No. COA04-945 DISTRICT TWENTY-SIX
NORTH CAROLINA COURT OF APPEALS
STATE OF NORTH CAROLINA )
V. ) From Mecklenburg
ROBERT JOHNSON, Jr. )
I. DID THE TRIAL COURT ERR IN RESPONSE TO DEFENDANT’S BATSON
OBJECTION BY RULING THAT DEFENDANT HAD NOT ESTABLISHED A
PRIMA FACIE SHOWING OF DISCRIMINATION?
II. DID THE TRIAL COURT COMMIT PLAIN ERROR BY FAILING TO
ESTOP THE STATE FROM RELYING ON A FACTUAL THEORY WHICH HAD
ALREADY BEEN REJECTED BY THE JURY IN THE TRIAL OF CO-
III. WERE MR. JOHNSON’S DUE PROCESS RIGHTS VIOLATED WHEN THE
STATE FAILED TO CORRECT FALSE TESTIMONY BY STATE’S WITNESS
NICHOLSON REGARDING HIS PLEA AGREEMENT?
IV. DID THE TRIAL COURT COMMIT PLAIN ERROR IN ALLOWING
UNSUPPORTED OPINION TESTIMONY FROM THE STATE’S GUNSHOT
RESIDUE EXPERT, AGENT McCLELLAND AND DID THE STATE VIOLATE
MR. JOHNSON’S DUE PROCESS RIGHTS BY AFFIRMATIVELY RELYING ON
THIS MISLEADING TESTIMONY?
V. WERE THE TWO ATTEMPTED ROBBERY CHARGES DUPLICATIVE, SO
THAT THE TRIAL COURT ERRED BY FAILING TO DISMISS ONE OF THE
STATEMENT OF THE CASE
The defendant, Robert Johnson, Jr., was tried at the July 14, 2003, criminal
session of Superior Court for Mecklenburg County, the Honorable W. Robert Bell,
presiding. Mr. Johnson was tried non-capitally on bills of indictment charging him
with two counts of first degree murder using the “short form” indictment, as well as
two counts of attempted robbery with a dangerous weapon and with possession of a
firearm by a felon. On July 22, 2003, the jury returned verdicts finding Mr. Johnson
guilty as charged on all counts. The trial court imposed a life sentence without parole
for the two murder charges, and two consecutive sentences of 120 - 153 months for the
attempted robbery charges, consolidating the possession of firearm by felon charge
with one of the attempted robbery charges. Mr. Johnson gave notice of appeal in open
court on July 22, 2003. The settled record on appeal was docketed on July 16, 2004.
After extensions allowed by the court, defendant-appellant’s brief is being filed
October 15, 2004.
STATEMENT OF GROUNDS FOR APPELLATE REVIEW
The defendant appeals his conviction following a trial upon his plea of not
guilty. Appellate review is as a matter of right pursuant to N.C.G.S. §§7A-27(b) and
STATEMENT OF THE FACTS
A. What Happened.
On August 16, 2000, Rhushaun Holley and Rishod Kelly were shot and killed.
The shootings occurred at 8719 Stoneface Road in the Pawtuckett neighborhood in
Charlotte. This residence had been purchased by Holley’s parents in anticipation of
moving to Charlotte from New York. Holley, who was 26 years old, had been living
in the house since June, 1999, but his parents had not yet moved from New York.
Kelly, who was 24 years old, had been staying with Holley for about two weeks. (Tpp.
Law enforcement was called to the neighborhood in response to 911 calls from
Terri Peterson and Kenneth Taylor. Ms. Peterson initially called 911 before the
shootings, at about 2:25 a.m., to report a loud car stopping near her house and four
occupants, a white female and three black males, getting out and walking around. One
of the men was talking on a cell phone. Ms. Peterson called 911 again after they got
back in the car and pulled off, and again sometime later, to report hearing gunshots.
(Tpp. 401-12). Mr. Taylor lives next door to the Holley residence at 8713 Stoneface
Road. At about 2:30 in the morning, he heard a loud noise he believed to be a gunshot
and heard someone knocking at his front door, trying to get in. As his wife called the
police, he looked out a window and saw and heard a Nissan 240 with a broken muffler
drive by. When the police arrived, he opened his front door and found Holley lying
dead on his porch. (Tpp. 417-22).
Police found Holley lying on the front porch of the Taylor residence. (Tpp. 430-
32, 445). Officers observed a man, later identified as Rodney Sledge, come out of the
8719 Stoneface, and they entered that house through a side door. Officers observed
Rishod Kelly lying on the kitchen floor, with a gunshot wound to the head. There was
a box type window in the front room with a storage area under the seat. Inside the
storage area was a 12 gauge pump shotgun, a bag of shells, and $4980 in cash. (Tpp.
520-21). Two bags of marijuana were found in a bedroom closet. (Tp. 523)
Holley had two gunshot wounds, one to the chest and one to the arm. Both
could have been caused by a single shot. The gunshot wound to the chest was the
cause of death, but would not have instantly incapacitated Holley. (Tpp. 461-69, 477).
Kelly suffered three gunshot wounds, one to the head, one to the chest and one a
surface wound in the back. The head wound would have instantly incapacitated Kelly,
and the chest wound within less than a minute, and these wounds constituted Kelly’s
cause of death. (Tpp. 479-90).
Officers approaching the scene saw a red Nissan 240 traveling in the opposite
direction. After pulling in behind the vehicle, officers initiated a felony stop of the
vehicle and arrested Kirsten Lemmert. A search of Ms. Lemmert’s car revealed a bag
containing a crack pipe, other paraphernalia and her driver’s license. (Tpp. 614-22,
Kendrick Nicholson was stopped by officers at about 4:30 near the intersection
of Sam Wilson Road and I-85. Nicholson was subsequently transported to the Law
Enforcement Center. Officer Bumgarner, the officer who first located Nicholson,
testified that he was hiding, hunkered down off the side of the road and that they were
searching the area with a spotlight looking for him. A gunshot residue test was
collected from Nicholson. Nicholson has injuries to his arms, chest, back and head.
Nicholson was not wearing a shirt when arrested. (Tpp. 666-67; 680, 687, 748-60).
SBI Agent McClelland testified that he analyzed Nicholson’s gunshot residue
test. He testified that the results were inconclusive, but also testified that the results
were not consistent with Nicholson having fired a weapon. (Tp. 1093).
B. Conflicting Evidence of Defendant Robert Johnson’s Involvement in the
The State’s contentions regarding Mr. Johnson’s involvement in the shootings
came out primarily through the testimony of Kendrick Nicholson and Kirsten
Lemmert. Mr. Johnson’s contentions came out through cross-examination of these
witnesses and through Mr. Johnson’s post-arrest statement to Detective Maxfield. To
summarize, the State contended that the defendant, Burke and Nicholson planned to
rob Holley under the ruse of buying drugs from him, and that during the attempted
robbery, Burke shot and killed Holley and Kelly. Mr. Johnson contends that he
believed he was facilitating an actual drug transaction in which Burke and Nicholson
were going to buy drugs from Holley, and that he did not share any common purpose
with either Burke or Nicholson to rob Holley but, rather, was duped by them into
setting it up.
