The transcript reveals that the trial began on Tuesday, by xiw67167

VIEWS: 6 PAGES: 22

									NO. COA 03-132                             DISTRICT 16B

                  NORTH CAROLINA COURT OF APPEALS

              ***************************************

STATE OF NORTH CAROLINA    )
                           )
         v.                )          From Robeson County
                           )          99 CRS 10985, 10986
JEFFREY W. HARDIN          )
          Defendant.       )

           ****************************************

                    DEFENDANT/APPELLANT’S BRIEF

          *****************************************

                        QUESTIONS PRESENTED


         I.      DID THE TRIAL COURT ERR IN REPLACING A MEMBER
                 OF THE JURY WITH THE ALTERNATE JUROR AFTER
                 DELIBERATIONS BEGAN?

         II.     DID THE TRIAL COURT ERR BY ADMITTING THE
                 DEFENDANT‟S IN-CUSTODY STATEMENT INTO EVIDENCE
                 WITHOUT CONDUCTING A VOIR DIRE HEARING AND IN
                 VIOLATION OF DEFENDANT‟S MIRANDA RIGHTS?

         III. DID THE TRIAL COURT ERR BY FAILING TO DISMISS
              ALL CHARGES DUE TO A FATAL VARIANCE BETWEEN THE
              INDICTMENT AND THE EVIDENCE AT TRIAL?

         IV.     DID THE TRIAL COURT ERR IN DENYING DEFENDANT‟S
                 MOTION TO DISMISS, INASMUCH AS THE EVIDENCE WAS
                 INSUFFICIENT TO SUPPORT THE CONVICTION OF
                 DEFENDANT AS A MATTER OF LAW?

         V.      DID DEFENDANT RECEIVE INEFFECTIVE ASSISTANCE OF
                 COUNSEL?




                                -1-
                      Statement of the Case

  Defendant was indicted on 1 October 2001 for conspiracy to

  commit breaking, entering, and larceny, felonious breaking

  and entering, felonious larceny, and habitual felon.    The

  case came to trial before a jury at the 22 July 2002

  Criminal Session of the Superior Court for Robeson County,

  the Honorable Ola M. Lewis, Judge Presiding.    The defendant

  was convicted on all four counts.    The court imposed a

  sentence of 125-159 months for each conviction, with the

  sentences to run concurrently.     Defendant appeals from the

  judgment entered 24 July 2002.


                      STATEMENT OF THE FACTS

  The evidence at trial tended to show that an uninhabited

mobile home, owned by Jacqueline Thompson, and located at 136

Oak Grove Road, Lumberton, North Carolina was broken into in

the early morning hours of 24 May 1999. Officer John Bruen

Simmons (“Officer Simmons”) responded to a call that a mobile

home had been broken into in the Oak Grove Road area on that

morning.   Officer Simmons went to a mobile home in a

development at 136 Oak Grove Road and saw defendant standing

beside a truck that had a refrigerator placed on it.

Defendant‟s girlfriend, Wanda Chavis, was in the passenger

seat of the truck.   Two individuals ran away when Officer



                               -2-
Simmons pulled up to the home. (Tp. 7, line 11).     The truck

belonged to Mr. Howell, father of Montray Howell, who was one

of the individuals who fled the scene. (Tp. 19, line 2).

Officer Simmons took defendant and Wanda Chavis into custody.

The defendant is blind.    After being taken into custody,

defendant stated to Officer Sterile Little (“Officer Little”)

that two individuals came to his and his girlfriend‟s house

and offered to sell them a refrigerator for $100.     Defendant

then went with someone to pick up the refrigerator.     Defendant

further stated that he could turn around and sell the

refrigerator for $400.    Jacqueline Thompson testified that her

mobile home at 136 Oak Grove Road was broken into the morning

of 24 May 1999 and a refrigerator was stolen worth more than

one thousand dollars ($1,000.00).     Ms. Thompson did not occupy

the mobile home at the time it was robbed.

