No. COA05-1421 10th District
NORTH CAROLINA COURT OF APPEALS
*********************************
STATE OF NORTH CAROLINA )
) From Wake County
v. ) 04 CRS 80357-58
) 05 CRS 1392-98
TONY HARRELL JOHNSON )
Defendant Appellant )
**************************************
DEFENDANT APPELLANT’S BRIEF
**************************************
-i-
INDEX
TABLE OF CASES AND AUTHORITIES...................iv
QUESTIONS PRESENTED...............................1
STATEMENT OF THE CASE.............................2
STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW.....5
STATEMENT OF FACTS................................5
ARGUMENTS:
I. THE COURT COMMITTED REVERSIBLE ERROR BY
PENALIZING THE DEFENDANT FOR NOT PLEADING GUILTY TO
THE ORIGINAL INDICTMENTS AND IN ELECTING INSTEAD TO
EXERCISE HIS RIGHT TO A JURY TRIAL IN VIOLATION OF
THE DEFENDANT’S FEDERAL AND STATE CONSTITUTIONAL
RIGHTS TO A FAIR TRIAL AND DUE PROCESS OF LAW AND
THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION AND ARTICLE I, SECTIONS 19, 23
AND 27 OF THE NORTH CAROLINA CONSTITUTION.........8
II. THE COURT COMMITTED REVERSIBLE ERROR BY
SENTENCING TONY JOHNSON DISPROPORTIONATELY TO OTHER
CO-DEFENDANT’S WHEN JOHNSON’S ROLE WAS MINOR
COMPARED TO THE CO-DEFENDANT’S ROLE IN VIOLATION OF
THE DEFENDANT’S FEDERAL AND STATE CONSTITUTIONAL
RIGHTS TO A FAIR TRIAL AND DUE PROCESS OF LAW AND
THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION AND ARTICLE I, SECTIONS 19, 23
AND 27 OF THE NORTH CAROLINA CONSTITUTION.........8
III. THE COURT COMMITTED REVERSIBLE ERROR IN
DENYING THE DEFENDANT’S MOTION TO DISMISS THE
CHARGES MADE AT THE END OF THE STATE’S EVIDENCE
WHERE THE EVIDENCE WAS INSUFFICIENT TO CONVINCE THE
TRIER OF FACT OF THE DEFENDANT’S GUILT OF THE
CHARGE OF FIRST DEGREE KIDNAPPING BEYOND A
REASONABLE DOUBT IN VIOLATION OF THE SIXTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND ARTICLE I, SECTIONS 19, 23 AND 27
OF THE NORTH CAROLINA CONSTITUTION...............22
IV. THE COURT COMMITTED REVERSIBLE PLAIN ERROR BY
ALLOWING INTO EVIDENCE THE STATEMENTS OF JUSTIN
MCCARTY, MICHAEL POOLE AND NAPOLEON SANDERS READ BY
-ii-
DETECTIVE RANDY MUNN FOR THE PURPOSE OF
CORROBORATING THEIR TESTIMONY WHEN THE REPORT
CONTAINED INFORMATION THAT HAD NOT BEEN TESTIFIED
TO OR HAD BEEN TESTIFIED TO SUBSTANTIALLY DIFFERENT
IN THE REPORT THAT WAS BEING READ BY DETECTIVE
MUNN. THE REPORT DID NOT TEND TO ADD WEIGHT OR
CREDIBILITY TO THE TESTIMONY OF MR. MCCARTY, MR.
POOLE OR MR. SANDERS IN VIOLATION OF THE SIXTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND ARTICLE I, SECTIONS 19, 23 AND 27
OF THE NORTH CAROLINA CONSTITUTION...............30
CONCLUSION.......................................30
CERTIFICATE OF SERVICE
-iii-
TABLE OF CASES AND AUTHORITIES
State v. Batts, 269 N.C. 694, 153 S.E.2d 379
(1967)...........................................22
State v. Boone, 33 N.C. App. 378, 235 S.E.2d 74
(1977)...........................................12
State v. Boone, 293 N.C. 702, 239 S.E.2d 459
(1977)...........................................10
State v. Brown, 310 N.C. 563, 313 S.E.2d 585
(1984)...........................................22
State v. Cutler, 271 N.C. 379, 156 S.E.2d 679
(1967)...........................................23
State v. Edwards, 310 N.C. 143, 310 S.E.2d 610
(1984)...........................................10
State v. Evans, 279 N.C. 447, 183 S.E.2d 540
(1971)...........................................23
State v. Irwin, 304 N.C. 93, 282 S.E.2d 439
(1981)........................................25,26
State v. Kemmerlin, 356 N.C. 446, 573 S.E.2d 870
(2002).........................................8,10
State v. Lowery, 10 N.C. App. 717, 179 S.E.2d 888
(1971)...........................................13
State v. Myers and Garris, 61 N.C. App. 554, 301
S.E.2d 401 (1983)................................15
State v. Parker, 143 N.C. App. 680, 550 S.E.2d 174
(2001)...........................................28
State v. Pavone, 104 N.C. App. 442, 410 S.E.2d 1
(1991)...........................................13
State v. Peterson, 154 N.C. App. 571 S.E.2d 883
(2002)...........................................10
State v. Smith, 40 N.C. App. 72, 352 S.E.2d 535
(1979)...........................................22
State v. Swinney, 271 N.C. 130, 155 S.E.2d 545
(1967)...........................................15
State v. White, 127 N.C. App. 565, 492 S.E.2d 48
(1997)...........................................28
State v. Young, 166 N.C. App. 401, 602 S.E.2d 374
(2004)........................................13,14
U.S. Constitution Amendment VI....................8
N.C. Constitution Article I, Section 24...........8
N.C. Gen. Stat. § 7A-27(b)........................5
N.C. Gen. Stat. § 14-39..........................28
N.C. Gen. Stat. § 14-39(b).......................28
N.C. Gen. Stat. § 15A-1443(b).....................9
N.C. Gen. Stat. § 15A-1446(d)(18)................10
-1-
QUESTIONS PRESENTED
I. The Court committed reversible error by penalizing the defendant
for not pleading guilty to the original indictments and in electing
instead to exercise his right to a jury trial in violation of the
defendant’s Federal and State Constitutional rights to a fair trial
and due process of law and the Sixth and Fourteenth Amendments to
the United States Constitution and Article I, Sections 19, 23 and
27 of the North Carolina Constitution.
