State v. Bagley

• Decision Date: 05 June 2007
• Docket Number: No. COA06-686.,COA06-686.
• Citation: 644 S.E.2d 615
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina, Plaintiff, v. Terry Lamont BAGLEY, Defendant.

644 S.E.2d 615

STATE of North Carolina, Plaintiff, v. Terry Lamont BAGLEY, Defendant.

No. COA06-686.

Court of Appeals of North Carolina.

June 5, 2007.

Appeal by defendant from judgments entered 23 February 2006 by Judge A. Leon Stanback in Wake County Superior Court. Heard in the Court of Appeals 24 January 2007.

Attorney General Roy A. Cooper, III, by Assistant Attorney General Jason T. Campbell, for the State.

Haral E. Carlin, for defendant-appellant.

STROUD, Judge.

Defendant Terry Lamont Bagley appeals from judgments entered upon jury verdicts finding him guilty of robbery with a firearm, second-degree kidnapping, and assault with a deadly weapon inflicting serious injury (AWDWISI). Defendant contends that the trial court erred by: (1) denying his motion to dismiss the charge of kidnapping, (2) admitting evidence of the circumstances surrounding his arrest, (3) instructing the jury on the theory of acting in concert to commit robbery with a firearm, (4) denying his motion to dismiss the charge of AWDWISI, and (5) peremptorily instructing the jury that a gunshot wound to the leg is a serious injury.

We conclude that the State presented substantial evidence that defendant kidnapped J-Neaka Sutton, and affirm the order of the trial court denying defendant's motion to dismiss that charge. We conclude that the trial court did not err in admitting evidence of the circumstances surrounding defendant's arrest, including evidence that defendant was found hiding in a closet under a pile of clothes while police investigated a nearby shooting. We further conclude that the State presented sufficient evidence to support a jury instruction on the theory of acting in concert to commit robbery with a firearm; therefore, the trial court did not err in giving that instruction. Defendant received a fair trial, free of reversible error, for second-degree kidnapping and robbery with a firearm. Judgment is affirmed as to defendant's convictions for those offenses.

We further conclude that the State presented substantial evidence to support a jury finding that defendant assaulted Jamaal Turner with a deadly weapon inflicting serious injury, and affirm the order of the trial court denying defendant's motion to dismiss that charge. However, we conclude that the trial court committed reversible error by instructing the jury that a gunshot wound to the leg is a serious injury.¹ Therefore, we reverse defendant's conviction for assault with a deadly weapon inflicting serious injury and remand for a new trial on that charge.

I. Background

The evidence in the record tends to show the following: Defendant Terry Lamont Bagley was a friend of William Harrington and Courtney Bowens. J-Neaka Sutton was an occasional acquaintance of Harrington and a marijuana dealer. Jamaal Turner was Sutton's marijuana supplier. Turner supplied only customers he knew well and was very wary of strangers.

On 1 September 2004, defendant joined Harrington and Bowens to "chill." While "chilling," Harrington suggested that the three men rob Sutton. Defendant replied, "No, not today." Approximately twenty minutes later, the three men got up to walk across the street to a store named Kojak's. Crossing the street, they spotted Sutton's blue Buick parked near the store. Sutton sat in the driver's seat of the Buick and Derrick Perry, a friend of Sutton, sat in the passenger seat. Seeing Sutton in the Buick, Harrington said, "There go old boy [Sutton] right there."

The three men approached Sutton's car. After defendant and Harrington talked to Sutton for a short time, in order to "throw [Sutton] off guard," Harrington pointed a small chrome revolver at Sutton, and demanded "everything." Sutton removed some of his jewelry and money and gave it to Harrington. Sutton got out of the car, and defendant walked Sutton to the side of Kojak's store, where defendant took Sutton's shirt. Defendant and Sutton then returned to Sutton's car.

Defendant and Harrington forced Perry out of Sutton's car, then they got into the car with Sutton and Bowens. Sutton and Bowens offered inconsistent testimony at trial as to whether defendant or Harrington was holding the chrome revolver while the four men were in the car. However, the testimony of Sutton and Bowens was consistent that defendant and Harrington, working together, forced Sutton to call Turner and arrange a marijuana deal in order to entice Turner to meet them at a BP station on the other side of town. The testimony of Sutton and Bowens was also consistent that defendant and Harrington forced Sutton to drive Sutton's car to the BP station where Turner had agreed to meet Sutton.

