1
INDEX
TABLE OF AUTHORITIES...... ii
Questions Presented
Statement of the Case
Statement of the Facts
Argument
i.the trial court erred by denying defendant’s motion to dismiss at the close of the evidence because the evidence was insufficient as a matter of law to prove beyond a reasonable doubt that defendant shot Kenny Gregory with a premeditated and deliberated intent to kill.
ii.the trial court erred by failing to dismiss the charges against defendant because his constitutional right to a speedy trial was violated.
A.Factual and Procedural History
B.Defendant’s right to a speedy trial was violated and, accordingly, the charge against him should have been dismissed.
III.the trial court lacked jurisdiction to proceed on an unconstitutional murder indictment that failed to charge all the elements of first-degree murder.
Conclusion
CERTIFICATE OF FILING AND SERVICE
TABLE OF AUHORITIES
Cases
Apprendi v. New Jersey, No
99-478 (U.S. Sup. Ct. 26 June 2000)...... 35
Barker v. Wingo,
407 U.S. 514, 33 L.Ed.2d 101 (1972)...... 29
Doggett v. United States,
505 U.S 647, 120 L.Ed.2d 520 (1992)...... 17
In re Winship, 397 U.S. 358, 25 L.Ed.2d 368 (1970)...... 9
Jackson v. Virginia,
443 U.S. 307, 61 L.Ed.2d 368 (1979)...... 9
Jones v. United States,
526 U.S. 227, 143 L.Ed.2d 311 (1999)...... 35
Moore v. Arizona,
414 U.S. 25, 38 L.Ed.2d 183 (1973)...... 29
Simeon v. Hardin,
339 N.C. 358, 451 S.E.2d 858 (1995)...... 20
State v. Corn,
303 N.C. 293, 278 S.E.2d 221 (1981)...... 8
State v. Earnhardt,
307 N.C. 62, 296 S.E.2d 649 (1982)...... 10
State v. Evangelista,
319 N.C. 152, 353 S.E.2d 375 (1987)...... 9
State v. Fields,
315 N.C. 191, 337 S.E.2d 518 (1985)...... 13
State v. Figured,
116 N.C. App. 1, 446 S.Ed.2d 838 (1994)...... 29
State v. Flowers,
347 N.C. 1, 489 S.E.2d 391 (1997)...... 29
State v. Hunt,
330 N.C. 425, 410 S.E.2d 478 (1991)...... 13
State v. Hunt,
330 N.C. 425, 410 S.E.2d 478 (1991)...... 11
State v. Johnson,
124 N.C. App. 462, 478 S.E.2d 16 (1996)...... 33
State v. Joplin,
318 N.C. 126, 347 S.E.2d 421 (1986)...... 9
State v. Joyce,
104 N.C. App. 558, 410 S.E.2d 516 (1991)...... 30
State v. Langlois,
258 N.C. 491, 128 S.E.2d 803 (1963)...... 16
State v. Lee,
287 N.C. 536, 215 S.E.2d 146 (1975)...... 16
State v. McKoy,
294 N.C. 124, 240 S.E.2d 383 (1978)...... 17
State v. Misenheimer,
304 N.C. 108, 282 S.E.2d 791 (1981)...... 10
State v. Propst,
274 N.C. 62, 161 S.E.2d 560 (1968)...... 10
State v. Reese,
319 N.C. 110, 353 S.E.2d 352 (1987)...... 9
State v. Stevenson,
328 N.C. 542, 402 S.E.2d 396 (1991)...... 12
State v. Sturdivant,
304 N.C. 293, 283 S.E.2d 719 (1981)...... 35
State v. Vause,
328 N.C. 231, 400 S.E.2d 57 (1991)...... 11
State v. Vinson,
63 N.C. 335 (1896)...... 16
State v. Weathers,
339 N.C. 441, 451 S.E.2d 266 (1994)...... 13, 14
State v. Wilkerson,
295 N.C. 559, 247 S.E.2d 905 (1978)...... 10
Strunk v. United States,
412 U.S. 434, 37 L.Ed. 2d 56 (1973)...... 17
United States v. Davis,
184 F.3d 366 (4th Cir. 1999)...... 35
United States v. Marion,
404 U.S. 307, 30 L.Ed.2d 478 (1971)...... 34
Statutes
N.C. Gen. Stat. § 15-144...... 35
N.C. Gen. Stat. § 7A-49.3(c )...... 20
Constitutional Provisions
N.C. Const. art. I, § 18...... 18
N.C. Const. art. I, § 23...... 18
U.S. Const. amend VI...... 18
U.S. Const. amend XIV...... 18
1
No. COA00-582SIX-A DISTRICT
NORTH CAROLINA COURT OF APPEALS
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STATE OF NORTH CAROLINA)
)
v.)From Halifax
)
BRYANT EDWARD WILLIAMS)
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DEFENDANT-APPELLANT’S BRIEF
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Questions Presented
- did the trial court err by denying defendant’s motion to dismiss the charge of first-degree murder where the evidence failed to show that defendant shot the victim in the execution of a specific intent to kill formed after premeditation and deliberation?
