State v. Smith, No. COA08-1463 (N.C. App. 6/2/2009)
| Decision Date | 02 June 2009 |
| Docket Number | No. COA08-1463,COA08-1463 |
| Court | North Carolina Court of Appeals |
| Parties | STATE OF NORTH CAROLINA v. JERRY DALE SMITH |
William B. Gibson, for Defendant.
Jerry Dale Smith (Defendant) appeals from a judgment entered 15 August 2008 based on jury verdicts convicting him of assault with a deadly weapon on a government official and of having attained the status of an habitual felon. We find no error.
On 3 August 2004, Deputy J.P. Henderson of the Haywood County Sheriff's Department (Deputy Henderson) traveled on foot to a residence near the Pigeon River for the purpose of serving Defendant with arrest warrants and questioning Defendant regarding a breaking and entering. Upon arriving at the residence, Deputy Henderson saw Defendant exit the back door carrying a suitcase. However, when Defendant heard Deputy Henderson's radio, he dropped the suitcase and ran. When Defendant started to run, Deputy Henderson identified himself as a deputy sheriff and instructed Defendant not to flee. Defendant ignored Deputy Henderson's order. As a result, Deputy Henderson pursued Defendant through the woods to the bank of the Pigeon River. At the time that Defendant reached the river bank, he proceeded into the river and fell. Deputy Henderson seized and handcuffed Defendant while they were both in the river. After handcuffing Defendant, Deputy Henderson placed Defendant under arrest and escorted him toward the bank of the river.
Defendant stepped onto the bank. As Deputy Henderson followed, he slipped forward into Defendant, causing them both to fall. Deputy Henderson stood up and tried to grab Defendant by his arm to help him stand, but Defendant jerked away and cursed at Deputy Henderson. Defendant remained on the ground, and Deputy Henderson contacted the dispatcher to request assistance.
While Deputy Henderson waited for assistance to arrive, Defendant became increasingly hostile. Deputy Henderson attempted to help Defendant stand again, but Defendant persisted in pulling away. By the time of Deputy Henderson's third attempt to help Defendant stand, Defendant had escaped from the handcuffs. Defendant lunged toward Deputy Henderson and pushed him in the chest, causing Deputy Henderson to fall backward into the river. Defendant then jumped into the river and straddled Deputy Henderson, whose lower back was against a large rock.
Defendant grabbed Deputy Henderson by his uniform shirt and vest straps and plunged the deputy's head and upper body under thewater for what "seemed . . . like forever," using "his upper body strength and all his weight on top of me." Defendant held Deputy Henderson under the knee-deep water for between thirty and forty-five seconds, during which time Deputy Henderson's head, chest, and abdomen were completely submerged.
Deputy Henderson began to panic and attempted to push himself out of the water, but Defendant's weight and the strong river current frustrated Deputy Henderson's initial attempt to extricate himself. On his second attempt to break free, Deputy Henderson raised his head above water and was able to obtain a single breath. At that point, Defendant plunged Deputy Henderson under the water again for approximately fifteen to twenty seconds. Throughout the entire struggle, Defendant held tightly to Deputy Henderson's vest straps and kept him forcibly submerged.
Deputy Henderson eventually used his right leg and hands to roll Defendant to the middle of the river, where they both stood up. Defendant punched Deputy Henderson in the face twice, using the handcuffs as "a pair of brass knuckles," with one cuff around his right wrist and the other around his forefingers. As the fight continued, Deputy Henderson used pepper spray on Defendant. After being hit by the pepper spray, Defendant attempted to flee again.