Nicholson testified that in August, 2000, Lemmert was his girlfriend and that
they were living together. (Tp. 791-92). In the late evening hours of August 15, 2000,
Nicholson was at a cousin’s home when he got a call from Steven Christopher Burke,
known to him as Chris or Black. Burke told him of a lick involving some people
Burke’s cousin Snake knew, which would involve money and drugs. Burke asked
Nicholson if he could get Lemmert to drive, and Nicholson told Burke he would talk
her into it. (Tpp 793-96). Nicholson met Mr. Johnson, whom he knew as Snake and
whom he had previously met once or twice, at a nearby store. They drove in Mr.
Johnson’s car from there to the apartment Nicholson shared with Lemmert. Nicholson
went inside and got Lemmert to drive them. From there they went to the Pop Shoppe
to get gas and beer. (Tpp. 796-805). They then went to Nicholson’s grandmother’s
house to pick up Burke. Burke came out of the house with a shotgun, which was
wrapped up, and placed it in Lemmert’s car. From there, they went to Mr. Johnson’s
girlfriend’s apartment, where Mr. Johnson went inside then came back out. He was not
carrying anything when he came out of the apartment. Next they went to another
apartment, where they purchased $25 worth of powder cocaine and snorted that up.
(Tpp. 805-09). They continued to ride around. Mr. Johnson make a phone call and
said that the people they were supposed to meet were not ready. They drove to a spot
around the corner from the house where they were going and Mr. Johnson called again.
From there, they pulled around the corner and the three men got out of the car. Burke
handed Nicholson the shotgun. Neither Burke nor Mr. Johnson were carrying
anything. Burke told Nicholson to wait by the jeep as a lookout, and they went around
to the back of the house. Mr. Johnson then told Nicholson to come inside and to bring
the shotgun. (Tpp. 811-15).
There were three men present when Nicholson entered the kitchen with Mr.
Johnson; Burke and two other men he did not know. Nicholson handed the shotgun to
Mr. Johnson, who in turn handed it to one of the other men. They had some discussion
about the purchase of the shotgun and it was then placed on the floor. The other man
(later identified by Nicholson through a photograph as Holley -- Tp. 832) stated that he
was waiting for the guy who was supposed to bring the drugs and that he needed to
make a phone call. Burke then pulled out a gun and said “do you know what time it
is?” When Burke pulled out the gun, the other man Nicholson did not know (but later
identified through a photograph as Kelly -- Tp. 832) tried to grab the gun and they
started struggling over the gun. Mr. Johnson and Holley also started to tussle.
Nicholson picked up the shotgun from the floor. While Burke and Kelly were
struggling, the gun went off. Kelly started running towards Nicholson and Burke shot
Kelly. Meanwhile, Mr. Johnson yelled for them to shoot Holley. Burke shot Holley,
who then started running and Burke started chasing him. Nicholson ran out of the back
of the house. When he got to the front of the house, Burke was there and they all got
in Lemmert’s car and drove off. (Tpp. 816-25).
Nicholson testified that he had given Mr. Johnson $800 as front money for the
drug deal. When they got back into the car, he asked for the money back. Mr. Johnson
refused to give him back the money and they got into an argument and Mr. Johnson hit
him in the head with the gun, which Mr. Johnson got from Burke. After Mr. Johnson
hit him in the head with the gun, Nicholson jumped out of the car. Nicholson then cut
through a golf course to Sam Wilson Road, where he called his cousin from a
payphone. (Tpp. 825-29).
Nicholson testified that he flagged down an officer on Sam Wilson. Nicholson
admitted he told the officer someone attempted to rob him, which was untrue. (Tpp.
829-30). Officer Bumgarner testified that Nicholson stated that he had been robbed by
two or three black men, with a white female driving the car, and that he had jumped
out of the car on I-85. (Tpp. 751, 769-70). Nicholson gave a statement to a detective
on the morning of August 16, 2000 at the Law Enforcement Center and another
statement in May, 2002. (Tpp. 830-31). The statement he made in May, 2002 was in
conjunction with a plea bargain in which he pled guilty to two counts of attempted
armed robbery and conspiracy to commit armed robbery, his murder charges were
dropped, and he agreed to testify against his co-defendants. In his statement on August
16, 2000, Nicholson denied going into the house and told the detective he remained
outside. In the May, 2002 statement, he admitted to going inside. (Tpp. 830-38).
On cross-examination, Nicholson acknowledged that when they went into the
house, he had the shotgun, Burke was armed with the handgun, and Mr. Johnson was
unarmed. (Tpp. 842, 861). Nicholson acknowledged that he sold drugs, that the $800
he gave Mr. Johnson as front money for the drug transaction came from selling drugs,
and that Lemmert was one of his customers and crack was her drug of choice. (Tpp.
844-45). Nicholson did not recall what was said while they were all riding around in
the car, prior to going to the Holley residence, or what Mr. Johnson said while on the
cell phone. (Tpp. 858-59). Nicholson had known Burke for several years. Prior to
moving in with Lemmert, Nicholson lived with his grandmother, along with a cousin
who was dating Burke. Burke lived in the same neighborhood with his grandmother.
Nicholson stated that he did not recall whether he told the officers that he and
Burke had previously planned to do a lick or that Burke had told Nicholson that
Burke’s cousin, Mr. Johnson, had friends that had access to substantial drugs. He did
recall Burke telling him that one of the people killed that night had access to drugs, but
denied learning from Burke that Mr. Johnson wasn’t going to introduce them to his
friends and denied that the $800 was to establish their intention to buy drugs from Mr.
Johnson’s friends in order to get him to make the introduction. (Tpp 873-75). The
following exchange then took place:
Q: [Y]ou and Burke arranged to give that money to Mr. Johnson to get
him to introduce you to his friends, didn’t you?
A: No sir.
Q: And that’s why you gave him the $800, isn’t that correct?
A: It was to purchase, to purchase the drugs.
Q: It was to purchase the drugs?
A: Yes, sir.
Q: And then when Mr. Johnson went in there to buy the drugs, you
came in with the shotgun, didn’t you?
A: After he came and got me.
Q: And you came walking in with the shotgun in your hands ... and
that’s when everything jumped off, isn’t it?
A: No sir.
Q: And then the guy started running towards you and Mr. Burke shot
him, isn’t that true?
A: Yes, sir.
Q: And then he fell to the floor?
A: Yes sir.
Q: And you were standing there with the shotgun in your hands?
A. Yes, sir.
Nicholson’s plea agreement was dated February 4, 2002, but not actually signed
until May 28, 2002. (Tp. 885). Nicholson testified that he was not promised a
particular sentence and that the least sentence he could receive for the charges to which
he pled guilty was 131 months. (Tp. 892).
