State v. Surratt ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-1413
NORTH CAROLINA COURT OF APPEALS
Filed: 5 August 2014
STATE OF NORTH CAROLINA
v. Cleveland County
Nos. 09 CRS 57002–03, 57100–01
QUINTON O’BRIAN SURRATT
Appeal by Defendant from Judgments entered 30 May 2013 by
Judge Nathaniel J. Poovey in Cleveland County Superior Court.
Heard in the Court of Appeals 23 April 2014.
Attorney General Roy Cooper, by Special Deputy Attorney
General Jill Ledford Cheek, for the State.
Cheshire Parker Schneider & Bryan, PLLC, by John Keating
Wiles, for Defendant.
STEPHENS, Judge.
Evidence and Procedural History
This case arises from a robbery committed on 15 December
2009. At trial, the State’s evidence tended to show the
following:
Lance Smith, Thomas Herring III, Orlando Littlejohn, and
Appollonia Eley were at Christopher Parrott’s house in Shelby,
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North Carolina on 15 December 2009. Christopher Parrott was in
his bedroom playing video games. Parrott worked as a rapper and
an employee in his mother’s restaurant. He also sold marijuana
out of his home, a fact which was commonly known in the
community.
Around 10:00 a.m. on 15 December 2009, Trumaine Jefferies,
Jonavan Hopper, and Defendant Quinton O’Brian Surratt (together,
“the trio”) went to Parrott’s house under the guise of
purchasing marijuana. They gained entry into the house and went
to Parrott’s bedroom. Once there, the trio pulled out guns and
took marijuana, cash, clothes, two PlayStation 3 video game
consoles, a television, and some shoes. As the trio was leaving,
Jefferies held Parrott and the others in the home at gunpoint
while Defendant and Hopper put the stolen items in the back of
their vehicle.
While Defendant and Hopper were putting the items in the
vehicle, Parrott lunged at Jefferies to recover the gun. Parrott
was able to gain possession of the weapon, and Hopper and
Defendant opened fire from the automobile. Parrott was injured
during the shooting.
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Jefferies got up and went to the automobile with Defendant
and Hopper. Parrott was placed in Eley’s Volvo and taken to the
hospital. Parrott died later that day.
Immediately after the robbery, the trio contacted Keon
Ross and Arthiando Phillips and rode with them to Greenville,
South Carolina. There they lived in a hotel until 17 December
2009, when they were apprehended. After their arrest, law
enforcement officers found marijuana, handguns, PlayStation 3
consoles, and clothing inside their room. Herring, Smith, and
Littlejohn identified Defendant from photographic lineups.
Following completion of the State’s evidence, Defendant
presented contradictory evidence. According to his testimony and
the testimony of Jeffries, the events on 15 December 2009
occurred as follows:
The trio went to Parrott’s house to buy marijuana, not to
rob anyone. Defendant was the only one of the trio left in the
house when Hopper and Jefferies took the stolen items to put in
the car. Parrott lunged at Defendant, which resulted in a
scuffle. Parrott was on top of Defendant and grabbed a gun. When
Parrott prepared to shoot, Jefferies and Hopper opened fire.
After Parrott was hit, Defendant was helped up and left with
Hopper and Jefferies.
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Defendant testified that he did not steal anything and he
did not shoot anyone. Defendant and Jefferies both testified
that, after leaving Parrott’s house, the trio promptly left
Shelby and went to Greenville, South Carolina where they were
apprehended. On cross-examination, Defendant admitted stating in
a recorded conversation with Phillips that he did not want to
talk over the phone about his warrants. Over Defendant’s
objection, the prosecutor asked the following question in
connection with the recorded conversation: “If you’re innocent,
why does it matter if you’re being recorded?” Defendant
responded that he “didn’t want to make it worse than it already
was.”
Following closing arguments, Defendant requested a jury
instruction on “self-defense or . . . defense of others.” The
trial court denied that request on grounds that the evidence
would not “support a self[-]defense instruction under any
scenario.” The jury returned verdicts of guilty of felony
breaking and entering, felony conspiracy to commit robbery with
a dangerous weapon, robbery with a dangerous weapon, and first-
degree murder under the felony murder rule based on the
underlying felony of armed robbery. The court imposed a life
sentence without parole for the murder conviction and 8 to 10
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months imprisonment for felonious breaking and entering. The
court then arrested judgment with respect to Defendant’s
convictions for robbery with a dangerous weapon and conspiracy
to commit robbery with a dangerous weapon. Defendant gave notice
of appeal in open court.
