An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA 14-51 NORTH CAROLINA COURT OF APPEALS Filed: 2 September 2014 STATE OF NORTH CAROLINA
Robeson County v. Nos. 05 CRS 12241, 55647
GARY MAURICE WALTERS
Appeal by defendant from judgments entered 28 June 2013 by
Judge William R. Pittman in Robeson County Superior Court.
Heard in the Court of Appeals 5 June 2014.
Attorney General Roy Cooper, by Special Deputy Attorney General Daniel Snipes Johnson, for the State.
Attorney Paul F. Herzog for Defendant.
ERVIN, Judge.
Defendant Gary Maurice Walters appeals from judgments
entered based upon his convictions for first degree kidnapping,
attempted first degree murder, and assault with a deadly weapon
with the intent to kill inflicting serious injury. On appeal,
Defendant contends that the trial court erred by (1) denying his
motion to dismiss the charges that had been lodged against him
on the basis of an alleged violation of his right to a speedy -2- trial and (2) instructing the jury concerning the issue of his
guilt of first degree kidnapping. After careful consideration
of Defendant’s challenges to the trial court’s judgments in
light of the record and the applicable law, we conclude that the
trial court’s judgments relating to Defendant’s convictions for
attempted first degree murder and assault with a deadly weapon
with the intent to kill inflicting serious injury should remain
undisturbed and that Defendant is entitled to a new trial in the
case in which he was convicted of first degree kidnapping.
I. Factual Background
A. Substantive Facts
1. State’s Evidence
On Wednesday, 17 August 2005, Paul Franklin was in
Lumberton. On that evening, Mr. Franklin was “upset over [his]
marriage situation.” Based upon previous experiences, Mr.
Franklin knew that a prostitute could lead him to a place at
which he could purchase cocaine. As a result, Mr. Franklin
picked up “an African American young lady,” whom he described as
“short, peti[t]e,” at the intersection of Carolina Avenue and
First Street.
After purchasing crack cocaine on First Street, Mr.
Franklin and the young woman drove to the Redwood Inn, where Mr.
Franklin rented a room in which he and the young woman smoked -3- the small amount of cocaine that Mr. Franklin had purchased.
Once the cocaine in Mr. Franklin’s possession had been consumed,
the woman offered to call her cousin if Mr. Franklin wanted more
cocaine. After meeting Defendant, who was the woman’s cousin,
Mr. Franklin bought cocaine from him.
Over the course of the next two days, Mr. Franklin
continued to buy and smoke cocaine. After running out of money
with which to purchase additional cocaine, Mr. Franklin allowed
Defendant to use his gray Ford Windstar. According to Mr.
Franklin, Defendant returned to Mr. Franklin’s room every “five,
six, eight hours” and gave him a new supply of cocaine in
exchange for the use of the van.
On the early morning of Friday, 19 August 2005, Mr.
Franklin asked Defendant to take him to an ATM to make a $100
withdrawal from his account, into which his weekly wages had
been deposited.1 As a result, Defendant and Mr. Franklin drove
to an ATM near the Redwood Inn at approximately 3:30 a.m. After
Mr. Franklin told Defendant that he would buy a “third of
cocaine” with the proceeds obtained during the ATM transaction,
Defendant brought cocaine to Mr. Franklin’s hotel room at the
Redwood Inn. Mr. Franklin, however, claimed that the cocaine
1 At the time of the incident, Mr. Franklin worked as a truck driver for Florida Rock and Tank out of Navassa, which is located near Wilmington. -4- that Defendant offered him was only worth $75.00. At that
point, Defendant broke off a wooden table leg from a piece of
hotel room furniture.
Christopher Bass and Shelly Scott woke to the sound of
Defendant, who was a friend of Mr. Bass, knocking on their door
and asking to speak with Mr. Bass at approximately 5:30 or 6:00
a.m. on 19 August 2005. At Defendant’s request, Mr. Bass
followed Defendant, who was driving Mr. Franklin’s gray Ford
Windstar, in Ms. Scott’s Honda Civic. After driving for
approximately twenty minutes, Defendant parked beside the Lumber
River near the Three Bridges Road in or around Pembroke.
