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No. COA05-902 TWENTY-FIRST DISTRICT
NORTH CAROLINA COURT OF APPEALS
****************************************************
STATE OF NORTH CAROLINA )
)
v. ) From Forsyth
)
DEDRICK PAXTON CRUMP )
****************************************************
DEFENDANT-APPELLANT’S BRIEF
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SUBJECT INDEX
TABLE OF AUTHORITIES...........................................ii
QUESTIONS PRESENTED.............................................1
STATEMENT OF THE CASE...........................................1
STATEMENT OF GROUNDS FOR APPELLATE REVIEW.......................2
STATEMENT OF THE FACTS..........................................2
ARGUMENT........................................................4
I. THE HABITUAL FELON INDICTMENT VIOLATED THE
CONSTITUTIONAL BAR AGAINST DOUBLE JEOPARDY BY
DOUBLE-COUNTING MR. CRUMP’S 1998 CONVICTION FOR
POSSESSION OF A FIREARM BY A FELON: (1) TO
SUPPORT HIS CONVICTION FOR POSSESSION OF A
FIREARM BY A FELON IN THIS CASE, AND (2) TO
SUPPORT HIS CONVICTION AS A HABITUAL FELON............4
II. THE INDICTMENT FOR POSSESSION OF A FIREARM BY A
FELON VIOLATED THE CONSTITUTIONAL BAR AGAINST
DOUBLE JEOPARDY BY DOUBLE-COUNTING MR. CRUMP’S
PRIOR CONVICTION FOR POSSESSION WITH INTENT TO
MANUFACTURE, SELL, AND DELIVER COCAINE................7
CONCLUSION.....................................................11
CERTIFICATE OF SERVICE.........................................12
APPENDIX
ii
TABLE OF AUTHORITIES
CASES
State v. Brown,
146 N.C. App.299, 552 S.E.2d 234, rev. denied,
app. dismissed, 354 N.C. 576, 559 S.E.2d 186
(2001), cert. denied, 535 U.S. 1102, 152 L.Ed.2d
1061 (2002)............................................... 9
State v. Glasco,
160 N.C. App. 150, 585 S.E.2d 257, review denied,
357 N.C. 580, 589 S.E.2d 356 (2003)....................... 6
State v. Harris,
115 N.C. 42, 51, 444 S.E.2d 226, 231 (1994).............. 11
State v. Misenheimer,
123 N.C. App. 156, 472 S.E.2d 191, cert. denied,
344 N.C. 441, 476 S.E.2d 128 (1996)....................... 6
State v. Netcliff,
116 N.C. App. 396, 448 S.E.2d 311 (1994),
overruled on other grounds, State v. Patton, 342
N.C. 633, 466 S.E.2d 708 (1996).......................... 10
State v. Penland,
89 N.C. App. 350, 365 S.E.2d 721 (1988).................. 11
State v. Todd,
313 N.C. 110, 117, 326 S.E.2d 249, 253 (1985)............. 9
State v. Vardiman,
146 N.C. App. 381, 552 S.E.2d 697 (2001), app.
dismissed, 355 N.C. 222, 559 S.E.2d 794, cert.
denied, 537 U.S. 833, 154 L.Ed.2d 51 (2002)............... 9
State v. Wallace,
351 N.C. 481, 528 S.E.2d 326, cert. denied, 531
U.S. 1018, 148 L.Ed.2d 498 (2000)....................... 5,7
STATUTES
N.C. Gen. Stat. § 7A-27(b)..................................... 2
CONSTITUTIONAL PROVISIONS
N.C. Const., Art. I, §19..................................... 6,9
U.S. Const., Amend. V........................................ 6,9
iii
U.S. Const., Amend. XIV...................................... 6,9
No. COA05-902 TWENTY-FIRST DISTRICT
NORTH CAROLINA COURT OF APPEALS
****************************************************
STATE OF NORTH CAROLINA )
)
v. ) From Forsyth
)
DEDRICK PAXTON CRUMP )
****************************************************
DEFENDANT-APPELLANT’S BRIEF
****************************************************
QUESTIONS PRESENTED
I. WHETHER THE HABITUAL FELON INDICTMENT VIOLATED THE
CONSTITUTIONAL BAR AGAINST DOUBLE JEOPARDY BY DOUBLE-
COUNTING MR. CRUMP’S 1998 CONVICTION FOR POSSESION OF A
FIREARM BY A FELON: (1) TO SUPPORT HIS CONVICTION FOR
POSSESSION OF A FIREARM BY A FELON IN THIS CASE, AND (2) TO
SUPPORT HIS CONVICTION AS A HABITUAL FELON?
