No. COA 13-1353 THIRTEEN A DISTRICT

NORTH CAROLINA COURT OF APPEALS

**************************************************

STATE OF NORTH CAROLINA ))

v. ) From Columbus)

SANTONIO THURMAN JENRETTE )

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DEFENDANT-APPELLANT’S BRIEF

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ii

INDEX

TABLE OF CASES AND AUTHORITIES............................................................iv

QUESTIONS PRESENTED.....................................................................................1

PROCEDURAL HISTORY......................................................................................2

GROUNDS FOR APPELLATE REVIEW...............................................................4

STATEMENT OF THE FACTS...............................................................................4A. An Altercation Which Began At A Football Game Ended With

A Drive-By Shooting............................................................................B. Investigators Found Casings At The Scene And The Stolen

Taurus Burned In A Field.....................................................................C. The Night Of September 22, Jenrette and Reaves Were Pulled

Over For A Faulty Taillight..................................................................D. Jones Went Missing On November 19 And His Body Was

Discovered In The Woods On December 5........................................E. Prisoner Testimony.............................................................................

ARGUMENT..........................................................................................................14

I. THE COURT ERRED BY DECIDING LYING IN WAIT MAY BE SUBMITTED TO THE JURY ANYTIME THERE IS NO ALTERCATION PRIOR TO THE MURDER........................................A. Lying In Wait Cannot Be Submitted Anytime No Altercation

Occurs Before A Murder....................................................................

iii

B. Finding Lying In Wait As Appropriate Any Time A Murder Occurs Without A Prior Altercation Renders The Theory Unconstitutionally Overbroad.............................................................

C. Expanding Lying In Wait To Include Any Murder Without A Prior Altercation Would Strip Intent From Almost All First Degree Murders..................................................................................

D. The Evidence Was Insufficient To Instruct On Lying In Wait...........

II. THE COURT ERRED BY INSTRUCTING ON THE THEORY OF FELONY MURDER BY KIDNAPPING AS FELONY MURDER WAS NOT SUPPORTED BY THE EVIDENCE..................

III. THE COURT COMMITTED PLAIN ERROR BY FAILING TO INSTRUCT THE JURY OF ITS DUTY TO RETURN A NOT GUILTY VERDICT IF THE STATE FAILED TO ESTABLISH GUILT BEYOND A REASONABLE DOUBT........................................

IV. THE JURY CHARGE FAILED TO INDIVIDUALIZE THE CHARGES SUFFICIENTLY TO PROTECT JENRETTE’S RIGHT TO DUE PROCESS AND A FAIR TRIAL................................

V. JOINING TWELVE CHARGES BASED ON INCIDENTS OCCURRING ON THREE DATES INVOLVING FOUR VICTIMS DENIED JENRETTE HIS CONSTITUTIONAL RIGHT TO DUE PROCESS......................................................................

CONCLUSION.......................................................................................................37

CERTIFICATE OF SERVICE AND FILING........................................................37

CERTIFICATE OF COMPLIANCE......................................................................38

APPENDIXJury Charge

iv

TABLE OF AUTHORITIES

Cases

In re Winship, 397 U.S. 358 (1970)..............................................................

Jackson v. Virginia, 443 U.S. 307 (1979).....................................................

N.C. Dep’t of Envtl. & Natural Res. V. Carroll, 358 N.C. 649, 599 S.E.2d 888 (2004).....................................

Pointer v. U.S., 151 U.S. 396 (1894)............................................................

State v, Gardner, 322 N.C. 591, 369 S.E.2d 593 (1988)..............................

State v. Aikens, 342 N.C. 567, 467 S.E.2d 99 (1996)...................................

State v. Allison, 298 N.C. 135, 257 S.E.2d 417 (1979)...............

State v. Baldwin, 330 N.C. 446, 412 S.E.2d 31 (1992).................................

State v. Camacho, 337 N.C. 224, 446 S.E.2d 8 (1994).................................

State v. Camp, 286 N.C. 148, 209 S.E.2d 754 (1974)...................................

State v. Cheek, 339 N.C. 725, 453 S.E.2d 862 (1995)..................................

State v. Daniels, 741 S.E.2d 354, __ N.C.App. __ (2012)............................

State v. Davis, 289 N.C. 500, 223 S.E.2d 296, vacated in part on other grounds, 429 U.S. 809 (1976).......................................

State v. Dunheen, 224 N.C. 738, 32 S.E.2d 322 (1944)................................

State v. Gardner, 322 N.C. 591, 369 S.E.2d 593 (1988)..............................

State v. Green, 348 N.C. 588, 502 S.E.2d 819 (1998)..................................

State v. Howell, 218 N.C. 280, 10 S.E.2d 815 (1940).............................

State v. Johnson, 317 N.C. 193, 344 S.E.2d 775 (1986)...............................

v

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

State v. Lee, 28 N.C.App. 156, 220 S.E.2d 164 (1975)................................

State v. Leroux, 326 N.C. 368, 390 S.E.2d 314 (1990).................................

State v. McHone, 174 N.C.App. 289, 620 S.E.2d 903 (2005)......................

State v. Montford, 137 N.C. App. 495, 529 S.E.2d 247, disc. rev. denied, 353 N.C. 275, 546 S.E.2d 386 (2000).............................

State v. Osorio, 196 N.C. App. 458, 675 S.E.2d 144 (2009)............

State v. Overman, 257 N.C. 464, 125 S.E.2d 920 (1962).............................

State v. Sanford Video & News, Inc., 146 N.C. App. 554, 553 S.E.2d 217 (2001)........................................................................

State v. Silva, 304 N.C. 122, 282 S.E.2d 449 (1981)....................................

State v. Ward, 300 N.C. 150, 266 S.E.2d 581 (1980)...................................

State v. Wiggins, 171 N.C. 813, 89 S.E. 58 (1916).......................................

State v. Williams, 355 N.C. 501, 565 S.E.2d 609 (2002)..............................

State v. Wiseman, 178 N.C. 784, 101 S.E. 629 (1919).................................

Sullivan v. Louisianna, 508 U.S. 275 (1993)................................................

Statutes

Cal. Penal Code 189......................................................................................

N.C. Gen. Stat. § 7A-27(b).............................................................................

N.C. Gen. Stat. §14-17..................................................................................

N.C. Gen. Stat. § 15A-906(a)........................................................................

N.C. Gen. Stat. § 15A-907(c)(2)...................................................................

N.C. Gen. Stat. § 15A-926......................................................................

vi

N.C. Gen. Stat. § 15A-927......................................................................

N.C. Gen. Stat. § 15A-1443(b).....................................................................

N.C. Gen. Stat. § 15A-1444(a)........................................................................

Other Authorities

7 Strong’s North Carolina Index 2d Statutes § 5 (1968)..................................................................................................

Rules

Rule 4(a) N.C.R.App.P...................................................................................

Constitutional Provisions

N.C. Const. Art. I, § 19.....................................................................

N.C. Const. Art. I, § 24.................................................................................

N.C. Const. Art. I, § 27.................................................................................

U.S. Const. Amends. V.....................................................................

