State v. Murrell , 370 N.C. 187 ( 2017 )

IN THE SUPREME COURT OF NORTH CAROLINA
No. 233PA16
Filed 29 September 2017
STATE OF NORTH CAROLINA
v.
ALONZO ANTONIO MURRELL
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous,
unpublished decision of the Court of Appeals, ___ N.C. App. ___, ___ S.E.2d ___ (2016),
arresting a judgment entered on 15 May 2015 by Judge John E. Nobles, Jr., in
Superior Court, Onslow County, and remanding for resentencing. Heard in the
Supreme Court on 10 April 2017.
Joshua H. Stein, Attorney General, by Oliver G. Wheeler, IV, Assistant Attorney
General, for the State-appellant.
Glenn Gerding, Appellate Defender, by Daniel L. Spiegel, Assistant Appellate
Defender, for defendant-appellee.
ERVIN, Justice.
The issue before us in this case is whether an indictment returned for the
purpose of charging defendant with the offense of robbery with a dangerous weapon
sufficed to give the trial court jurisdiction to enter judgment against defendant based
upon his conviction for having committed that offense. After careful consideration of
the record in light of the applicable law, we hold that the challenged indictment was
fatally defective because it did not sufficiently allege all of the essential elements of
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Opinion of the Court
the offense of robbery with a dangerous weapon and, for that reason, affirm the Court
of Appeals’ decision.
At 11:45 a.m. on 13 September 2013, Stacy Phillips, a teller at a PNC Bank
branch located in Jacksonville, was the victim of a robbery. At that time, a man
entered the bank and laid a note on the counter in front of Ms. Phillips. “[T]he first
thing [Ms. Phillips] saw on [the note] was ‘armed,’ ” which led her to believe that a
robbery was in progress. More specifically, the note that the man placed before Ms.
Phillips read “armed” and instructed, “eyes down, 2,000 — or two straps of hundreds,
two straps of fifties, two straps of twenties, no devices.” In spite of the fact that the
only item that she saw in the robber’s possession was a case that he carried under his
arm, Ms. Phillips believed that the robber was armed based upon the information
contained in the note that he presented to her.
Although Ms. Phillips attempted to grab the note, the robber said, “Don’t touch
it.” At that point, Ms. Phillips gave the robber a bait strap, which included $330 in
marked bills; some additional $20, $50, and $100 bills; and a dye pack, all of which
the robber placed in the case. As the robber reached the door and began to leave the
bank, Ms. Phillips activated a silent alarm and complied with PNC’s robbery protocol
by calling the police, locking the facility’s doors, preparing an account of what she had
experienced, and providing assistance to the other persons present at the time of the
robbery.
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Detective Gary Manning of the Jacksonville Police Department, accompanied
by several other officers, arrived at the bank shortly after the robbery. After securing
the crime scene and obtaining information from other witnesses, Detective Manning
viewed surveillance video footage related to the robbery. As he did so, Detective
Manning observed that a “red bloom . . . emanat[ed] from the . . . front passenger area
of the vehicle” apparently used by the robber to facilitate his escape. According to
Karen Salefsky, the bank manager, the “red bloom” that could be seen in the
surveillance video resulted from the explosion of the dye pack contained in the bait
strap.
On the following day, Detective Manning received a call from an individual
who “had found money in a dumpster in Phoenix Park Apartments.” While searching
the dumpster, Detective Manning retrieved money “stained with a bright red” dye
“consistent with the manner in which a dye pack is prepared.” In addition, Detective
Manning determined that the serial numbers of the currency retrieved from the
dumpster matched those printed on the currency taken during the robbery.
On 23 September 2013, Crime Stoppers received a tip identifying the suspect
depicted in the surveillance footage, which had been released to the public, as
defendant, a resident of Kinston. After noticing “a striking resemblance between
photographs . . . of [defendant] and the person depicted in the surveillance footage,”
Detective Manning began to investigate defendant’s possible connection to the
robbery. Detective Manning learned that defendant had access to a vehicle
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resembling the one shown in the surveillance video footage, which was a black Suzuki
XL7 that was registered to defendant’s girlfriend, Heather Crider. On 4 October
2013, Ms. Crider’s Suzuki XL7 was located in downtown Kinston. While searching
the vehicle with Ms. Crider’s consent, Detective Manning observed red smudges on
the vehicle’s exterior consistent with those that would have been made during the
release of the dye pack contained in the bait strap.
