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					NO.   COA08-1145                           DISTRICT TEN

                    NORTH CAROLINA COURT OF APPEALS

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

STATE OF NORTH CAROLINA          )
                                 )
             VS.                 )    From Wake
                                 )    07 CRS 45827-28
VICTORIA GRAHAM GOODE            )

        ***************************************************
                        QUESTIONS PRESENTED
        ***************************************************

      I.     WAS MS. GOODE DENIED EFFECTIVE ASSISTANCE OF COUNSEL
             WHEN HER LAWYER CONCEDED IN OPENING STATEMENT AND
             THROUGHOUT THE TRIAL THAT MS. GOODE WAS GUILTY OF
             SECOND DEGREE MURDER WITHOUT HER PERMISSION TO MAKE
             THAT CONCESSION AND DESPITE HER TESTIMONY TO THE
             CONTRARY?

      II.    DID THE TRIAL COURT COMMIT REVERSIBLE ERROR BY FAILING
             TO INSURE THAT MS. GOODE WAS COMPETENT FOR TRIAL
             THROUGHOUT ALL THE PROCEEDINGS?

      III. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR BY
           APPLYING TRANSFERRED INTENT TO THE INSTRUCTION OF
           ATTEMPTED FIRST DEGREE MURDER?

      IV.    DID THE TRIAL COURT COMMIT REVERSIBLE ERROR BY
             INSTRUCTING THE JURY, OVER THE DEFENDANT’S OBJECTION,
             THAT IT COULD FIND MS. GOODE GUILTY OF FIRST DEGREE
             MURDER BASED ON THE FELONY MURDER RULE WHEN THE
             INSTRUCTION WAS ERRONEOUS AS A MATTER OF LAW?
                                  2




                        STATEMENT OF THE CASE

        Ms. Goode was charged with murder on 1 July 2007 and

indicted on 24 July 2007.    The matter was tried before a jury

during the 24 March 2008 Criminal Session of the Superior Court

of Wake County, the Honorable Orlando F. Hudson, Jr., Judge

Presiding.    Ms. Goode was found guilty of first-degree murder and

attempted first-degree murder.   The trial court imposed a

sentence of life in prison.    Ms. Goode gave notice of appeal in

open court on 27 March 2008.

    The transcript was ordered on that day and mailed to counsel

on 7 May 2008.    Honorable Henry W. Hight, Jr., entered an order

extending the time to serve a proposed record until 11 July 2008.

On 17 July 2008, this Court extended that deadline until 4 August

2008.   The parties settled the record by stipulation on 3

September 2008. The record was filed on 12 September and docketed

24 September 2008.

    The printed record on appeal was mailed on 26 September

2008.     This court extended the time to file a brief until 26

November 2008, by an order dated 29 October 2008.

             STATEMENT OF GROUNDS FOR APPELLATE REVIEW

    This appeal is an appeal of right pursuant to N.C.G.S.§§7A-

27(b), 15A-1444(a) and Rule 4(a) of the Rules of Appellate

Procedure.
                                   3




            STATEMENT OF STANDARD FOR APPELLATE REVIEW

    Ms. Goode’s claim in Issue I that she was denied effective

assistance of counsel because counsel conceded guilt to second-

degree murder is a fundamental constitutional error requiring

reversal per se.     State v. Harbison, 315 N.C. 175, 337 S.E.2d 504

1985.   The trial court’s findings of fact and conclusions of law

as to a defendant’s capacity to proceed are reviewed for an abuse

of discretion. State v. Reid, 38 N.C. App. 547, 248 S.E.2d 390

(1978). Where the record lacks findings and conclusions, however,

the issue is reviewed de novo.    State v. Davis, 349 N.C. 1, 506

S.E.2d 455 (1998).    Ms. Goode’s claims that the trial court’s

instructions to the jury were erroneous in Issues III and IV are

reviewed de novo. State v. Brown, 117 N.C.App. 239, 241, 450

S.E.2d 538, 540 (1994)

                        STATEMENT OF THE FACTS

The Crime Scene

    Around 12:30 p.m. on 1 July 2007, Officer Todd Brown of the

Raleigh Police Department responded to a report of a hit and run

accident on Bently Lane in Raleigh.     On the way to the scene, the

dispatcher reported that a blue Toyota Camry had run over people

and left the scene.    At the scene, Officer Brown discovered

Veronica Malone lying, seriously injured, on Bently Lane in front

of a sport utility vehicle (SUV).      Her fifteen-year-old nephew,

D.M., was behind the SUV with serious injuries.     Officer Brown
                                 4


discovered that the driver of the blue Camry was Victoria Goode,

the defendant in this case.

