{ "id": 8955271, "name": "STATE OF NORTH CAROLINA v. CARLTON CORTEZ JOHNSON", "name_abbreviation": "State v. Johnson", "decision_date": "2003-11-04", "docket_number": "No. COA02-1631", "first_page": "68", "last_page": "78", "citations": [ { "type": "official", "cite": "161 N.C. App. 68" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "456 S.E.2d 292", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "297" } ], "opinion_index": 0 }, { "cite": "340 N.C. 187", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790178 ], "year": 1995, "pin_cites": [ { "page": "197" } ], "opinion_index": 0, "case_paths": [ "/nc/340/0187-01" ] }, { "cite": "573 S.E.2d 132", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "148" } ], "opinion_index": 0 }, { "cite": "356 N.C. 490", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511491 ], "year": 2002, "pin_cites": [ { "page": "514" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0490-01" ] }, { "cite": "337 S.E.2d 504", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "507-08" } ], "opinion_index": 0 }, { "cite": "315 N.C. 175", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4716847 ], "year": 1985, "pin_cites": [ { "page": "180" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0175-01" ] }, { "cite": "224 S.E.2d 537", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1976, "pin_cites": [ { "page": "545" } ], "opinion_index": 0 }, { "cite": "289 N.C. 668", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572654 ], "year": 1976, "pin_cites": [ { "page": "679" } ], "opinion_index": 0, "case_paths": [ "/nc/289/0668-01" ] }, { "cite": "238 S.E.2d 456", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "460", "parenthetical": "quoting State v. McKenna, 289 N.C. 668, 679, 224 S.E.2d 537, 545 (1976)" } ], "opinion_index": 0 }, { "cite": "293 N.C. 447", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565179 ], "year": 1977, "pin_cites": [ { "page": "453-54", "parenthetical": "quoting State v. McKenna, 289 N.C. 668, 679, 224 S.E.2d 537, 545 (1976)" } ], "opinion_index": 0, "case_paths": [ "/nc/293/0447-01" ] }, { "cite": "558 S.E.2d 87", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "92", "parenthetical": "when asserting plain error, defendant bears the burden of showing absent error a different result probably would have been reached, or that error was so fundamental that it resulted in a miscarriage of justice or denial of a fair trial" } ], "opinion_index": 0 }, { "cite": "355 N.C. 136", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220122 ], "year": 2002, "pin_cites": [ { "page": "142", "parenthetical": "when asserting plain error, defendant bears the burden of showing absent error a different result probably would have been reached, or that error was so fundamental that it resulted in a miscarriage of justice or denial of a fair trial" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0136-01" ] }, { "cite": "539 S.E.2d 656", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "659" } ], "opinion_index": 0 }, { "cite": "140 N.C. App. 169", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12123425 ], "year": 2000, "pin_cites": [ { "page": "172" } ], "opinion_index": 0, "case_paths": [ "/nc-app/140/0169-01" ] }, { "cite": "533 S.E.2d 168", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "202" } ], "opinion_index": 0 }, { "cite": "352 N.C. 364", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 684963 ], "year": 2000, "pin_cites": [ { "page": "411-12" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0364-01" ] }, { "cite": "543 S.E.2d 849", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "856" } ], "opinion_index": 0 }, { "cite": "353 N.C. 281", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135893 ], "year": 2001, "pin_cites": [ { "page": "292" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0281-01" ] }, { "cite": "565 S.E.2d 22", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "34-35" } ], "opinion_index": 0 }, { "cite": "355 N.C. 592", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220016 ], "year": 2002, "pin_cites": [ { "page": "606-07" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0592-01" ] }, { "cite": "445 S.E.2d 23", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "26" } ], "opinion_index": 0 }, { "cite": "336 N.C. 490", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2535712 ], "year": 1994, "pin_cites": [ { "page": "497" } ], "opinion_index": 0, "case_paths": [ "/nc/336/0490-01" ] }, { "cite": "494 U.S. 325", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5456 ], "weight": 3, "year": 1990, "pin_cites": [ { "page": "334" }, { "page": "286" } ], "opinion_index": 0, "case_paths": [ "/us/494/0325-01" ] }, { "cite": "564 S.E.2d 576", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "583", "parenthetical": "quoting Maryland, v. Buie, 494 U.S. 325, 334, 108 L. Ed. 2d 276, 286 (1990)" } ], "opinion_index": 0 }, { "cite": "150 N.C. App. 631", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9082571 ], "year": 2002, "pin_cites": [ { "page": "640", "parenthetical": "quoting Maryland, v. Buie, 494 U.S. 325, 334, 108 L. Ed. 2d 276, 286 (1990)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/150/0631-01" ] }, { "cite": "567 S.E.2d 120", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "123-24" } ], "opinion_index": 0 }, { "cite": "356 N.C. 150", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511282 ], "year": 2002, "pin_cites": [ { "page": "156-57" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0150-01" ] }, { "cite": "432 U.S. 98", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6177400 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "114" }, { "page": "154" } ], "opinion_index": 0, "case_paths": [ "/us/432/0098-01" ] }, { "cite": "322 S.E.2d 148", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "151" } ], "opinion_index": 0 }, { "cite": "312 N.C. 286", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4749024 ], "year": 1984, "pin_cites": [ { "page": "290" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0286-01" ] }, { "cite": "548 S.E.2d 684", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "698", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "353 N.C. 599", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135851 ], "year": 2001, "pin_cites": [ { "page": "617", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0599-01" ] }, { "cite": "562 S.E.2d 859", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "868" } ], "opinion_index": 0 }, { "cite": "355 N.C. 420", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220022 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "432" }, { "page": "432" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0420-01" ] }, { "cite": "543 S.E.2d 830", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "842" } ], "opinion_index": 0 }, { "cite": "353 N.C. 309", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135701 ], "year": 2001, "pin_cites": [ { "page": "328-29" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0309-01" ] } ], "analysis": { "cardinality": 889, "char_count": 23621, "ocr_confidence": 0.772, "pagerank": { "raw": 3.025143768895366e-07, "percentile": 0.854169297128906 }, "sha256": "4a0ab79dbb577299057417f6181478a9f14aa71018d0e1edad3691b3a1df73dc", "simhash": "1:8779d00e374dcdd6", "word_count": 3816 }, "last_updated": "2023-07-14T20:10:07.642184+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and CALABRIA concur." ], "parties": [ "STATE OF NORTH CAROLINA v. CARLTON CORTEZ JOHNSON" ], "opinions": [ { "text": "HUNTER, Judge.\nCarlton Cortez Johnson (\u201cdefendant\u201d) appeals from judgments dated 8 March 2002 entered consistent with a jury verdict finding him guilty of two counts of first degree murder, one count of second degree murder, one count of assault with a deadly weapon with intent to kill inflicting serious injury, one count of robbery with a dangerous weapon, and one count of larceny. We conclude there was no reversible error at trial.\nThe State presented evidence tending to show defendant shot and killed three men, wounded another, and stole drugs and money at a house used for the sale and consumption of illegal drugs. Terry McClelland (\u201cMcClelland\u201d) was present at the scene and had spent the day with the men who were shot. McClelland was in the bathroom at the time the incident began, but overheard the first shooting and hid in a closet from where he witnessed defendant shoot the remaining three men with a shotgun.\nAfter defendant fled the scene, McClelland called the police. McClelland did not initially give police the name of the shooter but described him as a black male with dreadlocks and \u201cbug eyes.