                              ARGUMENT

  I.     THE TRIAL COURT ERRED BY REPLACING A JUROR WITH THE

         ALTERNATE JUROR AFTER DELIBERATINS BEGAN.

         Assignment of Error 2, Record page 26


       The trial court violated statutory and common law of

North Carolina in the present case by replacing a juror with

the alternate after deliberations began.




                                -3-
      The transcript reveals that the trial began on Tuesday,

23 July 2002, and the jury began deliberating that same

afternoon.   The court charged the jury on transcript pages 29-

35.   On page 35, the court instructed the jury to retire to

the jury room to begin deliberating, but did not release the

alternate, Ms. Murray.    The court noted “I don‟t like to

release alternates until I get a verdict.    You never know what

might happen.” (Tp. 35, line 24-25).    The court instructed the

jury to go home later that day, and return the next morning at

9:30 a.m. (Tp. 37, line 20).

      The transcript indicates that the jury returned the next

morning, Wednesday, 24 July 2002, (Tp. 37, line 22), whereupon

the court replaced one of the jurors with the alternate.     The

transcript of the in-camera proceeding indicates that the

morning of Wednesday, 24 July 2002, one of the jurors reported

that she had discussed the case with someone (In camera

proceeding transcript, pp. 1-5), and the court replaced this

juror with the alternate (Tp. 37-38), even though

deliberations had begun the day before.     Again the court noted

to the alternate, “..see why I had you stick around.     You just

never know what is going to happen and when. ”    (Tp. 37, lines

26-27).   Additionally, a sheet entitled “Jurors Verdict” in

the court file indicates that Juror #7 was replaced with

alternate Juror # 13.    (R. p. 16)


                                -4-
    There is no question that one of the jurors was replaced

by the alternate after deliberations had begun. This action by

the trial court violated the N.C. Constitution, and statutory

and common law of this State.   Article I, Section 24 of the

North Carolina Constitution, which guarantees the right to

trial by jury, contemplates no more or no less than a jury of

twelve persons.   In State v. Bunning, 346 N.C. 253, 256, 485

S.E.2d 290, 292 (1997), the North Carolina Supreme Court held

that the constitutional requirement of trial by a jury of

twelve was violated by substitution of an alternate juror for

an incapacitated juror after jury deliberations had started,

resulting in a verdict rendered by eleven jurors plus two

jurors who each participated partially.   See also State v.

Bindyke, 288 N.C. 608, 623, 220 S.E.2d 521, 531 (1975)

(holding that an alternate‟s presence in the jury room for a

brief period at the beginning of jury deliberations was a

violation of this constitutional right); State v. Hudson, 280

N.C. 74, 79, 185 S.E.2d 189, 192 (1971) (holding that

notwithstanding defendant's consent, the verdict was a nullity

where the trial court proceeded to verdict with a jury of

eleven).

    Our statutes require that alternate jurors in criminal

cases “must be discharged upon the final submission of the

case to the jury.”   N.C.G.S. § 15A-1215(A)(2002).   Likewise,


                                -5-
alternate jurors in civil cases must also be discharged when

the case is submitted to the jury.     N.C.G.S. § 9-18 (2002).

Justice Webb, writing for the court in Bunning, noted that

“[I]f alternate jurors must be discharged when the case is

submitted to the jury [under N.C.G.S §15A-1215(a)], they

cannot be substituted for jurors who subsequently become

incapacitated.”     Bunning, 348 N.C. at 256, 485 S.E.2d at 292

(emphasis added).

      Bunning is directly on point. A verdict was rendered in

the present case by eleven jurors, plus two jurors who each

participated partially in deliberations.    The fact that the

defendant did not object to this substitution of the alternate

juror at trial is of no consequence.     Bunning held that a

“trial by a jury which is improperly constituted is so

fundamentally flawed that the verdict cannot stand” and the

harmless error standard does not apply.     Bunning, 346 N.C. at

257, 485 S.E.2d at 292.    In State v. Bindyke, this Court held

that a violation of a defendant‟s constitutional right to have

the verdict determined by twelve jurors constituted error per

se.   Bindyke, 288 N.C. at 627, 220 S.E.2d at 533.    See also

State v. Ashe, 314 N.C. 28, 39, 331 S.E.2d 652, 659 (1985).