After Mr. Bass parked on the main road and walked down to
the location at which the van was parked, Defendant opened the
van door. At that point, Mr. Bass saw Mr. Franklin lying on the
rear passenger seat. According to Mr. Bass, Mr. Franklin was
breathing heavily and his “face was mangled and beat up.” When
Defendant asked Mr. Bass if “he should kill [Mr. Franklin],” Mr.
Bass questioned Defendant about “why he did it” and “what [had]
happened.” In response, Defendant explained that Mr. Franklin’s
injuries resulted from “a drug deal gone wrong” and that he had
beaten Mr. Franklin with a wooden table leg at the Redwood Inn.
After telling Defendant that he should not kill Mr. Franklin,
Mr. Bass began walking back to the Honda Civic. Once Defendant -5- entered the Honda Civic as well, Mr. Bass drove Defendant to the
residence of his mother in Fairmont before returning home
himself.
According to Ms. Scott, Mr. Bass “flipped out and assaulted
[her]” when he returned home. Mr. Bass, who claimed to have
“seen someone with their face hanging off” and “their eyes
popped out of their head,” was “screaming and cussing.” Over
the course of the next several hours, Mr. Bass assaulted Ms.
Scott’s mother and brother as well. Although Mr. Bass nailed
the windows to the residence that he shared with Ms. Scott shut
and fed her sleeping pills in an attempt to keep her from
leaving, Ms. Scott eventually escaped and called 911. Mr. Bass
corroborated Ms. Scott’s story after turning himself in and
being charged with three counts of assault.
At 7:01 a.m. on 19 August 2005, emergency medical service
personnel were dispatched to a location off Three Bridges Road,
where they found Mr. Franklin in his van. Although the
attending emergency medical service personnel were initially
unable to determine whether Mr. Franklin was still alive, a
check of his vital signs established that he was in critical
condition. As a result, the emergency medical service personnel
utilized the standard trauma response protocol by placing Mr.
Franklin on a backboard and stretcher, administering oxygen, -6- fitting a brace around his neck, providing him with intravenous
fluids, and putting him on a cardiac monitor.
At 9:56 a.m. on 19 August 2005, investigating officers were
dispatched to the Redwood Inn in response to notice that Mr.
Franklin’s room had been found in disarray. During their
examination of Mr. Franklin’s room, investigating officers
discovered blood on the walls, the air conditioning unit, the
microwave, broken pieces of furniture, and the floor. A number
of pieces of wood that had originally constituted a table leg,
one of which bore Defendant’s fingerprint, were recovered from
the room as well.
Mr. Franklin sustained severe facial injuries as a result
of the beating that he received, with every bone in his face
having been broken. Mr. Franklin underwent eight surgical
procedures in order to repair the damage. After Mr. Franklin
contracted a Staph infection during one of these procedures, the
attending physicians were unable to fully repair his nose.
Although his attending physicians were able to use a skin graft
taken from his right arm to address the injuries to his nose,
Mr. Franklin still has difficulty breathing and suffers from
sleep apnea. In addition, Mr. Franklin sustained left eye optic
nerve damage, which causes him to experience double vision and
have difficulty seeing. Finally, Mr. Franklin’s face is -7- severely scarred. Although he is no longer on disability, Mr.
Franklin could not return to work as a truck driver given his
inability to pass the commercial driver’s license examination.
2. Defense Evidence
Defendant’s mother, Dorothy Walters, testified that her son
was living at her residence in Fairmont during August 2005.
More specifically, Ms. Walters testified that Defendant was
still at home in bed when she left the house at 7:30 a.m. on 18
August 2005; that he was outside in the yard when she returned
from work at 2:30 p.m.; and that he was at home when she
returned from fishing with her daughter at approximately 8:00
p.m. Although Defendant was not at home at 8:30 p.m. on 18
August 2005, he returned home between 9:00 and 10:00 p.m. and
was still at home at 6:00 a.m. on 19 August 2005. According to
Ms. Walters, Defendant left to cut his grandfather’s lawn at
approximately 9:30 to 9:45 a.m. on 19 August 2005 and returned
at approximately 1:00 p.m.
B. Procedural Facts
On 30 August 2005, a warrant for arrest charging Defendant
with attempted first degree murder was issued. On 8 September
2005, a warrant for arrest charging Defendant with first degree
kidnapping was issued. On 8 May 2006, the Robeson County grand
jury returned bills of indictment charging Defendant with first -8- degree kidnapping, attempted first degree murder, and assault
with a deadly weapon with the intent to kill inflicting serious
injury. On 21 September 2012, Defendant filed a motion seeking
the entry of an order dismissing the charges that had been
lodged against him on speedy trial grounds.