\u201d McClelland then fell asleep in a police cruiser. After waking up, McClelland talked with Stephanie Croom (\u201cCroom\u201d), a female friend, telling her that the shooter was an individual named \u201cCortez\u201d with whom McClelland had gone to school. McClelland was taken to the police station and was initially shown a six-person photographic lineup, including defendant\u2019s brother, but was unable to identify anyone. After this, McClelland was shown approximately sixty more photos on a computer of people matching the description he had given to police. Eventually, based on the name he had given, McClelland was shown a photograph of defendant. The photograph was folded in such a way to hide defendant\u2019s name. McClelland was asked if he recognized the photograph and upon seeing it stated \u201cthat\u2019s him\u201d and began crying and shaking. Deva Hill, one of the victims of the shooting, subsequently identified defendant as the shooter from a photographic lineup, and Croom also identified defendant from a photograph.\nBased on McClelland\u2019s identification, the police obtained an arrest warrant for defendant. The police went to defendant\u2019s residence where defendant answered the door. Defendant was immediately pulled outside, placed on the ground, and arrested. A second individual was seen inside the residence, and the police performed a protective sweep of the residence in which they detained the second individual. During this sweep, the police observed a shotgun at the foot of a bed, a revolver by a couch, money, and a bag of marijuana. A search warrant eventually arrived and these and other items were seized. Prior to trial, defendant moved to suppress both McClelland\u2019s identification and items found during the protective sweep of defendant\u2019s residence after his arrest, and this motion was denied.\nDuring jury selection in open court, the trial court divided the jury panel into six separate panels of twelve jurors each. The trial court then called each prospective juror from the respective panels to the box in the order in which they were placed into the panel until a jury was selected. Defendant did not object to this method of jury selection. After the jury was selected and impaneled, the parties gave opening statements. In his opening statement, defendant, through his counsel, conceded that he had caused the deaths of three people and wounded a fourth, but that he was guilty of less than first degree murder as there was no premeditation or deliberation. Following this opening statement, it was discovered that the jury had been impaneled with an incorrect alternate juror. The trial court re-impaneled the jury, with the correct alternate, and permitted the parties to repeat their opening statements. Prior to repeating opening statements, however, the trial court inquired of defendant if he had consented to his counsel\u2019s concessions in the original opening statement, and defendant replied that he had.\nThe issues are whether: (I) the short-form first degree murder indictment is constitutional; (II) (A) the identification procedure used to identify defendant was impermissibly suggestive, and (B) the search of defendant\u2019s house was a lawful protective sweep; (III) the trial court\u2019s division of jurors into separate panels violated the statutory requirement of random jury selection and constituted plain error; (IV) the trial court erred by re-impaneling the jury after discovering the wrong alternate juror had been seated; and (V) the trial court made an adequate inquiry as to defendant\u2019s consent to his attorney\u2019s concessions.\nI.\nDefendant first contends that the use of the short-form murder indictment violates his due process rights under the Fourteenth Amendment to the United States Constitution. Defendant raises this issue in order to preserve it for later review while acknowledging that the North Carolina Supreme Court has upheld the constitutionality of the short-form murder indictment. See State v. Mitchell, 353 N.C. 309, 328-29, 543 S.E.2d 830, 842 (2001). As such, we reject defendant\u2019s argument on this issue.\nII.\nDefendant also argues that the trial court erred in denying his motion to suppress evidence (A) of the photo identification of him as the shooter by McClelland, and (B) evidence seized as a result of the protective sweep of defendant\u2019s house following his arrest.\nA.\nWhether a pretrial identification procedure is impermissibly suggestive depends on the totality of the circumstances and requires a two-part analysis. State v. Rogers, 355 N.C. 420, 432, 562 S.E.2d 859, 868 (2002). \u201cFirst, the Court must determine whether the identification procedures were impermissibly suggestive. Second, if the procedures were impermissibly suggestive, the Court must then determine whether the procedures created a substantial likelihood of irreparable misidentification.