II. The Court committed reversible error by sentencing Tony Johnson
disproportionately to other co-defendant’s when Johnson’s role was
minor compared to the co-defendant’s role in violation of the
defendant’s Federal and State Constitutional rights to a fair trial
and due process of law and the Sixth and Fourteenth Amendments to
the United States Constitution and Article I, Sections 19, 23 and
27 of the North Carolina Constitution.
III. The court committed reversible error in denying the
defendant’s motion to dismiss the charges made at the end of the
state’s evidence where the evidence was insufficient to convince
the trier of fact of the defendant’s guilt of the charge of first
degree kidnapping beyond a reasonable doubt in violation of the
Sixth and Fourteenth Amendments to the United States Constitution
and Article I, Sections 19, 23 and 27 of the North Carolina
Constitution.
IV. The court committed reversible plain error by allowing into
evidence the statements of Justin McCarty, Michael Poole and
Napoleon Sanders read by Detective Randy Munn for the purpose of
corroborating their testimony when the report contained information
that had not been testified to or had been testified to
substantially different in the report that was being read by
Detective Munn. The report did not tend to add weight or
credibility to the testimony of Mr. McCarty, Mr. Poole or Mr.
Sanders in violation of the Sixth and Fourteenth Amendments to the
United States Constitution and Article I, Sections 19, 23 and 27 of
the North Carolina Constitution.
-2-
STATEMENT OF THE CASE
Tony Harrell Johnson (Johnson) was originally indicted on
October 11, 2004, for one count of first degree burglary in 04-CRS-
80357 and one count of robbery with a dangerous weapon in 04-CRS-
80358. On January 7, 2005, a meeting was held with Assistant
District Attorney, Susan E. Spurlin and defendant’s counsel, Johnny
Gaskins. Ms. Spurlin informed defense counsel that if Defendant
did not plead guilty at the arraignment date of January 10, 2005,
to the two above listed charges, she would indict Johnson on
additional charges. On January 10, 2005, Defendant plead not
guilty to the original charges and elected to exercise his
constitutional right to a jury trial. On January 24, 2005, ADA
Spurlin obtained superceding indictments in 04-CRS-80357, first
degree burglary, 04-CRS-80358, 05-CRS-1392, 05-CRS-1393 and 05-CRS-
1394, robbery with a dangerous weapon, 05-CRS-1395, 05-CRS-1396,
05-CRS-1397, 05-CRS-1398, first degree kidnapping.
On October 11, 2004, co-defendant Timothy Johnson, Defendant’s
brother, was indicted for the same crimes in 04-CRS-80359 and 04-
CRS-80360; co-defendant Justin McCarty was indicted for the same
crimes in 04-CRS-74220 and 04-CRS-74221; co-defendant Nathan Archer
was indicted for the same crimes in 04-CRS-80373 and 04-CRS-80374
and co-defendant Michael Poole was indicted for the same charges in
04-CRS-80650 and 04-CRS-80651.
On October 25, 2004, co-defendant Christopher Edge was
-3-
indicted for the same charges in 04-CRS-80371 and 04-CRS-80372.
However, on November 29, 2004, Edge was indicted on a superceding
indictment with four counts of robbery with a dangerous weapon in
04-CRS-08371.
Also on November 29, 2004, co-defendant Napoleon Sanders was
indicted on a superceding indictment with four counts of robbery
with a dangerous weapon in 04-CRS-80688 and first degree burglary
in 04-CRS-80689.
On February 10, 2004, defense counsel filed a motion to
dismiss based on vindictive prosecution by the State of North
Carolina. The defendant requested that the Court dismiss the
additional indictments of robbery with a dangerous weapon and the
four additional charges of first degree kidnapping because they
were the result of vindictive prosecution in violation of the
United States Constitution and the North Carolina Constitution.
The motion to dismiss based on vindictive prosecution was denied by
order of Superior Court Judge James Spencer on March 29, 2005.
The matter came on for trial at the April 4, 2005, criminal
session of Superior Court in Wake County before the honorable
Superior Court Judge James C. Spencer, presiding. A jury was
selected and empaneled.
