State v. Banner

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-563
NORTH CAROLINA COURT OF APPEALS

Filed: 15 April 2014

STATE OF NORTH CAROLINA

v. Mecklenburg County
Nos. 11 CRS 233836-37

MONTREALL LAVELL BANNER
Defendant.

Appeal by defendant from judgment entered 9 November 2012

by Judge Yvonne Mims Evans in Mecklenburg County Superior Court.

Heard in the Court of Appeals 10 October 2013.

Roy Cooper, Attorney General, by Francis W. Crawley,
Special Deputy Attorney General, and Jennie Wilhelm Hauser,
Special Deputy Attorney General, for the State.

Glenn Gerding for defendant-appellant.

DAVIS, Judge.

Defendant Montreall Lavell Banner (“Defendant”) appeals

from his convictions for first-degree murder and attempted

robbery with a dangerous weapon. His primary contentions on

appeal are that (1) the trial court erred in failing to instruct

the jury concerning the defense of withdrawal; and (2) his trial

counsel’s failure to request a withdrawal instruction
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constituted ineffective assistance of counsel. After careful

review, we conclude that Defendant received a fair trial free

from error.

Factual Background

The State’s evidence at trial tended to establish the

following facts: On 23 July 2011, Ms. Shenelle Boetius

(“Boetius”), Mr. Jeremy Jackman (“Jackman”), Ms. Shanika

Franklin (“Franklin”), and Mr. Deone Varra (“Varra”) decided to

rob Isaac Rodriguez (“Rodriguez”) at his room at the Brookwood

Inn (“the Inn”). Varra called Defendant and told Defendant to

meet him at the Inn. Once at the Inn, Defendant met up with

Varra, Boetius, Jackman, and Franklin outside Varra’s room,

where Varra asked Defendant to participate in the robbery.

The group ultimately decided upon a plan in which Boetius

and Franklin would knock on Rodriguez’s door, gain entry, and

distract Rodriguez while Defendant, Jackman, and Varra listened

in on what transpired in the room by way of a cell phone set on

speakerphone and hidden on Boetius’s person. When they

determined that Rodriguez was distracted, Defendant and Jackman

would then enter the room and hold Rodriguez at gunpoint so that

they could “do the robbery.” Both Defendant and Jackman were

armed with firearms.

Shortly after knocking on Rodriguez’s door and being

invited in by Rodriguez, Boetius and Franklin changed their
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minds about participating in the robbery. After turning off the

concealed cell phone, they informed Rodriguez that he was about

to be robbed. Franklin then left the motel room and Boetius

began to follow her. While Boetius was still in the doorway,

Defendant and Jackman came down the hallway and pushed past her

into Rodriguez’s room. Boetius then “took off running.” As she

was running away, Boetius heard a single gunshot.

Shortly thereafter, Jackman called Boetius on her cellphone

and told her to meet him in the back of the Inn parking lot.

Boetius complied and went to the back of the lot where she met

up with Defendant and Jackman. She observed Jackman had wrapped

up his gun in his T-shirt.

Jackman demanded Boetius go back up to Rodriguez’s room and

“take the money and the drugs.” As Boetius began to walk up the

stairs to Rodriguez’s room, however, she, Jackman, and Defendant

saw a police car turning into the Inn parking lot. Upon seeing

the police car, Jackman ran from the lot and was eventually

caught and arrested by Officer Elvir Redzepovic of the

Charlotte-Mecklenburg Police Department. Meanwhile, Boetius ran

back to Varra’s room where she was joined by Defendant, Varra,

and Franklin. Defendant and Varra left the room briefly and,

upon returning, told her that Rodriguez was dead.

Defendant and Boetius then decided to leave the scene of

the crime by climbing over a wall located at the back of the Inn
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parking lot. Before climbing the wall, Defendant put both his

gun and Jackman’s gun — still wrapped in Jackman’s T-shirt —

into Boetius’s pocketbook. They then fled the area, proceeding

to an apartment complex where they sat and waited on the curb

until an unknown individual who was driving by asked them if

they wanted a ride. Defendant and Boetius got into the car, and

the individual began driving. While in the car, Defendant took

his and Jackman’s guns from Boetius’s pocketbook. Defendant was

still in possession of the firearms when he was dropped off per

his instructions at “[t]he Plaza across the street from the BP.”

Later that same day, the Charlotte-Mecklenburg Police

Department received information that Defendant was trying to

sell a firearm. Detective Terrence Gerald (“Detective Gerald”)

of the Charlotte-Mecklenburg Police Department, who was working

undercover, arranged to meet Defendant in the parking lot of the

Wal-Mart on Eastway Drive, where he purchased the gun from

Defendant. The gun was later identified by Mr. Todd Nordhoff, a

firearm and tool mark examiner with the Charlotte-Mecklenburg

crime laboratory, as the gun that had been used to shoot and

kill Rodriguez. Immediately after the sale, Defendant was

arrested and taken to the Law Enforcement Center to be

interviewed.

