State v. Everette

• Decision Date: 09 November 2007
• Docket Number: No. 452A05.,452A05.
• Citation: State v. Everette, 652 S.E.2d 241, 361 N.C. 646 (N.C. 2007)
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Haseen Herman EVERETTE.

652 S.E.2d 241

STATE of North Carolina v.Haseen Herman EVERETTE.

No. 452A05.

Supreme Court of North Carolina.

November 9, 2007.

Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of the Court of Appeals, 172 N.C.App. 237, 616 S.E.2d 237(2005), finding no error in part in judgments entered 20 February 2003 by Judge Jerry R. Tillett in Superior Court, Pitt County, but remanding the case for resentencing.On 19 December 2006, the Supreme Court allowed the state's petition for discretionary review and defendant's petition for discretionary review as to an additional issue.Heard in the Supreme Court 7 May 2007.

Roy Cooper, Attorney General, by Daniel S. Johnson, Special Deputy Attorney General, for the state-appellee/appellant.

Richard E. Jester, Louisburg, for defendant-appellant/appellee.

MARTIN, Justice.

This case represents the most recent chapter in our jurisprudence concerning the finite number of cases to which Blakely v. Washington,542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403(2004), applies, but North Carolina's remedial sentencing legislation does not.We conclude that no error occurred in defendant's trial and that defendant is not entitled to a new sentencing hearing.

The state's evidence at trial tended to show the following: From 10:30 p.m. on 3 November 2001 until 2:30 a.m. on 4 November 2001, Officer Charles Savage of the Greenville Police Department was working as a security guard at a downtown Greenville store.He was off duty, but was wearing his police uniform at the time.During his shift, Officer Savage repeatedly came across defendant and several young women loitering in the store parking lot, and he told defendant to leave on four occasions.

On his way home after his shift ended, Officer Savage observed several young women fighting in the street in front of BW-3, a restaurant in downtown Greenville.He recognized three of them as having been with defendant earlier in the evening.Officer Savage broke up the fight, and as he dispersed the crowd, he saw defendant standing a couple of feet away from him.Defendant said three times, "F___ the police."Officer Savage responded that defendant needed to "shut [his] mouth and disappear or [defendant would be] going to jail."

Around this time, Officer William Holland, Officer Keith Knox, and Sergeant John Curry arrived at the scene to assist Officer Savage.Officer Holland also told defendant to leave.Officer Holland escorted defendant across the street.Defendant walked slowly, looking back several times.

At this time, a black vehicle pulled up and defendant entered the front passenger seat.The vehicle began to depart as Officer Holland walked back across the street.Officer Holland then heard gunshots, turned, and saw defendant"hanging out of the top of the sunroof of that vehicle shooting" in his direction.Officer Knox and Sergeant Curry had witnessed Officer Holland walking defendant across the street, and they too heard gunshots and saw defendant standing up through the sunroof of the vehicle and firing shots.Although Officer Savage did not personally see defendant firing shots, he heard the gunshots and saw smoke in the air.As Officer Holland chased the vehicle on foot, he heard "bullets . . . impacting the wall on the side of [the street]" and the sound of shattering glass.Officer Holland eventually lost sight of the vehicle.

Officer Knox later found seven shell casings at the scene.Of the seven or more shots defendant fired, several resulted in serious injury to persons and property.Jonathan Williams was eating at BW-3 around 2:30 a.m. when he noticed the young women fighting outside the restaurant.He went outside to observe the commotion.Williams then "heard the shots and ran for the front door."He was struck by a bullet in the lower midsection of his left thigh, a painful injury that necessitated his temporary withdrawal from college and delayed his graduation.Williams was unable to identify the shooter, but saw a dark-colored vehicle and puffs of smoke.

Howard Howell was in downtown Greenville that night performing with a band at a nightclub.Around 2:30 a.m., he left the nightclub and went outside.After hearing what sounded to him like a "firecracker,"he was immediately hit by a bullet in the stomach.Howell survived, but endured several months of painful recovery.

Brad Herring was also in downtown Greenville that night at the Flying Salsa, a restaurant he owned.Herring had only recently ended his practice of keeping the Flying Salsa open until 3:00 a.m. and was staying after closing that night to estimate how much business he was losing by closing earlier.At 2:30 a.m., the lights at the Flying Salsa were not turned off, but were instead turned "down."Herring "heard a sound that sounded like a chain hitting a big metal sheet" and immediately left the Flying Salsa.The next morning when he opened the Flying Salsa, Herring found "glass everywhere" and "jackets and slugs from two bullets."He discovered that two of the windows at the Flying Salsa had holes in them.

