State v. Brinson

• Decision Date: 06 October 1994
• Docket Number: No. 189A93,189A93
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Dean BRINSON.

Page 822

448 S.E.2d 822

337 N.C. 764

STATE of North Carolina v. Dean BRINSON.

No. 189A93.

Supreme Court of North Carolina.

Oct. 6, 1994.

Michael F. Easley, Atty. Gen. by Jo Anne Sanford, Sp. Deputy Atty. Gen., and William B. Crumpler, Associate Atty. Gen., for the State-appellant.

Terry W. Alford, Spring Hope, for defendant-appellee.

EXUM, Chief Justice.

On 4 March 1991 defendant was indicted for assault with a deadly weapon with intent to kill inflicting serious injury. On 10 May 1991 a jury found defendant guilty of assault with a deadly weapon inflicting serious injury. After finding aggravating factors, the court sentenced defendant to eight years imprisonment. A divided panel of the Court of Appeals vacated this judgment and remanded for a new trial. We find no error in the trial court proceedings and reverse.

At trial the State introduced evidence showing that defendant and John Delton Eason were cellmates at the Nash County Jail on the night of 25 October 1990. Eason was playing checkers with another inmate when defendant began yelling to some females in another cell. Eason told defendant to stop yelling so that he and other inmates would not lose their privileges. Defendant approached Eason, who arose as defendant neared. They stood facing each other for a couple of minutes. Eason turned, but as he did so defendant struck him in the jaw and put him in a full nelson hold. ¹

Defendant then proceeded to slam Eason's head against the bars, at which time Eason heard his neck "pop." Defendant then slammed Eason's head on the floor several times. A jailor found Eason on the floor, lying on his stomach with his neck twisted and scratches on his face. Eason's neck was broken, resulting in paralysis below the chest.

Based on this evidence the jury found defendant guilty of assault with a deadly weapon inflicting serious injury. After finding factors in aggravation and none in mitigation, the trial court sentenced defendant to eight years imprisonment. The majority of the Court of Appeals panel reversed on the ground that the trial court improperly permitted the State to amend the indictment. In the event that the issue might recur at the new trial, the majority also held that a non-statutory aggravating factor found by the trial judge was improper. Judge Cozort dissented on the grounds that the amendment was neither improper nor prejudicial and that the non-statutory aggravating factor was properly considered.

I.

The first issue presented is whether the trial court committed prejudicial error in permitting the State to amend the indictment. The original indictment stated that defendant

unlawfully, willfully and feloniously did assault John Delton Eason, Jr. with his fists, a deadly weapon, by hitting John Delton Eason, Jr. over the body with his fists and slamming his head against the cell bars and floor. The assault was intended to kill and resulted in serious injury, a broken neck, which required emergency medical treatment and hospitalization and which left the victim paralyzed. This act was in violation of [N.C.G.S. § 14-32(A) (1993) ]².

On the day of trial before jury selection began, the State moved to amend the indictment. The amended indictment stated that defendant

unlawfully, willfully and feloniously did assault John Delton Eason, Jr. with his fists by hitting John Delton Eason, Jr. over the body with his fists and slamming his head against the cell bars, a deadly weapon, and floor. The assault was intended to kill and resulted in serious injury, a broken neck, which required emergency medical treatment and hospitalization and which left the victim paralyzed. This act was in violation of the above referenced statute.

Defendant objected, contending that the grand jury should first determine whether a jail cell or a floor is a deadly weapon. Defendant claimed that he was not prepared to prove that the jail cell and floor were not deadly weapons. The trial court granted the State's motion and continued the trial to the next morning to give counsel for defendant additional time to prepare.

Defendant contends that it was error for the court to permit the State to prosecute defendant on the amended indictment. We disagree.

