{ "id": 4078330, "name": "STATE OF NORTH CAROLINA v. KEITH ANTIONE CARTER, Defendant", "name_abbreviation": "State v. Carter", "decision_date": "2011-06-21", "docket_number": "No. COA10-974", "first_page": "516", "last_page": "535", "citations": [ { "type": "official", "cite": "212 N.C. App. 516" } ], "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": "615 S.E.2d 906", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633430 ], "year": 2005, "pin_cites": [ { "page": "912" } ], "opinion_index": 0, "case_paths": [ "/se2d/615/0906-01" ] }, { "cite": "625 S.E.2d 553", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635040 ], "year": 2006, "pin_cites": [ { "page": "557", "parenthetical": "\"[Aggravating circumstances need not be specifically alleged in an indictment.\"" } ], "opinion_index": 0, "case_paths": [ "/se2d/625/0553-01" ] }, { "cite": "620 S.E.2d 305", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634115 ], "year": 2005, "pin_cites": [ { "page": "306" } ], "opinion_index": 0, "case_paths": [ "/se2d/620/0305-01" ] }, { "cite": "626 S.E.2d 271", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635151 ], "year": 2006, "pin_cites": [ { "page": "286" } ], "opinion_index": 0, "case_paths": [ "/se2d/626/0271-01" ] }, { "cite": "660 S.E.2d 621", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640938 ], "year": 2008, "pin_cites": [ { "page": "622", "parenthetical": "\"It is well-established that the issue of a court's jurisdiction over a matter may be raised at any time, even for the first time on appeal or by a court sua sponte.\"'" } ], "opinion_index": 0, "case_paths": [ "/se2d/660/0621-01" ] }, { "cite": "644 S.E.2d 615", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638420 ], "year": 2007, "pin_cites": [ { "page": "621" } ], "opinion_index": 0, "case_paths": [ "/se2d/644/0615-01" ] }, { "cite": "515 U.S. 1135", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1563969, 1564577, 1564483, 1564008, 1564296, 1564331, 1564174, 1563855, 1564049, 1563795, 1564503, 1563768, 1563863, 1564252, 1564093 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/us/515/1135-02", "/us/515/1135-14", "/us/515/1135-10", "/us/515/1135-04", "/us/515/1135-15", "/us/515/1135-07", "/us/515/1135-03", "/us/515/1135-09", "/us/515/1135-01", "/us/515/1135-12", "/us/515/1135-08", "/us/515/1135-05", "/us/515/1135-11", "/us/515/1135-06", "/us/515/1135-13" ] }, { "cite": "490 U.S. 1110", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 605344, 605440, 605284, 604996, 605879, 606028, 605552, 605715, 605876, 605086, 605077, 605303, 604885, 604955, 605598 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/us/490/1110-15", "/us/490/1110-10", "/us/490/1110-07", "/us/490/1110-11", "/us/490/1110-09", "/us/490/1110-03", "/us/490/1110-02", "/us/490/1110-13", "/us/490/1110-04", "/us/490/1110-05", "/us/490/1110-12", "/us/490/1110-01", "/us/490/1110-06", "/us/490/1110-14", "/us/490/1110-08" ] }, { "cite": "543 U.S. 1156", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5954496, 3438538, 5882348, 5947982, 3432719, 5904846, 5866896, 5941907, 5884692, 5964821, 5953528, 3439161, 5932858, 5911709 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/us/543/1156-09", "/us/543/1156-11", "/us/543/1156-01", "/us/543/1156-13", "/us/543/1156-03", "/us/543/1156-14", "/us/543/1156-08", "/us/543/1156-02", "/us/543/1156-10", "/us/543/1156-04", "/us/543/1156-06", "/us/543/1156-07", "/us/543/1156-05", "/us/543/1156-12" ] }, { "cite": "241 S.E.2d 324", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "329", "parenthetical": "\"In construing statutes courts normally adopt an interpretation which will avoid absurd or bizarre consequences, the presumption being that the legislature acted in accordance with reason and common sense and did not intend untoward results.\"" } ], "opinion_index": 0 }, { "cite": "294 N.C. 60", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570860 ], "year": 1978, "pin_cites": [ { "page": "68", "parenthetical": "\"In construing statutes courts normally adopt an interpretation which will avoid absurd or bizarre consequences, the presumption being that the legislature acted in accordance with reason and common sense and did not intend untoward results.