On re-cross and further redirect examination, Nicholson admitted to having
previously planned a robbery with Burke which never took place. (Tpp. 906-07).
Nicholson testified that Mr. Johnson was also involved in this earlier planned robbery,
(Tp. 917). However, he acknowledged that in his statement, he never said anything
about Mr. Johnson being involved in planning the earlier robbery, only Burke. He
further acknowledged saying in his statement that the night of the shootings was only
the second time he had ever seen Mr. Johnson; that Mr. Johnson came by to see Burke
but that he, Nicholson, had never talked to Mr. Johnson. (Tpp. 918-19).
Kirsten Lemmert testified that in August, 2000 she was living with her
boyfriend, Nicholson. She had known Burke for about two years. She met Mr.
Johnson on the night of this incident. (Tpp. 922-24). Late on the night of August 15,
2000, Nicholson woke her up and asked her to help him do a lick by driving the car.
Mr. Johnson was waiting outside in his car when Nicholson got her to agree to drive
for the lick. (Tpp. 924-27). When asked how the lick was supposed to take place,
A: Kendrick was supposed to buy some drugs for Snake and Black.
Q: And then what would happen, if anything, if you know?
A: I don’t know. I can’t answer.
Q: What else was said, if anything, about the robbery on the way to
Little Rock [the street leading into the Pawtuckett neighborhood]?
A: They discussed -- I mean they didn’t let me in on every detail or
anything. It was mainly between those three.
After entering the Pawtuckett neighborhood they pulled up on a side street and
Mr. Johnson made a call on his cell phone. From there they pulled around the corner
and the three men got out of the car. She was told to drive up the street, turn around
and come back, which she did. The three men all went to the side door of the Holley
residence (which she identified by photograph) and they all went in, Kendrick after the
others. She heard about six shots, and all three men came out of the house and got in
her car and they left. (Tp. 939-46)
As they were leaving, the three men were engaged in a heated argument about
who had gotten anything out of the house. While she was driving at a fairly high
speed, Kendrick jumped out of the car. After that happened, Burke and Mr. Johnson
told her to let them out, so she pulled off onto a side street, let them out, and went back
to look for Nicholson. (Tpp. 946-50).
Shortly after letting Burke and Mr. Johnson out, Lemmert was stopped by the
police. She initially told them she had been carjacked, but then admitted it had been an
attempted robbery. (Tpp. 951-53). Lemmert entered into a plea agreement and pled
guilty to two counts of attempted robbery and conspiracy and agreed to testify against
her co-defendants. (Tpp. 957-59).
On cross-examination, Lemmert acknowledged that if her charges were
consolidated for judgment, she could receive as little as 38 months with 35 months jail
credit. (Tp. 960). She testified that she had been involved with drugs for about five
years, but denied being a customer of Nicholson’s. She had smoked crack earlier in
the evening in question, and was coming down from being high when Nicholson told
her about the robbery. (Tpp. 962-68). She acknowledged being a crack addict. (Tp.
977). Mr. Johnson was outside when Nicholson told her about the lick. (Tp. 966).
She testified that Nicholson did not have any money that night, let alone $800. She
testified that when they stopped at the Pop Shoppe she had to give Nicholson money
for beer because he had no money. (Tpp. 968, 980-82).
When she was stopped, and again at the outset of her statement at the Law
Enforcement Center, she maintained she had been car-jacked and forced to drive three
men with guns to the house, and also that she was forced to smoke drugs, but these
statements were untrue. It was only after she was told that people had been killed that
she admitted her involvement in the robbery. Even then, she stated that Nicholson
never went into the house. She also told the detective that Nicholson never touched the
shotgun, even though she knew that to be untrue. She also initially lied in her
statement by telling the detectives that she did not know Burke. In fact, she, Nicholson
and Burke hung out together. Nowhere in her statement did she mention anything
about a fake drug deal. Likewise none of her testimony about any conversation in the
car about a robbery is contained in her statement. To the contrary, she told the
detective she had the music on loud, that she was leery and scared and that she did not
hear what was going on. (Tpp. 968-77, 984-87).
Detective Maxfield testified that he took a post-arrest statement from Mr.
Johnson. Although Maxfield took some notes, the interrogation was not recorded, and
there is no indication that any statement was ever reduced to writing or prepared for
Mr. Johnson to sign. According to Maxfield, Mr. Johnson stated that Burke is his
cousin, and that he had known Holley, whom he knew by the nickname Smoke, for
several months, that Holley was a drug dealer and that he, Johnson, had been to
Holley’s house several times. On the evening of August 15, 2000, Burke picked up
Mr. Johnson to hang out. Burke arrived in the company of two people Mr. Johnson did
not know, a white female who was driving and a black male, who was later identified
as Nicholson. In the car, there was discussion about buying some marijuana.
According to Maxfield, Mr. Johnson also overheard Burke and Nicholson discussing
robbing Smoke, but there was no discussion about any split of the proceeds and Mr.
Johnson was not involved in that discussion. In any event, Mr. Johnson called Smoke
and they went to Smoke’s house. Initially, Mr. Johnson and Burke went inside. After
Mr. Johnson came out to get his cigarettes, he went back in and saw that Nicholson
followed him in carrying a shotgun. The discussion inside was mainly Burke talking to
Holley and Kelly about marijuana. Burke pulled out a handgun and held it to Kelly’s
head. A struggle ensued, and Burke shot Kelly in the chest. Holley ran towards the
front of the house and Burke chased him out, firing shots. Mr. Johnson also stated he
saw Nicholson standing over Kelly with the shotgun and that the gun went off. Burke
came back into the kitchen and shot Kelly in the head. They all ran out and got in the
car and left, and they all jumped out of the car on a side street off Little Rock.. (Tpp.
1122-49, 1153, 1159).
C. What Happened in the Cases of Co-Defendants Nicholson and Burke.
Mr. Burke was tried capitally at the January 9, 2003 session of Superior Court.
State v. Burke, COA03-1557, Rp. 1.1 Burke’s jury found him guilty of first degree
murder of Holley and Kelly only under the felony-murder rule, and not on the basis of
premeditation and deliberation. State v. Burke, supra, Rpp. 87-88. At the sentencing
The record in co-defendant Burke’s case is an appropriate subject of judicial
notice, and the defendant requests that this Court take judicial notice of its records
in Burke’s case. See, State v. Wilson, 118 N.C.App. 616, 619, 456 S.E.2d 870, 872
(1995) (taking judicial notice of the records in the case of a co-defendant).
phase of Burke’s trial, his jury found as to each of the murders that Burke did not kill
the decedent, did not intend that deadly force be used in the underlying felony and was
not a major participant in the underlying felony with reckless indifference to human
life. State v. Burke, supra, Rpp. 91, 96.