The charges against Defendant came on for trial before the
trial court and a jury at the 24 June 2013 criminal session of
the Robeson County Superior Court. On 25 June 2013, the trial
court denied Defendant’s dismissal motion. On 28 June 2013, the
jury returned verdicts convicting Defendant of first degree
kidnapping, attempted first degree murder, and assault with a
deadly weapon with the intent to kill inflicting serious injury.
At the conclusion of the ensuing sentencing hearing, the trial
court entered judgments sentencing Defendant to a term of 220 to
273 months imprisonment based upon his conviction for attempted
first degree murder, to a consecutive term of 110 to 141 months
imprisonment based upon his conviction for assault with a deadly
weapon with the intent to kill inflicting serious injury, and to
a consecutive term of 110 to 141 months imprisonment based upon
his conviction for first degree kidnapping. Defendant noted an
appeal to this Court from the trial court’s judgments.
II. Legal Analysis
A. Right to a Speedy Trial -9- In his initial challenge to the trial court’s judgments,
Defendant contends that the trial court “committed prejudicial
error when it denied [his] motion to dismiss for lack of speedy
trial.” More specifically, Defendant contends that the delay
involved in this case was significant, that the lengthy delays
revealed by the present record were attributable to the State
rather than to Defendant, that the State did not call
Defendant’s case for trial for more than a year after he
asserted his right to a speedy trial, and that Defendant was
clearly prejudiced by the lapse in time between the date upon
which he was charged and the date upon which this case was
called for trial given the weakness of the alibi defense that he
was able to present before the jury. Although the delay at
issue here is, as best we can tell, unprecedented, we conclude,
based upon a careful analysis of the applicable law, that
Defendant is not entitled to relief from the trial court’s
judgments on the basis of this contention.
1. Applicable Legal Principles
Every individual formally accused of committing a crime has
the right to a speedy trial. State v. Lyszaj, 314 N.C. 256,
261, 333 S.E.2d 288, 292 (1985); State v. Avery, 302 N.C. 517,
521, 276 S.E.2d 699, 702 (1981). More specifically, the Sixth
Amendment to the United States Constitution, which has been made -10- applicable to the states under the Fourteenth Amendment, Klopfer
v. North Carolina, 386 U.S. 213, 222, 87 S. Ct. 988, 993, 18 L.
Ed. 2d 1, 8 (1967) provides, in pertinent part, that, “[i]n all
criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial[.]” U.S. Const. amend. VI. Similarly,
Article I, Section 18 of the North Carolina Constitution
provides that “[a]ll courts shall be open[] [to] every person .
. . without favor, denial, or delay.” N.C. Const. art. 1, § 18.
When reviewing speedy trial claims, we employ the same analysis
for purposes of both the Sixth Amendment and Article I, Section
18. State v. Flowers, 347 N.C. 1, 27, 489 S.E.2d 391, 406
(1997), cert. denied, 522 U.S. 1135, 118 S. Ct. 1094, 140 L. Ed.
2d 150 (1998). “The standard of review for alleged violations
of constitutional rights is de novo.” State v. Graham, 200 N.C.
App. 204, 214, 683 S.E.2d 437, 444 (2009), appeal dismissed and
disc. review denied, 363 N.C. 857, 694 S.E.2d 766 (2010).
In evaluating the validity of a defendant’s claim to have
been deprived of his state and federal constitutional right to a
speedy trial, reviewing courts consider four factors: “(1) the
length of the delay, (2) the reason for the delay, (3) [the]
defendant’s assertion of his right to a speedy trial, and (4)
prejudice to [the] defendant[.]” State v. Washington, 192 N.C.
App. 277, 282, 665 S.E.2d 799, 803 (2009); see also Barker v. -11- Wingo, 407 U.S. 514, 530-32, 92 S. Ct. 2182, 2192-93, 33 L. Ed.
2d 101, 117 (1972).
We regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must engage in a difficult and sensitive balancing process. But, because we are dealing with a fundamental right of the accused, this process must be carried out with full recognition that the accused’s interest in a speedy trial is specifically affirmed in the Constitution.
