State v. Pelham, COA03-636.

• Citation: 595 S.E.2d 197,164 NC App. 70
• Decision Date: 04 May 2004
• Docket Number: No. COA03-636.,COA03-636.
• Court: Court of Appeal of North Carolina (US)
• Parties: STATE of North Carolina v. Paul Emmanuel PELHAM.

595 S.E.2d 197

164 NC App. 70

STATE of North Carolina v. Paul Emmanuel PELHAM.

No. COA03-636.

Court of Appeals of North Carolina.

May 4, 2004.

Attorney General Roy Cooper, by Special Deputy Attorney General Francis W. Crawley, for the State.

Miles & Montgomery, by Mark Montgomery, Durham, for defendant appellant.

McCULLOUGH, Judge.

The defendant was tried at the 14 October 2002 Criminal Term of Brunswick County Superior Court on indictments which charged assault with a deadly weapon with intent to kill inflicting serious injury; three counts of assault with a firearm on a law enforcement officer; possession with intent to manufacture, sell or deliver cocaine and marijuana; maintaining a place for keeping controlled substances; and possession of drug paraphernalia. Having been found guilty, he was sentenced to a term of 125 to 159 months on the assault with intent to kill indictment, followed by 35-53 months on each of the assault with a firearm on a law enforcement officer charges, all being consecutive to one another, and one concurrent term of 6 to 8 months on the consolidated drug convictions.

The evidence at trial tended to show that Brunswick County Deputy Sheriff Clint Simpson was investigating the use and sale of drugs at 326 Van Galloway Trail near Winnabow, defendant's residence, in September 2001. Deputy Simpson used a reliable confidential informant who had purchased drugs from defendant in the past to make a controlled purchase of a gram of crack cocaine from defendant for $60 on 3 October 2001. On Friday, 5 October 2001, Deputy Simpson obtained a search warrant for defendant's residence, a single-wide trailer. The warrant was executed that night. Having been warned that defendant was normally armed, the Sheriff's Department Emergency Response Team was used to enter the trailer. The officers were deployed to the front and rear of the trailer.

Deputy Simpson's team, dressed in camouflage or subdued clothing, displaying badges and "SHERIFF" printed on their outer clothing, lay in the woods behind defendant's trailer from approximately 9:30 p.m. until around 10:30 p.m. when the other half of the team arrived in a van which proceeded up defendant's driveway, stopping near the front door. These officers were dressed in black tactical gear with "SHERIFF" printed in bright yellow or white lettering, front and back.

The two teams simultaneously approached the trailer, deploying a distraction device sometimes called a "flash/bang." Both groups then began yelling, "Sheriff's Department, search warrant." Simpson unsuccessfully attempted to enter through the rear door, which was locked. At that point, one of the occupants, Atari Thomas, jumped out of a rear window, firing three shots at the officers while running away. The officers approaching the front door had seen Mr. Thomas peering out the front window at them as they approached. Finding the front door locked, these officers used the battering ram to effect entry after around three blows to the door. The kitchen and living room lights were on and two officers went to the right and another two went left. Deputies Lanier and Smith went left to check out the rear master bedroom. As Deputy Lanier reached the bedroom he heard gunfire outside. He then moved the sheet covering the doorway and with his gun drawn made a sweep across the room. At that point Deputy Lanier saw a large silver gun and the silhouette of a black male, defendant, who then shot Deputy Lanier in the neck and hand. Lanier returned fire toward the gun. Deputy Smith saw the revolver held by defendant and observed defendant fire twice at his partner from near the bathroom door at which time he fired his shotgun.

Deputy Smith provided covering fire as Deputy Lanier crawled to safety. Deputies Cain and Evans both saw defendant point his weapon at them as they joined Smith. Defendant refused to obey orders from the officers to come out, and defendant continued to hide in the bathroom, occasionally peeking out at the deputies. Eventually he did come out and surrender after the officers fired at him severely wounding him. Deputy Smith seized marijuana from defendant's pants pocket. Deputy Simpson then executed the search warrant and recovered marijuana, cocaine, cutting agents, scales and money as well as defendant's pistol. Two marijuana plants were found growing in the backyard.

Deputy Lanier was taken to the hospital in Wilmington where he was treated for his gunshot wounds. The shot to his neck injured his spinal nerves, punctured his lungs and exited his back. The gunshot wound to his right hand fractured a finger and caused nerve damage. Despite two surgeries, Deputy Lanier still suffers a permanent disability due to the loss of nerve functions.

