State v. Hill

NO. COA13-1188

NORTH CAROLINA COURT OF APPEALS

Filed: 15 July 2014

STATE OF NORTH CAROLINA

v. Forsyth County
No. 10 CRS 53412
JERROD STEPHON HILL,
Defendant.

Appeal by defendant from judgments entered 9 August 2011 by

Judge Mark E. Klass in Forsyth County Superior Court. Heard in

the Court of Appeals 19 February 2014.

Attorney General Roy Cooper, by Assistant Attorney General
Nancy D. Hardison, for the State.

Appellate Defender Staples Hughes, by Assistant Appellate
Defender Anne M. Gomez, for defendant-appellant.

GEER, Judge.

Defendant Jerrod Stephon Hill appeals from his convictions

of attempted robbery with a firearm and assault with a deadly

weapon inflicting serious injury ("ADWISI"). The trial court

sentenced defendant in the aggravated range based upon the

jury's determination that two aggravating factors existed. On

appeal, defendant makes several arguments regarding the

sentencing phase of the trial. We agree with defendant that the

trial court erred when it failed to hold a charge conference
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prior to instructing the jury during the sentencing phase of the

trial and, therefore, vacate defendant's judgment and remand for

a new trial on sentencing.

Facts

The State's evidence tended to show the following facts.

On 16 March 2010, Howard Moore was with his friend Little Rick

when Rick received a phone call from defendant. Defendant told

Rick that he had a plan to rob Michael Dyer, defendant's friend

from high school. According to the plan, defendant, Howard, and

Rick would go to Mr. Dyer's house and Howard would ask to use

his bathroom. Once they were inside, they would pin Mr. Dyer

down and rob him. Defendant and his friend Jamal Smith had been

to the house earlier that day and had seen Mr. Dyer sleeping on

the couch.

A few minutes later, defendant and Jamal picked up Howard

and Rick in a SUV driven by Jamal, and they headed to Mr. Dyer's

house. On the way there, defendant showed Howard a .22 caliber

rifle that he had wrapped in a black shirt.

The men arrived at Mr. Dyer's house around 1:00 p.m. Mr.

Dyer saw the SUV pulling into his driveway and recognized

defendant, who had been to his house a few months earlier to

smoke marijuana. Mr. Dyer met defendant and Howard, whom Mr.

Dyer did not recognize, at the door. Defendant asked Mr. Dyer
 -3-
if Howard could use his bathroom, and Mr. Dyer let them inside.

After showing Howard to the bathroom, Mr. Dyer heard someone

behind him say, "Hey, homey." He turned around and saw Rick,

whom he did not recognize, pointing a .22 caliber rifle at his

head. Then, defendant punched Mr. Dyer in the face, blind-

siding him. Howard came out of the bathroom, and Howard,

defendant, and Rick began beating Mr. Dyer. Rick hit Mr. Dyer

in the head with the butt of the rifle with such force that the

rifle broke apart.

Mr. Dyer attempted to fight back, at one point throwing

defendant over a chair. Mr. Dyer then pulled out a pocket knife

and stabbed Howard in the side and in the buttock. At that

point, defendant said "Oh, shit. White boy has a knife[,]" and

defendant, Howard, and Rick ran out of the house. Mr. Dyer's

mother arrived shortly thereafter and called 911. Mr. Dyer was

hospitalized and required extensive medical treatment including

surgery for a fractured orbital bone and cheek bone, and

stitches for lacerations to his head and face. He continues to

have problems with the vision in his right eye.

Police officers recovered from Mr. Dyer's house the broken

pieces of the butt of the rifle used to beat Mr. Dyer, the knife

used to stab Howard, a ski mask, a doo rag with Jamal's DNA on

it, and defendant's cell phone. Police questioned Mr. Dyer, who
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identified defendant as one of the suspects. Later that

afternoon, police were alerted when Howard went to the hospital

to seek treatment for his stab wounds. Howard was interviewed

by police at the hospital, and, although he initially denied any

knowledge of the incident, he eventually confessed to

participating. Howard agreed to plead guilty to a charge of

common law burglary in exchange for his testimony against

defendant.

Defendant was indicted on 7 June 2010 for attempted robbery

with a dangerous weapon, ADWISI, and assault inflicting serious

bodily injury. On 6 July 2011, the State provided defendant

with notice that it also intended to prove the following

aggravating factors at trial: that defendant (1) induced others

to participate in the commission of the offense or occupied a

position of leadership or dominance of other participants in the

commission of the offense, and (2) joined with more than one

other person in committing the offense and was not charged with

committing a conspiracy.