At the time that he was arrested in Kinston on 11 October 2013, defendant
possessed a duffle bag that contained, among other things, a green bed sheet stained
with red material that was consistent with the color of certain stains found in the
dumpster and on the exterior of Ms. Crider’s Suzuki XL7. After waiving his Miranda
rights, defendant admitted that he had robbed the Jacksonville PNC Bank and gave
an account of that episode consistent with the information that Detective Manning
developed during his investigation. Although defendant told Detective Manning that
he had been “provided” with a “pee shooter,” which Detective Manning “took to mean
a small caliber pistol,” before entering the PNC Bank, investigating officers never
recovered it or any other weapon believed to have been used during the robbery.
On 12 August 2014, the Onslow County grand jury returned a bill of indictment
that was intended to charge defendant with robbery with a dangerous weapon. The
indictment alleged, in pertinent part, that:
defendant [ ] unlawfully, willfully and feloniously did steal,
take and carry away another’s personal property, U.S.
Money from PNC Financial Services Group, Inc., at the
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location of “PNC Bank” . . . when a bank employee, Stacy
Phillips was present. The defendant committed this act by
way of it reasonably appearing to the victim Stacy Phillips
that a dangerous weapon was in the defendant’s
possession, being used and threatened to be used by
communicating that he was armed to her in a note with
demands and instructions for her to complete, whereby the
life of Stacy Phillips was threatened and endangered.
The charges against defendant came on for trial before the trial court and a jury at
the 11 May 2015 criminal session of the Superior Court, Onslow County. On 15 May
2015, the jury returned a verdict convicting defendant as charged. Based upon the
jury’s verdict, the trial court entered a judgment sentencing defendant to a term of
fifty-three to seventy-six months imprisonment. Defendant noted an appeal from the
trial court’s judgment to the Court of Appeals.
In seeking relief from the trial court’s judgment before the Court of Appeals,
defendant argued, among other things, that the trial court had erred by failing to
dismiss the indictment returned against him in this case on the grounds that it failed
to properly charge him with the commission of robbery with a dangerous weapon.
According to defendant, “[t]he requirements for an indictment charging a crime in
which one of the elements is the use of a deadly weapon are (1) to ‘name the weapon
and (2) either to state expressly that the weapon used was a “deadly weapon” or to
allege such facts as would necessarily demonstrate the deadly character of the
weapon,’ ” quoting State v. Brinson, 337 N.C. 764, 768, 448 S.E.2d 822, 824 (1994)
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(emphasis omitted) (quoting State v. Palmer, 293 N.C. 633, 639-40, 239 S.E.2d 406,
411 (1997)). More specifically, defendant asserted that
[a]lthough the language “robbery with a dangerous
weapon” appears in the caption, the indictment fails to
name any weapon. Since no weapon was named, the State
could not expressly state that the weapon was a deadly
weapon or allege facts that demonstrate the deadly
character of the weapon. The indictment also fails to allege
any facts of how the victim’s life was threatened or
endangered. The indictment simply states that it appeared
to the victim that Mr. Murrell possessed a “dangerous
weapon.”
In defendant’s view, “[b]ecause the dangerous weapon [that] Mr. Murrell allegedly
possessed inside the bank was not named[,] the trial court was without subject matter
jurisdiction.” In support of this contention, defendant pointed out that “the
‘implement’ alleged in the indictment is a note which contained the word ‘armed,’ ”
which “is not an article, instrument or substance likely to produce death or great
bodily harm,” citing State v. Wiggins, 78 N.C. App. 405, 406, 337 S.E.2d 198, 199
(1985), and which “cannot[, for that reason,] constitute a dangerous weapon for
purposes of robbery with a dangerous weapon pursuant to N.C.[G.S.] § 14-87.”
The State, on the other hand, argued that the indictment intended to charge
defendant with robbery with a dangerous weapon sufficed to establish the trial court’s
jurisdiction because it alleged “that Defendant handed a note saying ‘armed’ to the
victim, and that it reasonably appeared to the victim that Defendant possessed a
‘dangerous weapon.’ ” According to the State, the indictment at issue in this case
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alleged the essential elements of the crime of robbery with a deadly weapon, citing
State v. Beaty, 306 N.C. 491, 496, 293 S.E.2d 760, 764 (1982), disapproved of on other
grounds by State v. White, 322 N.C. 506, 518, 369 S.E.2d 813, 819 (1988), given that
the indictment included references to “deadly weapon” and “armed.”