When they arrived at a restaurant next to the BP station, the four men got out of the Buick. Harrington and Bowens got back in the Buick to be ready for a fast getaway, while defendant and Sutton walked together to Turner's car, a green Chrysler. Defendant and Sutton entered Turner's car, Sutton in the front passenger seat and defendant in the back seat. Inside the car, Turner handed Sutton a package of marijuana and requested payment.

Defendant then pointed the chrome revolver at Sutton and Turner, grabbed a book bag that contained currency and marijuana from the back seat, got out of the car, and began to run away. Turner got out of the car and chased defendant on foot. Defendant dropped the book bag during the chase, and Turner reached down to pick it up. When Turner reached down for the book bag, defendant fired two bullets from the chrome revolver at him. After firing the bullets, defendant re-joined Harrington and Bowens in Sutton's car. Harrington, with defendant and Bowens in the car, sped away to the east.

One of the bullets fired by defendant hit Turner, passing completely through his right leg. Turner testified that he did not immediately realize his leg had been hit by a bullet, but sensed only a "little sting" on impact. Turner refused assistance from a customer at the BP station. He carried the book bag approximately fifty feet to his car and then drove between two and three miles from the BP station to his home, where he opened a cabinet and hid the book bag containing currency and marijuana.

About a half hour after the shooting, Turner called a friend and asked to be driven to the hospital. On the way to the hospital, Turner and his friend saw an ambulance. Hoping to get a ride to the hospital in the ambulance, they followed it back to the BP station where Turner had been shot. When Turner arrived back at the BP station, Officer D.C. Davis of the Raleigh Police Department was conducting an investigation of the shooting. Turner limped over to where Officer D.C. Davis was standing and gave a brief statement about the shooting and the robbery which preceded it.

After giving his statement to Officer D.C. Davis, Turner, requested treatment for his leg from the paramedics who had come in the ambulance. The paramedics treated Turner and then the ambulance transported Turner to the hospital where he stayed approximately two hours. Hospital staff "took an x-ray and then squirted some water on [the wound]" and "gave [Turner] some pain pills." Turner testified at trial that he suffered pain from the gunshot wound for two or three weeks, but had no long term effects from the injury.

On 21 September 2004, almost three weeks after the robbery and shooting described above, Officer Raymond Davis of the Raleigh Police Department responded to a shooting on Hay Lane. Officer Raymond Davis had information that a person involved in that shooting was inside the house located at 609 Hay Lane. Upon searching the house, Officer Raymond Davis found defendant in a bedroom closet hiding under a pile of clothes, with marijuana in his pocket and a pistol nearby. Officer Raymond Davis arrested defendant.

On 25 October 2004, the Wake County Grand Jury indicted defendant for robbing Derrick Perry with a dangerous weapon, robbing J-Neaka Sutton with a dangerous weapon, second-degree kidnapping of J-Neaka Sutton, robbing Jamaal Turner with a dangerous weapon, and assaulting Jamaal Turner with a deadly weapon with intent to kill inflicting serious injury. Defendant was tried before a jury in Superior Court, Wake County, from 21 to 23 February 2006.

The jury found defendant guilty of: (1) second-degree kidnapping of Sutton, (2) robbing Turner with a firearm, and (3) assaulting Turner with a deadly weapon inflicting serious injury. Defendant was found not guilty of robbing Perry and Sutton with a firearm. Upon the jury verdict, the trial court sentenced defendant to consecutive sentences of 90 to 117 months for robbery with a dangerous weapon, 34 to 50 months for second-degree kidnapping, and 34 to 50 months for assault with a deadly weapon inflicting serious injury. Defendant appeals.

II. Issues

On appeal, defendant first contends that the trial court erred when it denied his motions to dismiss for insufficient evidence the charges of second-degree kidnapping and AWDWISI. Second, defendant contends that he is entitled to a new trial on all charges because the trial court erroneously admitted prejudicial evidence. Third, defendant contends that he is entitled to a new trial on both the charge of robbery with a firearm and on the charge of AWDWISI because the trial court gave improper jury instructions.

III. Error Assigned to Entire Trial

Defendant argues that he is entitled to a new trial on all charges, because the trial court committed reversible error by admitting unfairly prejudicial evidence of the circumstances surrounding his arrest. We disagree.

A criminal defendant is entitled to a new trial if the trial court committed "reversible error which denied the defendant a fair trial conducted in accordance with law." N.C. Gen.Stat. § 15A-1447(a) (2005). Reversible error is present when "there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached." State v. Williams, 322 N.C. 452,...