State v. Baldwin

• Decision Date: 07 April 2015
• Docket Number: No. COA14–878.,COA14–878.
• Citation: 240 N.C.App. 413,770 S.E.2d 167
• Parties: STATE of North Carolina v. Delandre' BALDWIN, Defendant.
• Court: North Carolina Court of Appeals

240 N.C.App. 413

770 S.E.2d 167

STATE of North Carolina

v.Delandre' BALDWIN, Defendant.

No. COA14–878.

Court of Appeals of North Carolina.

April 7, 2015.

Attorney General Roy A. Cooper III, by Assistant Attorney General Joseph L. Hyde, for the State.

Amanda S. Zimmer, Southern Pines, for defendant-appellant.

STROUD, Judge.

Delandre' Baldwin ("defendant") appeals from judgments entered upon jury verdicts finding him guilty of attempted first-degree murder, assault with a deadly weapon with the intent to kill and inflicting serious injury ("AWDWIKISI"), and assault inflicting serious bodily injury ("AISBI"). Defendant contends that the trial court erred in (1) denying his motion to require the State to elect the offense upon which it would proceed at trial; (2) admitting defendant's recorded interview with a police detective; (3) failing to instruct the jury on imperfect self-defense; (4) instructing the jury on wounds inflicted after the victim was felled; and (5) sentencing him for both the AWDWIKISI and AISBI offenses. We find no error in part, vacate in part, and remand for resentencing.

I. Background

On 23 September 2011, Lee Richardson and some of his family members were drinking alcohol together in a vacant lot adjacent to Richardson's mother's house. Around 2:00 p.m., defendant drove to the lot. Defendant bought Richardson a shot and a beer from a man selling alcohol out of his truck.

Shortly thereafter, defendant and Richardson began a fistfight. According to Richardson, the fight began because defendant insulted Richardson for grieving over the recent loss of his father. According to defendant, the fight began because Richardson demanded that defendant buy him another shot and another beer. The fight ended after about five minutes when others were able to separate the two men. After the fight, defendant told his cousin to drive him to his house so that he could get his gun to kill Richardson.

Defendant and his cousin drove away from the lot, and defendant returned about a minute and a half later. Defendant jumped out of his car while Richardson was walking to his mother's house. Richardson's mother told defendant that he should not shoot Richardson. Defendant responded that he was going to kill Richardson. Defendant walked up to Richardson and shot him in the abdomen with a handgun. Richardson fell to the ground, and defendant kicked him in the head. Defendant then drove away from the lot. After several days of treatment in the hospital, Richardson recovered from his injuries.

On or about 4 June 2012, a grand jury indicted defendant for attempted-first degree murder. See N.C. Gen.Stat. § 14–17 (2011). On or about 8 April 2013, a grand jury indicted defendant for AWDWIKISI and AISBI. See N.C. Gen.Stat. §§ 14–32(a), –32.4(a) (2011). On 9 August 2013, defendant moved to require the State to elect the offense upon which it would proceed at trial. At a hearing on or about 20 September 2013, the trial court orally denied this motion.

At trial, defendant testified that he never threatened to kill Richardson. Defendant testified that he returned to the lot after the fistfight to deliver marijuana to another man there. Defendant further testified that he did not pick up a gun from his house; rather, he kept a gun under the driver's seat of his car. Defendant further testified that, in their final confrontation, Richardson approached him and threatened him. Defendant testified that he was afraid that another fight would aggravate a preexisting injury. Defendant also testified that he intended to shoot Richardson in the leg "to slow him down" and denied that he had any intent to kill Richardson.

On or about 10 December 2013, a jury found defendant guilty of all charges. The trial court sentenced defendant to 180 to 225 months' imprisonment for the attempted first-degree murder conviction. The trial court consolidated the AWDWIKISI and AISBI convictions and sentenced defendant to 67 to 90 months' imprisonment for those convictions. The trial court ordered that defendant serve these sentences consecutively. Defendant gave timely notice of appeal in open court.

II. Motion to Require the State to Elect

A. Standard of Review

We review double jeopardy issues de novo. State v. Williams, 201 N.C.App. 161, 173, 689 S.E.2d 412, 418 (2009).

B. Analysis

Defendant contends that the trial court erred in denying his motion to require the State to elect the offense upon which it would proceed at trial. Defendant asserts that allowing the State to proceed on the attempted first-degree murder offense and the AWDWIKISI offense subjected him to double jeopardy.