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/294/0060-01" ] }, { "cite": "420 U.S. 671", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11644460 ], "weight": 2, "year": 1975, "pin_cites": [ { "page": "684" }, { "page": "553" } ], "opinion_index": 0, "case_paths": [ "/us/420/0671-01" ] }, { "cite": "172 N.C. App. 119", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8318957 ], "year": 2005, "pin_cites": [ { "page": "127" } ], "opinion_index": 0, "case_paths": [ "/nc-app/172/0119-01" ] }, { "cite": "284 Ga. 165", "category": "reporters:state", "reporter": "Ga.", "case_ids": [ 3634782 ], "weight": 4, "year": 2008, "pin_cites": [ { "page": "170" }, { "page": "233" }, { "page": "169" }, { "page": "232" } ], "opinion_index": 0, "case_paths": [ "/ga/284/0165-01" ] }, { "cite": "Ga. Code Ann. \u00a7 17-10-30", "category": "laws:leg_statute", "reporter": "Ga. Code Ann.", "pin_cites": [ { "page": "(b)(8)" } ], "opinion_index": 0 }, { "cite": "18 U.S.C. \u00a7 3592", "category": "laws:leg_statute", "reporter": "U.S.C.", "pin_cites": [ { "page": "(c)(14)(D)" } ], "opinion_index": 0 }, { "cite": "493 F. Supp.2d 491", "category": "reporters:federal", "reporter": "F. Supp. 2d", "case_ids": [ 3436847 ], "year": 2007, "pin_cites": [ { "page": "498", "parenthetical": "quoting 18 U.S.C. \u00a7 3592(c)(14)(D)" } ], "opinion_index": 0, "case_paths": [ "/f-supp-2d/493/0491-01" ] }, { "cite": "Alaska Stat. \u00a7 12.55.155", "category": "laws:leg_statute", "reporter": "Alaska Stat.", "year": 2009, "pin_cites": [ { "page": "(e)(13)", "parenthetical": "establishing as aggravating circumstance fact that \"the defendant knowingly directed the conduct constituting the offense at a[] .. .law enforcement officer .. . during or because of the exercise of official duties\" (emphasis added)" } ], "opinion_index": 0 }, { "cite": "480 U.S. 522", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1131066 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "525" }, { "page": "537" } ], "opinion_index": 0, "case_paths": [ "/us/480/0522-01" ] }, { "cite": "675 S.E.2d 709", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "711" } ], "opinion_index": 0 }, { "cite": "196 N.C. App. 765", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4166875 ], "year": 2009, "pin_cites": [ { "page": "768" } ], "opinion_index": 0, "case_paths": [ "/nc-app/196/0765-01" ] }, { "cite": "176 L. Ed. 2d 568", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 12448328, 12448329, 12448330, 12448331, 12448332, 12448333, 12448334, 12448335 ], "year": 2010, "opinion_index": 0, "case_paths": [ "/l-ed-2d/176/0568-01", "/l-ed-2d/176/0568-02", "/l-ed-2d/176/0568-03", "/l-ed-2d/176/0568-04", "/l-ed-2d/176/0568-05", "/l-ed-2d/176/0568-06", "/l-ed-2d/176/0568-07", "/l-ed-2d/176/0568-08" ] }, { "cite": "677 S.E.2d 796", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2009, "pin_cites": [ { "page": "814", "parenthetical": "emphasis added" }, { "page": "814" } ], "opinion_index": 0 }, { "cite": "363 N.C. 261", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4150562 ], "year": 2009, "pin_cites": [ { "page": "290", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc/363/0261-01" ] }, { "cite": "557 S.E.2d 89", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "94", "parenthetical": "emphasis added" }, { "page": "94", "parenthetical": "\"To submit the 'because of' prong, the State must. . . show that defendant's motivation in killing the victim was that she was a [member of the class protected by subsection (e)(8)].\"" } ], "opinion_index": 0 }, { "cite": "354 N.C. 534", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138525 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "541", "parenthetical": "emphasis added" }, { "page": "542" } ], "opinion_index": 0, "case_paths": [ "/nc/354/0534-01" ] }, { "cite": "558 S.E.2d 109", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "140", "parenthetical": "\"This Court has never addressed whether the trial court may submit the (e)(8) aggravating circumstance under the 'engaged in' prong in the absence of evidence tending to show the defendant knew or had reasonable grounds to know that the victim was a law enforcement officer.