State v. Sterling

NO. COA13-1191

NORTH CAROLINA COURT OF APPEALS

Filed: 6 May 2014

STATE OF NORTH CAROLINA

v. Mecklenburg County
No. 11CRS219268-69
CHAUNCEY LAJARVIS STERLING,
Defendant.

Appeal by defendant from judgments entered 13 June 2013 by

Judge Lisa C. Bell in Superior Court, Mecklenburg County. Heard

in the Court of Appeals 20 February 2014.

Attorney General Roy A. Cooper, III, by Assistant Attorney
General Daniel P. O’Brien, for the State.

Marilyn G. Ozer, for defendant-appellant.

STROUD, Judge.

Defendant appeals his convictions of first degree murder

and attempted robbery with a dangerous weapon. For the

following reasons, we find no error.

I. Background

Defendant was indicted for murder and attempted robbery

with a dangerous weapon. During defendant’s trial he testified

that on 22 April 2011, he “got the feeling” that he “need[ed]

money.” Defendant had spent the night in his sister’s apartment
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and after she had left for work he went into her room and got

her gun. Defendant left the apartment and saw Mr. Robert Barber

leave a coffee shop. Defendant followed Mr. Barber thinking he

could “try to take some money from him.” Defendant then pulled

out his gun. According to defendant, Mr. Barber attempted to

take the gun away from him. Defendant then shot Mr. Barber

twice. Mr. Barber died from a gunshot wound to the chest. The

jury found defendant guilty of first degree murder based upon

the felony murder rule and attempted robbery with a firearm.

The trial court entered judgment sentencing defendant to life

imprisonment without parole for the conviction of first degree

murder and arrested judgment on the conviction for attempted

robbery with a dangerous weapon. Defendant appeals.

II. Photographs

Defendant turned 18 years old on 22 March 2011, a month

before the crimes committed in this case. During defendant’s

trial, the State admitted photos of defendant and/or his friends

which defendant claims portray him as a juvenile “pretending to

be [a] rapper[.]” Defendant argues the photos were irrelevant

and used only to create an impression in the jury that defendant

was a gang member. Defendant did not object to the photos at

trial but now argues that “the trial court committed plain error
 -3-
by allowing the State to introduce and publish photos of the

defendant and his friends when they were juveniles posing for

Facebook photos.” (Original in all caps.)

For error to constitute plain error, a
defendant must demonstrate that a
fundamental error occurred at trial. To show
that an error was fundamental, a defendant
must establish prejudice—that, after
examination of the entire record, the error
had a probable impact on the jury’s finding
that the defendant was guilty. Moreover,
because plain error is to be applied
cautiously and only in the exceptional case,
the error will often be one that seriously
affects the fairness, integrity or public
reputation of judicial proceedings.

State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012)

(citations and quotation marks omitted). We have reviewed the

photos portraying defendant and others making various hand

gestures that the State questioned defendant about regarding

gang activity. Although we are uncertain of the relevance of

these photos, in light of defendant’s own testimony that he

pulled a gun on Mr. Barber because he wanted to “try to take

some money from him” and then shot Mr. Barber twice, we do not

believe any of the photos we have viewed of defendant or his

friends “had a probable impact on the jury’s finding that the

defendant was guilty.” Id.; see generally State v. Davis, 340

N.C. 1, 12, 455 S.E.2d 627, 632 (noting that “[t]he two elements
 -4-
of attempted robbery with a dangerous weapon are: (1) an intent

to commit the substantive offense, and (2) an overt act done for

that purpose which goes beyond mere preparation but falls short

of the completed offense”), cert. denied, 516 U.S. 846, 133

L.Ed. 2d 83 (1995); State v. Gibbs, 335 N.C. 1, 51, 436 S.E.2d

321, 350 (1993) (noting that “felony murder is committed when a

victim is killed during the perpetration or attempted

perpetration of certain enumerated felonies or a felony

committed or attempted with the use of a deadly weapon”), cert.

denied, 512 U.S. 1246, 129 L.Ed. 2d 881 (1994). This argument

is overruled.

III. Second Degree Murder Instruction

Defendant requested the trial court to instruct the jury on

second degree murder, which the trial court denied. Defendant

contends that “the trial court erred by denying [his] request to

instruct on second degree murder including lesser offenses.”

(Original in all caps.)

An instruction on a lesser-included
offense must be given only if the evidence
would permit the jury rationally to find
defendant guilty of the lesser offense and
to acquit him of the greater. The trial
court should refrain from indiscriminately
or automatically instructing on lesser
included offenses. Such restraint ensures
that the jury’s discretion is channelled so
that it may convict a defendant of only
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those crimes fairly supported by the
evidence.
The standard for determining whether
the trial court must instruct on second-
degree murder as a lesser included offense
of first-degree murder is as follows:
If the evidence is sufficient to
fully satisfy the State’s burden
of proving each and every element
of the offense of murder in the
first degree . . . and there is
no evidence to negate these
elements other than defendant’s
denial that he committed the
offense, the trial judge should
properly exclude from jury
consideration the possibility of a
conviction of second degree
murder.
Stated differently, the trial court must
determine whether the State’s evidence is
positive as to each element of first-degree
murder and whether there is any conflicting
evidence relating to any of these elements.

