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NO. COA12-1358 TWENTY-TWO-A JUDICIAL DISTRICT
NORTH CAROLINA COURT OF APPEALS
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STATE OF NORTH CAROLINA)
)
v.)From Iredell County
)
JAMAREO LAVAR CALDWELL)
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DEFENDANT-APPELLANT’S BRIEF
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SUBJECT INDEX
ISSUE PRESENTED...... 1
Statement of the Case...... 2
STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW 2
Statement of the Facts...... 3
A.The State’s Evidence...... 3
B.Mr. Caldwell’s Evidence...... 6
StaNDARD of review...... 7
ARGUMENT...... 7
I.THE TRIAL COURT erred by instructing the jurors that they could infer an intent to steal from the evidence because the inference was improper and prejudiced the jurors against Mr. Caldwell on the most contested aspect of his trial 7
A.Procedural History...... 8
B.The trial court improperly allowed the jury to infer an intent to steal from the evidence 9
C.The instruction on the McBryde inference prejudiced Mr. Caldwell 12
CONCLUSION...... 14
CERTIFICATE OF COMPLIANCE WITH RULE 28(J)(2).15
CERTIFICATE OF FILING AND SERVICE...... 16
TABLE OF AUTHORITIES
Cases
In re Mitchell,
87 N.C. App. 164, 359 S.E.2d 809 (1987)...... 10
State v. Alexander,
18 N.C. App. 460, 197 S.E.2d 272 (1973)...... 12
State v. Atkinson,
39 N.C. App. 575, 251 S.E.2d 677 (1979)...... 9
State v. Bright,
78 N.C. App. 239, 337 S.E.2d 87 (1985)...... 12
State v. Cuthrell,
233 N.C. 274, 63 S.E.2d 549 (1951)...... 13
State v. Earnhardt,
307 N.C. 62, 296 S.E.2d 649 (1982)...... 10
State v. Freeman,
307 N.C. 445, 298 S.E.2d 376 (1983)...... 12
State v. Humphries,
82 N.C. App. 749, 348 S.E.2d 167 (1986)...... 10
State v. Jenkins,
202 N.C. App. 291, 688 S.E.2d 101 (2010)...... 7
State v. Jones,
157 N.C. App. 472, 579 S.E.2d 408 (2003)...... 13
State v. Lamson,
75 N.C. App. 132, 330 S.E.2d 68 (1985)...... 10
State v. Lawrence,
___ N.C. ___, 723 S.E.2d 326 (2012)...... 12
State v. Marshall,
206 N.C. App. 580, 696 S.E.2d 894 (2010)...... 12
State v. McBryde,
97 N.C. 393, 1 S.E. 925 (1887)...... 10, 11
State v. Moore,
62 N.C. App. 431, 303 S.E.2d 230 (1983)...... 10
State v. Morgan,
315 N.C. 626, 340 S.E.2d 84 (1986)...... 9
State v. Morgan,
359 N.C. 131, 604 S.E.2d 886 (2004)...... 9
State v. Sammartino,
120 N.C. App. 597, 463 S.E.2d 307 (1995)...... 3
State v. Sams,
317 N.C. 230, 345 S.E.2d 179 (1986)...... 9
State v. Smith,
186 N.C. App. 57, 650 S.E.2d 29 (2007)...... 13
State v. Williams,
201 N.C. App. 566, 686 S.E.2d 905 (2009)...... 3
State v. Williams,
280 N.C. 132, 184 S.E.2d 875 (1971)...... 9
Sutton v. N.C. Dep't of Labor,
132 N.C. App. 387, 511 S.E.2d 340 (1999)...... 7
Statutes
N.C. Gen. Stat. § 7A-27...... 2
N.C. Gen. Stat. § 15A-1443...... 12
N.C. Gen. Stat. § 15A-1444...... 2
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NO. COA12-1358 TWENTY-TWO-A JUDICIAL DISTRICT
NORTH CAROLINA COURT OF APPEALS
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STATE OF NORTH CAROLINA)
)
v.)From Iredell County
)
JAMAREO LAVAR CALDWELL)
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DEFENDANT-APPELLANT’S BRIEF
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ISSUE Presented
- Did THE TRIAL COURT ERR BY INSTRUCTING THE JURORS THAT THEY COULD INFER AN INTENT TO STEAL FROM THE EVIDENCE BECAUSE THE INFERENCE WAS IMPROPER AND PREJUDICED THE JURORS AGAINST MR. CALDWELL ON THE MOST CONTESTED ASPECT OF HIS TRIAL?