\"" } ], "opinion_index": 0 }, { "cite": "355 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 219986 ], "year": 2002, "pin_cites": [ { "page": "47", "parenthetical": "\"This Court has never addressed whether the trial court may submit the (e)(8" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0001-01" ] }, { "cite": "428 S.E.2d 118", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "141" } ], "opinion_index": 0 }, { "cite": "333 N.C. 350", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2549203 ], "year": 1993, "pin_cites": [ { "page": "392" } ], "opinion_index": 0, "case_paths": [ "/nc/333/0350-01" ] }, { "cite": "175 N.C. App. 663", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8353018 ], "year": 2006, "pin_cites": [ { "page": "668-69", "parenthetical": "\"[Aggravating circumstances need not be specifically alleged in an indictment.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/175/0663-01" ] }, { "cite": "173 N.C. App. 753", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8354470 ], "year": 2005, "pin_cites": [ { "page": "754" } ], "opinion_index": 0, "case_paths": [ "/nc-app/173/0753-01" ] }, { "cite": "595 S.E.2d 381", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "398", "parenthetical": "\"overul[ing]\" capital defendant's argument that indictment not alleging aggravating circumstances for which death penalty was imposed \"deprived the trial court of jurisdiction\"" } ], "opinion_index": 0 }, { "cite": "358 N.C. 243", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2987693 ], "year": 2004, "pin_cites": [ { "page": "267-68", "parenthetical": "\"overul[ing]\" capital defendant's argument that indictment not alleging aggravating circumstances for which death penalty was imposed \"deprived the trial court of jurisdiction\"" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0243-01" ] }, { "cite": "360 N.C. 297", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3787721 ], "year": 2006, "pin_cites": [ { "page": "317" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0297-01" ] }, { "cite": "190 N.C. App. 649", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4158700 ], "year": 2008, "pin_cites": [ { "page": "650", "parenthetical": "\"It is well-established that the issue of a court's jurisdiction over a matter may be raised at any time, even for the first time on appeal or by a court sua sponte.\"'" } ], "opinion_index": 0, "case_paths": [ "/nc-app/190/0649-01" ] }, { "cite": "123 L. Ed. 2d 486", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1993, "opinion_index": 0 }, { "cite": "507 U.S. 1038", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6500514, 6500451, 6501288, 6501433, 6500272, 6500371, 6501525, 6501013, 6500183, 6500697, 6500605, 6500062, 6500895 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/us/507/1038-06", "/us/507/1038-05", "/us/507/1038-11", "/us/507/1038-12", "/us/507/1038-03", "/us/507/1038-04", "/us/507/1038-13", "/us/507/1038-10", "/us/507/1038-02", "/us/507/1038-08", "/us/507/1038-07", "/us/507/1038-01", "/us/507/1038-09" ] }, { "cite": "421 S.E.2d 569", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1992, "pin_cites": [ { "page": "573" }, { "page": "573" }, { "page": "577" }, { "page": "573" } ], "opinion_index": 0 }, { "cite": "332 N.C. 461", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2504044 ], "weight": 4, "year": 1992, "pin_cites": [ { "page": "469" }, { "page": "476" }, { "page": "470" } ], "opinion_index": 0, "case_paths": [ "/nc/332/0461-01" ] }, { "cite": "468 S.E.2d 552", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "555" } ], "opinion_index": 0 }, { "cite": "122 N.C. App. 89", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11915583 ], "year": 1996, "pin_cites": [ { "page": "92" } ], "opinion_index": 0, "case_paths": [ "/nc-app/122/0089-01" ] }, { "cite": "681 N.E.2d 1205", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "pin_cites": [ { "page": "1211", "parenthetical": "\"Repeatedly firing a weapon near a large crowd is wanton and reckless behavior that may supply an element of murder in the second degree ....