State v. Pemberton

743 S.E.2d 719, 228 N.C. App. 234, 2013 WL 3305523, 2013 N.C. App. LEXIS 729
CourtCourt of Appeals of North Carolina
DecidedJuly 2, 2013
DocketNo. COA12-1528
StatusPublished
Cited by4 cases

This text of 743 S.E.2d 719 (State v. Pemberton) is published on Counsel Stack Legal Research, covering Court of Appeals 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. Pemberton, 743 S.E.2d 719, 228 N.C. App. 234, 2013 WL 3305523, 2013 N.C. App. LEXIS 729 (N.C. Ct. App. 2013).

Opinion

ERVIN, Judge.

Defendant Devonte Terrell Pemberton appeals from a judgment sentencing him to life imprisonment without the possibility of parole based upon his conviction for first degree murder. On appeal, Defendant argues that he was deprived of his right to the effective assistance of counsel based upon the fact that his trial counsel admitted the existence of all of the elements of felony murder as the result of an apparent misunderstanding of the applicable law, that he was deprived of his right to the effective assistance of counsel based upon his trial counsel’s decision to advance a theory of defense that lacked adequate support in the record or the applicable law, and that he was impermissibly subjected to cruel and unusual punishment stemming from the imposition of a mandatory sentence of life imprisonment without the possibility of parole despite the fact that he was less than eighteen years of age at'the time that he committed the murder for which he was convicted. After careful consideration of Defendant’s challenges to the trial court’s judgment in light of the record and the applicable law, we conclude that Defendant’s ineffective assistance of counsel claim stemming from his trial counsel’s alleged admission of his guilt to first degree murder under the felony murder rule lacks merit, that his ineffective assistance of counsel claim stemming from his challenge to the reasonableness of the theory of defense adopted by his trial counsel should be dismissed without prejudice to [236]*236his right to assert that claim in a subsequent motion for appropriate relief, and that the trial court’s sentence should be vacated and this case remanded to the Wake County Superior Court for resentencing.

I. Factual Background

A. Substantive Facts

On 9 May 2010, Dahshon Crudup and Damon Gresham were at Laquavis Jordan’s house on Colleton Road and Oakwood Avenue in Raleigh. At that time, Mr. Crudup and Mr. Gresham discussed robbing Reginald Dunn, who was Mr. Crudup’s “drug connect.” During this discussion, Mr. Crudup suggested that they call Mr. Dunn for the purpose of setting up a drug transaction in order to lure Mr. Dunn to a spot at which they could rob him. After Mr. Gresham pointed out that the group did not have a gun for use in this enterprise, Mr. Jordan called over to Cordell Milboume, who was standing outside his sister’s house with Defendant and Telvin Burnette and asked if Mr. Milboume knew where one could get a gun for use in a robbery. After contacting someone on his cell phone, Mr. Milboume gave Mr. Jordan an affirmative answer.

At that point, Defendant, Mr. Cmdup, Mr. Gresham, Mr. Milboume, and Mr. Burnette drove to the residence of Mr. Milboume’s friend in Mr. Cmdup’s 1996 green Lexus ES300 for the purpose of retrieving the gun. The five men traveled in Mr. Cmdup’s Lexus to Walnut Terrace, where they parked near the basketball courts. Mr. Milboume and Defendant got out of the car and went to the basketball courts, where they met with a man called “Savage.” After encountering “Savage,” Mr. Milboume went to an apartment, where he remained for approximately ten minutes, to get the gun. At the time that he returned to the green Lexus, Mr. Milboume carried a large, black revolver.

As the five young men drove away from Walnut Terrace, Mr. Dunn called Mr. Cmdup’s cell phone and arranged to meet him at the Melvid Court apartment complex. At approximately 4:00 p.m., the group arrived at Melvid Court. After noticing another green Lexus at Melvid Court and stating that Mr. Dunn would recognize his green Lexus, Mr. Cmdup decided to drive across the street to another housing complex off of Dacian Road and park at that location. Mr. Cmdup elected to park at the Dacian Road complex because he did not want Mr. Dunn to see the group of young men in the vehicle and realize that “something was up.”