Defendant presented no evidence at trial, and a jury found him guilty of two counts of assault with a deadly weapon inflicting serious injury, one count of assault with a firearm on a law enforcement officer, and one count of discharging a firearm into occupied property.At sentencing, the trial court found the following statutory aggravating factors as to the two charges of assault with a deadly weapon inflicting serious injury and the charge of assault with a firearm on a law enforcement officer: (1) the offense was committed to hinder the lawful exercise of a governmental function or the enforcement of laws; (2)defendant knowingly created a great risk of death to more than one person by means of a weapon or device which would normally be hazardous to the lives of more than one person; and (3)defendant committed the offense while on pretrial release.

The trial court found as a nonstatutory aggravating factor that "defendant made repeated acts which were more than required for the offense."As to the charge of discharging a weapon into occupied property, the trial court also found as a nonstatutory aggravating factor that "defendant shot more than one time into occupied property in a reckless or hazardous manner."The trial court found as a mitigating factor that "defendant supports [his] family."The trial court sentenced defendant in the aggravated range to four active, consecutive terms of thirty-six to fifty-three months.

Defendant appealed to the Court of Appeals.While his appeal was pending, the United States Supreme Court issued its decision in Blakely v. Washington,542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403(2004), which held that in most instances, aggravating factors increasing a defendant's sentence must be submitted to a jury and proved beyond a reasonable doubt.On defendant's motion, the Court of Appeals ordered the parties to brief the Blakely issue.SeeState v. Blackwell,361 N.C. 41, 44, 638 S.E.2d 452, 454-55(2006)(applyingBlakely to the defendant's case when it was on direct appeal at the time Blakely was issued), cert. denied, ___ U.S. ___, 127 S.Ct. 2281, 167 L.Ed.2d 1114(2007).A divided panel of the Court of Appeals found no error in defendant's convictions, but found structural error in defendant's sentences and remanded for resentencing in accordance with State v. Allen,359 N.C. 425, 615 S.E.2d 256(2005), withdrawn,360 N.C. 569, 635 S.E.2d 899(2006).State v. Everette,172 N.C.App. 237, 616 S.E.2d 237(2005).The dissenting judge concluded that the evidence was insufficient to support defendant's conviction for discharging a firearm into occupied property, but concurred with the majority in all other respects.Id. at 248-49, 616 S.E.2d at 244-45.

Defendant appealed to this Court on the basis of the dissenting opinion.We subsequently allowed the state's petition for discretionary review of the Blakely issue.We also allowed defendant's petition for discretionary review of the additional issue as to whether defendant was entitled to a new sentencing hearing to allow the trial court to reweigh the aggravating and mitigating factors.We now address these issues in turn.

Defendant first argues that the trial court erred by denying his motion to dismiss and subsequent motion to set aside the verdict on the charge of discharging a firearm into occupied property in violation of N.C.G.S. § 14-34.1.At the time of defendant's offenses, this section stated: "Any person who willfully or wantonly discharges or attempts to discharge . . . [a] firearm into any building . . . while it is occupied is guilty of a Class E felony."N.C.G.S. § 14-34.1(2001)(amended 2005).To support a conviction under this statute, the defendant must have had "`reasonable grounds to believe that the building might be occupied by one or more persons.'"State v. James,342 N.C. 589, 596, 466 S.E.2d 710, 714-15(1996)(quotingState v. Williams,284 N.C. 67, 73, 199 S.E.2d 409, 412(1973)).Defendant argues that the state failed to present sufficient evidence that he had reasonable grounds to believe that the Flying Salsa might be occupied when he fired into the building.

It is well settled that "[i]n ruling on a motion to dismiss, the trial court must determine whether there is substantial evidence of each essential element of the crime and whether the defendant is the perpetrator of that crime."State v. Harris,361 N.C. 400, 402, 646 S.E.2d 526, 528(2007)(citingState v. McNeil,359 N.C. 800, 803, 617 S.E.2d 271, 273(2005))."Substantial evidence is that amount of relevant evidence necessary to persuade a rational juror to accept a conclusion."Id.(citingMcNeil,359 N.C. at 804, 617 S.E.2d at 274)."When reviewing claims of sufficiency of the evidence, an appellate court must . . . view[] all the evidence in the light most favorable to the State and resolv[e] all contradictions and discrepancies...