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					No. COA03-1272                               TWELFTH DISTRICT

                 NORTH CAROLINA COURT OF APPEALS

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

STATE OF NORTH CAROLINA       )
                              )
         v.                   )      From Cumberland
                              ) 01 CRS 54152, 01 CRS 60327
LAQUEZ EUGENE SIMMONS         )



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

                   DEFENDANT-APPELLANT‘S BRIEF

      ****************************************************
                                 INDEX

TABLE OF CASES AND AUTHORITIES.........................ii

QUESTIONS PRESENTED....................................1

STATEMENT OF THE CASE..................................1

STATEMENT OF GROUNDS FOR APPELLATE REVIEW..............2

STATEMENT OF THE FACTS.................................2

ARGUMENT...............................................5

    I.        THE TRIAL COURT ERRED BY GRANTING THE
              STATE‘S PRE-TRIAL MOTION FOR JOINDER AND
              DENYING DEFENDANT‘S MOTION TO SEVER THE
              COMMON LAW ROBBERY CHARGE....................5
         A.     The April 3 Taking Of A Cell Phone And
                The April 8 Shooting Of Reginald Edwards
                Have No Connection........................6
               1.    The Interactions Between Simmons And
                     Young On April 3 Were A Continuation
                     Of An On-Going Dispute Between These
                     Two People And Did Not Involve The
                     Victim Or His Girlfriend..............6
               2.    The Victim Was Not Concerned About
                     Either The Cell Phone Or Simmons‘s
                     Treatment Of Izetta Young.............8
         B.     Joinder Is Improper When The Cases
                Joined Are Separate And Distinct, Not
                Part Of ―A Single Scheme Or Plan‖.........8
         C.     The Taking Of The Cell Phone And The
                Shooting Are Not Part Of A Common Scheme
                Or Plan...................................13
         D.     Evidence   Concerning  The   Assault   On
                Izetta   Young   Would  Not   Have   Been
                Admissible If The Charges Had Not Been
                Joined....................................15
         E.     Evidence Presented Concerning The Cell
                Phone Incident Was Highly Prejudicial.....16
                                ii

     II.   THE   TRIAL   COURT    ERRED   BY   DENYING
           DEFENDANT‘S PRE-TRIAL MOTION IN LIMINE TO
           EXCLUDE EVIDENCE OF THE APRIL 3 INCIDENT
           AND   OVERRULING    ALL    OF   DEFENDANT‘S
           OBJECTIONS TO TESTIMONY CONCERNING APRIL 3...21

     III. DEFENDANT IS ENTITLED TO A NEW TRIAL
          BECAUSE THE TRIAL COURT ERRONEOUSLY DENIED
          HIS REQUESTED JURY INSTRUCTION ON SELF
          DEFENSE......................................28

     IV.   DEFENDANT IS ENTITLED TO A NEW TRIAL
           BECAUSE THE TRIAL COURT ERRONEOUSLY DENIED
           HIS MOTION TO DISMISS THE COMMON LAW
           ROBBERY CHARGE...............................31

CONCLUSION.............................................34

CERTIFICATE OF SERVICE AND FILING......................35


                       TABLE OF AUTHORITIES

                              CASES

Jackson v. Virginia et al., 443 U.S. 307 (1979)............... 33

Pointer v. U.S., 151 U.S. 396, 38 L. Ed. 208 (1894);........... 9

State v. Boykin, 307 N.C. 87, 296 S.E.2d 258 (1982)........... 10

State v. Bracey, 303 N.C. 112, 277 S.E.2d 390 (1981)........... 9

State v. Bradley, 65 N.C. App. 359, S.E. 2d 510 (1983)........ 31

State v. Brooks, 113 N.C. App. 451, 439 S.E. 2d 234
     (1994)............................................... 15, 20

State v. Browning, 28 N.C App. 376, 221 S.E.2d 375
     (1976)................................................... 31

State v. Church, 99 N.C. App. 647, 394 S.E.2d 468
     (1990)................................................... 12

State v. Corbett, 309 N.C. 382, 307 S.E.2d 139 (1983).. 9, 10, 11

State v. Crawford, 344 N.C. 65, 472 S.E.2d 920, 925
     (1996)................................................... 32
                               iii

State v. Davis, 289 N.C. 500, 223 S.E.2d 296, vacated
     in part on other grounds, 429 U.S. 809, 50 L. Ed.
     2d 69 (1976)............................................. 10

State v. Effler, 309 N.C. 742, 309 S.E.2d 203 (1983);.......... 9

State v. Frizzelle, 243 N.C. 49, 51, 89 S.E.2d 725,
     726 (1955)............................................... 30

State v. Greene, 294 N.C. 418, 241 S.E.2d 662 (1978)....... 9, 11

State v. Haynes, 350 N.C. 79, 511 S.E.2d 302 (1999),.......... 27

State v. Hennis, 323 N.C. 279, 372 S.E.2d 523 (1988).......... 28

State v. Herring, 74 N.C. App. 269, 273, 328 S.E.2d
     23, 26, disc. review denied as to additional
     issues, 314 N.C. 671, 335 S.E.2d 324 (1985),
     aff’d, 316 N.C. 188, 340 S.E.2d 105 (1986)................ 9

State v. Hyde, 352 N.C. 37, 530 S.E.2d 281 (2000)............. 28

State v. Lamb, 321 N.C. 633, 365 S.E.2d 600 (1988)............ 30

State v. Lane, 301 N.C. 382, 227 S.E.2d 273 (1980)............ 34

State v. Lucas, 353 N.C. 568, 548 S.E.2d 712 (2001)........... 32

State v. McLaurin, 46 N.C. App. 746, 266 S.E.2d 406
     (1980)................................................... 31

State v. Morgan, 315 N.C. 626, 340 S.E.2d 84 (1986)........... 15

State v. Morrison, 84 N.C. App. 41, 351 S.E.2d 810
     (1987)................................................... 23

State v. Perry, 142 N.C.App. 177, 541 S.E.2d 746,
     (2001)................................................... 13

State v. Powell, 297 N.C. 419, 255 S.E.2d 154 (1979)........... 9

State v. Silva, 304 N.C. 122, 282 S.E.2d 449 (1981)............ 9

State v. Stevenson, 81 N.C. App. 409, 344 S.E.2d 334
     (1986)............................................... 30, 31

State v. White, 256 N.C. 244, 123 S.E.2d 483 (1962)........... 10

State v. Williams, 74 N.C. App. 695, 329 S.E.2d 705
     (1985)................................................... 11
                                iv

State v. Wilson, 57 N.C.App. 444, 291 S.E.2d 830
     (1982)............................................... 12, 13
                             STATUTES

