State Carolina v. Wright

• Decision Date: 21 June 2011
• Docket Number: No. COA10–1251.,COA10–1251.
• Citation: 711 S.E.2d 797
• Parties: STATE of North Carolinav.Michael Lee WRIGHT, Jr.
• Court: North Carolina Court of Appeals

711 S.E.2d 797

STATE of North Carolina

v.Michael Lee WRIGHT, Jr.

No. COA10–1251.

Court of Appeals of North Carolina.

June 21, 2011.

OPINION TEXT STARTS HERE

Appeal by defendant from judgments and order entered 20 January 2010 by Judge Jay D. Hockenbury in Sampson County Superior Court. Heard in the Court of Appeals 10 March 2011.

Roy Cooper, Attorney General, by David J. Adinolfi, II, Special Deputy Attorney General, for the State.

Brock, Payne & Meece, P.A., Durham, by C. Scott Holmes, for defendant.

THIGPEN, Judge.

Defendant Michael Lee Wright, Jr., appeals from eight convictions arising out of a shooting at Moore Cuts Barbershop in Clinton, North Carolina and from a restitution order. The three principal issues on appeal are whether the trial court: (1) punished Defendant multiple times for the same transaction in violation of his constitutional right against double jeopardy, (2) violated Defendant's constitutional right to be present by conducting sentencing proceedings outside of his presence, and (3) erred by ordering restitution without proper evidence. Because there was a $360 discrepancy between the amount of restitution ordered, $15,760, and the amount of restitution supported by the evidence, $15,400 in awards from the Crime Victims Compensation Commission, we remand the restitution order for the trial court to amend the order accordingly. For all other issues, we find no error.

On 16 February 2008, Corey Bennett, an old friend of Defendant, was standing in front of Moore Cuts Barbershop in Clinton, North Carolina when he received a call on his cell phone from Defendant. Mr. Bennett said that he could hardly hear the conversation, but Defendant said something about “a baby or a baby momma[.]” Mr. Bennett testified that while he was on the phone, he saw a small, white four-door car. Mr. Bennett recognized the driver as his ex-girlfriend, Terry Oates, and also saw Donte Singleton, Deangelo Jacobs (“DJ”), and Defendant in the car. Mr. Bennett had seen the car earlier at a traffic light, and then saw it make a U-turn and follow him for a while. As Mr. Bennett turned to go into the barbershop, he heard gun shots, the glass window broke, and he dove to the floor. Mr. Bennett testified that he did not see who was shooting. Mr. Bennett saw Marcus London, a barber, and another man inside of the barbershop, and he knew Mr. London was hurt because he saw blood on the floor.

Henry Moore, the owner of Moore Cuts, had stepped out of his barbershop to get a soda. On the way back, he saw Mr. Bennett standing in front of the barbershop on his cell phone. Mr. Moore then saw a white Kia drive toward Moore Cuts. Mr. Moore saw four people in the car, including a young woman driving that he did not recognize and three men that he recognized. Mr. Moore recognized Donte Singleton in the front passenger seat, Defendant in the back passenger seat, and DJ behind the driver. As the Kia pulled in front of Moore Cuts, Mr. Moore heard someone shout, “[t]here he is,” and he saw Defendant lean out of the window and start shooting. Mr. Moore stated, “I looked dead at them, they looked dead back at me, and I paused because I was shocked it was broad daylight and somebody shooting.” Mr. Moore heard at least five shots fired, and he saw Mr. Bennett dash into the barbershop when the shooting started. Mr. Moore called 911, and Mr. Bennett told him Mr. London had been shot in the head.

Mr. London was working inside the barbershop when he was shot on the left side of his head. As a result of being shot, he was in the hospital for approximately two months and is permanently disabled in his right arm and leg.

Defendant and Donte Singleton were arrested in Greensboro, North Carolina on 10 April 2008. The white Kia Optima was found at the residence of Regina Brown, after her uncle, Donte Singleton, arrived in the vehicle with a woman and two men and left the car in the backyard.

Defendant was charged with attempted first degree murder of Mr. London, attempted first degree murder of Mr. Bennett, assault with a deadly weapon with intent to kill inflicting serious injury on Mr. London, assault with a deadly weapon with intent to kill Mr. Bennett, discharging a firearm into occupied property inflicting serious bodily injury, two counts of discharging a firearm into occupied property, and discharging a firearm within city limits. The jury found Defendant guilty on all counts and found aggravating factors. The trial court consolidated the convictions into three groups and sentenced Defendant to three consecutive sentences in the presumptive range of 220–273 months, 180–225 months, and 34–50 months imprisonment. The trial court also ordered Defendant to pay $15,760 in restitution to North Carolina Department of Crime Control and Public Safety, Division of Victim's Compensation Services. Defendant appeals.

