State v. Jones
| Decision Date | 02 November 2021 |
| Docket Number | No. COA20-173,COA20-173 |
| Citation | 866 S.E.2d 509 |
| Parties | STATE of North Carolina v. Devonte Glenn JONES, Defendant. |
| Court | North Carolina Court of Appeals |
Attorney General Joshua H. Stein, by Senior Deputy Attorney General Amar Majmundar, for the State.
Daniel J. Dolan, for defendant.
¶ 1 Devonte G. Jones ("Defendant") appeals from an amended judgment1 entered following a jury trial. The judgment included two counts of each of the following offenses: attempted first degree murder, assault with a deadly weapon with intent to kill inflicting serious injury, and discharging a weapon into occupied property resulting in serious bodily injury. Defendant argues the trial court erred in admitting testimony of a witness for the State who refreshed his recollection using a letter he had previously written because the witness used the letter as a testimonial crutch rather than a mere aid. Defendant also argues the trial court erred by admitting the letter into evidence as a prior consistent statement that corroborated the witness's testimony. Because the witness was not merely reciting from the refreshing aid and the letter was properly independently admitted as a prior consistent statement, we find no error as to the letter. In addition to the letter, Defendant argues the trial court plainly erred when instructing the jury on attempted first degree murder. Because Defendant has not shown the alleged errors probably impacted the jury verdict, we also find no error as to the jury instructions. Thus, we conclude there was no error on substantive matters in this case. However, because Defendant correctly indicates the amended judgment contains a clerical error that lists attempted first degree murder as a class B1 felony rather than class B2 felony, we remand to the trial court for correction of this error.
¶ 2 The State's evidence tended to show that on the night of 9 September and the early morning hours of 10 September 2017, Leroy Brickhouse, his cousin Marlon Taylor, his co-worker Mike Jeffreys, and others were going out in downtown Raleigh to celebrate Taylor's upcoming birthday. During the night out, the group got into a verbal altercation with another group of people that included Defendant. Police in the area quickly intervened and broke up the altercation. About 45 minutes after the altercation, Brickhouse and Taylor returned to their cars. As Brickhouse's coworker was saying goodnight, another car came and obstructed their cars. Defendant exited the other car and began shooting with a semi-automatic rifle at the vehicle with Brickhouse and Taylor inside, as well as at the co-worker's vehicle. The co-worker returned to his vehicle and escaped. While Brickhouse drove away, Defendant continued to fire at his vehicle, and both Brickhouse and Taylor were shot. Brickhouse was shot in the chest, and Taylor was shot in the head. Defendant was arrested for the shootings and charged with two counts each—one set for Brickhouse and one set for Taylor—of: Attempted First Degree Murder, Assault with a Deadly Weapon with the Intent to Kill Inflicting Serious Injury (AWDWIKISI), Discharging a Firearm into an Occupied Vehicle Resulting in Serious Bodily Injury, Conspiracy to Commit Attempted First Degree Murder, Conspiracy to Commit AWDWIKISI, and Conspiracy to Commit Discharging a Firearm into an Occupied Vehicle Resulting in Serious Bodily Injury.
¶ 3 While in jail awaiting trial, Defendant shared a cell block with Ronald Cameron. Defendant and Cameron talked about Defendant's case, and Cameron wrote a letter to the district attorney detailing their conversations. In the letter, Cameron recounted how he knew Defendant as well as that Defendant told him Defendant was involved with a shooting in Raleigh with an AK-47, Defendant had God with him or he would be facing two murder charges, and that Defendant had asked Cameron to dispose of the weapon for him if Cameron was able to get released on bond.
¶ 4 At trial, Cameron initially testified Defendant told him Defendant was charged with shooting two guys, one in the head and one in the chest, and that God was with him or Defendant would be charged with murder. At that point, Cameron initially said, "I don't think so, sir" when asked if Defendant had mentioned further details. Cameron then mentioned he had written a letter to the district attorney's office detailing his conversations with Defendant. Over Defendant's objections, including that Cameron did not "remember anything else about this" and therefore could not use the letter to refresh his recollection, the trial court allowed the State to use the letter to refresh Cameron's memory. After reading the letter, Cameron said it had refreshed his recollection "[q]uite a bit" such that he "remember[ed] the things [in the letter] from the conversation that me and him [Defendant] had." Cameron then testified he recalled Defendant had said Defendant used an AK-47 in the shooting. Following that, Cameron twice started answers by referencing that he wrote in the letter certain information, was told not to just say what was written, and then said, "I can't say then" when asked if there was any other information that he independently remembered apart from the letter. Following that exchange, Cameron testified further about his conversations with Defendant without additional reference to the letter. The further testimony included Cameron recounting the street name—and later on cross examination a building landmark—where Defendant told him the gun used in the shooting could be found, details which were not included in the letter to the district attorney.