N.C. Gen. Stat. § 7A-27(b)..................................... 2

N.C. Gen. Stat. § 8C-1, Rule 103(a)(2)........................ 27

N.C. Gen. Stat. §   8C-1, Rule 401......................... 22, 23

N.C. Gen. Stat. §   8C-1, Rule 402......................... 22, 23

N.C. Gen. Stat. §   8C-1, Rule 403......................... 22, 23

N.C. Gen. Stat. § 8C-1, Rule 404(a)....................... passim

N.C. Gen. Stat. § 8C-1, Rule 404(b)........................... 15

N.C. Gen. Stat. § 8C-1, Rule 608(b)........................... 15

N.C. Gen. Stat. § 14-51.1..................................... 31

N.C. Gen. Stat. § 15-152....................................... 9

N.C. Gen. Stat. § 15A-926................................ 6, 8, 9

N.C. Gen. Stat. § 15A-926(a)................................... 8

N.C. Gen. Stat. § 15A-927..................................... 10

N.C. Gen. Stat. § 15A-1443(a)............................. 21, 31

N.C. Gen. Stat. § 15A-1443(b)............................. 21, 34

N.C. Gen. Stat. § 15A-1444(a).................................. 2

                               RULES

Rule 4(a) N.C.R.App.P.......................................... 2

                     CONSTITUTIONAL PROVISIONS

N.C. Const. Art. I, § 19.................................. 21, 34

N.C. Const. Art. I. § 23...................................... 21

N.C. Const. Art. I. § 24.................................. 21, 22

N.C. Const. Art. I. § 35.................................. 21, 34
                                v

U.S. Const. Amend. V...................................... 21, 34

U.S. Const. Amend. VI......................................... 21

U.S. Const. Amend. XIV................................ 21, 33, 34
No. COA03-1272                                     TWELFTH DISTRICT

                     NORTH CAROLINA COURT OF APPEALS

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

STATE OF NORTH CAROLINA           )
                                  )
          v.                      )      From Cumberland
                                  ) 01 CRS 54152, 01 CRS 60327
LAQUEZ EUGENE SIMMONS             )




      ****************************************************
                   DEFENDANT-APPELLANT‘S BRIEF
      ****************************************************

                           QUESTIONS PRESENTED

    I.    WHETHER JOINING UNRELATED CHARGES THAT OCCURRED
          DAYS APART AND WERE NOT PART OF AN OVERARCHING
          PLAN VIOLATED DEFENDANT‘S RIGHT TO A FAIR
          TRIAL?

    II.   WHETHER THE TRIAL COURT‘S ADMISSION INTO
          EVIDENCE   OF  HIGHLY   INFLAMMATORY,  GROSSLY
          PREJUDICIAL AND IRRELEVANT EVIDENCE MANDATES A
          NEW TRIAL?

    III. WHETHER DEFENDANT IS ENTITLED TO A NEW TRIAL
         BECAUSE THE TRIAL COURT DENIED HIS REQUEST THAT
         THE JURY BE INSTRUCTED ON SELF DEFENSE?

    IV.   WHETHER DEFENDANT IS ENTITLED TO A NEW TRIAL
          BECAUSE THE STATE‘S EVIDENCE ON COMMON LAW
          ROBBERY WAS INSUFFICIENT TO SEND THIS CHARGE TO
          THE JURY?


                          STATEMENT OF THE CASE

    This case came on for trial at the 13 May 2003, Criminal

Session   of   the    Superior   Court   for   Cumberland   County,   the
                                         2


Honorable Gregory A. Weeks, presiding.                    On 15 October 2001,

Defendant was indicted on one count of first degree murder, one

count of PWISD cocaine and one count of common law robbery.                     On

24 March 2003 a Special Indictment Habitual Felon was issued.

The jury found the defendant guilty of first degree murder and

common law robbery on 15 May 2003.              The jury found the defendant

not guilty of PWISD cocaine. Defendant stipulated to habitual

felon status.      Defendant was sentenced to life in prison without

parole on the first degree murder charge.              Based on the habitual

status elevating the crime to Class C, Defendant was sentenced

at record Level Four to 133 to 169 months on the common law

robbery to run concurrently with the life sentence.                     Notice of

Appeal was given in open court.

              STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW

       This is an appeal of right pursuant to the provisions of

N.C.   Gen.    Stat.    §§    7A-27(b)    and   15A-1444(a)     and    Rule    4(a)

N.C.R.App.P. from final judgments of conviction by a defendant

who pled not guilty and was found guilty of non-capital crimes.

                             STATEMENT OF THE FACTS

       Reginald   Lee    Edwards    instigated     a   fight    with    Defendant

Laquez   Simmons.      Edwards   was     shot   fatally    in   the    face   while

struggling for Defendant‘s gun. Laquez Simmons was staying at

6115 Beargrass in the Quail Hollow Mobile Home Park. On Sunday

evening, April 8, 2001, the victim, Reginald Edwards returned to
                                              3


the trailer park from a barbecue where he and a group of men had

been    drinking     and     smoking       marijuana.    (Tpp.    65-66;      93-94)    At

about 11:00 p.m. Edwards and four other men decided to walk from

Edwards‘s trailer down to the store to buy some more beer. (Tpp.

67, 114, 265) On the way through the trailer park, the men saw

Simons and a man named Paco smoking marijuana in front of 6115.

At     first   the    meeting        was     friendly,    ―Everybody          was   okay.

Everybody was just talking.‖ (Tp. 116) But after about twenty to

thirty    minutes,       a    heated   argument      began    when      Edwards     asked

Simmons to apologize to his girlfriend for ―disrespecting‖ her.

Simmons told Edwards he didn‘t remember calling her names and

was sorry. Edwards wanted Simmons to apologize directly to his

girlfriend.        Simmons refused. (Tpp. 94, 115, 116, 266, 306)

Edwards challenged Simmons to a fist fight. Simmons told Edwards

that he did not want to fight him. (Tpp. 68, 98, 117) A friend

of Edwards, John Cooley, threatened Simmons: ―if there‘s going

to be any beating here, I‘m going to be the one doing it.‖ (Tp.

98,    117)    Simmons,       who    was    still   limping      from    an    unrelated

gunshot wound, responded: ―Y‘all are going to jump me.‖ (Tpp.

69, 99, 118) Simmons told the group to leave, because he was

going in his house to get a gun. (Tpp. 69, 118) When he came out

of the trailer, Simmons told the group that he ―was strapped‖

and pulled a gun from under his belt. (Tpp. 70-71, 119) Edwards

responded that he didn‘t have a gun and they should fight like

men. (Tp. 71) Simmons put the gun to Edwards‘s head and hit him

with    the    barrel.       (Tpp.   72,    120)    Edwards   put       his   hands    up,
                                         4


grabbed the gun and moved it away from his head. (Tpp. 72, 82,

120, 134, 239, 255, 307) Edwards and Simmons were ―tussling‖

with the gun for a minute. (Tp. 72) The gun moved back and forth

and discharged. (Tp. 121) Edwards was taken to Cape Fear Valley

Medical Center and pronounced dead at 12:34 a.m. on the morning

of   April    9.   (Tpp.   75,   234)    The       pathologist    testified     that

Edwards‘s blood alcohol level was 0.19 and that the abrasions on

Edwards‘s face would be consistent with a gun shooting during a

struggle. (Tpp. 284, 293)

      Earlier that week, on April 3, Simmons had gone to the

trailer in which Edwards lived with his two cousins, John Cooley

and Clifford Moore. Edwards‘s girlfriend, Lynette Smith, also

lived in the trailer. (Tpp. 46-47) Two women, Izetta Young and

Tasha Moore, were visiting Lynette. Simmons came to the trailer

to ask to use their telephone. (Tp. 50) Izetta and Simmons had

been in a dispute earlier that week. (Tp. 303) Simmons reminded

Izetta Young of their argument and began calling her names.