II. WHETHER THE INDICTMENT FOR POSSESSION OF A FIREARM BY A
FELON VIOLATED THE CONSTITUTIONAL BAR AGAINST DOUBLE
JEOPARDY BECAUSE IT DOUBLE-COUNTED MR. CRUMP’S PRIOR
CONVICTION FOR POSSESSION WITH INTENT TO MANUFACTURE, SELL,
AND DELIVER COCAINE?
STATEMENT OF THE CASE
These cases case came on for trial at the October 11, 2004
Criminal Session of Forsyth County Superior Court before the
Honorable A. Moses Massey, on indictments alleging one count each
of possession of a firearm by a felon (03 CRS 55896) and habitual
felon status (03 CRS 20705). On October 12, 2004, a jury found
defendant guilty of possession of a firearm by a felon, and
defendant pled guilty to habitual felon status.
2
On October 12, 2004, Judge Massey sentenced defendant as an
habitual felon to a Class C sentence, in the presumptive range
for Prior Record Level III, of imprisonment for 93 to 121 months.
(Trial Tp. Vol. II, p. 35-36; Rpp. 3-5, 37-38) Mr. Crump entered
notice of appeal. (Rpp. 41-42)
STATEMENT OF GROUNDS FOR APPELLATE REVIEW
Defendant appeals pursuant to N.C. Gen. Stat. § 7A-27(b)
from a final judgment of Forsyth County Superior Court.
STATEMENT OF THE FACTS
At 1:27 a.m., on May 30, 2003, Winston-Salem Police Officer
James Deeney saw a Ford sedan weave to the left of the center
line of a two-lane street, for about half a block. A computer
check of the license plate showed that the plate was registered
to a Chevrolet pickup truck. Officer Deeney turned on his blue
lights and sounded his siren once, to direct the car to stop.
The car turned right at the next intersection onto Dunleaf Street
and stopped in the second driveway. Deeney saw that there were
three people in the car. The driver -- Mr. Crump -- got out of
the car. Deeney asked for Mr. Crump’s driver’s license and
registration and explained why he had stopped Mr. Crump. Mr.
Crump showed Deeney a North Carolina identification card, but he
did not have a driver’s license; a DMV check showed that his
license had been permanently suspended. Officer Deeney told Mr.
Crump to put his hands on the back of the car. (Trial Tp. Vol.
I, pp. 20-29)
3
After Officer Deeney arrested Mr. Crump and put him in the
patrol car, he went to the passenger side of the Ford. Two women
were in the car. Deeney saw a gun in the grass, a foot away from
the front passenger door. The front passenger window of the Ford
was open. Officer Deeney picked up the gun; it contained two
unfired bullets. (Trial Tp. Vol. I, pp. 30-34)
Officer Deeney drove Mr. Crump to the magistrate’s office.
At 3:50 a.m., after waiving his Miranda rights, Mr. Crump wrote
out a statement. Mr. Crump wrote while he was at Rebecca’s
Sports Bar, his brother and a friend of his brother named Mossey
told him that Mossey had a gun and that he could not have a gun
in the bar. Mossey asked Mr. Crump to hide the gun for him. Mr.
Crump agreed and left the bar to go home. As he drove home, Mr.
Crump saw a police car with its blue lights flashing. He pulled
into his own driveway on Dunleaf Street and asked the woman
sitting in the front passenger seat to toss the gun out the
window. (Trial Tp. Vol. I, pp. 43-47) Officer Deeney focused on
Mr. Crump during the traffic stop, and Deeney did not see anyone
throw the gun out a car window. (Trial Tp. Vol. I, p. 49)
Officer Deeney testified that one of the women in the car,
Precious Bailey, told him during the traffic stop that Mr. Crump
had told her to throw the gun out of the car and that she was the
one who tossed it out the window. (Trial Tp. Vol. I, pp. 72-73)
Precious Bailey testified that she and her sister, Trena
Bray, were the passengers in the car. Ms. Bailey was in the back
4
seat, and Ms. Bray was in the front passenger seat. Ms. Bailey
testified that as they sat in the car outside Rebecca’s Sports
Bar, Mr. Crump’s brother and the brother’s friend came to the
car. Mr. Crump’s brother’s friend got into the back seat of the
car to talk to Mr. Crump, but Mr. Crump was talking on a cell
phone. The friend put a gun under the driver’s seat and left the
car. After Mr. Crump drove away, Ms. Bailey told him that a gun
was under the front seat. Mr. Crump said, “Okay.” (Trial Tp.