On July 23, 2003, the day after Mr. Johnson’s trial concluded, Nicholson was
sentenced in his cases. His attempted robbery with a dangerous weapon charges were
consolidated for judgment and he received an active sentence of 51-71 months
imprisonment. On the conspiracy charge, he received a sentence of 20-33 months,
suspended for 24 months of probation.2
I. THE TRIAL COURT ERRED BY RULING THAT THE DEFENDANT
FAILED TO MAKE A PRIMA FACIE SHOWING OF RACIAL
DISCRIMINATION RESULTING FROM THE STATE’S EXERCISE OF
PEREMPTORY CHALLENGES DURING JURY SELECTION.
Assignment of Error 14, Rp. 73.
During jury selection, after the State announced its fourth peremptory challenge,
three of which were exercised against African-American jurors, The defendant
objected on Batson grounds. The trial court ruled that the defendant failed to make a
prima facie showing of racial discrimination and overruled the objection on that basis.
The judgments against Nicholson are included in the Appendix to this brief.
They are properly the subject of judicial notice, Wilson, supra, and the defendant
requests that this Court take judicial notice of them.
Because the pattern of peremptory challenges exercised by the State was sufficient to
make a prima facie showing, the trial court erred in overruling the objection, and Mr.
Johnson is entitled to have his case remanded for further proceedings to determine
whether the jury selection in his trial was tainted by racial discrimination in the
The Equal Protection Clause of the Fourteenth Amendment forbids the exercise
of peremptory challenges on the basis of race. Batson v. Kentucky, 476 U.S. 79
(1986). Likewise, Article I, Section 26 of the North Carolina Constitution prohibits
juries tainted “by racism, sexism and similar forms of irrational prejudice.” State v.
Cofield, 320 N.C. 297, 302, 357 S.E.2d 622, 625 (1987). A single improper, racially
motivated strike of a qualified African-American juror is grounds to vacate a judgment,
even if other African-Americans are selected and serve on the jury. State v. Smith, 328
N.C. 99, 400 S.E.2d 712 (1987).
The United States Supreme Court has articulated a three part process to
determine whether peremptory challenges are being exercised in a discriminatory
manner. First, a defendant must make a prima facie showing of discrimination. If the
defendant meets this hurdle, the State must then offer race-neutral explanations for its
challenges. Finally, the defendant is afforded the opportunity to show that the race-
neutral explanations offered by the State are pretext. At the end of this process, the
trial court must decide whether the exercise of peremptory challenges by the State was
racially motivated. See, e.g., State v. Peterson, 344 N.C. 172, 176, 472 S.E.2d 730,
732 (1996) (reviewing United States Supreme Court cases).
“Step one of the Batson analysis, a prima facie showing of racial discrimination,
is not intended to be a high hurdle for defendants to cross.” State v. Hoffman, 348 N.C.
548, 553, 500 S.E.2d 718, 722 (1998). A prima facie case can be shown solely from
the number of strikes exercised against minority jurors even without any other, more
direct, showing of discriminatory intent. State v. Barden, 356 N.C. 316, 343, 572
S.E.2d 108, 127 (2002).
Because the trial court found no prima facie showing, only the first step of the
Batson process is at issue in this appeal. Hoffman, supra. The trial court reconstructed
the record regarding the races of the various jurors relevant to defendant’s Batson
challenge at Tpp. 168-71. When the State exercised its first three peremptory
challenges, the jury was composed of four black jurors and eight white jurors. (Tp.
169). Two of the three jurors peremptorily challenged by the State at this time were
black. (Tpp. 169-70). When the time came for the State to exercise its next round of
challenges, the three remaining seats were filled by two black jurors and one white
juror. The State peremptorily challenged one of the black jurors. It was at this point
that Mr. Johnson lodged his Batson objection. (Tp. 170).
At the time of the Batson objection, three of the four peremptory challenges by
the State, 75%, had been exercised against African-American jurors, despite the fact
that African-American jurors made up only six of 15 jurors subject to peremptory
challenge by the State, or 40%. The State had challenged only one of nine white
jurors, a challenge rate of 11%. In contrast, the State had challenged three of six
African-American jurors, 50%.
Simply put, these numbers are sufficient to make out a prima facie case. In
absolute terms, the State challenged three times as many African-American jurors as
white jurors. In relative terms, the State challenged African-American jurors at more
than four times rate it challenged white jurors. The showing necessary to make out a
prima facie case is not intended to be onerous. Although Mr. Johnson cannot claim at
this stage that these numbers conclusively establish racial discrimination in the jury
selection, they are sufficient that the trial court should have advanced to the next stage
of the Batson inquiry and required the State to provide race-neutral explanations for its
challenges and then provided the defendant the opportunity to rebut any such
explanations. Since the trial court erred by failing to do so, Mr. Johnson is entitled to
have his case remanded for that purpose.
II. BECAUSE THE STATE’S VERSION OF THE FACTS, IN WHICH MR.
JOHNSON ACTED IN CONCERT WITH CO-DEFENDANT BURKE WHO
SHOT THE DECEDENTS, WAS REJECTED BY THE JURY IN BURKE’S
TRIAL, THE STATE WAS ESTOPPED FROM RELYING ON THIS VERSION
OF EVENTS TO ESTABLISH MR. JOHNSON’S GUILT. THE TRIAL
COURT THEREFORE COMMITTED PLAIN ERROR BY ALLOWING THE
STATE TO INTRODUCE THE SAME EVIDENCE REJECTED BY BURKE’S
JURY AND BY INSTRUCTING THE JURY ON MR. JOHNSON ACTING IN
CONCERT WITH BURKE AS THE SHOOTER.
Assignments of Error 6, 7 and 8, Rpp. 71-72.
The State’s case was based entirely on the theory that Mr. Johnson was acting in
concert with co-defendant Burke when Burke shot the decedents. Burke was tried
before Mr. Johnson and his jury unanimously found that the State failed to prove
beyond a reasonable doubt that Burke was the shooter. Because Burke’s jury
unanimously found that he was not the shooter, the State was estopped from
prosecuting Mr. Johnson on a theory which required the jury to find that Burke was the
shooter and that Mr. Johnson acted in concert with Burke when Burke allegedly shot
the decedents. As a result, the trial court committed reversible error by allowing the
State to introduce evidence intended to prove this previously rejected theory and by
instructing the jury on the doctrine of acting in concert.
A. Applicable Legal Principles.
The North Carolina Supreme Court has recognized that the common law
doctrine of collateral estoppel applies against the State in criminal cases. E.g., State v.
Summers, 351 N.C. 620, 528 S.E.2d 17 (2000). The doctrine of collateral estoppel
operates to prevent a party from relitigating an issue of fact which has previously been
determined against that party’s position in an earlier lawsuit. The doctrine
“is designed to prevent repetitious lawsuits over matters which have once
been decided and which have remained substantially static, factually and
legally.... When a fact has been ... decided in a court of record, neither of
the parties shall be allowed to call it in question, and have it tried again at
any time thereafter[.]”