After being read his Miranda rights and waiving them,

Defendant, during the course of an interview with Detectives
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Todd Burkard (“Detective Burkard”) and J.A. Sterrett (“Detective

Sterrett”), disclosed that he had been in Rodriguez’s room

either during or immediately after Rodriguez’s murder.

On 1 August 2011, Defendant was indicted on one count of

first-degree murder and one count of attempted robbery with a

dangerous weapon. A jury trial was held in Mecklenburg County

Superior Court on 5 November 2012.

Defendant testified in his own defense at trial. His

testimony presented the following account of the events of 23

July 2011: Defendant met with Varra, Jackman, Franklin, and

Boetius at the Inn, and the group ultimately decided to rob

Rodriguez. Defendant’s only role in the planned robbery was to

take any drugs and money he found in Rodriguez’s room while

Jackman held up Rodriguez. Boetius’s and Franklin’s roles in

the planned robbery were to distract Rodriguez, thereby enabling

Defendant and Jackman to enter Rodriguez’s room and catch him by

surprise.

As Defendant and Jackman were approaching Rodriguez’s room

and were roughly two feet away from the door, Defendant saw that

Boetius was walking out of the room. Because her departure from

Rodriguez’s room was not part of the plan, Defendant became

“real nervous” and “punked out.” Defendant further explained

that “[b]y punked out, I mean like I didn’t follow out the plan,

I gave up, got nervous. I wasn’t down with it no more, I just
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kept walking.”

Without saying anything to Jackman — who, according to

Defendant, was already ahead of him and walking into Rodriguez’s

room — or the other conspirators, Defendant proceeded to

abruptly turn away from the door and head down a staircase

located next to Rodriguez’s room. As he was walking down the

stairs, Defendant heard a single gunshot. He then ran down the

remaining stairs and out into the parking lot, ultimately

returning to Varra’s room where he met up with Boetius and

Franklin. Shortly thereafter, Jackman returned to Varra’s room

and informed Defendant, Boetius, and Franklin that he had shot

Rodriguez in the heart and that Rodriguez was dead.

Jackman then took the gun he had used to shoot Rodriguez

and wrapped it in a pillowcase from Varra’s room as well as the

T-shirt Jackman had been wearing. Jackman placed the parcel in

Boetius’s purse. Defendant then fled over the back wall of the

Inn parking lot with Boetius and eventually got a ride away from

the scene in the minivan of a friend whom Boetius had called.

While in the back of the minivan, Defendant admitted to taking

Jackman’s gun from Boetius’s purse.

Later that day, Defendant “put the word out” that he had a

gun to sell. Defendant subsequently sold the gun to Detective

Gerald. With regard to his subsequent interrogation by

Detectives Burkard and Sterrett, Defendant testified that —
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contrary to his statements during the recorded interrogation

which was played for the jury at trial — he had not been in

Rodriguez’s room at any point. He further stated that he had

been deliberately untruthful with Detectives Burkard and

Sterrett because he thought they would allow him to leave if he

told them what he believed they wanted to hear. Defendant

claimed that he would never have lied during his interrogation

if he had been aware of the felony murder rule and the theory of

acting in concert.

Defendant was convicted of (1) felony murder; and (2)

attempted robbery with a firearm. The trial court arrested

judgment on Defendant’s attempted robbery with a firearm

conviction and sentenced him to life imprisonment with the

possibility of parole after 25 years of incarceration for first-

degree felony murder. Defendant gave notice of appeal in open

court.

Analysis

I. Instruction on Withdrawal

Defendant’s first argument on appeal is that the trial

court erred in failing to instruct the jury concerning the

defense of withdrawal. Defendant did not specifically request

an instruction about withdrawal at trial. Therefore, we review

this issue only for plain error. State v. Loftin, 322 N.C. 375,

380, 368 S.E.2d 613, 616 (1988) (holding that plain error
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standard of review is applied on appeal to unpreserved arguments

concerning jury instructions).

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)

(internal citations, quotation marks, and brackets omitted).

Furthermore, our Supreme Court has established that “[a]

prerequisite to our engaging in a ‘plain error’ analysis is the

determination that the instruction complained of constitutes

‘error’ at all.” State v. Torain, 316 N.C. 111, 116, 340 S.E.2d

465, 468, cert. denied, 479 U.S. 836, 93 L.Ed.2d 77 (1986).

Therefore, we must first determine whether the trial

court’s omission of the withdrawal instruction was erroneous.

During the jury charge, the trial court instructed the jury with

respect to the attempted robbery with a dangerous weapon charge

under a theory of acting in concert. The trial court then

instructed the jury on felony murder predicated on the

underlying felony of attempted robbery with a dangerous weapon.
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The doctrine of acting in concert provides that

[i]f two persons join in a purpose to commit
a crime, each of them, if actually or
constructively present, is not only guilty
as a principal if the other commits that
particular crime, but he is also guilty of
any other crime committed by the other in
pursuance of the common purpose . . . or as
a natural or probable consequence thereof.

State v. Herring, 176 N.C. App. 395, 399, 626 S.E.2d 742, 745

(citation omitted), appeal dismissed and disc. review denied,

360 N.C. 651, 637 S.E.2d 183 (2006), cert. denied, 549 U.S.

1293, 167 L.Ed.2d 342 (2007). Thus, “[t]he acting in concert

doctrine allows a defendant acting with another person for a

common purpose of committing some crime to be held guilty of a

murder committed in the pursuit of that common plan even though

the defendant did not personally commit the murder.” State v.