On 19 April 2016, the Court of Appeals filed an opinion holding that the
indictment intended to charge defendant with robbery with a dangerous weapon was
fatally defective because it failed to name any dangerous weapon that defendant
allegedly employed. State v. Murrell, ___ N.C. App ___, ___ S.E.2d ___, 2016 WL
1565576, at *5, (Apr. 19, 2016) (No. COA15-1097) (unpublished). As a result, the
Court of Appeals arrested judgment with respect to the charge of robbery with a
dangerous weapon. Id. However, given that the challenged indictment sufficiently
alleged the commission of a common law robbery, the Court of Appeals remanded this
case to the Superior Court, Onslow County, “for entry of judgment and resentencing
on common law robbery.” Id. (quoting State v. Marshall, 188 N.C App. 744, 752, 656
S.E.2d 709, 715, disc. rev. denied, 362 N.C. 368, 661 S.E.2d 890 (2008)). On 22
September 2016, this Court granted the State’s discretionary review petition.
In seeking to persuade this Court to reverse the Court of Appeals’ decision, the
State argues that the indictment at issue in this case sufficed to charge the
commission of a robbery with a dangerous weapon because it alleged all of the
elements of that criminal offense. As an initial matter, the State notes that this Court
has held that “[i]t is sufficient for indictments or warrants seeking to charge a crime
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in which one of the elements is the use of a deadly weapon (1) to name the weapon
and (2) either to state expressly that the weapon used was a ‘deadly weapon’ or to
allege such facts as would necessarily demonstrate the deadly character of the
weapon,” quoting Palmer, 293 N.C. at 639-40, 239 S.E.2d at 411 (emphasis omitted).
The indictment at issue in this case satisfies the first of these two approaches,
according to the State, because “the indictment did name a weapon” given the
allegation that defendant presented a “note saying that [he] was armed,” and because
this statement “amounts to [an allegation concerning the] actual threatened use of a
dangerous weapon.” In addition, the State asserts that the indictment at issue in
this case satisfies the second of the approaches delineated in Palmer because “the
indictment here expressly states that it appeared that Defendant possessed a
‘dangerous weapon.’ ” As a result, contrary to the Court of Appeals’ decision, the
State contends that “the indictment meets the aforementioned requirements for
robbery with a dangerous weapon.”
On the other hand, defendant asserts that the indictment that was intended to
charge defendant with robbery with a dangerous weapon in this case failed to satisfy
either of the approaches delineated in Palmer and did not, for that reason, suffice to
support defendant’s conviction for robbery with a dangerous weapon given its failure
to “specify a dangerous weapon,” to “set forth any facts describing a dangerous
weapon,” or to “allege that Mr. Murrell possessed any weapon at all.” According to
defendant, Palmer requires “some minimal degree of specificity in describing the
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dangerous weapon at issue in an indictment for robbery with a dangerous weapon.”
In defendant’s view, “[t]he State . . . must prove that the instrument in question is a
dangerous weapon”; in the event that “the State cannot name a dangerous weapon
nor describe one, the State cannot allege nor prove [armed robbery].” A note
containing the word “armed,” cannot, in defendant’s view, constitute a “dangerous
weapon.” According to defendant, the indictment fails to allege that defendant
possessed a dangerous weapon while committing the robbery, citing State v. Keller,
214 N.C. 447, 449, 199 S.E. 620, 621 (1938) (holding that robbery with a dangerous
weapon “requires as a constituent element the presence of firearms [or some other
dangerous weapon]”). A mere allegation that defendant informed the bank teller that
he was armed simply “fails to allege that Mr. Murrell in fact possessed a dangerous
weapon.” (Emphasis omitted.) Put another way, defendant argues that the
indictment alleged that defendant “conveyed the impression that he possessed some
type of weapon” while failing to allege the actual possession of a dangerous weapon.
As a result, defendant asserts that “[t]he indictment was fatally defective and
conferred jurisdiction only for common law robbery.”
