State v. Malachi

• Decision Date: 18 April 2017
• Docket Number: No. COA16-752,COA16-752
• Citation: 253 N.C.App. 170,799 S.E.2d 645
• Parties: The STATE of North Carolina, v. Terance Germaine MALACHI, Defendant.
• Court: North Carolina Court of Appeals

253 N.C.App. 170

799 S.E.2d 645

The STATE of North Carolina,

v.Terance Germaine MALACHI, Defendant.

No. COA16-752

Court of Appeals of North Carolina.

Filed: April 18, 2017

Attorney General Joshua H. Stein, by Special Deputy Attorney General John R. Green, Jr., for the State.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Constance E. Widenhouse, for Defendant-Appellant.

INMAN, Judge.

When a trial judge instructs the jury that it can find a criminal defendant guilty based upon alternative theories of a crime, including one theory not supported by the evidence, over the defendant’s objection, precedent requires us to vacate and order a new trial.

Terance Germaine Malachi ("Defendant") appeals from his conviction for possession of a firearm by a felon following a jury trial and a related conviction for attaining habitual felon status. Defendant argues that the trial court erred by instructing the jury that it could find Defendant guilty if he constructively possessed the firearm, even though the State failed to present any evidence supporting that theory. Defendant also argues that the trial court committed plain error by allowing the jury to hear evidence obtained as a result of an unconstitutional stop and seizure of Defendant. After careful review, we vacate the judgment and award Defendant a new trial based on the trial court’s erroneous jury instruction.

Factual and Procedural Background

Defendant was indicted on 16 November 2015 for one count of possession of a firearm by a felon, one count of carrying a concealed weapon, and one count of having attained habitual felon status.¹ Defendant was tried before a jury on 19 and 20 January 2016. The evidence at trial tended to show the following:

Shortly after midnight on 14 August 2014, the Charlotte-Mecklenburg Police Department received a 911 call from an anonymous caller. The caller told the dispatcher that in the rear parking lot of a gas station located at 3416 Freedom Drive in Charlotte, North Carolina, a black male wearing a red shirt and black pants had just placed a handgun in the waistband of his pants.

Officer Ethan Clark, in uniform and a marked car, first responded to the call. Officer Clark’s arrival was followed almost immediately by Officer Jason Van Aken. Officer Clark saw about six to eight people standing in the parking lot, including a person who matched the description provided to the dispatcher and was later identified as Defendant.

When Officer Clark got out of his car, Defendant looked directly at him, "bladed, turned his body away, [and] started to walk away." Officer Clark immediately approached Defendant and took hold of his arm. Officer Van Aken held Defendant’s other arm and the two officers walked Defendant away from the crowd of people. Defendant was squirming. Officer Clark told Defendant to relax. Prior to this, neither officer spoke with Defendant.

Officer Clark placed Defendant in handcuffs and told him that he was not under arrest. Officer Van Aken then frisked Defendant and pulled a revolver from his right hip waistband. Neither officer saw the weapon until after it was produced during the search. As the two officers were conducting the search, a third officer, Officer Kevin Hawkins, arrived. The officers then told Defendant he was under arrest and placed him in the back of Officer Clark’s patrol vehicle.

The trial court instructed the jury on the elements of a felon in possession of a firearm, and, over defense counsel’s objection, that Defendant could be convicted if he was found to have possessed a weapon by means of actual or constructive possession. During deliberations, the jury sought clarification of "possession of a firearm" to which the trial court, again over defense counsel’s objection, responded with the definitions of both actual and constructive possession.

The jury returned a verdict of not guilty on the charge of carrying a concealed weapon and guilty of possession of a firearm by a felon. Defendant pleaded guilty, pursuant to N.C. v. Alford , 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), to attaining habitual felon status. In sentencing, the trial court found two mitigating factors—that Defendant supported his family and that Defendant suffered injuries at the hands of the Charlotte-Mecklenburg Police Department that required hospitalization. The trial court sentenced Defendant in the mitigated range to 100 to 132 months of imprisonment.

Defendant gave notice of appeal in open court. Defendant filed a Petition of Writ of Certiorari with this Court on 30 August 2016. We granted Defendant’s petition on 12 September 2016.

Analysis

I. Jury Instructions

Defendant argues that the trial court erroneously instructed the jury that Defendant could be found guilty of possession of a firearm by a felon based on the theory of constructive possession when the State had failed to present any evidence of constructive possession. We agree.