At trial, defendant testified in his own defense that on 16

March 2010, he was coming out of a corner store when he saw Rick

and offered to pay Rick for a ride home. Howard, whom defendant

did not know, was also in the car. As they were driving, Rick

asked defendant if he knew where they could get some marijuana.
 -5-
Defendant directed them to Mr. Dyer's house. When they got

there, defendant and Howard met Mr. Dyer on the porch.

Defendant asked Mr. Dyer if he had any weed, and Howard asked if

he could use the bathroom. Mr. Dyer let them inside, and

defendant and Mr. Dyer discussed marijuana while Howard went to

the bathroom.

Defendant testified that Howard came out of the bathroom

and blind-sided Mr. Dyer by punching him in the face. At the

same time, Rick came in with a gun pointed at Mr. Dyer's face

and said, "Give it up." Defendant stood there in shock at first

while Howard and Rick began beating Mr. Dyer. Then, defendant

tried to break up the fight. When Mr. Dyer stabbed Howard,

defendant heard Rick yell, "White boy got a knife." Defendant

ran out of the house, and as he was running down the driveway,

Rick and Howard pulled up in the car and Rick told defendant,

"Get your ass in the car." Defendant got in because Rick had a

pistol in his lap, and he felt threatened. Defendant denied

that he saw the rifle before the assault occurred, that he

punched Mr. Dyer, or that he intended to rob him.

On cross-examination, the State asked defendant about his

interview with Detective Rick Shelton of the Winston-Salem

Police Department when he was first arrested. When the State

asked if defendant told Detective Shelton that he only got into
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the car because Rick threatened him with a pistol, defendant

claimed that he did say that to Detective Shelton. Defendant

also denied telling the detective initially that he did not know

Mr. Dyer and then saying, "Oh, yeah, yeah, yeah. I saw Michael

at a party on Sunday night in Clemmons where a fight broke out."

The State then called Detective Shelton as a rebuttal

witness and played the videotaped recording of Detective

Shelton's interview with defendant. Detective Shelton's

testimony and the recording showed that defendant never told

Detective Shelton that Rick threatened him with a pistol and

revealed other inconsistencies in defendant's testimony.

At the close of all the evidence, the State voluntarily

dismissed the charge of assault inflicting serious bodily

injury. The jury found defendant guilty of attempted robbery

with a dangerous weapon and ADWISI. The court then proceeded to

the sentencing phase of the trial to allow the jury to render a

verdict on the aggravating factors. Neither party presented

additional evidence on the aggravating factors. After each side

gave closing arguments, the court instructed the jury with

respect to the aggravating factors. The jury returned a verdict

finding that both aggravating factors were present.

Defendant did not argue that the trial court should find

any mitigating factors, and the trial court sentenced him in the
 -7-
aggravated range to a term of 100 to 129 months imprisonment for

attempted robbery with a dangerous weapon and to a consecutive

presumptive-range term of 26 to 41 months imprisonment for

ADWISI. Defendant filed a petition for writ of certiorari on 24

January 2013, which this Court granted on 4 February 2013.

Discussion

Defendant first argues that the trial court violated N.C.

Gen. Stat. § 15A-1231(b) (2013) by failing to hold a charge

conference prior to instructing the jury in the sentencing phase

of the trial. Although defendant did not raise this issue at

trial, he argues that this issue is preserved because "when a

trial court acts contrary to a statutory mandate and a defendant

is prejudiced thereby, the right to appeal the court's action is

preserved, notwithstanding defendant's failure to object at

trial." State v. Ashe, 314 N.C. 28, 39, 331 S.E.2d 652, 659

(1985).

Defendant contends that holding a charge conference is a

statutory mandate under N.C. Gen. Stat. § 15A-1231(b), which

provides:

Before the arguments to the jury, the judge
must hold a recorded conference on
instructions out of the presence of the
jury. At the conference the judge must
inform the parties of the offenses, lesser
included offenses, and affirmative defenses
on which he will charge the jury and must
inform them of what, if any, parts of
 -8-
tendered instructions will be given. A
party is also entitled to be informed, upon
request, whether the judge intends to
include other particular instructions in his
charge to the jury. The failure of the
judge to comply fully with the provisions of
this subsection does not constitute grounds
for appeal unless his failure, not corrected
prior to the end of the trial, materially
prejudiced the case of the defendant.