U.S. Const. Amends. VI................................................................................

U.S. Const. Amends. VIII.............................................................................

U.S. Const. Amends. XIV.................................................................

No. COA 13-1353 THIRTEEN A DISTRICT

NORTH CAROLINA COURT OF APPEALS

**************************************************

STATE OF NORTH CAROLINA ))

v. ) From Columbus)

SANTONIO THURMAN JENRETTE )

****************************************************

DEFENDANT-APPELLANT’S BRIEF

****************************************************

QUESTIONS PRESENTED

I. WHETHER THE COURT ERRED BY DECIDING LYING IN WAIT MAY BE SUBMITTED ANY TIME NO ALTERCATION OCCURED PRIOR TO A MURDER?

II. WHETHER THE COURT ERRED BY INSTRUCTING ON FIRST DEGREE MURDER BASED ON THE THEORY OF FELONY MURDER BY KIDNAPPING AS KIDNAPPING WAS NOT SUPPORTED BY THE EVIDENCE?

2

III. WHETHER THE COURT COMMITTED PLAIN ERROR BY FAILING TO INSTRUCT THE JURY OF ITS DUTY TO RETURN A NOT GUILTY VERDICT FOR FIRST-DEGREE MURDER IF THE STATE FAILED TO ESTABLISH GUILT BEYOND A REASONABLE DOUBT?

IV. WHETHER THE COURT’S FAILURE TO INSTRUCT INDIVIDUALLY ON EACH CHARGE VIOLATED JENRETTE’S CONSTITUTIONAL RIGHT TO DUE PROCESS?

V. WHETHER JOINING TWELVE CHARGES BASED ON INCIDENTS OCCURRING ON THREE DATES INVOLVING FOUR VICTIMS DENIED JENRETTE HIS CONSTITUTIONAL RIGHT TO DUE PROCESS?

PROCEDURAL HISTORY

On 11 November 2007 Santonio Jenrette was indicted on the

following charges:

07 CRS 53533 PWISD Cocaine

07 CRS 53537 Possession of a stolen firearm;

On 9 January 2008, Jenrette was indicted on the following charges:

08 CRS 00081 Possession of a firearm by a felon

08 CRS 00082 First degree murder of Darnell Antonio Frink

08 CRS 00083 AWDWIKISI: William Jermaine Inman

08 CRS 00084 AWDWIKISI: Antwan Tramaine Waddell

3

08 CRS 00085 Conspiracy to commit 1st degree murder

08 CRS 00093 First degree murder of Rashed Delamez Jones

08 CRS 00091 Conspiracy to commit 1st degree murder

08 CRS 00092 Possession of a firearm by a felon

08 CRS 00094 First degree kidnapping

08 CRS 00096 Conspiracy to commit first degree kidnapping

The case came on for trial at the 24 June 2013 Session of the Columbus County

Superior Court, the Honorable Douglas B. Sasser, presiding. At the close of all of

the evidence, the Court dismissed possession of a stolen firearm. On 3 July 2013

the jury found Mr. Crowder not guilty of first degree kidnapping and not guilty of

conspiracy to commit first degree kidnapping. The jury found defendant guilty of

the remaining counts.

The Court sentenced Mr. Jenrette to life in prison without parole on each

murder convictions, 08 CRS 00082 and 08 CRS 00093, to run consecutively. The

Court ran the following sentences concurrently to 08 CRS 00093: in file number 07

CRS 53533, possession with intent to sell and/or deliver cocaine, eight month

minimum to ten month maximum; in file number 08 CRS 00081, a minimum of 15

months and a maximum of 18 months; in each count of assault with a deadly

weapon with intent to kill inflicting serious injury, 08 CRS 00083 and 08 CRS

4

00084, a minimum of 100 months and a maximum of 129 months; in each count of

conspiracy to commit murder, file numbers 08 CRS 00085 and 08 CRS 00091, a

minimum of 189 months and a maximum of 236 months, with credit for time

served; in file number 08 CRS 00092, possession of a firearm by a felon, a

minimum of 15, maximum of 18 months.

Notice of appeal was given in open court on 3 July 2013. The settled Record

on Appeal was filed in this Court on 4 December 2013 and docketed on 4

December 2013.

GROUNDS FOR APPELLATE REVIEW

This is an appeal of right pursuant to the provisions of N.C. Gen. Stats. §§

7A-27(b) and 15A-1444(a) and Rule 4(a) N.C.R.App.P. from final judgments of

conviction by a defendant who pled not guilty and was found guilty of non-capital

crimes.

STATEMENT OF THE FACTS

Santonio Jenrette was indicted on twelve charges, stemming from three

different incidents. The first incident occurred on September 21, 2007. Darnell

Frink was shot and killed and two other young men injured by bullets when

individuals fired shots from a stolen Ford Taurus which was being driven past a

crowd of young people gathered at Sam’s Pit Stop in Lake Waccamaw after a high

5

school football game. The second incident occurred the next evening. Jenrette was

the driver of an Acura stopped for a taillight violation. Jenrette’s brother Connail

Reaves was a passenger. Investigators found cocaine and firearms in the car and on

Reaves’s person. The third incident occurred on or about November 19, 2007.

Rashed Delamez Jones, a passenger in the Taurus during the drive-by shooting,

was shot numerous times. His body was found in the woods on December 5, 2007.

Marquell Hunter and Reaves entered guilty pleas. Joey Soles, who witnesses

testified was a passenger in the Taurus, died during an unrelated incident. (Tp.

1225) Jenrette entered a plea of not guilty and went to trial.

A. An Altercation Which Began At A Football Game Ended With A Drive-By Shooting

Jason Williams arrived at a Whiteville versus East Columbus football game

during the fourth quarter. Williams rode to the game in a Tahoe along with Darnell

Frink, Travis Williams, Eugene Williams and William Inman. Williams met up

with Reaves. Reaves was agitated. He took his shirt off preparing to fight, but the

men parted. (Tpp. 527-528) After the game, Williams and his friends drove to

Sam’s Pitt Stop. Travis was sent inside to pay for gas and buy beer. (Tpp. 531-532)

While waiting for Travis, Williams spotted a car driving in with guns pointing out

the windows. Williams was standing next to Frink. Frink was killed by shots fired

from the car. (Tpp. 533, 535) Williams never saw Jenrette at the game or at the

6

store. Williams told SBI Agent Hickman he was one hundred percent sure it was

Reaves who fired on him and Frink. (Tp. 551)

William Inman was standing with Williams and Frink. Inman saw four

masked people in the Taurus. When he saw the passengers had guns, Inman ran

behind the Tahoe. After he ducked down, Inman realized he had been shot. Inman

had not seen Jenrette that night, either at the game or at the store. (Tpp. 596, 601)

He didn’t learn until later there had been an argument at the game between Reaves

and Thurman Jenrette (known as L.T.), Jenrette’s older brother. (Tp. 596) Antwan

Waddell, a freshman at East Columbus, was also at Sam’s Pitt Stop. He did not

know Inman or Frink. Waddell heard shots, ran and then realized he was shot.

