State v. Thomas

• Citation: 570 S.E.2d 142,153 NC App. 326
• Decision Date: 15 October 2002
• Docket Number: No. COA01-1436.,COA01-1436.
• Parties: STATE of North Carolina v. Albert THOMAS, Jr.
• Court: North Carolina Court of Appeals

570 S.E.2d 142

153 NC App. 326

STATE of North Carolina v. Albert THOMAS, Jr.

No. COA01-1436.

Court of Appeals of North Carolina.

October 15, 2002.

Attorney General Roy A. Cooper, III by Assistant Attorney General Barbara A. Shaw, for the State.

Appellate Defender Staples S. Hughes by Assistant Appellate Defender Daniel R. Pollitt, for defendant-appellant.

MARTIN, Judge.

Albert Thomas, Jr., ("defendant") appeals from judgments entered upon his convictions by a jury of assault on a law enforcement officer with a firearm, felonious breaking or entering, and being an habitual felon. We conclude there was no prejudicial error in defendant's trial.

The State's evidence tended to establish the following facts. On 17 August 2000, Thomas Dufford was in New York, away from his home in Roanoke Rapids, North Carolina. Dufford's neighbor, Harvey Meadows, was in charge of watching over the Dufford house. Meadows, who lived behind Dufford, testified that he checked on the Dufford house every day that Dufford was away by inspecting the doors and windows and collecting the mail. Meadows testified that on 17 August 2000, he was awakened sometime between 11:30 p.m. and midnight to the sounds of "beating or slamming" that sounded like "somebody trying to beat [his] door in." Meadows looked out his bedroom window, about twenty yards from the back of Dufford's house, and saw a man "beating" and "hitting" Dufford's back door with a heavy object that appeared to be a piece of firewood. Meadows directed his wife to call 911 and inform the dispatcher that a man was trying to break into Dufford's house.

Meadows continued to observe the man beating on Dufford's back door. Within a few moments, the man stopped beating and came out of the carport, where he stood for a few seconds. The man then walked around to the front of the Dufford house, and Meadows heard the sound of shattering glass. Meadows then observed a policeman in uniform walking across Dufford's front yard toward the house, and within a few seconds, heard a gunshot. Meadows then heard cries for help.

Officer Scott Hall of the Roanoke Rapids Police Department testified he was on patrol around midnight on 17 August 2000 when he received a radio call to go to the address of the Dufford house to investigate. Officer Hall, who was in uniform and driving a marked patrol car, arrived at the Dufford house less than one minute after receiving the call. Officer Hall testified that immediately after getting out of his patrol car, he heard a "thump noise" coming from the front of the house. Officer Hall approached the bushes and trees near the front of the house with an illuminated flashlight. He saw, in the light of the flashlight, a pair of legs in dark pants under some bushes a few feet from the front door. Officer Hall drew his weapon and instructed the person not to move. As Officer Hall approached the bushes, he saw defendant, dressed in all dark clothing, laying face down under the bushes.

Defendant began to lift himself up from the ground, and Officer Hall, who was approximately two feet from defendant, again instructed him not to move. Defendant then made a "very quick ... lunge" at Officer Hall and grabbed the barrel of his weapon. Officer Hall pushed defendant to the ground, falling with him, and the two struggled for the weapon. Officer Hall attempted to obtain his pepper spray during the fight, but defendant knocked it out of his hands. Officer Hall attempted to turn the gun towards defendant, who was still gripping its barrel, and he fired, but defendant moved the barrel and the shot missed. Defendant then forced the barrel of the gun into Officer Hall's chest. Officer Hall testified that although his hand was on the gun, he had little control over it, and he believed defendant was about to kill him. Officer Hall began to scream for help. Defendant stated, "[i]f you let me go, I'll stop."

Officer Hall then observed headlights and two officers with flashlights approaching. Officer Hall told the officers defendant had control of his gun. Defendant fought the two other officers, and continued to resist being subdued, but was eventually handcuffed. The gun was recovered from underneath where defendant had been laying on the ground. The officers recovered a rock approximately four inches in diameter from defendant's pants pocket and a three-foot long black nylon bag which was tucked under defendant's shirt and pants. Officer Hall estimated he fought with defendant for control of his gun for about three minutes.