Vol. I, pp. 57-61, 65-66)
Ms. Bailey said that Mr. Crump drove onto his driveway to go
into his house to get some money. Then a police officer drove up
and turned on his patrol car’s blue lights. Mr. Crump reached
under the seat, picked up the gun, gave it to Ms. Bray, and told
her to throw it out the window. Ms. Bray tossed the gun out the
window. (Trial Tp. Vol. I, pp. 60-63, 67-68, 70)
ARGUMENT
I. THE HABITUAL FELON INDICTMENT VIOLATED THE
CONSTITUTIONAL BAR AGAINST DOUBLE JEOPARDY BY
DOUBLE-COUNTING MR. CRUMP’S 1998 CONVICTION FOR
POSSESION OF A FIREARM BY A FELON: (1) TO SUPPORT
HIS CONVICTION FOR POSSESSION OF A FIREARM BY A
FELON IN THIS CASE, AND (2) TO SUPPORT HIS
CONVICTION AS A HABITUAL FELON
Assignment of Error No. 5 (Rp. 45)
Assignment of Error No. 6 (Rp. 45)
Standard of Review
This issue is reviewable de novo as a question of law by
this Court. Previous appellate counsel raised this issue as
plain error in Assignments of Error No. 5 and No. 6 in the Record
5
on Appeal. However, since this argument challenges the validity
of an indictment, it is a jurisdictional challenge. Accordingly,
it is automatically preserved for appeal, and any error requires
reversal, without regard to prejudice. State v. Wallace, 351
N.C. 481, 528 S.E.2d 326, cert. denied, 531 U.S. 1018, 148
L.Ed.2d 498 (2000).
Discussion
The habitual felon indictment is defective because it
subjected Mr. Crump to double jeopardy. Specifically, the
indictment violated the constitutional bar against double
jeopardy because it resulted in the State’s use of a particular
prior felony for two purposes: (1) to support Mr. Crump’s
conviction for possession of a firearm by a felon, and (2) to
support Mr. Crump’s conviction and sentence as a habitual felon.
Here are the relevant procedural facts: Mr. Crump was
convicted of possession of a firearm by a felon in a jury trial
in this case. (03 CRS 55896) After the jury announced that
verdict, Mr. Crump pled guilty to being an habitual felon (03 CRS
20705). As shown in the habitual felon indictment, Mr. Crump had
been convicted of three prior felonies as of the time he
committed the crime in this case: (1) possession of cocaine (90
CRS 30581), (2) felony larceny (96 CRS 25270), and (3) possession
of a firearm by a felon (98 CRS 8082). All three prior felony
convictions were used by the State to support his conviction as a
habitual felon. (Rp. 20) Mr. Crump’s conviction in 98 CRS 8082
6
for possession of a firearm by a felon also was used as the
predicate felony for his underlying conviction in this case for
possession of a firearm by a felon. (03 CRS 55896) Thus, Mr.
Crump’s conviction for possession of a firearm by a felon in 03
CRS 55896 was used for two purposes: (1) as the predicate felony
for the underlying charge in this case, and (2) as one of the
three prior felonies in the habitual felon charge in this case.
The use of one prior offense for these two purposes violates
the prohibition against double jeopardy under the Fifth and
Fourteenth Amendments to the United States Constitution and
Article I, §19 of the North Carolina Constitution. Mr. Crump
understands that this Court has rejected the same argument in
previous cases. State v. Glasco, 160 N.C. App. 150, 585 S.E.2d
257, review denied, 357 N.C. 580, 589 S.E.2d 356 (2003); and
State v. Misenheimer, 123 N.C. App. 156, 472 S.E.2d 191, cert.
denied, 344 N.C. 441, 476 S.E.2d 128 (1996). Mr. Crump raises
this issue here for preservation purposes for possible future
review in the Supreme Court of North Carolina or in federal
court.