    While Officer Brown was discussing the crime scene with

Detective Snowden, Detective Snowden overheard a woman having a

heated discussion with someone over a phone.    Detective Snowden

learned that the woman was speaking to Ms. Goode.   Detective

Snowden was able to speak to Ms. Goode, who directed him to her

location.

Ms. Goode’s Testimony

    Victoria Goode and Tanya Mattison had been in a romantic

relationship and living together for several years on Bently Lane

in Raleigh.   After returning from vacation in late June 2007, Ms.

Mattison informed Ms. Goode that she was leaving the

relationship. Ms. Goode wanted to save the relationship and was

saddened by Ms. Mattison’s decision to leave.

    On the morning of 1 July 2007, Ms. Goode left her home

driving a blue Toyota Camry.   She drove around for a while to

gather her thoughts and spend some time alone.   After a while,

Ms. Goode decided to return to the home she shared with Ms.

Mattison.   As she returned to Bently Lane, Ms. Goode noticed that

Veronica Malone’s car was parked in front of her home.

    Ms. Goode was aware that Ms. Mattison had been romantically

involved with Ms. Malone over a period during the prior year, and

Ms. Goode was unhappy when she saw Ms. Malone’s car in front of

her home.   Ms. Goode never saw Ms. Malone or anyone else near the
                                  5


car.    When Ms. Goode stopped her car near her home, she exited

and fell to the ground.    After a brief argument with Ms.

Mattison, Ms. Goode returned to her car and drove away.

       Ms. Goode denied seeing either Ms. Malone or D.M. standing

near Ms. Malone’s car and testified that she did not

intentionally hit or attempt to hurt anyone.    Further, Ms. Goode

denied telling the detectives that she snapped and hit Ms.

Malone’s car in a fit of rage.

The Investigators’ Testimony

       Investigators with the Raleigh Police Department interviewed

Ms. Goode on 1 July 2007 after arresting her in connection with a

vehicle collision that killed Ms. Malone and broke D.M.’s legs.

The investigators testified that Ms. Goode told them that she was

angry because Ms. Mattison was leaving their relationship.    Ms.

Goode went to a park to think.    Ms. Goode told the investigators,

according to their testimony, that she became angry when she

returned to find Ms. Malone at her home.    Her foot slipped as she

drove past Ms. Malone’s car.     Ms. Goode told the investigators

that she hit the car door, but denied intentionally hitting

anyone.    According to the investigators, Ms. Goode grabbed a tire

tool as she got out of the car.

Witnesses at the Scene

       D.M. was helping his aunt, Veronica Malone, move Ms.

Mattison’s possessions from her home on 1 July 2007.    Ms. Malone

parked her Dodge Durango in front of a home on Bently Lane.
                                  6


Shortly after they arrived, D.M. was standing near the back of

the car, and Ms. Malone was standing at the back left door when a

blue Toyota Camry struck the door of the Durango.    D.M. saw his

aunt lying on her back and ran inside to call 911.

     After he returned from the house, D.M. saw a woman whom he

identified as Ms. Goode running down the street with two items in

her hands.   She was yelling, “I’m going to kill that bitch.”   Ms.

Mattison intercepted the woman and wrestled her to the ground.

     D.M. returned to his aunt’s side.   While trying to help her,

he saw the blue Camry coming toward him.   Unable to move, D.M.

was hit and landed near the back left tire of the car.   He was

transported to Wake Medical and treated for broken legs.    While

there, D.M. learned that his aunt died from her injuries.




                             ARGUMENTS

I.   MS. GOODE WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL
     WHEN HER LAWYER CONCEDED IN OPENING STATEMENT AND
     THROUGHOUT THE TRIAL THAT SHE WAS GUILTY OF SECOND
     DEGREE MURDER WITHOUT MS. GOODE’S PERMISSION TO MAKE
     THE CONCESSION AND DESPITE HER TESTIMONY TO THE
     CONTRARY.