Id. at 622-23, 528 S.E.2d at 20 (citations omitted).
Generally speaking, in order for the doctrine to apply there must be an identity
of issues between the earlier action and the current action and also an identity of the
party against whom the doctrine is invoked. With regard to issue identity,
The requirements for the identity of issues to which collateral estoppel
may be applied have been established by this Court as follows: (1) the
issues must be the same as those involved in the prior action, (2) the
issues must have been raised and actually litigated in the prior action, (3)
the issues must have been material and relevant to the disposition of the
prior action, and (4) the determination of the issues in the prior action
must have been necessary and essential to the resulting judgment.
Summers, supra at 623, 528 S.E.2d at 20.
In addition to identity of issues, the traditional formulation of collateral estoppel
required that both parties to the current action had to be either parties in the first action
or in privity with the parties to the first action. See, e.g., King v. Grindstaff, 284 N.C.
348, 357, 200 S.E.2d 799, 805 (1973). However, in Thomas M. McInnis and
Associates, Inc. v. Hall, 318 N.C. 421, 349 S.E.2d 552 (1986) the North Carolina
Supreme Court modified the rule so that it is only necessary that the party against
whom the doctrine is being invoked was a party to the earlier action. The Court
recognized that “the better view is to allow defendants ... to assert collateral estoppel as
a defense against a party who has previously had a full and fair opportunity to litigate a
matter and now seeks to reopen the identical issues with a new adversary.” Id. at 434,
349 S.E.2d at 560. As a result, so long as the party against whom the doctrine is
asserted had a full and fair opportunity to litigate the issue in the first action, the party
invoking the doctrine need not have been a party to the earlier litigation. Id. So far as
defendant is aware, no North Carolina case has addressed the use of non-mutual
collateral estoppel in a criminal case, but there is no reason why the doctrine should not
apply in this situation, and no North Carolina cases have drawn any relevant
distinctions between the application of the doctrine in civil and criminal cases.
B. The Doctrine of Collateral Estoppel Applies to the Facts of this Case.
This case meets both requirements for application of the doctrine of collateral
estoppel. With regard to identity of the issue, the factual issue of whether Burke shot
and killed the decedents was presented in both cases. In the earlier case, State v.
Burke, supra, the issue was squarely presented during the sentencing phase of the trial.
Because Burke’s jury only found him guilty of first degree murder under the felony
murder rule, Burke was only eligible for the death penalty if he killed the decedents
himself, intended that deadly force be used in the commission of the underlying felony,
or if he was a major participant in the felony and acted with reckless indifference to
human life. See, State v. Mann, 355 N.C. 294, 311, 560 S.E.2d 776, 787 (2002), citing
Enmund v. Florida, 458 U.S. 782 (1982) and Tison v. Arizona, 481 U.S. 187(1987).
This question was submitted to Burke’s jury in a special verdict form and the jury
answered “No.” Thus, the issue of whether Burke shot and killed the decedents was
actually raised and litigated in the earlier case, was material and relevant to the
disposition of the earlier case and the resolution of this issue in the earlier case was
necessary and essential to the resulting judgment. The same issue was presented in this
case. The State’s evidence was that Burke shot the decedents, and this factual issue
was a necessary predicate to the State’s case against Mr. Johnson. If Burke did not kill
the decedents, Mr. Johnson could not have acted in concert with Burke when Burke
shot and killed the decedents, as alleged by the State.
As to the second requirement for collateral estoppel, the State was a party to the
earlier case, and had a full and fair opportunity to litigate the issue of whether Burke
shot and killed the decedents. The State was seeking the death penalty against Burke
and had every incentive to prove to the jury that Burke shot the decedents. In addition
to satisfying the “Enmund/Tison” requirement, establishing that Burke was the shooter
would have been extremely valuable to the State in trying to persuade the jury that
Burke’s culpability was sufficiently great and the circumstances of the killings were
sufficiently aggravated to warrant imposing the death penalty against Burke.
In sum, the State did in these cases exactly what the doctrine of collateral
estoppel is designed to prevent. After obtaining an unfavorable resolution of this issue
in the first case, the State sought a more favorable resolution of the issue from a
different jury in an action against a different adversary. The State had already had one
full and fair opportunity to convince a jury that Burke shot and killed the decedents.
The State failed to do so. The State should not then have been allowed to try to
convince a second jury of the very facts which the first jury rejected.
C. The Trial Court’s Failure to Apply the Doctrine of Collateral Estoppel Was
Proper application of the doctrine of collateral estoppel would have impacted the
trial in two ways. The State should not have been allowed to introduce evidence that
Burke shot and killed the decedents and the trial court should not have instructed the
jury on the doctrine of acting in concert, based on the premise that Mr. Johnson acted
in concert with Burke as the shooter. Mr. Johnson must concede, however, that he did
not object to the admission of the evidence and that his objections to the trial court’s
acting in concert instructions were not based on application of the doctrine of collateral
estoppel. As a result, he must show plain error under State v. Odom, 307 N.C. 655,
300 S.E.2d 375 (1983). Generally speaking, plain error is defined a fundamental error;
one which affects a substantial right, which has resulted in a miscarriage of justice or
the denial of a fair trial, one which affects the public reputation of the judicial
proceedings or one where the “mistake had a probable impact on the jury’s finding that
the defendant was guilty.” Id. at 660, 300 S.E.2d at 378, quoting, United States v.
McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982).
The trial court’s erroneous failure to apply the doctrine of collateral estoppel in
this case constitutes plain error. The impact on the jury’s verdict is clear and entirely
dispositive. The State presented no evidence to support Mr. Johnson’s guilt except
under the theory that Burke shot and killed the decedents and that Mr. Johnson acted in
concert with Burke. The State presented no evidence whatsoever that the decedents
were killed in any other manner or that Mr. Johnson was guilty under any other theory.
If the State had been estopped from presenting evidence that Burke shot and killed the
decedents, and if the trial court had not instructed on acting in concert, an acquittal
would have been the only possible verdict; in fact, a dismissal for insufficient evidence
would have been mandated on the defendant’s motion to dismiss.
Further, it was fundamentally unfair to give the State a “second bite at the
apple.” Having failed to convince one jury that Burke shot the decedents, the State
should not have been allowed to refine its presentation in order to obtain a conviction
on this theory the second time around. See, Ashe v. Swenson, 397 U.S. 436, 447
(1970). The verdicts against Mr. Johnson have resulted in a situation in which Mr.
Johnson has been convicted of acting in concert with Mr. Burke in Burke’s
commission of criminal acts which Burke’s jury said he did not commit. This is
fundamentally unfair and can only cause the public to question the consistency and
validity of the justice meted out by the courts. This is plain error.