N.C.G.S. § 15A-923(e) provides that "a bill of indictment may not be amended." This statute, however, has been construed to mean only that an indictment may not be amended in a way which "would substantially alter the charge set forth in the indictment." State v. Carrington, 35 N.C.App. 53, 240 S.E.2d 475, disc. rev. denied, 294 N.C. 737, 244 S.E.2d 155 (1978). Thus, for example, where time is not an essential element of the crime, an amendment relating to the date of the offense is permissible since the amendment would not "substantially alter the charge set forth in the indictment." State v. Price, 310 N.C. 596, 598-99, 313 S.E.2d 556, 559 (1984).

We conclude the amendment to the indictment was permissible because it did not substantially alter the charge in the original indictment. The original indictment was sufficient to allege that the cell floor and bars were deadly weapons.

N.C.G.S. § 15A-924(a)(5) states:

A criminal pleading must contain [a] plain and concise factual statement in each count which, without allegations of an evidentiary nature, asserts facts supporting every element of a criminal offense and the defendant's commission thereof with sufficient precision clearly to apprise the defendant or defendants of the conduct which is the subject of the accusation.

"[T]he purpose of an indictment ... is to inform a party so that he may learn with reasonable certainty the nature of the crime of which he is accused...." State v. Coker, 312 N.C. 432, 437, 323 S.E.2d 343, 347 (1984).

With regard to indictments "seeking to charge a crime in which one of the elements is the use of a deadly weapon," we have held that it is sufficient to "(1) name the weapon and (2) either to state expressly that the weapon used was a 'deadly weapon' or to allege such facts as would necessarily demonstrate the deadly character of the weapon." State v. Palmer, 293 N.C. 633, 639-40, 239 S.E.2d 406, 411 (1977).

With respect to whether the original indictment properly alleged that the cell bars and floor were deadly weapons, the first prong of Palmer is met as the original indictment specifically referred to the cell bars and cell floor. The second prong of Palmer is likewise met as the indictment stated that the victim's broken neck and paralysis resulted from the "assault," which included defendant's "slamming his [the victim's] head against the cell bars and floor." This recitation of facts "necessarily demonstrate[s] the deadly character of" the cell bars and floor. The original indictment's statement that defendant "slamm[ed] his head against the cell bars and floor" with the intent to kill resulting in a broken neck and paralysis is drafted with "sufficient precision clearly to apprise the defendant" that the cell bars and floor were alleged to be deadly weapons. N.C.G.S. § 15A-924(a)(5) (1988). If counsel for defendant was unprepared to counter this allegation at trial, it was through no deficiency in the indictment.

In attempting to establish the materiality and prejudice of the amendment, defendant emphasizes that the original indictment specifically stated that the fists were deadly weapons. Identifying fists as deadly weapons, however, does not preclude the State from identifying at trial other items as deadly weapons where the indictment both describes them and "necessarily demonstrates[s]" their deadly character. Presumably the fists were identified as deadly weapons as it might not have been clear from the entire indictment, without those words, whether the fists were used as deadly weapons. Since, however, the indictment clearly stated the deadly manner in which the floor and bars were used, it was not necessary under Palmer to allege in the indictment that they were deadly weapons. Also, the indictment said that the victim was assaulted with defendant's "fists, a deadly weapon, by ... slamming [the victim's] head against the cell bars and floor." Thus, the indictment clearly linked the deadly nature of the fists to their use in slamming the victim into the bars. Whether an item is deadly often depends entirely on its use. See, e.g., State v. Strickland, 290 N.C. 169, 177-78, 225 S.E.2d 531, 538 (1976) (plastic bag may be a deadly weapon when used to suffocate victim).

The original indictment, then, was sufficient to allege that both the fists of defendant and the cell bars and floor were deadly weapons. Thus, under the original indictment the State properly may have asserted at trial that defendant's fists, the cell floor, the cell bars, or a combination thereof were the deadly weapons which caused the victim's serious injury. Since the amendment to the indictment was not necessary to permit the jury to consider the cell bars and floor as deadly weapons, the amended...