State v. Hughes

An unpublished opinion of the North Carolina Court of Appeals does not constitute

controlling legal authority. Citation is disfavored, but may be permitted in accordance

with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-1400

NORTH CAROLINA COURT OF APPEALS

Filed: 17 June 2014

STATE OF NORTH CAROLINA

v. Gaston County

No. 12 CRS 11164

JEFFREY SCOTT HUGHES

Appeal by defendant from judgments entered 24 July 2013 by

Judge Jesse B. Caldwell, III in Gaston County Superior Court.

Heard in the Court of Appeals 22 April 2014.

Attorney General Roy Cooper, by Special Deputy Attorney

General Steven M. Arbogast, for the State.

Russell J. Hollers III, for defendant-appellant.

HUNTER, Robert C., Judge.

Jeffrey S. Hughes (“defendant”) appeals from judgments

entered after a jury found him guilty of one count each of first

degree murder based on the felony murder rule, possession of a

firearm by a felon, and discharging a weapon into an occupied

dwelling. On appeal, defendant argues that the trial court

erred by: (1) instructing the jury that it could convict on

felony murder for the underlying crimes of buying or selling a

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controlled substance while using a firearm where those crimes

either (a) did not support a felony murder conviction, or (b)

were not supported by the evidence; (2) giving a mistaken

instruction on acting in concert for the crime of discharging a

firearm into an occupied dwelling; and (3) failing to give

defendant accurate credit during sentencing for the days he

spent in prison awaiting trial.

After careful review, we find no prejudicial error as to

the jury instructions and dismiss defendant’s contention

regarding credit for pretrial confinement.

Background

The events of this case took place at 969 Brown Street in

Gastonia, N.C. (“the Brown Street home”). Three generations of

the Wright family lived at the Brown Street home – David Wright

(“David”), his father, Jimmy David Wright (“Jimmy”), and Jimmy’s

parents, Vicky and Jimmy Carl Wright. In the late evening hours

of 22 August 2011, Victor Malagon (“Malagon”) called David and

arranged to purchase prescription pills from him. Malagon

regularly purchased pills from David and Jimmy. On the night in

question, Malagon was driven to the Brown Street home by

defendant. Inside the vehicle was another passenger, Amanda

Mabe (“Amanda”).

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After they arrived, Malagon went inside and purchased over

$400.00 worth of Oxycodon pills from David, which David

estimated at trial to be around twenty pills. While they were

conducting the sale inside, Jimmy had returned home and saw

defendant’s vehicle in the driveway. Jimmy testified that about

a month-and-a-half prior to his encounter on 22 August 2011, he

had purchased thirty Percocet pills from defendant at a total

cost of $600.00. Jimmy thought that the pills defendant sold

him were fake. Because Jimmy only knew defendant through

Malagon, Jimmy tried to get Malagon to arrange another meeting

with defendant so that he could get his $600.00 back, but before

the night in question he had been unsuccessful.

When Jimmy saw defendant in his driveway, he confronted him

about the allegedly fake pills that defendant had sold him.

When Malagon and David exited the Brown Street home, Jimmy told

Malagon to take five of the pills he had just purchased and put

them on the porch rail. Jimmy said that this would constitute a

down payment on the money defendant owed him from their previous

transaction. Malagon put five pills on the porch rail then

handed the rest of the pills to defendant. Defendant and Jimmy

began shouting at each other, and Jimmy pointed his handgun at

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defendant. Defendant shouted “this is not right,” and that

“somebody will have to pay.”

After the shouting altercation, defendant began backing out

of the driveway. At this time Amanda had gotten out of the car

and was standing next to Jimmy near David’s truck. Jimmy had

tucked his handgun into his jeans and was no longer pointing it

at defendant. As he was backing out of the driveway, defendant

started shooting toward the house. Jimmy heard Amanda say “Oh

God” and then saw her immediately fall to the ground. Detective

Robert Bryson (“Detective Bryson”) was on patrol near the Brown

Street home that night and heard gunshots; he was the first

officer at the scene. Detective Bryson approached Amanda and

checked her vital signs, but could not feel a pulse. An autopsy

later established that Amanda died from a single gunshot wound

to the back that completely severed her spinal cord, lacerated

her aorta, and perforated her left lung.

Vicky Wright, David’s grandmother and Jimmy’s mother,

testified that she noticed bullet holes in her home that were

not there prior to the night of the shooting. Detective Michael

Schwartz of the Gastonia Police Department investigated the

Brown Street home and testified that he observed two bullet

holes in the side of the house. One projectile did not enter

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the interior of the home, but the second projectile went through

the exterior wall, a bathroom wall, and a kitchen wall before

finally settling in the opposite kitchen wall above the

refrigerator.

Defendant was arrested on the night of the shooting.