\"" } ], "opinion_index": 0 }, { "cite": "425 Mass. 491", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 274540 ], "year": 1997, "pin_cites": [ { "page": "498", "parenthetical": "\"Repeatedly firing a weapon near a large crowd is wanton and reckless behavior that may supply an element of murder in the second degree ....\"" } ], "opinion_index": 0, "case_paths": [ "/mass/425/0491-01" ] }, { "cite": "395 So.2d 1175", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9593333 ], "year": 1981, "pin_cites": [ { "page": "1177" } ], "opinion_index": 0, "case_paths": [ "/so2d/395/1175-01" ] }, { "cite": "574 S.E.2d 58", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "68" } ], "opinion_index": 0 }, { "cite": "155 N.C. App. 251", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9249825 ], "year": 2002, "pin_cites": [ { "page": "266" } ], "opinion_index": 0, "case_paths": [ "/nc-app/155/0251-01" ] }, { "cite": "322 S.E.2d 370", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "388" } ], "opinion_index": 0 }, { "cite": "312 N.C. 129", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4750010 ], "year": 1984, "pin_cites": [ { "page": "160" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0129-01" ] }, { "cite": "402 S.E.2d 380", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "385" } ], "opinion_index": 0 }, { "cite": "328 N.C. 515", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2542671 ], "year": 1991, "pin_cites": [ { "page": "522" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0515-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-17", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2009, "opinion_index": 0 }, { "cite": "128 S.E.2d 889", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "pin_cites": [ { "page": "892" } ], "opinion_index": 0 }, { "cite": "258 N.C. 453", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561130 ], "year": 1963, "pin_cites": [ { "page": "458" } ], "opinion_index": 0, "case_paths": [ "/nc/258/0453-01" ] }, { "cite": "183 N.C. App. 514", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8204534 ], "year": 2007, "pin_cites": [ { "page": "523" } ], "opinion_index": 0, "case_paths": [ "/nc-app/183/0514-01" ] }, { "cite": "132 L. Ed. 2d 818", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1995, "opinion_index": 0 }, { "cite": "451 S.E.2d 211", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "223" } ], "opinion_index": 0 }, { "cite": "339 N.C. 172", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2556681 ], "year": 1994, "pin_cites": [ { "page": "192" } ], "opinion_index": 0, "case_paths": [ "/nc/339/0172-01" ] }, { "cite": "265 S.E.2d 164", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "169" } ], "opinion_index": 0 }, { "cite": "300 N.C. 71", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559773 ], "year": 1980, "pin_cites": [ { "page": "78-79" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0071-01" ] }, { "cite": "368 S.E.2d 377", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "383" } ], "opinion_index": 0 }, { "cite": "322 N.C. 349", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2515495 ], "year": 1988, "pin_cites": [ { "page": "358" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0349-01" ] }, { "cite": "584 S.E.2d 303", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "312" } ], "opinion_index": 0 }, { "cite": "159 N.C. App. 252", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8955476 ], "year": 2003, "pin_cites": [ { "page": "263" } ], "opinion_index": 0, "case_paths": [ "/nc-app/159/0252-01" ] }, { "cite": "537 U.S. 322", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9191097 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "343" }, { "page": "954" } ], "opinion_index": 0, "case_paths": [ "/us/537/0322-01" ] }, { "cite": "582 S.E.2d 33", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "35", "parenthetical": "quoting Miller-El v. Cockrell, 537 U.S. 322, 343, 154 L. Ed. 2d 931, 954 (2003)" } ], "opinion_index": 0 }, { "cite": "158 N.C. App. 693", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9189072 ], "year": 2003, "pin_cites": [ { "page": "696", "parenthetical": "quoting Miller-El v. Cockrell, 537 U.S. 322, 343, 154 L. Ed. 2d 931, 954 (2003)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/158/0693-01" ] }, { "cite": "514 U.S. 765", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1340390 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "768" }, { "page": "839" } ], "opinion_index": 0, "case_paths": [ "/us/514/0765-01" ] }, { "cite": "610 S.E.2d 783", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2005, "pin_cites": [ { "page": "791" }, { "page": "791" } ], "opinion_index": 0 }, { "cite": "169 N.C. App. 657", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8472597 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "668" }, { "page": "669" } ], "opinion_index": 0, "case_paths": [ "/nc-app/169/0657-01" ] }, { "cite": "743 S.W.2d 51", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 11286921 ], "year": 1987, "pin_cites": [ { "page": "65" } ], "opinion_index": 0, "case_paths": [ "/sw2d/743/0051-01" ] }, { "cite": "391 S.E.2d 144", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "151", "parenthetical": "quoting State v. Antwine, 743 S.W.2d 51, 65 (Mo. 1987)" }, { "page": "152-53", "parenthetical": "internal alterations, citations, and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "326 N.C. 489", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5305969 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "498", "parenthetical": "quoting State v. Antwine, 743 S.W.2d 51, 65 (Mo. 1987)" }, { "page": "501" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0489-01" ] }, { "cite": "481 S.E.2d 44", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "57" } ], "opinion_index": 0 }, { "cite": "345 N.C. 184", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53983 ], "year": 1997, "pin_cites": [ { "page": "209" } ], "opinion_index": 0, "case_paths": [ "/nc/345/0184-01" ] }, { "cite": "104 L. Ed. 2d 1027", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1989, "opinion_index": 0 }, { "cite": "368 S.E.2d 838", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "840" } ], "opinion_index": 0 }, { "cite": "322 N.C. 251", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2514703 ], "year": 1988, "pin_cites": [ { "page": "254" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0251-01" ] }, { "cite": "488 S.E.2d 550", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "560-61", "parenthetical": "quoting State v. Jackson, 322 N.C. 251, 254, 368 S.E.2d 838, 840 (1988), cert. denied, 490 U.S. 1110, 104 L. Ed. 2d 1027 (1989)" } ], "opinion_index": 0 }, { "cite": "346 N.C. 291", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139375 ], "year": 1997, "pin_cites": [ { "page": "308-09", "parenthetical": "quoting State v. Jackson, 322 N.C. 251, 254, 368 S.E.2d 838, 840 (1988), cert. denied, 490 U.S. 1110, 104 L. Ed. 2d 1027 (1989)" } ], "opinion_index": 0, "case_paths": [ "/nc/346/0291-01" ] }, { "cite": "573 S.E.2d 202", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "205" } ], "opinion_index": 0 }, { "cite": "154 N.C. App. 572", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9251233 ], "year": 2002, "pin_cites": [ { "page": "575" } ], "opinion_index": 0, "case_paths": [ "/nc-app/154/0572-01" ] }, { "cite": "471 S.E.2d 379", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "386" } ], "opinion_index": 0 }, { "cite": "343 N.C. 345", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798972 ], "year": 1996, "pin_cites": [ { "page": "359" } ], "opinion_index": 0, "case_paths": [ "/nc/343/0345-01" ] }, { "cite": "704 S.E.2d 275", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "opinion_index": 0 }, { "cite": "697 S.E.2d 407", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "pin_cites": [ { "page": "412" }, { "page": "413" }, { "page": "413" }, { "page": "414", "parenthetical": "internal citation omitted" } ], "opinion_index": 0 }, { "cite": "500 U.S. 352", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6223686 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "369" }, { "page": "412" } ], "opinion_index": 0, "case_paths": [ "/us/500/0352-01" ] }, { "cite": "498 S.E.2d 823", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "829" }, { "page": "830" } ], "opinion_index": 0 }, { "cite": "129 N.C. App. 268", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11649601 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "275" }, { "page": "277" } ], "opinion_index": 