Following the presentation of evidence by the State, Defendant
was found guilty on all counts. Although defendant did not put on
evidence during the guilt/innocence phase, he did put on evidence
-4-
for sentencing. The trial court, after hearing evidence in the
sentencing phase, determined the defendant had zero prior points
and was a record level I. The Court sentenced Defendant in 04-CRS-
80357, first degree burglary, a class D felony, to 61 months
minimum, 83 months maximum in the North Carolina Department of
Corrections. In the second judgment, the Court consolidated all
four of the armed robberies in 04-CRS-80358, 05-CRS-1392, 05-CRS-
1393 and 05-CRS-1394 and entered a sentence of 61 months minimum,
83 months maximum to be served in the North Carolina Department of
Corrections. This sentence to begin at the expiration of the first
judgment. In the third judgment, the Court consolidated all of the
first degree kidnapping charges in 05-CRS-1395, 05-CRS-1396, 05-
CRS-1397 and 05-CRS-1398 and sentenced Defendant to 70 months
minimum, 93 months maximum in the North Carolina Department of
Corrections to be served at the expiration of the sentence imposed
in the second judgment. Thus, giving Defendant a total minimum
active sentence of 192 months and a maximum of 259 months to be
served in the North Carolina Department of Corrections. Defendant
appealed his conviction and sentence in open court. (T p. 1533)
At sentencing, Timothy Wayne Johnson, Defendant’s brother,
received an active sentence of 122 to 166 months. Co-defendant,
Justin McCarty received an active sentence as a record level I in
the mitigated range of 48 months minimum to 67 months maximum and
recommendation of work release. Co-defendant Nathan Archer, being
-5-
a record level III, received an active sentence in the mitigated
range of 61 months minimum to 83 months maximum with recommendation
of work release. Co-defendant Michael Poole, being a record level
I, received an active sentence in the mitigated range of 38 months
minimum to 55 months maximum. The Court also recommended work
release after completion of the DART program.
STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW
The grounds for appellate review is the final judgment of the
Superior Court under N.C. Gen. Stat. § 7A-27(b).
STATEMENT OF FACTS
At trial, the State called seventeen witnesses. The defendant
did not testify, nor did he present evidence on his behalf during
the guilt/innocence phase, but did present seven witnesses on his
behalf at the sentencing hearing. Timothy Johnson, the defendant’s
older brother, lived in Raleigh, North Carolina. Timothy’s
apartment had been broken into and his drugs, money and guns were
stolen. After learning that his apartment had been broken into, he
called his brother, the defendant, to come to Raleigh. Tony and
his brother attempted to find out who was responsible for breaking
into Timothy’s home. It was decided that Jeremy Ellis was a person
who could have committed the break-in. Tony and a friend, Rachel
-6-
French, went to Mr. Ellis’ house in a effort to determine if he had
a large amount of cocaine. After leaving Mr. Ellis’ house, they
returned to Timothy Johnson’s apartment. Timothy, in the meantime,
contacted Justin McCarty, Michael Poole, Christopher Edge, Nathan
Archer, Napoleon Sanders and others to assist him in recovering his
stolen goods. On Monday, August 23, 2004, Justin McCarty, Michael
Poole, Christopher Edge, Nathan Archer, Napoleon Sanders and
Timothy and Tony Johnson went to Jeremy Ellis’ home. Once they
arrive at the location, McCarty knocked on the door. As James
Morgan opened the door, McCarty and the others rush in and search
the house. They locate Ashley Case, Jeremy Ellis and Lucy
Velasquez asleep in the home. The four individuals were directed
to the livingroom where they were placed on the floor face down and
their hands and feet are taped together. After the house was
searched, the four victims were placed in a back bedroom and the
intruders left the scene. The four victims, Morgan, Case, Ellis
and Velasquez all testified at trial, but were unable to positively
identify the defendant, Tony Johnson, as one of the people who
entered the home. However, Justin McCarty, Michael Poole,
Christopher Edge, Nathan Archer and Napoleon Sanders all testified
that Tony Johnson was present with them when they committed this
burglary.
Ashley Brown, Defendant’s girlfriend, testified Tony told her
he went with the others and participated in the burglary. Liana
-7-
Montsinger, Timothy Johnson’s girlfriend, told the jury that she
saw Tony Johnson take a knife from her kitchen when he left with
the others. That knife was identified as being found in the
residence where the burglary occurred.
A search warrant was issued for Tony Johnson’s car. A handgun
that was taken during the course of the burglary was found in the
vehicle.
Detective Randy Munn testified and read statements he took
from Justin McCarty, Michael Poole and Napoleon Sanders. At the
end of the State’s case, defense counsel made a motion to dismiss
all the charges and specifically requested that the four charges of
kidnapping be reduced from first degree to second degree. (T p.
470) The motions to dismiss were denied by the Court. The
defendant did not put on evidence. The jury returned verdicts of
guilty to all counts. Defense presented seven witnesses at the
sentencing phase.
During the sentencing phase, the Court found Tony Johnson was
a record level I and sentenced him to a total active sentence of
192 months minimum, 259 months maximum in the North Carolina
Department of Corrections.
ARGUMENTS
I. THE COURT COMMITTED REVERSIBLE ERROR BY PENALIZING THE DEFENDANT
FOR NOT PLEADING GUILTY TO THE ORIGINAL INDICTMENTS AND IN ELECTING
INSTEAD TO EXERCISE HIS RIGHT TO A JURY TRIAL IN VIOLATION OF THE
DEFENDANT’S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO A FAIR TRIAL
-8-
AND DUE PROCESS OF LAW AND THE SIXTH AND FOURTEENTH AMENDMENTS TO
THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 19, 23 AND
27 OF THE NORTH CAROLINA CONSTITUTION.
II. THE COURT COMMITTED REVERSIBLE ERROR BY SENTENCING TONY JOHNSON
DISPROPORTIONATELY TO OTHER CO-DEFENDANT’S WHEN JOHNSON’S ROLE WAS
MINOR COMPARED TO THE CO-DEFENDANT’S ROLE IN VIOLATION OF THE
DEFENDANT’S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO A FAIR TRIAL
AND DUE PROCESS OF LAW AND THE SIXTH AND FOURTEENTH AMENDMENTS TO
THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 19, 23 AND
27 OF THE NORTH CAROLINA CONSTITUTION.
ASSIGNMENTS OF ERROR NOS. 1 AND 2, T Vol VIII, pp. 1531, 3, R p. 75
WILL BE ARGUED TOGETHER
Standard of Review: A criminal defendant has a constitutional right
to a jury trial. (U.S. Constitution Amemdment VI; N.C. Constitution
Article I, Section 24; State v. Kemmerlin, 356 N.C. 446, 573 S.E.2d
870 (2002)) Moreover, it is improper for the trial court, in
sentencing a defendant, to consider the defendant’s decision to
insist on a jury trial.