Roache, 358 N.C. 243, 306, 595 S.E.2d 381, 421 (2004).

North Carolina law does recognize that it is possible for a

defendant to withdraw from a criminal enterprise and thereby

establish an affirmative defense to criminal liability. See

State v. Wright, 210 N.C. App. 697, 700, 709 S.E.2d 471, 473-74

(2011) (explaining that “[o]nce an individual has joined in a

purpose to commit a crime, it is possible for him to withdraw

under certain circumstances”). However, in order to actually

withdraw from a criminal enterprise, a defendant must clearly

manifest such an intention by plainly and unambiguously
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renouncing his participation in the crime to his accomplices.

Id. Without such an express renunciation of the common plan or

scheme, a defendant will be deemed to have remained an active

participant in the criminal enterprise under the theory of

acting in concert.

Where the perpetration of a felony has been
entered on, one who had aided or encouraged
its commission cannot escape criminal
responsibility by quietly withdrawing from
the scene. The influence and effect of his
aiding or encouraging continues until he
renounces the common purpose and makes it
plain to the others that he has done so and
that he does not intend to participate
further.

State v. Spears, 268 N.C. 303, 310, 150 S.E.2d 499, 504 (1966);

see also State v. Wilson, 354 N.C. 493, 508, 556 S.E.2d 272, 282

(2001) (“Although Spears dealt with the law of aiding and

abetting, we hold that for the purposes of acting in concert the

above statement is equally applicable to withdrawal from a

common plan.”), overruled on other grounds by State v. Millsaps,

356 N.C. 556, 572 S.E.2d 767 (2002). “Any withdrawal by a

defendant may not be done silently in his own mind without any

outward manifestation or communication to the other

perpetrators.” Wright, 210 N.C. App. at 700, 709 S.E.2d at 474.

Defendant’s testimony at trial tended to establish that he

was present during at least some part of the discussion and

planning of the robbery. Furthermore, Defendant testified that
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(1) he was walking with Jackman towards Rodriguez’s room at the

Inn for the purpose of robbing Rodriguez; (2) after Jackman had

pushed past him into Rodriguez’s room with his gun drawn,

Defendant “punked out” — meaning that he no longer wished to

participate in the robbery; (3) at that point, he turned and

walked down the stairwell by Rodriguez’s room without

verbalizing or alerting Jackman or any of the others that he was

abandoning the plan of robbing Rodriguez; (4) he heard a

gunshot; (5) shortly thereafter, he met with Jackman, Franklin,

and Boetius in Varra’s room; (6) Jackman admitted that he had

shot Rodriguez; (7) he fled the scene with Boetius; (8) he took

the gun used to shoot Rodriguez out of Boetius’s purse where it

was hidden; and (9) he thereafter sold that same gun to

Detective Gerald.

Even if Defendant walked away from Rodriguez’s room and

down a flight of stairs, he did not expressly inform his

accomplices that he was withdrawing from the robbery. In

Wright, we rejected the defendant’s argument that “he

communicated his withdrawal by physically leaving the scene and

returning to the getaway vehicle for the remainder of the

incident,” holding that the defendant “failed to verbally

communicate any intent to withdraw to [the other perpetrators]

when he returned to the vehicle” and thus was not entitled to an

instruction on withdrawal. Wright, 210 N.C. App. at 701, 709
 -12-

S.E.2d at 474. We believe the same result is required here.

Because Defendant did not expressly renounce his

participation in the criminal enterprise, he failed to satisfy

the prerequisites for a withdrawal instruction. The trial

court’s decision not to give such an instruction, therefore, did

not constitute error — much less plain error. Consequently,

Defendant’s argument with respect to this issue is overruled.

II. Ineffective Assistance of Counsel

Defendant’s final argument on appeal is that his trial

counsel’s failure to request an instruction concerning

withdrawal amounted to ineffective assistance of counsel.

To prevail on a claim of ineffective
assistance of counsel, a defendant must
first show that his counsel's performance
was deficient and then that counsel's
deficient performance prejudiced his
defense. Deficient performance may be
established by showing that counsel's
representation fell below an objective
standard of reasonableness. Generally, to
establish prejudice, a defendant must show
that there is a reasonable probability that,
but for counsel's unprofessional errors, the
result of the proceeding would have been
different.

State v. Rodelo, ___ N.C. App. ___, ___, 752 S.E.2d 766, 773

(2014) (internal citations and quotation marks omitted).

As discussed above, the evidence Defendant presented at

trial was legally insufficient to support a jury instruction

concerning withdrawal. Consequently, the failure of Defendant’s
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trial counsel to request such an instruction cannot logically

support a claim of ineffective assistance of counsel.

Conclusion

For the reasons stated above, we conclude that Defendant

received a fair trial free from error.

NO ERROR.

Judges HUNTER, JR. and ERVIN concur.

Report per Rule 30(e).