Baker Duane by MH93IVF

VIEWS: 4 PAGES: 35

									NO.COA04-53                                   FOURTH DISTRICT


                  NORTH CAROLINA COURT OF APPEALS
               *************************************

STATE OF NORTH CAROLINA   )
                          )
         vs.              )    From Onslow County
                          )    No. 02 CRS 59492
                          )
DUANE LESHA BAKER         )

                    ****************************
                     DEFENDANT-APPELLANT’S BRIEF
                    ****************************
                               ii


                              INDEX

TABLE OF CASES AND AUTHORITIES. . . . . . . . . . . . . . . .iii
QUESTIONS PRESENTED. . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF THE FACTS. . . . . . . . . . . . . . . . . . . . .4

ARGUMENTS:

1.   THE TRIAL COURT ERRED IN FAILING TO DISMISS DUE TO THE
     INSUFFICIENCY OF THE EVIDENCE THE CHARGE OF FIRST-
     DEGREE BURGLARY. . . . . . . . . . . . . . . . . . . . . 14

2.   THE TRIAL COURT ERRED IN FAILING TO DISMISS DUE TO
     THE INSUFFICIENCY OF THE EVIDENCE THE CHARGE OF
     DISCHARGING A FIREARM INTO AN OCCUPIED PROPERTY. . . . . 17

3.   THE TRIAL COURT ERRED IN FAILING TO DISMISS THE
     CHARGES AGAINST THE DEFENDANT DUE TO THE WITHHOLDING
     OF STATEMENTS OF THE CO-DEFENDANTS LEWIS AND MOBLEY
     BY THE JACKSONVILLE POLICE DEPARTMENT SINCE THESE
     TWO STATEMENTS EXONERATED THE DEFENDANT AND WERE
     NOT REVEALED TO DEFENSE COUNSEL UNTIL THE TRIAL
     HAD BEGUN. . . . . . . . . . . . . . . . . . . . . . . . 22

4.   THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ITS
     INSTRUCTION TO THE JURY ON BURGLARY WHEN IT FAILED TO
     DEFINE THE ELEMENTS OF LARCENY AND THEN WHEN BROUGHT TO
     ITS ATTENTION MERELY BROUGHT THE JURY BACK IN TO THE
     COURTROOM PRIOR TO DELIBERATIONS AND INSTRUCTED THEM ON
     THE ELEMENTS OF LARCENY. . . . . . . . . . . . . . . . . 26

5.   THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN UPON
     THE JURY’S REQUEST TO BE RE-INSTRUCTED ON FIRST-
     DEGREE BURGLARY INSTRUCTED ON ONLY FIVE OF THE SIX
     ELEMENTS THUS REDUCING THE STATE’S BURDEN OF PROOF AND
     THEN WHEN CALLED TO ITS ATTENTION THE TRIAL COURT DID
     NOT RE-INSTRUCT BUT MERELY GAVE AN ADDITIONAL
     “FIFTH” ELEMENT FOR THE JURY TO FIND. . . . . . . . . . .27

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . 31
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . 32
                               iii


                 TABLE OF CASES AND AUTHORITIES

Brady v. Maryland, 373 US 83 (1963). . . . . . . . . . . . . .23
Kyles v. Whitley, 514 US 419, 115 SCt 1555, 131 LEd 2d 490
     (1995). . . . . . . . . . . . . . . . . . . . . . . . . .24
State v. Adams, 67 NCApp 116, 312 SE2d 498 (1984). . . . . . .25
State v. Alexander, 18 NCApp 460, 197 SE2d 272 (1973). . . . .16
State v. Alston, 307 NC 321, 298 SE2d 631 (1983). . . . . . . 26
State v. Barnette, 304 NC 447, 284 SE2d 292 (1981). . . . . . 18
State v. Bell, 270 NC 25, 153 SE2d 741 (1967). . . . . . . . .18
State v. Bronson, 10 NCApp 638, 179 SE2d 823 (1971). . . . . .15
State v. Carver, 286 NC 179, 209 SE2d 785 (1974). . . . . . . 29
State v. Cash, 234 NC 292, 267 SE2d 50 (1951). . . . . . . . .29
State v. Davis, 90 NCApp 185, 368 SE2d 52 (1988). . . . . . . 16
State v. Davis, 301 NC 394, 271 SE2d 263 (1980). . . . . . . .20
State v. Drewyore, 95 NCApp 283, 382 SE2d 825 (1989). . . . . 26
State v. Gilmore, 330 NC 167, 409 SE2d 888 (1991). . . . . . .21
State v. Odom, 307 NC 655, 300 SE2d 375 (1983). . . . . . . . 30
State v. Parrish, 275 NC 69, 165 SE2d 230 (1969). . . . . . . 29
State v. Person, 298 NC 765, 259 SE2d 867 (1979). . . . . . . 15
State v. Rathbone, 78 NCApp 58, 336 SE2d 702, review denied
     316 NC 200, 341 SE2d 582 (1985). . . . . . . . . . . . . 30
State v. Richards, 15 NCApp 163, 189 SE2d 577 (1972). . . . . 29
State v. Robinette, 33 NCApp 42, 234 SE2d 28 (1977). . . . . .20
State v. Smith, 40 NCApp 72, 252 SE2d 535 (1979). . . . . . . 14
State v. Smith, 300 NC 71, 265 SE2d 164 (1980). . . . . . . . 17
State v. Wright, 302 NC 122, 273 SE2d 699 (1981). . . . . . . 18
United States v. Agurs, 427 US 97 (1976). . . . . . . . . . . 23

United States Constitution. . . . . . . . . . . . . . . . . . 24
Constitution of North Carolina. . . . . . . . . . . . . . . . 24

N.C.G.S. §15A-902. . . . . . . . . . . . . . . . . . . . . . .23
N.C.G.S. §15A-903. . . . . . . . . . . . . . . . . . . . . . .23
N.C.G.S. §15A-910(3b). . . . . . . . . . . . . . . . . . . . .25

Plain Error Rule. . . . . . . . . . . . . . . . . . . . . . . 30
NO.COA04-53                                     FOURTH DISTRICT


                  NORTH CAROLINA COURT OF APPEALS
               *************************************

STATE OF NORTH CAROLINA     )
                            )
         vs.                )    From Onslow County
                            )    No. 02 CRS 59492
                            )
DUANE LESHA BAKER           )

                    ****************************
                     DEFENDANT-APPELLANT’S BRIEF
                    ****************************

                          QUESTIONS PRESENTED

1.   DID THE TRIAL COURT ERR IN FAILING TO DISMISS DUE TO THE
INSUFFICIENCY OF THE EVIDENCE THE CHARGE OF FIRST-DEGREE
BURGLARY?