According to well-established North Carolina law, a valid indictment is
necessary to confer jurisdiction upon the trial court. See, e.g., State v. Morgan, 226
N.C. 414, 415, 38 S.E.2d 166, 167 (1946); see also State v. Snyder, 343 N.C. 61, 65,
468 S.E.2d 221, 224 (1996). Generally speaking, an indictment is sufficient if it: (1)
“apprises the defendant of the charge against him with enough certainty to enable
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him to prepare his defense”; (2) “protect[s] him from subsequent prosecution for the
same offense”; and (3) “enable[s] the court to know what judgment to pronounce in
the event of conviction.” State v. Coker, 312 N.C. 432, 434-35, 323 S.E.2d 343, 346
(1984) (citations omitted); see also N.C.G.S. § 15A-924(a)(5) (2015) (requiring that a
criminal pleading contain “[a] plain and concise factual statement in each count
which, without allegations of an evidentiary nature, asserts facts supporting every
element of a criminal offense and the defendant’s commission thereof with sufficient
precision clearly to apprise the defendant . . . of the conduct which is the subject of
the accusation”). In order to satisfy the relevant statutory requirements, including
the provision of adequate notice, an “indictment must allege lucidly and accurately
all the essential elements of the offense endeavored to be charged.” State v. Ellis, 368
N.C. 342, 344, 776 S.E.2d 675, 677 (2015) (quoting State v. Hunt, 357 N.C. 257, 267,
582 S.E.2d 593, 600, cert. denied, 539 U.S. 985, 124 S. Ct. 44, 156 L. Ed. 2d 702(2003)). Consistent with this general rule, “[a]n indictment charging a statutory
offense must allege all of the essential elements of the offense.” Snyder, 343 N.C. at
65, 468 S.E.2d at 224 (citation omitted). “A criminal pleading . . . is fatally defective
if it ‘fails to state some essential and necessary element of the offense of which the
defendant is found guilty,’ ” Ellis, 368 N.C. at 344, 776 S.E.2d at 677 (quoting State
v. Gregory, 223 N.C. 415, 418, 27 S.E.2d 140, 142 (1943)), with the presence or absence
of such a fatal defect to be “judged based solely upon the language of the criminal
pleading in question without giving any consideration to the evidence that is
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ultimately offered in support of the accusation contained in that pleading,” id. at 347,
776 S.E.2d at 679.
Any person or persons who, having in possession or
with the use or threatened use of any firearms or other
dangerous weapon, implement or means, whereby the life
of a person is endangered or threatened, unlawfully takes
or attempts to take personal property from another or from
any place of business, residence or banking institution or
any other place where there is a person or persons in
attendance, at any time, either day or night . . . shall be
guilty of a Class D felony.
N.C.G.S. § 14-87(a) (2015) (defining “Robbery with firearms or other dangerous
weapons”). As a result, the essential elements of the offense of robbery with a
dangerous weapon are (1) the unlawful taking or attempted taking of personal
property from another; (2) the possession, use, or threatened use of firearms or other
dangerous weapon,1 implement, or means; and (3) a danger or threat to the life of the
victim. See State v. Moore, 279 N.C. 455, 458, 183 S.E.2d 546, 548 (1971); see also
N.C.G.S. § 14-87(a). Although the indictment at issue in this case clearly alleges that
defendant unlawfully took the personal property of another while threatening the life
1 A “well-accepted definition of a deadly weapon in this State” is “a weapon which is
likely to cause death or serious bodily injury.” State v. Sturdivant, 304 N.C. 293, 303, 283
S.E.2d 719, 727 (1981) (citations omitted); see also State v. Watkins, 200 N.C. 692, 694, 158
S.E. 393, 394 (1931) (stating that “[a]ny instrument which is likely to produce death or great
bodily harm, under the circumstances of its use, is properly denominated a deadly weapon”).
“Whether an instrument can be considered a dangerous weapon depends upon the nature of
the instrument, the manner in which defendant used it or threatened to use it, and in some
cases the victim’s perception of the instrument and its use.” State v. Peacock, 313 N.C. 554,
563, 330 S.E.2d 190, 196 (1985) (citations omitted) (finding that the victim’s “life was
endangered by defendant’s use of the glass vase,” with which he struck her head).
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of the victim, we do not believe that the indictment adequately alleges the possession,
use, or threatened use of firearms or other dangerous weapon, implement, or means.
As this Court has previously stated, “robbery with firearms of necessity
requires as a constituent element the presence of firearms,” Keller, 214 N.C. at 449,
199 S.E. at 621, or, by logical extension, the presence of a dangerous weapon. See
also State v. Joyner, 295 N.C. 55, 63, 243 S.E.2d 367, 373 (1978) (stating that “[t]he
question in an armed robbery case is whether a person’s life was in fact endangered
or threatened by defendant’s possession, use or threatened use of a dangerous
weapon, not whether the victim was scared or in fear of his life”). In evaluating the
meaning of the statutory reference to “the use or threatened use of any firearms,”
N.C.G.S. § 14-87(a), we have previously determined that
the word “use” as a noun has the meaning of an “act of
employing anything, or state of being employed;
application; employment . . . . The words “threatened use”
coupled, as they are, with the preceding words clearly
indicate the threatened act of employing. Hence, construed
contextually the clause “with the use or threatened use” of
a weapon, requires, in the one instance, or presupposes, in
the other, the presence of the weapon with which the act
may be executed or threatened.
