subject: North Carolina Joinder Offenses Severance Murder Deadly Weapon Intent Assault Jury Instruction Lawyers Attorneys [print this page] STATE OF NORTH CAROLINA vSTATE OF NORTH CAROLINA v. JOHN CHAVIS ROSS
COURT OF APPEALS OF NORTH CAROLINA
June 10, 2010, Heard in the Court of Appeals
August 17, 2010, Filed
The trial court allowed a motion for joinder of defendant's offenses. At his 15 October 2008 trial, defendant failed to move for severance of the joined offenses at the close of the State's evidence and at the close of all evidence. During the charge conference, defendant requested an instruction on the defense of accident, but the trial court rejected the requested instruction.
The jury convicted defendant of assault with a deadly weapon with intent to kill on 3 November 2008, attempted first-degree murder on 4 November 2008, and second-degree murder on 6 November 2008. He was sentenced to consecutive prison terms for the convictions.
Issue:
Whether the trial court erred in joining his offenses for trial?
Whether the trial court erred by denying his request for a jury instruction on the defense of accident?
Observation and Holding:
Absent an abuse of discretion, this Court will not overrule a trial court's denial of a motion to sever. In addition, we have held that "failure to renew a motion to sever . . . waives any right to severance and that on appeal the Court is limited to reviewing whether the trial court abused its discretion in ordering joinder at the time of the trial court's decision to join." Here, although defendant objected to the State's motion for joinder at trial, he failed to renew his motion for severance at the close of the State's evidence and at the close of all the evidence, thereby waiving his right to severance. Most significantly, the two offenses with which defendant were charged were connected temporally, in that they occurred within minutes of each other. Defendant was in the process of fleeing the prior scene when he encountered Hutchins. He also used the same gun during both incidents. Therefore, a sufficient transactional connection existed between the two offenses. Furthermore, defendant has not shown that joinder was prejudicial.
In the case sub judice, defendant relies upon his own testimony of the events to support his requested instruction. Defendant testified that he introduced his gun into the conflict because he and Jarvis were arguing intensely about Jarvis's girlfriend and defendant was "scared." He testified that, while using his gun to "punch" Jarvis in the head, the gun accidently discharged, shooting Jarvis in the head and killing him. However, defendant, by his own admission, was engaged in an assault when the shooting occurred. Because defendant's conduct at the time of the shooting was unlawful, defendant's request for an instruction on the defense of accident was properly denied.
Disclaimer:
These summaries are provided by the SRIS Law Group. They represent the firm's unofficial views of the Justices' opinions. The original opinions should be consulted for their authoritative content.