With respect to whether holding a charge conference is a

statutory mandate, this Court has noted that "'ordinarily, the

word "must" and the word "shall," in a statute, are deemed to

indicate a legislative intent to make the provision of the

statute mandatory[.]'" State v. Inman, 174 N.C. App. 567, 570,

621 S.E.2d 306, 309 (2005) (quoting State v. House, 295 N.C.

189, 203, 244 S.E.2d 654, 662 (1978)). Nevertheless, "'the

legislative intent is to be derived from a consideration of the

entire statute'" including "'the importance of the provision

involved.'" Id. (quoting House, 295 N.C. at 203, 244 S.E.2d at

661, 662). "'Generally speaking, those provisions which are a

mere matter of form, or which are not material, do not affect

any substantial right, and do not relate to the essence of the

thing to be done so that compliance is a matter of convenience

rather than substance, are considered to be directory.'" Id.

(quoting House, 295 N.C. at 203, 244 S.E.2d at 661-62).

The purpose of a charge conference is to allow the parties

to discuss the proposed jury instructions to "insure that the
 -9-
legal issues are appropriately clarified in a manner that

assists the jury in understanding the case and in reaching the

correct verdict," Irving Joyner, Criminal Procedure in North

Carolina § 11.17 (3d ed. 2005), and "to enable counsel to know

what instructions will be given so that counsel will be in a

position to argue the facts in light of the law to be charged to

the jury."

State v. Wilson, 354 N.C. 493, 524, 556 S.E.2d 272, 292 (2001)

(Butterfield, J., concurring), overruled on other grounds by

State v. Millsaps, 356 N.C. 556, 572 S.E.2d 767 (2002). After

considering N.C. Gen. Stat. § 15A-1231(b) as a whole, including

the importance of allowing the parties an opportunity to be

heard regarding jury instructions and the use of the word

"must," we conclude that holding a charge conference is

mandatory, and a trial court's failure to do so is reviewable on

appeal even in the absence of an objection at trial.

The State argues, however, that N.C. Gen. Stat. § 15A-

1231(b) should not apply to trials regarding the existence of

aggravating factors in non-capital cases. The State asserts

that N.C. Gen. Stat. § 15A-1340.16(a1) (2013) sets forth all the

procedural requirements for sentencing a defendant in the

aggravated range and, because N.C. Gen. Stat. § 15A-1340.16(a1)

does not specifically require the court to hold a separate
 -10-
charge conference, the trial court was not required to do so.

We disagree.

N.C. Gen. Stat. § 15A-1340.16(a1) provides, in pertinent

part, that if the defendant does not admit to the existence of

an aggravating factor, "only a jury may determine if an

aggravating factor is present in an offense." The statute

further provides:

The jury impaneled for the trial of the
felony may, in the same trial, also
determine if one or more aggravating factors
is present, unless the court determines that
the interests of justice require that a
separate sentencing proceeding be used to
make that determination. If the court
determines that a separate proceeding is
required, the proceeding shall be conducted
by the trial judge before the trial jury as
soon as practicable after the guilty verdict
is returned. . . . If the trial jury is
unable to reconvene for a hearing on the
issue of whether one or more aggravating
factors exist after having determined the
guilt of the accused, the trial judge shall
impanel a new jury to determine the issue.
A jury selected to determine whether one or
more aggravating factors exist shall be
selected in the same manner as juries are
selected for the trial of criminal cases.

Id.

The statute goes on to address the procedure to be followed

(1) when a defendant admits the aggravating factor, (2) when a

defendant pleads guilty to the underlying felony but contests

the existence of an aggravating factor, and (3) when the State
 -11-
seeks to establish a prior record level point under N.C. Gen.

Stat. § 15A-1340.14(b)(7) (2013). See N.C. Gen. Stat. § 15A-

1340.16(a2), (a3), (a5). The statute also sets out requirements

for pleading or giving notice of an intent to use aggravating

factors or seek addition of prior record level points. See N.C.

Gen. Stat. § 15A-1340.16(a4), (a5), (a6).

Nothing in the statute addresses the specifics of how the

trial court should conduct a separate sentencing proceeding

before the jury that decided the underlying felony charge or a

separate sentencing proceeding before a newly empanelled jury.

N.C. Gen. Stat. § 15A-1340.16 simply does not attempt to

regulate how the trial court should conduct the sentencing

proceedings, and we can glean no intent to mandate a different

procedure than that which governs trials of criminal offenses.