2.   DID THE TRIAL COURT ERR IN FAILING TO DISMISS DUE TO THE
INSUFFICIENCY OF THE EVIDENCE THE CHARGE OF DISCHARGING A
FIREARM INTO AN OCCUPIED PROPERTY?

3.   DID THE TRIAL COURT ERR IN FAILING TO DISMISS THE CHARGES
AGAINST THE DEFENDANT DUE TO THE WITHHOLDING OF STATEMENTS OF
THE CO-DEFENDANTS LEWIS AND MOBLEY BY THE JACKSONVILLE POLICE
DEPARTMENT SINCE THESE TWO STATEMENTS EXONERATED THE DEFENDANT
AND WERE NOT REVEALED TO DEFENSE COUNSEL UNTIL THE TRIAL HAD
BEGUN?

4.   DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN ITS
INSTRUCTION TO THE JURY ON BURGLARY WHEN IT FAILED TO DEFINE THE
ELEMENTS OF LARCENY AND THEN WHEN BROUGHT TO ITS ATTENTION
MERELY BROUGHT THE JURY BACK IN TO THE COURTROOM PRIOR TO
DELIBERATIONS AND INSTRUCTED THEM ON THE ELEMENTS OF LARCENY?

5.   DID THE TRIAL COURT COMMIT REVERSIBLE ERROR WHEN UPON THE
JURY’S REQUEST TO BE RE-INSTRUCTED ON FIRST-DEGREE BURGLARY
INSTRUCTED ON ONLY FIVE OF THE SIX ELEMENTS THUS REDUCING THE
STATE’S BURDEN OF PROOF AND THEN WHEN CALLED TO ITS ATTENTION
THE TRIAL COURT DID NOT RE-INSTRUCT BUT MERELY GAVE AN
ADDITIONAL “FIFTH” ELEMENT FOR THE JURY TO FIND?
                                         2


                             STATEMENT OF THE CASE

       This is a criminal action wherein the defendant was charged

on September 9, 2002 with the felony of conspiracy to commit

burglary, which allegedly occurred on September 5, 2002.                     (Case

Number 02 CR 59492).               At his first appearance the defendant

waived counsel and retained Attorney Walter H. Paramore of the

Onslow County Bar.

       The defendant was indicted in case number 02 CRS 59492 on

March 11, 2003 for the misdemeanor of injury to real property

and the felonies of first-degree burglary, discharging a weapon

into occupied property and felony conspiracy to commit burglary.

       Attorney Edward G. Bailey of the Onslow County Bar was

retained to represent the defendant in Superior Court.

       The State filed an answer to the request for discovery on

April 9 and provided discovery to Attorney Bailey which included

written statements of three of the five people in the car at the

time   the    defendant      was    stopped   but    did    not   include   written

statements of co-defendants Mobley nor Lewis.

       On    April   11,    2003    defense   counsel       filed   a   motion   for

discovery of the           State requesting,        inter   alia, “any and all

documents, reports, fax or other information in whatever form

which would tend to exculpate the defendant,...”.

       The trial began at the July 14, 2003 Criminal Session of

Superior Court for Onslow County with the                     Honorable Gary E.
                                               3


Trawick,       Superior      Court     Judge       presiding.         During   the     trial

exculpatory statements of co-defendants Mobley and Lewis were

revealed by the Jacksonville Police Department and admitted into

evidence.        The defense counsel moved to dismiss the                         charges

based on this discovery violation but the motion was denied.                             At

the   conclusion        of    the     evidence,        arguments       of    counsel     and

instructions by the trial court the jury returned verdicts of

guilty as charged on all four counts.

      A   sentencing         hearing    was    conducted        and    the    trial    court

determined the defendant had a Record Level IV and sentenced the

defendant on the first-degree burglary charge, which was a Class

D, to the presumptive sentence of 117 months minimum and 150

months maximum.         The other three charges of felony conspiracy to

commit burglary, discharging a weapon into occupied property and

the misdemeanor of injury to real property were consolidated for

judgment and the defendant was sentenced to a minimum term of 37

months and a maximum term of 54 months for a Class E felony

Record    Level       IV.      This    sentence       was   to    be    served    at     the

expiration       of     the    sentence        imposed      for       the    first-degree

burglary.

      The defendant gave Notice of Appeal in open court and the

Office    of    the    Appellate       Defender’s       Office        was    appointed    to

perfect the appeal on July 17, 2003.
                                               4


       The order for the trial transcripts was entered on the same

date.

       On July 23, 2003 James R. Parish of the Cumberland County

Bar was appointed to perfect the appeal.

       On    September     15,    2003       Superior     Court     Judge    Benjamin       G.

Alford extended for thirty (30) days the time for the court

reporter      to      prepare    and     serve      the     trial    transcripts          upon

appellate counsel.

       The     court     reporter        certified          she     mailed     the    trial

transcripts on October 14, 2003.

       The    Record     on     Appeal       was    filed    January     14,    2004       and

docketed January 23, 2004.

       The Court of Appeals extended the time up to and including

April 22, 2004 for the defendant to file his brief with the

Court of Appeals.

                                STATEMENT OF THE FACTS

       At     about     3:00     in    the     morning       of   September      5,       2002

Jacksonville Police Officer Stacy Leyble was dispatched to 2312

Indian Drive in the City of Jacksonville reference to shots

fired and a breaking and entering to the residence.                              (Tp 19).

When    she    arrived     a     gentleman         was    standing     outside       of    the

apartment complex with a cell phone.                        He directed her towards

apartment building 2310 Indian Drive where the shots were fired.

Buildings 2310 and 2312 are separated by a small chain-linked
                                        5


fence.    The officer parked her vehicle and observed a man’s shoe

on the ground.      (Tp 21).     Within each building there is a common

hallway, which is like a stairway or breezeway.                    Once in the

common hallway there are apartments to the right or left and a

staircase that goes up with apartments to the left and right on

the second floor.      (Tp 28).     She observed the bottom right door

to be opened and the apartment dark inside.              She yelled for the

person inside to come out.          A man came to the door and turned

the lights on so she could see inside the residence.                   The man

had a weapon and he was advised to put it down.               Officer Leyble

entered the residence and secured the weapon for her own safety.