Keller, 214 N.C. at 449, 199 S.E. at 621-22 (internal citations omitted); see also State
v. Hinton, 361 N.C. 207, 211-12, 639 S.E.2d 437, 440 (2007) (stating that “the General
Assembly intended to require the State to prove that a defendant used an external
dangerous weapon before conviction under the statute is proper”); State v. Williams,
335 N.C. 518, 520, 438 S.E.2d 727, 728 (1994) (stating that, “[t]o establish robbery or
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attempted robbery with a dangerous weapon, the State was required to prove beyond
a reasonable doubt that the defendant possessed a firearm or other dangerous
weapon at the time of the robbery or attempted robbery and that the victim’s life was
in danger or threatened”) (citing N.C.G.S. § 14-87 (1986)); State v. Gibbons, 303 N.C.
484, 491, 279 S.E.2d 574, 578 (1981) (stating that “[o]ur interpretation, which
requires both an act of possession and an act with the weapon which endangers or
threatens the life of the victim gives substance to all of the terms of the statute”). As
a result, an indictment sufficient to charge the offense of robbery with a dangerous
weapon must allege the presence of a firearm or dangerous weapon used to threaten
or endanger the life of a person.
In State v. Palmer, this Court, in addressing the manner in which the use of a
“dangerous weapon” must be alleged,2 held
that it is sufficient for indictments . . . seeking to charge a
crime in which one of the elements is the use of a deadly
weapon (1) to name the weapon and (2) either to state
expressly that the weapon used was a “deadly weapon” or
to allege such facts as would necessarily demonstrate the
deadly character of the weapon. Whether the state can
prove the allegation is, of course, a question of evidence
which cannot be determined until trial.
2“The terms ‘dangerous’ and ‘deadly,’ when used to describe a weapon, are practically
synonymous.” Sturdivant, 304 N.C. at 303, 283 S.E.2d at 727 (citing Black’s Law Dictionary
355, 359 (5th ed. 1979)).
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293 N.C. at 639-40, 239 S.E.2d at 411.3 For instance, in State v. Brinson, an
indictment purporting to charge an assault with a deadly weapon alleged, in
pertinent part, that the defendant “unlawfully, willfully and feloniously did assault
John Delton Eason, Jr. . . . by . . . slamming his head against the cell bars, a deadly
weapon, and floor. The assault was intended to kill and resulted in serious injury, a
broken neck . . . and . . . left the victim paralyzed.” Brinson, 337 N.C. at 767, 448
S.E.2d at 824. This Court determined that the indictment satisfied the first of the
two approaches delineated in Palmer because it “specifically referred to the cell bars
and cell floor” and satisfied the second of the two approaches delineated in Palmer by
stating that “the victim’s broken neck and paralysis resulted from the ‘assault,’ ”
“ ‘necessarily demonstrat[ing] the deadly character’ of’ the cell bars and floor.” Id. at
768, 448 S.E.2d at 825 (quoting Palmer, 293 N.C. at 640, 239 S.E.2d at 411 (emphasis
omitted)).
The indictment at issue in this case alleged that defendant took money “by way
of it reasonably appearing to the victim . . . that a dangerous weapon was in the
defendant’s possession, being used and threatened to be used by communicating that
he was armed to her in a note.” An allegation that it “reasonably appear[ed] . . . that
3 As a result of the fact that “[t]he crime of armed robbery defined in [N.C.]G.S. [§] 14-
87 includes an assault on the person with a deadly weapon,” State v. Richardson, 279 N.C.
621, 628, 185 S.E.2d 102, 107 (1971), this case is controlled by Palmer. The State does not,
in its brief before this Court, question Palmer’s validity or suggest that it is not controlling
in this case. Instead, the State appears to argue that the allegations contained in the
indictment at issue in this case are fully Palmer-compliant.