III. MR. JOHNSON’S CONVICTIONS WERE OBTAINED IN VIOLATION
OF HIS RIGHT TO DUE PROCESS OF LAW BECAUSE THE STATE
FAILED TO CORRECT THE FALSE AND MISLEADING TESTIMONY OF
Assignment of Error 3, Rp. 70.
Kendrick Nicholson’s credibility was critical to the State’s case. As the only
witness to what took place inside the Holley residence, and the principle witness to the
State’s version of the discussions which led to the incident, the jury accepting
Nicholson’s testimony as truthful was absolutely necessary for the State to be able to
make its case. One of the critical factors in the jury’s assessment of Nicholson’s
testimony was to be able to make an accurate evaluation of the value of Nicholson’s
plea agreement with the State. During his testimony, Nicholson described his
agreement in a manner which was false and grossly misleading. The prosecutor did
nothing to correct Nicholson’s false testimony. As a result, Mr. Johnson’s convictions
were obtained in violation of his right to due process, and must be vacated.
This issue is directly controlled by Napue v. Illinois, 360 U.S. 264 (1959). In
Napue, the defendant was convicted of murder based largely on the testimony of a
codefendant, Hamer, who was testifying for the State. Hamer falsely testified that the
Assistant United States Attorney had not promised him anything in exchange for his
testimony. Id. at 265-66. The United States Supreme Court held that Hamer’s false
testimony, which the prosecution allowed to go uncorrected, violated the defendant’s
right to due process, and required that the defendant’s conviction be vacated. The
it is established that a conviction obtained through the use of false
evidence, known to be such by representatives of the State, must fail
under the Fourteenth Amendment....The same result obtains when the
State, although not soliciting false evidence, allows it to go uncorrected.
Id. at 269 (citations omitted). Especially pertinent to this case, the Court went on to
observe that the fact that the false testimony went to the witness’ credibility rather than
directly to the defendant’s guilt, was immaterial.
The principle that a State may not knowingly use false evidence ... does
not cease to apply merely because the false testimony goes only to the
credibility of the witness. The jury's estimate of the truthfulness and
reliability of a given witness may well be determinative of guilt or
innocence, and it is upon such subtle factors as the possible interest of the
witness in testifying falsely that a defendant's life or liberty may depend.
... ‘It is of no consequence that the falsehood bore upon the witness’
credibility rather than directly upon defendant’s guilt. A lie is a lie, no
matter what its subject, and, if it is in any way relevant to the case, the
district attorney has the responsibility and duty to correct what he knows
to be false and elicit the truth. * * * That the district attorney's silence
was not the result of guile or a desire to prejudice matters little, for its
impact was the same, preventing, as it did, a trial that could in any real
sense be termed fair.’
Id. at 269-70 (citations omitted).
In this case, Kendrick Nicholson testified that he pled guilty under an agreement
with the State in which the murder charges against him (for which he was facing the
death penalty) were dismissed and he pled guilty to two counts of attempted armed
robbery and to conspiracy to commit armed robbery. The agreement called for him to
testify for the State against his co-defendants. Nicholson testified that the minimum
active sentence he was facing as a result of his plea agreement was 131 months. (Tp.
892). In fact, however, he was facing substantially less time than that. On July 23,
2003, the day after Mr. Johnson’s trial concluded, Mr. Nicholson was sentenced on the
charges to which he had pled guilty. He received a sentence of 51-71 months in a
consolidated judgment for the two attempted robbery charges, and a suspended
sentence of 20-33 months on the conspiracy charge. With 1072 days of jail credit
applied to his active sentence, Nicholson is eligible to be released from prison as little
as 16 months after the trial, rather than the substantial additional sentence of not less
than between 8 and 9 years which his testimony indicated.3 Despite the fact that the
prosecuting attorneys knew that Nicholson could receive substantially less than 131
months in prison, they did nothing to correct Nicholson’s false testimony.
For all practical purposes, this case in indistinguishable from Napue, supra. The
State’s key witness was testifying in exchange for substantial consideration. In order
that the jury be able to properly assess Nicholson’s credibility, it was necessary for the
jury to accurately understand the value of the consideration Nicholson was receiving in
Nicholson testified to having been in jail since his arrest (Tp. 899) so the
jury was aware of his jail credit.
exchange for that testimony. A jury is substantially more likely to credit a codefendant
witness who is accepting a substantial prison sentence in exchange for testimony than
it is to believe someone who has bargained to reduce a sentence of life without parole
(or possibly death) to possibly less than five years in prison by testifying in a manner
which shifts most of the responsibility and moral culpability for the crimes to others.
Based on his own statements and testimony, Kendrick Nicholson was a willing
and knowing participant in an attempted armed robbery which resulted in two deaths,
and he was therefore guilty of first degree murder under the felony murder rule. His
testimony was critical to the State’s effort to prove that Mr. Johnson shared in the
common purpose of committing the robbery with Nicholson and Burke, as opposed to
being duped into setting up what he believed was going to be a drug purchase. The
only other evidence supporting the State’s acting in concert theory is Lemmert’s
testimony regarding Mr. Johnson’s behavior and comments in the car, and Kyle Davis’
extremely dubious jailhouse snitch testimony. Lemmert’s testimony is of questionable
value because she is a crack addict, because she also received similar consideration for
her testimony, because Nicholson was her boyfriend, giving her incentive to minimize
his culpability and because she was neither inside the house when the killing took place
nor a party to the discussions among Burke, Nicholson and Mr. Johnson regarding
what was intended or expected to take place and stated to the police that she was
unable to hear these discussions. Her entire involvement in this episode was filtered
through her relationship with Nicholson. An accurate assessment by the jury of the
value of the consideration Nicholson received for his testimony is especially important
because Nicholson gave a number of contradictory statements to the police and it was
not until after he reached the agreement and entered his plea that he gave his first
statement to police acknowledging that he had been inside the house when the
decedents were killed.
For all these reasons, the State’s failure to correct Nicholson’s false and
misleading testimony regarding the true value of his deal with the State violated Mr.
Johnson’s due process rights, and he is entitled to have his convictions vacated. Napue
IV. THE TRIAL COURT COMMITTED PLAIN ERROR BY ALLOWING
AGENT McCLELLAND TO TESTIFY THAT THE RESULTS OF KENDRICK
NICHOLSON’S GUNSHOT RESIDUE TEST WERE NOT CONSISTENT
WITH HIM HAVING FIRED A GUN, IMMEDIATELY AFTER HE
TESTIFIED THAT THE RESULTS OF THE TEST WERE INCONCLUSIVE;
MR. JOHNSON’S DUE PROCESS RIGHTS WERE VIOLATED WHEN THE
STATE NOT ONLY FAILED TO CORRECT McCLELLAND’S MISLEADING
TESTIMONY, BUT AFFIRMATIVELY RELIED ON McCLELLAND’S
Assignments of Error 4 and 5, Rpp. 70-71.
