IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-639
Filed: 4 April 2017
Lee County, Nos. 05 CRS 54493, 54506, 08 CRS 261
STATE OF NORTH CAROLINA
v.
QUINTIS TRAVON SPRUIELL
Appeal by the State from order entered 2 December 2015 by Judge C. Winston
Gilchrist in Lee County Superior Court. Heard in the Court of Appeals 30 November
2016.
Attorney General Joshua H. Stein, by Senior Deputy Attorney General Robert
C. Montgomery, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Amanda S.
Zimmer, for defendant-appellee.
DAVIS, Judge.
Quintis Travon Spruiell (“Defendant”) was convicted of first-degree murder
under the felony murder rule after he fired a single shot into a parked car at close
range, striking and killing the victim. This case presents the issue of whether
Defendant received ineffective assistance of counsel on direct appeal when his
appellate counsel failed to argue that it was error to instruct the jury on felony
murder based upon the underlying felony of discharging a weapon into occupied
property given that Defendant only fired a single shot at a single victim. The State
appeals from the trial court’s order granting Defendant’s motion for appropriate relief
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(“MAR”) and vacating his convictions for first-degree murder and discharging a
weapon into occupied property. Because we conclude that Defendant was not
prejudiced by his counsel’s failure to raise this argument, we reverse.
Factual and Procedural Background
On the evening of 1 November 2005, Jose Lopez drove Ricardo Sanchez to a car
wash in Sanford, North Carolina where Sanchez planned to complete a drug
transaction with Defendant. When they arrived and parked Lopez’s Ford Explorer,
Lopez remained in the driver’s seat while Sanchez sat in the rear passenger side seat
with the window rolled down.
After Sanchez called Defendant over to the vehicle, Defendant and Shawn
Hooker approached the Explorer from the passenger side. Defendant and Sanchez
proceeded to argue about “money and about drugs” for several seconds. Defendant
then aimed a revolver at Sanchez and fired one shot through the open rear passenger
side window, striking him in the stomach. Defendant was so close to Sanchez when
he fired the shot that his gun “was almost touching [Sanchez’s] stomach.”
Lopez then started to drive away as Sanchez fired several shots at Defendant
from the backseat of the moving vehicle, striking Defendant twice. Lopez drove
Sanchez to a local hospital where he ultimately died from his gunshot wound.
On 14 November 2005, Defendant was indicted on charges of first-degree
murder, discharging a weapon into occupied property, and possession of a firearm by
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a felon. At trial, defense counsel objected to instructing the jury on the theory of
felony murder based upon the predicate offense of discharging a weapon into occupied
property, but the objection was overruled.
The jury found Defendant guilty of first-degree murder based upon the felony
murder rule and also convicted him of discharging a weapon into occupied property
and possession of a firearm by a felon.1 Defendant was sentenced to life
imprisonment without parole for the murder conviction and to a consecutive sentence
of 15 to 18 months imprisonment for the possession of a firearm by a felon conviction.
His conviction for discharging a weapon into occupied property was arrested.
On direct appeal to this Court, Defendant’s appellate counsel asserted several
arguments but did not raise the issue of whether instructing the jury on felony
murder based on these facts had constituted error. On 19 May 2009, this Court issued
an opinion upholding Defendant’s convictions. State v. Spruiell, 197 N.C. App. 232,
676 S.E.2d 669, 2009 WL 1383399 (2009) (unpublished), disc. review denied, 363 N.C.
588, 684 S.E.2d 38 (2009).
On 12 June 2012, Defendant filed an MAR in which he primarily argued that
his appellate counsel had rendered ineffective assistance of counsel by failing to
challenge on direct appeal the felony murder instruction. Specifically, Defendant
argued in his MAR that — based on the specific facts of the underlying crime — the
1 Although the jury was also instructed on the offense of first-degree murder based on
premeditation and deliberation, the jury left this portion of the verdict sheet blank.
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offense of discharging a weapon into occupied property could not legally constitute
the predicate felony upon which to base his felony murder conviction. Defendant filed
subsequent amendments to his MAR on 13 September 2013 and 31 October 2014.