Because of this Simmons was asked to leave the house by Lynette

Smith and Clifford Moore. (Tpp. 52, 55, 157) Moore took Simmons

outside to attempt to calm him down, but Simmons reentered the

trailer. Izetta picked up her cell phone as if she were going to

call the police, Simmons slapped Izetta knocking the phone to

the floor. (Tpp. 158, 177, 304) Simmons picked up the cell phone

and left the trailer. (Tpp. 59, 102, 157) John Cooley had taken

Izetta   to    buy   the   phone   and       had    given   her   money   for    the

purchase. (Tpp. 106, 189) Simmons told John Cooley that he would
                                          5


give the phone back to him. Simmons went to get the cell phone,

gave it to Cooley, who then gave the phone back to Izetta. (Tpp.

111, 112, 162, 179) Ms. Young did not pursue any charges once

the cell phone was returned. ((Tp. 182)



                                       ARGUMENT

       I.   THE TRIAL COURT ERRED BY GRANTING THE STATE’S
            PRE-TRIAL   MOTION FOR  JOINDER  AND  DENYING
            DEFENDANT’S MOTION TO SEVER THE COMMON LAW
            ROBBERY CHARGE

            Assignment of Error No. 1, Rp. 88

       The victim, Reginald Edwards, provoked an argument with the

defendant, LaQuez Simmons on April 8, 2001. Simmons attempted to

avoid the fist fight by first refusing and then retreating into

his trailer. Four men were with Edwards. Simmons asked all the

men to leave. They were still outside when Simmons came back

out,    provoking     the    final      struggle      with     the   gun.      Despite

undisputed evidence that on April 8th the victim went to the

defendant‘s trailer, that the two men conversed amicably for

twenty to thirty minutes and that the fight was initiated by the

victim, the State still proposed that the temporary taking of a

cell   phone    on   April   3    could    properly       be   joined    for     trial.

Defendant      strenuously       objected       and   moved     to      sever.     Over

Defendant‘s     objections       the    Trial     Court    granted      the    State‘s

Motion for Joinder and denied Defendant‘s Motion to Sever. (May

7, 2003, Tp. 23; Tpp. 354, 419; Rpp. 21-23) Defendant‘s request
                                       6


that he be allowed a continuing motion to exclude testimony

concerning the April 3 incident was denied. (Tpp. 13, 419; Rpp.

24-25) Throughout the trial, Defendant objected whenever mention

was made of the April 3 incident. As the April 3 incident and

the shooting on April 8 do not constitute parts of a single

scheme or plan, joinder was improper under N.C. Gen. Stat. §

15A-926(a).   And   as   the   April   3   evidence   was   extraordinarily

inflammatory,   Defendant      was     necessarily    prejudiced   by   its

admission before the jury.

    A.   The April 3 Taking Of A Cell Phone And The April 8
         Shooting Of Reginald Edwards Have No Connection


         1.     The Interactions Between Simmons And Young On
                April 3 Were A Continuation Of An On-Going
                Dispute Between These Two People And Did Not
                Involve The Victim Or His Girlfriend

    The argument between Izetta Young and Laquez Simmons began

before April 3. Mr. Moore told the detectives that as soon as

Simmons entered the trailer and saw Izetta he remarked on their

previous dispute: ―As he was talking to people saying hi to

them, he got to Ms. Young and when he did, he asked her if she

remembered that he was going to slap her in the face the next

time he saw her.‖ (Tp. 264) Izetta Young also testified that

Simmons‘s treatment of her on April 3 was a continuation of a

prior personal dispute:
                                             7


    Q.[by the State]    Had you and Mr. Simmons had some
         ill feelings toward one another before that
         occasion, Ms. Young?
    A.         He didn‘t like me.
    Q.         What had you done that made him not like you if
               you know?
    A.         I wouldn‘t talk to him.
    Q.         When you say you wouldn‘t talk to him, does that
               mean you wouldn‘t speak to him verbally or
               wouldn‘t have sex with him?
    Q.         The term talk, is that a term of jargon or street
               slang or are you actually talking about or
               speaking about speaking to him?
    A.         As in talking meant talking to him, period, in
               any way.
    Q.         So you‘re     talking     about         just       verbalizing     with
               him?
    A.         Verbalize. He wanted to talk                       to   me.   He   had
               crossed me a couple of times.
                             *               *                *
    Q.         Of your own knowledge, do you know why he would
               say to you that he wanted to hit you in the face?
    A.         Because I didn‘t want to be bothered with him.

(Tpp.    174-76)    (Objections        and       rulings       omitted)      Clearly,    Ms.

Young and Simmons were involved in an adversarial relationship

before    he    entered    the    trailer        on    April      3.   His   comments    and

actions after entering the trailer were a continuation of this

pre-existing antagonism. Simmons slapped the phone out of Ms.

Young‘s    hand    because       he   thought         she   was     about    to   call   the

police. (Tp. 304) After the cell phone was returned, the taking

of the phone was no longer an issue between the parties. Ms.

Young did not pursue the charges. (Tp. 182)
                                 8


         2.      The Victim Was Not Concerned About Either The
                 Cell Phone Or Simmons‘s Treatment Of Izetta
                 Young


    Edwards‘s anger on April 8th did not concern the cell phone.

All of the testimony shows that Edwards was simply interested in

what Simmons had said to his girlfried:

    Q.   Everything was fine until Reginald brought up the
         issue about Lynette Smith, wasn‘t it?
    A.   Yes.
(Tp. 94) Even after Simmons apologized for insulting Ms. Smith,

Edwards kept demanding that Simmons apologize directly to Ms.

Smith for the names he had called her. (Tpp. 265, 306) None of

the witnesses to the April 8 argument between Simmons and the

victim testified to any reference by the victim to the cell

phone before the shooting. The statement taken from the witness,

Clifford Moore, on the night of the shooting does not mention

the cell phone. (Tp. 238; Rp. 40)

    B.   Joinder Is Improper When The Cases Joined Are
         Separate And Distinct, Not Part Of “A Single
         Scheme Or Plan”
    Under N. C. Gen. Stat. § 15A-926(a) charges are properly

consolidated for trial only where they possess a transactional

connection: ―Two or more offenses may be joined . . . for trial

when the offenses . . . are based on the same act or transaction

or on a series of acts or transactions connected together or

constituting parts of a single scheme or plan.‖   N.C.G.S. § 15A-

926(a) (2003).    Although the predecessor statute, former § 15-
                                          9


152, allowed joinder on the basis that the acts were of the same

class   of     crime   or   offense,     under      $    15A-926,       joinder    is   not

permitted unless there is a transactional connection among the

offenses. State v. Corbett, 309 N.C. 382, 307 S.E.2d 139 (1983)

(citing State v. Greene, 294 N.C. 418, 241 S.E.2d 662 (1978)).

See also State v. Silva, 304 N.C. 122, 282 S.E.2d 449 (1981);

State v. Bracey, 303 N.C. 112, 277 S.E.2d 390 (1981); State v.

Powell, 297 N.C. 419, 255 S.E.2d 154 (1979).                             ―While factual

similarities and the nature of the offenses charged as being of

the same class, was once all that was required for joinder . . .

this is no longer the case.‖                  State v. Herring, 74 N.C. App.

269,    273,    328    S.E.2d     23,    26,       disc.       review    denied    as    to

additional issues, 314 N.C. 671, 335 S.E.2d 324 (1985), aff’d,

316 N.C. 188, 340 S.E.2d 105 (1986).

       Consolidation        may    not        be     proper        even     where       the

transactional      connection      required         by     §    15A-926    is     present.