State v. Taylor, 362 N.C. 514, 530-31, 669 S.E.2d 239, 256

(2008) (citations, quotation marks, ellipses, and brackets

omitted), cert. denied, 558 U.S. 851, 175 L.Ed. 2d 84 (2009).

“First-degree murder by reason of felony murder is

committed when a victim is killed during the perpetration or

attempted perpetration of certain enumerated felonies or a

felony committed or attempted with the use of a deadly weapon.”

Gibbs, 335 N.C at 51, 436 S.E.2d at 350. Defendant’s underlying

felony to the murder was attempted robbery with a dangerous

weapon.
 -6-
The two elements of attempted robbery with a
dangerous weapon are: (1) an intent to
commit the substantive offense, and (2) an
overt act done for that purpose which goes
beyond mere preparation but falls short of
the completed offense. Thus, an attempted
robbery with a dangerous weapon occurs when
a person, with the specific intent to
unlawfully deprive another of personal
property by endangering or threatening his
life with a dangerous weapon, does some
overt act calculated to bring about this
result.

Davis, 340 N.C. at 12, 455 S.E.2d at 632 (citations, quotation

marks, and brackets omitted).

Defendant contends that his testimony established that he

changed his mind about committing the robbery and thus there was

evidence contradicting the underlying felony of his murder

conviction. But defendant admitted that he had an intent to

commit robbery when he confessed his goal was to “try to take

some money from [Mr. Barber].” Defendant also admitted to an

overt act when he stated that he pulled out the gun in

furtherance of his intent to rob Mr. Barber. Thus, defendant’s

testimony alone establishes the elements of attempted robbery,

see id., and his further testimony that he then shot Mr. Barber

twice, whether he had changed his mind about committing the

robbery or not, establishes the elements of first degree murder.

See Gibbs, 335 N.C. at 51, 436 S.E.2d at 350. The State’s
 -7-
evidence satisfied the requirements for an instruction on first

degree murder, according to Taylor:

If the evidence is sufficient to fully
satisfy the State’s burden of proving each
and every element of the offense of murder
in the first degree . . . and there is no
evidence to negate these elements other than
defendant’s denial that he committed the
offense, the trial judge should properly
exclude from jury consideration the
possibility of a conviction of second degree
murder.

Taylor, 362 N.C. at 530-31, 669 S.E.2d at 256. As such, the

trial court did not err in not instructing the jury on the

charge of second degree murder, and this argument is overruled.

IV. Sentencing

Lastly, defendant contends that the trial court committed

error because of the trial court’s “failure to consider the

defendant’s developmental age before imposition of a sentence of

life without parole violates a defendant’s constitutional right

to freedom from cruel and unusual punishment.” (Original in all

caps.) Defendant bases his argument on the United States

Supreme Court case of Miller v. Alabama, 567 U.S. ___, 183

L.Ed.2d 407 (2012), which determines that a sentencing court

must take into consideration a juvenile defendant’s

“chronological age and its hallmark features—among them,

immaturity, impetuosity, and failure to appreciate risks and
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consequences” before imposing a sentence of life imprisonment

without the possibility of parole. Id., 567 U.S. at ___, 183

L.Ed. 2d at 423. But the holding in Miller has no application

to a person who has attained the age of 18 when the crime is

committed: “We therefore hold that mandatory life without

parole for those under the age of 18 at the time of their crimes

violates the Eighth Amendment’s prohibition on cruel and unusual

punishments.” Id. at ___, 183 L.Ed. 2d at 414-15 (emphasis

added) (quotation marks omitted). Defendant’s argument is based

on common sense but not on the law, since it is true that there

was likely not a substantial difference between defendant’s

level of maturity and understanding on the day before his 18th

birthday as compared to one month later, when he committed these

crimes.

Yet the law must draw bright-line distinctions based on age

in many areas. We find it instructive that the same age-based

bright line applies to capital punishment. See State v.

Garcell, 363 N.C. 10, 678 S.E.2d 618, cert. denied, 558 U.S.

999, 175 L.Ed. 2d 362 (2009). Where a defendant who was just

five months beyond his 18th birthday when he committed murder

argued that he should not be subject to capital punishment based

on Roper v. Simmons, our Supreme Court rejected this argument
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and noted that

[d]efendant’s reliance on Roper v.
Simmons is misplaced. The Supreme Court of
the United States held in Roper that the
Eighth and Fourteenth Amendments to the
United States Constitution forbid imposition
of the death penalty on offenders who were
under the age of 18 when their crimes were
committed. The Court created a bright line,
categorical rule. Furthermore, the Court was
very clear that the issue before it
concerned a defendant’s age at the time he
committed a capital crime, not when his case
was tried and he was sentenced.

Id. at 53, 678 S.E.2d at 645. Defendant’s age falls past the

bright line drawn by Miller, which applies only to those who

commit crimes prior to the age of 18. Miller at ___, 183 L.Ed.

2d at 414-15. Accordingly, this argument is overruled.

V. Conclusion

For the foregoing reasons, we find no error.

NO ERROR.

Judges CALABRIA and DAVIS concur.