State v. Wilson

NO. COA13-1395

NORTH CAROLINA COURT OF APPEALS

Filed: 16 September 2014

STATE OF NORTH CAROLINA

v. Guilford County
No. 11 CRS 082533
JAMES LEWIS WILSON, JR.

Appeal by Defendant from judgment entered 22 March 2013 by

Judge David L. Hall in Superior Court, Guilford County. Heard

in the Court of Appeals 12 August 2014.

Attorney General Roy Cooper, by Special Deputy Attorney
General David P. Brenskelle, for the State.

Kimberly P. Hoppin for Defendant.

McGEE, Chief Judge.

James Lewis Wilson (“Defendant”) appeals his conviction of

attempted first-degree murder. Defendant contends that (1) the

corresponding short form indictment against him for attempted

first-degree murder was defective and (2) he received

ineffective assistance of counsel at trial. We agree that the
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indictment against Defendant was defective, but we do not agree

that Defendant received ineffective assistance of counsel.

I. Background

Around five or six in the evening of 19 July 2011, Timothy

Lynch (“Mr. Lynch”) was walking on a street in the Five Points

area in High Point. Mr. Lynch was accompanied by a small group

of people.

A blue Cavalier (“the Cavalier”) approached and stopped

near where Mr. Lynch and his companions were standing. Four men

inside the Cavalier, including Defendant, exited the vehicle.

Defendant had been riding in the front passenger seat of the

Cavalier and was carrying a gun. Defendant testified at trial

that the four men were there to confront Mr. Lynch, whom they

believed had recently beaten up Defendant’s cousin. Defendant

further testified that, upon exiting the Cavalier, he pointed

his gun at the group with Mr. Lynch in order to get them to

disperse. Mr. Lynch’s companions fled the scene immediately,

but Mr. Lynch remained.

There was conflicting testimony as to what happened next.

Multiple witnesses testified that Defendant pulled on the slide

of his gun to cock it and then pointed the gun at Mr. Lynch.

One witness testified that Defendant next tried to pull the
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trigger three or four times, but the gun jammed and did not

fire. Defendant testified that he tried to cock the gun after

Mr. Lynch’s companions began running, but the slide itself was

jammed and did not move in spite of his multiple efforts.

Defendant also testified that he never pointed the gun at Mr.

Lynch or tried to pull the trigger after the crowd dispersed.

Defendant then left in the Cavalier, along with the three

men who were accompanying him. However, the police soon pulled

over the vehicle and took Defendant into custody. Upon

performing a protective sweep of the Cavalier, one officer found

Defendant’s gun with its safety still on.

Defendant was indicted on 7 November 2011 for attempted

first-degree murder. A jury found Defendant guilty of that

charge on 20 March 2013. The following day, Defendant gave oral

notice of appeal in open court.

II. Defective Indictment

A. Standard of Review

On appeal, this Court reviews the sufficiency of an

indictment de novo. State v. McKoy, 196 N.C. App. 650, 652, 675

S.E.2d 406, 409 (2009) (citation omitted).

B. Analysis
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Defendant contends that the indictment against him for

attempted first-degree murder was defective because it omitted

an essential element of the offense: malice aforethought. The

short form indictment against Defendant, in relevant part,

states as follows: “The jurors for the State upon their oath

present that on or about the date of offense shown and in the

county named above the defendant named above unlawfully,

willfully and feloniously did attempt to murder Timothy Lynch.”

By contrast, N.C. Gen. Stat. § 15-144 (2013), entitled

“Essentials of bill for homicide,” states that in the body of

the indictment, “it is sufficient in describing murder to allege

that the accused person feloniously, willfully, and of his

malice aforethought, did kill and murder (naming the person

killed), and concluding as is now required by law.”