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a dangerous weapon was in the defendant’s possession” is simply not equivalent to
an allegation that defendant actually possessed a weapon.4 In the event that the
allegation that defendant was “armed” was intended to suggest that defendant
possessed an unidentified weapon, the nature, identity, or deadly character of that
unidentified weapon is not described at any point in the indictment. See State v.
Hines, 166 N.C. App. 202, 207, 600 S.E.2d 891, 895 (2004) (addressing a fatal variance
claim, rather than a challenge to the indictment’s sufficiency, arising under an
indictment describing the weapon used in a robbery as “an unknown blunt force object
causing trauma to the head of the victim.”). Simply put, the indictment at issue in
this case provides no basis for a determination that defendant was “armed” with any
implement that was inherently dangerous or used in such a manner as to threaten
the infliction of death or serious injury.5 As a result, since the indictment returned
4 The absence of a reference to any weapon differentiates this case from Marshall, 188
N.C. App. at 749-50, 656 S.E.2d at 713-14, in which the Court of Appeals determined that,
while an allegation that the defendant’s action in “keeping his hand in his coat” sufficiently
“nam[ed] the weapon,” the indictment was still fatally defective because “pretending to
possess a dangerous weapon is not a dangerous weapon” and because the indictment “fail[ed]
either to state expressly that the weapon was dangerous or to allege facts that necessarily
demonstrat[ed] the dangerous nature of the weapon.” Instead, the indictment at issue in this
case resembles the indictment at issue in State v. Moses, 154 N.C. App. 332, 335, 572 S.E.2d
223, 226 (2002), in which the count of the indictment returned for the purpose of charging
defendant with assault with a deadly weapon inflicting serious injury alleged that the
defendant “assault[ed] Mateo Mendez Jimenez with a deadly weapon” resulting “in the
infliction of a serious injury, knocking out his teeth.”
5 Although the indictment does allege that it “reasonabl[y] appear[ed]” to Ms. Phillips
that “a dangerous weapon was in the defendant’s possession,” that allegation is not
tantamount to an assertion that defendant was, in fact, in possession of a dangerous weapon
or that any such weapon was used to threaten Ms. Phillips with death or serious bodily harm.
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against defendant in this case failed to sufficiently allege that defendant possessed,
used, or threatened to use a dangerous weapon,6 the Court of Appeals correctly held
that the indictment returned against defendant in this case for the purpose of
charging him with the commission of a robbery with a dangerous weapon was fatally
defective.
AFFIRMED.
Justice JACKSON dissenting.
When bank employees resist robbery attempts, tragedy often results. The
policy that bank employees should comply with a robber’s demands has protected
countless lives. Here, because no one resisted defendant’s threat, no one was injured.
To be sure, this Court has found the evidence sufficient to support a defendant’s conviction
for robbery with a dangerous weapon based upon a presumption or inference arising from
“the defendant’s use of what appeared to the victim to be a firearm or other dangerous
weapon.” State v. Joyner, 312 N.C. 779, 786, 324 S.E.2d 841, 846 (1985). Rather than
obviating the necessity for proof that the defendant actually possessed or utilized an
implement that was, in fact, a dangerous weapon, Joyner and similar decisions allow a jury
to find the possession or use of such an implement based upon testimony describing what the
item reasonably appeared to be. As a result, there is no conflict between Palmer and decisions
such as Joyner, none of which allow a defendant to be convicted of robbery with a dangerous
weapon on the basis of a threat divorced from the actual possession or use of a deadly weapon.
6 The State suggests that the indictment identifies the note that defendant allegedly
displayed to Ms. Phillips as the required weapon. However, when the relevant portions of
the indictment are read in their ordinary sense, the indictment simply asserts that the note
was the means by which defendant informed Ms. Phillips that he was “armed.”
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JACKSON, J., dissenting
Law enforcement eventually apprehended defendant, and the grand jury issued an
indictment that notified defendant of the charge against him. Based upon this
indictment, defendant was able to prepare adequately for trial. The jury considered
the evidence and convicted defendant. Now, the majority sets aside the jury’s verdict
based upon an alleged error in wording. The indictment charging defendant with the
offense of robbery with a dangerous weapon was sufficient to confer jurisdiction upon
the trial court because the indictment clearly notified defendant of the charge against
him, thus allowing him ample opportunity to prepare a defense. Accordingly, I
respectfully dissent from the majority opinion.