Deputy Henderson chased and apprehended Defendant on the river bank. After seizing Defendant, Deputy Henderson engaged him in conversation, which quieted him. Deputy Henderson then took Defendant into custody. At the time he was apprehended, Defendant was arrested without a warrant for unlawfully resisting, delaying and obstructing Deputy Henderson by running away from Deputy Henderson when he attempted to serve a warrant for Defendant's arrest. On the same day, Defendant was also charged with assault with a deadly weapon on a law enforcement officer (using hands and water), assault with a deadly weapon on a law enforcement officer (using handcuffs), attempted first degree murder, and resisting a public officer. Defendant was subsequently charged with having attained the status of an habitual felon pursuant to N.C. Gen. Stat. § 14-7.1.
On 5 June 2006, a jury found Defendant guilty of resisting a public officer, assault with a deadly weapon on a government official (using water and hands), and attaining the status of an habitual felon. Defendant was acquitted of assault with a deadly weapon on a law enforcement officer (using handcuffs) and attempted first degree murder. After accepting the jury's verdict, the court sentenced Defendant to a consolidated term of 151 to 191 months in the custody of the North Carolina Department of Correction. Defendant appealed to this Court from the court's judgment on 7 June 2006.
On 18 September 2007, this Court awarded Defendant a new trial in connection with his conviction for assault with a deadly weapon on a government official on the grounds that the trial court erred by refusing to submit the lesser-included offense of misdemeanor assault on a government official to the jury. State v. Smith, 186 N.C. App. 57, 650 S.E.2d 29 (2007). The Court vacated Defendant's conviction for attaining habitual felon status and remanded Defendant's conviction for resisting a public officer to the trial court for resentencing because the trial court consolidated this conviction with Defendant's convictions for assault with a deadly weapon on a government official using hands and water and attaining habitual felon status.
On remand, Defendant filed a motion in limine asserting that "collateral estoppel prevents the introduction of any evidence relating to attempting to `kill' or `drown' Deputy Henderson, or relating to the facts surrounding the alleged handcuff attack because of Defendant's acquittals" in the previous trial on the charges of assault with a deadly weapon on a law enforcement officer (using handcuffs) and attempted first degree murder. In support of this argument, Defendant cited Ashe v. Swenson, 397 U.S. 436, 25 L. Ed. 2d 469 (1970), and State v. McKenzie, 292 N.C. 170, 232 S.E.2d 424 (1977). Defendant also argued that any evidence that he attempted to "kill" or "drown" Deputy Henderson or that he struck Deputy Henderson with handcuffs was irrelevant and that the highly prejudicial nature of such evidence would outweigh any probative value that the evidence might otherwise have. See N.C. Gen. Stat. § 8C-1, Rule 401 and Rule 403. At trial, the court made a series of evidentiary rulings that Defendant admits had the effect of excluding "explicit testimony that the Defendant tried to drown or kill Deputy Henderson."
On 15 August 2008, at the conclusion of Defendant's second trial, a jury found Defendant guilty of assault with a deadly weapon on a government official and of attaining the status of an habitual felon. After accepting the jury's verdict, the trial court sentenced Defendant to 133 to 169 months imprisonment in the North Carolina Department of Correction. From this judgment, Defendant appeals.
On appeal, Defendant initially contends that the trial court committed prejudicial error by overruling Defendant's objection to the prosecutor's statement in his closing argument that "when you cross that line and you attack a law enforcement officer with the intent to drown him under water, then you [the jury] must intervene[.]" Defendant contends the statement violated his constitutional rights because his acquittal of the attempted first degree murder charge collaterally estopped the State from stating on remand that Defendant intended to "drown" Deputy Henderson. After careful consideration, we conclude that we cannot agree with Defendant's contention.
In Swenson, 397 U.S. 436, 25 L. Ed. 2d 469, upon which Defendant principally relies, the United States Supreme Court held that the doctrine of collateral estoppel is a component of the constitutional guarantee against double jeopardy.
"Collateral estoppel" is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice. It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit . . . . The federal decisions have made clear that the rule of collateral estoppel in criminal cases is not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality. Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires the court to examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration. The inquiry must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings . . . . Any test more technically restrictive would, of course, simply amount to a rejection of the rule of collateral...
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