7
II. THE INDICTMENT FOR POSSESSION OF A FIREARM BY A
FELON VIOLATED THE CONSTITUTIONAL BAR AGAINST
DOUBLE JEOPARDY BECAUSE IT DOUBLE-COUNTED MR.
CRUMP’S PRIOR CONVICTION FOR POSSESSION WITH
INTENT TO MANUFACTURE, SELL, AND DELIVER COCAINE.
Assignment of Error No. 71
Standard of Review
This issue is reviewable de novo as a question of law by
this Court. Since this argument challenges the validity of an
indictment, it is a jurisdictional challenge and, therefore, it
is automatically preserved for appeal. Any error requires
reversal, without regard to prejudice. State v. Wallace, 351
N.C. 481, 528 S.E.2d 326, cert. denied, 531 U.S. 1018, 148
L.Ed.2d 498 (2000).
Discussion
In Issue I, above, Mr. Crump contends that the habitual
felony indictment violated the constitutional bar against double
jeopardy because it resulted in double-counting of his conviction
for possession of a firearm by a felon in 98 CRS 8082. Mr. Crump
presents a different argument in this section: the indictment for
possession of a firearm by a felon in 03 CRS 55896 subjected him
to double jeopardy because it resulted in double-counting of
another prior conviction, namely, his conviction in 1991 in 90
1
1. Mr. Crump’s previous appellate counsel prepared the Record on
Appeal, and he did not include this assignment of error in the Record.
Undersigned substitute counsel has filed a Motion to Amend the Record on Appeal
to add this assignment of error.
8
CRS 30581 for possession with intent to manufacture, sell, and
deliver cocaine.
Undersigned counsel’s research has not found a North
Carolina case that addresses this issue. It appears to be an
issue of first impression.
Here are the relevant procedural facts: On January 2, 1991,
Mr. Crump was convicted of possession with intent to manufacture,
sell, or deliver cocaine in 90 CRS 30581. (Rp. 20) On January
13, 1997, Mr. Crump was convicted of felony larceny in 96 CRS
25270. (Rp. 20) On September 3, 1998, Mr. Crump was convicted
of possession of a firearm by a felon in 98 CRS 8082 (Rp. 20)
The indictment in 98 CRS 8082 shows that the predicate felony for
possession of a firearm by a felon in 98 CRS 8082 was Mr. Crump’s
prior conviction for possession with intent to manufacture, sell,
or deliver cocaine in 90 CRS 30581. A copy of the indictment, of
which this Court can take judicial notice, is included in the
Appendix to this brief. (App. 1)
As discussed above in Issue I, the State then used the prior
conviction in 98 CRS 8082 for possession of a firearm by a felon
as the predicate felony for the charge of possession of a firearm
by a felon in this case (03 CRS 55896).
Thus, Mr. Crump’s conviction on January 2, 1991 in 90 CRS
30581 for possession with intent to manufacture, sell, or deliver
cocaine was used twice in this case to prove the substantive
9
offense of possession of a firearm by a felon in 03 CRS 55896:
(1) as the predicate felony for his conviction for possession of
a firearm by a felon in 98 CRS 8082; and (2) derivatively, then,
when his conviction for possession of a firearm by a felon in 98
CRS 8082 was used as an element of his conviction for possession
of a firearm by a felon in this case (03 CRS 55896). Mr. Crump
submits that such double-counting of a prior conviction to prove
one substantive offense violates the prohibition against double
jeopardy under the Fifth and Fourteenth Amendments to the United
States Constitution and Article I, §19 of the North Carolina
Constitution.
Mr. Crump acknowledges that the double jeopardy prohibition
did not bar the use of his 1991 drug conviction as the predicate
felony for his first conviction for possession of a firearm by a
felon in 98 CRS 8082 in 1998 because he was punished in 98 CRS
8082 for his new conduct in 1998 of possessing a firearm after
having been convicted of the drug offense in 1991. See generally
State v. Todd, 313 N.C. 110, 117, 326 S.E.2d 249, 253 (1985);
State v. Vardiman, 146 N.C. App. 381, 552 S.E.2d 697 (2001), app.
dismissed, 355 N.C. 222, 559 S.E.2d 794, cert. denied, 537 U.S.
