State v. Lyons
| Decision Date | 19 March 1991 |
| Docket Number | No. 9014SC490,9014SC490 |
| Citation | 401 S.E.2d 776,102 N.C.App. 174 |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina v. Otis Reginald LYONS. |
Lacy H. Thornburg, Atty. Gen. by Charles J. Murray, Sp. Deputy Atty. Gen., Raleigh, for State.
Malcolm Ray Hunter, Jr., Appellate Defender by M. Patricia DeVine, Asst. Appellate Defender, Raleigh, for defendant-appellant.
On 27 November 1989, defendant was tried on charges of malicious assault in a secret manner with a deadly weapon with intent to kill, assault with a deadly weapon, conspiracy to commit the offense of assault with a deadly weapon with intent to kill inflicting serious injury, and two counts of assault with a deadly weapon with intent to kill inflicting serious injury. The jury returned verdicts of guilty of all charges except the two counts of assault with a deadly weapon with intent to kill inflicting serious injury and on these two counts defendant was found not guilty. The trial court imposed a sentence of twenty years for secret assault. The other assault charge and the conspiracy charge were consolidated and the court imposed a sentence of ten years to run at the expiration of the twenty-year sentence. Defendant appeals.
Defendant was arrested on 19 March 1989, and first indicted on 1 May 1989. On 19 July 1989, and upon defendant's motion for a speedy trial under the Speedy Trial Act, former N.C.G.S. § 15A-701 et seq., Judge Howard E. Manning issued an "Order for Prompt Trial," providing that defendant's case be brought to trial on or before 1 September 1989 or in the alternative that the case be dismissed. On 31 August 1989, defendant and the State agreed to continue the case to 5 September 1989 in order to start the case on the Tuesday after a three-day holiday. Judge Joe Freeman Britt allowed the continuance. On 5 September 1989, before Judge Orlando F. Hudson, the State moved to continue the case to 3 October 1989. The State also moved to join two codefendants with defendant's trial. Judge Hudson allowed joinder, and further ruled that by consenting to a continuance on 31 August 1989 defendant "waived any rights and protection under the order of July 19, 1989, requiring that this case be tried by September 1, 1989" and that "the defendant has waived any right to a speedy or prompt trial on the trial of these cases." Defendant excepted to this ruling. On 2 October 1989, before Judge Britt, defendant moved under the Speedy Trial Act to dismiss the case for denial of a speedy trial. Defendant's motion asserted in part:
6. That the Defendant and counsel excepted to the ruling of Judge Hudson. The case was set to be brought on before Judge Britt on October 2, 1989.
7. That the continuance granted by Judge Hudson was in violation of the Defendant[']s rights to a speedy trial under the Constitution of the United States, the Constitution of the State of North Carolina, and was in direct and specific contravention of the Order issued by Judge Howard E. Manning, Jr., on July 19, 1989, as modified with the consent of the Defendant to allow trial commence on or before September 5, 1989.
Judge Britt dismissed the case without prejudice and new indictments were returned on 16 October 1989 charging defendant with the same offenses charged in the original indictments.
The evidence introduced by the State at trial tends to show that on the evening of 19 March 1989, one Danny McKay was standing outside a nightclub with a "fraternity brother" when a car going past nearly hit him. The car stopped and defendant got out of the car. Defendant approached McKay and told him to "get the fuck out of the street." Defendant then "pointed his hand in my fraternity brother's face and then at that point my fraternity brother knocked his hand out of his face and then [defendant] reached in his car and told his partner to give him the gun." A "very large handgun" was handed to defendant from inside the car. Defendant then got back into his car and drove away. McKay went back inside the club and told off-duty police officers, who were working as security officers in the club at the time, what had happened outside.
Ten to fifteen minutes later, defendant entered the club. McKay approached defendant and asked defendant why he had pulled a gun on him. "[Defendant] said get the fuck out of my face and I struck him and hit him." McKay and defendant began fighting. The fight was broken apart and defendant was taken outside by the security guards while McKay was retained inside the club with his fraternity brothers. While one of the security guards was questioning defendant about the fight, defendant pointed at McKay and said, "That's okay, wait, I'm going to burn you; I'm going to burn you." Another witness testified that she heard defendant say, The guards kept McKay and his fraternity brothers at the club until defendant had time to leave. McKay did not see defendant again that night.