The purpose of an indictment is to inform
the defendant of the charge against him with
sufficient certainty to enable him to
prepare a defense. An indictment is
insufficient if it fails to allege the
essential elements of the crime charged as
required by Article I, Section 22 of the
North Carolina Constitution and our
legislature in N.C.G.S. § 15-144. When an
indictment has failed to allege the
essential elements of the crime charged, it
has failed to give the trial court subject
matter jurisdiction over the matter, and the
reviewing court must arrest judgment.
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State v. Bullock, 154 N.C. App. 234, 244–45, 574 S.E.2d 17, 23–

24 (2002) (citations omitted).

In this case, the indictment on its face failed to include

the essential element of “malice aforethought” as required by

Article I, Section 22 of the North Carolina Constitution,

N.C.G.S. § 15-144, and Bullock. As a result, just as in

Bullock, we arrest the judgment in Defendant’s attempted first-

degree murder conviction. See id. at 245, 574 S.E.2d at 24

(arresting the judgment in an attempted first-degree murder

conviction where the short form indictment failed to allege that

the defendant acted with malice aforethought).

However, again, as in Bullock, “where the indictment does

sufficiently allege a lesser-included offense, we may remand for

sentencing and entry of judgment thereupon.” Id. Voluntary

manslaughter consists of an unlawful killing without malice,

premeditation, or deliberation. See id. (citing State v.

Robbins, 309 N.C. 771, 777, 309 S.E.2d 188, 191 (1983)).

Because the jury's guilty verdict of attempted first-degree

murder necessarily means that they found all of the elements of

the lesser-included offense of attempted voluntary manslaughter,

we remand this matter to the trial court for sentencing and

entry of judgment for attempted voluntary manslaughter. See id.
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(citing State v. Wilson, 128 N.C. App. 688, 696, 497 S.E.2d 416,

422 (1998)).

III. Ineffective Assistance of Counsel

A. Standard of Review

On appeal, this Court reviews whether a defendant was

denied effective assistance of counsel de novo. See State v.

Martin, 64 N.C. App. 180, 181, 306 S.E.2d 851, 852 (1983).

B. Analysis

In his next assignment of error, Defendant contends that he

received ineffective assistance of counsel at trial, purportedly

because his counsel made concessions of Defendant’s guilt during

closing arguments without Defendant's express consent.

Specifically, during closing arguments, Defendant’s counsel told

the jury:

You have heard my client basically admit
that while pointing the gun at someone, he
basically committed a crime: Assault by
pointing a gun. Pointing the gun with what
was some sort of guilt in mind, some intent
to use the gun, that can be a crime:
Assault with a deadly weapon, intent to
kill.

So if this guilty mind points a weapon at
someone, assault with a deadly weapon,
intent to kill. But, again, what are we
here for? Attempted first-degree murder of
Timothy Lynch. And you're thinking to
yourself, those of you who have worked with
attorneys, those lawyers need to split
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hairs. Mr. Green was talking about my
client splitting hairs; maybe I am.

But, ladies and gentlemen, this is a case
about details. Hopefully, you saw that with
the questions that I was asking witnesses.
Attempted first-degree murder, intent to
kill, pointing the weapon at Timothy Lynch.
This is mere preparation; moving the slide.
Moving the slide is mere preparation.

The Judge will instruct you on that; mere
preparation is not enough. Intent to kill.
[T]here has to -- what is that? Mr. Green
argued to you in his opening statement and
so did I is the pulling of the trigger.
That is what this case is about.

Guilty mind, intent to kill Timothy Lynch by
my client pointing the weapon at Timothy
Lynch. Not moving the slide; pointing,
clicking the trigger. That is what this
case is about, amd [sic] that is also what
you'll need to decide if that has been
proven beyond a reasonable doubt.

“In State v. Harbison, 315 N.C. 175, 180, 337 S.E.2d 504,

507–08 (1985), cert. denied, 476 U.S. 1123, 90 L.Ed.2d 672

(1986), [the North Carolina Supreme Court] held that a defendant

receives ineffective assistance of counsel per se when counsel

concedes the defendant's guilt to the offense or a lesser-

included offense without the defendant's consent.” State v.