     ASSIGNMENTS OF ERROR NO. 8
                                         7


    T   p   3, line 2      through T p 7, line 8
    T   p   41, lines      9-10
    T   p   283, line      7 through T p 362, line 4
    T   p   369, line      18 through T p 370, line 13
    R   p   66

    Counsel’s admission in front of the jury that his client is

guilty of an offense without getting the client’s knowing consent

constitutes ineffective assistance of counsel. State v. Harbison,

315 N.C. 175, 180, 337 S.E.2d 504, 507-08 (1985).              Under this

circumstance, the client is not required to show any specific

prejudice.     Id.        Because the state is relieved of its burden of

proof and the client’s right to a fair trial is denied, prejudice

is presumed.        Id.     “The practical effect is the same as if

counsel had entered a plea of guilty without the client’s

consent.”     Id.     Such admissions are per se violations of the

client’s Sixth Amendment right to effective assistance of

counsel, entitling the client to a new trial.            Id.    Any decision

to concede guilt must be made “exclusively by the defendant,”

State v. Matthews, 358 N.C. 102, 109, 591 S.E.2d 535, 540 (2004)

(quoting Harbison, 315 N.C. at 180, 337 S.E.2d at 507), and the

the authority is limited by the scope of the defendant’s knowing

and voluntary consent based on a full appreciation of the

consequences.        See State v. McDowell, 329 N.C. 363, 386, 407

S.E.2d 200, 213 (1991).

    Before trial began, Ms. Goode’s lawyer informed the trial

court that he intended to concede Ms. Goode’s guilt to homicide

less than first degree murder, without mentioning a specific
                                  8


offense or describing his discussions with Ms. Goode about the

strategy.    The trial court’s subsequent inquiry and findings

included the following:

                 Your lawyer has indicated to the Court …
            that he is going to argue to the jury that
            you may have caused the death of … Ms.
            Malone, but that it was not first degree
            murder and that he may argue to the jury that
            they can consider some lesser offense, I
            presume less than first degree murder.

            T p 3

            The only issue before the Court is whether or
            not you will allow your lawyer to proceed
            with this trial strategy. That is, argue that
            you may be guilty of some offense other than
            first degree murder.

            T p 4

            [T]he lawyer for the defendant, has addressed
            the Court in open court in the presence of
            the defendant that as a trial strategy he may
            argue to the jury, with the consent of the
            defendant, that she might be guilty of some
            lesser offense other than first degree
            murder.

            The Court has explained this situation to the
            defendant and given her an opportunity to
            respond.

            The Court finds as a fact, and concludes as a
            matter of law, that the defendant consents to
            this trial strategy used by her lawyer …that
            if she is guilty of anything at all, that it
            is some lesser included offense other than
            first degree murder.

            T pp 6-7

    While counsel indicated that he would concede that Ms. Goode

was guilty of some offense less than first degree murder, he

failed to offer the trial court any specifics prior to the trial
                                   9


court questioning Ms. Goode.    Likewise, the trial court’s

questions were unspecific.     Without giving an example, the trial

court asked Ms. Goode if she understood that her lawyer may admit

that she is guilty of something less than first degree murder.

Nothing counsel, the trial court, or Ms. Goode said on the record

indicates whether Ms. Goode had any idea what sort of offense

counsel would concede or understood the consequences of any

concession.

    During opening statement, however, counsel argued to the

jury that his client was guilty of second-degree murder.

              What Victoria Goode did was a very
         serious crime, but it was not first degree
         murder.

         T p 32

              But I will remind you that what you are
         going to be called upon to decide is what
         crime did Victoria Goode commit. And I say
         that this case is about Victoria Goode
         because it’s more than just about what she
         did out there that day.

              It’s about what going in her mind as she
         did it. What was her state of mind[?] What
         was her intent[?]

         T p 33

              As Victoria rounded the bend on Bentley
         Drive … where she could see her home … [s]he
         saw a Dodge Durango sitting in the street
         next to her house and she realized that it
         was Veronica’s vehicle and she went into a
         blind rage.

         T pp 39-40

              She is going to testify that she
         remembers hitting the door of that vehicle,
                                 10


            that she didn’t realize that anybody was
            between the door and the vehicle. That she
            didn’t mean to hit Veronica.

                 But she will tell you that she didn’t
            intend to hit her. [D.M.] never came into
            her mind. She certainly did not attempt to
            kill [D.M.] She did not attempt to murder
            him.

                 She snapped, she lost it and it cause
            Veronic Malone to die.

            T p 40

                 And because of her state of mind, after
            you hear all this evidence, and after you
            hear what the judge has to say, I am going to
            come back up here and ask you to find
            Victoria Goode guilty of exactly what she is
            guilty of, and that’s second degree murder.

            T p 41 (emphasis added)

       In her testimony, Ms. Goode admitted hitting Ms. Malone, but

expressly denied hitting her intentionally.    Actually, Ms. Goode

testified that she never saw Ms. Malone or D.M. and would have

never hit or intentionally harmed a person.    While she was

unhappy to see the car, she had no intention of striking it, much

less Ms. Malone.