Statement of the Case
On November 8, 2010, an IredellCounty grand jury indicted Jamareo Caldwell for first-degree burglary and attempted first-degree burglary. A grand jury then indicted Mr. Caldwell on June 6, 2011 for attaining the status of an habitual felon. (R pp6-8) The State tried the case before a jury during the January 23, 2012 criminal session of Iredell County Superior Court, the Honorable Kevin Bridges presiding. On January 25, 2012, the jury returned guilty verdicts for first-degree burglary and attempted first-degree burglary. (R pp 32-33) Afterward, Mr. Caldwell admitted his status as an habitual felon. (R pp 34-37) Judge Bridges accepted the admission and imposed consecutive sentences of 95-125 months in prison for the burglary and attempted burglary convictions. (R pp 40-43) The next day, Mr. Caldwell gave oral notice of appeal in open court. (R p 44, 2T pp 319-20)[1]
STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW
Mr. Caldwell appeals pursuant to N.C. Gen. Stat. §§7A-27(b) and 15A-1444(a) from final judgments entered in Iredell County Superior Court. Mr. Caldwell gave oral notice of appeal the day after the trial court entered judgment on his convictions and asserts that his notice of appeal was proper under Rule 4 of the North Carolina Rules of Appellate Procedure.
According to Rule 4, a defendant may appeal a judgment entered in superior court by giving oral notice of appeal at trial. A trial session in superior court is the “time during which a court sits for business and refers to a typical one-week assignment of court.” State v. Sammartino, 120 N.C. App. 597, 599, 463 S.E.2d 307, 309 (1995). Here, Mr. Caldwell gave oral notice of appeal only one day after the trial court entered judgment on his convictions and before the trial session ended. Moreover, this Court previously held that oral notice of appeal given five days after the trial court entered judgment was proper. State v. Williams, 201 N.C. App. 566, 568, 686 S.E.2d 905, 907 (2009). Consequently, it is clear that Mr. Caldwell’s notice of appeal was proper. Nevertheless, out of an abundance of caution, undersigned counsel has filed a petition for writ of certiorari contemporaneously with this brief should this Court determine that Mr. Caldwell’s notice of appeal was untimely.
Statement of the Facts
- The State’s Evidence.
On the evening of June 8, 2010, Amy Dixon was at her apartment on South Main Street in Mooresville watching movies with a friend. (1T pp 72, 96) Around 11:30 p.m., she saw a silhouette in her living room window. (1T pp 72-73) When she looked out the window, she saw a black man looking back at her. (1T p 75) Ms. Dixon then looked out the front door of her apartment, but the man was gone. Afterward, she started watching movies again. (1T pp 76-77)
Around the same time, Geraldine Winston and Edwin Figueroa were watching movies in a nearby apartment when they heard their back door swing open. (1T pp 91-92) Ms. Winston looked up and saw a black man in her kitchen. The man had dreadlocks, wore a white T-shirt, and had another shirt covering the bottom part of his face. (1T p 93) Ms. Winston told Mr. Figueroa to get the man out of the house. (1T p 94) Mr. Figueroa asked the man what he was doing, but the man went out the back door. (1T p 172)
Mr. Figueroa went out the back door a moment later. Although the light in the backyard was on, he did not see anyone. He walked to the front of the house and did not see anyone there, either. Mr. Figueroa then returned to the backyard and saw the man trying to open the backdoor to the apartment of his neighbor, Krystal Mercorella. Mr. Figueroa asked the man what he was doing, but the man did not respond. Instead, he slowly backed away, got on a bike, and rode away. (1T pp 174-76)
In the meantime, Ms. Winston went to Ms. Mercorella’s house. After Ms. Mercorella let Ms. Winston into her apartment, they heard someone trying to open Ms. Mercorella’s back door. Ms. Winston and Ms. Mercorella then walked to the backyard to investigate. At the time, the light next to Ms. Mercorella’s back door was on. When they arrived at the backyard, they saw the man with dreadlocks get on a bike and ride away. Ms. Winston and Ms. Mercorella then saw Mr. Figueroa. All three returned to the front of the apartment where Ms. Winston called the police. (1T pp 94-95, 122-25)