When a trial court acts contrary to a statutory mandate, the

defendant‟s right to appeal is preserved despite the




                                 -6-
defendant‟s failure to object during trial. See State v.

Jones, 336 N.C. 490, 497, 445 S.E.2d 23, 26 (1994).

    Based on the foregoing, the trial court committed

constitutional and plain error and acted contrary to statutory

mandate, and accordingly, this Court should reverse and remand

this case for a new trial.


    II.   THE TRIAL COURT ERRED IN FAILING TO CONDUCT A VOIR

          DIRE HEARING AND IN ADMITTING INTO EVIDENCE THE IN-

          CUSTODY STATEMENT OF DEFENDANT, A VIOLATION OF HIS

          MIRANDA RIGHTS.

          Assignment of Error 7, Record page 27


    During the trial in the present case, Officer Little

  indicated that he questioned defendant at the sheriff‟s

  office in the early morning hours of 24 May 1999.      Defendant

  objected to Officer Little testifying as to defendant‟s 24

  May 1999 in-custody statement.    (Tp. 17, line 20).   The

  court allowed Officer Little to testify in regards to

  defendant‟s in-custody, hearsay statements (see Tpp. 17-19);

  therefore, defendant‟s in-custody statement was admitted

  into evidence for the jury‟s review.

       A suspect who is subjected to custodial interrogation

  is entitled under the Fifth Amendment of the United States

  Constitution, made applicable to the states through the


                              -7-
Fourteenth Amendment, to be informed that he has the right

to remain silent, that any statement he does make may be

used as evidence against him, and that he is entitled to

have an attorney present during questioning, either retained

or appointed. Miranda v. Arizona, 384 U.S. 436, 444, 16 L.

Ed. 2d 694, 706-07 (1966); Malloy v. Hogan, 378 U.S. 1, 12

L. Ed. 2d 653 (1964). Once informed of his rights, the

suspect may voluntarily, knowingly, and intelligently waive

them, however, failure to inform a suspect of his rights

renders his statements inadmissible. Miranda, 384 U.S. at

444, 16 L. Ed. 2d at 707. “Custodial interrogation” refers

to “questioning initiated by law enforcement officers after

a person has been taken into custody or otherwise deprived

of his freedom of action in any significant way.” Id.; State

v. Thomas, 284 N.C. 212, 216, 200 S.E.2d 3, 7 (1973).

     Officer Simmons testified that he arrested defendant

and took him into custody in the early morning hours of 24

May 1999 (Tp. 10, line 26), but did not testify that he read

defendant his Miranda rights.     Officer Little indicated he

had a conversation with defendant later that same morning at

the Law Enforcement Center Sheriff‟s Office. (Tp. 17, lines

3-5).   Nothing in the record, the transcript, or the

testimony of Officers Simmons and Little indicates that

defendant was read his Miranda rights prior to questioning


                            -8-
by Officer Little, (Tpp. 16-17), or that defendant

voluntarily, knowingly, and intelligently waived his Miranda

rights.   The trial court made no findings that defendant had

been read his Miranda rights prior to questioning by Officer

Little.

    After defendant objected to admission of his in-custody

statement, the trial court was obliged to make a

determination as to whether his statement was the result of

a constitutional violation.    “When the admissibility of an

in-custody confession is challenged[,] the trial judge must

conduct a voir dire to determine whether the requirements of

Miranda have been met and whether the confession was in fact

voluntarily made.”   State v. Riddick, 291 N.C. 399, 408, 230

S.E.2d 506, 512 (1976).   “At the conclusion of the hearing,

the trial judge should make findings of fact setting out the

basis for his ruling.” State v. White, 298 N.C. 430, 436,

259 S.E.2d 281, 285 (1979).    “[A] trial judge, in

determining whether a confession is voluntary, must make

findings of fact resolving all material conflicts in the

evidence.”   State v. Richardson, 316 N.C. 594, 600, 342

S.E.2d 823, 828 (1986).   “Whether a trial court‟s findings

support a conclusion that the confession was voluntarily

made is, however, a question of law properly reviewable on

appeal.” Id. at 600-01, 342 S.E.2d at 828.