A hearing on Defendant’s MAR was held before the Honorable C. Winston
Gilchrist on 16 December 2013. On 2 December 2015, Judge Gilchrist issued an order
(the “MAR Order”) granting Defendant’s motion. In the MAR Order, Judge Gilchrist
made the following pertinent findings of fact:
14. [Defendant’s appellate counsel] did not have any
strategic reason for not arguing to the Court of Appeals
that the facts of Defendant’s case did not support
submission to the jury of first degree murder in
perpetration of the felony of shooting into an occupied
vehicle.
15. Published precedents of the courts of North Carolina
supporting reversal of Defendant’s conviction for felony
murder existed at the time Defendant’s case was appealed,
briefed and decided.
16. Reasonable counsel would have known of the
precedents supporting Defendant’s argument that felony
murder based on discharging a weapon into an occupied
vehicle was not properly submitted to the jury, or would
have become aware of these authorities in the course of
reasonable representation of Defendant on appeal.
17. Appellate counsel should have been aware of the need
to challenge the trial court’s submission of felony murder,
given that the Defendant was not convicted of first degree
murder on any theory except murder in perpetration of
discharging a weapon into occupied property.
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After setting forth a detailed legal analysis articulating his reasoning, Judge
Gilchrist made the following pertinent conclusions of law:
4. Counsel on direct appeal should have argued that the
trial court erred in submitting felony murder in
perpetration of shooting into an occupied vehicle to the
jury. In not so contending, appellate counsel’s
representation was not objectively reasonable.
5. Had Defendant’s appellate counsel raised the issue of
felony murder, there is a reasonable probability that
Defendant’s conviction for first degree murder — which
was based solely on felony murder in perpetration of
discharging a weapon into occupied property — would have
been reversed on direct appeal. Counsel’s performance
undermines confidence in the outcome of this case. The
performance of appellate counsel in fact prejudiced the
defendant.
6. Defendant Spruiell has met his burden of proving the
ineffective assistance of counsel. . . . 2
Based upon these findings and conclusions, Judge Gilchrist vacated
Defendant’s convictions for first-degree murder and for discharging a weapon into
occupied property and ordered that Defendant receive a new trial on these charges.
On 12 January 2016, the State filed a petition for writ of certiorari seeking review of
the MAR Order. We granted certiorari on 2 February 2016.
Analysis
2 Judge Gilchrist concluded that the other grounds for relief asserted in Defendant’s MAR
lacked merit. That portion of his ruling is not presently before us.
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In this appeal, the State argues that no legal authority exists in North Carolina
that would have prohibited Defendant’s felony murder conviction from being
predicated on the crime of discharging a weapon into occupied property. Therefore,
the State contends, the failure of Defendant’s appellate counsel to raise this argument
did not constitute ineffective assistance of counsel and the trial court’s decision to
grant his MAR was erroneous.
“Our review of a trial court’s ruling on a defendant’s MAR is whether the
findings of fact are supported by evidence, whether the findings of fact support the
conclusions of law, and whether the conclusions of law support the order entered by
the trial court.” State v. Peterson, 228 N.C. App. 339, 343, 744 S.E.2d 153, 157
(citation and quotation marks omitted), appeal dismissed and disc. review denied, 367
N.C. 284, 752 S.E.2d 479 (2013).
This Court has held that “[t]o show ineffective assistance of appellate counsel,
Defendant must meet the same standard for proving ineffective assistance of trial
counsel.” State v. Simpson, 176 N.C. App. 719, 722, 627 S.E.2d 271, 275 (citation
omitted), appeal dismissed, 360 N.C. 653, 637 S.E.2d 191 (2006). In order to prevail
on an ineffective assistance of counsel claim, “a defendant must show that (1)
counsel’s performance was deficient and (2) the deficient performance prejudiced the
defense.” State v. Phillips, 365 N.C. 103, 118, 711 S.E.2d 122, 135 (2011) (citation
and quotation marks omitted), cert. denied, 565 U.S. 1204, 182 L. Ed. 2d 176 (2012).
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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. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome.