State v. Spivey, 357 N.C. 114, 118, 579 S.E.2d 251, 255 (2003)
(quoting Barker, 407 U.S. at 533, 92 S. Ct. at 2193, 33 L. Ed.
2d at 118-19). We will now analyze the validity of Defendant’s
speedy trial claim using the four factor test described above.
2. Analysis of the Barker Factors
a. Length of Delay
In determining the length of the delay for speedy trial
purposes, the relevant time period begins on the date upon which
the indictment is returned. State v. Goins, __ N.C. App. __,
__, 754 S.E.2d 195, 198 (2014). Thus, the relevant period for
purposes of this case began on 8 May 2006 and ended when
Defendant’s case was called for trial on 25 June 2013. As a -12- result, the period of delay for purposes of this case is eighty-
five months.
b. Reason for Delay
According to the decisional law governing the resolution of
speedy trial issues, the “constitutional guarantee does not
outlaw good-faith delays which are reasonably necessary for the
State to prepare and present its case[.]” Washington, 192 N.C.
App. at 283, 665 S.E.2d at 804. For that reason, Defendant
bears the burden of “offering prima facie evidence showing that
the delay was caused by the neglect or willfulness of the
prosecution[.]” Id.; see also Goins, __ N.C. App. at __, 754
S.E.2d at 198. As a result, in the event that the defendant has
established that the delay that he or she experienced should be
attributed to the State, the State “must . . . offer evidence
fully explaining the reasons for delay and sufficient to rebut
the prima facie evidence.” Washington, 192 N.C. App. at 283,
665 S.E.2d at 804. We do not believe that Defendant has
established that the lengthy delay revealed by the present
record stemmed from negligence or willfulness on the part of the
State.
As an initial matter, we note that, when a defendant
consents to a delay in the course of litigation, he may not
claim that he suffered from that delay. State v. Grooms, 353 -13- N.C. 50, 63, 540 S.E.2d 713, 722 (2000), cert. denied, 534 U.S.
838, 122 S. Ct. 93, 151 L. Ed. 2d 54 (2001). As Defendant
concedes, his trial counsel requested a continuance on 22 June
2007 in order to obtain a DNA lab report2 and sought a second
continuance on 18 January 2008 for the same purpose. In
addition, Defendant consented to a continuance sought by the
State on the same grounds on 20 August 2008. As a result, a
considerable portion of the lengthy delay that occurred in this
case resulted from actions taken or consented to by Defendant.
The lab report was delivered to counsel for the parties on
21 August 2008. Subsequently, the charges against Defendant
were scheduled for trial in October 2009. Although both parties
were present and ready for trial, Detective Howard Reaves of the
Lumberton Police Department had failed to inform the prosecutor
that he was not available due to shoulder surgery. Although the
2 As this Court has previously held, delays resulting from the fact that the State Bureau of Investigation crime laboratory has not completed testing evidence are not attributed to the State for purposes of speedy trial analysis. State v. Dorton, 172 N.C. App. 759, 764, 617 S.E.2d 97, 101 (2005), disc. review denied, 360 N.C. 69, 623 S.E.2d 775 (2005). Although Defendant vigorously argues that the length of time needed to obtain the relevant laboratory report should be attributed to the State given that some portion of the resulting delay stemmed from a failure on the part of the investigating officers to notify the prosecutor of the existence of the evidence that needed to be tested and the State’s failure to make more strenuous efforts to obtain completion of the required testing, he cites no authority in support of this proposition, and we know of none other than Dorton, which cuts against Defendant’s position. -14- record does not contain any explanation for the State’s failure
to have engaged in more effective communications with the
Lumberton Police Department, we are unwilling to conclude that
the fact that the case against Defendant was not reached in
October 2009 because the lead detective had undergone shoulder
surgery amounts to neglect or willfulness on the part of the
State given that the effect of improved communication would have
likely been that Defendant’s case was not scheduled for trial at
all in October 2009.