A short while later, Mooresville Police Officer Randall Crowe heard a radio dispatch about a possible break-in on Main Street. The dispatch indicated that the suspect was a black male with dreadlocks wearing a white T-shirt and riding a bicycle. (1T pp 199-200) As Officer Crowe was driving nearMain Street, he saw a man who matched the description of the suspect. (1T p 201) Officer Crowe stopped the man and asked to talk. The man laid down his bicycle and agreed to talk. Shortly afterward, Officer David Overlin arrived and began talking to the man, as well. The man identified himself as Jamareo Caldwell. He explained that he was coming from a store and going to a friend’s house. Officer Crowe said that there had been a break-in nearby and that he wanted Mr. Caldwell to participate in a show-up. Mr. Caldwell agreed to stay for the show-up. (1T pp 202-05) A few minutes later, Captain Joseph Cooke drove by with Mr. Figueroa, who identified Mr. Caldwell as the man who entered his apartment. (1T p 216) Officer Overlin then arrested Mr. Caldwell and took him to the police station. (1T pp 158, 206)
While Officer Overlin was filling out paperwork at the police station, he told Mr. Caldwell that he would be charged with burglary. Mr. Caldwell responded that he knew things that could help Officer Overlin. He also said that he would plead guilty if the charge were reduced to misdemeanor breaking or entering. Officer Overlin told Mr. Caldwell that he planned to charge him with burglary. (1T pp 161-62)
At trial, Mr. Figueroa could not identify Mr. Caldwell as the person who entered his apartment. (1T p 181) Ms. Dixon was also unable to identify the person that she saw outside of her apartment, (1T p 80), and Ms. Mercorella acknowledged that she did not get a good look at the man that she saw behind her apartment. (T p 125) However, Ms. Winston identified Mr. Caldwell as the man who entered her apartment on June 8, 2010. (1T p 111)
- Mr. Caldwell’s Evidence.
Sabrina Aumick testified that she met Mr. Caldwell in May 2010. At the time, they were “just friends trying to get to know each other.” They texted each other everyday. (2T p 235) Around 9:00 or 10:00 p.m. on June 8, 2010, she sent Mr. Caldwell a text inviting him to watch movies with her and her friends at an apartment complex on South Main Street. She told him that the porch light would be on and that he should “just come on in and come through the back.” The last text that she received from Mr. Caldwell stated that he was in the apartment complex. She texted him back and asked where he was, but she never got a response. The next time she heard from Mr. Caldwell was a few weeks before his trial, which occurred in January 2012. (2T pp 236-40)
StaNDARD of review
Mr. Caldwell asserts that the trial court erred by instructing the jurors that they could infer an intent to steal from the evidence. “Our Court reviews a trial court’s decisions regarding jury instructions de novo.” State v. Jenkins, 202 N.C. App. 291, 296, 688 S.E.2d 101, 105, disc. rev. denied, 364 N.C. 245, 698 S.E.2d 665 (2010). Under the de novo standard of review, the reviewing court considers the matter anew and freely substitutes its own judgment for the lower court’s. Sutton v. N.C. Dep't of Labor, 132 N.C. App. 387, 389, 511 S.E.2d 340, 340 (1999).
ARGUMENT
- THE TRIAL COURT erred by instructing the jurors that they could infer an intent to steal from the evidence because the inference was improper and prejudiced the jurors against Mr. Caldwell on the most contested aspect of his trial.
The trial court gave an instruction for the burglary and attempted burglary charges that was in direct conflict with precedent from the North Carolina Supreme Court and this Court. At the State’s urging, the court instructed the jurors that they could infer an intent to commit larceny from the mere fact that Mr. Caldwell entered Mr. Figueroa’s apartment at night. However, the instruction was clearly erroneous under North Carolina law because Mr. Caldwell presented evidence that rebutted the inference. The instruction was also wholly inappropriate for the attempted burglary charge because Mr. Caldwell never even entered the apartment associated with that charge. Ultimately, the instruction crippled Mr. Caldwell’s defense because it resolved the most disputed part of the trial – whether Mr. Caldwell intended to commit a larceny –in favor of the State. Accordingly, Mr. Caldwell’s convictions must be remanded for a new trial.