(Tpp. 556-563)

Reaves testified he drove to the game in a silver Taurus that Soles was

allowing him to drive. Hunter rode with Reaves and Soles. Jenrette did not go to

the game with Reaves. (Tpp. 1142, 1147) His nephew, Delamez Jones, came up to

Reaves during the game. Delamez complained to Reaves that Eugene Williams

“had jacked him up.” Reaves walked over to Williams and asked if he had

problems with his little cousin. He saw Williams and others taking off their shirts,

so he took his off too. Reaves told L.T. they shouldn’t fight there because of police

presence. (Tpp. 1144-1145) After Reaves drove away from the stadium, he turned

7

in to the store where Eugene Williams was standing. Soles, Hunter and Jones were

riding in the Taurus with Reaves. Reaves had three guns, a 24 caliber, a 45 caliber

and a 44 caliber. Reaves testified he fired the 25 caliber one time. Soles and Hunter

were also shooting. Reaves told the jury the shooting was in retaliation for an

earlier incident during which individuals fired shots at an Expedition he was

driving. His friend had been shot in the chest. (Tpp. 1148 -1149) After the

shooting, Reaves dropped off Jones at Shooters. He burned the car in a field. (Tp.

1149) After pleading guilty to second degree murder, he was sentenced to 157 to

197 months. (Tp. 1156) On cross-examination, Reaves admitted he had signed a

written statement attached to his plea agreement which alleged Jenrette was at the

game and in the Taurus. Reaves testified he would have signed anything to get a

lesser sentence. (Tpp. 1168, 1176)

Jenrette testified on the night of the game he was in Stanley Circle, where

his grandmother lived, selling marijuana. He denied going to the game, picking

anyone up at the game or dropping anyone off at the pool hall. (Tpp. 1187. 1190)

Sabrina Moody, an aunt of Delamez, attended the game because her son

played for Whiteville. (Tp. 644) Moody drove Delamez to the game. She told him

he could walk around during the game, but to find her before the game ended.

During the game, Moody saw L.T., Reaves, Hunter and Delamez standing together

8

at the food stand. She did not see Jenrette at the game. (Tp. 668) After the game,

her daughter spotted Delamez in the crowd, but was unable to get his attention.

Moody called his mother and was told she could leave without Delamez. (Tpp.

647-648) Moody dropped off other children she had taken to the game, including

her mother’s foster son. As Moody was backing out of her mother’s driveway, she

saw a green Taurus. She testified she saw Jenrette, Hunter and another person get

out of the Taurus and move guns to an abandoned car. (Tpp. 651-653) Delamez’s

mother, Maybelline Moody, testified she called Jenrette twice after the football

game. The second time Jenrette told her he had given L.T. and Delamez a ride

from the game to Shooters. She picked up Delamez at Shooters. (Tpp. 852-853,

855)

B. Investigators Found Casings At The Scene And The Stolen Taurus Burned In A Field

Adam Sellers, an officer with the Lake Waccamaw Police Department, was

assigned to Sam’s Pit Stop on September 21, 2007. After high school games

anywhere from 50 to 60 cars could be gathered at the Pit Stop. (Tp. 606) The

owner of the Pit Stop complained merchandise was missing after games and “a

little stuff” went on in the parking lot. (Tp. 607) Somewhere around 10:00 p.m.,

when he was inside the store, Sellers heard gunshots and people screaming. (Tpp.

9

609-612) Sellers collected shell casings and fragments at the scene. He estimated

there were seven or eight shots. (Tpp. 619, 628)

Johnny Sellers called in a car stolen from his used car lot the morning of

September 21, 2007. A 25 caliber handgun was also stolen from his business. (Tpp.

492, 498) A video of the Taurus driving through Sam’s Pit Stop was shown to the

jury. (Tp. 520)

Eric Pike called the police at about 10:45 on September 22 when barking

dogs alerted him to flames over the hill in the back of a field. He could see a car

with flames shooting out the top. Pike saw a small four-door car driving away. A

very tall black male, 6’3” or 6’5”, got into the passenger side of the car. (Tpp. 677,

681, 684, 686) SBI Agent Kevin Oliver examined the Taurus. In his opinion the

fire started around the right rear quarter panel area, most likely by sticking a rag

material into the filler neck of the gas tank. (697, 702).

Pathologist John D. Butts testified the Frink autopsy revealed seven shots.

Frink died from the gunshot wounds. (Tp. 1015)

C. The Night Of September 22 , Jenrette and Reaves Were Pulled Over For A Faulty Taillight

Whiteville patrol officer Ronald Edwards testified he was patrolling the area

around Shooters on September 22. Edwards saw an Acura he thought suspicious

10

because it parked parallel to the building. (Tp. 727) Officer Memory told Edwards

over the radio that a taillight on the Acura was out. (Tp. 730) Memory stopped the

car. Jenrette was the driver. Reaves was in the rear passenger seat. (Tpp. 712-714)

Edwards aimed his flashlight in the car and spotted pistols on the floorboard

between Reaves’s legs. (Tpp. 715-716) Officer Hedwin took custody of Jenrette,

handcuffed him and placed him in the back seat of his patrol car. (Tpp. 720, 742)

The 25 caliber pistol stolen from Sellers was found in Reaves’s pocket. (Tpp. 758,

812) Reaves testified the two guns found in the car and the one found in his pocket

were his. (Tpp. 1147, 1152-1153) Hedwin found two baggies containing crack in

the patrol car and another hard rock substance in the Acura. Marijuana was found

in Reaves’s pocket. (Tpp. 723, 752-755, 808, 812) SBI Agent Timothy Suggs

tested the materials and determined the crack in one baggie weighed seven tenths

of a gram and the crack in the second baggie weighed nine point three grams. (Tp.

777) Reaves testified all of the seized marijuana and crack belonged to him. (Tp.

1153)

After patting down and handcuffing Jenrette, Hedwin placed him in the back

seat of his patrol car. While searching the Acura, Hedwin noticed the backdoor of

his patrol car was open and Jenrette was gone. (Tp. 750) Jenrette testified he

opened the back door of the patrol car by shifting in his seat and reaching for the

handle. When the door came open he ran, flagged down a car and drove to his

11

aunt’s house, where he stayed for about two months. (Tpp. 1197-1198) He then

took a bus to Indiana where he had family. (Tp. 1199) Peter Baum, a police officer

in Indiana, received information that Jenrette was living in the Dory Miller projects

in Gary. He arrested Jenrette. (Tpp. 938-939) Jenrette waived extradition and was

transported back to North Carolina based on charges stemming from the September

22 arrest. (Tp. 1113-1114) A camcorder, containing a video of Jenrette performing

rap, was seized from Jenrette in Indiana. The rap video was played for the jurors.

(Tp. 1105)

Eugene Bishop, a detective with the Cumberland County Sheriff’s Office,

examined shell casings recovered from Sam’s Pit Stop with the guns recovered

September 22nd. In Bishop’s opinion the seven recovered shell casings were fired

from the 45 caliber pistol found on the floorboard of the Acura. (Tp. 1056)

D. Jones Went Missing On November 19 And His Body Was Discovered In The Woods On December 5

Maybeline Moody testified she last saw her son when he boarded a school

bus on the morning of November 19, 2007. That afternoon she was delayed

returning from a medical appointment and asked her mother care for Delamez.