Accordingly, we hold that N.C. Gen. Stat. § 15A-1231 applies to

sentencing proceedings under N.C. Gen. Stat. § 15A-1340.16(a1).

If, as occurred in this case, the trial court decides to

hold a separate sentencing proceeding on aggravating factors as

permitted by N.C. Gen. Stat. § 15A-1340.16(a1), and the parties

did not address aggravating factors at the charge conference for

the guilt-innocence phase of the trial, N.C. Gen. Stat. § 15A-

1231 requires that the trial court hold a separate charge

conference before instructing the jury as to the aggravating
 -12-
factor issues. The trial court's failure to do so in this case

was error.

We note, however, that N.C. Gen. Stat. § 15A-1231(b)

(emphasis added) provides that "[t]he failure of the judge to

comply fully with the provisions of this subsection does not

constitute grounds for appeal unless his failure, not corrected

prior to the end of the trial, materially prejudiced the case of

the defendant." In this case, however, the trial court did not

comply with N.C. Gen. Stat. § 15A-1231(b) at all.

This Court considered the failure to hold a charge

conference under a prior version of N.C. Gen. Stat. § 15A-

1231(b) in State v. Clark, 71 N.C. App. 55, 57, 322 S.E.2d 176,

177 (1984), disapproved of on other grounds by State v. Moore,

327 N.C. 378, 395 S.E.2d 124 (1990). That version included the

same requirement of a showing of material prejudice if the trial

court failed to "'fully'" comply with the requirement for a

recorded charge conference. Id. (quoting N.C. Gen. Stat. § 15A-

1231(b) (1983)). However, the 1983 statute only required a

recorded charge conference if one of the parties requested it.

Id.

In Clark, the Court held that because the defense counsel

had requested a charge conference, the trial court was "mandated

. . . to conduct a recorded instruction conference under G.S. §
 -13-
15A-1231(b)." Id. at 58, 322 S.E.2d at 178. As in this case,

the trial court, however, failed to hold any conference at all,

recorded or otherwise. Id. Without requiring any showing of

prejudice, this Court held "that the trial court's failure to

hold a jury instruction conference requires a new trial." Id.

Under the current version of N.C. Gen. Stat. § 15A-1231(b),

the trial court was mandated to hold a charge conference even

without a request. Therefore, under Clark, the trial court's

failure to hold the mandated conference "requires a new trial."

71 N.C. App. at 58, 322 S.E.2d at 178.

Even if Clark were not controlling, we hold that defendant

has shown sufficient prejudice. Here, in addition to not

holding a charge conference, the trial court, contrary to the

General Rules of Practice, did not, following his charge to the

jury, give counsel an opportunity to object to the charge. See

Gen. R. Pract. Super. and Dist. Ct. 21 ("At the conclusion of

the charge and before the jury begins its deliberations, and out

of the hearing, or upon request, out of the presence of the

jury, counsel shall be given the opportunity to object on the

record to any portion of the charge, or omission therefrom[.]").

As a result, defense counsel was unable to have any input into

the jury instructions at all.
 -14-
Because of the importance of jury instructions, the role

the charge conference plays in ensuring that the instructions

are clear and correct and framed in the most effective way for a

particular party, and the ambiguities and omissions in the

instructions and verdict sheet that defendant has pointed out

that could have been corrected during a charge conference, we

believe that defendant has shown material prejudice. We,

therefore, vacate defendant's judgment and remand for a new

sentencing proceeding.

Given our disposition of this appeal, we need not address

defendant's specific arguments regarding the instructions

because they are unlikely to be repeated on remand. We do note,

however, that while defendant has argued on appeal that the

trial court erred in submitting the N.C. Gen. Stat. § 15A-

1340.16(d)(2) aggravating factor when he was likely convicted of

attempted armed robbery under an acting in concert theory, the

Supreme Court has recently rejected that argument in State v.

Facyson, ___ N.C. ___, ___, 758 S.E.2d 359, 364 (2014) (holding

that because N.C. Gen. Stat. § 15A-1340.16(d)(2) requires

evidence that defendant joined with at least two other people to

commit the offense while acting in concert requires only one

person, "[a]ny evidence that defendant joined with more than one

person [is] 'additional evidence' unnecessary to prove that
 -15-
defendant acted in concert in committing the [offense]" (quoting

State v. Thompson, 309 N.C. 421, 422, 307 S.E.2d 156, 158

(1983)).

Vacated and remanded.

Judges ROBERT C. HUNTER and McCULLOUGH concur.