State v. Lawrence

Decision Date13 April 2012
Docket NumberNo. 100PA11.,100PA11.
CourtNorth Carolina Supreme Court
PartiesSTATE of North Carolina v. David Ordis LAWRENCE.

OPINION TEXT STARTS HERE

On discretionary review pursuant to N.C.G.S. § 7A–31 of a unanimous decision of the Court of Appeals, ––– N.C.App. ––––, 706 S.E.2d 822 (2011), finding no error in part and reversing in part judgments entered on 4 November 2009 by Judge Douglas B. Sasser in Superior Court, Hoke County, and remanding for a new sentencing hearing and for a new trial in part. Heard in the Supreme Court on 9 January 2012.

Roy Cooper, Attorney General, by Daniel P. O'Brien, Assistant Attorney General, for the State-appellant.

James R. Parish, Fayetteville, for defendant-appellee.

MARTIN, Justice.

The Court of Appeals found plain error as to the trial court's jury instructions regarding the elements of conspiracy to commit robbery with a dangerous weapon and granted defendant a new trial on that charge. The only questions before this Court are (1) whether the Court of Appeals applied the proper standard of review for plain error and (2) whether the trial court's jury instructions regarding conspiracy to commit robbery with a dangerous weapon rise to the level of plain error.

Almost thirty years ago, in State v. Odom, we adopted the federal plain error rule for criminal cases. 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.), cert. denied, 459 U.S. 1018, 103 S.Ct. 381, 74 L.Ed.2d 513 (1982)). 1 Generally speaking, the rule provides that a criminal defendant is entitled to a new trial if the defendant demonstrates that the jury probably would have returned a different verdict had the error not occurred. State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986). Since that time, our appellate courts have applied the plain error standard using several different formulations.2 See, e.g., State v. Towe, ––– N.C.App. ––––, ––––, 707 S.E.2d 770, 775 (finding plain error because “it [was] highly plausible that the jury could have reached a different result”), disc. rev. allowed, 365 N.C. 202, 709 S.E.2d 599 (2011); State v. Wright, –––N.C.App. ––––, ––––, 708 S.E.2d 112, 121 (holding there was not plain error because “a different result probably would not have been reached absent [the trial court's alleged error]), disc. rev. denied, 365 N.C. 200, 710 S.E.2d 9, 10 (2011); State v. Jones, ––– N.C.App. ––––, ––––, 703 S.E.2d 772, 774 (2010) (defining plain error as “so grave as to deny a fundamental right of the defendant so that, absent the error, the jury would have reached a different result”), vacating and remanding with instructions, ––– N.C. ––––, 722 S.E.2d 509 (2012); State v. Walker, 139 N.C.App. 512, 520, 533 S.E.2d 858, 862 (2000) (holding that any error was harmless and thus not plain error). These incomplete and inconsistent formulations lead us to conclude that clarification of the plain error standard is needed. After taking the opportunity to review application of the plain error standard, we reverse.

In August 2008, defendant engaged in a criminal partnership with a group of out-of-state residents planning to rob a drug dealer in North Carolina. The participants who drove from Florida were Marlita Williams (Williams), Travis McQueen, Twanda McQueen, and Bernard King (King). The group travelled to Fayetteville, North Carolina, in two cars. Upon arriving in Fayetteville, the group stopped at a Home Depot store and stole zip ties and a Mercury Milan for use during the course of the planned robbery. The group then went to the home of Williams's aunt to continue planning the robbery.

That night, the group drove by and parked outside several homes to choose a target. They believed each residence to be the home of a drug dealer and thus to contain significant amounts of money. The group subsequently followed a potential victim, Charlise Curtis, with whom Williams was familiar, back to her neighborhood. They decided they would rob Ms. Curtis, who was dating a man they believed was a drug dealer.

The group later discussed each person's role in the robbery. Travis McQueen would grab Ms. Curtis while threatening her with a gun. Williams said she knew someone else who could help Travis McQueen with the “muscle.” The group drove to the home of defendant, David Ordis Lawrence. Defendant met the group outside and agreed to participate in the robbery. He volunteered that he already had a weapon and pulled out his semiautomatic .380 caliber handgun. They planned to rob Ms. Curtis the next morning when she took her child to school.