The Fifth Amendment of the U.S. Constitution provides that no person shall be "subject for the same offence to be twice put in jeopardy of life or limb [.]" U.S. Const. amend. V. The right to be free from double jeopardy is also rooted in article 1, section 19 of the North Carolina Constitution as "the law of the land" and in our common law. State v. Ezell, 159 N.C.App. 103, 106, 582 S.E.2d 679, 682 (2003) ; see also N.C. Const. art. 1, § 19. The double jeopardy clause prohibits (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple convictions for the same offense. Ezell, 159 N.C.App. at 106, 582 S.E.2d at 682.

In State v. Tirado, the North Carolina Supreme Court held that the trial court had not subjected the defendants to double jeopardy when it convicted them of attempted first-degree murder and AWDWIKISI, offenses arising from the same conduct. 358 N.C. 551, 579, 599 S.E.2d 515, 534 (2004), cert. denied, Queen v. North Carolina, 544 U.S. 909, 125 S.Ct. 1600, 161 L.Ed.2d 285 (2005). Following Tirado, we hold that the trial court did not subject defendant to double jeopardy when it denied his motion to require the State to elect between the attempted first-degree offense and the AWDWIKISI offense. See id., 599 S.E.2d at 534.

III. Admission of Evidence

A. Preservation of Error

Defendant contends that the trial court abused its discretion in admitting defendant's recorded interview with a police detective, because many statements in the interview were inadmissible under North Carolina Rule of Evidence 403. See N.C. Gen.Stat. § 8C–1, Rule 403 (2013). At the trial court, defendant made a timely objection to the interview's admission pursuant to Rule 403. The trial court admitted the interview and instructed the jury not to consider any questions or statements made by the detective for the truth of the matter asserted.

Relying on State v. Howard, the State contends that defendant failed to preserve this issue, because he makes new arguments on appeal for why the interview is inadmissible under Rule 403. See ––– N.C.App. ––––, ––––, 742 S.E.2d 858, 860 (2013), aff'd per curiam, 367 N.C. 320, 754 S.E.2d 417 (2014). But Howard is distinguishable. There, the defendant objected under Rule 403 at trial but argued under Rule 404(b) on appeal. Id. at ––––, 742 S.E.2d at 860. In contrast, here, defendant has not changed the specific ground for his objection. Accordingly, we hold that defendant has preserved this issue. See N.C.R.App. P. 10(a)(1).

B. Standard of Review

We review a trial court's Rule 403 determination for an abuse of discretion. State v. Beckelheimer, 366 N.C. 127, 130, 726 S.E.2d 156, 159 (2012) ; see also N.C. Gen.Stat. § 8C–1, Rule 403. "An abuse of discretion results where the court's ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision." State v. Ward, 364 N.C. 133, 139, 694 S.E.2d 738, 742 (2010) (quotation marks omitted).

C. Analysis

Defendant contends that the trial court abused its discretion in admitting defendant's recorded interview with the detective, in contravention of Rule 403. See N.C. Gen.Stat. § 8C–1, Rule 403. Rule 403 provides: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Id. "Unfair prejudice" means "an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, [on] an emotional one." State v. Cunningham, 188 N.C.App. 832, 836, 656 S.E.2d 697, 700 (2008).

Defendant argues that the recorded interview contained statements that had an undue tendency to suggest decision on an improper basis, specifically defendant's "own assessment of his actions and belief that he deserved to go to jail." But this basis for decision is not improper, and the fact that this evidence is prejudicial to defendant does not make it unfairly so. See State v. Lambert, 341 N.C. 36, 50, 460 S.E.2d 123, 131 (1995) (holding that the defendant's admission of guilt was highly probative and not unfairly prejudicial); Cunningham, 188 N.C.App. at 836, 656 S.E.2d at 700. We hold that the evidence's probative value was not substantially outweighed by the danger of unfair prejudice. See N.C. Gen.Stat. § 8C–1, Rule 403. Accordingly, we hold that the trial court did not violate Rule 403 in admitting this evidence.

III. Jury Instruction on Imperfect Self–Defense

A. Standard of Review

Defendant next contends that the trial court committed plain error in instructing the jury on attempted first-degree murder but failing to instruct the jury on imperfect self-defense and the lesser-included offense of attempted voluntary manslaughter. "For an appellate court to find plain error, it must first be convinced that, absent the error, the jury would have reached a different verdict. The defendant has the burden of showing that the error constituted plain error." State v. Wade, 213 N.C.App. 481, 493, 714 S.E.2d 451, 459 (2011), disc. rev. denied, 366 N.C. 228, 726 S.E.2d 181 (2012) (citations and quotation marks omitted). Thus, on plain error review, the defendant must first demonstrate that ...