Defendant, a convicted felon who is prohibited from possessing firearms, testified at trial that he did not know who had entered his trailer, having been asleep at the beginning of the raid. He claimed to have been awakened by the shots fired in the backyard and the distraction device. Fearing that he was being robbed, he admitted firing at the first white face he saw, whereupon he hid in the bathroom yelling, "who y'all," until the officers' return fire caused him to surrender. He denied he heard anyone yelling "Sheriff's Department, search warrant" or any similar words. He claimed that he first realized the intruders were police officers when he heard one of them say, "You shot my partner." He further denied meeting the confidential informant the day before (even though the confidential informant testified at trial as to the controlled delivery). Defendant also called some relatives and neighbors as witnesses who testified that they heard the gunfire but never heard anyone yelling, "Sheriff's Department, search warrant" prior to the shooting.

On appeal defendant raises the following issues: (I) the trial court erred by failing to give defendant's requested instruction on the defense of habitation; (II) the trial court erred by failing to dismiss the assault on law enforcement officer indictments due to a variance; (III) defendant's motion to suppress should have been granted; and (IV) the trial court should have found that defendant acted under extreme provocation and sentenced him in the mitigated range.

For the reasons which follow, we reject defendant's arguments and believe he had a fair trial, free from prejudicial error.

I. DEFENSE OF HABITATION

At the conclusion of the trial the court and counsel engaged in an extensive charge conference during which counsel for defendant requested a jury instruction on both self-defense and defense of habitation. The trial court agreed to give the self-defense instruction but refused the defense of habitation instruction.

The defense of habitation is codified at N.C. Gen.Stat. § 14-51.1 (2003) which provides:

(a) A lawful occupant within a home or other place of residence is justified in using any degree of force that the occupant reasonably believes is necessary, including deadly force, against an intruder to prevent a forcible entry into the home or residence or to terminate the intruder's unlawful entry (i) if the occupant reasonably apprehends that the intruder may kill or inflict serious bodily harm to the occupant or others in the home or residence, or (ii) if the occupant reasonably believes that the intruder intends to commit a felony in the home or residence.

(b) A lawful occupant within a home or other place of residence does not have a duty to retreat from an intruder in the circumstances described in this section.

The statute had the effect of broadening the defense of habitation by allowing deadly force to be used to prevent unlawful entry into the home or to terminate an unlawful entry by an intruder. State v. Blue, 356 N.C. 79, 82, 565 S.E.2d 133, 135 (2002). In determining whether the defense has been raised by the evidence, competent evidence in the record must be evaluated in the light most favorable to defendant. State v. Morgan, 315 N.C. 626, 636, 340 S.E.2d 84, 91 (1986).

Defendant argues that his testimony wherein he claimed that he did not hear the warning "Sheriff's Department, search warrant," buttressed by his other witnesses who maintained that they never heard these warnings, coupled with the officers' description of the events surrounding the search sufficiently raised the defense so that the instruction should have been given. It was uncontested that the officers possessed a search warrant and the evidence was uncontradicted that defendant was awakened by the distraction device.

Given defendant's testimony, and its evaluation in the light most favorable to defendant as required, we agree that the evidence justified the giving of the instruction.

Having concluded that the defense of habitation instruction should have been given, might, in the ordinary case, end our analysis. However, in the case sub judice defendant was also charged with assault with a firearm on a law enforcement officer in violation of N.C. Gen.Stat. § 14-34.5(a) (2003) which provides:

Any person who commits an assault with a firearm upon a law enforcement officer, probation officer, or parole officer while the officer is in the performance of his or her duties is guilty of a Class E felony.

The elements of the offense are: (1) an assault, (2) with a firearm, (3) on a law enforcement officer, (4) while the officer is engaged in the performance of his or her duties. State v. Haynesworth, 146 N.C.App. 523, 553 S.E.2d 103 (2001). Furthermore, our Courts have determined that this charge also requires that the State prove that defendant knew or should have known that the victim was an officer performing his official duties. See State v. Avery, 315 N.C. 1, 30-31, 337 S.E.2d 786, 803 (1985)

; State v. Page, 346 N.C. 689, 699, 488 S.E.2d 225, 232 (1997), cert. denied, 522 U.S. 1056, 118 S.Ct. 710, 139 L.Ed.2d 651 (1998). The knowledge requirement has been imposed although the underlying statut...