\u201d State v. Fowler, 353 N.C. 599, 617, 548 S.E.2d 684, 698 (2001) (citations omitted). \u201cThe test under the first inquiry is \u2018whether the totality of the circumstances reveals a pretrial procedure so unnecessarily suggestive and conducive to irreparable mistaken identity as to offend fundamental standards of decency and justice.\u2019 \u201d Id. (quoting State v. Hannah, 312 N.C. 286, 290, 322 S.E.2d 148, 151 (1984)). In analyzing whether identification procedures are impermissibly suggestive, North Carolina courts look to various factors including: \u201cthe opportunity of the witness to view the criminal at the time of the crime, the witness\u2019 degree of attention, the accuracy of the witness\u2019 prior description of the criminal, the level of certainty shown by the witness, and the time between the offense and the identification.\u201d Rogers, 355 N.C. at 432, 562 S.E.2d at 868 (citing Manson v. Brathwaite, 432 U.S. 98, 114, 53 L. Ed. 2d 140, 154 (1977)).\nAlthough, the use of a single photograph to identify a defendant has been criticized by our Courts, see State v. Al-Bayyinah, 356 N.C. 150, 156-57, 567 S.E.2d 120, 123-24 (2002), this case does not present that question. Here, McClelland was provided initially with a six-photo lineup, which included defendant\u2019s brother. McClelland was unable to make any identification from this lineup. Subsequently, McClelland viewed approximately sixty more photographs on a computer of individuals within the parameters of the description he gave to the police. McClelland was then shown a photograph, based on the name he provided, of defendant. The photograph was folded so defendant\u2019s name was not visible and McClelland was asked only if he recognized the photograph. No suggestive comments were made and this was not an instance in which the police simply showed the witness a single photograph.\nIn this case, applying the factors outlined in Rogers, the surrounding circumstances also revealed that McClellan observed defendant firing the shotgun during the commission of the crime and gave an accurate description of defendant at the crime scene following the shooting. Upon being shown the photograph of defendant, McClelland was certain of his identification stating \u201cthat\u2019s him\u201d and began crying and shaking. McClelland\u2019s identification occurred on the same day as the shooting. Furthermore, the accuracy of the identification is bolstered by the fact that defendant was subsequently identified as the shooter from a separate photographic lineup by one of the victims. As such, the identification procedure used in this case was not impermissibly suggestive.\nB.\nDefendant also contends evidence seized following his arrest based upon a protective sweep of his house should have been suppressed by the trial court.\n[Warrantless protective sweeps of a residence performed by law enforcement officers in conjunction with an in-home arrest are reasonable if there are \u201carticulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.\u201d\nState v. Bullin, 150 N.C. App. 631, 640, 564 S.E.2d 576, 583 (2002) (quoting Maryland, v. Buie, 494 U.S. 325, 334, 108 L. Ed. 2d 276, 286 (1990)).\nIn this case, defendant was arrested as he came to the door of his house and was pulled outside by police officers. As this was occurring, at least one officer observed another individual inside the house. Knowing that defendant was a suspect in a very recent multiple homicide in a case involving drugs and that the weapon or weapons used might still be in the home, a reasonably prudent officer, under these facts, would have believed a protective sweep was necessary in order to make sure that the individual in the house, or any other individual who may have been hiding in the house, did not pose a danger to those on the arrest scene. The police officers limited their sweep to securing defendant\u2019s home and observed only those items left in plain view. On these facts, the protective sweep of defendant\u2019s home following his arrest was not unreasonable, and the trial court did not err in denying the motion to suppress.\nIII.\nDefendant next assigns error to the trial court\u2019s dividing prospective jurors into panels and then calling prospective jurors from each panel in the order in which they were assigned, rather than randomly from the jury venire as a whole.\nN.C. Gen. Stat. \u00a7 15A-1214(a) provides an unambiguous procedure for the selection of jurors in a criminal case. See N.C. Gen. Stat. \u00a7 15A-1214(a) (2001). It requires that \u201c[t]he clerk, under the supervision of the presiding judge, must call jurors from the panel by a system of random selection which precludes advance knowledge of the identity of the next juror to be called.