Berry, 356 N.C. 490, 512, 573 S.E.2d 132, 147 (2002). Admission

by defense counsel of an element of a crime charged, while still

maintaining the defendant’s innocence, does not necessarily
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amount to a Harbison error. See State v. Fisher, 318 N.C. 512,

533, 350 S.E.2d 334, 346 (1986) (“Although counsel stated [at

closing that] there was malice, he did not admit guilt . . . .

[Therefore,] this case does not fall with the Harbison line of

cases[.]”).

In the case before us, Defendant’s trial counsel did state

that “my client basically admit[ed] that while pointing the gun

at someone, he basically committed a crime: Assault by pointing

a gun.” Notably, at trial, Defendant testified and openly

admitted to pointing a gun at the crowd with Mr. Lynch in order

to get them to disperse. Although Defendant’s counsel used the

singular “someone” to describe those at whom Defendant pointed a

gun, dispersing the crowd was the only time Defendant admitted

to pointing the gun at anyone. Indeed, throughout direct and

cross-examination, Defendant consistently denied that he pointed

the gun at Mr. Lynch after the crowd dispersed, despite the

State’s repeated attempts to elicit such an admission.

Defendant was not charged with the offense of assault by

pointing a gun at the crowd; he was charged with attempted

first-degree murder of Mr. Lynch after the crowd dispersed.

Even if we were to assume arguendo that Mr. Lynch was in fact

the “someone” referred to by Defendant’s trial counsel, assault
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by pointing a gun is not a lesser-included offense of attempted

first-degree murder. Cf. State v. Dickens, 162 N.C. App. 632,

638, 592 S.E.2d 567, 572 (2004) (holding that “[a]ssault by

pointing a gun is not a lesser-included offense of assault with

a firearm on a law enforcement officer because the latter

offense does not include the element of pointing a gun at a

person.” (emphasis added)). Because this purported admission by

Defendant’s counsel did not refer to either the crime charged or

to a lesser-included offense, counsel’s statements in this case

fall outside of Harbison. At best, an admission by Defendant’s

trial counsel that Defendant pointed a gun at Mr. Lynch, while

still maintaining Defendant’s innocence of attempted first-

degree murder, would appear to place counsel’s statements within

the rule in Fisher, and thus still outside of Harbison. See

Fisher at 533, 350 S.E.2d at 346 (finding no Harbison error

where the defendant’s counsel admitted an element of first-

degree murder at trial but still maintained the defendant’s

innocence).

Also, the declaration by Defendant’s trial counsel that

“[p]ointing the gun with what was some sort of guilt in mind,

some intent to use the gun, that can be a crime: Assault with a

deadly weapon, intent to kill” was merely a hypothetical
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statement, not an admission. (emphasis added). Next, counsel

described the crime with which Defendant had been charged:

“Attempted first-degree murder, intent to kill, pointing the

weapon at Timothy Lynch” and then contrasted this to Defendant’s

theory of the case that Defendant’s acts during the incident

with Mr. Lynch amounted to “mere preparation; moving the slide.

Moving the slide is mere preparation.” Here, too, Defendant

himself testified that he tried to move the slide on the gun

after pointing it at the crowd.

Defendant’s counsel concluded by highlighting the key

point: “Guilty mind, intent to kill Timothy Lynch by my client

pointing the weapon at Timothy Lynch. Not moving the slide;

[but] pointing, clicking the trigger. . . . [Y]ou'll need to

decide if that has been proven beyond a reasonable doubt.”

In total, and despite Defendant’s contention that his trial

counsel admitted Defendant “pointed a gun at Timothy Lynch with

the intent to kill him,” we find no such admission in the record

before us. Although Defendant’s counsel’s statements were less

than clear at closing, none of his statements amount to Harbison

error.

We find no other basis for supporting Defendant’s claim of

ineffective assistance of counsel.
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Judgment arrested on attempted first-degree murder;

remanded for sentencing and entry of judgment on attempted

voluntary manslaughter.

Judges BRYANT and STROUD concur.