(Tp 23).      The weapon, a .40 caliber Taurus, was cold and she

could tell it had not been recently fired.              (Tp 25).    The person

inside the residence was Charles Henry Moore, Jr.                    Mr. Moore

told her his door was kicked open and he heard voices saying,

“police, get down”.      (Tp 26).       He heard shots after the door was

opened and he stayed in his bedroom with his .40 caliber handgun

for safety.      He called 911.    (Tp 26).

    Officer Leyble observed a footwear impression on the front

door,    which   appeared   to   have   been   kicked    open.      Inside   the

residence was a shell casing on the sofa.           It was a shell casing

behind the front door.           (Tp 26).      The deadbolt lock had been

broken off the door.        There was a hole in the wall above the TV

set which appeared to be from a gunshot.            (Tp 27).       There was a
                                        6


gunshot hole in the front of the building which appeared to have

been fired after the door had been open because the gunshot hole

went through the front of the residence entered the living room

through the living room wall through the backside of the front

door and came out the front door which would have been caused

from the gunshot being fired after the front door was already

open.   (Tp 27).      Outside the officer found two nine-millimeter

shell casings in the parking lot.              (Tp 29).

    Jacksonville Police Officer Daniel Wells was on patrol and

received a call to be on the lookout for a large full-sized

sedan in the area of Indian Drive where there had been a break

in and shots fired.         (Tp 113).          He drove towards Indian Drive

when he saw a full-sized sedan, gray in color pass him coming

from the area where the incident allegedly occurred.                   He turned

around and pursued the vehicle.             (Tp 115).      The vehicle stopped

at a red light and he initiated a traffic stop.                     (Tp 117).     A

backup unit arrived.         The officer got out of his vehicle and

gave verbal commands to the occupants to put their hands up

where   he   could    see   them.         He    believed    there    were    three

passengers in the vehicle.          (Tp 119).         He observed additional

passengers ducked down in the back seat to make a total of five

people inside the vehicle.          (Tp 119).        The officers approached

the vehicle with their weapons drawn.              (Tp 124).    The right rear

passenger    opened   his   door    and     exited   the   vehicle.         He   was
                                         7


instructed to lay on the ground and he did.                    (Tp 126).         After

all the passengers were out of the vehicle they were handcuffed

and put into patrol vehicles.            The right rear passenger was the

defendant Duane Baker.           (Tp 127).

       James Gamel, an evidence technician with the Jacksonville

Police    Department,      was    dispatched    to    the    traffic     stop.       He

photographed the vehicle and observed a man’s brown shoe in the

right rear floorboard.            In the right rear floorboard he saw a

.22 caliber semi-automatic handgun and a nine-millimeter handgun

in the left rear floorboard.             (Tp 67).           He compared the one

brown shoe found in the car with the one recovered by Officer

Leyble and they matched.              (Tp 70).        The nine-millimeter was

jammed.     The .22 was loaded with a round in the chamber.                         (Tp

74).

       Inside the vehicle with Mr. Baker were Curtis Mobley, Andre

Lewis, Taneka Washington and Rosalyn Ellerbee.                     Ms. Ellerbee was

the driver and Ms. Washington was in the right front passenger’s

seat.     A child’s seat was in the front middle.                   (Tp 145).       Mr.

Baker was searched and the officers did not find any weapons of

any type or contraband on him.               Andre Lewis had on socks but no

shoes.    (Tp 169).

       Charles Moore testified that he lived at 2310 Indian Drive

apartment    17.      On   September     4,    2002   he     was    at   a   club    in

Jacksonville called The Cave.            He knows Duane Baker just from
                                    8


seeing him around the club but not on a personal basis.                   (Tp

172).    He did not know Curtis Mobley or Andre Lewis.              When Mr.

Moore left the club somebody was in the parking lot cooking hot

dogs and that was where he saw Mr. Baker.              He had no problems

with the defendant.     (Tp 174).       He went home at about 3:00 a.m.

and cooked or warmed up something to eat and then laid down.               He

heard a hard knock or kick to the door and he knew the door had

flown open.      He heard someone holler, “police, get down, get

down.”   (Tp 175).    He knew it was not the police so he grabbed

his gun from under his pillow and waited in the room.               His gun

was ready to fire.      Whoever came in must have thought he had

fired his gun because they started shooting.             He heard at least

three shots.     He dialed 911.     (Tp 177).        A female officer came

to his residence and he turned his gun over to her.             He did not

know who came into his house and he did not see how many people

there were.     He just heard voices.      There was damage done to his

door when it was kicked in and there were some bullet holes

inside   the   residence.     (Tp   180).       He    had   never   had   any

disagreement of any type with Mr. Baker.        (Tp 181).

    After his arrest Curtis Mobley told the police Duane Baker

had nothing to do with the incident that night.                He told the

police they had picked up Duane Baker at a friend’s house after

the incident.     (Tp 207).   He testified at trial he is 19 years

of age and in the early morning hours of September 5, 2002 was
                                        9


at The Cave.       He saw Andre Lewis and Duane Baker at the club.

He heard Duane Baker say that Andre Lewis was going to get some

money that was owed him.          (Tp 198).        Two women came in a car and

picked them up.      One was Rosalyn Ellerbee.            (Tp 199).      They went

to an apartment complex and Andre Lewis handed Mr. Mobley a gun.

(Tp 200).       Mr. Lewis said they were going to collect some money

and he gave Mr. Mobley a gun in case something happened.                     Mobley

had a gun and Andre Lewis had a gun.                (Tp 201).     Duane Baker did

not have a gun.          (Tp 201).    Mobley had a .22 handgun and Andre

Lewis had a nine-millimeter.           (Tp 201).       The women stayed in the

car.      The    three    men   got   out    and    walked   up   a   path   to    an

apartment.      Duane Baker kicked open the door and ran away.                    (Tp

229).     Andre Lewis ran in and yelled, “police”.                      (Tp 203).

Mobley heard a gun being pulled back and fired.                       He fired his

.22 in the hallway of the apartment but outside of apartment

number 17.       (Tp 203).      He heard three gunshots and then fired

his .22 once.      (Tp 204).      Mobley and Lewis ran to the car.                (Tp

204).    Andre Lewis lost his shoe running back to the car.                   They

got in the car and drove off.               Duane Baker was not there.         They

left the complex and saw Mr. Baker on a street and picked him up

by a church.      (Tp 206).