When Moody arrived at her mother’s house, Delamez had left. (Tpp. 860-863)

That night she rode around searching for him. The next morning she contacted

Columbus County Law Enforcement to file a missing person’s report. (Tp. 864)

12

She spent the following days searching for Delamez. She testified on the day after

her son’s disappearance she passed by Jenrette. He told her he didn’t know where

Delamez was and he would not look at her. (Tpp. 664, 866) On December 5, 2007,

the Columbus County Sheriff’s Department told her they had found Delamez’s

body. (Tpp. 666, 867)

Scott Hyatt, Chief of Police of Lake Waccamaw, called Moody in early

November to tell her he was at her house to question Delamez about the Sam’s Pit

Stop shooting. When Moody arrived home, Hyatt was standing on the outside of

the patrol car. Another Lake Waccamaw officer was in the driver’s seat. Delamez

was in the front passenger seat. (Tpp. 858-860) Delamez did not tell her anything

after the police interview. He became nervous and fidgeted. (Tpp. 656, 861)

Rebecca White testified she lent her car to Jenrette on November 18, 2007

and he returned it on November 19, 2007. (Tpp. 902, 904) The car had been

washed and vacuumed. (Tpp. 905, 1073)

Thomas Ward discovered a body in the woods on December 5. Pallets were

lying in the woods about fifty feet from the road. Ward saw a hand sticking out

from underneath the pallets. (Tpp. 878-881) Several photographs of the scene and

the body were shown to the jury. (Tp. 915) Dr. Butts testified the cause of death

13

was a gunshot wound that struck Jones’s back, damaging the lungs, spinal cord and

blood vessels. Three bullets were collected during the autopsy. (Tp. 1018)

E. Prisoner Testimony

The State called Rufus McMillian, Aaron McDowell and Jeffrey Allen

Morton to testify to what they allegedly heard or overheard while in custody.

McMillian testified he could not recall if he had talked with Jenrette about Frink.

He had not had a conversation about Jones. (Tpp. 952-953) Jeffrey Morton was

called to testify to conversations he allegedly overheard between Jenrette and

McMillian. According to Morton, Jenrette told McMillian that Jenrette fired one

shot in Sam’s Pit Stop and then handed the gun to Jones. Later Jones was shot

because he was the weak link. (Tp. 985, 987, 989) Aaron McDowell grew up in

Bladen County. (Tp. 959) He and Jenrette were both in custody in the Columbus

County jail from August to October 2012. (Tp. 975) McDowell testified Jenrette

told him he was not at the football game, but that Jones was involved in a shooting.

According to McDowell, Jenrette was afraid Jones would snitch. McDowell

testified Jenrette and Jones were at a football game together, Jones got drunk and

Jenrette took him to a secluded area where he shot him. (Tpp. 967-969)

14

ARGUMENT

I. THE COURT ERRED BY DECIDING LYING IN WAIT MAY BE SUBMITTED TO THE JURY ANYTIME THERE IS NO ALTERCATION PRIOR TO THE MURDER

During the charge conference, the prosecutor requested the jury be instructed

on the first degree murder of Darnell Frink based on three theories: premeditation

and deliberation; felony murder based on assaults; and lying in wait. (Tp. 1291)

Jenrette objected to submission of lying in wait. (Tpp. 1292-1293) Jenrette

motioned to dismiss all charges based on insufficiency of the evidence. (Tpp. 1121,

1268) The court overruled the objections and instructed the jury on lying in wait.

The jury found Jenrette guilty under all three theories. The evidence viewed in the

light most favorable to the state is insufficient to support lying in wait. As the

court’s interpretation of when lying in wait applies was contrary to the statute,

contrary to case law and violated the defendant’s constitutional rights to due

process and trial before an unbiased jury, this Court must find reversible error.

The constitutional right to due process requires the State prove beyond a

reasonable doubt every fact necessary for a criminal conviction. In re Winship, 397

U.S. 358 (1970). A conviction predicated on evidence insufficient to permit a

reasonable juror to find that the State has proven beyond a reasonable doubt every

element of the offense is a violation of due process of law. Jackson v. Virginia, 443

15

U.S. 307 (1979). When an error is based on a constitutional right, the trial court’s

ruling is a question of law and is reviewed de novo. State v. Gardner, 322 N.C.

591, 594, 369 S.E.2d 593, 597(1988).

A. Lying In Wait Cannot Be Submitted Any Time A Murder Occurs Without A Prior Altercation

The state argued the jury should be instructed on lying in wait based on a

Lexis headnote in State v. Allison, 298 N.C. 135, 257 S.E.2d 417 (1979):

MR. BOLLINGER: If you will look at headnote 13 I think it kind of goes to the crux of the issue there. The gravamen of lying in wait is that it was an assault upon the victim, a murderous assault upon the victim, when he was unaware that it was coming.

(Tpp. 1291-1292) Defendant objected. (Tpp. 1292-1293) The court read the

headnotes and concluded that lying in wait would fit just about any murder:

THE COURT: Look at the headnotes, there is testimony that they drove by, saw the people standing around, went around, repositioned the car, came back by, no advance notice—what it seems to boil down to—he may be aware of his presence but, again, is not aware of his purpose to kill him. I’m surprised it’s not used more often based upon the language in the headnote, but certainly based upon the Court’s prior holding it can be used in a lot more situations. Any time you have a murder that there’s not some kind of altercation prior to the murder occurring.

(Tpp. 1295-1296) (emphasis added) Defense counsel objected, but the court

reiterated that in accordance with the headnote, drive-by shootings could be

16

considered lying in wait: “At this point I am following the law and it certainly

seems to—based on the headnote that’s what the qualification would be and they

can probably seek a lot more often than they do.” (Tp. 1296) Defense counsel

objected again and the objection was noted. (Tp. 1296)

Lexis headnotes are not precedential authority. If the judge had instead

depended on the opinion in the context of the facts it would have been clear that

the reasoning in Allison is in accord with almost 100 years of North Carolina

precedent which repeatedly holds that lying in wait means what the words say—

the assailant situated himself in a location to wait for the victim. Allison cites to

cases from 1916, 1919 and 1944. In the 1916 case the victim was riding a mule

down toward Robbinsville around 7:30 a.m. when he passed two men at a big

chestnut tree at Hazel Branch. After he passed the chestnut tree, the defendants

shot him in the back. State v. Wiggins, 171 N.C. 813, 89 S.E. 58 (1916). Allison

next discussed State v. Wiseman, 178 N.C. 784, 101 S.E. 629 (1919). Wiseman

was killed at twilight by two men waiting for him to disembark from a train at

Glen Alpine. The third case discussed in Allison is State v. Dunheen, 224 N.C. 738,

32 S.E.2d 322 (1944). William Dunheen purchased a twelve-gauge shotgun and

five shells, telling the seller he wanted them to shoot frogs and moccasins. He

concealed the gun in a hedge around a mill log in the town of Gibsonville. At about

8:00 a.m. Dunheen was seen stooping behind the hedge. As Laura Riley passed by

17

with a companion at about 9:15 a.m Dunheen shot and killed Ms. Riley. Dunheen

at 738, 32 S.E.2d at 322. Our Supreme Court in Allison interpreted these older

cases as holding:

[T]hat when G.S. 14-17 speaks of murder perpetrated by lying in wait, it refers to a killing where the assassin has stationed himself or is lying in ambush for a private attack upon his victim. An assailant who watches and waits in ambush for his victim is most certainly lying in wait. However, it is not necessary that he be actually concealed in order to lie in wait.