- was defendant’s right to a speedy trial violated by the state’s unreasonable 24-month delay in bringing this case to trial despite defendant’s early and repeated requests for a speedy trial?
- must defendant’s conviction be vacated because the court lacked jurisdiction to proceed on an unconstitutional “short-form” murder indictment which failed to allege all the essential elements of the crime charged?
Statement of the Case
On 25 August 1997, the Halifax County grand jury indicted Bryant Edward Williams for the murder of Kenny Lee Gregory, Jr. The case was tried non-capitally at the 28 June 1999 Criminal Session of Halifax County Superior Court before the Honorable Thomas D. Haigwood. Defendant was convicted by a jury of first-degree murder and sentenced to life imprisonment without parole. From judgment entered 9 July 1999, defendant appealed.
Statement of the Facts
The state presented evidence that, on the afternoon of 19 April, 1997, Kenny Gregory went to a cookout at a trailer park with five friends – Sam Jackson, Marvin Key, Barry Bunn, Michelle Brooks (Shearin), and Tegra Turner. (Tpp. 438-39, 459-60, 590-92, 644-45) Alcohol was served at the cookout and the friends were all drinking. (Tpp. 538-39, 594, 649) After a while, the six left the cookout and went to Michelle’s house, where they listened to music, drank beer, and waited for a nightclub to open. Around 11:00 p.m., they went to the Fireside Disco, a nightclub in Littleton, and stayed until closing. (Tpp. 460-62, 539-40, 592-96, 646-49)
Inside the club, Tegra and Michelle stayed together, but the guys split up and mingled in the crowd. (Tpp. 465, 542, 597, 649) Marvin and Kenny remained together most of the time. Kenny did not have a weapon and did not have words with anyone in the club. (Tpp. 596) Sam was drinking a lot that night. He had been drinking prior to the cookout, during the cookout, at Michelle’s house, and at the club. After about an hour in the club, Sam walked between a small, skinny guy and a girl who were dancing, and Sam got into an argument with the guy. The lights came on in the club for a few minutes. After the fight was broken up, the lights were turned back off and normal activity resumed until closing. (Tpp. 463-64, 542, 649-50, 667-71)
The club closed around 2:30 or 3:00 a.m. The lights came on again, the music stopped, and people began leaving. Michelle, Tegra, and Sam walked out together. Outside the club, Sam saw the skinny guy with whom he had fought earlier, approached him, and started another altercation. Sam and the skinny man argued and began fighting beside the club. (Tpp. 465-68, 554, 650-52) Michelle testified that, as Sam was fighting, she and Tegra stood there and kept telling Sam to stop, but the fight continued. Soon someone Michelle knew as “June Man” approached and tried to break up the fight by telling Sam to stop. Then June Man and Sam began fighting, and Michelle did not see what happened to the small guy Sam had been fighting first. The fight went on for several minutes, with Sam and June Man rolling over and over on the ground. About fifty people were standing around watching the fight. June Man was much larger than Sam’s first opponent, and Sam was losing the fight. June Man was on top of Sam. Michelle and Tegra were trying to pull him off and break up the fight. (Tpp. 469-72, 486-87, 556-57, 568-69)
As the fight continued, someone named Conrad and a person wearing a blue and white Dallas Cowboys jersey with the name “E. Smith” on the back (whom Michelle identified at trial as defendant) were pushing people back and telling everyone to let them fight. Conrad pushed Michelle back. Michelle saw Kenny and Marvin walking toward the fight. Thinking he could break up the fight, she called to Kenny to come and get Sam. (Tpp. 472-74) As Kenny walked toward the fight, defendant pushed him back and told him to “let them fight.” Immediately, Kenny hit defendant in the mouth and defendant shot him. Michelle only heard one shot. Kenny put his hand to his chest and fell backward. A small dark car pulled up and defendant got on the back of it. Michelle began to administer CPR. She did not see who was driving the car or watch it drive away. (Tpp. 474-81, 563-65)
According to Michelle, Conrad and defendant were there nearly the whole time Sam and June Man were fighting, telling people to get back and let them fight. When Michelle called to Kenny to come and get Sam, Kenny walked up without speaking. Michelle was standing to one side, facing Kenny. Defendant pushed Kenny back with his hands, whereupon Kenny struck defendant squarely in the mouth with a closed fist. Defendant stepped back and fired one shot, with his arm completely extended and the gun held at eye level. Michelle did not see the gun until he fired or see where it came from. (Tpp. 568-81)