A few minutes after defendant left the club, approximately ten fraternity brothers, including McKay, started walking down the street away from the club. Suddenly, they heard shots being fired. Though the number of shots varied from witness to witness, it appears from the testimony that two to six shots were fired. McKay was not hit. However, two of the fraternity brothers, Douglas Jones and Preston Jones, were wounded and later recovered.
Defendant's girlfriend, Lynette Osborne, testified that she and a friend, Toni Lowery, were standing outside when defendant exited the club after his fight with McKay. Defendant's friends, Tim Little and Wallace Daye, also appeared outside the club about that time. Daye went into the club, then back outside to defendant and said, "I seen 'em ... I seen who they is." Osborne, Lowery and defendant then walked to the parking lot and got in defendant's car. A few minutes later Daye approached the car, opened the car door and said, "Here they come Bop (defendant's nickname), we're fixing to get them." Osborne saw Daye loading a gun. Osborne jumped from the car and saw Little hiding some distance away. Little was also holding a gun. Osborne testified that Little fired his gun twice and Daye fired once.
Another witness, Tonya Weaver, testified that she was at the club that night. She and a friend were walking a short distance ahead of the fraternity brothers as they left the club. Weaver saw defendant, Little and Daye running from the parking lot "[a]nd they ran past me and [defendant] brisked me." Weaver also saw a silver handle, which appeared to her to be a gun handle, sticking out of defendant's jacket pocket. Defendant, Little and Daye ran into some bushes nearby. The fraternity brothers approached and "[t]hey walked right into the gunshots." Weaver heard approximately five gunshots. She was also able to see the flash from the guns as they fired, and testified that she knows more than two guns were being fired.
A police officer testified that he responded to a call reporting a disturbance at the club. After checking the gunshot victims, he was told by another officer that there was a car in the parking lot which was believed to be the car of the people who did the shooting. The officers checked the inside of the car and found two pieces of paper with defendant's name written on them. They also found a .45-caliber automatic handgun on the rear passenger floorboard.
Defendant offered evidence, including his own testimony, tending to show that McKay provoked the initial confrontation with defendant in the street in front of the club, though defendant admits he got a handgun from Daye who was in defendant's car. He also admits slapping McKay. After the first confrontation with McKay, defendant went somewhere else and had approximately nine mixed drinks and then returned to the club. He had two handguns in his car, his own and one belonging to Little. While defendant testified that he did not actually see who did the shooting, several of defendant's witnesses stated that Little and Daye fired the shots.
At the end of all the evidence, defendant's motion to dismiss the charges was denied.
The issues are: (I) whether the trial court erred by dismissing, without prejudice, the charges against defendant; (II) whether the trial court erred in denying defendant's motion to dismiss the charges of conspiracy and maliciously assaulting in a secret manner in that there was insufficient evidence of the essential element of specific intent to kill; (III) whether the trial court erred in denying defendant's motion to dismiss the conspiracy charge in that there was insufficient evidence of a conspiracy; and (IV) whether the trial court erred by instructing the jury that a verdict of guilty should be returned if the jury found that defendant maliciously assaulted in a secret manner "Preston Jones and/or Douglas Jones."
Defendant first argues that Judge Britt erred in dismissing without prejudice the charges against defendant. Defendant contends that under N.C.G.S. § 15A-703(a) (1988) of the Speedy Trial Act, the trial court must make findings of fact from which the trial court can conclude whether defendant's statutory right to a speedy trial has been violated. We agree with the State's assertion that the Speedy Trial Act was repealed 1 October 1989, the day before Judge Britt's ruling, and that the statutory mandates would appear to be irrelevant to this case. Without so deciding, however, we find the determinative issue to be whether Judge Britt's ruling has any effect in this case in light of Judge Hudson's earlier ruling that defendant had waived his right to a speedy trial.
Judge Hudson gave his ruling on 5 September...
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