       Counsel recognized that Ms. Goode’s denial created a factual

dispute as to whether she had any intent to strike Ms. Malone and

D.M.    During the charge conference, counsel argued that the trial

court was obligated to submit involuntary manslaughter as a

lesser-included offense to first-degree murder.

                 Even though I have staked myself out as
            a matter of trial strategy and I am not
            backing up on my trial strategy. I intend to
                                 11


            argue to this jury that this woman’s guilty
            of second degree murder.

                 But she testified that she didn’t
            intentionally do any of this, that she never
            saw those people. Thereby I believe as a
            matter of law setting up a jury issue that if
            they were to believe that and to reject my
            argument, to cause them to find her guilty of
            involuntary manslaughter.

                 I mean I understand that in the grand
            scheme of this I know that that might strike
            somebody as ridiculous. And because it
            strikes me as ridiculous, I don’t intend to
            argue it.

                 But if they believe that, she is guilty
            of involuntary manslaughter….

            T pp 369-70 (emphasis added)

       Despite his client’s testimony to the contrary, counsel

continued with his agenda in closing argument.     Counsel argues to

the jury “in the heat of passion on July the 1st she took the

life of Veronica Malone.”    T p 383.   Counsel focuses on his

client’s mental state and calls her statement to the

investigators “nonsensical.”    T p 385.   Although she denied

seeing anyone near the car during her testimony, counsel focuses

on the portion of an investigator’s testimony that Ms. Goode

admitted seeing two men near the Durango.     Counsel concludes that

Ms. Goode was referring to Ms. Malone and D.M.     (“It was Veronica

and [D.M.]” T p 385), even though Ms. Goode denied ever seeing

anyone or telling the investigator that she saw someone near the

car.    Counsel alleges “[e]verybody agrees what happened.” T p

385.
                                  12


    Counsel directly confronts and undermines his client’s

testimony with his factual analysis and legal conclusions during

his closing argument.

               There might be some dispute about
          whether it was intentional, but there is not
          going to be any dispute about malice once you
          understand the legal definition of malice.
          So that’s not in dispute.

          T p 386

               They have got to prove beyond a
          reasonable doubt that she intended to kill
          Veronica.

               That might be in some dispute. But
          probably not.

          T p 387

According to counsel, the evidence adds up to second-degree

murder, despite his client’s testimony that she did not see

anyone standing near the car and had no intention of striking

anyone.   T p 397.

    While counsel raised the specter of conceding some form of

guilt and the trial court inquired as to Ms. Goode’s position,

there are a number of problems with the way the trial court and

counsel approached the concessions throughout the trial.    First,

counsel was unclear in his original disclosure as to what he

intended to concede.    Counsel stated that he intended to argue

that Ms. Goode was “guilty of homicide, but not first degree

murder” and told the trial court that his client had consented to

this strategy.   The trial court questioned Ms. Goode about this

issue, but without any details.    A number of questions remain
                               13


after counsel’s disclosure and the trial court’s inquiry,

including the extent of the discussions between counsel and Ms.

Goode, the scope of her consent, and her understanding, or lack

of understanding, of the consequences.

    “A concession of guilt by a defendant’s counsel has the same

practical effect as a guilty plea because it deprives the

defendant of [her] rights against self-incrimination.   State v.

Perez, 135 N.C. App. 543, 547, 522 S.E.2d 102, 106 (1999).    As

with a guilty plea, the defendant’s consent must be knowing,

voluntary and based on a full appreciation of the consequences of

conceding guilt.   See Boykin v. Alabama, 395 U.S. 238, 23

L.Ed.2d 274, 89 S.Ct. 1709 (1969).   While the authorization for

counsel to concede guilt does not require the same formalities as

a guilty plea, the trial court and counsel must insure that the

record is clear to insure that the authorization is valid.     State

v. House, 340 N.C. 187, 456 S.E.2d 292 (1995).

    While the record shows that Ms. Goode knew that counsel

would concede that she was guilty of something less than first-

degree murder, the record provides little insight into her

understanding of this waiver or its potential consequences.

Although Counsel notified the trial court that he would concede

homicide less than first-degree murder, he provided no specifics.

The trial court asked Ms. Goode if she had discussed the

strategy, but failed to investigate her understanding of the

strategy, the scope of counsel’s authority, or the consequences.
                                  14


Nothing in the record shows that Ms. Goode ever consented to her

counsel arguing that she was guilty of second-degree murder, as

opposed to some lesser form of homicide.

