State v. Bunch

689 S.E.2d 866, 363 N.C. 841, 2010 N.C. LEXIS 201
CourtSupreme Court of North Carolina
DecidedMarch 12, 2010
Docket203A09
StatusPublished
Cited by32 cases

This text of 689 S.E.2d 866 (State v. Bunch) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Bunch, 689 S.E.2d 866, 363 N.C. 841, 2010 N.C. LEXIS 201 (N.C. 2010).

Opinions

[842]*842BRADY, Justice.

In Neder v. United States, 527 U.S. 1 (1999), the Supreme Court of the United States applied harmless error analysis to the trial court’s instructional omission of elements of a crime. We apply the harmless error standard from Neder to defendant’s challenge under Article I, Section 24 of the North Carolina Constitution and conclude that the trial court’s instructional error in the present case was harmless beyond a reasonable doubt. We therefore affirm the decision of the Court of Appeals.

The State’s evidence at trial tended to show that on the afternoon of 1 March 2004, defendant, along with Markie Riddick, Torando Simpson, Robert Hall, and Carl Scales, II met at the apartment of Crystal Wyatt in Elizabeth City, North Carolina. During the meeting, Hall devised a plan for the group to commit a robbery. All five men then dressed in dark clothing and masks that Hall created from a cutup black T-shirt. After changing clothes, defendant and Scales drove to Scales’s mobile home to retrieve a shotgun belonging to Scales’s cousin, Julius Miller. Shortly thereafter, the five men met in the vicinity of the Robinson Funeral Home and traveled in Scales’s Cadillac to the victims’ Elizabeth City neighborhood. While the men drove around the block to familiarize themselves with the area, Hall pointed to the target residence, 1322 South Williams Circle. After parking the vehicle one street over from the target residence, Scales opened the trunk, and defendant retrieved the shotgun. Scales gave defendant two shotgun shells. Simpson exited the vehicle and approached the back of the house with a nine-millimeter Ruger handgun that Hall had provided him. All five men initially walked to the rear of the residence, but Scales and Hall left shortly thereafter.

James Arthur Bowen, Richard Preston Hewlin, Jr., and the murder victim Brian Jarrod Pender lived at 1322 South Williams Circle. Between 9:30 p.m. and 10:00 p.m., Hewlin walked outside to his vehicle. Upon Hewlin’s return to the house, Simpson emerged from the corner of the garage and pressed a pistol into Hewlin’s chest. Simpson shoved Hewlin into the house. After ordering Bowen to sit on a couch and Pender to lie down on the floor, Simpson walked Hewlin into the hallway.

Thereafter, Riddick, followed by defendant, entered the house. Both of the surviving victims testified that the third perpetrator, which additional testimony revealed to be defendant, entered’ the residence wielding a shotgun and then stood over or knelt on [843]*843Pender with the shotgun’s barrel pointed at the back of Pender’s head. Simpson then ordered Riddick and defendant to collect the victims’ cell phones. The three perpetrators also searched through the pockets of all three victims and stole approximately sixty-five dollars. After Simpson stated, “[T]hat’s all we are going to get,” Bowen saw defendant “rack” the shotgun. Immediately thereafter the shotgun fired. Defendant then left the residence with the other two perpetrators.

On 29 March 2004, defendant was indicted for first-degree murder and robbery with a dangerous weapon arising from a home invasion. Defendant was tried capitally at the 11 September 2006 criminal session of Superior Court, Pasquotank County. At trial, the trial court instructed on felony murder as follows: “[T]he State must prove three [3] things beyond a reasonable doubt. First, that the Defendant or someone with whom he was acting in concert committed first degree burglary and/or robbery with a dangerous weapon.” (Second set of brackets in original.) The remaining two elements of felony murder— killing of the victim during commission of a felony and defendant’s act was a proximate cause of the victim’s death — were only explained at length during the trial court’s instructions on premeditated murder.

On 18 September 2006, a jury found defendant guilty of first-degree murder under the felony murder rule and robbery with a dangerous weapon. Based on the jury’s binding recommendation, the trial court sentenced defendant to life imprisonment without parole. The trial court also sentenced defendant to a consecutive term of 103 to 133 months for the robbery with a dangerous weapon conviction.

On appeal, defendant argued that the trial court’s failure to properly instruct the jury on felony murder violated his right to a trial by jury under Article I, Section 24 of the North Carolina Constitution. Applying harmless error analysis, the Court of Appeals found no prejudicial error in defendant’s conviction and sentence. State v. Bunch, - N.C. App. -, 675 S.E.2d 103 (2009). The Court of Appeals concluded the challenged instructions were harmless beyond a reasonable doubt because the trial court adequately instructed the jury on felony murder when the charge was considered in its entirety. Id. at -, 675 S.E.2d at 107-08. A dissenting judge opined that instructional errors of this nature should be reversible per se and not amenable to harmless error analysis. Id. at —, 675 S.E.2d at 108 (Elmore, J., dissenting).

[844]*844Defendant appeals to this Court and raises two issues for our review based on the dissenting opinion in the Court of Appeals. First, defendant argues that we should apply structural error analysis and treat the omission of elements of a crime from jury instructions as reversible per se. Second, even if harmless error analysis is applied, defendant argues that the instructional errors were not harmless beyond a reasonable doubt.

Defendant first argues that the omission of elements of a crime from jury instructions constitutes per se or structural error. The North Carolina Constitution states that “[n]o person shall be convicted of any crime but by the unanimous verdict of a jury in open court.” N.C. Const. art. I, § 24. Though a defendant’s right to be tried by a “jury of twelve” cannot be waived, see State v. Ashe, 314 N.C. 28, 35, 331 S.E.2d 652, 657 (1985) (stating Court’s agreement with the defendant’s argument that “ ‘having the right to a trial by a jury of twelve, [defendant] has the right to have all twelve jurors instructed consistently’ ”), harmless error analysis may still be applicable to Article I, Section 24 errors. See, e.g., State v. Wilson, 363 N.C. 478, 487, 681 S.E.2d 325, 331 (2009) (“Where the error violates a defendant’s right to a unanimous jury verdict under Article I, Section 24, we review the record for harmless error.” (citations omitted)); State v. Nelson, 341 N.C. 695, 700-01, 462 S.E.2d 225, 227-28, (1995) (holding that although failure to require the presence of all jurors when requesting exhibits violates Article I, Section 24, the error was harmless error).

“In construing a provision of the state Constitution, we find highly persuasive the meaning given and the approach used by the United States Supreme Court in construing a similar provision of the federal Constitution.” State v. Huff, 325 N.C. 1, 33, 381 S.E.2d 635, 653 (1989) (citation omitted), sentence vacated on other grounds, 497 U.S. 1021 (1990). In Neder the Supreme Court of the

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Cite This Page — Counsel Stack

Bluebook (online)
689 S.E.2d 866, 363 N.C. 841, 2010 N.C. LEXIS 201, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bunch-nc-2010.