gen. Stat. § 7A-27(b) confers grounds for appellate review.
STATEMENT OF FACTS
Defendant-Appellant was convicted and then sentenced on these matters on November 29, 2001. He immediately gave oral notice of appeal. Approximately nine months later, on July 15, 2002, the trial judge modified the original sentences, increasing them above the original judgment. This appeal was pending at the time. During the trial of these cases, the evidence tended to show the following.
Donald James Hunt, Sr. (“Mr. Hunt”), Janie Pearl Hunt (“Mrs. Hunt”), and their adult son, Donald James Hunt, Jr. (“D.J.”) lived at 322 South Vance Street in Gastonia. On August 12, 1999, Mr. and Mrs. Hunt worked the third shift at Carolina Mills, finishing at 7:00 a.m. on August 13. After work, they came home, showered, and went to bed in their first-floor bedroom around 10:30 a.m. A loud noise woke them. Mrs. Hunt looked up from her bed to see a black man coming toward her with a gun, saying, “Police, police.” Cursing, the man told Mr. and Mrs. Hunt to get out of the bed and lay on the floor. He then ordered them into the living room. (11/14/01 T pp. 221-227.)
The loud noise also woke D.J., who was sleeping in the living room. (11/14/01 T pp. 221-226 and pp. 273-276) He heard voices saying, “Police, police. Get down.” Then, a black man who was a stranger to him came into the living room. The man asked if he was D.J. and drove a Black Explorer. When D.J. said he was, the man told him to get on the floor and hit him in the back of the head with a gun. Mr. and Mrs. Hunt came into the living room with two armed men behind them. The men directed all three Hunts to lie on the floor. (11/14/01 T pp. 276-280.) One of the men took gold chains and bracelets off D.J., as well as the money from his pocket. (11/14/01 T pp. 283-284) They repeatedly asked D.J., “Where’s the money? Where’s the stuff?” (11/14/01 T p 280.)
D.J. took the question about “stuff” to mean drugs, and told the men that he had no drugs and no money, other than the $2,500 in his pocket. (11/14/01 T p. 281, lines 8-9.) The men began searching the house, and kept demanding more money. D.J. finally told them that he had money upstairs. One of the men — later identified as Bynum — went to the upstairs bedroom with Mrs. Hunt. There, he asked her where the money was. She did not know and he made her lie on the floor while he searched the room, but he found nothing. (11/14/01 T pp.229-230)
When Mrs. Hunt and the man came back downstairs without finding the money, the three men were angry. D.J. testified that one of them said they weren’t playing around and were going to start killing, beginning with Mrs. Hunt. D.J. testified that after the threat was uttered, Bynum struck Mrs. Hunt in the head with his gun and Mr. Hunt jumped off the floor and grabbed Bynum. As the two men tussled, they went into the nearby bedroom. D.J. testified that Appellant Stafford followed the two men into the bedroom, and that from where he lay on the floor, D.J. could see Stafford shooting in the bedroom doorway. He testified that he then saw Stafford take a briefcase and run out the back door, followed by Jones. (11/14/02 T pp. 286-288.) Mrs. Hunt testified that the briefcase the men took belonged to her and contained her “important papers.” (11/14/01 T p. 248, lines 12-18.)
Police investigators found blood on the kitchen floor. DNA testing showed that it came from Devan LeShawn Bynum. (11/21/01 T p. 462-463.) Bynum is the named victim in Appellant’s conviction of first degree murder, case number 99-CRS-29081.
After the men left, D.J. grabbed his brother’s gun and ran out the front door. At first, he did not see anyone, but a little way down the street, he spotted the three men coming from the back of the house. He pointed the cocked gun at them from twenty feet away, but the gun was jammed and did not fire. The three men ran behind two more houses, reemerged on the street, and ran down the sidewalk. As they ran, one turned and fired a shot. (11/14/01 T. p. 430.) D.J. ran to a neighbor’s house, borrowed their car keys, and went looking for the men. When he could not find them, he returned home. The ambulance was there for his father and police officers were there to investigate. D.J. talked to the police and then went to the hospital, where he learned that Mr. Hunt had died. (11/14/01 T. pp. 219-304.) He had received three gunshot wounds to his left side and died as a result of blood loss from the wounds in his abdomen. (11/19/01 T pp. 204-215.)