    The second problem is that counsel’s theory of the case was

inconsistent with his client’s testimony.    While counsel and

clients often have differing views about strategy and legal

conclusions, this scenario emphasizes Ms. Goode’s lack of

understanding about the consequences of counsel’s concession that

she committed second-degree murder.    Ms. Goode testified that she

never saw Ms. Malone or D.M. near the Durango.    She emphasized

throughout her testimony that she never intended to hit them and

would not intentionally hurt anyone.    Counsel recognizes that her

testimony differs from his strategy, but rejects her position,

calling it “ridiculous” during the charge conference.    T p 370.

Counsel’s closing argument that Ms. Goode was guilty of second-

degree murder in contradiction of her testimony that she never

intended to hit Ms. Malone or D.M. highlights the fact that her

concession was unknowing, involuntary or authorized without fully

understanding the consequences.    The record does not reflect the

extent of counsel’s authority or her understanding of the

strategy, and the closing argument clarifies the distinction

between counsel’s intentions and any authority Ms. Goode gave

counsel.

     A final problem is created by counsel’s argument in

relation to the trial court’s felony murder instruction.    The
                                15


state announced before trial that it was proceeding under the

theories of premeditation and deliberation and felony murder

based of a predicate felony of assault with a deadly weapon

inflicting serious injury.   T p 9.   Nothing in the record

indicates that Ms. Goode knew when she gave counsel consent to

argue homicide less than first-degree murder that she was

consenting to an argument that she was guilty of an intentional

act, at all.   As stated above, she denied any intentional act.      A

glaring problem with counsel’s strategy is that the concession to

an intentional act, hitting Ms. Malone in a rage, turned out to

be a concession to the underlying felony in support of felony

murder.

    The elements of assault with a deadly weapon inflicting

serious injury include an assault on another person with a deadly

weapon that inflicts serious injury.    An operator of a motor

vehicle can be convicted of an assault with a deadly weapon when

she actually intends to commit an assault with the car or

operates the car in a criminally or culpably negligent manner

from which intent can be implied.     State v. Eason, 242 N.C. 59,

65, 86 S.E.2d 774, 778 (1955). The state did not contend that,

nor did the trial court instruct the jury to consider whether,

Ms. Goode operated her car in a criminally negligent manner. In

fact, the North Carolina Supreme rejected this theory of felony

murder in State v. Jones, 353 N.C. 159, 538 S.E.2d 917 (2000).
                                  16


    The trial court instructed the jury that it could find Ms.

Goode guilty of first-degree murder on the basis of the felony

murder under the following circumstances:

              Members of the jury, if you find from
         the evidence beyond a reasonable doubt that
         on or about the alleged date the defendant
         intentionally assaulted the victim with a
         deadly weapon and inflicted serious injury,
         and that while committing or attempting to
         commit assault with a deadly weapon
         inflicting serious injury the defendant
         killed the victim, and that the defendant’s
         act was the proximate cause of the victim’s
         death, and that the defendant committed or
         attempted to commit assault with a deadly
         weapon inflicting serious injury with the use
         of a deadly weapon, then it would be your
         duty to return a verdict of guilty of first
         degree murder under the felony murder rule.
         (emphasis added)

         T p 433; R p 20.

While this instruction is legally incorrect and will be addressed

in a separate argument, it settles the issue as to whether

counsel had authority to argue that Ms. Goode committed second-

degree murder. See Jones, 353 N.C. at 170, 538 S.E.2d at 926 n.3

(assault on a single victim cannot be used as underlying felony

for purposes of felony murder).    Counsel’s argument was that Ms.

Goode intended to hit the victim, but did not deliberate or act

in a cool state of mind.    Ms. Goode did not consent expressly to

this argument, as the record makes clear.   Logically, she lacked

any incentive to authorize such an argument when the consequences

were to concede first-degree murder based on felony murder.    In

light of the trial court’s instructions on felony murder,
                                  17


conceding that his client committed second-degree murder was

tantamount to conceding that she committed assault with a deadly

weapon inflicting serious injury, the predicate offense for

first-degree felony murder.             Even if counsel was unaware

that the trial court would instruct the jury that it must find

Ms. Goode guilty of first-degree murder if she intended to

assault the deceased, the practical effect was to deny Ms. Goode

effective assistance of counsel.       Any authority to concede guilt

to an offense must be made voluntarily and knowingly with a full

appreciation of the consequences.       Perez, 135 N.C. at 548, 522

S.E.2d at 106.   Nothing in the record indicates that Ms. Goode

authorized her lawyer to concede second-degree murder under

circumstances that would leave the jury little choice but to

consider the concession an admission to the underlying felony

offered to support first-degree felony murder.

    The scope and specifics of any authorization were unclear.