Finally, the record reflects that the delay between October
2009 and the date upon which Defendant’s case was actually
called for trial in June 2013 stemmed from congested trial
calendars in the Robeson County Superior Court. At one point,
the prosecutor handling Defendant’s case was responsible for as
many as fifteen homicide cases. As a result of the fact that
Defendant had been released on bond in January 2007, it was not
unreasonable for the prosecutor to give priority to homicide
cases and other cases involving defendants who were in pretrial
detention. State v. Brown, 282 N.C. 117, 123-24, 191 S.E.2d
659, 664 (1972); State v. Hughes, 54 N.C. App. 117, 119, 282
S.E.2d 504, 506 (1981). Although Defendant argues that the
State could have taken a number of steps, such as requesting the
assignments of additional judges or prosecutors, in order to -15- relieve the docket congestion that delayed Defendant’s trial, a
similar argument was not deemed persuasive in Spivey. Simply
put, the fact that a considerable portion of the lengthy delay
at issue here resulted from docket congestion issues in Robeson
County indicates that the delay between the date upon which
Defendant was formally charged and the date upon which his case
was called for trial did not result from neglect or willfulness
on the part of the State. Spivey, 357 N.C. at 117, 579 S.E.2d
at 256. As a result, we are unable to conclude that the lengthy
delay at issue in this case should be attributed to the State
for speedy trial purposes.3
c. Assertion of Defendant’s Right to a Speedy Trial
Although Defendant was formally charged with first degree
kidnapping, attempted first degree murder, and assault with a
deadly weapon with the intent to kill inflicting serious injury
in May 2006, he did not assert his right to a speedy trial until
September 2012. In other words, Defendant did not advance any
contention in reliance upon his federal and state constitutional
right to a speedy trial for six years after he had been formally
3 In addition, Defendant notes that his case was not called for trial at some point during the period from 2009 until 2013 as a result of the fact that Mr. Franklin was out of the country. However, the record contains no indication that Mr. Franklin’s absence was caused by the State or that the State had any advance indication that Mr. Franklin would be unavailable on a contemplated trial date. -16- charged with assaulting, kidnapping, and attempting to murder
Mr. Franklin. As the Supreme Court has noted, a “[d]efendant’s
failure to assert his right to a speedy trial, or his failure to
assert his right sooner in the process, does not foreclose his
speedy trial claim, but does weigh against his contention[.]”
Grooms, 353 N.C. at 63, 540 S.E.2d at 722. As a result,
Defendant’s delay in asserting his right to a speedy trial
weighs against him in the ultimate balancing process.
d. Prejudice to Defendant
In order to obtain relief on speedy trial grounds, a
“defendant must show actual, substantial prejudice.” Spivey,
357 N.C. at 122, 579 S.E.2d at 257; see also Hughes, 54 N.C.
App. at 120, 282 S.E.2d at 506 (stating that “[c]ourts will not
presume that a delay in prosecution has prejudiced the
accused.”). As we have previously acknowledged, “[t]he right of
a speedy trial is designed: (i) to prevent oppressive pretrial
incarceration; (ii) to minimize anxiety and concern of the
accused; and (iii) to limit the possibility that the defense
will be impaired.” State v. Lee, 218 N.C. App. 42, 54, 720
S.E.2d 884, 893, disc. review improvidently allowed, 366 N.C.
329, 734 S.E.2d 571 (2012) (quoting State v. Webster, 337 N.C.
674, 680-81, 447 S.E.2d 349, 352 (1994)). -17- In his brief, Defendant contends that he made the required
showing of prejudice based upon the fact that he suffered
“oppressive” pretrial incarceration and experienced anxiety
stemming from social stigma arising from his status as a person
charged with committing serious criminal offenses who had been
released on bond. In addition, Defendant contends that his
ability to mount a successful defense was prejudiced by the
lengthy delay that occurred in this case given that only one of
seven possible alibi witnesses was able to appear at his trial
due to illness, death, or disappearance. Having made bond on 27
January 2007, Defendant was out on bail for a substantial
portion of the period between the return of the indictments
charging him with first degree kidnapping, attempted first
degree murder, and assault with a deadly weapon with the intent
to kill inflicting serious injury and the date upon which this
case was called for trial. In addition, the record contains no
evidentiary support for Defendant’s claim to have been
significantly stigmatized and to have suffered a great deal of
anxiety as a result of the substantial period of time during
which he was under bond. Finally, Defendant failed to provide
any detailed description of the evidence that would have been
available from the potential alibi witnesses. In addressing a
similar contention to the effect that “potential defense -18- witnesses who were originally ready and willing to testify . . .
became reticent,” we held that the defendant’s failure to
explain the nature of the evidence that he was precluded from
presenting or the manner in which the delay between the date
upon which the defendant was formally charged and the date upon
which his case was called for trial caused his inability to
present testimony from these “reticent” witnesses meant that the
defendant had failed to show “actual, substantial prejudice.”