"This Court reviews assignments of error regarding jury instructions de novo ." State v. Pender , 218 N.C.App. 233, 243, 720 S.E.2d 836, 842 (2012) (citing State v. Osorio , 196 N.C.App. 458, 466, 675 S.E.2d 144, 149 (2009) ). "Under a de novo review, [this C]ourt considers the matter anew and freely substitutes its own judgment for that of the lower tribunal." Craig v. New Hanover Cnty. Bd. of Educ. , 363 N.C. 334, 337, 678 S.E.2d 351, 354 (2009) (internal quotation marks and citations omitted).

Pursuant to N.C. Gen. Stat. § 14-415.1, "[i]t shall be unlawful for any person who has been convicted of a felony to purchase, own, possess, or have in his custody, care, or control any firearm[.]" N.C. Gen. Stat. § 14-415.1(a) (2015). "[T]he State need only prove two elements to establish the crime of possession of a firearm by a felon: (1) [the] defendant was previously convicted of a felony; and (2) thereafter possessed a firearm." State v. Perry , 222 N.C.App. 813, 818, 731 S.E.2d 714, 718 (2012) (citations omitted). Possession of a firearm "may be actual or constructive. Actual possession requires that a party have physical or personal custody of the [firearm]. A person has constructive possession of [a firearm] when the [firearm] is not in his physical custody, but he nonetheless has the power and intent to control its disposition." State v. Alston , 131 N.C.App. 514, 519, 508 S.E.2d 315, 318 (1998) (citations omitted), superseded in part on other grounds by statute as stated in State v. Gaither , 161 N.C.App. 96, 587 S.E.2d 505 (2003), disc. review denied , 358 N.C. 157, 593 S.E.2d 83 (2004).

North Carolina’s appellate courts have consistently held that "a trial judge should not give instructions to the jury which are not supported by the evidence produced at the trial." State v. Cameron , 284 N.C. 165, 171, 200 S.E.2d 186, 191 (1973) (citations omitted). That is because the purpose of jury instructions is "the clarification of issues, the elimination of extraneous matters, and a declaration and an application of the law arising on the evidence." Id. An instruction related to a theory not supported by the evidence confuses the issues, introduces an extraneous matter, and does not declare the law applicable to the evidence.

Our courts also have consistently held that a trial court’s inclusion of a jury instruction unsupported by the evidence presented at trial is an error requiring a new trial. State v. Lynch , 327 N.C. 210, 219, 393 S.E.2d 811, 816 (1990) (holding that the defendant was entitled to a new trial because "the trial court erroneously submit[ed] the case to the jury on alternative theories, one of which [was] not supported by the evidence and ... it cannot be discerned from the record upon which theory or theories the jury relied in arriving at its verdict"); State v. Pakulski , 319 N.C. 562, 574, 356 S.E.2d 319, 326 (1987) (holding that a defendant is entitled to a new trial where the trial court instructed the jury on an alternate theory that was unsupported by the evidence); State v. Johnson , 183 N.C.App. 576, 584-85, 646 S.E.2d 123, 128 (2007) (holding that the defendant was entitled to a new trial where the trial court instructed the jury on alternative theories, one of which was not supported by the evidence, and it could not be discerned from the record upon which theory the jury based its verdict); State v. Hughes , 114 N.C.App. 742, 746, 443 S.E.2d 76, 79 (1994) (ordering a new trial where the trial court instructed on a theory that was unsupported by the evidence and it could not be discerned from the record upon which theory the jury relied in arriving at its verdict); State v. O’Rourke , 114 N.C.App. 435, 442, 442 S.E.2d 137, 140 (1994) ("Where the trial court instructs on alternative theories, one of which is not supported by the evidence, and it cannot be discerned from the record upon which theory the jury relied in arriving at its verdict, the error entitles the defendant to a new trial.").

When a trial judge has instructed jurors on alternative theories of guilt, one of which is supported by the evidence and the other is unsupported, in keeping with the of the rule of lenity, we have presumed that the defendant was found guilty based on the theory that was not supported by the evidence. Lynch , 327 N.C. at 219, 393 S.E.2d at 816 ; Pakulski , 319 N.C. at 574, 356 S.E.2d at 326 ("[T]his Court will not assume that the jury based its verdict on the theory for which it received a proper instruction. Instead, we resolve the ambiguity in favor of the defendant."). Our courts previously applied this presumption regardless of whether a defendant properly objected to an extraneous instruction at trial, resulting in the erroneous instruction amounting to plain error per se .

O’Rourke , 114 N.C.App. at 442, 442 S.E.2d at 140 ; Pakulski , 319 N.C. at 574, 356 S.E.2d at 326 ; State v. Jefferies , ––– N.C.App. ––––, ––––, 776 S.E.2d 872, 880 (2015) (holding, in a case in which the defendant did not object at trial, that "we must resolve the ambiguity created by...