Discussion
On appeal, Defendant argues that the trial court erred when
it (1) denied his request for an instruction on defense of
another and (2) overruled Defendant’s objection to the
prosecutor’s question regarding the recorded conversation. We
find no prejudicial error.
I. Jury Instruction on Defense of Another
Defendant argues that the trial court improperly denied his
request for a jury instruction on defense of another as applied
to the charge of felony murder because “the robbery ended when
the [trio] left the bedroom, and . . . Parrot initiated a new
encounter when . . . he followed the [trio] and proceeded to
become the aggressor by lunging for the gun, gaining possession
of the gun, and popping up to shoot,” creating a situation where
perfect defense of another would be applicable to excuse the
killing. Without that error, Defendant contends, the jury “might
have acquitted [him] of the murder charge and convicted him only
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of the charges of felonious breaking or entering, robbery with a
dangerous weapon, and conspiracy to commit robbery with a
dangerous weapon.” We disagree.
“[Arguments] challenging the trial court’s decisions
regarding jury instructions are reviewed de novo by this Court.
An instruction about a material matter must be based on
sufficient evidence.” State v. Osorio, 196 N.C. App. 458, 466,
675 S.E.2d 144, 149 (2009).
First-degree murder by reason of felony
murder is committed when a victim is killed
during the perpetration or attempted
perpetration of certain enumerated felonies
or a felony committed or attempted with the
use of a deadly weapon. In felony murder,
the killing may, but need not, be
intentional. There must, however, be an
unbroken chain of events leading from the
attempted felony to the act causing death so
that the homicide is part of a series of
events forming one continuous transaction.
State v. Gibbs, 335 N.C. 1, 51–52, 436 S.E.2d 321, 350 (1993)
(citation and internal quotation marks omitted), cert. denied,
512 U.S. 1246, 129 L. Ed. 2d 881 (1993).
As a general rule, a defendant in North Carolina may be
excused for a murder under a theory of perfect self-defense if,
at the time of the killing:
(1) it appeared to [the] defendant and he
believed it to be necessary to kill the
deceased in order to save himself from death
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or great bodily harm; and
(2) [the] defendant’s belief was reasonable
in that the circumstances as they appeared
to him at the time were sufficient to create
such a belief in the mind of a person of
ordinary firmness; and
(3) [the] defendant was not the aggressor in
bringing on the affray, i.e., he did not
aggressively and willingly enter into the
fight without legal excuse or provocation;
and
(4) [the] defendant did not use excessive
force, i.e., did not use more force than was
necessary or reasonably appeared to him to
be necessary under the circumstances to
protect himself from death or great bodily
harm.
Imperfect self-defense arises when the
defendant reasonably believed it was
necessary to kill the deceased in order to
save himself from death or great bodily
harm, but [the] defendant, although without
murderous intent, was the aggressor or used
excessive force. One who exercised the right
of imperfect self-defense in killing an
adversary remains guilty of at least
voluntary manslaughter.
State v. Martin, 131 N.C. App. 38, 44–45, 506 S.E.2d 260, 265
(citations and internal quotation marks omitted; italics added),
disc. review denied, 349 N.C. 532, 526 S.E.2d 475 (1998). In
addition, “one may lawfully do in another’s defense only what
the other might lawfully do in his own defense.” State v.
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McLawhorn, 270 N.C. 622, 629, 155 S.E.2d 198, 204 (1967).
Therefore,
[i]n order to establish either perfect or
imperfect defense of another, the evidence
must show that it appeared to the defendant
and he believed it necessary to kill the
deceased in order to save another from death
or great bodily harm. It must also appear
that the defendant’s belief was reasonable
in that the circumstances as they appeared
to him at that time were sufficient to
create such a belief in the mind of a person
of ordinary firmness. The relevant
distinction between the two defenses is that
imperfect defense of another arises when the
first two elements are present but either
the third or the forth element is absent.
State v. Perry, 338 N.C. 457, 466–67, 450 S.E.2d 471, 476–77
(1994) (citations omitted; emphasis modified).