Silva, 304 N.C. 122, 282 S.E.2d 449.                           The trial judge must

consider whether the accused can receive a fair hearing on more

than one charge at the same trial; charges should not be joined

where   consolidation       hinders      or    deprives         the     accused    of   the

ability to present his defense.                Pointer v. U.S., 151 U.S. 396,

38 L. Ed. 208 (1894); State v. Effler, 309 N.C. 742, 309 S.E.2d

203 (1983); Corbett, 309 N.C. 382, 307 S.E.2d 139; Silva, 304

N.C. 122, 282 S.E.2d 449; Greene, 294 N.C. 418, 241 S.E.2d 662;
                                          10


State v. Davis, 289 N.C. 500, 223 S.E.2d 296, vacated in part on

other     grounds,   429       U.S.   809,     50    L.    Ed.     2d       69    (1976).

Accordingly,     North     Carolina     General     Statutes       Section        15A-927

provides:

    The court . . . must grant a severance of offenses
    whenever:
  (1) If before trial, it is found necessary to promote a
    fair determination of the defendant‘s guilt or
    innocence of each offense; or
  (2) If during trial, upon motion of the defendant or
    upon motion of the prosecutor with the consent of the
    defendant, it is found necessary to achieve a fair
    determination of the defendant‘s guilt or innocence of
    each offense.    The court must consider whether, in
    view of the number of offenses charged and the
    complexity of the evidence to be offered, the trier of
    fact will be able to distinguish the evidence and
    apply the law intelligently as to each offense.
N.C.    Gen.    Stat.     §    15A-927.        Furthermore,          public        policy

considerations such as saving time are not sufficient grounds

for consolidation.        State v. White, 256 N.C. 244, 123 S.E.2d 483

(1962).     ―No matter how appealing such public policy may be, it

must not stand in the way of ‗a fair determination of . . .

guilt or innocence . . . .            Whether there is to be a joinder of

cases must depend on the circumstances of each case.‖                            State v.

Boykin, 307 N.C. 87, 296 S.E.2d 258 (1982).

       The role of the appellate court is to determine whether the

trial   court    abused       its   discretion      in    allowing      a    motion     to

consolidate     charges       for   trial.     Corbett,      309     N.C.        382,   307

S.E.2d 139.      However, ―the determination of whether a group of
                                           11


offenses are transactionally related so that they may be joined

for trial is a question of law fully reviewable on appeal.‖

State    v.    Williams,    74    N.C.   App.     695,   329    S.E.2d   705   (1985)

(citing Corbett, 309 N.C. 382, 307 S.E.2d 139; Silva, 304 N.C.

122, 282 S.E.2d 449).            Consolidation is improper as a matter of

law    where    the     charges    possess      no    transactional      connection.

Corbett, 309 N.C. 382, 307 S.E.2d 139.

       In cases in which the offenses were committed on different

dates,        joinder     has     been     held       improper     unless      unique

circumstances connected the offenses.                    Williams, 74 N.C. App.

695,    698-99,    329    S.E.2d    705,    708      (joinder    was   improper   and

prejudicial considering "the sheer number of offenses charged

and joined" and the "prolonged time lapse between them" where

some offenses took place in October of 1982 and others took

place in January of 1983 and no conspiracy charge joined them):

       One circumstance in which offenses are transactionally
       related so that they may be joined for trial occurs
       when they arise out of a single overall conspiracy.
       State v. Silva, 304 N.C. at 127.    Another is when a
       series of crimes are so closely related in time that
       they appear to be parts of a continuous crime spree.
       State v. Avery, 302 N.C. 517, 276 S.E.2d 699 (1981)
       (series of crimes during a two day period of escape
       from prison); State v. Clark, 301 N.C. 176, 270 S.E.2d
       425 (1980) (offenses one after the other on the same
       afternoon); State v. Greene, 294 N.C. 418, 241 S.E.2d
       662 (1978) (two sexual assaults within three hours);
       State v. Davis, 289 N.C. 500, 223 S.E.2d 296, death
       penalty vacated, 429 U.S. 809 (1976) (four offenses
       within two and a half hours).
       In the absence of a conspiracy charge that serves as
       an umbrella, offenses that are committed on separate
                                                12


       dates cannot be joined for trial, even when they are
       of like character, unless the circumstances of each
       offense are so distinctly similar that they serve
       almost as a fingerprint.

Id.     (quoting      North        Carolina      Criminal         Cases     Manual       125-6)

(emphasis added).             See also State v. Church, 99 N.C. App. 647,

652, 394 S.E.2d 468, 471 (1990) (―[T]o be joined the crimes must

be     transactionally          related         either     as      part     of     a     single

conspiracy, because they are closely related in time, or because

similarities       of    the       crime    constitute        a    fingerprint         of    the

perpetrator‖).

       This     Court    has       required     that     each     individual       crime     be

identifiable as an integral part of a overarching plan:

       In resolving the issue [of joinder], the Court                                  has
       described   the  transaction   as ―all  parts   of                                a
       continuing program of action‖, Frazier, supra;                                  and
       ―entire episode‖, Olds, supra; ―entire series                                    of
       events comprising the four crimes‖, Davis, supra;                               and
       ―whole affair‖, Greene, supra.

State    v.    Wilson,    57       N.C.App.     444,     449,     291     S.E.2d      830,   833

(1982). In Wilson the defendant had been charged with obtaining

money under false pretences based on entering fraudulent home

buying contracts with two separate sets of purchasers, one in

July    1979    and     the    second      in    August      1979.      This     Court   found

joinder       improper    because       although       the      offenses       were    similar

there was no overarching plan: ―The offenses for which defendant

was tried were separate and distinct, not part of ―a single

scheme    or     plan‖.       We    hold    that     the     necessary         transactional
                                 13


connection was not present in these cases and that joinder was

improper as a matter of law.‖ Id.

    In summary, a two-step analysis is required to determine

whether the offenses were properly joined for trial:

    This rule requires a two-step analysis: (1) a
    determination   of   whether  the   offenses   have  a
    transactional connection, and (2) if there is such a
    connection, ―consideration then must be given as to
    ―whether the accused can receive a fair hearing on
    more than one charge at the same trial.‖ . . .a
    decision to consolidate offense is with the discretion
    of the trial court, however, if the consolidated
    charges have ―no transactional connection, then the
    consolidation is improper as a matter of law.‖

State v. Perry, 142 N.C.App. 177, 180-81, 541 S.E.2d 746, 748-49

(2001) (citations omitted)

    C.      The Taking Of The Cell Phone And The Shooting Are
            Not Part Of A Common Scheme Or Plan
    A transactional connection means that the joined offenses

have a common scheme or plan, are part of a crime spree, or are

part of a conspiracy. As in Williams, supra, the joined offenses

in this case ―were separate and distinct, not part of ―a single

scheme or plan.‖ The temporary taking of the cell phone had

nothing to do with the shooting, but was a continuation of a

long-term    personal   disagreement   between   Izetta   Young   and

Simmons. The evidence shows that Simmons went to the trailer on

April 3rd simply to use the land line telephone, not even knowing

Izetta would be there. He had no criminal intent. Once he saw

Izetta he focused on resuming their previous dispute. The phone
                                     14


was taken as part of this argument. The phone was returned. No

one seemed to be upset over the taking of the phone once it was

returned. Izetta Young testified that even though the police

called her about the cell phone, she did not return their phone

calls. (Tp. 182) Thus, the death of Reginald Edwards was an

entirely separate incident.