Standard of review is 15A-1443(b), a violation of the
defendant’s rights under the United States Constitution, is
prejudicial unless the appellate court finds that it was harmless
beyond a reasonable doubt. The burden is upon the State to
demonstrate beyond a reasonable doubt, that the error was harmless.
The Trial Court committed reversible error in allowing
Defendant’s decision to plead not guilty and pursue a jury trial to
influence the sentence imposed by the Court thus violating
Defendant’s right to a fair trial and due process of law and
Article I, Section 24 of the North Carolina Constitution.
Although Defendant did not object to the specific sentence he
-9-
received at the sentencing hearing, this issue should not be
dismissed because the trial counsel did not adequately preserve the
issue for appellate review by objecting to the sentence at trial.
Raising the issue of whether the sentence determination was
authorized at the time imposed, exceeded the maximum authorized by
law, was illegally imposed, or was otherwise invalid as a matter of
law, may be the subject of appellate review even though no
objection, exception or motion had been made at the trial division.
N.C. Gen. Stat 15A-1446(d)(18)
A Defendant has a constitutional right to plead not guilty to
a criminal offense, U.S. Constitution Amendment VI and North
Carolina Constitution, Article I, Section 24. State v. Kemmerlin,
356 N.C. 446, 573 S.E.2d 870 (2002) and cannot be penalized for
exercising this right. State v. Edwards, 310 N.C. 142, 310 S.E.2d
610 (1984).
Although a sentence within the statutory limit will be
presumed valid, such a presumption is not conclusive. State v.
Boone, 293 N.C. 702, 239 S.E.2d 459 (1977) If the record discloses
that the trial court considered irrelevant and improper matters in
determining the severity of the sentence, the presumption of
regularity is overcome, and the sentence is in violation of the
defendant’s rights. A defendant has a right to plead not guilty
and should not and cannot be punished for exercising that right.
Thus, where it could be reasonably inferred the sentence imposed
-10-
upon a defendant is based, even in part, on the defendant’s
insistence of a jury trial, the defendant is entitled to a new
sentencing hearing. State v. Peterson, 154 N.C. App. 571 S.E.2d
883 (2002). During the sentencing phase of this trial, the State
informed the trial court:
Your Honor, clearly there are a lot of people who
are affected by this. Clearly there are a lot of people
who have asked for your mercy.
And Mr. Gaskins might want to compare any sentence
the defendant might receive to a sentence that the
defendant’s brother has already received for this crime
or the sentence that other home invaders in this case
might receive for their crime.
But I say to the Court that this is comparing apples
to oranges. This defendant was offered the same plea as
everyone else. He chose to have a trial and that’s fine
that’s his right and we had a trial.
The sentence that his brother received I contend is
not appropriate for the crime that was committed.
However, it was appropriate because he accepted
responsibility. He avoided and did not make Lucy come
down from New York and cry and relive the emotional
trauma of the event.
Jamie Morgan, Jeremy Ellis and Ashley you saw tears
in the courtroom. And they avoided kept the victims from
having to undergo that additional trauma. It was hard
for them. There was a lot of tears outside the courtroom
before and after these witnesses testified. That’s why
they got the plea that they received.
This defendant chose not to accept that plea and go
to trial, and that is absolute right. And he should not
be punished for that. But since he chose to go to trial,
he should be given a sentence that is truly appropriate
for the crimes that were committed.
(T pp 1520-21)
It is abundantly clear that the prosecutor in this case has
argued to the Court that Tony Johnson chose to have a trial. He
chose not to accept the plea offer. The prosecutor further argues
to the Court that the lighter sentence his brother was given was
-11-
appropriate because he accepted responsibility and did not make the
victims of the crime go through a trial.
In sentencing, Tony Johnson received a 192 month minimum, 259
month maximum sentence, far beyond the sentence of his co-
defendants, and the Court echoed the words of the prosecutor
involving choices.
Life is full of choices. Some choices are very bad and
cause great pain. The result of those choices is seldom
the fault of any family or any other sort of
circumstances all together. In this case, the choices
led to severe difficulties and terror in the hearts of
these people with one person laying on the floor with a
gun in his mouth.
(T p. 1533)
The trial court seems to echo the prosecutor’s argument that
the defendant was offered a plea bargain the same as everyone else
and he chose to have a trial. That he chose to put the victims
through a trial.
In State v. Boone, 33 N.C. App. 378, 235 S.E.2d 74 (1977), the
trial court informed the defense counsel while in chambers his
intentions to give the defendant an active sentence if he persisted
in his plea of not guilty and not accept a lesser plea proffered by
the assistant district attorney. In Boone, the Court held:
The defendant has a constitutional right to plead not
guilty, to confront his accusers and witnesses, and to
have a trial by jury. These rights are not to be
impeded. The trial judge may have sentenced the
defendant quite fairly in the case at bar, but there is a
clear inference that a greater sentence was imposed
because the defendant did not accept a lesser plea
proffered by the State. This Court has indicated that it
would not tolerate an inference that a greater sentence
-12-
was imposed because the defendant exercised his right to
appeal. State v. Lowery, 10 N.C. App. 717, 179 S.E.2d 888
(1971). We also cannot tolerate the inference that a
greater sentence was imposed because the defendant
exercised his right to plead not guilty.