Although Mr. Cmdup told Mr. Gresham to rob Mr. Dunn, Mr. Gresham expressed concern about doing so by himself. According to Mr. Cmdup and Mr. Milboume, Defendant agreed to accompany Mr. Gresham. At [237]*237that point, Mr. Milboume testified that he passed the gun to Defendant, who exited the vehicle. Mr. Gresham took Mr. Cmdup’s cell phone with him so that he could keep in contact with Mr. Dunn. In addition, both Mr. Gresham and Defendant took one of Mr. Crudup’s hats for the purpose of covering their hair and face. More specifically, Mr. Gresham took a Red Sox hat while Defendant took an Oakland A’s hat.

At approximately 4:20 p.m., Defendant and Mr. Gresham walked over to Melvid Court. An individual named Zuri Twine had given Mr. Dunn a ride to Melvid Court. After receiving a call from Mr. Dunn, Mr. Gresham told Mr. Dunn to park by the green Lexus in the Melvid Court parking lot. As he pulled into that parking lot, Mr. Twine noticed a green Lexus and parked beside it. At the time that he arrived at Melvid Court, Mr. Twine observed two young African-American men sitting at the playground, both of whom were wearing hats. One of the two men was tall and light-skinned, like Defendant, and the other had a darker complexion, like Mr. Gresham.

After getting out of Mr. Twine’s car, Mr. Dunn walked down the sidewalk and approached Defendant and Mr. Gresham, who were standing next to each other. At that point, Mr. Dunn inquired about Mr. Cmdup. According to Mr. Gresham, Defendant pulled out the gun and started firing as Mr. Dunn turned to run away. Although the first shot hit the ground, the second shot stmck Mr. Dunn in the back, causing him to fall. After Mr. Gresham turned to run, he heard two more shots. When Mr. Gresham looked back toward the scene of the shooting, Defendant was running behind him and Mr. Dunn was lying on the ground. As he and Defendant fled, Mr. Gresham lost Mr. Cmdup’s Red Sox hat.

After Defendant and Mr. Gresham returned to Mr. Crudup’s green Lexus and entered the vehicle, the three other young men confirmed that they had heard three to five gunshots. Although Defendant admitted that he had shot Mr. Dunn, he expressed uncertainty as to whether Mr. Dunn was dead. At a later time, Defendant also told Mr. Milboume, who is his cousin, that he had shot Mr. Dunn. When Mr. Milboume inquired if Defendant and Mr. Gresham had taken any drags or money from Mr. Drum, the two men admitted that they had not obtained anything before fleeing the scene. Dining the drive back to Colleton Road, Defendant threw Mr. Cmdup’s Oakland A’s hat out of the window between two wooded areas on a street off of New Bern Avenue. Upon their arrival at Colleton Road, Defendant gave the gun back to Mr. Milboume and the group separated, with Mr. Milboume, Mr. Burnette, and Defendant returning to Mr. Milboume’s sister’s house.

[238]*238A call seeking emergency assistance at Melvid Court was made at 4:23 p.m. Within two minutes, law enforcement officers and emergency medical personnel arrived at the scene. Although Mr. Dunn was rushed to the hospital, he died while undergoing surgery without having made any statement identifying who had shot him. The medical examiner determined that Mr. Dunn died as the result of gunshot wounds.

Although investigating officers did not find any drugs or money on Mr. Dunn’s person, they did locate his cell phone and determined that the last several calls made and received on that phone had originated from or terminated to Mr. Crudup’s phone. In addition, investigating officers determined that Mr. Crudup owned a green Lexus. The Red Sox hat that Mr. Gresham had been wearing was recovered at the scene of the shooting as well.

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Cite This Page — Counsel Stack

Bluebook (online)
743 S.E.2d 719, 228 N.C. App. 234, 2013 WL 3305523, 2013 N.C. App. LEXIS 729, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-pemberton-ncctapp-2013.