In this case the indictment alleged that defendant:
[u]nlawfully, willfully and feloniously did steal, take and
carry away another’s personal property, U.S. Money from
PNC Financial Services Group, Inc. . . . when a bank
employee, Stacy Phillips[,] was present. The defendant
committed this act by way of it reasonably appearing to the
victim[,] Stacy Phillips[,] that a dangerous weapon was in
the defendant’s possession, being used and threatened to
be used by communicating that he was armed to her in a
note with demands and instructions for her to complete,
whereby the life of Stacy Phillips was threatened and
endangered.
The majority holds that the indictment “clearly alleges that defendant unlawfully
took the personal property of another while threatening the life of the victim” but is
nonetheless “fatally defective because it did not sufficiently allege all of the essential
elements of the offense of robbery with a dangerous weapon.” Specifically, the
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JACKSON, J., dissenting
majority notes that the indictment fails to “adequately allege[ ] the possession, use or
threatened use of firearms or other dangerous weapon, implement or means.” In
reaching this conclusion, the majority essentially holds that the indictment is only
sufficient to support the lesser included offense of common law robbery.
Unlike common law robbery, the offense of robbery with a dangerous weapon
requires the use or threatened use of a dangerous weapon. According to section 14-
87(a):
Any person or persons who, having in possession or with
the use or threatened use of any firearms or other
dangerous weapon, implement or means, whereby the life
of a person is endangered or threatened, unlawfully takes
or attempts to take personal property from another or from
any place of business, residence or banking institution or
any other place where there is a person or persons in
attendance, at any time, either day or night, or who aids or
abets any such person or persons in the commission of such
crime, shall be guilty of a Class D felony.
N.C.G.S. § 14-87(a) (2015) (emphases added). “The critical and essential difference
between” the offense set forth in N.C.G.S. § 14-87—robbery with a dangerous weapon
or armed robbery—and common law robbery is that for a jury to find a defendant
guilty of armed robbery, “the victim must be endangered or threatened by the use or
threatened use of a ‘firearm or other dangerous weapon, implement or means.’ ” State
v. Bailey, 278 N.C. 80, 87, 178 S.E.2d 809, 813 (1971) (emphasis added) (quoting State
v. Covington, 273 N.C. 690, 700, 161 S.E.2d 140, 147 (1968)). If the threatened use
of a dangerous weapon is sufficient to sustain a conviction for the offense, then the
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STATE V. MURRELL
JACKSON, J., dissenting
same allegation must be sufficient to place defendant on notice of that same charged
offense. To rule otherwise seems to create the classic chicken and egg dilemma. How
can the State convict a person of a crime for which he cannot be indicted? Adopting
the majority’s logic would inhibit, if not outright prohibit, such prosecutions. This
cannot be what the legislature intended.
In so doing, the majority also discounts the effect of this threat upon the person
subjected to such a threat—an effect specifically contemplated by both the statute
and our precedent. Our cases make clear that it is not only the possession of a weapon
that meets the threshold for robbery with a dangerous weapon but also the threat
resulting from such possession, whether real or merely implied. As we noted in State
v. Williams, there is a presumption that (1) a defendant has used a firearm or other
dangerous weapon when he commits a robbery by the use or threatened use of an
implement which appears to be a firearm or other dangerous weapon, and (2) such
conduct endangered or threated the victim’s life. 335 N.C. 518, 520-21, 438 S.E.2d
727, 728 (1994); see also State v. Thompson, 297 N.C. 285, 288-89, 254 S.E.2d 526,
528 (1979). The presumption may be rebutted with a showing of “some evidence” that
the victim was not endangered or threatened, at which point a permissive inference
survives. Williams, 335 N.C. at 521, 438 S.E.2d at 729 (emphasis omitted) (quoting
State v. White, 300 N.C. 494, 507, 268 S.E.2d 481, 489 (1980)).
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STATE V. MURRELL
JACKSON, J., dissenting
Our case law addressing the purpose of indictments is both long-standing and
clear. As the majority opinion correctly notes, and thoroughly discusses, the
fundamental purpose of an indictment is to place a criminal defendant on notice of
the charges being brought against him in order to allow him to prepare an adequate
defense. In short, the indictment notifies defendant of the charge against him; the
jury determines if the evidence is adequate to support the charge. The information
provided in the indictment—including the reference to section 14-87—clearly was
sufficient to place defendant on notice that he was being tried for robbery with a
dangerous weapon and that the gravamen of his offense was the bank employee’s
reasonable apprehension based upon the note he showed her stating that he was
armed.
The majority cites our previous decision in State v. Palmer for the proposition
that an indictment alleging the use of a dangerous weapon must “name the weapon.”
