State v. Wilson
| Decision Date | 02 July 2002 |
| Docket Number | No. COA01-396.,COA01-396. |
| Citation | 151 NC App. 219,565 S.E.2d 223 |
| Parties | STATE of North Carolina v. Cornell Glendell WILSON. |
| Court | North Carolina Court of Appeals |
Attorney General Roy Cooper, by David N. Kirkman, Assistant Attorney General, for the State.
Nicole M. Molin and Bruce A. Mason, Wilmington, for defendant-appellant.
Two juvenile petitions were filed in District Court, Brunswick County on 22 November 1999 alleging that Cornell Glendell Wilson (defendant) was a delinquent juvenile as defined by N.C. Gen.Stat. § 7A-517(12) (now N.C. Gen.Stat. § 7B-1501(7)). The petitions charged defendant with conspiracy to commit murder and assault with a deadly weapon with intent to kill inflicting serious injury. Following a probable cause hearing, the court found probable cause for the charge of assault with a deadly weapon with intent to kill inflicting serious injury in an order dated 26 January 2000. The court did not find probable cause for the charge of conspiracy to commit murder. The court transferred defendant's case to superior court in an order dated 26 January 2000. Defendant was indicted in a true bill on 14 February 2000 for assault with a deadly weapon with intent to kill inflicting serious injury.
The State's evidence at trial tended to show that Calvin Mosley (Mosley) and a group of friends went to a park in Supply, North Carolina the afternoon of 21 November 1999 to play basketball. When they arrived, defendant and several other people were already at the park. Mosley and his friends played basketball with defendant and the others.
After the game, defendant's brother, Winston Stothart (Winston), walked to the basketball court with a "little machete" in his hand. Two years earlier, Winston and Mosley had a disagreement and Winston shot Mosley. Mosley testified that on 21 November 1999, as he was sitting down, Winston walked towards him shouting, Mosley said he stood up with a towel in his hand. Winston told Gary Fullwood (Fullwood) and Gregory Gilbert (Gilbert), who were near the basketball court, that they might want to leave because he was going to "light this place up." Winston then got into his car and left. Defendant also left in his truck. On his way out of the park, defendant hit a tree and several people on the basketball court laughed.
Defendant and his brother Shawn Stothart (Shawn) returned in defendant's truck about five minutes later. Defendant climbed out of the back of the truck and cocked the .12 gauge shotgun he was carrying. A shell ejected and defendant reloaded it into the shotgun. Shawn asked who ran his brother off the road. Witnesses for the State testified that Shawn said "shoot him" or "somebody need[s] to shoot him." Witnesses testified Shawn pulled out a handgun and Mosley began to run. They testified defendant and his brother fired at Mosley as he ran away. Defendant fired three to five shotgun blasts and Shawn used up all his ammunition firing at Mosley.
Mosley testified he did not own a gun and did not have one with him at the park. Witnesses for the State testified they never saw Mosely with a firearm the day of the shooting. Mosley was struck with shotgun pellets in his back, shoulder, ear, stomach, hands and head. He was taken to the hospital where he stayed for a week. Mosley testified he still had 157 pellets in his body at the time of trial.
Defendant and three defense witnesses testified that at the park Mosley pulled a gun from under his towel while defendant and Mosley were talking. Defendant also said Mosley jumped up from behind a light pole and pointed a gun at Shawn and defendant. Defendant testified he went into shock from seeing Mosley's gun and fired his shotgun at Mosley. Defendant testified he only shot in the direction of Mosley because Mosley pulled a gun on him. He said he fired after Shawn shot his pistol and he only fired to give himself enough time to run to save his life.
Two defense witnesses testified that Mosley pulled a gun from his towel, shoved it in Shawn's face, and pulled the trigger twice but the gun just clicked. Shawn then pulled out his gun and began firing at Mosley.
The jury found defendant guilty of felonious assault with a deadly weapon with intent to kill inflicting serious injury. Defendant was sentenced to seventy-three to ninety-seven months imprisonment in a facility suitable for his age. From this judgment, defendant appeals.
Defendant's first three assignments of error contest the validity of evidence received at the transfer hearing and the ensuing transfer order to superior court. Before reaching the merits of defendant's assignments of error, however, we must first determine if these issues are properly before our Court. The State contends that "defendant failed to preserve the right to appeal the transfer order by failing to appeal the District Court's order to the Superior Court." We agree.
Pursuant to this statute, issues arising from a transfer order from the juvenile court to the superior court must be appealed to the superior court. The statute does not provide a procedure for appeal directly to our Court. Following appeal of the transfer order to superior court, if the transfer order is upheld by the superior court and the juvenile is thereafter convicted in superior court, then an appeal of the transfer order is to our Court.
This current version of N.C. Gen.Stat. § 7B-2603 differs significantly from earlier versions of the statute. Prior to the 1998 recodification of the juvenile code in Chapter 7B of our General Statutes, an order transferring a juvenile case to superior court was a final order and immediately appealable directly to our Court. State v. T.D.R., 347 N.C. 489, 495-96, 495 S.E.2d 700, 703 (1998) ().
Upon recodification in 1998, N.C. Gen.Stat. § 7B-2603(a) provided that appeal of a transfer order was to the superior court, but included the language that "a juvenile who fails to appeal the transfer order to the superior court waives the right to raise the issue of transfer before the Court of Appeals until final disposition of the matter in superior court." N.C. Gen.Stat. § 7B-2603(a) (1998). The language of the 1998 version of N.C. Gen.Stat. § 7B-2603 also tended to indicate that the issue of transfer could be raised for the first time on appeal to this Court following final disposition in superior court.
The General Assembly deleted the above-quoted sentence from the current version of N.C. Gen.Stat. § 7B-2603, which became effective on 1 July 1999 (Session Laws 1999— 423, s. 2 effective July 1, 1999). As the State correctly contends in its brief to this Court, by removing this sentence, the General Assembly "removed from the statute any indication that a juvenile could simply skip an appeal in superior court, but still challenge the transfer order after losing a trial in superior court." See also In re J.L.W., 136 N.C.App. 596, 599, n. 2, 525 S.E.2d 500, 502, n. 2 (2000) (). In order to properly preserve the issue of transfer for review by our Court, defendant was required to appeal the transfer order and issues arising from it, to superior court, which he failed to do. This is in accord with N.C. Gen.Stat. § 7B-2603 (1999) and the general principle of appellate review that appeals in criminal matters lie from the district court to the superior court and not directly to the Court of Appeals. N.C. Gen. Stat. § 7A-271(b) (1999). Therefore, defendant's first three assignments of error are not properly before this Court.
Nevertheless, defendant seeks review of the juvenile court transfer order by requesting that this court exercise its discretion pursuant to Rule 2 of the North Carolina Rules of Appellate Procedure to hear defendant's appeal on these issues. Alternatively, defendant requests this Court grant a writ of certiorari pursuant to Rule 21 of the North Carolina Rules of Appellate Procedure to review the transfer order. However, by either avenue, we are unable to address the issues arising out of defendant's appeal of the transfer order.
N.C.R.App. P. 2. "[S]uspension of the appellate rules under Rule 2 is not permitted for jurisdictional concerns." Bailey v. State, 353 N.C. 142, 157, 540 S.E.2d 313, 323 (2000) (citations omitted). See also N.C.R.App. 1(b) (...
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