State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271, 286 (internal citations and
quotation marks omitted), cert. denied, 549 U.S. 867, 166 L. Ed. 2d 116 (2006). “To
show prejudice in the context of appellate representation, a petitioner must establish
a reasonable probability he would have prevailed on his appeal but for his counsel’s
unreasonable failure to raise an issue.” United States v. Rangel, 781 F.3d 736, 745
(4th Cir. 2015) (citation, quotation marks, and ellipsis omitted).
In the present case, we need not decide the first prong of the ineffective
assistance of counsel test because our analysis of the second prong is determinative
of Defendant’s ineffective assistance of counsel claim. See State v. Rogers, 355 N.C.
420, 450, 562 S.E.2d 859, 878 (2002) (“[I]f we can determine at the outset that there
is no reasonable probability that in the absence of counsel’s alleged errors the result
of the proceeding would have been different, then the court need not determine
whether counsel’s performance was actually deficient.” (citation and quotation marks
omitted)). As explained in detail below, Defendant has failed to demonstrate a
reasonable probability that he would have prevailed in his direct appeal had his
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appellate counsel argued that the offense of discharging a weapon into occupied
property could not support Defendant’s felony murder conviction.
Ordinarily, first-degree murder requires a showing that the killing was done
with premeditation and deliberation. See N.C. Gen. Stat. § 4-17(a) (2015). However,
[p]remeditation and deliberation are not elements of the
crime of felony murder. The prosecution need only prove
that the killing took place while the accused was
perpetrating or attempting to perpetrate one of the
enumerated felonies. By not requiring the State to prove
the elements of murder, the legislature has, in essence,
established a per se rule of accountability for deaths
occurring during the commission of felonies.
State v. Bell, 338 N.C. 363, 386, 450 S.E.2d 710, 723 (1994), cert. denied, 515 U.S.
1163, 132 L. Ed. 2d 861 (1995). Thus, pursuant to the felony murder rule set forth in
N.C. Gen. Stat. § 14-17, first-degree murder includes any killing “committed in the
perpetration or attempted perpetration of any arson, rape or a sex offense, robbery,
kidnapping, burglary, or other felony committed or attempted with the use of a deadly
weapon . . . .” N.C. Gen. Stat. § 14-17(a).
The General Assembly has made it a felony to discharge a weapon into
occupied property. N.C. Gen. Stat. § 14-34.1(a) (2015). A person is guilty of
discharging a weapon into occupied property if “he intentionally, without legal
justification or excuse, discharges a firearm into occupied property with knowledge
that the property is then occupied by one or more persons or when he has reasonable
grounds to believe that it is occupied.” State v. Jackson, 189 N.C. App. 747, 752, 659
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S.E.2d 73, 77 (citation, quotation marks, and brackets omitted), appeal dismissed and
disc. review denied, 362 N.C. 512, 668 S.E.2d 564 (2008), cert. denied, 555 U.S. 1215,
173 L. Ed. 2d 662 (2009). By its express terms, the statute encompasses shots being
fired into an occupied vehicle and contains no requirement that such a vehicle be in
operation at the time of the offense. See N.C. Gen. Stat. § 14-34.1(a).3
In the MAR Order, the trial court concluded that, under the factual
circumstances of Defendant’s case, it was improper for the trial court to instruct the
jury on felony murder. This ruling was based upon the proposition that for purposes
of the felony murder rule the very same “assaultive act” — here, Defendant’s act of
firing his gun through an open car window into Sanchez’s stomach — cannot
constitute both the cause of the victim’s death and the basis for the predicate felony.
In order to fully assess the validity of the MAR Order, it is necessary to
examine in some detail several pertinent cases from our Supreme Court and this
Court. In State v. Wall, 304 N.C. 609, 286 S.E.2d 68 (1982), the Supreme Court
considered whether the offense of discharging a weapon into occupied property could
provide the basis for a felony murder conviction. In that case, the defendant was a
convenience store clerk who followed a woman out of his store after she had refused
to pay for a six-pack of beer. The woman climbed into a car, and as she and the driver
were pulling away, the defendant fired three shots at the car with his pistol. The first
3If the vehicle is in operation at the time of the offense, however, the offense is raised from a
Class E felony to a Class D felony. See N.C. Gen. Stat. § 14-34.1(b).