On appeal, Defendant argues the trial court (I) erroneously punished Defendant multiple times for the same transaction in violation of his constitutional right against double jeopardy, (II) violated Defendant's constitutional right to be present when it conducted sentencing proceedings outside of his presence, and (III) erroneously ordered restitution without proper evidence.

I. Double Jeopardy

Defendant first argues the trial court erroneously punished him multiple times for the same transaction in violation of his constitutional right against double jeopardy. Specifically, Defendant contends there was one series of shots constituting one assault; therefore, it violated double jeopardy to sentence him and punish him for multiple assaults. We disagree.

Our standard of review for double jeopardy claims is de novo. State v. Hagans, 188 N.C.App. 799, 804, 656 S.E.2d 704, 707 (citation omitted), disc. review denied, 362 N.C. 511, 668 S.E.2d 344 (2008). “The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution protects against multiple punishments for the same offense. The North Carolina Constitution provides similar protection.” State v. Washington, 141 N.C.App. 354, 368, 540 S.E.2d 388, 398 (2000) (citing U.S. Const. amend. V.; N.C. Const. art. I, § 19), disc. review denied, 353 N.C. 396, 547 S.E.2d 427 (2001). However, “[i]t is elementary that a defendant may be charged with more than one offense based on a given course of conduct.” State v. Ward, 301 N.C. 469, 476, 272 S.E.2d 84, 88 (1980). A defendant may be properly charged with two separate and distinct offenses that arise out of a single course of conduct. Id.

In this case, the trial court consolidated Defendant's convictions of attempted murder of Mr. London, assault with a deadly weapon with intent to kill on Mr. London, and discharging a firearm into occupied property inflicting serious bodily injury into one sentence of 220 to 273 months imprisonment. The court also consolidated his convictions of attempted murder and assault with a deadly weapon with intent to kill with respect to Mr. Bennett into one sentence of 180 to 225 months imprisonment. Defendant contends “the single assaultive conduct cannot support two attempted murder convictions consolidated with two assault convictions.”

Defendant cites State v. Dilldine, 22 N.C.App. 229, 206 S.E.2d 364 (1974), and State v. Brooks, 138 N.C.App. 185, 530 S.E.2d 849 (2000), appeal dismissed and disc. review denied, 357 N.C. 253, 582 S.E.2d 612 (2003), in support of his argument that the series of five shots fired in this case constitute one assault. However, Defendant's reliance on Dilldine and Brooks is misplaced because both of those cases involved a defendant charged with two separate counts of assault for shooting one victim multiple times in one continuous incident. The instant case involved two victims. Therefore, we find it analogous to State v. Washington, 141 N.C.App. at 369–70, 540 S.E.2d at 399, in which this Court held that the “defendant was properly charged with two separate and distinct offenses as to each victim, felonious assault and attempted murder, even though the offenses both arose out of a single course of conduct.” (Emphasis added). Following our holding in Washington, we conclude Defendant was properly charged and convicted of two separate and distinct offenses of attempted murder and assault as to each victim, even though the offenses arose out of a single course of conduct.

II. Right to be Present

In his next argument on appeal, Defendant contends the trial court violated his right to be present by conducting sentencing proceedings outside Defendant's presence with no waiver of the right by Defendant. This contention has no merit.

Our Supreme Court has explained a defendant's right to be present:

The Confrontation Clause in Article I, Section 23 of the North Carolina Constitution guarantees an accused the right to be present in person at every stage of his trial. This right to be present extends to all times during the trial when anything is said or done which materially affects defendant as to the charge against him.

State v. Workman, 344 N.C. 482, 497, 476 S.E.2d 301, 309 (1996) (citations and quotation marks omitted). The right to be present at all critical stages of the prosecution is subject to a harmless error beyond a reasonable doubt standard of review. Id. “An in-chambers conference is a critical stage of a defendant's trial ... at which he has a constitutional right to be present.” State v. Exum, 343 N.C. 291, 294, 470 S.E.2d 333, 335 (1996) (citation and quotation marks omitted). “[N]otwithstanding an accused's right to be present, certain violations of this right may be harmless if such appears from the record. An error is harmless beyond a reasonable doubt if it did not contribute to the defendant's conviction.” State v. Ferguson, 145 N.C.App. 302, 309, 549 S.E.2d 889, 894 (citations and quotation marks omitted), disc. review denied, 354 N.C. 223, 554 S.E.2d 650 (2001).

In the present case, the trial court conducted an in-chambers conference before the sentencing hearing to...