\u201d Id. The jury selection method used in this case, by dividing the jury panel up into separate panels and calling the prospective jurors such that both parties knew exactly which prospective juror was next to be called is clearly in violation of Section 15A-1214(a).\nDefendant, however, concedes that he failed to object to the method of jury selection. Nevertheless, \u201c[w]hen a trial court acts contrary to a statutory mandate, the right to appeal the [trial] court\u2019s action is preserved, notwithstanding the failure of the appealing party to object at trial.\u201d State v. Jones, 336 N.C. 490, 497, 445 S.E.2d 23, 26 (1994). Section 15A-1214(a), requiring a random jury selection process, is unquestionably a statutory mandate and, as such, defendant\u2019s right to appeal the statutory violation would normally be preserved, even absent an objection. In failing to object at all, however, defendant also did not follow the procedures outlined in Section 15A-1211(c) for challenging the jury panel. Section 15A-1211(c) provides that either the State or a defendant may challenge the jury panel and that a challenge to the jury panel:\n(1) May be made only on the ground that the jurors were not selected or drawn according to law.\n(2) Must be in writing.\n(3) Must specify the facts constituting the ground of challenge.\n(4) Must be made and decided before any juror is examined.\nN.C. Gen. Stat. \u00a7 15A-1211(c) (2001). Although Section 15A-1211(c), by its language, would appear to only apply to challenges to the selection of an entire jury panel, see id., and not the method in which individual jurors are called and selected, which is governed by Section 15A-1214, our Supreme Court has held that failure to follow the procedures mandated in Section 15A-1211(c) for challenging the entire jury panel waives appellate review of assignments of error under Section 15A-1214(a). See, e.g., State v. Wiley, 355 N.C. 592, 606-07, 565 S.E.2d 22, 34-35 (2002); State v. Cummings, 353 N.C. 281, 292, 543 S.E.2d 849, 856 (2001); State v. Golphin, 352 N.C. 364, 411-12, 533 S.E.2d 168, 202 (2000). As we are bound by the precedent set by our Supreme Court, we are required to hold that defendant has thus waived his right to appeal this issue. See State v. Parker, 140 N.C. App. 169, 172, 539 S.E.2d 656, 659 (2000). Furthermore, although defendant has asserted plain error he has failed to show that absent the violation of Section 15A-1214(a) a different result probably would have been reached, or that the process of selecting a jury led to a miscarriage of justice or denied defendant a fair trial. See State v. Anderson, 355 N.C. 136, 142, 558 S.E.2d 87, 92 (2002) (when asserting plain error, defendant bears the burden of showing absent error a different result probably would have been reached, or that error was so fundamental that it resulted in a miscarriage of justice or denial of a fair trial).\nIV.\nDefendant further argues that the trial court erred in failing to declare a mistrial after it was discovered that the jury had been impaneled with the wrong individual sitting as an alternate juror. The incorrect alternate had actually been removed through a peremptory challenge by defendant. The error was not discovered until after opening statements had been presented. Rather than declare a mistrial, the trial court instead re-impaneled the jury with the correct alternate seated and allowed the parties to present the opening statements to the re-impaneled jury.\nA trial court has the discretion, even after impanelment of a jury, to reopen examination of a juror and excuse that juror upon challenge, whether for cause or peremptory as a product of its \u201c \u2018power to closely regulate and supervise the selection of the jury to the end that both the defendant and the State may receive a fair trial before an impartial jury.\u2019 \u201d State v. Kirkman, 293 N.C. 447, 453-54, 238 S.E.2d 456, 460 (1977) (quoting State v. McKenna, 289 N.C. 668, 679, 224 S.E.2d 537, 545 (1976)). This discretion is not terminated at the impanelment of the jury. Id. Therefore, when appropriate, it is within the trial court\u2019s discretion to re-impanel a jury in order to make sure defendant\u2019s right to a jury trial is protected. See id. Thus, in this case the trial court did not err in re-impaneling the jury to insure the correct jury was impaneled.