State v. Richardson
| Decision Date | 06 August 2013 |
| Docket Number | No. COA12–1130.,COA12–1130. |
| Citation | 749 S.E.2d 111 |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina v. Henry Fertondo RICHARDSON. |
OPINION TEXT STARTS HERE
Appeal by defendant from judgment entered 30 March 2012 by Judge Alma L. Hinton in Halifax County Superior Court. Heard in the Court of Appeals 13 March 2013.
Attorney General Roy Cooper, by Assistant Attorney General Richard G. Sowerby, for the State.
Guy J. Loranger for Defendant.
Defendant Henry Pertondo Richardson appeals from a judgment sentencing him to a term of 30 to 45 months imprisonment based upon his conviction for assault with a deadly weapon inflicting serious injury. On appeal, Defendant contends that the trial court lacked jurisdiction over the subject matter of this case because the indictment returned against him by the Halifax County grand jury failed to name the weapon that he used during the alleged assault and that the trial court erred by allowing the jury to convict Defendant on the basis of the acting in concert doctrine. After careful consideration of Defendant's challenges to the trial court's judgment in light of the record and the applicable law, we conclude that the trial court's judgment should remain undisturbed.
Several weeks before Independence Day in 2010, Defendant and his friends got into an altercation with Howard Pitchford, III, and a friend of Mr. Pitchford's at a racetrack. The fight in question occurred because Toncellis Marshall, a friend of Mr. Pitchford, defeated Defendant in a motorcycle race. Although he initially paid the money that he owed as a result of losing the race, Defendant subsequently decided that he wanted his money back. After Mr. Marshall refused to return the money as requested, Defendant threw a punch at Mr. Marshall, leading to a multi-participant fight. Subsequently, Mr. Pitchford had a hostile encounter with Defendant and four of his friends at a local store.
The next time that Mr. Pitchford saw Defendant was at an Independence Day party which was held at the residence of Kathy Mills beginning on Saturday, 3 July 2010. Mr. Pitchford arrived at the party between 12:15 and 12:30 a.m., accompanied by the same friends who had been with him at the racetrack. At the time of his arrival, Mr. Pitchford saw Defendant and his friends, who had been at the party since around 11:20 p.m., staring him down.
At some point during the evening, Mr. Pitchford entered the dance floor, on which approximately forty other people were situated. At that point, Defendant and three other males, including Michael “Bird” Richardson, Defendant's uncle, approached, surrounded, and attacked Mr. Pitchford. Both Mr. Pitchford and Mr. Marshall testified that Defendant stabbed Mr. Pitchford in the chest with a razor or a box cutter during the scuffle. On the other hand, David Hardy, a friend of Mr. Pitchford, testified that, after Defendant struck Mr. Pitchford in the chest with what looked to be a knife or a box cutter, Michael Richardson hit Mr. Pitchford on his back right side with what Mr. Hardy believed to be a knife. In addition, Mr. Marshall claimed to have seen an individual named David Brown with a knife in his hand while in close proximity to Mr. Pitchford. The trial testimony presented by the State did not clearly establish whether the object which Defendant used to assault Mr. Pitchford was a razor, a knife, a box cutter, or some other sharp object. Although investigating officers searched the area after the altercation, they were unable to recover any box cutters, razors, or firearms.
After he stabbed Mr. Pitchford, Defendant ran away, leaving Mr. Pitchford lying on the ground and holding his stomach. Mr. Marshall went after Defendant and caught up with him near the edge of a road. At that point, Defendant pointed a gun straight into the air and fired. After gun shots rang out, the crowd began to disperse.
As a result of his injuries, Mr. Pitchford was taken to the porch of Ms. Mills' home, where he awaited the arrival of medical assistance. Mr. Pitchford was taken to the hospital, where he received fifty-eight stitches and fifty-nine staples for the purpose of closing his wound. Mr. Pitchford spoke with investigating officers while at the hospital and informed them that Defendant had stabbed him. After Mr. Pitchford had been taken to the hospital, Mr. Marshall received multiple phone calls from Defendant in which the latter stated that he had meant to cut Mr. Marshall rather than Mr. Pritchard.