The appellate court remanded the case back to the trial court
for re-sentencing.
In State v. Cannon, 326 N.C. 37, 387 S.E.2d 450 (1990) the
Court informed counsel that if the defendants were convicted that
he would give them a maximum sentence. The Court again ruled that
the defendant is entitled to re-sentencing “where it can be
reasonably inferred from the language of the trial judge that the
sentence was imposed at least in part because the defendant
insisted on a jury trial.” In State v. Pavone, 104 N.C. App. 442,
410 S.E.2d 1 (1991), the trial court informed the defendant, “that
having moved through the jury process and having been convicted, it
is a matter in which he is in a different posture.” Again, the
Court held if it could reasonably be inferred that the sentence was
imposed at least in part because of the defendant’s request for a
jury trial, he is entitled to a new sentencing hearing. In a
recent case, State v. Young, 166 N.C. App. 401, 602 S.E.2d 374
(2004), the Court held that although a sentence within a statutory
limit would be presumed regular and valid, such a presumption is
not conclusive. If the record discloses that a trial court
considered irrelevant and improper matter in determining the
severity of the sentence, the presumption of regularity is overcome
-13-
and the sentence is in violation of the defendant’s rights. A
defendant has the right to plead not guilty and he should not and
cannot be punished for exercising that right. Thus, where it can
be reasonably inferred the sentence imposed upon the defendant was
based, even in part, on the defendant’s insistence on a jury trial,
the defendant is entitled to a new sentencing hearing. In Young,
the trial court informed the defendant that if he entered a plea of
guilty to the possession with intent to sell or deliver charge,
that the trial court would sentence the defendant at the bottom of
the mitigated range. The trial court then warned the defendant
that if he instead pursued a jury trial which resulted in a
conviction, the defendant “would definitely get a sentence in the
presumptive range and that the trial court probably wouldn’t go
back to the mitigated range”. The Court held that the totality of
those comments evidenced an improper intent by the trial court to
punish the defendant for exercising his right to plead not guilty.
Defendant argues to this Court that because it can be
“reasonably inferred” on this record that Defendant’s sentence was
based in part on his refusal to not accept the district attorney’s
plea offer and instead pursue a jury trial that Defendant is
entitled to a new sentencing hearing.
The trial court’s decision to punish Defendant for pursuing a
jury trial becomes even more pronounced in viewing the disparity of
the sentence that the trial court imposed on Defendant as compared
-14-
to his co-defendants involved in the same crime.
STANDARD OF REVIEW: In order to overturn a sentencing decision, the
reviewing court must find an abuse of discretion, procedural
conduct prejudicial to the defendant, circumstances which manifest
inherent unfairness and injustice or conduct which offends the
public sense of fair play. State v. Myers and Garris, 61 N.C. App.
554, 301 S.E.2d 401 (1983). The presumption of sentence regularity
may be overcome, however, if the trial court considered irrelevant
and improper matters. State v. Swinney, 271 N.C. 130, 155 S.E.2d
545 (1967).
Although Defendant acknowledges that his sentences are within
the statutory limits, they should be vacated because the sentence
manifests inherent unfairness and injustice and conduct which
offends the public sense of fair play.
After the jury returned it’s verdicts of guilty to all counts,
the sentencing hearing was continued until June 15. At that time,
the court sentenced the defendant to three consecutive active
sentences. In 04-CRS-80357, one count of first degree burglary, a
class D felony, the court imposed an active sentence of 61 months
minimum, 83 months maximum in the North Carolina Department of
Corrections. In 04-CRS-80358, 05-CRS-1392, 05-CRS1393 and 05-CRS-
1394, four counts of robbery with a dangerous weapon, all class D
felonies, the court consolidated the counts for judgment and
imposed an active sentence of 61 months minimum, 83 months maximum
-15-
in the North Carolina Department of Corrections to be served at the
expiration of 04-CRS-80357. In 05-CRS-1395, 05-CRS-1396, 05-CRS-
1397 and 05-CRS-1398, four counts of first degree kidnapping, all
class C felonies, the court consolidated the counts for judgment
and imposed an active sentence of 71 months minimum, 93 months to
be served at the expiration of 04-CRS-80358 in the North Carolina
Department of Corrections, giving Johnson an active sentence of 192
months minimum, 259 months maximum. Tony Johnson had no prior
convictions and was sentenced at a record level I.
However, the following day, the court sentenced Justin McCarty
to a minimum term of 48 months and a maximum term of 67 months.
McCarty plead guilty to first degree burglary and robbery with a
dangerous weapon. He was a record level I. The Court sentenced
him in the mitigated range after finding that he testified
truthfully on behalf of the State, that he acknowledged wrongdoing
in connection with the offense to law enforcement and accepted
responsibility for his conduct. His sentence was 144 months less
than the sentence that was given to Tony Johnson after he decided
to go to trial. It was Justin McCarty who admitted under oath
during direct examination and cross examination that he lived in
Fayetteville, North Carolina and received a phone call that Timothy
Johnson’s product had been stolen. The same night the phone call
was received, he packed up his Glock .23, .40 caliber, Glock .19,
-16-
.9 millimeter Smith and Wesson and immediately started to assist
his friend Tim Johnson in retrieving the product. The Smith and
Wesson .9 millimeter had a laser sight which he readily testified
to was for the purpose of intimidating people. (T p. 648) After the
decision was made to go to the victim’s house, he was the one who
masterminded the plan that was to take affect once they were
inside. He originally was planning on kicking in the door, but
changed his mind at the last second and simply knocked at the door.