When a defendant is charged with first-degree murder under
a theory of felony murder, however,
neither perfect nor imperfect self-defense
is available [as an excuse]. In felony
murder cases, self-defense is available only
to the extent that perfect self-defense
applies to the relevant underlying felonies.
Imperfect self-defense is not available as a
defense to felonies underlying a felony
murder charge.
Martin, 131 N.C. App. at 45, 506 S.E.2d at 265 (citation
omitted; emphasis added).
[T]he purpose of the felony murder rule is
to deter even accidental killings from
occurring during the commission of a
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dangerous felony. To allow self-defense,
perfect or imperfect, to apply to felony
murder would defeat that purpose, and if a
person is killed during the perpetration or
attempted perpetration of a felony, then the
defendant is guilty of first-degree felony
murder — not second-degree murder or
manslaughter. It is only certain applicable
underlying felonies that can be subject to
an instruction on perfect self-defense.
State v. Richardson, 341 N.C. 658, 668–69, 462 S.E.2d 492, 499
(1995) (emphasis added).
In this case, Defendant was convicted of first-degree
murder under the felony murder rule based on armed robbery as
the underlying felony. Defendant was not convicted of first-
degree murder on other grounds (i.e., premeditation and
deliberation). Contrary to Defendant’s contention, the record
contains no evidence tending to show that the chain of events
involving the robbery had come to an end by the time of the
shooting. On appeal, Defendant argues that the trial court erred
by not instructing on defense of another because the jury “might
have acquitted [Defendant] of the murder charge and convicted
him only of the charges of felonious breaking and entering,
robbery with a dangerous weapon, and conspiracy to commit
robbery with a dangerous weapon.” (Emphasis added). He does not
argue that the theory of perfect defense of another somehow
applies to negate the crime of armed robbery or, in line with
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his testimony at trial, that he did not participate in the crime
and, thus, that the trial court erred by instructing the jury on
armed robbery. Defendant only contends that the trial court
erred in failing to instruct on defense of another because the
jury might have changed its verdict that he was guilty of murder
if it knew that “the law might recognize a defense to the
killing.”1
As our appellate courts have made abundantly clear, the
doctrine of self-defense does not excuse a charge of first-
degree murder under the felony murder theory. Richardson, 341
N.C. at 668–69, 462 S.E.2d at 499; Martin, 131 N.C. App. at 45,
506 S.E.2d at 265. Because “one may lawfully do in another’s
defense only what the other might lawfully do in his own
defense,” McLawhorn, 270 N.C. at 629, 155 S.E.2d at 204, we must
also hold that an instruction on perfect defense of another is
similarly unavailable to defend against first-degree murder
under the felony murder theory. See McLawhorn, 270 N.C. at 629,
155 S.E.2d at 203–04; see also Martin, 131 N.C. App. at 44–45,
1
As discussed above, the law will not excuse a killing when
committed in the course of a felony even if the defendant has
some colorable argument that self-defense was appropriate as it
relates to the murder. The law will only excuse such a killing
if perfect self-defense or perfect defense of another somehow
applies to negate the underlying felony — here, the armed
robbery.
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506 S.E.2d at 265. Therefore, an instruction on perfect defense
of another is only applicable to the charge of felony murder
where it might negate the relevant underlying felony. See
McLawhorn, 270 N.C. at 629, 155 S.E.2d at 203–04; see also
Martin, 131 N.C. App. at 44–45, 506 S.E.2d at 265. Here, that
felony is armed robbery. Since Defendant does not argue that
perfect defense of another somehow works to negate his
conviction of armed robbery, we conclude that the trial court
did not err in declining to instruct the jury on defense of
another.2 Accordingly, Defendant’s argument is overruled.
II. Self-Incrimination
Defendant next argues that the trial court committed
prejudicial error in violation of his constitutional privilege
against self-incrimination and his due process rights by
2
Even if Defendant had argued that a theory of self-defense
would work to excuse the underlying felony of armed robbery,
recent case law from this Court indicates that he would have
been unsuccessful. See State v. Evans, __ N.C. App. __, __, 747
S.E.2d 151, 155 (2013) (holding that the trial court did not err
in omitting an instruction on self-defense when the defendant
was charged with first-degree murder on the basis of the felony
murder rule where the underlying felonies were attempted
robberies with a dangerous weapon) (citing State v. Jacobs, 363
N.C. 815, 822, 689 S.E.2d 859, 864 (2010) (“As to felony murder,
self-defense is available only to the extent that it relates to
applicable underlying felonies. We fail to see how [the]
defendant could plead self-defense to a robbery the jury found
he had attempted to commit himself.”) (emphasis added)).