The evidence adduced on Defendant's behalf at trial indicated that Defendant simply hit Mr. Pitchford in the face with his fist and that Michael Richardson, rather than Defendant, was probably responsible for stabbing Mr. Pitchford. More specifically, Defendant's cousin, Dennis McGee, testified that, as Defendant's friends walked past Mr. Pitchford, he laughed at Defendant, who then hit him in the eye. As Mr. Pitchford fell, Mr. McGee saw an individual in a brown coat run up to Mr. Pitchford, strike him below his stomach, and run up to Mr. Pitchford, strike him below his stomach, and run through the crowd. Similarly, Latasha Taylor, another of Defendant's cousins, testified that, after the group which included Defendant walked past Mr. Pitchford, she heard a laugh and then saw Defendant and Mr. Pitchford swinging beer cans at each other. After Defendant hit Mr. Pitchford above the nose with his closed fist and after Defendant had left the immediate area, Ms. Taylor saw Michael Richardson, who was wearing a brown coat, emerge from the crowd, get on top of Mr. Pitchford, hit him in the abdominal area, and run away. Finally, Delvin Silver, one of Defendant's friends, testified that he saw Defendant strike Mr. Pitchford in the face with a closed fist, that Defendant's friends joined the fight, and that Michael Richardson came over when the fight started with a box cutter or razor in his hand. None of Defendant's witnesses ever saw Defendant in possession of a weapon.
A warrant for arrest charging Defendant with assault with a deadly weapon with the intent to kill inflicting serious injury was issued on 4 July 2010. On 11 October 2010, the Halifax County grand jury returned a bill of indictment charging Defendant with assault with a deadly weapon with intent to kill inflicting serious injury. The charge against Defendant came on for trial before the trial court and a jury at the 26 March 2012 criminal session of the Halifax County Superior Court. On 30 March 2012, the jury returned a verdict convicting Defendant of assault with a deadly weapon inflicting serious injury. At the conclusion of the ensuing sentencing hearing, the trial court entered a judgment sentencing Defendant to a term of 30 to 45 months imprisonment. Defendant noted an appeal to this Court from the trial court's judgment.
In his first challenge to the trial court's judgment, Defendant contends that the bill of indictment returned against him was fatally defective and that the trial court erred by entering judgment against him on the basis of such a defective indictment. More specifically, Defendant argues that the indictment returned against him in this case failed to describe the deadly weapon with which he allegedly assaulted Mr. Pitchford with sufficient specificity to permit the trial court to enter judgment against him. We do not find Defendant's argument persuasive.
“A valid bill of indictment is essential to the jurisdiction of the Superior Court to try an accused for a felony and have the jury determine his guilt or innocence, ‘and to give authority to the court to render a valid judgment.’ “ State v. Moses, 154 N.C.App. 332, 334, 572 S.E.2d 223, 226 (2002) (quoting State v. Ray, 274 N.C. 556, 562, 164 S.E.2d 457, 461 (1968)). For that reason, a defendant is “not required to object to the indictment defect at trial in order to preserve the issue;” “[a] motion for arrest of judgment based upon the insufficiency of an indictment may be made for the first time on appeal.” State v. Kelso, 187 N.C.App. 718, 723, 654 S.E.2d 28, 32 (2007), disc. review denied,362 N.C. 367, 663 S.E.2d 432 (2008). “On appeal, we review the sufficiency of an indictment de novo.”State v. McKoy, 196 N.C.App. 650, 652, 675 S.E.2d 406, 409 (citing State v. Sturdivant, 304 N .C. 293, 307–11, 283 S.E.2d 719, 729–31 (1981)), disc. review denied,363 N.C. 586, 683 S.E.2d 215 (2009).
According to N.C. Gen.Stat. § 15A–924(a)(5), a valid indictment 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 of the conduct which is the subject of the accusation.” As a result, “an indictment must allege every essential element of the criminal offense it purports to charge,” State v. Billinger, 213 N.C.App. 249, ––––, 714 S.E.2d 201, 206 (2011) (quoting State v. Courtney, 248 N.C. 447, 451, 103 S.E.2d 861, 864 (1958)), although it “need only allege the ultimate facts constituting each element of the criminal offense.” State v. Rambert, 341 N.C. 173, 176, 459 S.E.2d 510, 512 (1995). “[T]he chief policies underlying the indictment requirement are (1) ‘to give the defendant notice of the charge against him to the end that he may prepare a defense and be in a position to plead double jeopardy if he is again brought to trial for the same offense’ and (2) ‘to enable the court to know what judgment to pronounce in case of conviction.’ “ State v. Jones, 359 N.C. 832, 837, 616 S.E.2d 496, 499 (2005) (quoting State v. Sills, 311 N.C. 370, 375–76, 317 S.E.2d 379, 382 (1984)). “The general rule in this State and elsewhere is that an indictment for a statutory...
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