       When he was arrested Mr. Mobley told the police that he and

Lewis had been at the apartment and that Lewis kicked the door

in.     He did not tell them Mr. Baker was involved because he did
                                         10


not want to get him in trouble.                   (Tp 211).       He testified Duane

Baker   had   visited     him     several         times   and    given   him   between

$270.00 to $300.00.        He entered a plea of guilty to some of the

charges and expected to be placed on probation with credit for

time served.       (Tp 215).

     Captain    Michael     Joesting         of    the    Onslow   County   Sheriff’s

Department was in charge of the jail.                      He testified he viewed

the inmate card of Curtis Mobley and there was a name that

looked like “Sh Baker” on Mobley’s card.                         The name had been

crossed off.       He has known Mr. Baker for several years and he

goes by the name of Duane or Shea.                  (Tp 249).       It appeared Shea

Baker had visited Curtis Mobley one time.                   (Tp 253).

     Mr. Andre Lewis and Mr. Curtis Mobley were arrested and

charged with burglary and discharging a firearm into occupied

property.     Based on the statements of Mr. Mobley and Mr. Lewis

that Duane Baker was not involved he was released.                          (Tp 263).

The defendant was charged on September 9, 2002.                     (Tp 263).

     Andre Lewis testified for the defense.                        He admitted being

in   prison    after     pleading       guilty       to    first-degree     burglary,

possession    of    a   firearm    by    a    convicted         felon,   breaking   and

entering and habitual felon.             He presently lives in the Sampson

County Correctional Prison.             (Tp 289).         On September 5, 2002 he

was at a club called The Cave.                He has known Mr. Charles Moore

for years and they had been involved in drug transactions where
                                          11


Mr. Moore has sold cocaine to him.                (Tp 293).      A couple of days

before he had purchased an ounce of cocaine from Mr. Moore for

$600.00.       He told Moore on September 5, 2002 he wanted his money

back from Moore because the drugs were bad.                     Moore told him he

could not get his money back.                  Andre Lewis told Moore he was

coming to get it.          Andre Lewis did not see Duane Baker that

night.     He called Ms. Ellerbee and Ms. Washington and asked them

to come by and pick him up.           He asked Curtis Mobley to go with

him and help him handle some business.                  They got into a friend’s

car.     The other people in the car were named Black and T-Roc.

They drove them near to the complex and dropped them off.                     Andre

Lewis    and    Curtis   Mobley    went    over    to    Moore’s    residence      and

knocked on the door and told him that they wanted his money.

Andre Lewis kicked the door in and went in.                        He heard a gun

being cocked and fired.            He returned fire and Curtis Mobley

fired.     They both ran.     They ran to Ms. Ellerbee’s car.                Inside

the car was Mr. Baker.       (Tp 303).

       Captain Joesting was recalled as a witness by the defense.

He   indicated     the   records   reflect       Mr.    Baker   left   a   total   of

$65.00 with Curtis Mobley.         (Tp 328).

       Jeremy Storey lived near the apartment complex.                       He was

standing outside of his apartment smoking a cigarette when he

heard gunfire.       He saw two men streaking across the other side
                                            12


of the apartment complex.              He then saw a car drive off.                      (Tp

332).

       During    the    trial        written        statements            taken    by    the

Jacksonville Police Department of Curtis Mobley and Andre Lewis

were     delivered     by    the     police        department        to     the    District

Attorney’s      Office.            David        Brown,   a    detective           with   the

Jacksonville Police Department, testified that after he first

read Curtis Mobley his Miranda Rights, Mobley said he did not

want to speak about the incident.                   They were moving him out and

bringing in the next person when Curtis Mobley said, “well, am I

going to tell my side?”               He was re-read his Miranda Rights;

waived his rights and agreed to be interviewed.                           Detective Brown

testified Curtis Mobley told him Andre Lewis wanted to go to

someone’s house so they did.                Mobley said Lewis gave him a gun

and they went to the apartments.                   Lewis kicked in the door and

yelled    “police,     get    down”        at    which     time   shooting         started.

Curtis Mobley said he shot his gun once and then he and Lewis

began to run.        They got into a car with girls in it and then

picked up Mr. Baker.          (Tp 261).           He wrote the statement in the

office of the Jacksonville Police Department.                         He was separated

from Mr. Lewis from the time they were arrested.                                  After Mr.

Mobley    had   written      his    statement,       Mr.     Lewis    was     interviewed

verbally and then wrote a statement.
                                      13


       The statements written by Ms. Ellerbee, Ms. Washington, Mr.

Moore and Mr. Baker were sent to the District Attorney’s Office

well before the trial began July 14, 2003.                 Detective Brown

testified that Mobley’s statement was written September 5, 2002

at 6:10 in the morning.           (Tp 265).    He does not know why the

statement was not given to the District Attorney’s Office until

July 16, 2003 just before court.             (Tp 266).    The statement by

Andre Lewis which was written September 5, 2002 in the early

morning after he was arrested was not given to the District

Attorney’s Office until July 16, 2003 just before court.                  (Tp

267).     The prosecutor spoke to the detective some time ago and

“probably” did ask him if there were any written statements by

Mobley and Lewis.      He “probably” told the prosecutor there were

not.     (Tp 268).    Detective Brown testified he interviewed Andre

Lewis on September 5, 2002.           Lewis told him he had been sold

some bad drugs by the victim Moore who he called “June Bug”.               He

owed him $600.00 for the counterfeit drugs and he wanted his

money back.     He had spoken to Moore at The Cave and told him he

was coming to get his money.          He asked Mobley to come with him

and he did.     He gave Mobley a gun and told him to use it if he

had to.     They arrived at the apartment and knocked on the door.

Moore asked him who it was and he told him who was there and he

wanted to come in and get his money.                  Moore turned off the

lights    and   did   not   say   anything    else.      Andre   Lewis   told
                                       14


Detective Brown that he and Mobley stayed outside for about 15

minutes and then he kicked the door in and yelled “police, get

down”.    Andre     Lewis   heard    what   sounded    like   a    weapon   being

cocked and saw sparks in the room and he thought a shot had been

fired.   They began shooting.         Andre Lewis and Mobley ran to the

car and they left in the car.           They picked up Baker later.           (Tp

340).