                              -9-
  The trial court in the present case erred in failing to

conduct a voir dire hearing and make findings of fact as to

whether defendant‟s “confession” to involvement in the

alleged crimes was in violation of his Miranda rights.

Therefore, it was error for the trial court to admit the

defendant‟s statement into evidence.   The State failed to

present any basis for the admission of defendant‟s in-

custody statement, as it did not show that defendant had

been read his Miranda rights, or that the defendant had

legitimately waived his Miranda rights.   Therefore, Officer

Little‟s hearsay testimony of what defendant said to him in

custody was inadmissible evidence, and a violation of his

Miranda rights.

  In State v. Phelps, COA 02-149 (Feb. 18, 2003) this Court

has held that whether or not improperly admitted statement

of defendant requires a new trial is the “harmless error”

standard under N.C. Gen. Stat. § 15A-1443(b) (2001), which

provides:


    A violation of the defendant's rights under the
    Constitution of the United States is prejudicial unless
    the appellate court finds that it was harmless beyond a
    reasonable doubt. The burden is upon the State to
    demonstrate, beyond a reasonable doubt, that the error
    was harmless.

In the present case, the only evidence that the defendant

was involved in the crime in question was the testimony of


                           - 10 -
Officer Little as to defendant‟s in-custody statement.

While Officer Simmons testified that defendant was present

at the scene of the crime, it does not indicate that

defendant actually committed any element of the crimes for

which defendant was convicted.        The evidence that defendant

was present at the scene of the crime loses it significance

when you consider the evidence that defendant has no eye in

either eye socket and is completely blind (Tpp. 11, 21; Rp.

11).    Thus, he could be at the scene of a crime and not even

realize it.

       In order for an Appellate Court to conclude that the

State has met its burden of proving that the error was

harmless beyond a reasonable doubt, the Court must be

convinced “that „there is no reasonable possibility‟ that

the erroneous admission of [defendant‟s in-custody

statement] „might have contributed to the conviction.‟”

State v. Hooper, 318 N.C. 680, 682, 351 S.E.2d 286, 288

(1987) (quoting State v. Castor, 285 N.C. 286, 292, 204

S.E.2d 848, 853 (1974)). The presence of overwhelming

evidence of guilt [excluding the in-custody statement] may

render a constitutional error harmless beyond a reasonable

doubt. State v. Autry, 321 N.C. 392, 400, 364 S.E.2d 341,

346 (1988).    The State‟s evidence as to whether defendant

committed the crimes in question, when excluding defendant‟s


                             - 11 -
  in-custody statement, is scant and hardly overwhelming.

  Because Officer Little‟s hearsay testimony is the only

  evidence that establishes that defendant might be the

  perpetrator for these crimes, its admission cannot be

  considered harmless.   Accordingly, defendant is entitled to

  a new trial.



    III. THE TRIAL COURT ERRED IN FAILING TO DISMISS ALL

         CHARGES DUE TO A FATAL VARIANCE BETWEEN THE

         INDICTMENT AND THE EVIDENCE AT TRIAL.

         Assignment of Error 8, Record page 27
         Assignment of Error 10, Amended Record


   Defendant, at the close of State‟s evidence, asked the

court to dismiss all charges.     While he did not specifically

ask that the charges be dismissed due to a fatal variance

between the indictment and the evidence, a defendant on appeal

may challenge an indictment on the grounds that the indictment

is insufficient to support the offense of which defendant was

convicted, even when the defendant failed to challenge the

indictment on this basis at trial. State v. Wilson, 128 N.C.