Goins, __, N.C. App. at __, 754 S.E.2d at 199. As a result,
Defendant has failed to establish the existence of the actual
prejudice needed to support an award of appellate relief on
speedy trial grounds.
e. Ultimate Balancing Analysis
After analyzing each of the factors enumerated in Barker on
an individual basis, we are now required to make the ultimate
determination of whether Defendant’s federal and state
constitutional right to a speedy trial was violated by
considering all four factors in conjunction with each other. As
an initial step in that process, we note that a one-year trial
delay has been held to be “presumptively prejudicial.” Webster,
337 N.C. at 678, 447 S.E.2d at 351 (quoting Doggett v. United
States, 505 U.S. 647, 652 n.1, 112 S. Ct. 2686, 2690 n.1, 120 L.
Ed. 2d 520, 528 n.1 (1992)). In light of that fact, we find the -19- eighty-five month delay at issue here exceedingly disturbing.
However, our analysis of each of the other Barker factors favors
the State. Simply put, Defendant failed to assert his right to
a speedy trial for six years after having been charged with
committing the crimes for which he was convicted in this case.
In addition, Defendant either sought or consented to a
substantial portion of the delay at issue in this case.
Moreover, the record does not support Defendant’s contention
that the remaining delay resulted from neglect or willfulness on
the part of the State as compared to factors over which the
State did not have any reasonable degree of control. Finally,
Defendant has not demonstrated that he suffered any actual
prejudice as the result of the eighty-five month delay at issue
here. As a result, consistent with the Supreme Court’s holding
in Spivey to the effect that the defendant was not entitled to
relief on speedy trial grounds despite the existence of a four
and a half year delay, Spivey, 357 N.C. at 123, 579 S.E.2d at
257, we hold that the trial court did not err by refusing to
dismiss the charges that had been lodged against Defendant in
this case on speedy trial grounds.
B. Jury Instructions
Secondly, Defendant contends that the trial court
erroneously instructed the jury concerning the issue of his -20- guilt of first degree kidnapping. More specifically, Defendant
contends that the trial court erroneously instructed the jury
that it could convict Defendant of first degree kidnapping if it
found beyond a reasonable doubt that he restrained or confined
Mr. Franklin for the purpose of facilitating his commission of
or flight after committing assault with a deadly weapon with the
intent to kill inflicting serious injury on the grounds that the
challenged instruction lacked sufficient evidentiary support.
Defendant’s contention has merit.
“No person shall be convicted of any crime but by the
unanimous verdict of a jury in open court.” N.C. Const. art. 1,
§ 24. Similarly, N.C. Gen. Stat. § 15A-1237(b) provides that a
jury verdict “must be unanimous, and must be returned by the
jury in open court.” Although a defendant’s failure to object
to an instructional error does, as a general proposition,
prohibit the defendant from obtaining appellate review of a
challenge to that instructional error under the customary
prejudice standard applicable to issues that have been properly
preserved for appellate review, State v. Ashe, 314 N.C. 28, 39,
331 S.E.2d 652, 659 (1985), “[w]here, however, the error
violates [a] defendant’s right to a trial by a jury of twelve,
[a] defendant’s failure to object is not fatal to his right to
raise the question on appeal.” Id., 331 S.E.2d at 659; see also -21- State v. Brewer, 171 N.C. App. 686, 691, 615 S.E.2d 360, 363
(2005) (stating that “[v]iolations of constitutional rights,
such as the right to a unanimous verdict . . . are not waived by
the failure to object at trial and may be raised for the first
time on appeal”) (internal citations omitted), disc. review
denied, 360 N.C. 484, 632 S.E.2d 493 (2006). Although there is
no unanimity violation in the event that the “trial court merely
instructs the jury disjunctively as to various alternative acts
which will establish an element of the offense,” State v. Lyons,
330 N.C. 298, 303, 412 S.E.2d 308, 312 (1991), the situation is
very different in the event that the record does not contain
sufficient evidence to support a finding that one or the other
of the grounds for finding Defendant guilty of first degree
kidnapping listed in the trial court’s instructions had adequate
evidentiary support.