\nV.\nDefendant finally contends that the trial court failed to make an adequate inquiry of him as to whether he intelligently and knowingly consented to his attorney\u2019s concessions in opening statements that defendant caused the deaths of three people.\nWhere counsel for a defendant concedes his client\u2019s guilt to the offense charged or a lesser included offense without his client\u2019s consent, it is ineffective assistance of counsel per se. See State v. Harbison, 315 N.C. 175, 180, 337 S.E.2d 504, 507-08 (1985). In order to ensure that a defendant has consented to his counsel\u2019s concessions of guilt, a trial court must make an inquiry \u201cadequate to establish that defendant consented to the admissions made later by counsel during trial.\u201d State v. Berry, 356 N.C. 490, 514, 573 S.E.2d 132, 148 (2002). The North Carolina Supreme Court has, however, \u201curged \u2018both the bar and the trial bench to be diligent in making a full record of a defendant\u2019s consent when a Harbison issue arises at trial.\u2019 \u201d Id. (quoting State v. House, 340 N.C. 187, 197, 456 S.E.2d 292, 297 (1995)).\nIn this case, during his opening statement to the first impaneled jury, defendant through his counsel conceded that he \u201ccaused the deaths of three people and wounded another,\u201d but had not done so with premeditation or deliberation, but was instead in a highly intoxicated state having gone to the house with the intention to buy more drugs, that things went terribly wrong and defendant \u201cerupted in a spontaneous manner when he committed these crimes.\u201d In concluding his opening statement, defendant\u2019s counsel requested the jury to \u201ccome back with a verdict of guilty of less than first degree murder.\u201d\nFollowing defendant\u2019s statement, it was revealed that the trial court had impaneled the jury with an incorrect alternate. Prior to permitting the parties to again present opening statements to the properly impaneled jury, the State noted the propriety of a Harbison inquiry regarding defendant\u2019s opening statement. Defendant\u2019s counsel stated that defendant was prepared to admit that he had consented to tell the jurors he was present at the crime and fired the shots, but that he did so while intoxicated and in a manner constituting less than first degree murder. The trial court then addressed defendant directly:\nThe Court: . . . [Y]ou have heard what [defense counsel] just said. Have ya\u2019ll previously discussed that before he made his opening statements?\nThe Defendant: Yes, sir, we did.\nThe Court: And did he have your permission and authority to make that opening statement to the jury?\nThe Defendant: Yes, sir, he did.\nThe Court: You consent to that now?\nThe Defendant: Yes, sir.\nAlthough the better practice would be for defense counsel to make a record of a defendant\u2019s consent to concessions or admissions of guilt prior to making those concessions, see id., on the unique facts of this case we conclude that the trial court\u2019s inquiry was adequate to establish that defendant had previously consented to his counsel\u2019s concession that he was present and had fired the shots that killed three people and wounded a fourth.\nAccordingly, we conclude there was no reversible error.\nNo error.\nJudges McGEE and CALABRIA concur.\n. This individual was, in fact, detained in the house.", "type": "majority", "author": "HUNTER, Judge." } ], "attorneys": [ "Attorney General Roy A. Cooper, III, by Special Deputy Attorney General Norma S. Harrell, for the State.", "Margaret Greasy Giardellafor defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. CARLTON CORTEZ JOHNSON\nNo. COA02-1631\n(Filed 4 November 2003)\n1. Homicide\u2014 first-degree murder \u2014 short-form indictment\u2014 constitutionality\nThe short-form murder indictment used to charge defendant with first-degree murder was constitutional.\n2. Identification of Defendants\u2014 photographic identification \u2014 motion to suppress\nThe trial court did not err in a double first-degree murder, second-degree murder, assault with a deadly weapon with intent to kill inflicting serious injury, robbery with a dangerous weapon, and larceny case by denying defendant\u2019s motion to suppress evidence of a witness\u2019s photo identification of defendant as the shooter, because: (1) no suggestive comments were made and this was not an instance in which the police simply showed a single photo to identify defendant; (2) the witness observed defendant firing a shotgun during the commission of the crime and gave an accurate description of defendant at the crime scene following the shooting; (3) the witness\u2019s photo identification of defendant occurred on the same day as the shooting; and (4) the accuracy of the identification was bolstered by the fact that defendant was subsequently identified as the shooter from a separate photographic lineup by one of the victims.