    The only connection between the two crimes is that the

victim‘s girlfriend, Lynette Smith, happened to be present when

the cell phone was taken from Izetta. There is absolutely no

evidence of a common scheme or plan. The offenses are not the

same type of crime. The offenses took place a week apart. The

taking of the cell phone was done by Simmons, while the fight on

April 8th was started by the victim. The type of location is

radically different, because on April 3rd the defendant went to

another   person‘s   home,   while    on   the   8th   the   defendant   was

relaxing at home. The victim in the second offense was not even

present during the first altercation. No evidence was presented

that indicated that the victim cared at all about either Izetta

Young or her cell phone. Edwards was simply challenging Simmons

to a fight to redeem his girlfriend‘s honor.

    Thus, it is clear under the first prong of joinder analysis

that the offenses lacked a transactional connection.
                                                 15


       D.     Evidence Concerning The Assault On Izetta Young
              Would Not Have Been Admissible If the Charges Had
              Not Been Joined
              All     of        the     testimony       describing           the    previous

relationship between Defendant and Izetta Young and the April 3

assault on Young would have been inadmissible if the cell phone

charge had not been joined. Evidence of past abusive behavior is

not admissible pursuant to N.C. Gen. Stat. § 8C-1, Rule 608(b),

which allows into evidence specific instances of conduct of a

witness for the purpose of attaching his credibility, but only

when        the     evidence          is        probative        of    truthfulness       or

untruthfulness.        ―Extrinsic          instances        of    assaultive       behavior,

standing alone, are not in any way probative of the witness‘

character for truthfulness or untruthfulness.‖ State v. Morgan,

315 N.C. 626, 635, 340 S.E.2d 84, 90 (1986). The assault on

Izetta Young is also not admissible under Rule 404(b). In State

v. Brooks, 113 N.C.App. 451, 439 S.E.2d 234 (1994), this court

considered whether evidence of prior assaultive behavior on the

defendant‘s wife was admissible in the trial of her murder. The

State had argued that this evidence was admissible to show the

absence of accident. This Court disagreed: ―The State‘s argument

is   unpersuasive;         we    find      no    relevancy       for   the    admission   of

defendant‘s past violent behavior toward his wife to prove the

character of the defendant in relation to motive, opportunity,

intent, etc.‖ Id. at 458, 439 S.E.2d at 238. If prior assaults
                                    16


on   the   victim   are   inadmissible     to    show   lack   of   accident,

certainly prior assaults on unrelated individuals must also be

inadmissible.

      This evidence was not admissible as part of the res gestae

of the death, because Edwards was clearly only bothered by the

comments of Simmons which were directed specifically to Lynette

Smith. Moreover, there is no question that Edwards demanded the

fight. The sole question before the jury was whether Laquez

Simmons purposefully pulled the trigger or if it accidentally

discharged during the struggle for the gun.

      E.    Evidence Presented Concerning           The   Cell      Phone
            Incident Was Highly Prejudicial
      The second prong of joinder analysis requires an analysis

of whether the accused can receive a fair hearing on more than

one charge at the same trial. In the instant case, if the two

offenses    had   not   been   joined    for    trial   highly   prejudicial

testimony concerning the defendant‘s character would not have

come before the jury. If the charges had not been joined, the

trial court could have limited the testimony concerning April 3

specifically to what Simmons said to Ms. Smith that caused the

victim‘s anger. The copious evidence of Simmons inappropriate

language and actions towards Izetta Young that came in as a

result of joining the common law robbery charge was grossly

prejudicial, as the only issue in the instant case was whether

the gun went off accidentally or intentionally. Evidence from
                                              17


which the jury could find that the defendant had a bad character

would   weigh       heavily     against       their   listening          to   an   accident

theory of defense.

      Edwards was angry because Simmons had ―disrespected‖ his

girlfriend. While Simmons‘s language to Ms. Smith is arguably

admissible to explain Edwards‘s anger, the details of his prior

interactions with Izetta Young, his argument with Ms. Young that

day and how many times he hit Ms. Young had no relevance to

Reginald Edwards. All of this irrelevant evidence concerning Ms.

Young and her cell phone evidence portrayed Laquez Simmons as a

man with remarkably bad character traits:

      Q.    [W]hat, if anything, did Mr. Simmons say that he
            was gong to do to you?
      [Izetta Young]:              He said he was going to punch me
           in my face.
      Q.    And did he use              the    term   punch    or    did      he   use
            another term?
      A.    He said he was going to punch me in my face.


(Tpp. 173-74) (objections and rulings omitted) This testimony

would not have been admissible if the cell phone theft had not

be   joined.    It       was    highly    prejudicial     as        it    portrayed      the

defendant      as    a    man     who    punched      women.    This          inadmissible

character evidence was buttressed when Ms. Young was allowed to

testify that Simmons ―had a very bad attitude and he always came

off at me wrong.‖ Id.
                               18


    The testimony, admissible only as to the cell phone taking,

also included evidence that Simmons slapped Young in the face

hard enough to knock the phone from her hand:

    The Witness:   Well, he slapped Izetta like twice. . .
         . whenever he slapped her, it was like she kind
         of like blocked one of the slaps and whatnot. Her
         phone came out of her hand and hit the floor.
(Tp. 158) (objections and rulings omitted) The State then asked

about slapping Izetta twice more:

    Q.   Before he slapped Izetta that time, did she say
         anything to him?

    A.   No.

    Q.   Before he slapped Izetta that time, did you say
         anything else to him?

(Tp. 161) Clifford Moore was even allowed to testify to Simmons

treatment of Izetta Young before April 3:

    A.   And it just got about where he started talking to
         Izetta about some altercation that happened prior
         before that day. . .That he stated to her that he
         hadn‘t forgot about that and that he was going to
         slap her. . . That he was going to slap her and
         that he wanted her to step outside, but she
         refused to step outside.
(Tpp. 51-52) (objections and rulings omitted) Moore‘s testimony

was more prejudicial than either Young‘s or Smith‘s because he

stated that Simmon‘s ―swung‖ at Young, implying a much more

forceful blow than the ―slap‖ reported by Smith and Young:

    The Witness:   What you going to do? What you going to
         do? And Izetta was sitting in the chair, you
         know, with fear. He approached her as if he was
         going to hit her. He swung at her twice and she
         blocked it, knocked the phone out of her hand.
                                               19


                               *               *             *
       Q.     What did Ms. Young do in your presence when he
              attempted to backhand her twice?
       A.     She done like that (indicating).
       Q.     And where did you see him strike her, if he did,
              when he did that?
       The Witness;         Arm lock.
                               *               *             *
       Q.     Do you know whether she dropped the cell phone on
              the first or second attempt to slap?


(Tpp. 59-61) None of these details about the prior altercation

with    Izetta,      whether       she   was    frightened,        how   many   times   he

slapped her before she dropped the phone, whether he slapped,

punched or swung at her, or why he slapped her in the first

place were relevant to the murder charge. All of this irrelevant

testimony, inadmissible without joinder, was highly prejudicial.

       The    jury   also    heard       Lynette     Smith       testify    that   Simmons

asked another woman in the trailer for sex in a particularly

crude manner: ―And then, you know, he sat down beside Tasha. He

was like, What‘s up? You going to cut me dinner tonight? You

going    to    let    me    hit,     meaning        sex.‖    (Tp.    159)    Defendant‘s

objection to this answer was sustained, but the answer was not

stricken from the record. Certainly the jury must have been left

with the impression that Simmons was immoral.

