Johnson Robert by VHx41Q92

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									No. COA04-945                                DISTRICT TWENTY-SIX

                NORTH CAROLINA COURT OF APPEALS
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STATE OF NORTH CAROLINA         )
                                     )
    V.                          )        From Mecklenburg
                                     )
ROBERT JOHNSON, Jr.             )

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                  DEFENDANT-APPELLANT’S BRIEF
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                      QUESTIONS PRESENTED

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-
DEFENDANT BURKE?

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
CHARGES
                                          2

                          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

15A-1444(a).
                                          3

                         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.

390-92; 395-97).

      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
                                          4

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
                                            5

containing a crack pipe, other paraphernalia and her driver’s license. (Tpp. 614-22,

643-47).

      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
Shootings.

      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
                                          6

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
                                           7

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
                                         8

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
                                          9

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.

(Tpp. 861-65).
                                           10

      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.

(Tpp. 875-76).
                                           11

      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,

Lemmert testified
                                                   12

             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.

(Tpp. 938-39).

      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
                                          13

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
                                          14

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.
                                           15

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


      1
        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).
                                            16

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

                                    ARGUMENT

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.

      2
       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.
                                          17

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

selection process.

      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
                                          18

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).
                                           19

      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.
                                            20

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
                                             21

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
                                             22

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.
                                          23

      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.
                                          24

      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
Plain Error.
                                           25

      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
                                           26

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.
                                          27

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.
     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
                                            28

right to due process, and required that the defendant’s conviction be vacated. The

Court stated:

      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
                                           29

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


      3
       Nicholson testified to having been in jail since his arrest (Tp. 899) so the
jury was aware of his jail credit.
                                          30

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
                                          31

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

supra.
                                           32

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.
     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.”

(Tp. 1229).

      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
                                           33

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.
                                           34

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


      4
        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.
                                            35

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
                                           36

denying the motion to dismiss with respect to the charge of attempted robbery of Kelly

(00CRS162278).

      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.

                                   CONCLUSION

      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

other issues.
                                    37

The foregoing brief is respectfully submitted, this the 15th day of October, 2004.


                           __________________________
                           Daniel Shatz
                           P.O. Box 3852
                           Durham, NC 27702
                           (919) 956-8771
                           shatzlaw@earthlink.net
                           Attorney for Defendant-Appellant Johnson
                                          38

         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
(WordPerfect 6.1).

                                        ________________________
                                        Daniel Shatz

                    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

      Francis Crawley
      Special Deputy Attorney General
      P.O. Box 629
      Raleigh, NC 27602

      This the 15th day of October, 2004.

                                        ___________________________________
                                        Daniel Shatz
                                               39

                               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
                                                      40

       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
                                                       41

CONCLUSION .................................................................................. 35

CERTIFICATE OF COMPLIANCE WITH N.C.R.App.P. 28(j)(2) . 37

CERTIFICATE OF SERVICE .......................................................... 37

APPENDIX
    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

                                                   Cases

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

                                                         42
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




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