0, "case_paths": [ "/nc-app/129/0268-01" ] }, { "cite": "175 L. Ed. 2d 84", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2009, "opinion_index": 0 }, { "cite": "669 S.E.2d 239", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2008, "pin_cites": [ { "page": "254" }, { "page": "254" } ], "opinion_index": 0 }, { "cite": "362 N.C. 514", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4150820 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "527" }, { "page": "528" } ], "opinion_index": 0, "case_paths": [ "/nc/362/0514-01" ] }, { "cite": "476 U.S. 79", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12787 ], "weight": 4, "year": 1986, "pin_cites": [ { "page": "89" }, { "page": "83" } ], "opinion_index": 0, "case_paths": [ "/us/476/0079-01" ] }, { "cite": "543 S.E.2d 499", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "351 N.C. 476", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155809, 1155653, 1155879, 1155597, 1155967 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/351/0476-05", "/nc/351/0476-02", "/nc/351/0476-01", "/nc/351/0476-03", "/nc/351/0476-04" ] }, { "cite": "524 S.E.2d 381", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "384-85" } ], "opinion_index": 0 }, { "cite": "136 N.C. App. 413", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11239967 ], "pin_cites": [ { "page": "417-18" } ], "opinion_index": 0, "case_paths": [ "/nc-app/136/0413-01" ] }, { "cite": "701 S.E.2d 615", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "633", "parenthetical": "internal citations omitted" } ], "opinion_index": 0 }, { "cite": "161 L. Ed. 2d 122", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2005, "opinion_index": 0 }, { "cite": "597 S.E.2d 724", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "737" } ], "opinion_index": 0 }, { "cite": "358 N.C. 382", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2986879 ], "year": 2004, "pin_cites": [ { "page": "397" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0382-01" ] }, { "cite": "513 S.E.2d 561", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "350 N.C. 303", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 131922 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc/350/0303-01" ] }, { "cite": "426 S.E.2d 402", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "407" } ], "opinion_index": 0 }, { "cite": "333 N.C. 280", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2547783 ], "year": 1993, "pin_cites": [ { "page": "291" } ], "opinion_index": 0, "case_paths": [ "/nc/333/0280-01" ] }, { "cite": "508 S.E.2d 8", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "12", "parenthetical": "quoting State v. Medlin, 333 N.C. 280, 291, 426 S.E.2d 402, 407 (1993)" } ], "opinion_index": 0 }, { "cite": "131 N.C. App. 427", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11200965 ], "year": 1998, "pin_cites": [ { "page": "432", "parenthetical": "quoting State v. Medlin, 333 N.C. 280, 291, 426 S.E.2d 402, 407 (1993)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/131/0427-01" ] }, { "cite": "511 U.S. 318", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1147005 ], "weight": 2, "year": 1994, "pin_cites": [ { "parenthetical": "per curiam" }, { "parenthetical": "per curiam" } ], "opinion_index": 0, "case_paths": [ "/us/511/0318-01" ] }, { "cite": "483 S.E.2d 396", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "405", "parenthetical": "citing Stansbury v. California, 511 U.S. 318, 128 L. Ed. 2d 293 (1994) (per curiam)" }, { "page": "408" } ], "opinion_index": 0 }, { "cite": "345 N.C. 647", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53878 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "662", "parenthetical": "citing Stansbury v. California, 511 U.S. 318, 128 L. Ed. 2d 293 (1994) (per curiam)" }, { "page": "668" } ], "opinion_index": 0, "case_paths": [ "/nc/345/0647-01" ] }, { "cite": "429 U.S. 492", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 7010 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "495", "parenthetical": "per curiam" }, { "page": "719", "parenthetical": "per curiam" } ], "opinion_index": 0, "case_paths": [ "/us/429/0492-01" ] }, { "cite": "686 S.E.2d 135", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "137-38" } ], "opinion_index": 0 }, { "cite": "363 N.C. 664", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4151659 ], "year": 2009, "pin_cites": [ { "page": "668" } ], "opinion_index": 0, "case_paths": [ "/nc/363/0664-01" ] }, { "cite": "384 U.S. 436", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12046400 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/us/384/0436-01" ] } ], "analysis": { "cardinality": 1758, "char_count": 47858, "ocr_confidence": 0.738, "pagerank": { "raw": 5.0011153170616546e-08, "percentile": 0.3146822459533355 }, "sha256": "e8efed1cd73169829546a928274f725940f56f3a928dec15aab2b93df70d511d", "simhash": "1:096d54687c2e4c57", "word_count": 7775 }, "last_updated": "2023-07-14T17:12:23.503415+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges STEPHENS and ERVIN\u2019 concur." ], "parties": [ "STATE OF NORTH CAROLINA v. KEITH ANTIONE CARTER, Defendant" ], "opinions": [ { "text": "HUNTER, Robert C., Judge.\nDefendant Keith Antione Carter appeals his second-degree murder conviction. After careful review, we find no error.\nFacts\nAt trial, the State presented evidence tending to establish the following facts: Late in the evening of 22 February 2007 and into the early morning hours of 23 February 2007, several Forsyth County deputies were working off-duty as security at the Red Rooster nightclub in Winston-Salem. Around 2:00 a.m., several fights broke out inside the nightclub. As the deputies and bouncers tried to stop the fights, someone threw a chair which hit several people, and the fighting escalated. The deputies then began using pepper spray to break up the groups of people fighting and to force them outside. As the crowd \u2014 consisting of roughly 400 to 500 people \u2014 moved outside, at least 30 separate fights broke out in the parking lot.\nDefendant, who had gone to the Red Rooster to meet his friend Brandon Home, was involved in one of the fights and was hit in the face, leaving \u201c[a] big gash under his eye.\u201d When the deputies began using pepper spray, defendant and Mr. Home went outside and began walking to defendant\u2019s car. When Mr. Home pointed out that defendant\u2019s cut was \u201cbleeding pretty bad,\u201d defendant looked at his cut in his car\u2019s rearview mirror and got upset. Defendant then reached under the driver\u2019s seat and pulled out a 9mm semi-automatic handgun. He walked around to the front passenger\u2019s side, retrieved the \u201cclip\u201d from the glove box, loaded the clip, and \u201crack[ed]\u201d a round in the chamber. Yelling \u201cFuck it. Who wants some?,\u201d defendant fired several shots \u201ctowards the crowd\u201d in the parking lot. After \u201cspraying\u201d the crowd, defendant quickly got into his car and drove off \u201creally fast.\u201d\nSergeant Howard Plouff, who was one of at least four Winston-Salem police officers who had responded to the deputies\u2019 call for emergency assistance at the Red Rooster, was hit in the neck by one of the bullets from defendant\u2019s gun. The bullet entered Sgt. Plouff\u2019s body under his jaw, \u201ccut[ting]\u201d his carotid artery and his jugular vein, \u201cfractur[ing]\u201d his spine, and \u201cdestroy[ing]\u201d part of his spinal cord. Sgt. Plouff was rushed to the hospital, where he died from the injuries resulting from the gunshot wound.\nIn the course of investigating Sgt. Plouff\u2019s death, Detective Stan Nieves learned that defendant may have been at the Red Rooster on 22-23 February 2007. Detective Nieves contacted defendant on 27 February 2007 and defendant agreed to come down to the police station to be interviewed. Because defendant was having problems with his car, two detectives picked him up from his mother\u2019s residence and defendant voluntarily went with the detectives to the police station. After being interviewed for several hours, defendant gave a tape recorded statement in which he stated that he was angry after being injured in the fight inside the nightclub, and that he went outside to his car, got out his handgun, loaded it, and fired five or six times \u201cstraight up\u201d into the air.