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shot missed the vehicle while the “latter two shots appeared to strike the
automobile[,]” with one of the bullets striking and killing the driver. Id. at 611, 286
S.E.2d at 70. The defendant was convicted of first-degree murder based upon the
felony murder rule — the underlying felony being the offense of discharging a weapon
into occupied property. Id. at 612, 286 S.E.2d at 71.
On appeal, the defendant argued that the Supreme Court should adopt the
“merger doctrine” articulated in People v. Ireland, 70 Cal. 2d 522, 450 P.2d 580 (1969).
Wall, 304 N.C. at 612, 286 S.E.2d at 71. In Ireland, the California Supreme Court
held that a “felony-murder instruction may not properly be given when it is based
upon a felony which is an integral part of the homicide and which the evidence
produced by the prosecution shows to be an offense included in fact within the offense
charged.”4 Ireland, 70 Cal. 2d at 539, 450 P.2d at 590.
Our Supreme Court acknowledged that “[t]he felony of discharging a firearm
into occupied property appears to be such an integral part of the homicide in the
instant case as to bar a felony-murder conviction under the California merger
doctrine.” Wall, 304 N.C. at 612, 286 S.E.2d at 71 (internal citation omitted).
4 It is important to distinguish the “merger doctrine” discussed in Ireland and throughout this
opinion from the entirely separate merger rule that requires a defendant’s conviction for the predicate
felony to be arrested after he is convicted of felony murder. See State v. Moore, 339 N.C. 456, 468, 451
S.E.2d 232, 238 (1994) (“When a defendant is convicted of first degree murder pursuant to the felony
murder rule, and a verdict of guilty is also returned on the underlying felony, this latter conviction
provides no basis for an additional sentence. It merges into the murder conviction, and any judgment
imposed on the underlying felony must be arrested.” (citation and alteration omitted)).
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However, the Supreme Court expressly declined to adopt that doctrine, explaining
that on prior occasions it had “expressly upheld convictions for first-degree felony
murder based on the underlying felony of discharging a firearm into occupied
property. We elect to follow our own valid precedents.” Id. at 612-13, 286 S.E.2d at
71 (internal citations omitted).
The Court further observed that the defendant’s disagreement with the felony
murder rule was more appropriately addressed to the General Assembly than the
Judicial Branch:
Our General Assembly remains free to abolish felony
murder or, as the Courts did in California, to limit its effect
to those other felonies not “included in fact within” or
“forming an integral part of” the underlying felony. . . . We
do not believe it is the proper role of this Court to abolish
or judicially limit a constitutionally valid statutory offense
clearly defined by the legislature.
Id. at 615, 286 S.E.2d at 72. Accordingly, the defendant’s felony murder conviction
in Wall was upheld. Id. at 622, 286 S.E.2d at 76.
The Supreme Court reaffirmed its rejection of the California “merger doctrine”
in several subsequent cases where the offense of discharging a weapon into occupied
property supplied the basis for a felony murder conviction. See State v. King, 316
N.C. 78, 81-82, 340 S.E.2d 71, 74 (1986) (“Defendant argues that the ‘merger doctrine’
prohibits the application of the felony-murder rule whenever the predicate felony
directly results in or is an integral element of the homicide. . . . In State v. Wall, we
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were asked to adopt the ‘merger doctrine’ but declined to do so . . . . The defendant
has presented no argument to warrant a change in our position.” (internal citation
omitted)); State v. Mash, 305 N.C. 285, 288, 287 S.E.2d 824, 826 (1982) (“[D]efendant
argues that this Court should adopt the ‘merger doctrine’ to bar application of the
felony-murder rule to homicides committed during the perpetration of the felony of
discharging a firearm into occupied property. For the reasons stated in State v. Wall,
we decline to change the existing law.” (internal citation omitted)).
In the MAR Order, the trial court recognized that Wall had, in fact, rejected
the “merger doctrine” articulated in Ireland. However, the trial court placed great
reliance upon a footnote — footnote three — in the Supreme Court’s later decision in
State v. Jones, 353 N.C. 159, 538 S.E.2d 917 (2000), construing the footnote as
providing an exception to the general rule articulated in Wall.