       Allowing this highly inflammatory testimony before the jury

must be found to be prejudicial in a case in which the only

issue before the jury is whether the shooting was an accident or
                                         20


intentional. The jury clearly could have used it for the purpose

inadmissible under N.C. Gen. Stat. § 8C-1, 404(a): "evidence of

a   person's     character     or   a    trait    of   his    character     is    not

admissible       for   the    purpose    of      proving     that    he   acted    in

conformity therewith on a particular occasion . . . ." N.C. Gen.

Stat. §    8C-1, Rule 404(a) (2003).

      Defendant preserved these errors for appellate review. He

objected to the State‘s motion for joinder pre-trial and filed a

motion to sever. (May 7, 2003, Tp. 23) Defendant renewed his

motion to sever at the end of the State‘s evidence and at the

end   of   all   of    the   evidence.    (Tpp.    354,    319)     Defendant     also

objected each time testimony was introduced concerning the April

3 offense. (Tpp. 42, 51-56, 59-64, 67-68, 85-86, 110-111, 157-

162, 171-173, 176-179, 185, 189, 231, 264, 304)

      As in State v. Brooks, this Court must find the admission

of testimony concerning bad character and prior assaults to be

prejudicial error:

      We cannot say with certainty that there is no
      ―reasonable possibility that, had the error in
      question not been committed,‘ the jury would have
      arrived at a different result.‖ N.C. Gen. Stat. § 15A-
      1443(a) (1988). The questions alone posed by the State
      were inflammatory and damaging. And, because defendant
      admitted to some violent action toward his wife in the
      past, we cannot say that the jury did not consider the
      evidence for the purpose of concluding that defendant
      was of a violent disposition.
Brooks at 113 N.C. 458, 439 S.E.2d 238.
                                         21


    Consolidation of these charges was improper as a matter of

law and violated Defendant‘s Sixth Amendment right to trial by

an impartial jury, his right to due process of law under the

Fifth and Fourteenth Amendment to the United States Constitution

and Art. I, Sections 19, 23, 24, and 35 of the North Carolina

Constitution.     Constitutional errors are presumed prejudicial.

N.C. Gen. Stat. § 15A-1443(b). To rebut this presumption the

State must show that the error was harmless beyond a reasonable

doubt.    In the instant case, the State cannot show that joining

the cell phone charge and the murder charge was harmless beyond

a reasonable doubt. Even under the standard of N.C. Gen. Stat. §

15A-1443(a),     defendant       has     met   his   burden   of   showing   a

reasonable possibility that, had the error in question not been

committed, a different result would have been reached. Defendant

must be granted new separate trials on the charges.



    II.    THE TRIAL COURT ERRED BY DENYING DEFENDANT’S
           PRE-TRIAL MOTION IN LIMINE TO EXCLUDE EVIDENCE
           OF THE APRIL 3 INCIDENT AND OVERRULING ALL OF
           DEFENDANT’S OBJECTIONS TO TESTIMONY CONCERNING
           APRIL 3

               Assignment   of   Error   No.   3, Rp. 88
               Assignment   of   Error   No.   4, Rp. 88
               Assignment   of   Error   No.   6, Rp. 89
               Assignment   of   Error   No.   10, Rp. 90
               Assignment   of   Error   No.   13, Rp. 91
               Assignment   of   Error   No.   14, Rp. 91
               Assignment   of   Error   No.   15, Rp. 91
               Assignment   of   Error   No.   16, Rp. 91
                                         22


      Defendant filed a detailed pre-trial motion requesting an

order preventing the State from introducing evidence of acts of

Laquez Simmons in his dispute with Izetta Young including his

threats to slap her, his slapping her and taking the cell phone.

(Rp. 24-25) Defendant presented this motion in limine to the

court at a pre-trial hearing on May 13, 2003. The court denied

the written and oral motion and Defendant‘s follow-up motion to

be allowed a continuing objection as to the introduction of this

evidence. (May 13, Tp. 13) Defendant objected at trial each time

the     State   introduced          testimony        concerning     the   Simmons‘s

interactions    with    Izetta       Young.     On    appeal   Defendant    divided

these    objections    into    Assignment       of     Error   3,   concerning   the

written and oral motions in limine and separate Assignments of

Error for each of the witnesses.

Motion In Limine – Assignment of Error # 3

      All of the testimony concerning the fight between Simmons

and Young was irrelevant to the death of Reginald Edwards, was

grossly    prejudicial        and     unquestionably        went    to    show   bad

character. Therefore, this testimony was inadmissible under N.C.

Gen. Stat. §     8C-1, Rules 401, 402, 403 and 404(a) (2003). Only

relevant evidence is admissible. N.C. Gen. Stat. § 8C-1, Rule

402 (2003). Relevant evidence is "evidence having any tendency

to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than
                                      23


it would be without the evidence." N.C. Gen. Stat. § 8C-1, Rule

401 (2003). The evidence concerning the long standing dispute

between Simmons and Young is quoted and summarized above in

Argument I and incorporated herein by reference. Even relevant

evidence may be inadmissible if            the probative effect of the

evidence is substantially outweighed by the danger of unfair

prejudice. N.C. Gen. Stat. § 8C-1, Rule 403 (2003). As this

testimony was irrelevant and grossly prejudicial it should also

have been excluded under N.C. Gen. Stat. §                     8C-1, Rule 401

(2003) for lack of relevance and N.C. Gen. Stat. §                    8C-1, Rule

403 (2003) because of prejudice. Evidence of bad character to

show     that   the   defendant    acted    in    conformity    therewith     is

inadmissible under Rule 404(a). Clearly defendant‘s motions to

exclude this testimony should have been granted.

       Furthermore, the prejudice from the introduction of this

testimony concerning Simmon‘s treatment of Izetta Young could

have lead one or more jurors to convict defendant because he was

an immoral person, rather than because the state proved its case

beyond a reasonable doubt.          See State v. Morrison, 84 N.C. App.

41,    351      S.E.2d    810    (1987)    (acknowledging       the     unfairly

prejudicial      effect   of    evidence   that   witness   committed      prior

sexual act because it diverted jury‘s attention from issue at

hand).     The improper evidence that there was an on-going dispute

between Simmons and Izetta Young in which he had threatened to
                                           24


slap her, that on April 3 Simmons did physically abuse Ms. Young

and the evidence of what to some would seem to be improper

sexual requests prejudiced Simons in the same way.                         It likely

diverted the jury‘s attention from the real issues in the case

and provided no assistance to the jury in assessing whether the

fatal gun shot was an accident or intentional.

Clifford Moore—Assignment of Error # 6

       As     summarized     and       quoted        above   in   Argument     I    and

incorporated herein by reference, Clifford Moore was allowed to

testify at length and in detail about the altercation between

Simmons       and   Izetta     Young     and     Young‘s     fearful     reaction   to

Simmons. (Tpp. 51, 52, 53, 54, 55, 56, 59, 60, 61, 63, 85, 86,

87) Moore‘s testimony was particularly inflammatory because he

went   into     detail   about     how    Simmons       slapped   a   woman   who   was

sitting in a chair and her fearful reaction. (Tpp. 59-61) The

State even had Moore demonstrate for the jurors how Simmons had

hit Ms. Young. (Tp. 60)

John Cooley-Assignment of Error # 10

       John     Cooley   was     allowed        to    testify,    over    Defendant‘s

objection, that Simmons told him ―he didn‘t like that bitch

Izetta.‖ (Tp. 111) Clearly, while not relevant to the murder

charge, this testimony was highly inflammatory and prejudicial

evidence of bad character.