¶ 5 After Cameron finished testifying, the trial court found the letter was properly used to refresh Cameron's recollection. The trial court also admitted the letter itself into evidence, over Defendant's objections, on the grounds that the letter was a prior consistent statement that could be admitted to corroborate Cameron's testimony.
¶ 6 Defendant presented an alibi defense at trial. Defendant admitted he had been in the verbal altercation earlier in the night with the group that included Brickhouse and Taylor. Following the police dispersing the groups involved in the altercation, Defendant spent time searching for his cell phone after discovering it was lost. Defendant testified he then went to his sister's house and did not know any details about the shooting in downtown Raleigh until he was arrested. Defendant also specifically denied that he told Cameron that he used an AK-47 in the shooting and denied that he asked Cameron to get rid of the gun for him. Defendant's sister and her friend also testified Defendant left Raleigh and went to his other sister's house, and the other sister testified Defendant came and slept at her house.
¶ 7 Following Defendant's case and closing arguments, the trial court instructed the jury. The trial judge primarily relied on the pattern jury instructions when crafting the instructions used in this case. He also explained to the parties that his plan was to give each instruction only once even though there were two counts of each charge, although he made clear he was "glad to hear your [the parties’] suggestions on this." Aside from asking to have language relating to an alibi defense read during the instructions on each substantive offense rather than only the first one, which the trial court rejected, Defendant did not offer any suggestions, corrections, or objections to the instructions. Defendant also did not object after the instructions were read to the jurors.
¶ 8 The jury returned verdicts finding Defendant guilty of all charges. The trial judge arrested judgment as to all six conspiracy counts and entered judgment on the remaining counts. The trial judge amended the initial judgment to correct the classification of attempted first degree murder from a Class B1 / Level One judgment to a Class B2 / Level One judgment, and Defendant was sentenced to 140 to 180 months imprisonment. However, while the first page of the amended judgment covering 17CRS221514 reflects attempted first degree murder as a class B2 felony, the last page lists the attempted first degree murder conviction in 17CRS221515 as a class B1 felony.
¶ 9 Defendant gave oral notice of appeal following the announcement of the judgment and filed written notice of appeal following entry of the written judgment. However, Defendant did not file any additional notice of appeal following the entry of the amended judgment. See supra footnote 1 (). Defendant filed a petition for writ of certiorari "[o]ut of an abundance of caution" should we "determine that he has lost his appeal of right."
¶ 10 Petitions for writs of certiorari can be issued "in appropriate circumstances" to permit review of judgments "when the right to prosecute an appeal has been lost by failure to take timely action." N.C. R. App. P. 21(a)(1) ; see also N.C. Gen. Stat. § 15A-1448 (2019) (). In turn, an appeal in a criminal action may be taken by giving oral notice of appeal at trial or by filing a written notice of appeal within fourteen days after entry of the judgment being appealed. N.C. R. App. P. 4(a). Here, Defendant did not renew an oral notice of appeal nor file a written notice of appeal following the entry of the amended judgment, and his petition highlights that absence as the reason a writ of certiorari may be necessary.
¶ 11 To the extent a petition for writ of certiorari is necessary, we grant it in our discretion. In State v. Briggs , this Court faced a similar issue where the defendant failed to give notice of appeal from an amended judgment. 249 N.C. App. 95, 97, 790 S.E.2d 671, 673 (2016). The State did not address the issue,...
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Hearsay rule
...Carolina Rule 804(b)(1) North Dakota Rule 804(b)(1) Ohio Rule 804(b)(1) Oklahoma Rule 804(b)(1) Oregon Rule 804(b)(1) 29 State v. Jones , 866 S.E.2d 509 (Court of Appeals of North Carolina, 2021). In a trial for attempted murder, a letter written by a witness, sent to the prosecutor, and us......