In State v. Johnson, 183 N.C. App. 576, 646 S.E.2d 123
(2007), the trial court instructed the jury that it could find
the defendant guilty of second degree kidnapping if it found
that he acted either with the purpose of facilitating his
commission of breaking or entering, or larceny, or to facilitate
his flight after committing those crimes. Id. at 581-82, 646
S.E.2d at 127. However, the undisputed record evidence
reflected that, when defendant restrained or confined the -22- victim, he had already committed the crimes of breaking or
entering and larceny, Id. at 584, 646 S.E.2d at 128, a fact that
established that the defendant had not restrained or confined
the victim for the purpose of facilitating his commission of a
breaking or entering or a larceny. Id., 646 S.E.2d at 128. As
a result, given the fact that the record did not contain
sufficient evidence to support both of the theories enumerated
in the trial court’s instructions, we awarded the defendant a
new trial. Id. at 585, 646 S.E.2d at 128.
The same situation that existed in Johnson is present here.
As Defendant contends, all of the record evidence tends to show
that Defendant feloniously assaulted Mr. Franklin before
Defendant removed Mr. Franklin from the Redwood Inn. According
to Mr. Franklin:
[Defendant] just reached down and broke the table leg off, and with the room being in my name, I said, ho, ho, ho. I jumped up, and that’s the last thing I remember until I was taken to the river, and he took a rock and busted the window out.
Similarly, Mr. Bass testified that Defendant drove Mr.
Franklin’s van to the Lumber River, opened the door to display
Mr. Franklin “laying out across the seat in the back behind the
driver’s seat,” and told him about beating Mr. Franklin with a
table leg at the Redwood Inn. Although the State contends that
the assault that Defendant committed against Mr. Franklin had -23- not ended by the time of this conversation in light of Mr. Bass’
testimony that Defendant asked “if [he thought] he should kill
[Mr. Franklin] or something,” nothing about this evidence tends
to show that Defendant assaulted Mr. Franklin at any time after
their departure from the Redwood Inn. Similarly, the fact that
Mr. Franklin did not remember what occurred beside the Lumber
River, that Mr. Franklin’s blood was found in the van, and that
Defendant broke out the van’s window with a rock and caused
broken glass to enter Defendant’s wounds does not establish that
Defendant engaged in any assaultive behavior beside the Lumber
River or at any time after Defendant and Mr. Franklin left the
Redwood Inn. As a result of the fact that the trial court in
this case instructed the jury with respect to the issue of
Defendant’s guilt of first degree kidnapping on the basis of two
theories, “one which [was] not supported by the evidence and one
which [was],” and the fact that “it cannot be discerned from the
record upon which theory or theories the jury relied in arriving
at its verdict,” Johnson, 183 N.C. App. at 584, 646 S.E.2d at
128, Defendant, like the defendant in Johnson, is entitled to a
new trial in the case in which he was convicted of first degree
kidnapping.4
4 Although the State contends that we should refrain from following Johnson on the grounds that it is inconsistent with prior decisions of the Supreme Court, the State has not cited -24- III. Conclusion
Thus, for the reasons set forth above, we conclude that,
while Defendant’s speedy trial claim lacks merit, the trial
court erred by allowing the jury to find Defendant guilty of
first degree kidnapping on the basis of a disjunctive
instruction concerning the purpose for which Defendant acted
that lacked adequate evidentiary support. As a result, the
trial court’s judgments in the cases in which Defendant was
convicted of attempted first degree murder and assault with a
deadly weapon with the intent to kill inflicting serious injury
should, and hereby do, remain undisturbed and Defendant should,
and hereby does, receive a new trial in the case in which he was
convicted of first degree kidnapping.
NO ERROR IN PART; NEW TRIAL IN PART.
Judges ROBERT N. HUNTER, JR., and DAVIS concur.
Report per Rule 30(e).
any decisions limiting Johnson’s precedential effect to the specific factual situation at issue in Johnson and we have not identified any such decision in the course of our own research. As a result, we conclude that we are bound by Johnson despite the State’s contention to the contrary.