In Jones, the defendant crashed his vehicle into another vehicle occupied by
six persons, two of whom died as a result. Id. at 161, 538 S.E.2d at 921. Pursuant to
the felony murder rule, the defendant was convicted of the murders of the two
deceased victims based upon the predicate felony of assault with a deadly weapon
inflicting serious injury that he perpetrated against the other occupants of the
vehicle. Id. at 165, 538 S.E.2d at 923.
On appeal to the Supreme Court from a divided panel of this Court upholding
his convictions, the defendant argued that the trial court had improperly permitted
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his first-degree murder conviction to be predicated upon an underlying felony that
could be established through a showing of criminal negligence rather than actual
intent.5 The Supreme Court agreed with this argument and overturned the
defendant’s felony murder convictions. Id. at 163, 538 S.E.2d at 922.
While the holding in Jones is not directly relevant to the present case, the
Court stated the following in a footnote:
Although this Court has expressly disavowed the so-called
“merger doctrine” in felony murder cases involving a
felonious assault on one victim that results in the death of
another victim, cases involving a single assault victim who
dies of his injuries have never been similarly constrained.
In such cases, the assault on the victim cannot be used as
an underlying felony for purposes of the felony murder rule.
Otherwise, virtually all felonious assaults on a single
victim that result in his or her death would be first-degree
murders via felony murder, thereby negating lesser
homicide charges such as second-degree murder and
manslaughter.
Id. at 170 n.3, 538 S.E.2d at 926 n.3 (internal citation omitted and emphasis added).
The MAR Order also discussed State v. Carroll, 356 N.C. 526, 573 S.E.2d 899
(2002), which referenced the above-quoted footnote from Jones. In Carroll, the
5 Assault with a deadly weapon inflicting serious injury may be established through a showing
of criminal negligence rather than actual intent. See id. at 164-65, 538 S.E.2d at 922-23 (“[A] driver
who operates a motor vehicle in a manner such that it constitutes a deadly weapon, thereby
proximately causing serious injury to another, may be convicted of [assault with a deadly weapon
inflicting serious injury] provided there is either an actual intent to inflict injury or culpable or
criminal negligence from which such intent may be implied.” (emphasis added)).
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defendant struck the victim in the head with a machete and then proceeded to
strangle her to death. The jury found the defendant guilty of felony murder based
upon the underlying felony of assault with a deadly weapon inflicting serious bodily
injury, which occurred when the defendant struck the victim with the machete. Id.
at 534, 573 S.E.2d at 905.
On appeal to the Supreme Court, the defendant argued that the trial court had
erred by instructing the jury on felony murder based upon the predicate felony of
assault with a deadly weapon inflicting serious bodily injury, contending that footnote
three in Jones stood for the proposition that “where a felonious assault culminates in
or is an integral part of the homicide, the assault necessarily merges with the
homicide and cannot constitute the underlying felony for a felony murder conviction.”
Id. at 535, 573 S.E.2d at 906. The defendant then asserted that “he engaged in one
continuous assault on the victim that culminated in her death because [his] initial
act of striking the victim with a machete cannot exist separately and independently
from the acts causing [the victim’s] death.” Id. The Supreme Court rejected this
reasoning, stating as follows:
Defendant has misconstrued the language of State v. Jones.
Jones precluded the use of assault as the underlying felony
for a felony murder conviction only when there is a single
assault victim who dies as a result of the injuries incurred
during the assault. The victim in defendant’s case,
however, did not die as a result of the assault with the
machete. The blow to her head was not fatal. Rather, the
cause of death was strangulation. As such, the assault was
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a separate offense from the murder. Accordingly, the trial
court did not err in submitting a felony murder instruction
to the jury because the felonious assault did not merge into
the homicide.
Id. (internal citation omitted).
Accordingly, Jones and Carroll stand for the limited proposition that a single
assault on one victim that leads to that person’s death cannot serve as the underlying
felony for purposes of the felony murder rule.6 In the MAR Order, however, the trial
court construed Jones and Carroll as standing for the far broader proposition that no
offense — regardless of whether the offense is classified as an assault or as some
other crime — can serve as the basis for a felony murder conviction where the crime
results from a “single assaultive act” against one victim. In other words, the trial
court reasoned that the term “‘assault’ seems to mean any single act of assaultive
conduct, regardless of the felonious label attached to it.” (Emphasis added.) The trial
court then explained that this logic fully applied to the act of discharging a weapon
into occupied property because “the offense of discharging a weapon into occupied
property, like assault, is an offense against the person, and not against property.”