The actual concession to second-degree murder was inconsistent

with Ms. Goode’s testimony.     Ultimately, even if unintentionally,

the concession to second-degree murder was a concession to first-

degree felony murder given the trial court’s erroneous

instructions to the jury.     For these reasons, Ms. Goode was

denied effective assistance of counsel in violation of the Sixth

and Fourteenth Amendments to the United States Constitution and

Article I, Sections 19 & 23 of the North Carolina Constitution.

She is entitled to a new trial.
                                 18


II.   THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING
      TO INSURE THAT MS. GOODE WAS COMPETENT FOR TRIAL
      THROUGHOUT ALL THE PROCEEDINGS.

      ASSIGNMENTS OF ERROR 3 & $
      T P 221, line 8 through T p 233, line 5
      R p 65

      Ms. Goode’s rights to due process under the Fifth and

Fourteenth Amendments to the United States Constitution and

Article I, Sections 19 & 23 of the North Carolina Constitution

were violated when the trial court failed to insure that she had

the mental capacity to understand the nature and object of the

proceedings, to consult with counsel, and assist in preparing her

defense during all phases of the trial.   During the trial,

counsel informed the trial court that Ms. Goode’s mental state

was deteriorating over the course of the morning.    At the lunch

break, counsel learned that Ms. Goode’s anti-anxiety medication

had been withheld by the jail.   After the parties and the trial

court agreed that Ms. Goode’s competency was in question, the

trial court recessed the trial until the next day.   The trial

court made no further inquiry before resuming the trial the next

morning.   T pp 221-30.

      A person’s whose mental capacity is in question may not be

subjected to trial.   Drope v. Missouri, 420 U.S. 162, 43 L.Ed.2d

103, 95 S.Ct. 896 (1975).   A trial court has a statutory and

constitutional duty to insure that a defendant is competent by

holding a hearing once the defendant’s competency is questioned.

State v. Heptinstall, 309 N.C. 231, 235, 306 S.E.2d 109, 112
                                19


(1983).   Counsel questioned Ms. Goode’s competency and indicated

that her condition had deteriorated throughout the day.    T p 221.

After the prosecutor conceded that he trusted counsel’s

conclusions on the issue, the trial court decided to recess the

trial until the following morning.   In the meantime, the jail

reported that Ms. Goode’s medication had been withheld

inadvertently.

    The trial resumed without any inquiry into Ms. Goode’s

mental status on the following morning.   The trial court failed

to follow up to insure that Ms. Goode received her medication.

More important, the trial court never conducted a hearing to

determine whether Ms. Goode was competent throughout the

proceedings on the prior day.   Under the circumstances, Ms.

Goode’s due process and statutory rights to insure that she had

the capacity to proceed at all times during the trial were

violated.   Because there is no way to insure that Ms. Goode

understood the nature of the proceedings, was able to consult

with counsel, and was able to assist in her defense during the

entire trial, she is entitled to a new trial. Drope v. Missouri,

420 U.S. at 183, 43 L.Ed.2d at 119, 95 S.Ct. at 909.

III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
     APPLYING TRANSFERRED INTENT TO THE INSTRUCTION OF
     ATTEMPTED FIRST DEGREE MURDER.

    ASSIGNMENT OF ERROR 6
    T p 436, lines 16 through 21
    R p 66
                                20


    At the state’s request (T p 374, lines 23-24), the trial

court instructed the jury on the doctrine of transferred intent

with respect to the offense of attempted murder.   Such an

instruction has no place in an attempted murder prosecution.

Although the question of whether the doctrine of transferred

intent applies to attempted murder is one of first impression in

North Carolina, both common sense and the great weight of

opinions from other jurisdictions demonstrate that the doctrine

has no application in cases of attempted murder.

    The Court has indicated that it will be guided by common

sense analysis of existing case law when faced with the

application of the doctrine of transferred intent to an offense

to which it has not previously been applied.    State v. Fletcher,

125 N.C. App. 505, 512, 481 S.E.2d 418, 423, disc. rev. denied,

346 N.C. 285, 487 S.E.2d 560 (1997).   There are two basic reasons

why common sense analysis demonstrates the inapplicability of the

doctrine to attempted murder.   Each reason is supported by

persuasive case law from other jurisdictions.

         First, it is the identity of the intended victim which

differentiates between one attempted murder and another.     In

North Carolina, “the crime of attempt requires an act done with

the specific intent to commit the underlying offense.” State v.

Coble, 351 N.C. 448, 449, 527 S.E.2d 45, 46 (2000). In this case,

the underlying offense is the alleged murder of Ms. Malone.