Palmer, 293 N.C. 633, 639, 239 S.E.2d 406, 411 (1977). Palmer does require an
indictment for assault with a deadly weapon to identify a particular weapon;
however, I am troubled by the analytical framework set forth in Palmer in that it
appears to be inconsistent with the long-standing precedents of this Court and places
significant reliance upon a case that depended in large part on a legal treatise for the
foundation of its legal analysis. See id. at 639-40, 239 S.E.2d at 410-11.
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STATE V. MURRELL
JACKSON, J., dissenting
Palmer actually concerned the sufficiency of an indictment for assault with a
deadly weapon—a wholly different statute than the one at issue here. Therefore,
Palmer’s utility in analyzing this case is of limited value. Moreover, there are three
additional reasons Palmer should not guide our inquiry in this case. First, Palmer
stated that indictments for crimes involving the use of a deadly weapon must “name
the weapon,” 293 N.C. at 639, 239 S.E.2d at 411, but, to the extent that this rule
applied to statutes other than the one at issue in Palmer, that requirement was
dictum. In addition, Palmer based its rule on a case that relied substantially on an
entry from Corpus Juris Secundum (C.J.S.). See id. at 639, 239 S.E.2d at 410-11(quoting State v. Wiggs, 269 N.C. 507, 513, 153 S.E.2d 84, 89 (1967)). But legal
treatise entries are not binding authority on this Court—nor should they be—so the
source of Palmer’s rule is troubling. Finally, a review of the pertinent C.J.S. entry
quoted in Palmer fails to support the rule that Palmer set forth. That C.J.S. entry
suggests only that an indictment must either (1) name the weapon (if its dangerous
or deadly nature is obvious), (2) assert that a dangerous or deadly weapon was used,
or (3) state enough facts to show that the weapon was deadly or dangerous. For all
these reasons, we should not extend Palmer’s dictum to cover the statute at issue
here.
Because Palmer is inconsistent with Williams and its forebears and progeny,
however, Palmer has erroneously engrafted a requirement not included within the
plain meaning of the words of the assault with a deadly weapon statute. Therefore,
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STATE V. MURRELL
JACKSON, J., dissenting
I cannot agree with the majority’s determination that it is appropriate to engraft that
same requirement on the statute at issue here—namely, robbery with a dangerous
weapon—because the plain meaning of that statute does not include the requirement.
Simply considering the statutory requirements for a conviction for robbery
with a dangerous weapon, I find it impossible to conclude that the majority opinion
has reached the correct conclusion in this case. In addition, in practice the majority’s
holding will place a high burden on law enforcement and prosecutors who prepare
indictments to ensure that the dangerous weapon actually utilized during the robbery
has been located. This seems to be a quantum shift in the jurisprudence of both this
Court and our Court of Appeals.1 According to our current precedents, a serious
crime has been committed, but the majority’s analysis will make it far more difficult
to prosecute these types of offenses in the absence of the actual weapon utilized in
the commission of a crime.
1 See, e.g., State v. Waters, ___ N.C. App. ___, 799 S.E.2d 287, 2017 WL 2118718, at
*4 (2017) (unpublished) (holding that a defendant’s threat of possessing a bomb, which
provoked victim’s reasonable belief in the veracity of that threat, was sufficient to overcome
the defendant’s motion to dismiss a charge of robbery with a dangerous weapon even though
police failed to “discover a bomb, evidence of a bomb, or any bomb-making materials”); State
v. Jarrett, 167 N.C. App. 336, 337, 341, 607 S.E.2d 661, 662, 664 (2004) (holding no error in
the defendant’s trial and conviction for robbery with a dangerous weapon even though “[a]
gun was not found on defendant’s body nor in the house from which [law enforcement] saw
defendant exit”), cert. denied, 359 N.C. 324, 611 S.E.2d 840 (2005); State v. Coatney, 164 N.C.
App. 599, 596 S.E.2d 472, 2004 WL 1191779, at *1, *3 (2004) (unpublished) (concluding that,
on a charge of robbery with a dangerous weapon, “the evidence here entitled the State to a
mandatory presumption that defendant used a firearm or dangerous weapon and endangered
or threatened the victim's life,” while noting that police did not recover a gun).
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STATE V. MURRELL
JACKSON, J., dissenting
For the foregoing reasons, I dissent.
Chief Justice MARTIN and Justice NEWBY join in this dissenting opinion.
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