State v. Francis

459 S.E.2d 269, 341 N.C. 156, 1995 N.C. LEXIS 372
CourtSupreme Court of North Carolina
DecidedJuly 28, 1995
Docket471A94
StatusPublished
Cited by27 cases

This text of 459 S.E.2d 269 (State v. Francis) 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. Francis, 459 S.E.2d 269, 341 N.C. 156, 1995 N.C. LEXIS 372 (N.C. 1995).

Opinion

MITCHELL, Chief Justice.

Defendant, Egbert Francis, Jr., was tried noncapitally on proper indictments charging him with two counts of first-degree murder. The State’s evidence tended to show that on 19 November 1991, two bodies were found in the bushes near Wake Medical Center in Raleigh. The victims, Ssuraj Ibrahim and Corede Sondunke, had each been shot in the head but with different caliber guns. Blood tracks showed that their bodies had been dragged from a nearby road to the bushes. The police found a slip of paper with defendant’s address in one of the victim’s pockets. The police eventually went to the defendant’s address with a search warrant and found several firearms and a large amount of ammunition.

*158 The police were informed that a black sport-utility vehicle had been observed near the crime scene. Subsequent investigations led them to a burned-out black Nissan Pathfinder in Virginia. The Pathfinder was registered to Andrew Robinson. Robinson initially denied any involvement when questioned by the police, but he later confessed. He testified at trial that the two victims were drug couriers from New York who routinely brought drugs to defendant. Defendant would then give some of the drugs to Robinson for sale. Once the drugs were sold, defendant and Robinson would give the couriers part of the proceeds of the sales. The couriers would then return to New York and give the money to a man named Sal.

Robinson testified that a few days before the murders, Ibrahim and Sondunke, who were couriers for Sal, came to Raleigh to collect money for drugs previously delivered. Defendant had spent some of the money and could not pay them. On a prior occasion when defendant could not pay Sal, defendant’s hand had been broken. On the night of the murders, defendant and Robinson left the couriers at defendant’s house and went to a party. When they left the party, they drove back toward defendant’s house. During that drive, defendant asked Robinson if he would help defendant kill the two couriers. Defendant explained that he was afraid that if the couriers returned to New York without the money, either defendant or his mother would be killed. Robinson agreed to help defendant.

When they arrived at defendant’s house, defendant went inside while Robinson waited in the Nissan. Defendant emerged from the house with two guns. He gave one of them to Robinson and went back inside to get the two couriers. The four men then drove until they ended up in a secluded area behind Wake Medical Center. Defendant and Robinson had previously agreed that defendant would signal Robinson by tapping him on the shoulder. On defendant’s signal, defendant shot Sondunke in the head, and Robinson shot Ibrahim in the'head. They then dragged the bodies out of the car and left them in the bushes, where they were eventually found. Before they left, defendant went back to the bushes and shot one of the victims again to make sure that he was dead.

The jury found defendant guilty of both counts of first-degree murder. The trial court entered judgments imposing consecutive life sentences.

Defendant’s only assignment of error concerns the instructions relating to the murder of Ssuraj Ibrahim. He does not assign error to *159 his conviction, judgment or sentence for the murder of Corede Sondunke. The trial court instructed the jury that it could convict defendant of first-degree murder based either on the theory of acting in concert with or on the theory of aiding and abetting Andrew Robinson. Defendant argues that the trial court’s instructions on acting in concert and aiding and abetting were erroneous in several respects. He contends that the trial court gave its instructions concerning the Ibrahim killing in a manner that intermingled the theories of acting in concert and aiding and abetting. He says that the form of the instructions led to confusion of the jurors and resulted in a verdict of first-degree murder based on an altogether novel theory, to wit: “guilty of aiding and abetting by acting in concert.”

As an initial issue, we must address the standard of review to be applied on appeal. Rule 10(b)(2) of the North Carolina Rules of Appellate Procedure sets forth the procedures for preserving instructional errors for appeal.

A party may not assign as error any portion of the jury charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly that to which he objects and the grounds for his objection-, provided, that opportunity was given to the party to make the objection out of the hearing of the jury, and, on the request of any party, out of the presence of the jury.

N.C. R. App. P. 10(b)(2) (emphasis added).

In the charge conference, the State requested instructions on acting in concert and aiding and abetting according to North Carolina Pattern Instructions 202.10 and 202.20A, respectively. Defendant objected to the instructions on the ground that the jury would be instructed on these theories only with reference to the victim Ibrahim and not with reference to the victim Sondunke. The trial court indicated that based on the evidence, the theories applied only to the murder of Ibrahim. Defense counsel then responded: “That’s my concern. I don’t want the jury to hear the Court indicate whether it applies or not.” The trial court noted the objection, and the charge conference continued.

At the conclusion of the charge conference, the challenged instructions were given to the jury. The jury was sent out of the courtroom when the instructions were completed, and the trial court asked the defendant if he had any requests for changes in the instructions. *160 Defense counsel replied: “Your honor, I have nothing different from what I raised before. ... [I] [o]bject to the instructions on acting in concert as to each charge and instruction. I object to having instructions on aiding and abetting with regard to each charge. These are the same objections I made before. I’m just for the record raising them again at this time.”

Although defendant objected to the instructions, he did not object on the ground upon which he now asserts error. His objection was based on the ground that the trial court should not indicate that the jury could find from the evidence at trial the theories of acting in concert and aiding and abetting applied to one murder but not the other. This is a markedly different ground than that forming the basis for the assignment of error presented to this Court. As noted above, defendant now objects to the form of the trial court’s instructions on the theories at issue. He does not contend that the challenged instructions were not warranted by the evidence. Indeed, he cannot. There was plenary evidence to support each instruction. In State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983), we said that “[t]he purpose of Rule 10(b)(2) is to encourage the parties to inform the trial court of errors in its instructions so that it can correct the instructions and cure any potential errors before the jury deliberates on the case and thereby eliminate the need for a new trial.” Id. at 660, 300 S.E.2d at 378.

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Bluebook (online)
459 S.E.2d 269, 341 N.C. 156, 1995 N.C. LEXIS 372, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-francis-nc-1995.