Thus, in order for the defendant to be guilty of the attempted
                                21


murder of D.M., as charged in the indictment, she would have to

have intended to commit the murder of Ms. Malone, not D.M.

Instructing the jury on the doctrine of transferred intent

obliterates the distinction between these offenses.   “[I]f the

issue is whether the defendant attempted to murder multiple

victims, then such specific intent should be independently

evaluated as to each victim.” Brady v. State, 700 So. 2d 471, 473

(Fla. App. 5 Dist. 1997).

     The second common sense reason why the doctrine of

transferred intent does not apply to attempted murder is that it

is unnecessary.   The doctrine of transferred intent is a legal

fiction necessary to fill a gap in criminal prosecution.     See,

e.g., Harvey v. State, 111 Md.App. 401, 681 A. 2d 628 (1996),

which contains an extensive conceptual discussion of the doctrine

and its inapplicability to offenses such as attempted murder.

Specifically, but for the doctrine of transferred intent, if

person A shoots at person B with the intent to kill but misses

and accidentally kills person C, person A could not be convicted

of   first degree murder even though both the mens rea and actus

reus necessary for first degree murder are present.   It was felt

inappropriate to allow person A to escape punishment for

premeditated, deliberate murder, and be punished only for

manslaughter or second degree murder, because his aim was poor.

To fill this gap, the common law resorted to the legal fiction

that “the intent follows the bullet.”   See, e.g., State v
                                              22


Abraham, 338 N.C. 315, 332, 451 S.E.2d 131, 139 (1994).                            This

allows for conviction of the offense that encompasses both

defendant’s state of mind and the harm caused by his actions.

       In a case of attempted murder, however, such legal fiction

is not needed.         This is because the offense does not contain the

element of actual injury to the victim.                     The offense is complete

as soon as the trigger is pulled (or other overt action taken)

with the requisite intent to kill the victim.                        There is no need

for the intent to follow the bullet because it is irrelevant

where the bullet goes or whom, if anyone, it strikes.                           See, e.g.,

State v. Hinton, 630 A.2d 593, 601 (Conn. 1993).                         If a bystander

is injured during an attempted murder, it is unnecessary to

address such injury in the attempted murder prosecution.                             Such

injury can be made the subject of a charge separate and apart

from the attempted murder.

       The great majority of courts in other states considering

this issue have concluded that the doctrine of transferred intent

does not apply to attempted first degree murder.                         The Florida

Court of Appeals recently surveyed case law in this area in Bell

v. State, 768 So.2d 22, 28 (Fla. App. 1 Dist. 2000).                           The court

in Bell cites cases from seven other states1, plus prior Florida


1
  Jones v. State, 159 Ark. 215, 251 S.W. 690 (1923); People v. Chinchilla, 52 Cal.App.4th 683,
60 Cal.Rptr.2d 761 (1997); People v. Calderon, 232 Cal.App.3d 930, 283 Cal.Rptr. 833 (1991);
State v. Hinton, supra; Ford v. State, 330 Md. 682, 625 A. 2d 984 (1993); State v. Williamson,
203 Mo. 591, 102 S.W. 519 (1907); State v. Mulhall, 199 Mo. 202, 97 S.W. 583 (1906); People
v. Fernandez, 88 N.Y.2d 777, 673 N.E.2D 910 (1996); State v. Shanley, 20 S.D. 18, 104 N.W.
522 (1905).
                                      23


Case law2 holding that the doctrine is inapplicable to cases of

attempt. Ms. Goode urges this court to accept the majority view

that the doctrine of transferred intent dose not apply to

attempted murder as persuasive and adopt it in North Carolina.


IV.       THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
          INSTRUCTING THE JURY, OVER THE DEFENDANT’S OBJECTION,
          THAT IT COULD FIND MS. GOODE GUILTY OF FIRST DEGREE
          MURDER BASED ON THE FELONY MURDER RULE WHEN THE
          INSTRUCTION WAS ERRONEOUS AS A MATTER OF LAW.

          ASSIGNMENT OF ERROR 5
          T p 431, line 8 through T p 434, line 10
          R pp 65-66

          As noted above, the trial court instructed the jury that it

must consider whether Ms. Goode was guilty of first-degree murder

based on the felony murder rule.           The state argued that the

underlying felony to support first-degree murder was assault with

a deadly weapon inflicting serious injury.           T p 9.   During the

charge conference, Ms. Goode objected to the court submitting a

felony murder instruction.        The court overruled the objection and

instructed the jury as follows:

                      Members of the jury, if you find from
                 the evidence beyond a reasonable doubt that
                 on or about the alleged date the defendant
                 intentionally assaulted the victim with a
                 deadly weapon and inflicted serious injury,
                 and that while committing or attempting to
                 commit assault with a deadly weapon
                 inflicting serious injury the defendant
                 killed the victim, and that the defendant’s
                 act was the proximate cause of the victim’s
                 death, and that the defendant committed or


2
    Brady v. State, supra.
                                24


          attempted to commit assault with a deadly
          weapon inflicting serious injury with the use
          of a deadly weapon, then it would be your
          duty to return a verdict of guilty of first
          degree murder under the felony murder rule.