(T p. 55) Once the victim came to the door, McCarty rushed the
victim with two firearms, put him on the ground immediately and
then everyone rushed in behind him. He testified, “I immediately
drew my weapons and put them in his face and threw him on the
ground.” “I then handcuffed him.” “I was swearing and cussing a
lot.” “I demanded to know where the $15,000 of the stuff was.” (T
pp. 657-8) After placing the first victim on the floor and
handcuffing him and sticking a gun in his face, he then went into
the master bedroom where he removed a female and brought her to the
livingroom as well. (T p. 659) He was still yelling and screaming
and demanding of the victims. (T p. 660) He also was still pointing
the laser at all the victims. He pointed the laser near the eye of
one of the victims so the victim would not look at him. (T p. 662)
All the victims were then moved back to the original bedroom.
McCarty had forgotten his handcuff key. He went to the truck, came
back in the house and removed the handcuffs and taped the victim’s
-17-
hands. (T p. 670)
On cross examination, defense counsel asked,
Q: You were running the show, weren’t you?
A: For the most part, yes sir.
Q: You were the one that went through the door first,
weren’t you?
A: Yes, sir.
Q: You were the one that had two guns. Everyone else had
something else, right?
A: Right. Other people had firearms, but, yes, sir, I had
two.
Q: Now did you make the assignments on this raid?
A: It was sort of a community effort. Yes, sir. But I did
take a strong lead in the planning.
Q: Once you rushed into that door there was total chaos all
around you, wasn’t there?
A: Oh, yes, sir.
Q: Major confusion?
A: Yes.
Q: You didn’t pay any attention at that point, did you? Who
was coming in that house.
A: No, sir, I didn’t. My focus was on that gentleman that
answered the door.
Q: You were screaming at people, weren’t you.
A: Just at him initially, yes, sir.
Q: you stuck the gun in his mouth at one point while he was
laying on the floor.
A: No, sir. I stuck it in his face, not in his mouth.
Q: Ok. You were the one who went in the bedroom and pulled
the lady out from underneath the bed or beside the bed
and drug her into the hallway.
A: No, sir. I didn’t drag her. I instructed her to get up
and move and she did.
Q: Ok. You were the one to try to demonstrate to your
buddies on the raid what a big man you were.
A: I was trying to recover the stolen product of means of
demonstration.
(T pp. 691-708)
Because of McCarty’s major lead in the role of planing and
executing the first degree burglary, robbery and kidnapping of the
victims, he got the first choice of the weapons that had been
stolen from the victim’s home. That demonstrates his leadership
-18-
among his co-defendants. However, McCarty chose to plead guilty
and therefore was sentenced in the mitigated range to a sentence
that was 144 months less (12 years) than Johnson received.
On June 16, the trial court sentenced Nathan Archer. He,
however, had been in trouble with the courts before. He had five
prior record level points and was a record level III. However, the
trial court consolidated the first degree burglary and robbery with
a dangerous weapon charges and sentenced him in the mitigated range
to 61 months minimum, 83 months maximum, 131 months less than what
Tony Johnson received for going to trial.
Also on June 16, the trial court sentenced Michael Poole. The
court consolidated the robbery with a dangerous weapon and the
first degree burglary charge. Again, sentenced the co-defendant in
the mitigated range because he testified truthfully for the State,
voluntarily acknowledged wrongdoing in connection with the offense
to a law enforcement officer and accepted responsibility for his
criminal conduct. After consolidating both counts, the trial court
sentenced him in the mitigated range to the lowest possible
sentence he could, that being a minimum of 38 months and a maximum
of 55 months. There was no lower sentence the court could have
given Mr. Poole for his involvement in this crime. Mr. Poole
received 154 months less than what Tony Johnson was sentenced to
because he went to trial. Almost a 13 year difference in the
disparity between the sentence the trial court gave Tony Johnson
-19-
versus Michael Poole.
As defense counsel properly argued at the sentencing hearing,
it was Defendant’s brother, Tim Johnson, who recruited the three
individuals from Fayetteville to come to Raleigh to assist him in
recovering his product. It was Tim Johnson who set this
unfortunate series of incidents in motion. It appears from the
evidence that Tony Johnson was the least culpable of any of the
people that were involved. None of the State’s witnesses testified
that Tony Johnson did anything other than be present at the scene.
None of the victims testified that he hurt them. None of the
victims testified that he taped them up. None of the victims
testified that he threatened them with a gun and it was not Tony
Johnson who went back into the house to recover the handcuffs, it
was Justin McCarty and Grant Sanders.
Defense counsel requested at the sentencing hearing that the
court consolidate all the counts and sentence Johnson in the
mitigated range for one class C felony. (T p. 1527) That would
expose Tony Johnson to 44 months minimum, 58 months maximum. That
sentence, although it would have been higher than some of the co-
defendant’s received would also have been less than what others
received. However, Tony Johnson was a record level I, with zero
convictions.
In conclusion, because it appears on the record where it can
reasonably inferred that the sentence imposed on the defendant was
-20-
based in part on the defendant’s insistence for a jury trial and
the huge disparity in the sentence that was imposed on Tony Johnson
who chose to go to trial, as compared to the co-defendants who did
not, shows a manifest inherent unfairness and injustice which
offends the public sense of fair play. Tony Johnson, though being
the least culpable of the seven home invaders, ended up with an
extreme sentence. Therefore, the case should be remanded back to
the trial court for a new sentencing hearing.