Marvin Key testified that he and Kenny walked out of the club together. As they rounded a corner of the building headed to the car, they saw two people fighting on the ground and stopped to look. Marvin did not see Sam and did not recognize either of the people fighting. Defendant and Conrad were standing to one side of the fight. (Tpp. 597-99, 626-28) As Kenny and Marvin walked toward them, defendant pushed Kenny and told him to back up and let it be a “one on one fight.” Kenny punched defendant in the jaw. Defendant staggered backward a couple of steps, pulled a gun up from his side, and shot Kenny. Defendant was about two and a half or three feet away when he fired. The entire series of events “didn’t take no time. Just pushed him, that’s when he hit him, like a chain reaction. He pushed him, he hit him, he shot him.” (Tpp. 599-603, 628-30, 614) Conrad was standing beside defendant and Marvin was beside Kenny. After the shot, Marvin asked Kenny if he was okay. Kenny said no and fell. Marvin turned around and defendant was gone. Marvin did not see him leave. (Tpp. 603-05, 614)
Defendant did not have a gun in his hands when he pushed Kenny. Marvin did not see defendant reach into his belt or pocket or see where he got the pistol; “he just came up with it.” When the shot was fired, defendant was holding the gun at eye level with his arm fully extended. The gun was an automatic weapon about the size of a nine millimeter. (Tpp. 631-32, 638-39) The two on the ground were still fighting when the shot was fired. Marvin had not seen Sam get into any altercation in the club. (Tpp. 596-97, 613, 622, 640)
Sam Jackson testified that, after he started the fight with the skinny guy, he heard Tegra and Michelle saying “stop.” A second guy grabbed Sam off the other guy, saying he was just trying to break it up. They argued, and then Sam began fighting with this second person. He did not know where the little guy went. Sam was on the ground with the other guy on top of him and was losing the fight. He heard one shot. Sam and his opponent got up off the ground, and Sam saw Kenny on the ground about five or six yards away. He did not see who fired the shot. Sam saw a guy in a white shirt with the number “22” on it on top of the trunk of a dark blue car that was leaving the parking lot. The car stopped at the end of the driveway and the person on top of the car got inside; then the car drove away. Sam did not see who was driving. (Tpp. 652-61, 672-68)
James Minggia, owner of the Fireside, stood by the door of the club at closing as people exited. He recalled shaking hands with defendant, whom he recognized by sight, as defendant went out the door. This was the first time that night that he saw defendant. There were about 125 people in the club that night. The club was about half empty and Minggia was still at the door shaking hands when he heard a single shot and went outside. People were running. Minggia observed defendant, Conrad Person, and another person leaving in a blue or gray car. Two of them were in the car and one jumped up on the car. The car stopped as it went down the driveway and the third person got inside; then the car drove away. Minggia believed defendant was driving, but could not make out who the other people were. He had seen defendant in the same car previously. (Tpp. 679-690, 696-702) Minggia did not know Kenny but recalled seeing him in the club that night. (Tp. 692)
Grady Williams, a part-time bouncer at the Fireside, was in the office counting money when he heard a gunshot. When he went outside people were hollering and he saw a young man on the ground. Williams, who was familiar with defendant, testified that defendant was in the club that night and was wearing an Emmitt Smith jersey, bearing number “22.” June Man was with defendant. (Tpp. 703-09, 713, 717-18)
Kenny Gregory did not have a pulse when paramedics arrived. (Tpp. 757-58) An autopsy showed he died from a single gunshot wound to his left neck and shoulder. A copper jacket and lead projectile consistent with nine millimeter ammunition were recovered from the chest cavity and spinal column. Gregory’s blood alcohol concentration was .07. (Tpp. 834-41, 850-52, 859) Police officers could not find a shell casing at the scene of the shooting. (Tpp. 741, 881) No weapon or football jersey was recovered, and defendant’s home and car were never searched. (Tp. 901) Several hours after the shooting, defendant voluntarily went to the sheriff’s department, where he was arrested and gave to law enforcement officers a statement that was not introduced at trial. (Tpp. 890-91, 906)
Defendant did not present evidence.
Argument
i.the trial court erred by denying defendant’s motion to dismiss at the close of the evidence because the evidence was insufficient as a matter of law to prove beyond a reasonable doubt that defendant shot Kenny Gregory with a premeditated and deliberated intent to kill.