Mrs. Hunt could not identify the three men at trial. (11/14/01 T. p. 227) D.J. had not seen the men before, but identified them from news articles and in a police photographic lineup as Appellant Stafford, Devan Lashawn Bynum, and Brandon Jones.
Thomas Olofsson and Theresa Nolan lived in the downstairs unit of a duplex on Chester Street in Gastonia. Appellant’s girlfriend, Patsy Page, lived upstairs. Around midday on August 13, 1999, they saw Appellant and two black men drive a white car into the shared driveway. The front passenger seemed lethargic and was sitting back in the seat. While they watched, Appellant opened the passenger door. Mr. Olofsson offered to help. Appellant replied that he was bringing the man into Ms. Page’s apartment and asked them to call 911. Ms. Nolan went into the house to do so. As Appellant opened the car door, the front passenger rolled out. He was wearing boxers, which he took off so that he was naked. Mr. Olofsson saw blood on the passenger seat and on the lower part of the man’s back. The three men then got back into the car, without waiting for the 911 response, and drove off. (11/14/01 T pp. 435-438 and 444-447.)
About 3:30 that afternoon, two black men in their 20s drove up to the emergency room entrance of Carolinas Medical Center in Charlotte. They unloaded a third man from their car. Medical Center Security Guard Reed Moore saw the men approach and offered to help. The man had been shot. All three carried him into the emergency room and put him on a bed. The other two men left and, to Mr. Moore’s knowledge, did not return. (11/14/01 T. pp. 401-403.)
Dr. Parker Hayes was the attending physician in the CMC emergency room that day, and was called to treat the man left there. He was subsequently identified as Devan LaShawn Bynum. Mr. Bynum had no vital signs when he arrived and attempts to revive him were unsuccessful. Dr. Hayes pronounced him dead at 3:36 p.m. He noted that Bynum had two gunshot wounds in his scrotum and one in his right buttock. (11/14/10 T. pp. 392-397.) Earlier that day, Mr. Bynum had left his home with Appellant and Brandon Jones. (11/14/01 T. pp. 407-408.)
Mecklenburg County Medical Examiner Michael Sullivan performed an autopsy on Mr. Bynum’s body and concluded that he had two gunshot wounds to the pelvic area. The first entered his left buttock, injured bowel and the pelvic bone, and most importantly, hit the iliac artery. The second shot also entered the right buttock. It injured the soft tissue of the buttock and groin, as well as the scrotum and left testicle. Dr. Sullivan testified that the wounds were survivable with proper treatment. (11/14/01 T. pp. 303-307.)
State’s witness Patsy Page testified that she had been Appellant’s girlfriend for approximately three years and was pregnant with his child at the time of these incidents. She lived with Appellant and her daughter in the Chester Street duplex. On August 13, 1999, she was preparing for an out of town trip and had rented a white Saturn for that purpose. When she got out of the shower that morning, the car and Appellant were gone. She drove to his grandmother’s home in Charlotte, looking for him, but he was not there. Later that afternoon, Appellant paged her. When she called back, he told her that Bynum had been shot and asked her to come to his grandmother’s house. When she arrived, she took Appellant’s brother to the hospital to see if Shawn was all right.
When Page returned from the hospital, Appellant told her they were smoking marijuana in North Charlotte, when someone drove by and shot at them, hitting Bynum. She asked where the rental Saturn was and Appellant told her he had it parked. (11/14/01 T pp. 79-91.) Ms. Page drove Appellant and Brandon Jones to a Ramada Inn in Charlotte, where she rented a room for Jones with cash. Appellant remained with her in the car. At her request, he took her to see the rental car. The windshield was broken and there was blood in the front passenger seat. They left the car there and went to pick up her daughter.