The next day, 29 August 2008, King drove the stolen Mercury Milan to pick up defendant. King and defendant then drove to a service station to fill up a gasoline can. After Travis McQueen joined them in the car, they discussed their plan on the way to Ms. Curtis's home. They decided to wait for Ms. Curtis to reach the end of the driveway. They would then block her car in, and Travis McQueen and defendant would jump out of the woods, grab her, and take her back to the house. They planned to then tie her up and threaten her with their guns to force her to tell them where her boyfriend's money and drugs were located. If guns did not work, they planned to douse Ms. Curtis in gasoline and threaten to set her on fire unless she talked.

When they arrived at Ms. Curtis's residence, Travis McQueen and defendant hid in the woods. King remained in the driver's seat of the car so he could block Ms. Curtis in the driveway. Shortly thereafter, when a marked police car pulled behind King's car in response to calls from neighbors, King attempted to drive off at a high speed, but he then jumped out of the vehicle and fled. While pursuing King on foot, officers also saw persons later identified as Travis McQueen and defendant run from the woods, but the officers were unable to catch any of the three.

The group later reassembled and took defendant back to his house before returning to the home of Williams's aunt. There, the group decided they would again attempt to rob Ms. Curtis, but would wait some time before making the attempt.

The next day, the group went to a mall parking lot and stole a Ford F–250 pickup truck and a purse. They used credit cards from the stolen vehicle and purse to buy additional supplies for the next robbery attempt. The group decided to attempt a robbery again that night. They picked up defendant, who said he was ready for the second attempt. Defendant and the group then waited for a telephone call from one of Williams's family members to let them know when Ms. Curtis was on her way home. Defendant, King, and Travis McQueen drove to Ms. Curtis's home in the truck, while Twanda McQueen and Williams drove in another car. Travis McQueen and defendant planned to ambush Ms. Curtis as she walked to the door of her house.

King drove to Ms. Curtis's home and let defendant and Travis McQueen out of the vehicle before driving to a nearby service station to wait for them. Defendant and Travis McQueen ran around to the back of the house so neighbors would not see them. Nonetheless, a neighbor, Robert Murray, had observed this activity. In response, he called the police and retrieved his pistol. Mr. Murray then confronted the men, who fled the area. Mr. Murray called another neighbor and alerted him that two individuals were running his way. The second neighbor attempted to stop them, but they ran away.

Meanwhile, a police officer attempted to detain King, who was still parked at the service station, but King sped away. King wrecked the stolen truck, fled on foot, and was eventually arrested. Travis McQueen was later picked up by Twanda McQueen and Williams. Defendant hid in the woods all night and walked home in the morning.

King cooperated with the police and told them the details of the plan. He also stated that defendant was fully aware of the plan to rob and kidnap Ms. Curtis. Travis and Twanda McQueen were arrested a few days later. Twanda McQueen cooperated with police, also identifying defendant and describing the plan. Defendant was apprehended on 8 January 2009, approximately four months later, by U.S. Marshals in Mississippi.

On 27 October 2008, defendant was indicted by a grand jury in Hoke County for two counts each of attempted robbery with a dangerous weapon, attempted kidnapping, attempted breaking and entering, and conspiracy to commit robbery with a dangerous weapon. Following his arrest, he was tried and convicted by a jury of all eight charges. The trial court arrested judgment on the attempted kidnapping convictions and sentenced defendant to an active term of 90 to 117 months for the first count of attempted robbery with a dangerous weapon, a consecutive term of 90 to 117 months for the second count of attempted robbery with a dangerous weapon, a consecutive term of 30 to 45 months for one count of conspiracy to commit robbery with a dangerous weapon, a consecutive term of 30 to 45 months for the second count of conspiracy to commit robbery with a dangerous weapon, and two concurrent terms of 6 to 8 months each for two counts of attempted breaking and entering.

At defendant's trial, the trial court correctly instructed the jury on the elements of attempted robbery with a dangerous weapon when delivering its charge on that offense. That instruction included the elements that defendant possessed a firearm and intended to use it to “endanger or threaten the life of [the victim].” However, in its charge on conspiracy to commit robbery with a dangerous weapon, the trial court correctly instructed that robbery with a dangerous weapon is the taking of property from a person “while using a firearm,” but erroneously omitted the element that the weapon must have been used to endanger or threaten the life of the victim. The State concedes that the instruction was erroneous because the trial court should have set out all the elements of robbery with a dangerous weapon in that portion of the charge,...

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