III. THE COURT COMMITTED REVERSIBLE ERROR IN DENYING THE
DEFENDANT’S MOTION TO DISMISS THE CHARGES MADE AT THE END OF THE
STATE’S EVIDENCE WHERE THE EVIDENCE WAS INSUFFICIENT TO CONVINCE
THE TRIER OF FACT OF THE DEFENDANT’S GUILT OF THE CHARGE OF FIRST
DEGREE KIDNAPPING BEYOND A REASONABLE DOUBT IN VIOLATION OF THE
SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION
AND ARTICLE I, SECTIONS 19, 23 AND 27 OF THE NORTH CAROLINA
CONSTITUTION THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION AND ARTICLE I, SECTIONS 19, 23 AND 27 OF THE
NORTH CAROLINA CONSTITUTION.
ASSIGNMENT OF ERROR NO. 3, T Vol VII, p. 1269, R p. 75
The evidence in this case was insufficient to persuade any
rational trier of fact Defendant was guilty of first degree
kidnapping.
STANDARD OF REVIEW: When ruling on a defendant’s motion to dismiss,
the trial court must consider the evidence in a light most
favorable to the State. However, in order to withstand a motion to
dismiss, the State must present substantial evidence of each
essential element of the crime charged. State v. Smith, 40 N.C.
App. 72, 352 S.E.2d 535 (1979). State v. Brown, 310 N.C. 563, 313
S.E.2d 585 (1984).
-21-
The State’s evidence must raise more than a suspicion or
conjecture of guilt on the part of the defendant in order to
withstand the motion to dismiss. State v. Batts, 269 N.C. 694, 153
S.E.2d 379 (1967). If the evidence raises no more than a surmise,
suspicion or conjecture of guilt, it is insufficient to withstand a
motion to dismiss. State v. Cutler, 271 N.C. 379, 156 S.E.2d 679
(1967).
Even though the suspicion aroused by the evidence is strong,
the case is insufficient to withstand a motion to dismiss unless
there is substantial evidence of each and every element to support
a conviction. State v. Evans, 279 N.C. 447, 183 S.E.2d 540 (1971).
In order for the jury to convict the defendant on the charge
of first degree kidnapping, the State must prove each and every
element beyond a reasonable doubt. They must prove the defendant
1) unlawfully confined, restrained or removed the person from one
place to another; 2) that the person did not consent to the
confinement, restraint or removal; 3) that the defendant confined,
restrained or removed the person for the purpose of facilitating
his or another person’s commission or flight after committing
robbery with a firearm; 4) that the confinement, restraint or
movement was a separate complete act independent of and apart from
robbery with a firearm; and 5) that the person was not released by
the defendant in a safe place.
Defendant contends the State failed to present sufficient
-22-
evidence on element number 4, that the confinement, restraint or
movement was a separate complete act independent of and apart from
the robbery with a firearm and element number 5, that the person
was not released by the defendant in a safe place.
On Monday, August 23, 2004, James Morgan, Ashley Case, Jeremy
Ellis and Lucy Velasquez were at a residence located at 2100
Mariner Circle, located in Wake County, North Carolina. Jeremy
Ellis, Roger Scott and James Morgan all resided at that residence.
Lucy Velasquez was a guest from out of town and was staying at the
Mariner Circle address. James Morgan stayed in his bedroom. Lucy
Velasquez stayed in Jeremy Ellis’ bedroom and Ashley Case and
Jeremy Ellis stayed in Roger Scott’s room because Roger Scott was
out of town. (T vol III, p. 336) During the early morning hours,
James Morgan heard a knock at the front door and went to see who it
was. He thought it was friends of Jeremy Ellis’. (Id. at 337) As he
turned the knob to open the door, Justin McCarty forced himself
into the front door with two pistols and forced Mr. Morgan back to
the couch. Justin McCarty then placed Mr. Morgan on the floor and
placed handcuffs on his wrists while he was on the floor in the
living room. (Id. at 338) While he was in handcuffs, Justin McCarty
asked him where the 15 thousand dollars and the guns were. He
said, “Don’t play stupid motherfucker where’s it at?” And he then
tried to put the pistol in Mr. Morgan’s mouth. (Id. at 340)
Ashley Case and Jeremy Ellis were removed from their bedroom
-23-
and brought to the living room and taped with duct tape on their
wrists and ankles. Lucy Velasquez was eventually found hiding in
her bedroom and brought to the living room and duct taped as well.
(Id. at 339)
Justin McCarty and his co-defendants began searching the
house. (Id. at 341) The entire incident lasted approximately 10
minutes. After the search had been completed, all four of the
victims were then returned to Roger Scott’s room, which is the room
that was originally occupied by Ashley Case and Jeremy Ellis.
The defendant contends the State failed to prove beyond a
reasonable doubt the fourth element of first degree kidnapping in
that the confinement, restraint or movement was not a separate
complete act independent of and apart from robbery with a firearm.
In State v. Irwin, 304 N.C. 93, 282 S.E.2d 439 (1981) the
Court gave the following analysis:
In accordance with our analysis of the term “restraint”
we construe the phrase removal from one place to another
to require a removal separate and apart from that which
is an inherent, inevitable part of the commission of
another felony. To permit separate and additional
punishment where there has been only a technical
asportation inherent in the other offense perpetrated,
would violate the defendant’s constitutional protection
against double jeopardy. In an armed robbery, for
example, punishments of two offenses would be sanctioned
if the victim was forced to walk a short distance toward
the cash register or to move away from it to allow the
defendant access. Under such circumstances the victim is
not exposed to greater danger than that inherent in the
armed robbery itself, nor is he subjected to the kind of
danger and abuse the kidnapping statute was designed to
prevent.