\n3. Search and Seizure\u2014 arrest \u2014 protective sweep of home\u2014 reasonableness\nThe trial court did not err in a double first-degree murder, second-degree murder, assault with a deadly weapon with intent to kill inflicting serious injury, robbery with a dangerous weapon, and larceny case by denying defendant\u2019s motion to suppress evidence seized as a result of a protective sweep of defendant\u2019s house following his arrest, because: (1) a reasonably prudent officer knowing that defendant was a suspect in very recent multiple homicides in a case involving drugs and that the weapon or weapons used might still be in the home would have believed a protective sweep was necessary in order to make sure that another individual the officers saw in the house or any other individual who may have been hiding in the house did not pose a danger to those on the arrest scene; and (2) the police officers limited their sweep to securing defendant\u2019s home and observed only those items left in plain view.\n4. Jury\u2014 panels \u2014 calling jurors in order assigned rather than randomly\nAlthough defendant contends the trial court erred in a double first-degree murder, second-degree murder, assault with a deadly weapon with intent to kill inflicting serious injury, robbery with a dangerous weapon, and larceny case by dividing prospective jurors into panels and then calling prospective jurors from each panel in the order in which they were assigned rather than randomly from the jury venire as a whole, this assignment of error is dismissed because: (1) defendant waived his right to appeal under N.C.G.S. \u00a7 15A-1214(a) based on his failure to follow the procedures mandated in N.C.G.S. \u00a7 15A-1211(c) for challenging the entire jury panel; and (2) although defendant asserted plain error, he failed to show that absent the violation of N.C.G.S. \u00a7 15A-1214(a) a different result probably would have been reached or that the process of selecting a jury led to a miscarriage of justice or denied defendant a fair trial.\n5. Jury\u2014 impanelment of wrong alternate juror \u2014 motion for mistrial\nThe trial court did not err in a double first-degree murder, second-degree murder, assault with a deadly weapon with intent to kill inflicting serious injury, robbery with a dangerous weapon, and larceny case by failing to declare a mistrial after it was discovered that the jury had been impaneled with the wrong individual sitting as an alternate juror even though the error was not discovered until after opening statements had been presented, because: (1) the trial court re-impaneled the jury with the correct alternate seated and allowed the parties to present the opening statements to the re-impaneled jury; and (2) it is within the trial court\u2019s discretion to re-impanel a jury in order to make sure defendant\u2019s right to a jury trial is protected.\n6. Constitutional Law\u2014 effective assistance of counsel \u2014 concessions in opening statements\nThe trial court in a double first-degree murder, second-degree murder, assault with a deadly weapon with intent to kill inflicting serious injury, robbery with a dangerous weapon, and larceny case did not fail to make an adequate inquiry of defendant as to whether he intelligently and knowingly consented to his attorney\u2019s concessions in opening statements that defendant caused the deaths of three people, because although the better practice would be for defense counsel to make a record of a defendant\u2019s consent to concessions or admissions of guilt prior to making those concessions, on the unique facts of this case the trial court\u2019s inquiry was adequate to establish that defendant had previously consented to his counsel\u2019s concession.\nAppeal by defendant from judgments entered 8 March 2002 by Judge B. Craig Ellis in Cumberland County Superior Court. Heard in the Court of Appeals 18 September 2003.\nAttorney General Roy A. Cooper, III, by Special Deputy Attorney General Norma S. Harrell, for the State.\nMargaret Greasy Giardellafor defendant-appellant." }, "file_name": "0068-01", "first_page_order": 98, "last_page_order": 108 }