          T p 433; R p 20.

This instruction refers throughout to “the victim” in the

singular form.   The jury was instructed to find Ms. Goode guilty

of first degree murder if it found that “the defendant

intentionally assaulted the victim with a deadly weapon and

inflicted serious injury, and that while committing or attempting

to commit assault with a deadly weapon inflicting serious injury

the defendant killed the victim.”    T p 433,

     This instruction is erroneous as a matter of law.    The North

Carolina Supreme Court noted in Jones, 353 N.C. at 170, 538

S.E.2d at 926, n.3, that “cases involving a single assault victim

who dies of his injuries have never been” construed to allow the

underlying assault of a victim to satisfy the predicate felony

for the felony murder of the same victim.   As the Court notes,

such a construction would negate lesser charges of homicide.      Id.

While a second person, D.M., was injured during the collision,

the court did not base its instructions on any alleged assault

against D.M.   Because the instruction was erroneous as a matter

of law, the conviction for first-degree murder on the basis of

felony murder should be vacated.

V.   CUMULATIVE ERROR
                                25


    The cumulative impact of the errors in the case renders the

verdicts untrustworthy.   The combination of lack of clarity as to

counsel’s authority to concede guilt to second degree murder,

counsel’s concession to second degree murder in spite of Ms.

Goode’s testimony to the contrary, and the trial court’s

erroneous instruction on felony murder undermine the verdict to

such an extent that a new trial must be ordered, even though the

jury convicted Ms. Goode based on the theory of premeditation and

deliberation, as well as felony murder.

    The combination of these circumstances undermined defense

counsel’s credibility to an extent that counsel was functionally

absent.   United States v. Cronic, 466 U.S. 668, 658, 104 S.Ct.

2039, 2047, 80 L.Ed.2d 657, 667 (1984).   Whatever the strength of

the state’s case, the trial court had an obligation to safeguard

Ms. Goode right to plead not guilty.   Harbison, 315 N.C. at 180,

337 S.E.2d at 507.   That includes insuring her right to effective

assistance of counsel under the Sixth Amendment and Fourteenth

Amendments and the parallel provisions of the North Carolina

Constitution.   When counsel’s credibility is jeopardized, the

client suffers.   In this case, counsel’s credibility was

destroyed by a combination of a strategy inconsistent with his

client’s testimony and an argument for second-murder that was

tantamount to a concession to felony murder.   Unfortunately,

these combined errors violated Ms. Goode’s fundamental rights to

a fair trial under the Fifth, Sixth, and Fourteenth Amendments to
                               26


the United States Constitution and Article I, Sections 19 & 23 of

the North Carolina Constitution.    She is entitled to a new trial

                           CONCLUSION

    For the reasons set forth above, Ms. Goode is entitled to a

new trial.

    This is the 26th day of November, 2008.



                                     AMOS GRANGER TYNDALL, P.A.

                              BY:
                                     AMOS GRANGER TYNDALL
                                     ATTORNEY FOR MS. GOODE

                                     312 West Franklin Street
                                     Chapel Hill, N.C. 27516
                                     919 967 0504
                                     State Bar #19309




               CERTIFICATE OF FILING AND SERVICE

    I HEREBY CERTIFY that the original Defendant-Appellant’s

Brief has been filed by mail pursuant to Rule 26 by placing it in

a depository of the U.S. Postal Service, first-class postage
                                     27


prepaid and addressed to the Clerk of the North Carolina Court of

Appeals, Post Office Box 2779, Raleigh, North Carolina, 27602.

    I   FURTHER   HEREBY   CERTIFY    that   a   copy   of   the   above   and

foregoing Defendant-Appellant’s Brief has been duly served upon

Mr. Alvin W. Keller, Jr., Esq., Assistant Attorney General, North

Carolina Department of Justice, Post Office Box 629, Raleigh,

North Carolina, 27602, by depositing a copy with the U.S. Postal

Service, first-class postage prepaid.

    This is the 26th day of November, 2008.




                                          AMOS GRANGER TYNDALL
                                          ATTORNEY FOR MS. GOODE

				
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