App. 688, 691, 497 S.E.2d 416, 419, disc. review improvidently

allowed, 349 N.C. 289, 507 S.E.2d 38 (1998).

    The indictment at issue in the present case in

insufficient in its description of the building at which the


                                - 12 -
alleged break-in occurred. The indictment states that

defendant committed the crimes of felonious breaking and

entering and felonious larceny at a house “occupied by

Jacqueline Thompson, used as a dwelling house, located at 170

Oak Grove Church Road, Lumberton North Carolina….”    (Rp. 7)

(emphasis added).   The testimony of Ms. Thompson at trial

indicated that she and no one else dwell[ed] in the mobile

home at the time it was allegedly robbed (Tp. 13, lines 19-

20); and, furthermore, the subject mobile home is located at

“136 Oak Grove Church Road.” (Tp. 13, line 25)(emphasis

added).   No evidence at trial indicated the mobile home was

located at 170 Oak Grove Road, or that it was inhabited by Ms.

Thompson at the time of the break-in.   Thus, there is a fatal

variance between the evidence, which indicates the house was

uninhabited and vacant and located at “136 Oak Grove Church

Road” and the indictment, which states that the house was

occupied by Jacqueline Thompson at the time it was robbed, and

that it was located at “170 Oak Grove Church Road.”

    The State, in an indictment, must “identify the building

with reasonable particularity so as to enable the defendant to

prepare his defense and plead his conviction or acquittal as a

bar to further prosecution for the same offense.” State v.

Carroll, 10 N.C. App. 143, 145, 178 S.E.2d 10, 12 (1970).

Ideally, an indictment for violation of N.C. Gen. Stat. § 14-


                              - 13 -
54 should “identify the subject premises by street address,

highway address, or other clear designation.” State v. Melton,

7 N.C. App. 721, 724, 173 S.E.2d 610, 613 (1970).    A variance

occurs where the allegations in an indictment, although they

may be sufficiently specific on their face, do not conform to

the evidence actually established at trial. See 41 Am. Jur. 2d

Indictments and Informations § 257 (1995).   In order for a

variance to warrant reversal, the variance must be material.

State v. McDowell, 1 N.C. App. at 365, 161 S.E.2d at 771

(1968) (“[i]t is the settled rule that the evidence in a

criminal case must correspond with the allegations of the

indictment which are essential and material to charge the

offense”).

    In the present case, there is a fatal variance between

the evidence and the indictment as to (1) the address and

location of the building that was robbed, and   (2) whether or

not the building was occupied by Jacqueline Thompson at the

time the offenses occurred, and (3) whether or not the

building was inhabited at the time the offenses occurred.      The

location and the occupant of the building are material

concerns, because these factors are essential factors in

identifying the building with reasonable particularity to as

to enable defendant to prepare his defense, in accordance with

the precedent established in Carroll and Melton.    Assuming


                             - 14 -
defendant was preparing his defense based on this indictment,

it was essential that he know whether or not the building was

inhabited and its exact location.      Since defendant is blind,

he relies on others, and he cannot see locations, house

numbers, or whether a home in inhabited or not.      Defendant

would have prepared his defense for an inhabited home located

at 170 Oak Grove Church Road, when in actuality, the home

actually was vacant with no furniture, and located at 136 Oak

Grove Church Road.   Under this scenario, defendant could be

indicted and charged again for the same crime occurring at two

very different places.   In this case, particularity in the

indictment is very important because defendant was indicted 2

years and 4 months after the alleged break-in occurred.      When

so much time had passed between the criminal act and the

indictment, it was imperative that the building be described

with sufficient particularity, especially since this defendant

had been indicted for the same crime, case number 10985, at

“125 Midway Road for a building occupied by Tony James

Hammonds” on August 13, 2001. (See Addendum).      The indictments

in the addendum were “superceded” by the indictments contained

in the Record at pages 6 and 7 in the present appeal (Rpp. 6-

7).