      Defense counsel moved to dismiss the charges due to the

failure of the State to provide this exculpatory evidence until

during the trial.     The motion was denied.

      Further facts will be developed within the brief.

                                    ARGUMENTS

1.   THE TRIAL COURT ERRED IN FAILING TO DISMISS DUE TO THE
INSUFFICIENCY OF THE EVIDENCE THE CHARGE OF FIRST-DEGREE
BURGLARY.

      ASSIGNMENT OF ERROR NO. 1
      (Tpp 286, 348)

      In order to withstand a motion to dismiss the State must

present substantial evidence of every element of a crime.                    See,

State v. Smith, 40 NCApp 72, 252 SE2d 535 (1979).

      At the close of the State’s evidence and all the evidence,

the defendant made motions to dismiss due to the insufficiency

of the evidence which were denied by the court.               (Tpp 285, 348).

      In order for the State to withstand a motion to dismiss on

the   charge   of   burglary   the    State     must   introduce    substantial
                                  15


evidence of all the elements of the offense of burglary.       Our

courts have defined the crime as the breaking and entering in

the nighttime of a dwelling house which was actually occupied

with the intent to commit a felony therein.         See, State v.

Person, 298 NC 765, 259 SE2d 867 (1979).     Though the indictment

did not allege the particular felony intended to be committed at

the time of the breaking and entering, the court instructed that

to convict the jury must find the defendant, acting alone or

with others, intended to commit the crime of larceny at the time

of the breaking and entering.      (Tp 357, Rpp 29-30).   Thus for

the State to withstand the defendant’s motion to dismiss the

State needed to submit evidence that at the time a breaking and

entering occurred the defendant and his accomplices intended to

commit the crime of larceny.      Larceny is defined by our courts

as the felonious taking and carrying away of personal property

of another, without the latter’s consent and with the felonious

intent to permanently deprive the owner of his property and to

convert it to the taker’s own use.      See, State v. Bronson, 10

NCApp 638, 179 SE2d 823 (1971).

    Both the State and defendant offered evidence in the form

of accomplice testimony as to the intent at the time of the

breaking and entering.   The State introduced the testimony of

Curtis Mobley who testified, pursuant to a plea agreement, that

he was told by the defendant that Mr. Andre Lewis was going to a
                                       16


residence to get some money that was owed him.                (Tp 198).      He

was told by Andre Lewis they were going to an apartment complex

to help him collect money owed him.          (Tp 200).

      Andre   Lewis   the     other     accomplice     testified     for     the

defendant that a few days before the breaking and entering he,

Mr. Lewis, had purchased an ounce of cocaine for $600.00 from

Mr. Moore.     Mr. Lewis testified he told Moore he wanted his

money back because the drugs he purchased were bad.                He further

advised Moore he was coming to get his money.               (Tp 296).      These

two   witnesses   provided    the   only    evidence   of   the    reason   and

intent for the breaking and entering.          To be guilty of the crime

of burglary the defendant must have the felonious intent at the

time of the entry.        See, State v. Davis, 90 NCApp 185, 368 SE2d

52 (1988).    Our courts have said the fifth element of burglary,

i.e. the intent to commit a felony, must exist at the time of

the breaking and entering.          See, State v. Alexander, 18 NCApp

460, 197 SE2d 272 (1973).        The evidence introduced by the State

and defendant belies an intent to commit a larceny at the time

of the breaking and entering.           The only intent in existence at

the time of the breaking and entering was to recover or reclaim

money   the   defendant    and   his   accomplices     believed    rightfully

belonged to one of the accomplices.          Therefore they did not have

the requisite intent to commit larceny.              In order to intend to

commit larceny they must possess the intent to take that which
                                        17


does not belong to them; the property of another.                            If they do

not have the requisite larcenous intent then they do not intend

to commit larceny at the time of the breaking and entering.                             If

they do not intend to commit larceny at the time of the breaking

and entering then they do not commit burglary.

    In order to withstand a motion to dismiss the State must

present    substantial     evidence     of    every        element      of    the    crime

charged.     Failing to prove the defendant and his accomplices

intended   to    commit    larceny     at   the     time    of    the    breaking      and

entering, dooms the State’s proof of burglary.

    The trial court erred in failing to dismiss the charge of

burglary    at    the     close   of    all        the   evidence        due    to     the

insufficiency of that evidence.

2.   THE TRIAL COURT ERRED IN FAILING TO DISMISS DUE TO THE
INSUFFICIENCY OF THE EVIDENCE THE CHARGE OF DISCHARGING A
FIREARM INTO AN OCCUPIED PROPERTY.

    ASSIGNMENT OF ERROR NO. 2
    (Tpp 286, 348)

    In order to withstand a motion to dismiss the State must

present substantial evidence of every element of the offense

charged.    See, State v. Smith, 300 NC 71, 265 SE2d 164 (1980).

In reviewing the denial of the motion to dismiss, the court must

examine    the   evidence    presented        at    trial    in    the       light    most

favorable to the State to determine if there is substantial

evidence of every essential element of the crime of discharging
                                          18


a firearm into occupied property.               See, State v. Wright, 302 NC

122, 273 SE2d 699 (1981).

     The   evidence        showed    shots     were   fired     by   the    two   co-

defendants.    In fact, both Mr. Mobley and Mr. Lewis testified

they each fired their handguns.                 (Tpp 204, 299).            Both the

accomplice    testifying        for      the    State     and    the    accomplice

testifying    for    the    defense      testified      the   defendant     did   not

possess a gun while at the residence of Mr. Moore.                         (Tpp 201,

202).   Since Mr. Baker did not actually discharge a firearm into

the occupied premises of Mr. Moore, if he is guilty, it is as an

aider or abettor.      The court instructed the jury could find the

defendant guilty even if he did not do all the acts necessary to

constitute the crime if he joined together with a common purpose

to   commit    the     crime        of   burglary       and     if   actually      or

constructively present he could be guilty with the person that

actually discharged the firearm.               (Tp 359, Rp 32).        An aider or

abettor has been defined by our courts as a person who is either

actually or constructively present at the scene of the crime and

who advises, aides, counsels, instigates or encourages another

to commit the offense.         See, State v. Barnette, 304 NC 447, 284

SE2d 292 (1981); State v. Bell, 270 NC 25, 153 SE2d 741 (1967).