-24-
In Irwin, the Court held that Mr. Sasser, one of the clerk’s
who was on duty the night of the robbery and moved to the back of
the store was an inherent and integral part of the attempted armed
robbery. To accomplish the defendant’s objective of obtaining
drugs, it was necessary that either Mr. Stewart or Mr. Sasser go to
the back of the store to the prescription counter and open the
safe. Defendant was indicted for an attempted armed robbery of
both individuals. Mr. Sasser’s removal was a mere technical
asportation and insufficient to support conviction for a separate
kidnapping offense.
The defendant argues the same situation occurred in the
present case. Upon Justin McCarty’s entrance into the house, he
immediately placed James Morgan on the floor and handcuffed him and
one of the first questions he asked was, “Where’s the money?” (Id.
at 340) “I believe he asked the 10 thousand or the 15 thousand
dollars. He later asked, ‘Where are the guns at?’ He then said,
‘Don’t play stupid motherfucker. Where’s it at?’” (Id.) “They
then began looking and searching the place because you could hear
things. You know, drawers being pulled out, get turned upside
down, and beds being turned. So they were looking for something.”
(Id. at 341)
Defendant argues the same situation occurred in this case.
Mr. Morgan’s restraint at the front door was immediately followed
by the question, “Where’s the money?” It is evident that the
-25-
restraint was in fact part of the armed robbery. Mr. Morgan was
not removed from one of the back bedrooms, he was only restrained
at the front door. Once the other three were removed from their
bedrooms and brought to the front, they also were able to hear the
demands for the money and drugs. While all four of the victims
were in the front room, the robbery continued because the searching
of the house for the money continued. The crime of armed robbery
was not completed until Justin McCarty and his co-defendants left
the house with the items they have removed from the various
bedrooms. Because the armed robbery was continuing the entire time
the defendants were in the home and was not completed until they
left, the removal of the three individuals from the bedroom and the
restraint of Mr. Morgan at the front door was nothing more than a
mere technical asportation. Because the removal and restraint was
a mere technical asportation, it is insufficient to support a
conviction for a separate kidnapping offense for each of the four
individuals who were in the home. Accordingly, because the State
failed to prove beyond a reasonable doubt element four, that the
confinement, restraint or movement was a separate complete act
independent and apart from the robbery with a firearm, the
defendant is entitled to a new trial.
Defendant also argues that the State has also failed to prove
beyond a reasonable doubt element five, that the victim was not
released in a safe place. The crimes of first and second degree
-26-
kidnapping are differentiated in N.C. Gen. Stat. § 14-39(b). First
degree kidnapping occurs when “the person kidnapped is either not
released by the defendant in a safe place or is seriously injured
or sexually assaulted”. Second degree kidnapping occurs when the
victim is released in a safe place by the defendant and is not
seriously injured or sexually assaulted. Our Supreme Court stated
that “in order to leave a victim in a safe place within the meaning
of the statute, a conscious willful action on the part of the
defendant to assure that the victim is released in a place of
safety is required.” State v. Parker, 143 N.C. App. 680, 550 S.E.2d
174 (2001)
In State v. White, 127 N.C. App. 565, 492 S.E.2d 48 (1997),
the Court held that the purpose of N.C. Gen. Stat. 14-39, was met
and the rape victim was released in a safe place where the evidence
showed the victim was released at a motel near a major shopping
center in the middle of the afternoon, was given change to make a
phone call after her release, and was able to go directly to the
motel office to seek assistance. In the present case, all the
victims were released in the very same house they had been
restrained in. They were never removed from their home. In fact,
Jeremy Ellis and Ashley Case were taken back to the exact same
bedroom they had been removed from. If their bedroom was a safe
place before the home invaders came, it certainly would be a safe
-27-
place for them to be after the home invaders left. James Morgan
was placed in the same room with Jeremy Ellis and Ashley Case along
with Lucy Velasquez. Justin McCarty and his co-defendants did not
leave all of the victims separated, but instead placed them all in
one room, thus making it easier to assist each other in removing
the restraints. By placing them all in the same room, it was a
conscious act on the part of the defendant’s to ensure they were
released in a safe place. Specifically, the exact bedroom they had
been removed from prior to the robbery. Because the victims were
left in the same bedrooms they were removed from, and were left in
a safe place, the State has failed to prove beyond a reasonable
doubt element five, that the victim was not released by the
defendant in a safe place, therefore, he is entitled to a new
trial.
ASSIGNMENT OF ERROR NO. 4 WILL NOT BE ARGUED
CONCLUSION
For all the errors committed in the trial of this case,
Defendant respectfully requests his convictions be reversed and a
new trial ordered on issue number III. Defendant also requests the
active sentence imposed be vacated and his case be remanded for re-
sentencing in issues I and II.
Respectfully submitted, this _____ day of December, 2005.
BY:______________________________
Haral E. Carlin
P.O. Box 53689
-28-
Fayetteville, N.C. 28305
Telephone: (9l0) 483-0421
CERTIFICATE OF SERVICE
I, Haral E. Carlin, Attorney for Defendant Appellant, Tony Johnson,
do hereby certify that I have this date served a copy of the
appellant brief by mailing a copy of same postage to:
Appellate Division
Office of the Attorney General
Department of Justice
P.O. Box 629
Raleigh, N.C. 27602
This the ______ day of December, 2005.
BY:______________________________
Haral E. Carlin
Attorney for Defendant
P.O. Box 53689
Fayetteville, N.C. 28305
Telephone: (9l0) 483-0421