Meadows testified that after the situation was under control, he observed that the glass on Dufford's back door had been shattered and the glass in the front door had also been knocked out. Meadows testified that he had checked on Dufford's house around noon that day and observed that the glass on both doors was intact.

Officer Jamal Bryant of the Roanoke Rapids Police Department testified defendant made a statement while in custody to the effect that he did not intend to hurt Officer Hall, but that he could have had he so desired. Defendant stated he attempted to gain control of the gun because he realized Officer Hall would shoot him otherwise. Defendant also confessed that he had broken Dufford's windows with a rock. Defendant did not present any evidence.

Defendant brings forward eleven assignments of error contained in nine arguments. First, he maintains he is entitled to a new trial as to his conviction for assault on a law enforcement officer with a firearm because the trial court committed plain error in instructing the jury on that charge. Specifically, defendant argues the jury's verdict was rendered fatally ambiguous by the trial court's instruction to the jury that "it would be your duty to return a verdict of guilty as charged" if it were to find defendant had committed the submitted lesser included offense of assault on an officer, whereas the indictment only charged defendant with assault on a law enforcement officer with a firearm. Defendant did not object to the instruction at trial.

Defendant relies on State v. Jeffries, 3 N.C.App. 218, 164 S.E.2d 398 (1968), in which this Court held the defendant was entitled to a new trial based on the court's inadvertent error in instructing the jury that it could return a verdict of guilty as charged if it found the defendant guilty of assault with a deadly weapon, where the defendant had not been charged with that crime. Id. at 221, 164 S.E.2d at 399. As in Jeffries, the trial court in the present case inadvertently erred when it instructed the jury that if it found defendant had committed the acts required for conviction of assault on a law enforcement officer, it would find the defendant "guilty as charged."

Our inquiry does not end here, however. The instructional error in Jeffries was not analyzed under a plain error standard. Because defendant did not object or otherwise call the instructional error to the attention of the trial court, we must review the instruction under a plain error standard, which requires that defendant carry the heavy burden of establishing that the error in the instruction was "`"so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached."'" State v. Gainey, 355 N.C. 73, 106, 558 S.E.2d 463, 484 (2002) (citations omitted). "It is indeed the rare case when a criminal conviction will be reversed on the basis of an improper instruction where the defendant made no objection." Id. at 106-07, 558 S.E.2d at 484.

In analyzing whether defendant has met this burden, we must view the instructions in their entirety, not in "`"detached fragments."'" State v. Anderson, 350 N.C. 152, 179, 513 S.E.2d 296, 312 (citations omitted), cert. denied, 528 U.S. 973, 120 S.Ct. 417, 145 L.Ed.2d 326 (1999). "The charge must be viewed in context; isolated portions will not be held prejudicial when the instruction as a whole is correct." State v. Jarrett, 137 N.C.App. 256, 265, 527 S.E.2d 693, 699,disc. review denied, 352 N.C. 152, 544 S.E.2d 233 (2000). "`[A] single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.'" State v. Hanton, 140 N.C.App. 679, 683, 540 S.E.2d 376, 379 (2000) (citation omitted) (rejecting defendant's argument that he was entitled to new trial based on instruction to jury "`if you are not satisfied as to one or more of these things [the elements of second degree murder]'" because it lowered burden of proof from "`beyond a reasonable doubt'" to "`the satisfaction of the jury'" where phrase "beyond a reasonable doubt" was used at three other pivotal points in instruction on second-degree murder).

In this case, the jury instructions were clear that not only was the charge of assault on a law enforcement officer with a firearm being submitted for consideration, but also the lesser charge of assault on a law enforcement officer. The trial court was clear in instructing the jury as to the elements required for a guilty verdict as to each of the two charges. During the charge conference, defense counsel requested an instruction on the lesser included offense of assault on an officer, and the trial court agreed to instruct on both offenses. The trial court thereafter first instructed the jury, with respect to the assault on Officer Hall, that in order to find defendant guilty of assault on a law enforcement officer with a firearm, the jury would be required to find five elements beyond a reasonable doubt. The trial court listed the elements, and then summarized them a second time. The trial court then began its instruction on the lesser included offense by stating, "[i]f you do not find the Defendant guilty of assault with a firearm on a law enforcement officer, you must determine whether he is guilty of an assault on an officer." The trial court charged the jury that it would be required to find four...