Further, our courts have held that a person is considered an

aider and abettor and thus guilty even if he is not actually

present during the commission of the crime if “he shares the
                                     19


criminal intent of a perpetrator and if, during the commission

of the crime, he is in a position to render any necessary aid to

the perpetrator.”     See, State v. Barnette, supra 304 NC at ___,

284 SE2d at 305.       The State’s evidence showed the defendant

kicked open the door and then fled the scene.           (Tp 229).    Co-

defendants Mobley     and Lewis remained at the residence.           Mr.

Lewis entered the residence and hollered “police”.             (Tpp 203,

299).     The shots were fired by the co-defendants Mobley and

Lewis and then, believing they were being fired upon, they both

fled.   A witness testified he was standing outside his apartment

smoking a cigarette when he heard gunfire.          He observed two men

streaking across the apartment complex.        (Tp 332).    The two men

he saw fleeing the gunfire were Mobley and Lewis.          The defendant

was nowhere to be seen.

    The evidence shows the defendant did not have a firearm.

The defendant did not fire into the property.           After the door

was kicked in the defendant ran away.         He was not present when

shots were fired into the residence.

    The    State    must   present    substantial   evidence   of   every

essential element.    In order to show the defendant guilty of the

crime of discharging a firearm into occupied property under the

facts of this case the State must present substantial evidence

that the defendant was actually or constructively present at the

commission of the crime.       There was no evidence the defendant
                                           20


was   actually      present.      In   fact     all    the    evidence     shows     that

immediately after kicking the door in the defendant fled the

scene.    There was no evidence presented that either co-defendant

knew where the defendant was immediately after he left the front

of the residence.        There was no evidence the defendant was in a

position to aid or assist either co-defendant.                      In order to aid

or abet he must either be actually present or in a position to

render any necessary aide to the perpetrator.                           See, State v.

Barnette,     Id;    State   v.   Robinette,      33    NCApp     42,    234   SE2d    28

(1977).     In State v. Robinette, Id the evidence tended to show

the defendant let off two men in order for them to engage in a

breaking and entering of a residence and the defendant remained

close in his automobile, “driving up and down the road in front

of the house and keeping the automobile running...”                       Id 234 SE2d

at 30.    The men who actually did the breaking and entering left

the   house    carrying      a    stolen    moneybox         to   the   car    and    the

defendant drove the vehicle from the scene.                        The court ruled

this evidence supported finding the defendant guilty of breaking

and entering and larceny as an aider and abettor.                       Id.    In State

v. Davis, 301 NC 394, 271 SE2d 263 (1980) the evidence revealed

a white 1975 Lincoln Continental parked outside a country store

while a man exited the passenger side and entered the store.                          He

robbed the attendant and then fled.                   Within two hours officers

located a white 1975 Lincoln Continental parked in a secluded
                                        21


area.    The officers found the defendant and a passenger asleep

inside the car.         A firearm and money were found in the front

seat.    The    court      affirmed   the    conviction   for   armed   robbery

finding the evidence tended to show the defendant waited outside

the store for his accomplice to rob the store and to flee to his

awaiting car.        Id.     In State v. Gilmore, 330 NC 167, 409 SE2d

888 (1991) the court affirmed the convictions of the defendant

and   held    the    trial    court   correctly   overruled     his   motion    to

dismiss finding the evidence sufficient to show Mr. Gilmore had

“masterminded” the killing of his father and communicated with

his mother that he would help when she injected her husband with

the insulin.        Further the evidence tended to show that between

the   times    the    deceased    was    injected   on    two   occasions      the

defendant was in the victim’s home.               The court noted the jury

“could infer from this that the defendant went to his father’s

home to make sure the killing was going as planned. ...the jury

could infer that the defendant was actually present during a

part of this time.           The evidence would also permit an inference

that when the defendant was in his own home he was in close

proximity to the place where the injections were administered

ready to aide his mother.”              Id 409 SE2d at 889.           Witnesses

testified that if a person walked out the back door of defendant

Gilmore’s residence he would be in the back yard of the victim’s

house.   The court thus held this proximity from the defendant’s
                                          22


residence to the crime scene made him constructively present

during the commission of the crimes.             Id.     The court also cited

State    v.   Davis,   supra    in    support    of    its   finding    that   the

proximity of the defendant during the commission of the crime

made    him   constructively     present.        In    the   instant    case   the

State’s    evidence    tended    to   show     that    immediately     after   the

defendant kicked in the door he fled the scene.                  The defendant

was not actually present at the time the crime of discharging a

firearm into occupied property occurred.                The State’s evidence

failed to show the defendant had positioned himself to render

any necessary aid if called upon by the co-defendants.                   In fact

an eyewitness testified after he heard gunshots he saw only two

men flee the area.      (Tp 332).         The evidence affirmatively showed

the defendant was not in a position to render any necessary aid

during the commission of the crime of discharging a firearm into

occupied property.      The defendant was not constructively present

and thus the trial court erred in denying the defendant’s motion

to dismiss this charge.          (Tp 348).       For the foregoing reasons

the    charge   of   discharging      a   firearm     into   occupied   property

should be dismissed.

3.   THE TRIAL COURT ERRED IN FAILING TO DISMISS THE CHARGES
AGAINST THE DEFENDANT DUE TO THE WITHHOLDING OF STATEMENTS OF
THE CO-DEFENDANTS LEWIS AND MOBLEY BY THE JACKSONVILLE POLICE
DEPARTMENT SINCE THESE TWO STATEMENTS EXONERATED THE DEFENDANT
AND WERE NOT REVEALED TO DEFENSE COUNSEL UNTIL THE TRIAL HAD
BEGUN.
                                      23


    ASSIGNMENT OF ERROR NO. 3
    (Tpp 286, 348)

    Prior to trial defense counsel filed a motion for discovery

pursuant   to    N.C.G.S.     §15A-902      and     15A-903.        (Rpp    14-18).

Specifically within that motion defense counsel requested the

State to provide “any and all documents, ...in whatever form

which would tend to exculpate the defendant, ...”                          (Rp 16).

This request was made pursuant to Brady v. Maryland, 373 US 83

(1963) and United States v. Agurs, 427 US 97 (1976).                        Defense

counsel filed the motion April 11, 2003.                 (Rp 19).   Prior to the

defendant’s motion for discovery but within a month after the

defendant had been indicted, the State filed a document entitled

“Answer to request for discovery” indicating discovery was being

provided to defense counsel.         (Rpp 11-13).