Allison at 147-148, 257 S.E.2d at 425. The facts in Allison comport with this

interpretation. The defendant had parked his car waiting for his wife to return to

her son’s trailer. Mrs. Allison set her purse on the car fender and carried packages

into the trailer. While she did this, defendant stood near a tree. When Mrs. Allison

returned to retrieve her purse, defendant shot her. Id. The issue discussed in Allison

was whether the defendant needed to be concealed at the time of the murder, not

whether the defendant needed to be lying in wait. In Allison and in all of the cases

cited by Allison, the defendants were lying in wait for the victim to pass by:

Wiggins by the chestnut tree; Wiseman at the train station; Dunheen behind a

hedge; and Allison near a tree.

In Jenrette’s trial, the prosecutor convinced the trial court to take language

from the headnote in Allison and ignore the context. Allison holds, in accordance

with long-standing precedent, submission of the theory of lying in wait depends on

evidence that the defendant placed himself somewhere and waited for the victim.

18

The prosecutor’s argument that lying in wait can be submitted anytime a victim

who is not expecting to be killed is killed is not the Allison holding nor is it a

rational extension of Allison. Later cases which cite to Allison as authority do not

support the prosecutor’s argument. See, e.g. State v. Aikens, 342 N.C. 567, 467

S.E.2d 99 (1996) (Defendant hid in a bedroom came out, shot the victim once, hid

in the kitchen and shot the victim again when the victim entered the kitchen.);

State v. Camacho, 337 N.C. 224, 446 S.E.2d 8 (1994) (Defendant hid in a closet,

waited for the victim, jumped out of the closet and beat her to death with a

hammer.); State v. Baldwin, 330 N.C. 446, 412 S.E.2d 31 (1992) (Lying in wait is

the physical act of a person “who watches and waits in ambush for his victim”);

State v. Leroux, 326 N.C. 368, 390 S.E.2d 314 (1990) (Assailants were waiting on

the fairway of a dark golf course.).

B. Finding Lying In Wait As Appropriate Any Time A Murder Occurs Without A Prior Altercation Renders The Theory Unconstitutionally Overbroad

Our appellate courts have applied lying in wait narrowly to situations in

which the perpetrator has stationed himself in a location to wait for the victim. The

judge’s suggestion that it should instead apply anytime there is no prior altercation

would render the statute unconstitutionally vague and overbroad. A criminal statute

must be definite as to the persons within its scope and acts proscribed. “A statute is

unconstitutionally vague if it either: (1) fails to ‘give the person of ordinary

19

intelligence a reasonable opportunity to know what is prohibited’; or (2) fails to

‘provide explicit standards for those who apply [the law].’” State v. Daniels, 741

S.E.2d 354, __ N.C.App. __ (2012), quoting State v. Sanford Video & News, Inc.,

146 N.C. App. 554, 556, 553 S.E.2d 217, 218 (2001), quoting State v. Green, 348

N.C. 588, 597, 502 S.E.2d 819, 824 (1998). “A statute which either forbids or

requires the doing of an act in terms so vague that men of common intelligence

must necessarily guess at its meaning and differ as to its application violates the

first essential of due process of law.” Green at 597, 502 S.E.2d at 824. The judge

in this case interpreted lying-in-wait as encompassing any murder in which

“there’s not some kind of altercation prior to the murder occurring.” As this would

include just about all murders, it renders the statutory theory “lying-in-wait” an act

for which “men of common intelligence” would necessarily have to guess when it

would be submitted to the jury.

N.C. Gen. Stat. §14-17 lists theories by which an individual can be

convicted of first degree murder. One of the theories in the list is simply termed

“lying in wait.” It is an established rule of statutory construction that “where the

language of a statute is clear and unambiguous, there is no room for judicial

construction, and the courts must give [the statute] its plain and definite meaning,

and are without power to interpolate, or superimpose, provisions and limitations

not contained therein.” State v. Camp, 286 N.C. 148, 152, 209 S.E.2d 754, 756

20

(1974) (quoting 7 Strong’s North Carolina Index 2d Statutes § 5 (1968). In

Jenrette’s trial, the court’s interpretation of lying in wait had no connection to the

words of the statute. Instead the court superimposed provisions that ignore the

statutory words. By finding lying in wait means anytime a murder occurs without a

prior altercation, the court violated well-established statutory construction and in

so doing rendered the statute unconstitutionally vague and overbroad.

C. Expanding Lying In Wait To Include Any Murder Without A Prior Altercation Would Strip Intent From Almost All First Degree Murders

Our Supreme Court has held that in order to convict a defendant under the

theory of lying in wait it is not necessary for the state to prove intent: “a specific

intent to kill is . . . . irrelevant when the homicide is perpetrated by means of

poison, lying in wait, imprisonment, starving, or torture.” State v. Johnson, 317

N.C. 193, 203, 344 S.E.2d 775, 781 (1986). Thus, if lying in wait can be submitted

in any case in which there has not been a prior altercation, the lying in wait theory

will be applicable to almost every first degree murder. Only those murders which

take place during a fight or in which the victim has prior knowledge that the

defendant intends murder will retain the element of specific intent.

D. The Evidence Was Insufficient To Instruct On Lying In WaitThe evidence in the light most favorable to the state showed two groups of

young men, one group from Stanley Circle and one group from Chadbourn, were

21

involved in an altercation at the stadium. Jason Williams testified Reaves

approached him at the game, was “aggressive like”, “trying to fight” and “came out

of his shirt.” Eugene Williams was involved in this confrontation. The fight did not

take place, because “Somebody came up and stood between us.” (Tpp. 528, 548-

549) As he left the game, Williams saw Reaves sitting beside the road talking on

his cellphone. The prosecutor asked the record show Williams “reached his arm

out and pointing his finger as if he’s pulling the trigger.” (Tp. 530) Reaves agreed

the confrontation began at the game. Reaves explained Jones walked up to him at

the game and told him he had been “jacked up” by Eugene Williams. Reaves saw

the group that had “jacked up” Jones taking their shirts off. Reaves told L.T. they

could not fight then because of the police. (Tp. 1144) According to Reaves the bad

feeling between the two groups of young men was long standing. He testified an

earlier shooting had occurred when one of his friends was shot in the chest while

he was riding with Reaves. (Tp. 1148) The two groups left the stadium heading for

Sam’s Pit Stop. The Chadbourn group arrived at the gas station first, parked the

Tahoe and stood around the vehicle. Reaves drove into the station in the stolen

Taurus. Williams testified he saw the Taurus drive in: “I seen the car, I seen the

guns, I seen the windows down and the guns and I told everybody to get down.”