Assignment of Error No. 6, Rp. 51
At the conclusion of all the evidence, defendant moved for the trial court to dismiss the charge of first-degree murder due to the insufficiency of the evidence. Noting that it was a “very close issue,” the court denied the motion and submitted to the jury possible verdicts of first-degree murder, second-degree murder, voluntary manslaughter, or not guilty. (Tpp. 920-25, 928-33, 948-53, Rp. 25) When the evidence, viewed in the light most favorable to the state, fails to establish that an accused intentionally caused the victim’s death after premeditation and deliberation and with a specific intent to kill, the trial court should not submit the case to the jury on a theory of first-degree murder. See, e.g., State v. Corn, 303 N.C. 293, 278 S.E.2d 221 (1981). The evidence in this case showed that defendant shot Kenny Gregory immediately after being struck by him in the face with a closed first and in response to that blow, without time for reflection. This evidence did not allow a reasonable inference of premeditation and deliberation culminating in a specific intent to kill. At best, the jury could only speculate as to the existence of these elements. Because there was insufficient evidence presented at trial from which the jury properly could find defendant guilty of first-degree murder beyond a reasonable doubt, the trial court's denial of defendant's motion to dismiss that charge was error and defendant's conviction must be reversed.
The due process clause of the United States Constitution prohibits conviction of an accused except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime charged. E.g., Jackson v. Virginia, 443 U.S. 307, 61 L.Ed.2d 368 (1979); In re Winship, 397 U.S. 358, 25 L.Ed.2d 368 (1970). The burden being upon the state to prove each essential element of the crime, the trial court must determine, in ruling upon a motion to dismiss, whether, when considered in the light most favorable to the state, there is substantial evidence of each element of the offense. E.g., State v. Evangelista, 319 N.C. 152, 353 S.E.2d 375 (1987). Although the state may base its case upon circumstantial evidence, that evidence must be real and substantial, and not merely speculative. State v. Reese, 319 N.C. 110, 353 S.E.2d 352 (1987). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion beyond a reasonable doubt." State v. Joplin, 318 N.C. 126, 129, 347 S.E.2d 421, 423 (1986).
If the evidence is sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the defendant as the perpetrator of it, the motion to dismiss should be allowed. This is true even though the suspicion aroused by the evidence is strong.
State v. Earnhardt, 307 N.C. 62, 66, 296 S.E.2d 649, 652 (1982) (citations omitted). Here, there was a glaring deficiency in the state's case because there was no evidence to support more than suspicion or conjecture that defendant formed a premeditated and deliberated specific intent to kill.
First-degree murder is the unlawful killing of a human being with malice, premeditation, and deliberation. E.g., State v. Wilkerson, 295 N.C. 559, 247 S.E.2d 905 (1978). To take a case of first-degree murder to the jury on this theory, substantial evidence must exist that the defendant killed the victim with malice “in execution of an actual, specific intent to kill, formed after premeditation and deliberation.” State v. Propst, 274 N.C. 62, 70, 161 S.E.2d 560, 566 (1968). “Premeditation means that defendant formed the intent to kill for some period of time, however short, before the actual killing. Deliberation means that the intent to kill was formed while defendant was in a cool state of blood and not under the influence of a violent passion suddenly aroused by sufficient provocation.” State v. Misenheimer, 304 N.C. 108, 113, 282 S.E.2d 791 (1981). Stated another way, a killing is committed with deliberation if carried out in a cool state of blood, not under the influence of suddenly aroused passion, and “in furtherance of a fixed design for revenge, or to accomplish an unlawful purpose.” State v. Hunt, 330 N.C. 425, 427, 410 S.E.2d 478, 480 (1991). AccordState v. Corn, 303 N.C. at 297, 278 S.E.2d at 223.
Premeditation and deliberation ordinarily are not susceptible of direct proof but must be proved, if at all, by circumstances from which they may be inferred. E.g., id. Some circumstances which may be considered in determining the existence of these elements are (1) any history of previous difficulty or ill will between the parties, (2) lack of provocation by the deceased, (3) the defendant’s conduct and statements before and after the killing, (4) threats and declarations of the defendant before and during the occurrence giving rise to the death of the victim, (5) the use of grossly excessive force or infliction of lethal blows after the victim has been felled and rendered helpless, (6) evidence that the killing was done in a brutal manner, and (7) the nature and number of the victim's wounds. E.g., id.; State v. Vause, 328 N.C. 231, 238, 400 S.E.2d 57, 62 (1991). Moreover, “if the purpose to kill was formed and immediately executed in a passion, especially if the passion was aroused by a recent provocation or by mutual combat, the murder is not deliberate and premeditated.” State v. Misenheimer, 304 N.C.at 113, 282 S.E.2d at 791. In this case, all the recognized indicia of premeditation and deliberation were lacking and the evidence clearly showed that, assuming defendant ever formulated an intent to kill Kenny Gregory, the intent was formed and immediately executed under the influence of the provocation of an altercation or struggle, such that there was no deliberation or premeditation.