    The trial began July 14, 2003.                Two days into the trial the

prosecutor advised the court and defense counsel law enforcement

officers   provided     him    two    exculpatory          statements       of    the

defendant’s     co-defendants.       (Vol    2,     Tp    281).     The    District

Attorney’s Office received the exculpatory statement of Curtis

Mobley after he had testified in the trial for the State.                        (Vol

2, Tp 281).

    Defense counsel moved to dismiss the charges against his

client for the failure of the State to provide the exculpatory
                                           24


evidence prior to trial.             (Vol 2, Tp 281).         The court denied the

motion.      (Vol 2, Tp 285).

      It should be difficult for the court to imagine evidence

that would have greater exculpatory value for the defendant than

written statements of the two co-defendants immediately after

their arrest which exonerated the defendant.                         Defense counsel

filed a request for discovery and it appears the State provided

discovery.        The defendant specifically requested any exculpatory

evidence     and    was     entitled    to    this    under    the    United     States

Constitution and the Constitution of North Carolina.                         See, Brady

v. Maryland, supra and United States v. Agurs, supra.                           Further

the United States Supreme Court has placed an affirmative duty

upon the State to seek out and provide exculpatory evidence

within     the      files       of   the     prosecutor       or     those     of   the

investigators.          See, Kyles v. Whitley, 514 US 419, 115 SCt 1555,

131 LEd 2d 490 (1995).               In the instant case defense counsel

advised the court the last time the case had been set for trial

he   asked    the       prosecutor   specifically      to     provide    any    written

statements of co-defendants Mobley and Lewis.                      (Vol 2, Tp 286).

Defense counsel advised the court the prosecutor told him “there

aren’t any”.        (Vol 2, Tp 286).         At trial after the testimony of

Curtis Mobley who was a co-defendant of the defendant testifying

pursuant     to     a    plea   agreement,      the   detectives        provided    Mr.

Mobley’s written statement to the prosecutor.                      This statement is
                                       25


contained in the record.         (Rp 22).    In the statement Mr. Mobley

advised the law enforcement officers he and co-defendant Andre

Lewis, identified as “Geezmo”, were the only two perpetrators of

the crime.     Mobley wrote in his statement they came upon the

defendant after the commission of the crimes and while they were

in a car leaving the area.         (Rp 22).       Co-defendant Andre Lewis

testified for the defendant.        His written statement given at the

time of his arrest is defense exhibit #4.                   (Rp 25).   In his

written statement he told the police he and the co-defendant

committed the crime and excluded completely the mention of the

defendant Duane Baker.

       Defense counsel asked the court to dismiss the charges for

this egregious violation and tardy presentation of exculpatory

evidence.     Dismissal of the charge is provided as a remedy by

our discovery statute.     See, N.C.G.S. §15A-910(3b).            Admittedly,

dismissal of a charge is an extreme sanction which should not be

routinely imposed.      See, State v. Adams, 67 NCApp 116, 312 SE2d

498 (1984).

       The Constitution of the United States puts an affirmative

duty   upon   the   prosecutor    to   locate     and   provide   exculpatory

evidence contained within his own files and those of his law

enforcement   agents.     See,    Kyles     v.   Whitley,    supra.    In   the

instant case this matter was brought to trial almost a year

after the commission of the crimes.              Motions for discovery had
                                          26


been filed requesting exculpatory evidence three months prior to

trial.     These exculpatory statements were produced two days into

the trial and after the State’s main witness, the testifying co-

defendant, had already testified and left the stand.                          As defense

counsel noted during his motion “this is not the first time we

have had this problem, but I’ve never had it as severe as this

time.”        (Vol   2,   Tp    281).    It    is    within   the       trial    court’s

discretion to decide whether any sanctions and what sanctions

are to be imposed.             See, State v. Drewyore, 95 NCApp 283, 382

SE2d 825 (1989); State v. Adams, supra.                   Our courts have held a

trial court’s decision about whether or not to impose a sanction

will not be reversed unless the trial court’s decision was an

abuse    of   discretion.         See,   State      v.   Drewyore,      Id;     State   v.

Alston, 307 NC 321, 298 SE2d 631 (1983).                  The defendant contends

in this instant case it was an abuse of discretion for the trial

court not to dismiss the charges.                There is simply no other way

to force compliance of the State’s agents to the Constitutional

mandates      providing    exculpatory     information        to    a    defendant      in

time for it to be utilized by the defense counsel.

     For the foregoing reasons the defendant requests the court

to dismiss his charges for the discovery violation.

4.   THE   TRIAL  COURT   COMMITTED  REVERSIBLE   ERROR  IN   ITS
INSTRUCTION TO THE JURY ON BURGLARY WHEN IT FAILED TO DEFINE THE
ELEMENTS OF LARCENY AND THEN WHEN BROUGHT TO ITS ATTENTION
MERELY BROUGHT THE JURY BACK IN TO THE COURTROOM PRIOR TO
DELIBERATIONS AND INSTRUCTED THEM ON THE ELEMENTS OF LARCENY.
                                       27



       ASSIGNMENT OF ERROR NO. 4
       (Tpp 357, 362, 363-364)

5.   THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN UPON THE
JURY’S REQUEST TO BE RE-INSTRUCTED ON FIRST-DEGREE BURGLARY
INSTRUCTED ON ONLY FIVE OF THE SIX ELEMENTS THUS REDUCING THE
STATE’S BURDEN OF PROOF AND THEN WHEN CALLED TO ITS ATTENTION
THE TRIAL COURT DID NOT RE-INSTRUCT BUT MERELY GAVE AN
ADDITIONAL “FIFTH” ELEMENT FOR THE JURY TO FIND.

       ASSIGNMENT OF ERROR NO. 5
       (Tpp 365, 366)

       Defendant    will     argue   these     two   Assignments      of   Error

together.

       The trial court never at one time correctly instructed the

jury on the elements of the offense of burglary.                 Initially, the

trial court instructed on the six elements of burglary the State

needed to prove.         (Rpp 29-30; Tpp 356-357).         After the jury had

been sent to the jury room to select a foreman the prosecutor

advised the court he needed to recharge on burglary because the

court had failed to define larceny in its burglary instruction.