(Citation and quotation marks omitted.) For this reason, the trial court concluded,
“discharging a weapon into occupied property by firing a single shot directly at the
decedent cannot support a conviction for felony murder.”
6 In its briefs to this Court, the State does not dispute this interpretation of Jones and Carroll.
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The trial court provided additional support for its ruling by citing to a footnote
from this Court’s decision in Jackson. The defendant in Jackson was inside a vehicle
at an intersection when he fired his weapon multiple times into a nearby vehicle
containing two passengers, striking both of them and killing one. Jackson, 189 N.C.
App. at 749, 659 S.E.2d at 75. The defendant was convicted of felony murder,
attempted first-degree murder, and discharging a weapon into occupied property.
The felony murder conviction was predicated upon the offense of discharging a
weapon into occupied property. Id.
On appeal, we upheld the defendant’s convictions and declined to apply the
“merger doctrine.”
Under the merger doctrine, not adopted in North Carolina
but adopted by some states, “‘a . . . felony-murder
instruction may not properly be given when it is based
upon a felony which is an integral part of the homicide and
which the evidence produced by the prosecution shows to
be an offense included in fact within the offense charged.’”
State v. Wall, 304 N.C. 609, 612, 286 S.E.2d 68, 71 (1982)
(quoting People v. Ireland, 70 Cal. 2d 522, 539, 450 P.2d
580 (1969)). “[Our Supreme] Court, however, has expressly
upheld convictions for first-degree felony murder based on
the underlying felony of discharging a firearm into
occupied property.” Id. As we are bound by our Supreme
Court’s decision in Wall, defendant’s arguments regarding
the merger doctrine are rejected.
Id. at 752, 659 S.E.2d at 77 (footnote omitted).
In a footnote, however, we stated the following:
Defendant cites our Supreme Court’s opinion in State v.
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Jones, 353 N.C. 159, 170, n. 3, 538 S.E.2d 917, 926, n. 3
(2000), which stated that although the merger doctrine has
been disavowed, “cases involving a single assault victim
who dies of his injuries have never been similarly
constrained[,]” as authority to overturn defendant’s
conviction in this case. The rule announced in Jones,
however, only applies where there is a single assault
victim. State v. Carroll, 356 N.C. 526, 535, 573 S.E.2d 899,
906 (2002). There being multiple assault victims in this
case, defendant’s argument on this point is without merit.
Id. at 752 n.3, 659 S.E.2d at 77 n.3.
While this footnote in Jackson appears to embrace the reasoning of footnote
three in Jones, Defendant reads it far too broadly. The Jackson footnote cannot be
construed as a definitive ruling by this Court that the felony murder rule does not
apply to instances in which a defendant discharges a weapon into occupied property
containing only one person. To the contrary, the footnote was simply a summary
rejection of a particular argument offered by the defendant on the facts of that case.
This Court was not squarely faced in Jackson with the question currently before us
— that is, whether the felony murder rule may be applied based upon the predicate
felony of discharging a weapon into occupied property where there was a single shot
fired at a single victim.7
We find more instructive our recent decision in State v. Juarez, __ N.C. App.
__, 777 S.E.2d 325, (2015), rev’d on other grounds, __ N.C. __, 794 S.E.2d 293 (2016).
7 Indeed, the footnote in Jackson contains no analysis at all as to why footnote three in Jones
(which dealt solely with the predicate felony of assault) should be extended to the legally distinct
predicate felony of discharging a weapon into occupied property.
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In Juarez, the defendant fired one bullet into a car occupied by only the victim,
shattering a window and striking and killing the victim. The defendant was convicted
of felony murder based upon the underlying felony of discharging a weapon into an
occupied vehicle in operation pursuant to N.C. Gen. Stat. § 14-34.1(b). Id. at __, 777
S.E.2d at 328.