833, 154 L.Ed.2d 51 (2002); State v. Brown, 146 N.C. App.299, 552
S.E.2d 234, rev. denied, app. dismissed, 354 N.C. 576, 559 S.E.2d
186 (2001), cert. denied, 535 U.S. 1102, 152 L.Ed.2d 1061 (2002).
However, the 1991 drug conviction necessarily was then used a
second time as an element of a substantive offense in this case
when the conviction for possession of a firearm by a felon in 98
10
CRS 8082 in turn was used in this case as the predicate felony
for the conviction of possession of a firearm by a felon in this
case, 03 CRS 55896. It was the second use of the 1991 drug
conviction in the same case that violated the prohibition against
double jeopardy.
State v. Netcliff, 116 N.C. App. 396, 448 S.E.2d 311 (1994),
overruled on other grounds, State v. Patton, 342 N.C. 633, 466
S.E.2d 708 (1996), is distinguishable. In Netcliff, the
defendant was convicted of first-degree murder in 1983, and then
he was convicted twice of escapes while serving his sentence for
murder. The escape convictions became felonies because he
escaped while serving a sentence for the 1983 felony conviction
for first-degree murder. The defendant subsequently was charged
with four drug offenses. The sentences for all four drug
offenses were enhanced under the habitual felon statute based on
the defendant’s three prior felony convictions (murder, escape,
and escape). The defendant argued that the State had wrongly
used the same 1983 murder conviction to turn the two escape
convictions into felonies so that it could prove the three
felonies required to establish habitual felon status.
The Court in Netcliff rejected Netcliff’s argument that the
double jeopardy prohibition barred use of one murder conviction
to convert two different escapes committed at two different
times, and resulting in two different convictions, into felonies.
However, the Court did not address the argument presented by Mr.
11
Crump in this section of his brief: whether the same prior felony
can be used twice in the same case to prove possession of a
firearm by a felon.
In summary, Mr. Crump asks this Court to reverse his
conviction for possession of a firearm by a felon in this case,
03 CRS 55896 because the double use of his 1991 drug conviction
in this case violated the prohibition against double jeopardy.2
CONCLUSION
For the foregoing reasons, defendant respectfully contends
that the Court should reverse his conviction for possession of a
firearm by a felon and his sentence as an habitual felon.
2
The Judgment and Commitment Order in this case purports to list two
offenses: possession of a firearm by a felon and habitual felon. (Rp. 37)
However, Mr. Crump’s status as an habitual felon is not a separate offense.
Rather, it is a status that subjected him to enhanced punishment for the charge
of possession of a firearm by a felon. State v. Harris, 115 N.C. 42, 51, 444
S.E.2d 226, 231 (1994); State v. Penland, 89 N.C. App. 350, 365 S.E.2d 721
(1988). Accordingly, the trial court erred by listing Mr. Crump’s status as an
habitual felon as an offense in the Judgment and Commitment Order. Mr. Crump
notes that the trial court correctly referred to his status as an habitual
felon in a finding in another portion of the Judgment and Commitment Order by
checking the box that states that the trial court “adjudges the defendant to be
an habitual felon to be sentenced as a Class C felon pursuant to Article 2A of
G.S. Chapter 14.” (Rp. 37) Mr. Crump asks this Court to remand this case to
Superior Court for correction of this error in the Judgment and Commitment
Order.
12
Respectfully submitted this the 3rd day of October, 2005.
______________________________
Benjamin Dowling-Sendor
Assistant Appellate Defender
ben.dowling.sendor@nccourts.org
Staples Hughes
Appellate Defender
Office of the Appellate Defender
123 West Main Street, Suite 500
Durham, North Carolina 27701
(919) 560-3334, ext. 147
ATTORNEYS FOR DEFENDANT
CERTIFICATE OF SERVICE
I hereby certify that a copy of the above and foregoing
Defendant-Appellant’s Brief has been duly served upon Mr. William
P. Hart, Special Deputy Attorney General, North Carolina
Department of Justice, Post Office Box 629, Raleigh, North
Carolina 27602, by first-class mail, postage prepaid.
This the 3rd day of October, 2005.
____________________________
Benjamin Dowling-Sendor
Assistant Appellate Defender