The State presented testimony from SBI Special Agent McClelland, who
testified as an expert witness in the field of gunshot residue. Agent McClelland
analyzed the gunshot residue test (GSR) performed on Kendrick Nicholson when he
was arrested on the night of the killings. Initially, Agent McClelland testified that the
results of the test were inconclusive. (Tp. 1093, lines 10-11). However, immediately
afterwards Agent McClelland also testified as follows:
Q: Would the results you found be consistent with Kendrick
Nicholson having fired a weapon?
A: No, sir, they’re not.
(Tp. 1093, lines 12-15). Subsequently, during closing argument, the prosecutor
argued, based on this testimony, “The GSR on Kendrick Nicholson’s hands, he didn’t
fire a weapon that night, ladies and gentlemen. We corroborated what he told you.”
Because the result of the gunshot residue test was inconclusive, Agent
McClelland had no scientific basis to express the opinion that the test was not
consistent with Nicholson firing a weapon. As a result, the trial court plainly erred by
allowing the agent testify to this conclusion. More importantly, by reiterating and
relying upon McClelland’s misleading testimony, rather than by correcting it as
required by Napue, supra, the prosecution violated Mr. Johnson’s due process rights.
Under Rule 702 of the Rules of Evidence, before admitting expert
testimony, the trial court must determine that the expert testimony is relevant,
sufficiently reliable and will be helpful to the jury in evaluating the evidence under the
particular circumstances of the case being tried. E.g., State v. Goode, 341 N.C. 513,
527, 461 S.E.2d 631, 639 (1995). It seems rather obvious that if the only test which
the expert conducted is inconclusive, the expert has no scientifically reliable basis upon
which to base any conclusions or opinions. By definition, this is the meaning of an
inconclusive test result. Thus, since the result of Nicholson’s gunshot residue test was
inconclusive, McClelland had no scientific basis to opine that the test was not
consistent with Nicholson having fired a handgun. As a result, McClelland’s opinion
was not admissible under Rule 702.
Indeed, on cross-examination, Agent McClelland reiterated that the results were
inconclusive and did not support any conclusion one way or the other as to whether
Nicholson fired a gun. (Tp. 1095). Had that been the last word on the subject, this
might have negated any prejudice arising from McClelland’s initial improper opinion.
However, by reiterating and relying on McClelland’s misleading opinion testimony
that the results demonstrated that Nicholson had not fired a gun, the State undid all that
was accomplished by the cross-examination. See, e.g., Jenkins v. Artuz, 294 F.3d 284,
293-95 (2nd Cir. 2002) (finding Napue violation when prosecutor bolstered witness’s
initial misleading testimony during re-direct and in closing, after defense tried to
correct misleading testimony through cross-examination).
Because the defendant did not object to McClelland’s testimony, it is reviewed
under the plain error standard of Odom, supra. The prosecutor’s Napue violation in
relying upon the false and misleading testimony to obtain a conviction, however, is
preserved for appellate review as a matter of law. See, Jenkins, supra at 295-96.
Under either standard, Mr. Johnson is entitled to relief. Nicholson was the only
witness who testified to what took place in the house. His testimony was also the
State’s main evidence concerning the critical question of whether Mr. Johnson shared
any common purpose with anyone to commit a robbery. As a result, Nicholson’s
credibility was critical to the outcome of the case. As discussed above, there were
substantial reasons why a jury would question Nicholson’s credibility, including his
deal and his inconsistent statements to the police.4 The sole purpose for the State to
It clearly appears from the verdicts in State v. Burke that the jury in Burke’s
trial did not accept Nicholson’s testimony as credible.
introduce Agent McClelland’s testimony was to bolster Nicholson’s credibility,
something McClelland’s testimony could not legitimately accomplish. It is recognized
that jurors tend to give special weight to expert testimony. See, generally, State v.
Huang, 99 N.C.App. 658, 666, 394 S.E.2d 279 disc. rev. denied 327 N.C. 639, 399
S.E.2d 127 (1990) (finding prejudice in “possibility that the jury will give the expert’s
opinion inappropriate weight as ‘a stamp of scientific legitimacy to the truth of the ...
witness’s factual testimony’”). The improper admission of Agent McClelland’s
opinion that the residue test was not consistent with Nicholson’s having fired a gun
enabled the State to make a grossly improper and misleading argument bolstering
Nicholson’s credibility through a false implication of scientific reliability. As a result,
Mr. Johnson is entitled to a new trial.
V. THE TWO ATTEMPTED ARMED ROBBERY INDICTMENTS ARE
DUPLICATIVE, AND THE STATE’S EVIDENCE WAS INSUFFICIENT TO
ESTABLISH TWO SEPARATE ATTEMPTED ROBBERIES.
Assignment of Error 11, Rp. 72.
With respect to the two attempted robbery charges, the State’s case was
premised on the allegations that Mr. Johnson, along with Burke and Nicholson,
intended and attempted to rob Holley of drugs and/or money which Holley possessed
as a drug dealer. With respect to the attempted robbery, Kelly’s presence at Holley’s
house was incidental. The State neither alleged nor presented evidence of any separate
attempt to take property belonging to Kelly. As a result, the trial court erred by
denying the motion to dismiss with respect to the charge of attempted robbery of Kelly
This issue is governed by this Court’s recent decision in State v. Becton, __
N.C.App. __, 594 S.E.2d 143, appeal dismissed, 358 N.C. 733, 601 S.E.2d 862 (2004)
and the cases cited therein. These cases stand for the proposition that in order to
sustain two separate robbery convictions, there must be property taken (or an attempt
to take property) from two separate individuals or entities. The fact that a second
person is present and has his life threatened or endangered during the course of a
robbery of another does not convert that robbery into two separate robberies.
Because the State did not allege a separate attempt to take property from Kelly,
and because the State presented no evidence of a separate attempt to take property from
Kelly, the trial court erred by denying the motion to dismiss with respect to the charge
of attempted robbery of Kelly and that conviction must be vacated.
For the reasons discussed in issues II, III and IV, Mr. Johnson is entitled to a
new trial. For the reasons discussed in issue V, he is entitled to have his conviction for
attempted robbery of Kelly vacated. For the reasons stated in issue I, he is entitled to
have his case remanded for further proceedings unless he is awarded a new trial on
The foregoing brief is respectfully submitted, this the 15th day of October, 2004.
P.O. Box 3852
Durham, NC 27702
Attorney for Defendant-Appellant Johnson
CERTIFICATE OF COMPLIANCE WITH N.C.R.App.P 28(j)(2)
Undersigned counsel hereby certifies that this brief is in compliance with
N.C.R.App.P. 28(j)(2) in that it is printed in 14 point Times New Roman font and
contains no more that 8750 words in the body of the brief, footnotes and citations
included, as indicated by the word-processing program used to prepare the brief
CERTIFICATE OF FILING AND SERVICE
Undersigned counsel hereby certifies that he filed the original of the
foregoing brief by mailing it this day, first class postage prepaid, to the Clerk of the
Court of Appeals, and that he has served a copy of the foregoing brief upon the State of
North Carolina by mailing a copy thereof by United States Mail, first class postage
affixed thereto to
Special Deputy Attorney General
P.O. Box 629
Raleigh, NC 27602
This the 15th day of October, 2004.