(Tp. 536) In the light most favorable to the state, the confrontation began at the

stadium. The venue of the confrontation moved to Sam’s Pit Stop to avoid police.

22

When Reaves drove in, the guns were visible, giving Williams time to yell to

everyone to duck. Jason Williams knew it was Reaves who fired on him. (Tp. 551)

No evidence showed that Reaves and his passengers were waiting, either hidden or

observable, for the Chadbourn group.

“Where the language of a statute is clear and unambiguous, there is no room

for judicial construction and the courts must construe the statute using its plain

meaning.” State v. Cheek, 339 N.C. 725, 728, 453 S.E.2d 862, 864 (1995). The

words “lying in wait” are clear and unambiguous. If our legislature determines that

drive-by shootings deserve a separate theory, a statute can be enacted. See e.g.,

Cal. Penal Code 189. Interpreting lying in wait to include drive-by shootings,

renders the theory unconstitutionally broad and vague, as according to the trial

court’s interpretation lying in wait would include any murder in which the victim

did not know he or she was about to be killed. As lying in wait does not require

proof of intent, an expansive interpretation of the theory would remove the element

of intent from most murders. The trial court erred by instructing the jury on lying

in wait, as the evidence most favorable to the State was insufficient to prove first

degree murder by lying in wait.

23

II. THE COURT ERRED BY INSTRUCTING ON THE THEORY OF FELONY MURDER BY KIDNAPPING AS FELONY MURDER WAS NOT SUPPORTED BY THE EVIDENCE

The court instructed the jury to consider two theories of first degree murder

for the death of Delamez Jones: premeditation and deliberation and felony murder

based on kidnapping. The jury was also instructed on the separately indicted

offenses of first degree kidnapping and conspiracy to commit kidnapping of Jones.

The jury returned verdicts finding Jenrette guilty under both submitted theories of

first degree murder, but not guilty of either first degree kidnapping or conspiracy to

commit kidnapping. The only evidence which could possibly support kidnapping

came from the testimony of jailhouse snitches. This paucity of evidence led to the

jury verdicts of not guilty for kidnapping and conspiracy to kidnap. Viewed in the

light most favorable to the State, the evidence was insufficient to permit a

reasonable juror to find beyond a reasonable doubt the State had proven Jenrette

committed first degree murder under the theory of felony murder. Defendant had

motioned to dismiss all charges based on insufficiency of the evidence and to set

aside the verdict at the end of the trial. (Tpp. 1121, 1268. 1432)

Whether the trial court’s instruction explained the law as supported by the

evidence presents a question of law, subject to de novo review by this Court. State

v. Osorio, 196 N.C. App. 458, 466, 675 S.E.2d 144, 149 (2009). When reviewing

an issue de novo, the Court considers the matter anew and may substitute its own

24

judgment for that of the trial court. N.C. Dep’t of Envtl. & Natural Res. V. Carroll,

358 N.C. 649, 660, 599 S.E.2d 888, 895 (2004) When an instructional error is not

objected to, the defendant must demonstrate fundamental error, that, after

examination of the entire record, the error had a probable impact on the jury’s

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

Jones disappeared from his grandmother’s home on the evening of

November 9, 2007. His body was found in the woods on December 5, 2007. The

only information the jurors heard concerning how he got to the woods came from

differing jailhouse snitch stories. Aaron McDowell told the jurors he talked with

Jenrette while he was locked up in the Columbus County jail. McDowell said

Jenrette told him he and Jones were together at a football game. Jenrette got Jones

drunk at the game and then took him to a secluded area. (Tp. 968) This story

conflicts with all of the other testimony as no witness mentioned a football game

on Monday, November 19, 2007. Moody testified her son was at his grandmother’s

house up until the time he disappeared. Jeffrey Allen Morton, in custody in West

Virginia, testified he overheard Jenrette telling someone else that “he smoked a

couple of blunts with this young guy and took him out and gave him a pistol and

they shot some and then he turned the pistol on him and shot him five or six

times.” (Tp. 989) The jurors clearly did not believe this testimony sufficient to

convict Jenrette of either kidnapping or conspiracy to commit kidnapping. It is

25

equally insufficient to find Jenrette guilty beyond a reasonable doubt of felony

murder based on kidnapping.

Absent an instruction on felony murder based on kidnapping, there is a

reasonable possibility that a different result would have occurred at trial in that

Jenrette would only have been convicted of first degree murder based on

premeditation and deliberation. In any retrial, the State should be precluded from

submitting the case on the theory of felony murder based on kidnapping as it is

unsupported by the evidence.

III. THE COURT COMMITTED PLAIN ERROR BY FAILING TO INSTRUCT THE JURY OF ITS DUTY TO RETURN A NOT GUILTY VERDICT IF THE STATE FAILED TO ESTABLISH GUILT BEYOND A REASONABLE DOUBT.

The jury in Jenrette’s trial was instructed it could find Jenrette guilty of the

first degree murder of Darnell Frink based on three theories: premeditation and

deliberation; felony murder; and lying-in-wait. The trial court failed to instruct the

jury of its duty to return a not guilty verdict should the State fail to establish guilt

beyond a reasonable doubt. The magnitude of this error rendered these proceedings

fundamentally unfair and unreliable, warranting relief under the plain error

standard. Had the trial court instructed the jury as required by the federal and state

constitutions, it is probable a different outcome would have occurred. Jenrette is

entitled to a new trial.

26

Whether the trial court’s instruction correctly explains the law is a question

of law, subject to de novo review by this Court. State v. Osorio, 196 N.C. App.

458, 466, 675 S.E.2d 144, 149 (2009). When reviewing an issue de novo, the Court

considers the matter anew and may substitute its own judgment for that of the trial

court. N.C. Dep’t of Envtl. & Natural Res. V. Carroll, 358 N.C. 649, 660, 599

S.E.2d 888, 895 (2004) When an instructional error is not objected to, the

defendant must demonstrate fundamental error, that, after examination of the entire

record, the error had a probable impact on the jury’s finding. State v. Lawrence,

365 N.C. 506, 723 S.E.2d 326 (2012).

In every criminal trial a defendant is entitled to have a jury “instructed as to

its right to return, and the condition upon it should render, a verdict of not guilty.”

State v. Howell, 218 N.C. 280, 282, 10 S.E.2d 815, 817 (1940). This instruction is

generally give during the final mandate after the trial court has instructed the jury

as to elements it must find to reach a guilty verdict. State v. Ward, 300 N.C. 150,

156-157, 266 S.E.2d 581, 585-86 (1980). Jenrette’s trial was exceptionally

complicated in that twelve offenses stemming from three incidents occurring on

three dates, involving four victims were joined for trial. The complexity of the jury

charge was exacerbated when the court agreed to submit the first degree murder

charge based on the death of Frink on three theories and the first degree murder

charge based on the death of Jones on two theories.

27

Concerning the murder of Frink, the court charged the jury on three theories.