Lynette Smith-Assignment of Error # 13
                                             25


       As    summarized      and       quoted      above     in     Argument    I     and

incorporated     herein     by     reference,      Lynette        Smith   testified    in

detail about the interactions between Izetta Young and Simmons

on April 3. (Tpp. 157, 158, 159, 160, 161, 162) Ms. Smith‘s

testimony included details about slapping Ms. Young and even

crudely asking another woman in the trailer for sex. While the

objection to her testimony concerning sex was sustained, the

jury did hear the answer. Again, testimony concerning Simmons

physical     abuse   and    misuse      of    women   was    not     relevant   to    the

murder, was grossly prejudicial and was excludable under 404(a)

as evidence of bad character.

Izetta Young-Assignments of Error ## 14, 15 and 16

       Ms. Young and Simmons had a prior adversarial relationship

that had no bearing on the victim‘s death. Testimony concerning

this   relationship        and   the    continuation        of    their   argument     on

April 3 went solely to the character of the defendant and added

no information concerning whether the gunshot was accidental or

intentional. (Tpp. 171, 172, 173, 176, 177, 178, 179, 189) Ms.

Young‘s testimony is quoted above in Argument I and incorporated

herein by reference.

       The   testimony      concerning       the    prior    relationship       between

Young and Simmons had absolutely no relevance to the murder. The

prejudice     incurred      by   this    testimony         was    heightened    by    the

State‘s strange questions concerning what Ms. Young meant by the
                                               26


word talking: ―When you say you wouldn‘t talk to him, does that

mean you wouldn‘t speak to him verbally or wouldn‘t have sex

with    him.‖     (Tp.    174)      Although         Ms.   Young   answered      she   meant

talking      by   talking,       the    jury     must      have    been   left     with   the

impression that the State had reason to suspect that the discord

between Young and Simmons involved denial of requests for sexual

favors. Again, this was totally irrelevant, grossly prejudicial

and excludable character evidence.

       Ms.    Young      testified       over        Defendant‘s     objection       to   the

details of how Simmons struck her:

       A.     He walked over towards me and he—he said
              something, that he was getting ready to hit me.
              And he struck me once. I put my hand up.
              When he struck again, he hit me in the side of my
              neck.

(Tpp.       176-77)      (objections       and        rulings      omitted)      Obviously,

testimony         that    Simmons        assaulted          Ms.    Young      is     grossly

prejudicial. Notably, Simmons was not charged with any assaults

arising      from      April   3,   2001.       As    Reginald     Edward‘s      death    was

instigated        by    Edward‘s       demand    that      Simmons    fight,       testimony

concerning whether Simmons was a bully is irrelevant to Edward‘s

death and grossly prejudicial. Under the 401/403 balancing test

it should have been excluded. As evidence of bad character it

should have been excluded under Rule 404(a).
                                       27


Denial Of Defendant‘s Request           For     A   Standing   Objection—
Assignment of Error # 4

      At the time of the trial State v. Haynes, 350 N.C. 79, 511

S.E.2d 302 (1999), which overruled this Court‘s opinion setting

out guidelines for a standing objection, was still valid. As of

October 1, 2003 the Supreme Court opinion in Haynes is no longer

the law. Defendants now have a statutory right to a continuing

objection:

      (2) Offer of proof. -- In case the ruling is one
      excluding evidence, the substance of the evidence was
      made known to the court by offer or was apparent from
      the context within which questions were asked. Once
      the court makes a definitive ruling on the record
      admitting or excluding evidence, either at or before
      trial, a party need not renew an objection or offer of
      proof to preserve a claim of error for appeal.


N.C. Gen. Stat. § 8C-103(a)(2) (2003) Defendant assigned the

judge‘s denial of his request for a standing objection as error.

Assignment of Error No. 4, Rp. 88. Defendant concedes that under

State    v.   Haynes    the   trial   court‘s       ruling   was   correct,   but

requests this court consider how the prejudice to Defendant from

the     admission      of   this   grossly    inflammatory         evidence   was

hightened by the requirement that the defense attorney object

each time a witness for the State was asked about the argument

between Simmons and Young. These constant objections must have

exacerbated the feelings of distaste left with the jurors by the

testimony concerning Simmons treatment of Izetta Young.
                               28


    The Prejudice Arising From The Admission Of This
    Irrelevant And Grossly Prejudicial Evidence Mandates A
    New Trial

    The balancing of relevancy versus prejudice lies "within

the sound discretion of the trial court, and the trial court's

ruling should not be overturned on appeal unless the ruling was

'manifestly unsupported by reason or [was] so arbitrary that it

could not have been the result of a reasoned decision.'" State

v. Hyde, 352 N.C. 37, 55, 530 S.E.2d 281, 293 (2000) (quoting

State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988)

The verbal and physical dispute between Simmons and Young were

not relevant to Edwards‘s death. The jury may have impermissibly

decided that a man with such a bad character that he would slap

a woman would also pull a trigger. As this testimony was highly

inflammatory and grossly prejudicial, this Court must find the

trial court‘s rulings to be an abuse of discretion and grant

Defendant a new trial.



    III. DEFENDANT IS ENTITLED TO A NEW TRIAL BECAUSE THE
         TRIAL COURT ERRONEOUSLY DENIED HIS REQUESTED JURY
         INSTRUCTION ON SELF DEFENSE
              Assignment of Error No. 28,   Rp. 94


    Defendant is entitled to a new trial because the Trial

Court erroneously refused to charge the jury on self defense.

During the charge conference, defendant requested the jury be

charged on self defense, based upon the uncontroverted facts
                                        29


that Edwards had demanded a fight, that Cooley threatened to

beat up Simmons, that Simmons expressed fear of being attacked

by the group, that Simmons was disabled from a previous gunshot

wound and that there were at least five men against one. (Tpp.

420-22) As Simmons was confronted by these men in the curtilage

of the home where he was staying, he had a right not to retreat

in   the   face     of    these   threats.   The   Trial       Court    denied   the

requested instruction based in part on the improper assumptions

that Simmons was the aggressor and that it is not possible to

have a defense both of accident and self-defense. (Tpp. 424-25)

      All of the evidence in this case shows that Laquez Simmons

was relaxing with a friend in front of the trailer where he was

staying when the victim approached with four other males. (Tpp.

67, 114, 116, 265) Simmons and Edwards conversed amicably for

twenty to thirty minutes, when Edwards, who was drunk, suddenly

became     highly        aggressive   and    demanded      a    fight     for    his

girlfriend‘s honor. There is absolutely no dispute that Edwards

was the initial aggressor and that Simmons retreated. Before

entering his trailer, Simmons demanded that all five men leave,

but they continued to circle his home. (See, Rp. 39, diagram

showing positions of the men) When Simmons came back outside

armed, he again demanded that the men leave his home. The men

would not leave. Simmons had a right to defend his home, as long

as he did not use excessive force. Simmons approached Edwards
                                           30


intending not to shoot, but just to hit Edwards with the gun

barrel, which he did. Edwards grabbed the gun and the two men

struggled for possession. During the course of the struggle, the

gun discharged killing Edwards. (Tpp. 72, 82, 120, 134 239, 255,

307) The facts support both self defense and an accident, as the

accident occurred while Simmons was executing his right to self

defense.