      The indictment in the present case did not allow

defendant to prepare his defense and plead his conviction or


                              - 15 -
acquittal as a bar to further prosecution for the same

offense. See Carroll, 10 N.C. App. 143, 145, 178 S.E.2d 10.

When the indictment failed to identify the subject premises by

street address, highway address, or other clear designation,

it will not support the conviction and defendant is entitled

to a new trial.   State v. Melton, 7 N.C. App. 721, 173 S.E.2d

610 (1970).   Accordingly, the judgment on all these

convictions must be vacated and the defendant given a new

trial.


    IV.   THE TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION

          TO DISMISS AT THE CLOSE OF STATE’S EVIDENCE.

          Assignment of error 3, Record page 26

    When ruling on a motion to dismiss, the trial court must

consider the evidence in the light most favorable to the

State; and the State is entitled to every reasonable inference

to be drawn therefrom. State v. Lee, 348 N.C. 474, 488, 501

S.E.2d 334, 343 (1998). The State must present substantial

evidence of each element of the offense charged.   Id. “[T]he

trial court should consider all evidence actually admitted,

whether competent or not, that is favorable to the State.”

State v. Jones, 342 N.C. 523, 540, 467 S.E.2d 12, 23 (1996).

If the evidence “is sufficient only to raise a suspicion or

conjecture as to either the commission of the offense or the



                              - 16 -
identity of the defendant as the perpetrator, the motion to

dismiss must be allowed,” State v. Malloy, 309 N.C. 176, 179,

305 S.E.2d 718, 720 (1983); however, “[i]f there is

substantial evidence--whether direct, circumstantial, or both-

-to support a finding that the offense charged has been

committed and that the defendant committed it, the case is for

the jury and the motion to dismiss should be denied,” State v.

Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 383 (1988).

    “The essential elements of felonious breaking or entering

are (1) the breaking or entering (2) of any building (3) with

the intent to commit any felony or larceny therein.” State v.

Litchford, 78 N.C. App. 722, 338 S.E.2d 575 (1986) (citing

N.C.G.S. 14-54(a)).   “The essential elements of larceny are

that the defendant: 1) took the property of another; 2)

carried it away; 3) without the owner's consent; and 4) with

the intent to deprive the owner of the property permanently.”

State v. Pickard, 143 N.C. App. 485, 490-91, 547 S.E.2d 102,

106, disc. review denied, 354 N.C. 73, 553 S.E.2d 210 (2001).

Additionally, N.C. Gen. Stat. § 14-72(a) (1999) establishes

that larceny is felonious where value of stolen goods is at

least $1,000.00.   “A criminal conspiracy is „an agreement

between two or more persons to do an unlawful act or to do a

lawful act in an unlawful way or by unlawful means.‟” State v.

Tabron, 147 N.C. App. 303, 306, 556 S.E.2d 584, 586 (2001).


                              - 17 -
(quoting State v. Bindyke, 288 N.C. 608, 615, 220 S.E.2d 521,

526 (1975)).

      The evidence, when considered in the light most favorable

to the State, indicates that Officer Simmons saw defendant

standing beside a truck that had a refrigerator placed on it

outside the mobile home located at 136 Oak Grove Road on the

morning of May 24, 1999.    Two individuals ran away when

Officer Simmons pulled up to the home. (Tp. 7, line 11).     The

truck belonged to Mr. Howell, father of Montray Howell, who

was one of the individuals who fled the scene. (Tp. 19, line

2).    After being taken into custody, defendant stated to

Officer Little that two individuals came to his and his

girlfriend‟s house and offered to sell them a refrigerator for

$100, that he could turn around and sell the refrigerator for

$400, and that after this conversation, defendant went with

someone to pick up the refrigerator.    The defendant is blind.

The victim stated that she “guessed” the refrigerator that was

taken “cost a little over a thousand dollars.”    (Tp. 15, line

4)    Ms. Thompson did not really know the cost, and limited her

estimate as testified that the refrigerator was furnished by

the mobile home dealer from whom she purchased the home. (Tp.