At the end of the third theory, the court simply stated:

If you do not so find or have a reasonable doubt as to one or more of these things, it would be your duty to return a verdict of not guilty.

(Tp. 1394; Rp. 158)1. As this sentence followed directly after the section on lying

in wait, at best the jurors might have understood it to refer to that theory, not to

either of the other theories or to the first degree murder charge as a whole. More

likely, the jurors did not at all grasp what the court meant. The one sentence

concerning a verdict of not guilty, without any explanation as to which theory or

which elements it pertained, is constitutionally insufficient under North Carolina

case law. In State v. McHone, 174 N.C.App. 289, 620 S.E.2d 903 (2005), the court

instructed the jury after both premeditation and deliberation and felony murder that

the jury would not return a verdict of guilty if the State failed in one or more of the

elements of each theory, but failed to tell the jury that “it must or would return a

verdict of not guilty should they completely reject the conclusion that the

defendant committed first degree murder.” Id. at 297, 620 S.E.2d at 909. McHone

was granted a new trial. The omission in Jenrette’s trial is significantly more

prejudicial as the court failed to instruct the jurors they would not find a theory if

1 The jury charge is attached hereto as Appendix A.

28

the state had not provided proof for the elements of each theory and would not find

Jenrette guilty of murder if the State failed to prove the necessary elements.

The error was heightened when after the Jones murder instruction, the Court

emphasized the hurdles the jurors faced before they could find Jenrette not guilty

of the murders:

Let me make sure it’s absolutely clear on that language. Again under—for Mr. Frink, you will have three choices under first degree murder. You will go through and consider each of those three bases for first degree murder, consider all three. You will only render not guilty if you find that none of those exist.

(Tp. 1402; Rp. 166) (emphasis added) No balancing instruction was given at this

point concerning the State’s burden to prove the elements beyond reasonable

doubt.

The one sentence tagged on after the lying-in-wait instruction at the end of

the charge on the murder of Frink without any reference as to what theory or

theories it applied is constitutionally inadequate. The lack of a final mandate

specifying that the jury would not find Jenrette guilty of first degree murder if it

did not find or had a reasonable doubt as to one or more of the elements of each

theory effectively eliminated the “not guilty” option from the jury’s consideration

for each theory and for first degree murder. The omissions struck at the heart of

Jenrette’s right to the due process presumption of innocence. Appellate courts may

not speculate on the consequences of such error, which is structural and

29

automatically reversible. In State v. Howell our Supreme Court held the

constitutionally correct jury charge is required even when the State’s evidence is

substantial:

There is ample evidence in the record to sustain the charge of murder in the first degree and it may be that upon a retrial the same result will be reached. And yet it is important that a defendant, however humble or defenseless he may be, shall not suffer the penalty of death until he has been convicted in a trial in which there has been a scrupulous observance of constitutional and statutory safeguards protecting and preserving his rights.

Howell at 282, 10 S.E.2d at 817. See also, State v. Overman, 257 N.C. 464, 125

S.E.2d 920 (1962); Sullivan v. Louisiana, 508 U.S. 275, 281-82 (1993). Omission

of the “not guilty” mandate was plain error, rendering these proceedings

fundamentally unfair and unreliable. Jenrette must receive a new trial.

IV. THE JURY CHARGE FAILED TO INDIVIDUALIZE THE CHARGES SUFFICIENTLY TO PROTECT JENRETTE’S RIGHT TO DUE PROCESS AND A FAIR TRIAL

In addition to failing to give the final mandate in the first degree murder

charge, the trial court also failed to separately instruct on the two counts of assault,

the two counts of conspiracy to commit first degree murder and the two counts of

felon in possession of a firearm. The jurors were not instructed to consider

Jenrette’s guilt or innocence for each count separately. The same error occurs in

the felony murder instruction for the death of Frink, as the jury was not told which

assault could be considered as the basis for the felony murder charge. The court

30

gave the mandate for the Jones murder, but gave no mandate for the underlying

felony, kidnapping. Defense counsel objected strenuously to the State’s joinder

motion, based on dissimilarities between the murders and the tendency for a jury to

convict on both murders because they were tried together. (Tp. 5) The court

overruled the objection. (Tp. 6) Once the twelve charges had been joined for trial,

the court had a duty to guarantee the defendant’s due process rights for each

separate charge.

Whether the trial court’s instruction correctly explains the law is a question

of law, subject to de novo review by this Court. State v. Osorio, 196 N.C. App.

458, 466, 675 S.E.2d 144, 149 (2009). When reviewing an issue de novo, the Court

considers the matter anew and may substitute its own judgment for that of the trial

court. N.C. Dep’t of Envtl. & Natural Res. V. Carroll, 358 N.C. 649, 660, 599

S.E.2d 888, 895 (2004) When an instructional error is not objected to, the

defendant must demonstrate fundamental error, that, after examination of the entire

record, the error had a probable impact on the jury’s finding. State v. Lawrence,

365 N.C. 506, 723 S.E.2d 326 (2012).

“Each defendant is entitled to the same clarity in the instructions necessary

to promote a fair determination of his guilt or innocence of each offense in a joint

trial, as he would be given if tried separately.” State v. Lee, 28 N.C.App. 156, 160,

220 S.E.2d 164, 166 (1975). In Lee the state argued on appeal that in cases which

31

involve multiple defendants, victims and charges even a correct charge would be

confusing. This Court responded:

Even if that is the case, we simply say that the confusion is assured when incorrect and conflicting instructions are given. We also realize the almost impossible burden the case law of this State has imposed on the trial judges with reference to their instructions to the jury and the burden was made heavier when all of these cases were consolidated.

Id. at 159, 220 S.E.2d at 166. This Court emphasized the trial court had “elected to

compound its burden when it granted the State’s motion to consolidate the

charges.” Id. at 160, 220 S.E.2d at 166.

As in Lee, the trial court in this case elected to compound its burden when it

granted the State’s motion to consolidate. But instead of using more care to avoid

jury confusion, the court gave less explicit instructions than it would have done if

the charges had been tried separately. For the assault with a deadly weapon with

intent to kill inflicting serious injury charges for two victims, the court named both

victims, but then gave an instruction as to “the victim.” No instruction was given

that the jurors should deliberate on each victim separately, or that the instructions

applied to each victim individually. (Tp. 1387-1388; Rpp. 151-152) Under the

instruction for felony murder in the death of Frink, no victim is named for the

underlying felony. Similarly, the court combined the two charges of felon in

possession without specifying the dates of the offenses or instructing the jurors that

32

guilt for one of the offenses did not mean guilt for the other offense. (Tpp. 1406-

1407; Rpp. 170-171) After hearing the joined instruction, the jury’s natural

assumption would be that guilt for one charge of felon in possession mandated

guilt for the other charge of felon in possession.