(Rpp   35-36;    Tpp   362-363).      The    defendant     had   no   additional

requests.       (Rp 36; Tp 363).       The court then brought the jury

back in and rather than instructing the jury fully and correctly

on the six elements of burglary               including the definition of

larceny, the court advised the jury he had neglected to define

larceny and proceeded to do so.              (Rp 36; Tp 363).         The court

then instructed “so you would have to find when they went in

that   night,    broke     and   entered    with   the   intention    to   commit
                                        28


larceny, the larceny would be as I’ve just defined it to you –

the   taking    and    carrying      away    of   another    person’s    property

without their consent, knowing they are not entitled to take it

and intending to deprive the person of its use permanently.”

(Rpp 36-37; Tpp 363-364).

      The jury retired to deliberate and neither the State nor

defense lodged any objection.           (Rp 37; Tp 364).

      After some deliberations the jury apparently sent a note to

the court asking to be reinstructed on the elements of each

charge.       (Rpp    37-38;   Tpp    364-365).        The   court    then   first

instructed on burglary but only instructed on five of the six

elements of the offense.              (Rp 38; Tp 365).             The prosecutor

interrupted and advised the court there were six elements and

that the court had neglected to instruct on element number five.

(Rpp 38-39; Tpp 365-366).

      Rather then correctly reinstructing the jury on all six

elements the court merely instructed as follows:                   “fifth one was

the   owner    or    tenant    did   not     consent   to    the    breaking   and

entering.”      (Rp 39; Tp 366).             Again the court neglected to

define larceny for the jury.            The jury then retired to continue

its deliberations.       (Rp 42; Tp 369).

      These instructions were so disjointed and required the jury

to refer back to insert the presently given instruction with the

earlier incomplete instructions so as to render them unhelpful
                                        29


to    the    jury    at    best   and   an   incomplete,       inadequate   and

prejudicial instruction at worst.            Conflicting instructions on

the applicable law entitle the defendant to a new trial.                    See,

State v. Parrish, 275 NC 69, 165 SE2d 230 (1969).                  Admittedly,

normally      an    inadvertent     statement     by     the   court   in   its

instructions does not prejudice the defendant when the trial

court discovers the incorrect statement and immediately gives a

prompt and complete correction.              See,      State v. Parrish,     Id;

State v. Carver, 286 NC 179, 209 SE2d 785 (1974); State v.

Richards, 15 NCApp 163, 189 SE2d 577 (1972).                   However in this

case the court never gave a complete corrected instruction for

the   jury     on    all   the    elements   of     burglary    including   the

definition of larceny.            Conflicting or incomplete instructions

on applicable law regarding a substantive feature of the case is

considered to be prejudicial error warranting a new trial for

defendant.         See, e.g. State v. Cash, 234 NC 292, 267 SE2d 50

(1951).      Our courts have held a new trial is necessary when the

court charges correctly at one point and incorrectly at another

since the jury may be presumed to have acted upon the incorrect

instruction.         See, State v. Parrish, supra.             A jury is not

expected to be able to distinguish between a correct and an

incorrect charge.          Conflicting instructions on the applicable

law entitle a defendant to a new trial and in this case the jury

was never given a complete correct instruction with regards to
                                        30


burglary.        Our   courts   have    held   that     failure    to   define   an

essential element of the offense is not cured by the fact that

at the beginning of a charge the court stated generally the

language of the bill of indictment.             See, State v. Cash, supra.

       In the instant case the defendant did not object to these

disjointed incomplete instructions.                 The defendant must proceed

under the Plain Error Rule.            See, State v. Odom, 307 NC 655, 300

SE2d 375 (1983).         This rules waives the requirement that an

objection be made at trial to a jury instruction in order to

preserve appellate review of a fundamental error or defect in

the jury instructions which effect a substantial right of the

defendant.       See, State v. Rathbone, 78 NCApp 58, 336 SE2d 702,

review denied 316 NC 200, 341 SE2d 582 (1985).                    Clearly for the

trial court to never have given the jury a complete correct

instruction on the crime of burglary is a fundamental error

affecting    a     substantial     right       of     the   defendant.       This

instruction and the repeated errors of the court in admitting

the definition of larceny or an element of the offense rendered

these incomplete instructions a fundamental misstatement of the

law.

       For these instructional errors the defendant is entitled to

a new trial on the burglary charge.

       Defendant abandons Assignment of Error 6.
                                        31


                                    CONCLUSION

      For the arguments and reasoning in Assignment of Error 1,

presented   in    argument     1,    the     defendant    is     entitled     to    a

dismissal of the burglary charge due to the insufficiency of the

evidence.

      For the arguments and reasoning in Assignment of Error 2,

presented   in    argument     2,    the     defendant    is     entitled     to    a

dismissal of the discharging a firearm into an occupied property

due to the insufficiency of the evidence.

      As argued in Assignment of Error 3, presented in argument

3, the defendant is entitled to a dismissal of all the charges

for   failure    of    the   State     to    provide     prior    to   trial       the

statements of co-defendants which exonerated the defendant.

      For the reasoning presented in Assignment of Error 4 and 5

and   presented       in   arguments    4    and   5,    the     disjointed        and

incomplete instructions on burglary entitle the defendant to a

new trial on that charge.

      THIS the 22nd day of April, 2004.

                                             PARISH & COOKE



                                             _______________________
                                             JAMES R. PARISH
                                             ATTORNEY FOR THE DEFENDANT
                                             P.O. DRAWER 1824
                                             FAYETTEVILLE, NC 28302
                                             TELEPHONE: (910) 483-7680
                                  32


                        CERTIFICATE OF SERVICE

     I hereby certify that I have this day served a copy of the

foregoing DEFENDANT-APPELLANT’S BRIEF upon the State by placing

same in the Untied States mail, first class postage prepaid,

addressed as follows:

                         DAVID N. KIRKMAN
                   ASSISTANT ATTORNEY GENERAL
                   N.C. DEPARTMENT OF JUSTICE
                    9001 MAIL SERVICE CENTER
                     RALEIGH, NC 27699-9001

THIS the 22nd day of April, 2004.


                                       PARISH & COOKE



                                       _______________________
                                       JAMES R. PARISH
                                       ATTORNEY FOR THE DEFENDANT
                                       P.O. DRAWER 1824
                                       FAYETTEVILLE, NC 28302
                                       TELEPHONE: (910) 483-7680

								
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