TABLE OF CONTENTS
TABLE OF CASES AND AUTHORITIES ....................................... iv
QUESTIONS PRESENTED ............................................................... 1
STATEMENT OF THE CASE ........................................................... 2
STATEMENT OF GROUNDS FOR APPELLATE REVIEW .......... 2
STATEMENT OF THE FACTS ......................................................... 3
A. What Happened ................................................................ 3
B. Conflicting Evidence of Defendant Robert Johnson’s ......
Involvement in the Shootings ..................................................... 5
C. What Happened in the Cases of Co-Defendants
Nicholson and Burke ...................................................... 15
ARGUMENT ..................................................................................... 16
I. THE TRIAL COURT ERRED BY RULING THAT THE
DEFENDANT FAILED TO MAKE A PRIMA FACIE
SHOWING OF RACIAL DISCRIMINATION RESULTING
FROM THE STATE’S EXERCISE OF PEREMPTORY
CHALLENGES DURING JURY SELECTION 16
II. BECAUSE THE STATE’S VERSION OF THE FACTS, IN
WHICH MR. JOHNSON ACTED IN CONCERT WITH CO-
DEFENDANT BURKE WHO SHOT THE DECEDENTS,
WAS REJECTED BY THE JURY IN BURKE’S TRIAL,
THE STATE WAS ESTOPPED FROM RELYING ON
THIS VERSION OF EVENTS TO ESTABLISH MR.
JOHNSON’S GUILT. THE TRIAL COURT THEREFORE
COMMITTED PLAIN ERROR BY ALLOWING THE
STATE TO INTRODUCE THE SAME EVIDENCE
REJECTED BY BURKE’S JURY AND BY
INSTRUCTING THE JURY ON MR. JOHNSON ACTING
IN CONCERT WITH BURKE AS THE SHOOTER .............. 20
A. Applicable Legal Principles ........................................... 20
B. The Doctrine of Collateral Estoppel Applies to the
Facts of this Case............................................................ 22
C. The Trial Court’s Failure to Apply the Doctrine of
Collateral Estoppel Was Plain Error 24
III. MR. JOHNSON’S CONVICTIONS WERE OBTAINED IN
VIOLATION OF HIS RIGHT TO DUE PROCESS OF
LAW BECAUSE THE STATE FAILED TO CORRECT
THE FALSE AND MISLEADING TESTIMONY OF
KENDRICK NICHOLSON 26
IV. THE TRIAL COURT COMMITTED PLAIN ERROR BY
ALLOWING AGENT McCLELLAND TO TESTIFY THAT
THE RESULTS OF KENDRICK NICHOLSON’S
GUNSHOT RESIDUE TEST WERE NOT CONSISTENT
WITH HIM HAVING FIRED A GUN, IMMEDIATELY
AFTER HE TESTIFIED THAT THE RESULTS OF THE
TEST WERE INCONCLUSIVE; MR. JOHNSON’S DUE
PROCESS RIGHTS WERE VIOLATED WHEN THE
STATE NOT ONLY FAILED TO CORRECT
McCLELLAND’S MISLEADING TESTIMONY, BUT
AFFIRMATIVELY RELIED ON McCLELLAND’S
MISLEADING TESTIMONY 31
V. THE TWO ATTEMPTED ARMED ROBBERY
INDICTMENTS ARE DUPLICATIVE, AND THE
STATE’S EVIDENCE WAS INSUFFICIENT TO
ESTABLISH TWO SEPARATE ATTEMPTED
ROBBERIES ........................................................................... 34
CONCLUSION .................................................................................. 35
CERTIFICATE OF COMPLIANCE WITH N.C.R.App.P. 28(j)(2) . 37
CERTIFICATE OF SERVICE .......................................................... 37
A -- Transcript excerpt, Tp. 892, testimony of Kendrick .........
Nicholson (applies to Issue III) App. p. 1
B -- Judgments, State v. Nicholson, 01CRS162292-94
(apply to Issue III) .......................................... App. pp. 2-5
C -- Transcript excerpt, Tp. 1093, testimony of SBI Special ......
Agent McClelland (Applies to Issue IV) ....................... App. p. 6
TABLE OF AUTHORITIES
Ashe v. Swenson, 397 U.S. 436 (1970)..................................................................... 25
Batson v. Kentucky, 476 U.S. 79 (1986) .................................................................. 17
Enmund v. Florida, 458 U.S. 782 (1982) ................................................................. 23
Jenkins v. Artuz, 294 F.3d 284 (2nd Cir. 2002) ....................................................... 33
King v. Grindstaff, 284 N.C. 348, 200 S.E.2d 799 (1973) ....................................... 21
Napue v. Illinois, 360 U.S. 264 (1959)..................................................................... 27
State v. Barden, 356 N.C. 316, 572 S.E.2d 108 (2002) ........................................... 18
State v. Becton, __ N.C.App. __, 594 S.E.2d 143,
appeal dismissed, 358 N.C. 733, 601 S.E.2d 862 (2004) .............................. 35
State v. Cofield, 320 N.C. 297, 357 S.E.2d 622 (1987) ........................................... 17
State v. Goode, 341 N.C. 513, 461 S.E.2d 631 (1995)............................................ 32
State v. Hoffman, 348 N.C. 548, 500 S.E.2d 718 (1998) ......................................... 18
State v. Huang, 99 N.C.App. 658, 394 S.E.2d 279
disc. rev. denied 327 N.C. 639, 399 S.E.2d 127 (1990) ................................ 34
State v. Mann, 355 N.C. 294, 560 S.E.2d 776 (2002) .............................................. 23
State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983) ............................................. 24
State v. Peterson, 344 N.C. 172, 472 S.E.2d 730 (1996) ......................................... 18
State v. Smith, 328 N.C. 99, 400 S.E.2d 712 (1987) ................................................ 17
State v. Summers, 351 N.C. 620, 528 S.E.2d 17 (2000)........................................... 20
State v. Wilson, 118 N.C.App. 616, 456 S.E.2d 870 (1995) ............................. 15, n.1
Thomas M. McInnis and Associates, Inc. v. Hall,
318 N.C. 421, 349 S.E.2d 552 (1986)............................................................ 21
Tison v. Arizona, 481 U.S. 187(1987) ...................................................................... 23
Statutes, Constitutional Provisions and Other Authority
North Carolina Constitution, Article I, Section 26 ................................................... 17
N.C.G.S. §7A-27(b) .................................................................................................. 2
N.C.G.S. §15A-1444(a) ............................................................................................. 2
N.C.R.Evid., Rule 702 ............................................................................................. 32
United States Constitution, Amendment XIV .......................................................... 17