The two charges of conspiracy to commit murder are joined in the

instruction with no instruction to consider the two charges separately. The two

charges are treated in the instruction as one offense. The final mandate is in the

singular, instructing the jurors if they find from the evidence that on the alleged

date the defendant and another conspired “it would be your duty to return a verdict

of guilty.” (Tpp. 1394-1395; Rpp. 158-159) The one instruction for both charges

implied if Jenrette was guilty of conspiracy to commit murder as to one of the

victims, he was guilty of conspiracy to commit both murders. This was extremely

prejudicial as the evidence as to the two murders differed greatly. The murder of

Frink involved a drive-by shooting, witnessed by a crowd of individuals and

captured on videotape. Witnesses saw co-defendants at the game and two men

leaving the scene of the burned Taurus. Evidence concerning the murder of Jones

was quantitatively different: 1) no witnesses observed the shooting; 2) no witness

observed any events leading up to the shooting; and 3) no witness observed any

events after the shooting. Convicting Jenrette of the Jones murder depended on

circumstantial evidence and jailhouse snitch testimony. The differences in the

33

supporting evidence between the two murders heightened the need for separate

instructions for each conspiracy charge. Without a separate instruction, the jurors

could have easily assumed that guilt of conspiracy for one murder weighed heavily

toward finding guilt for the other charged conspiracy. The jurors were not

instructed to consider the evidence supporting each conspiracy separately.

Although a verdict sheet was submitted for each charge, verdict sheets cannot

substitute for an instruction to the jurors to consider the evidence for each charge

individually, especially when the final mandate for each type of charge referred to

“a verdict.”

Failure to instruct the jury to consider each offense individually rendered

Jenrette’s trial arbitrary, capricious, unreliable and fundamentally unfair, in

violation of his rights to a reliable jury verdict, due process, equal protection, and

the freedom from cruel and unusual punishment. U.S. Const. Amends. V, VI, VIII,

XIV; N.C. Const. Art. I, §§ 19, 24, 27. The confusing jury instructions must have

impacted the jury’s verdict and constitutes plain error. The multiple errors in the

jury charge in this case should be considered cumulatively. As the incorrect

instructions—on lying in wait, felony murder by kidnapping, the failure to give a

final mandate for specific charges and the failure to instruct individually on

charges involving different victims and different dates—permeated the entire jury

charge, Jenrette’s convictions must be vacated.

34

V. JOINING TWELVE CHARGES BASED ON INCIDENTS OCCURRING ON THREE DATES INVOLVING FOUR VICTIMS DENIED JENRETTE HIS CONSTITUTIONAL RIGHT TO DUE PROCESS

The court’s order joining twelve charges, based on three incidents, occurring

on three dates, involving four victims rendered Jenrette’s trial fundamentally unfair

because it prevented the jurors from arriving at a fair determination of Jenrette’s

guilt or innocence on each count. As shown in Arguments I through IV, the

joinder, combined with the constitutional errors in the court’s attempt to instruct

the jury on the various charges, rendered the trial unconstitutional.

Whether a group of offenses are transactionally related so that they are

joinable for trial is an issue of law, determined de novo on appeal. State v.

Williams, 355 N.C. 501, 529, 565 S.E.2d 609, 626 (2002). When offenses are

transactionally related and joinable under the provisions of 15A-926(a), they may,

nonetheless, require severance for separate trials if that is “necessary to promote a

fair determination of the defendant’s guilt or innocence of each count.” N.C. Gen.

Stat. § 15A-927(c)(2). This issue of severance of joinable charges is a matter for

trial court discretion. State v. Montford, 137 N.C. App. 495, 498, 529 S.E.2d 247,

250, disc. rev. denied, 353 N.C. 275, 546 S.E.2d 386 (2000).

The state moved for joinder pre-trial. Defendant opposed joinder arguing the

two murders were dissimilar, as the only similarity was that both victims were

35

shot. (Tp. 6) The court granted the state’s motion. (Tp. 7) Defense counsel renewed

his motions. (Tpp. 1121, 1268) Even if this Court should find the offenses

transactionally similar, consolidation may not be proper under N.C. Gen. Stat. §

15A-926. State v. Silva, 304 N.C. 122, 126, 282 S.E.2d 449, 452 (1981) The judge

must consider whether the accused can receive a fair hearing on more than one

charge at the same trial. Charges should not be joined where consolidation hinders

or deprives the accused of the ability to present his defense. Pointer v. U.S., 151

U.S. 396 (1894); State v. Davis, 289 N.C. 500, 508, 223 S.E.2d 296, 301, vacated

in part on other grounds, 429 U.S. 809, (1976). N.C. Gen. Stat § 15A-927

provides the court must grant a severance if it is found necessary to promote a fair

determination of the defendant’s guilt or innocence of each offense.

The State’s evidence that Jenrette was present at the scene of the drive-by

shooting of Darnell Frink was scant. Witnesses testified he was not seen at the

game. (Tpp. 551, 596, 601, 668, 1142, 1147, 1187, 1190) Testimony indicated four

other young men were in the Taurus when it drove through Sam’s Pit Stop.2

Evidence concerning the death of Delamez Jones was even weaker. No eyewitness

testified as to how Jones left his grandmother’s house or what happened after he

left. The State’s evidence on the Jones murder depended heavily on accounts of

2 A statement, written and signed by Reaves as part of his plea, alleged that Jenrette was at the game and in the Taurus. (SE 120; Tpp. 1168, 1176) These allegations were contradicted by Reaves testimony.

36

jailhouse snitches, one of whom testified to details which were contradicted by

other witnesses. (Tpp. 967-969) In order for the state to meet its burden of

persuading the jury beyond a reasonable doubt as to guilt for each murder, it was

necessary to convince the jurors that the murders were related and that they could

consider evidence of involvement in one murder as evidence of involvement in the

other murder.

The State must show erroneous joinder of the twelve charges was harmless

beyond a reasonable doubt. N.C. Gen. Stat. § 15A-1443(b). As shown in the above

arguments, the State cannot meet this burden. The cumulative errors in the jury

instructions, resulting from the joinder of so many disparate charges, allowed the

jurors to consider guilt of one charge as meeting the State’s burden of evidence for

guilt on other charges. Jenrette must be granted a new trial.

37

CONCLUSION

For the reasons set forth above, Defendant respectfully contends that this

Court should reverse his convictions.

Respectfully submitted this the 23rd day of December 2013.

Electronic Filing/s/ Marilyn G. OzerAttorney for Appellant211 North Columbia StreetChapel Hill, NC 27514(919) 967-8555redwood@nc.rr.com

CERTIFICATE OF FILING AND SERVICE

I hereby certify that the original Defendant-Appellant’s Brief has been filed

electronically pursuant to Rule 26.

I further hereby certify that a copy of the above and foregoing Defendant-

Appellant’s Brief has been duly served upon Robert C. Montgomery, Special

Deputy Attorney General, by email to rmont@ncdoj.gov.

This the 23rd day of December 2013.

Electronic FilingMarilyn G. OzerAttorney at Law

38

CERTIFICATE OF COMPLIANCE

I hereby certify that this Brief was prepared using Microsoft Word, Times

New Roman, 14-point type. The word count, including footnotes and citations, is

8,746 words.

This the 23rd day of December 2013.

Electronic FilingMarilyn G. OzerAttorney at Law

39

APPENDIX

JURY CHARGE

Transcript Pages 1381 - 1413