On appeal, the defendant contended that — based on footnote three in Jones
— a single assaultive act could not support a felony murder conviction even where
the underlying felony was discharging a weapon into occupied property rather than
assault. Citing Wall, we rejected this argument, holding that “[o]ur precedent clearly
states that discharging a firearm into occupied property is a felony involving a deadly
weapon, and as such supports a charge of first-degree murder based upon the felony
murder theory.” Id. at __, 777 S.E.2d at 330. Moreover, we explained that the offense
of discharging a weapon into occupied property contained elements not present in
assault crimes and thus did not fall within the “merger doctrine” for assault crimes
as discussed in footnote three in Jones.
Thus, unlike in Jackson, this Court in Juarez expressly considered — and
rejected — a defendant’s argument that the “merger doctrine” precluded a felony
murder conviction based upon the underlying felony of discharging a weapon into
occupied property even where there was only one act and one victim. Defendant seeks
to distinguish Juarez on the ground that it involved a vehicle in operation rather than
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one that was stationary (as in the present case). However, as the State notes, there
was no indication in Juarez that anyone other than the actual victim was in any
danger as a result of the defendant’s actions, and our analysis did not focus on the
potential for harm to third parties arising from the defendant’s conduct.
Our recent decision in State v. Frazier, __ N.C. App. __, 790 S.E.2d 312, disc.
review denied, __ N.C. __, 794 S.E.2d 330 (2016), is also instructive. In Frazier, the
defendant used his hand to repeatedly strike an infant, resulting in the baby’s death.
An expert witness testified that the infant died from blunt force trauma from three
separate applications of force. Defendant was convicted of felony murder based upon
felony child abuse. Id. at __, 790 S.E.2d at 316.
On appeal, the defendant argued that the offense of felony child abuse could
not support a felony murder conviction because “the felony murder merger doctrine
prevents conviction of first-degree murder when there is only one victim and one
assault.” Id. at __, 790 S.E.2d at 320. We refused to adopt this argument, holding
that
[f]elonious child abuse does not merge with first-degree
murder because the crime of felonious child abuse requires
proof of specific elements which are not required to prove
first-degree murder[.] . . . The crime of felonious child abuse
is among those offenses that address specific types of
assaultive behavior that have special attributes
distinguishing the offense from other assaults that result
in death. Therefore, our courts have declined to apply the
“merger doctrine” in cases where the underlying felony
(here, child abuse) was not an offense included within the
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murder.
Id. (internal citation omitted).
In the present case, the offense underlying Defendant’s felony murder
conviction likewise included attributes distinguishing it from other acts that result
in death in that the State was required to prove that Defendant fired his gun into an
occupied vehicle. Defendant seeks to distinguish Frazier based upon the fact that the
defendant in that case struck the victim multiple times whereas there was only one
“assaultive” act in the present case. That reasoning is unavailing, however, given
that our holding in Frazier was not premised on the number of blows inflicted by the
defendant.
***
Taking into account all of the relevant statutory authority and caselaw
discussed above, it is clear that neither the Supreme Court nor this Court has ever
expressly recognized an exception to the felony murder rule for the offense of
discharging a weapon into occupied property. At most, North Carolina courts have
recognized a very limited “merger doctrine” that precludes use of the felony murder
rule in situations where the defendant has committed one assault crime against one
victim and the State seeks to use that assault as the predicate felony for a felony
murder conviction.
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STATE V. SPRUIELL
Opinion of the Court
In his brief, Defendant acknowledges the absence of North Carolina caselaw
clearly supporting his position, noting that “[w]hile no case has yet held that
discharging a weapon into occupied property merges with felony murder, neither this
Court nor our Supreme Court have foreclosed the possibility.” (Emphasis added.)
However, this latter observation — even if true — cannot be bootstrapped into a
conclusion that a reasonable probability exists Defendant would have prevailed on
direct appeal had his counsel made this argument. To the contrary, a ruling in
Defendant’s favor on this issue in his direct appeal would have constituted a
departure from North Carolina’s existing jurisprudence.
Accordingly, Defendant has failed to satisfy the prejudice element of his
ineffective assistance of counsel claim. We therefore reverse the trial court’s MAR
Order.
Conclusion
For the reasons stated above, we reverse the trial court’s 2 December 2015
order granting Defendant’s MAR.
REVERSED.
Judges STROUD and HUNTER, JR. concur.
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