       The requested jury instruction should have been given: ―If

request be made for a special instruction, which is correct in

itself and supported by the evidence, the court must give the

instruction at least in substance.‖ State v. Lamb, 321 N.C. 633,

644,   365   S.E.2d    600,   605-606       (1988).   ―A   person    may   have    no

permanent or proprietary status in a particular residence, yet

the    intent    to    reside       there,      however     temporarily,     fully

implicates the policy underlying the ―castle doctrine.‖ State v.

Stevenson, 81 N.C. App. 409, 414, 344 S.E.2d 334, 336 (1986)

―One must show only that she is a member of a household, however

temporarily, and that she possesses an intent to reside in that

particular place at the time of the attack.‖ 414, 337 Defense of

the person within one‘s premises includes not only the dwelling,

but also the curtilage and buildings within the curtilage. State

v. Frizzelle, 243 N.C. 49, 51, 89 S.E.2d 725, 726 (1955) A

person is not obligated to retreat when he is assaulted in his

dwelling     house    or   within    the     curtilage     thereof   whether      the
                                      31


assailant   be   an   intruder   or   another   lawful   occupant    of   the

premises. State v. Browning, 28 N.C App. 376, 221 S.E.2d 375

(1976), State v. McLaurin, 46 N.C. App. 746, 750, 266 S.E.2d

406, 409 (1980); State v. Stevenson, 81 N.C. App. 409, 412, 344

S.E.2d 334, 335 (1986) In 1993, an individuals right to protect

his dwelling, without a duty to retreat, was codified in N.C.

Gen. Stat. § 14-51.1 (2003).

    The instruction which defendant requested was correct in

law and supported by the evidence. See State v. Bradley, 65 N.C.

App. 359, S.E.2d 510 (1983). A different result could well have

been reached had the requested instruction been given. See N.C.

Gen. Stat. Sec. 15A-1443(a). The failure to instruct on the self

defense,    therefore,    constituted      prejudicial   error,     and   the

defendant is entitled to a new trial.



    IV.     DEFENDANT IS ENTITLED TO A NEW TRIAL BECAUSE THE
            TRIAL COURT ERRONEOUSLY DENIED HIS MOTION TO
            DISMISS THE COMMON LAW ROBBERY CHARGE
                 Assignment of Error No. 25,       Rp. 93


    Defendant is entitled to a new trial because the Trial

Court erroneously denied Defendant‘s motions at the end of the

State‘s evidence and at the close of all of the evidence to

dismiss the charge of common law robbery. (Tpp. 377, 419) The

charge was based on Simmons‘s temporary taking of a cell phone
                                           32


from   Izetta     Young.     All    of    the    evidence     shows    that   Simmons

returned    the    cell    phone     to   John    Cooley.     (Tp.    111,    182)   As

Simmons and Young knew with one another, it is difficult to

understand      how   Simmons      could       ever   have    had    the    intent    to

permanently keep the cell phone. Furthermore, Simmons was living

in the trailer park at the time, came to the trailer to use the

land line and was well known by several of the people involved.

As the State did not provide substantial evidence of an intent

to permanently deprive Ms. Young of the cell phone, the Trial

Court should have dismissed this charge.

       When considering a motion to dismiss, the trial court‘s

inquiry    is     ―whether    there       is    substantial      evidence     of    each

essential element of the offense charged and of the defendant

being the perpetrator of the offense.‖ State v. Crawford, 344

N.C. 65, 73, 472 S.E.2d 920, 925 (1996)                      Substantial evidence

need not be irrefutable or uncontroverted, but it does need to

be such as would satisfy a reasonable mind as being ―adequate to

support a conclusion.‖             State v. Lucas, 353 N.C. 568, 581, 548

S.E.2d 712, 721 (2001)

       The evidence in this case shows that Laquez Simmons walked

down to a neighbor‘s trailer in order to use the land line

phone.    (Tpp.    157,    171)    Once    inside     he   saw   Izetta     Young    and

immediately re-opened an argument. Simmons struck Young causing

the cell phone to fly out of her hand and land on the floor.
                                      33


Simmons picked up the phone as part of his bullying tactics

against Young:

    [Clifford Moore]:   And he picked up the phone and
         when he picked up the phone, that‘s when I was
         like grabbed him, told him Quez, you got to
         leave. You got to leave. That‘s when he like
         looked at me like, Well, I thought we supposed to
         be boys.

(Tp. 59) Simmons took the phone just to ―be boys.‖ The fact that

Simmons had no intention of keeping the phone is buttressed by

the quickness of its return to John Cooley, who had purchased

the phone. The next day Cooley asked Simmons why he had acted

the way he had in the trailer. Simmons responded that it was

because he didn‘t like Ms. Young. (Tp. 111) Cooley then asked

him why he had taken the cell phone. Simmons said that he would

go get the phone and return it, which he did. (Tp. 111) Thus,

the evidence is that Simmons did not even consider taking the

cell phone until it lay on the ground, that he took it—not to

permanently deprive—but as part of the dispute and that when

asked by the phone‘s purchaser, he quickly returned it.

    As      the   evidence     in   this   case   would      not    satisfy   ―a

reasonable mind‖ that Laquez Simmons ever formed the intent to

permanently deprive Ms. Young of her cell phone, the Trial Court

should have dismissed the common law robbery charge. It is an

essential    of   ―the   due   process     guaranteed   by    the    Fourteenth

Amendment that no person shall be made to suffer the onus of a
                                        34


criminal conviction except upon sufficient proof.‖ Jackson v.

Virginia et al., 443 U.S. 307, 316 (1979)               Denial of Defendant‘s

motions to dismiss was a violation of Defendant‘s constitutional

rights under the Fifth and Fourteenth Amendments of the United

States Constitution and Art. I, §§. 19 and 35 of the North

Carolina   Constitution.           A     violation      of    the   defendant‘s

constitutional rights is prejudicial unless the appellate court

finds that it is harmless beyond a reasonable doubt.                 The burden

is upon the State to demonstrate, beyond a reasonable doubt,

that the error was harmless. N.C. Gen. Stat. § 15A-1443(b); see,

State v. Lane, 301 N.C. 382, 387, 227 S.E.2d 273, 277 (1980).

Defendant is entitled to a new trial.




                                  CONCLUSION

    For    the    reasons   set   forth      above,   defendant     respectfully

contends   that    this   Court   should      reverse   his   convictions   and

sentence and order a new trial.

    Respectfully submitted this the ___ day of December, 2003.




                                       _____________________________
                                       Marilyn G. Ozer
                                       Attorney for Appellant
                                       211 North Columbia Street
                                       Chapel Hill, NC 27514
                                       (919) 967-8555
                              35


               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 sending it
first-class mail, postage prepaid to the Clerk of the North
Carolina Court of Appeals, Post Office Box 2779, Raleigh, North
Carolina 27602, by placing it in a depository for that purpose.
     I further hereby certify that a copy of the above and
foregoing Defendant-Appellant‘s Brief has been duly served upon
Daniel P. O‘Brien, Assistant Attorney General, North Carolina
Department of Justice, Post Office Box 629, Raleigh, North
Carolina 27602, by first-class mail, postage prepaid.
    This the ___ day of December, 2003.


                             ____________________________
                             Marilyn G. Ozer
                             Attorney at Law

				
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