A.Procedural History.
When the defense attorney first moved to dismiss the burglary and attempted burglary charges, he argued that there was “nothing that you can even infer from [Mr. Caldwell’s] behavior that he was going to steal from Mr. Figueroa’s apartment….” (2T p 224) After presenting Ms. Aumick’s testimony, the defense attorney renewed his motion to dismiss and again argued that there was not enough evidence to show that Mr. Caldwell intended to commit a larceny when he entered Mr. Figueroa’s apartment. He also noted that Ms. Aumick’s testimony suggested that Mr. Caldwell was simply “trying to find this young lady and visit….” (2T p 262)
During the charge conference, the prosecutor asked the trial court to give the jurors a special instruction stating that they could infer an intent to steal from the evidence showing that Mr. Caldwell entered Mr. Figueroa’s apartment at night. (2T pp 270-71) The defense attorney objected to the proposed instruction in part because he had presented evidence that provided an explanation for Mr. Caldwell’s decision to enter Mr. Figueroa’s apartment. (2T p 273) Despite the defense attorney’s argument, the trial court ruled that the instruction was “appropriate.” (2T p 275) The defense attorney then asked the court to note his objection. (2T p 276) Afterward, the court instructed the jurors that they could infer an intent to steal from evidence that Mr. Caldwell entered a dwelling at night. The court applied the instruction to both the burglary and attempted burglary charges. (R pp 26-28, 2T pp 287-89)
B.The trial court improperly allowed the jury to infer an intent to steal from the evidence.
The trial court is responsible for ensuring that the jury is properly instructed before deliberations begin. State v. Morgan, 315 N.C. 626, 644, 340 S.E.2d 84, 95 (1986). As part of this responsibility, the trial court must instruct on “every substantive feature of the case.” State v. Atkinson, 39 N.C. App. 575, 581, 251 S.E.2d 677, 682 (1979). Although the trial court may give special instructions to the jury, our Supreme Court “encourage[s] the trial court to utilize the pattern jury instructions given the danger of distraction and prejudice and the desirability of uniform jury instructions for all trials, despite the unique features of each.” State v. Morgan, 359 N.C. 131, 169, 604 S.E.2d 886, 909 (2004) (citation omitted). Ultimately, the court must “give a clear instruction which applies the law to the evidence” so the jury is able to understand the case and arrive at the correct verdict. State v. Williams, 280 N.C. 132, 136, 184 S.E.2d 875, 877 (1971). If the trial court fails to properly define the law for the jury, “it is prejudicial error sufficient to warrant a new trial.” State v. Earnhardt, 307 N.C. 62, 70, 296 S.E.2d 649, 654 (1982).
In burglary cases, an inference that the defendant intended to steal property may arise when the evidence shows that the defendant entered an occupied dwelling at night. State v. Lamson, 75 N.C. App. 132, 134-35, 330 S.E.2d 68, 70 (1985). This inference is known as the McBryde inference, as the law surrounding this issue arose in the case of State v. McBryde, 97 N.C. 393, 1 S.E. 925 (1887). However, our Supreme Court made clear in McBryde that such an inference only holds “when there is no explanation or evidence of a different intent.” Id. at 396, 1 S.E. at 927. Consistent with McBryde, this Court has explicitly held that “evidence of other intent…precludes application of the McBryde inference.” In re Mitchell, 87 N.C. App. 164, 165, 359 S.E.2d 809, 810 (1987). Indeed, this Court has repeatedly held that the McBryde inference does not apply when the defendant presents evidence of some other intent for entering a dwelling. SeeLamson, 75 N.C. App. at 134-35, 330 S.E.2d at 70; State v. Humphries, 82 N.C. App. 749, 751, 348 S.E.2d 167, 169 (1986); State v. Moore, 62 N.C. App. 431, 434, 303 S.E.2d 230, 232 (1983).