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overruling his objection to the prosecutor’s question on cross-
examination “about why it mattered that [Defendant’s] phone call
from the jail was being recorded if he [were] innocent.” We
disagree.
It is well-settled that de novo review
is ordinarily appropriate in cases where
constitutional rights are implicated. A
violation of the defendant’s rights under
the Constitution of the United States is
prejudicial unless the appellate court finds
that it was harmless beyond a reasonable
doubt. The burden is upon the State to
demonstrate, beyond a reasonable doubt, that
the error was harmless.
State v. Tate, 187 N.C. App. 593, 599, 653 S.E.2d 892, 897
(2007) (citations and internal quotation marks omitted).
At trial, the following relevant colloquy occurred between
Defendant and the prosecutor regarding the jailhouse phone call:
Q. Where in that phone call do you tell
Arthiando Phillips that you didn’t have
anything to do with this?
A. I didn’t tell him.
Q. In fact —
A. Because he already knew it.
Q. He already knew?
A. Yes.
Q. How did he know?
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A. Because if you knew me, you know I
wouldn’t do nothing like that.
Q. If who knew you?
A. They knew I wouldn’t do nothing like
that.
Q. Well, let’s talk about that conversation
between you and Arthiando. You state[d] to
him everybody in the room was asleep. The
next thing I knew the door was kicked in,
and we got guns in our face; is that right?
A. Yes, ma’am.
Q. How did they know y’all was there is what
he responds; do you remember that?
A. Yes, ma’am.
Q. You said, man, I don’t even know. They
had . . . some other detectives with them;
is that correct?
A. Yes, ma’am.
Q. So nowhere in that conversation that we
talked about so far do you indicate at all
that you had nothing to do with this, and
you didn’t want the two of them with you; is
that right?
A. Yes, ma’am.
Q. Then you go on to talk about what
warrants you have; is that right?
A. Yes, ma’am.
Q. You state I got about five. I don’t want
to talk about it over the phone. Why didn’t
you want to talk about it over the phone?
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A. ‘Cause for reason like this.
Q. For reasons like what?
A. Being recorded.
Q. If you’re innocent, why does it matter if
you’re being recorded?
* * *
[Counsel for Defense]: Objection.
The Court: Overruled.
[Counsel for Defense]: Violation of fifth
amendment privilege, Your Honor.
The Court: . . . The objection is
overruled. . . .
* * *
A. Can you repeat [the question] again?
Q. Yes. If you’re innocent, why didn’t you
want to talk about it over the phone?
A. ‘Cause I didn’t want to make it worse
than it already was.
Q. You didn’t what; I’m sorry?
A. I didn’t want to make the situation worse
than it already was.
Defendant argues that the prosecutor’s questioning “stepped
over the line” in violation of “the privilege against self-
incrimination . . . when she asked why [Defendant] decided to be
silent if he were innocent.” Defendant further asserts that
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“[he] affirmatively exercised his right to silence in the face
of the State’s accusations when he said that he did not want to
talk about the warrants against him,” likening the question to
“asking why an arrested defendant might decline to speak to law
enforcement if he were innocent.” Assuming without deciding that
the prosecutor’s question could have constituted a violation of
Defendant’s right against self-incrimination, the State has
demonstrated that such error was harmless beyond a reasonable
doubt.
Here, the evidence presented at trial overwhelmingly
established that Defendant participated in the underlying
felonies of breaking and entering, robbery with a dangerous
weapon, and conspiracy to commit robbery with a dangerous
weapon. Multiple eyewitnesses described Defendant as a
participant in the robbery, and testimony by law enforcement
officers placed Defendant in the Greenville hotel room with the
stolen goods and the other members of the trio, who Defendant
admits were involved in the robbery. The implication from the
prosecutor’s question that Defendant might be more likely to be
guilty because he was not inclined to talk about his warrants
would not have substantially affected the jury’s weighing of the
evidence. As a result, any violation resulting from the
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prosecutor’s question was harmless beyond a reasonable doubt.
Accordingly, Defendant’s argument is overruled.
NO PREJUDICIAL ERROR.
Judges GEER and ERVIN concur.
Report per Rule 30(e).