Police recovered numerous 9-millimeter shell casings in and

around the driver’s side door of defendant’s vehicle when they

detained him, and after obtaining a search warrant, they found a

9-millimeter Smith & Wesson handgun under the passenger seat.

Defendant was indicted for first degree murder, possession

of a firearm by a felon, and discharging a firearm into an

occupied dwelling. The jury rejected the theory of

premeditation and deliberation but convicted defendant for first

degree murder under the felony murder rule. The underlying

felonies for which the jury found defendant guilty of first

degree murder under the felony murder rule were: (1) discharging

a firearm into an occupied dwelling; and (2) using a deadly

weapon in the sale or attempted sale of a controlled substance.

The jury also convicted defendant for the charges of possession

of a firearm by a felon and discharging a weapon into an

occupied dwelling, the latter of which was arrested because it

was an underlying felony supporting the murder conviction. The

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trial court sentenced defendant to life imprisonment without

parole for first degree murder and a concurrent term of 14 to 17

months imprisonment for possession of a firearm by a felon.

Defendant gave timely notice of appeal.

Discussion

I. Instruction as to the Sale of a Controlled Substance

Defendant first argues that the trial court erred by

instructing the jury that it could convict under the felony

murder rule for buying or selling a controlled substance while

using a firearm. We find no prejudicial error.

“[A]n error in jury instructions is prejudicial and

requires a new trial only if there is a reasonable possibility

that, had the error in question not been committed, a different

result would have been reached at the trial out of which the

appeal arises.” State v. Castaneda, 196 N.C. App. 109, 116, 674

S.E.2d 707, 712 (2009) (citation and quotation marks omitted).

An instruction about a material matter must be based on

sufficient evidence. See Childress v. Johnson Motor Lines,

Inc., 235 N.C. 522, 530, 70 S.E.2d 558, 564 (1952). However,

“[i]t is well established that ‘the trial court’s charge to the

jury must be construed contextually and isolated portions of it

will not be held prejudicial error when the charge as a whole is

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correct.’” State v. Hornsby, 152 N.C. App. 358, 367, 567 S.E.2d

449, 456 (2002) (quoting State v. Boykin, 310 N.C. 118, 125, 310

S.E.2d 315, 319 (1984)).

Here, the State requested that the trial court instruct the

jury that it could convict defendant of felony murder if it

found that he either shot into an occupied dwelling or took “a

deadly weapon . . . to a drug deal.” Over defendant’s

objection, the trial court instructed the jury as follows:

[M]embers of the jury, if you find beyond a

reasonable doubt that on or about the

alleged date the defendant, acting either by

himself or together with someone else, . . .

knowingly sold or attempted to sell, or

purchased or attempted to purchase a

controlled substance in which a firearm was

involved or used in the commission of that

offense, . . . then it would be your duty to

return a verdict of guilty of first degree

murder under the felony murder rule.

After the jury requested to be instructed again on the murder

charge, the trial court reiterated that:

[F]or you to find that the defendant was

committing or attempting to commit the sale

or attempted sale of controlled substance

where a deadly weapon is used in its

commission, the State would have to prove

beyond a reasonable doubt, and you would

have to find beyond a reasonable doubt that

the State had proven that the defendant

knowingly sold or attempted to sell, or

purchased or attempted to purchase a

controlled substance.

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Defendant argues that this instruction was erroneous for

two reasons: (1) evidence did not support an instruction on

selling or attempting to sell a controlled substance, because

defendant was not involved in selling pills during this

transaction, and (2) buying or attempting to buy a controlled

substance is a misdemeanor under N.C. Gen. Stat. §§ 90-

90(1)(a)(14) and -95(d)(2), not a felony, and therefore cannot

support a conviction for first degree murder under the felony

murder rule as a matter of law.

However, the jury returned its verdict sheet convicting

defendant for first degree murder based on two underlying

felonies: (1) “sale or attempted sale of controlled substance

where a deadly weapon is used in its commission”; and (2)

“discharging a firearm into an occupied dwelling.” Thus, this

case is comparable to State v. Barlowe, 337 N.C. 371, 446 S.E.2d

352 (1994). In Barlowe, the defendant was convicted for first

degree murder under the felony murder rule based on two

underlying felonies: burglary and discharging a firearm into

occupied property. Id. at 378, 446 S.E.2d at 357. The Court

held that “[o]nly one underlying felony is necessary to support

a felony-murder conviction, and in this case the record is clear

that the jury found that two separate felonies supported the

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first-degree murder conviction.” Id. at 381, 446 S.E.2d at 358.

Thus, even though there was error in the submission of burglary

to the jury due to lack of evidence of that crime, the judgment

for first degree murder was not disturbed, as it was supported

by a separate underlying felony for which there was ample

supporting evidence. Id.