Here, the trial court erred by instructing the jury on the McBryde inference for the burglary charge because Mr. Caldwell presented evidence of “other intent.” During the trial, Sabrina Aumick testified that she was texting with Mr. Caldwell on the night of June 8, 2010 and that she invited him to come to her friend’s apartment to watch a movie. (2T pp 236-37) She told him that the porch light would be on and that he should “come on in and come through the back.” (2T p 240) Based on Ms. Aumick’s testimony, it is clear that Mr. Caldwell presented evidence of “other intent.” Specifically, Ms. Aumick’s testimony indicated that Mr. Caldwell entered Mr. Figueroa’s apartment not to commit a larceny, but to find Ms. Aumick and watch a movie with her and her friends. Consequently, Ms. Aumick’s testimony should have precluded application of the McBryde inference to the burglary charge.
Ms. Aumick’s testimony served the same purpose for the attempted burglary charge. As described above, Ms. Aumick instructed Mr. Caldwell to enter the back door of her friend’s apartment. She also told Mr. Caldwell that the porch light would be on. (2T p 240) Previously at trial, Ms. Mercorella indicated that the light next to her back door was on during the night of June 8, 2010. (1T pp 122-23) As the defense attorney argued when he renewed his motion to dismiss, Ms. Aumick’s testimony indicated that Mr. Caldwell tried to enter Ms. Mercorella’s apartment under the mistaken belief that he would find Ms. Aumick and her friends there. Ms. Aumick’s testimony thus provided evidence of “other intent” for Mr. Caldwell’s attempt to enter Ms. Mercorella’s apartment. Consequently, the trial court erred by allowing the jury to also apply the McBryde inference to the attempted burglary charge.
C.The instruction on the McBryde inference prejudiced Mr. Caldwell.
When an error is preserved, the defendant must show that there is a reasonable possibility that a different result would have been reached without the error in order to establish that a new trial is warranted. N.C. Gen. Stat. § 15A-1443(a); State v. Lawrence, ___ N.C. ___, ___, 723 S.E.2d 326, 331 (2012). In this case, there is a very reasonable possibility that the jury would not have convicted Mr. Caldwell if the court had simply given the pattern instructions for the burglary and attempted burglary charges without any reference to the McBryde inference. Indeed, by allowing the jury to infer an intent to steal from the evidence, the court unquestionably tilted the scales in favor of conviction.
In order to convict Mr. Caldwell of burglary and attempted burglary, the State bore the burden of proving that he intended to commit a felony. State v. Freeman, 307 N.C. 445, 448, 298 S.E.2d 376, 378 (1983). Ordinarily, intent is difficult to prove. State v. Bright, 78 N.C. App. 239, 243, 337 S.E.2d 87, 89 (1985); State v. Alexander, 18 N.C. App. 460, 462, 197 S.E.2d 272, 273 (1973). When a court allows the jury to draw an inference from the evidence, however, there is a risk of improperly lowering the State’s burden of proof. See, e.g., State v. Marshall, 206 N.C. App. 580, 585, 696 S.E.2d 894, 898 (2010).
At its core, the dispute in this case was over Mr. Caldwell’s intent upon entering Mr. Figueroa’s apartment. The prosecutor asserted that Mr. Caldwell entered Mr. Figueroa’s apartment intending to commit a larceny. (2T p 225) The defense attorney countered that Mr. Caldwell entered the apartment intending to meet Ms. Aumick. (2T p 226) By giving an instruction on the McBryde inference, the court altered the course of jury deliberations. Instead of requiring the jury to give equal consideration to the views offered by the prosecutor and the defense attorney, the court permitted the jury to give far more weight to the State’s theory of prosecution. This gave the State an unfair advantage and “may have…induced the jury to resolve this critical issue against the defendant.” State v. Cuthrell, 233 N.C. 274, 276, 63 S.E.2d 549, 550 (1951). Accordingly, this case must be remanded for a new trial in which a jury can consider both sides of this case evenly. Consistent with this result, the judgment on the habitual felon charge must also be vacated as it was ancillary to the burglary and attempted burglary charges. State v. Smith, 186 N.C. App. 57, 67, 650 S.E.2d 29, 36 (2007); State v. Jones, 157 N.C. App. 472, 479, 579 S.E.2d 408, 413 (2003).