Criminal Practice – Second-Degree Murder – Class B1 Sentence

The trial court could conclude an aggravated B1 sentence on the jury’s verdict is supported by the facts in this case.

We found no error.

Defendant shot and killed 21-year-old Amaru Carroll-Lee in 2020. Lee had attacked Defendant’s son. Defendant was upset and sought retribution. Lee lived with his mother and five-year-old brother. Defendant and several others went to Lee’s home. A man in the group knocked on Lee’s mother’s door and asked her if she knew about any altercations between her son and Defendant’s son. Lee’s mother explained she was unaware of any altercations, but a man in the group accused her of lying. A few minutes later, the same man who had accused her of lying returned to her door along with Defendant. Defendant and the man pushed their way into the home. Defendant brandished a weapon. Lee came out of his bedroom and was standing next to his mother when he was shot. His younger brother was also present. After the shooting, Defendant said, “I had to do what I had to do for my son.”

Defendant appealed from judgments entered upon a jury’s verdicts finding him guilty of second-degree murder and possession of a firearm by a felon. Defendant asserted the State prejudiced him during closing arguments by making references to Defendant’s plea of not guilty, criticizing the manner in which Defendant’s counsel had cross-examined Lee’s mother, and equating his trial to the charges the State’s co-defendant witness had pled guilty to. the challenged portions of the State’s closing argument came after Defendant had delivered his closing arguments. In those closing arguments, Defendant attacked the validity of Lee’s mother’s testimony. The State’s closing arguments were not prejudicial comments on Defendant’s execution of his right to remain silent but could be considered instead a defense of the State’s strategy and “to restore the credibility of the State’s witnesses”.

We then addressed Defendant’s IAC claim regarding the State’s questioning of Det. Bradshaw, who had investigated the case. Defendant asserted defense counsel acted deficiently by raising the objection later in the line of questioning, and for not making a motion to strike the line of questioning from the record nor asking for curative instructions. Defendant asserted the objection in question was not timely. Additionally, Defendant asserted his trial counsel should have also moved to strike and requested curative instructions. Counsel’s objection was made in the jury’s presence, while the witness was still present on the witness stand. Presuming it may have been made more immediately, it was still timely. As to the lack of curative instruction, the record supports a conclusion this may have been a reasonable trial strategy choice. Presuming Defendant’s trial counsel’s decision to not move to strike and ask for curative instruction was not reasonable, trial counsel’s omission did not prejudice Defendant.

North Carolina’s statutes state Class B1 and B2 felonies are to be differentiated by the type of malice involved. We have held ambiguous verdicts, using the same pattern jury instruction as used in the case at bar, cannot support a class B1 sentence. The State presented substantial evidence tending to show Defendant was in unlawful possession of a deadly weapon and was intent on causing harm and revenge, saying afterwards, he “had to do it” for his son. The State’s case was predicated on first-degree murder, burglary, and illegal possession of a firearm by a felon. The jury also found the aggravating factor of the crime was committed in the presence of a person under the age of 18, the five-year-old brother of the victim. The State did not present evidence, nor did it make any alternative argument, indicating Defendant was engaged in an inherently dangerous act or was acting recklessly. Defense counsel did not argue Defendant was acting reckless, but instead argued throughout the course of the trial Defendant did not have possession of a gun when Lee was shot. We held the trial court could conclude an aggravated B1 sentence on the jury’s verdict is supported under these facts.

In the absence of an objection, the trial court did not prejudicially err by failing to intervene ex mero motu and interject during the State’s closing argument. We again strongly caution the State against comments on a defendant’s silence, right to counsel, and assertion of his constitutional rights during closing arguments. The trial court did not err in imposing a Class B1 sentence. Defendant failed to demonstrate he received ineffective assistance of counsel at trial or prejudice.

No error.

State of North Carolina v. Telly Savales Parker (Lawyers’ Weekly No. 011-063-25, 15 pp.) (John Tyson, J.) Appealed from Wilson County Superior Court (L. Lamont Wiggins, J.) Attorney General Jeff Jackson, by Special Deputy Attorney General Isham Faison Hicks, for the State; Michele Ann Goldman, Attorney at Law, by Michele Ann Goldman, for the defendant-appellant. North Carolina Court of Appeals