Here, like in Barlowe, defendant’s conviction for first

degree murder was premised on two independent felonies: selling

or attempting to sell a controlled substance while using a

deadly weapon and discharging a firearm into an occupied

dwelling. Defendant does not dispute that there was sufficient

evidence to support the charge of discharging a firearm into an

occupied dwelling; indeed, the undisputed record evidence shows

that defendant willfully discharged a firearm toward the Brown

Street home and a bullet fired from that firearm went through

multiple walls of the home before settling in the kitchen wall.

See N.C. Gen. Stat. § 14-34.1 (2013) (“Any person who willfully

or wantonly discharges a weapon . . . into an occupied dwelling

. . . is guilty of a Class D felony.”)

Thus, because there was a separate underlying felony

supporting the conviction for first degree murder under the

felony murder rule, we conclude that defendant has not

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demonstrated a reasonable possibility that a different outcome

would have occurred but for the trial court’s instruction as to

the sale of a controlled substance. See Castaneda, 196 N.C.

App. at 116, 674 S.E.2d at 712. This argument is overruled.

II. Instruction as to Acting in Concert

Defendant next argues that the trial court erred by

initially instructing the jury that it could convict defendant

for discharging a firearm into an occupied dwelling if he acted

with a common purpose with someone else to do so. Defendant

asserts in his brief on appeal that “evidence showed that

[defendant] was either guilty of shooting into the Wrights’ home

by himself or not at all.”

It is clear from the record that the trial court did

initially instruct the jury that it could apply the theory of

acting in concert to the felony of discharging a firearm into an

occupied dwelling. However, upon realizing the error, the trial

court corrected itself and instructed the jury that the theory

of acting in concert was only applicable to the underlying

felony of selling or attempting to sell a controlled substance

while using a deadly weapon, not the felony of discharging a

firearm into an occupied dwelling. “[W]hen a trial judge makes

an improper instruction earlier in the charge and then corrects

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it, the error is completely lacking in prejudicial effect.”

State v. Reid, 335 N.C. 647, 667, 440 S.E.2d 776, 787 (1994)

(citation and internal quotation marks omitted). Thus, given

that the trial court’s initial error is “completely lacking in

prejudicial effect,” id., due to its later correction, defendant

has failed to meet his burden of establishing prejudice by this

error. See Castaneda, 196 N.C. App. at 116, 674 S.E.2d at 712.

Thus, his argument is overruled.

III. Confinement Credit

Defendant’s final argument is that the trial court erred by

failing to accurately credit defendant for the time he spent in

jail awaiting trial. Under N.C. Gen. Stat. § 15-196.1 (2013), a

defendant shall be credited with any amount of time spent in

confinement as a result of the charge that culminated in the

sentence. Here, the transcript shows that the trial court

directed the clerk of court to credit the number of days

defendant spent in pretrial confinement, but no specific amount

of credit was included in the judgment. Thus, it appears that

defendant is entitled to at least some amount of credit.

However, this argument is not properly before us. See State v.

Miller, 205 N.C. App. 291, 295, 695 S.E.2d 149, 152 (2010).

This Court has held that:

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[T]he proper procedure to be followed by a

defendant seeking to obtain credit for time

served in pretrial confinement in addition

to that awarded at the time of sentencing or

the revocation of the defendant’s probation

is for the defendant to initially present

his or her claim for additional credit to

the trial court, with alleged errors in the

trial court’s determination subject to

review in the Appellate Division following

the trial court’s decision by either direct

appeal or certiorari, as the case may be.

Such an approach makes sense given the

reality that, in at least some instances,

factual issues will need to be resolved

before a proper determination of the amount

of credit to which a particular defendant is

entitled can be made, and such issues are

best addressed, as an initial matter, in the

trial courts rather than in the Appellate

Division.

Id. (quoting State v. Cloer, 197 N.C. App. 716, 720-21, 678

S.E.2d 399, 402-03 (2009) (dismissing without prejudice the

defendant’s contention on appeal that he was entitled to

additional credit for time served in pretrial confinement)).

Thus, we are unable to address the merits of defendant’s

contention. However, as was noted in Miller and Cloer,

defendant maintains the right to “file a motion for an award of

additional credit in the superior court of [Gaston] County

pursuant to N.C. Gen. Stat. § 15-196.4.” Miller, 205 N.C. App.

at 295, 695 S.E.2d at 152; Cloer, 197 N.C. App. at 722, 678

S.E.2d at 404.

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Conclusion

Because defendant has failed to establish a reasonable

possibility of a different outcome but for the trial court’s

alleged errors in its jury instructions, we conclude that any

such errors were not prejudicial. Defendant’s argument as to

pretrial confinement is dismissed without prejudice.

NO PREJUDICIAL ERROR IN PART; DISMISSED IN PART.

Judges BRYANT and STEELMAN concur.

Report per Rule 30(e).