17, lines 4-5).

      The evidence, when taken in the light most favorable to

the state, does not satisfy the elements of conspiracy,


                               - 18 -
felonious breaking and entering, or felonious larceny.   There

was no evidence that defendant (1) broke into the mobile home

with the intent to take the refrigerator, (2) took the

refrigerator, or (3) entered in a conspiracy to break into the

mobile home and take the refrigerator.   No credible evidence

supported the theory that the refrigerator cost one thousand

dollars or more.   Accordingly, defendant‟s conviction on all

the abovementioned charges, including habitual felon, should

be reversed.



    V.   THE DEFENDANT DEPRIVED OF EFFECTIVE ASSISTANCE OF

         COUNSEL, IN VIOLATION OF THE SIXTH AMENDMENT OF THE

         CONSTITUTION OF THE UNITED STATES.

         Assignment of Error 9, amended record



    In all criminal prosecutions, an accused has the right to

have the Assistance of Counsel for his defense.   U.S. Const.

Amend. VI.   To prevail on an ineffective assistance of counsel

claim, Defendant must satisfy a two-pronged test.   First,

Defendant must show that his counsel‟s performance fell below

an objective standard of reasonableness.   State v. Braswell,

312 N.C. 553, 561-62, 324 S.E.2d 241, 248 (1985).   Secondly,

Defendant must demonstrate that any error by counsel was so

serious that there is a reasonable probability that the result


                              - 19 -
of the trial would have been different absent the error.

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052,

80 L.Ed.2d 674, 693, reh’g denied, 467 U.S. 1267, 104 S.Ct.

3562, 82 L.Ed.2d 864 (1984).

      Defendant meets the foregoing two-prong test due to

counsel‟s failure to ask for a dismissal of the case due to a

fatal variance between the indictment and the evidence.                 (See

Argument III above).      If counsel had made the motion and the

court had granted this motion, which it should, (See Argument

III above), there is no other possibility than that defendant

would not have been found guilty because the case would have

been dismissed.

      Additonally,     should   this    court       find   that    defendant‟s

counsel failed to adequately object to the admission of his

in-custody statement (Tp. 17, line 20), defendant meets the

foregoing two-prong test due because there is more than a

reasonable probability that the result of trial would have

been different absent the error.             As stated earlier, there was

no   evidence   that   committed    a       crime   beyond   the   in-custody

statement detailed in Officer Little‟s testimony; thus, under

the standard of review of the totality of the evidence, See

State v. Braswell, 312 N.C. 553, 561, 324 S.E.2d 241, 248

(1985),   the jury most probably would have come to a different

verdict had the statement not been admitted into evidence.


                                   - 20 -
                          CONCLUSION

    Based on the foregoing errors, Defendant requests that

this Court reverse the judgment of the trial court and grant

him a new trial.

    Respectfully submitted, this the 18th day of March, 2003.



                         _______________________________
                         A. Michelle FormyDuval
                         Attorney for Defendant
                         609 S. Franklin St., Suite 201
                         Whiteville, NC 28472
                         N.C. Bar No. 23106




                             - 21 -
               CERTIFICATE OF FILING AND SERVICE

     I hereby certify that I have this day filed the foregoing
brief by U.S. Mail, postage prepaid, properly addressed to Mr.
John Connell, Clerk of Court, North Carolina Court of Appeals,
as provided in the Rules of Appellate Procedure.

     I further certify that I have this day served a copy of
the foregoing brief upon the State, by U.S. Mail, postage
prepaid, properly addressed, as follows:


               Michael D. Youth
               Associate Attorney General
               NC Department of Justice
               PO Box 629
               Raleigh, NC 27602-0629


This the 18th day of March, 2003.


                              ________________________
                              A. Michelle FormyDuval
                              Attorney for Defendant
                              609 S. Franklin St., Suite 201
                              Whiteville, NC 28472
                              N.C. Bar No. 23106




                              - 22 -

								
To top