\nAt the conclusion of the interview, defendant was arrested and charged with the first-degree murder of Sgt. Plouff. A superceding indictment was later issued, alleging, among others, the aggravating factor that the murder was committed against a law enforcement officer while the officer was engaged in the performance of his official duties. Defendant was also charged with one count of felony engaging in a riot while possessing a handgun and one count of misdemeanor engaging in a riot. Prior to trial, defendant filed a motion to suppress his statement to the police on the basis that the statement was obtained in violation of his Fifth Amendment rights. After conducting a suppression hearing, the trial court denied defendant\u2019s motion. At the close of the State\u2019s evidence at trial, defendant moved to dismiss all charges against him. The trial court denied the motion. After electing not to present any evidence in his defense, defendant renewed his motion to dismiss. The trial court denied this motion as well.\nThe jury found defendant guilty of second-degree murder, felony engaging in a riot while in possession of a handgun, and misdemeanor engaging in a riot. The jury also found the aggravating circumstance that the murder was committed against a law enforcement officer while engaged in the performance of his official duties. The trial court sentenced defendant to a presumptive-range sentence of six to eight months imprisonment on the felony riot conviction, followed by an aggravated sentence of 196 to 245 months imprisonment on the second-degree murder charge. Defendant gave notice of appeal in open court.\nI. Motion to Suppress\nDefendant first contends that the trial court erred in denying his pre-trial motion to suppress the statement he made to detectives at the police station. Because, defendant argues, the statement was obtained as a result of a custodial interrogation conducted without his having been advised of his rights under Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694 (1966), the statement should have been suppressed. As defendant does not challenge any of the trial court\u2019s findings of fact on appeal, the only question for review is whether those findings support the court\u2019s conclusion of law that \u201c[defendant was not in custody\u201d at the time of his statements to the detectives. In re J.D.B., 363 N.C. 664, 668, 686 S.E.2d 135, 137-38 (2009).\nPertinent here, the United States Supreme Court has emphasized that\n\u201c[pjolice officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect. Miranda warnings are required only where there has been such a restriction on a person\u2019s freedom as to render him \u2018in custody.\u2019 \u201d\nOregon v. Mathiason, 429 U.S. 492, 495, 50 L. Ed. 2d 714, 719 (1977) (per curiam). Rather, the \u201cdefinitive inquiry\u201d in determining whether a person is \u201cin custody\u201d for Miranda purposes is whether, based on the totality of the circumstances, there was a \u201cformal arrest or a restraint on freedom of movement of the degree associated with a formal arrest.\u201d State v. Gaines, 345 N.C. 647, 662, 483 S.E.2d 396, 405 (1997) (citing Stansbury v. California, 511 U.S. 318, 128 L. Ed. 2d 293 (1994) (per curiam)).\nThis determination involves \u201can objective test, based upon a reasonable person standard, and is \u2018to be applied on a case-by-case basis considering all the facts and circumstances.\u2019 \u201d State v. Hall, 131 N.C. App. 427, 432, 508 S.E.2d 8, 12 (1998) (quoting State v. Medlin, 333 N.C. 280, 291, 426 S.E.2d 402, 407 (1993)), aff'd per curiam, 350 N.C. 303, 513 S.E.2d 561 (1999). While \u201cno single factor controls the determination of whether an individual is \u2018in custody\u2019 for purposes of Miranda[,]\" State v. Garcia, 358 N.C. 382, 397, 597 S.E.2d 724, 737 (2004), cert. denied, 543 U.S. 1156, 161 L. Ed. 2d 122 (2005), our appellate courts have \u201cconsidered such factors as whether a suspect is told he or she is free to leave, whether the suspect is handcuffed, whether the suspect is in the presence of uniformed officers, and the nature of any security around the suspect,\u201d State v. Waring, \u2014 N.C. \u2014, \u2014, 701 S.E.2d 615, 633 (2010) (internal citations omitted).\nHere, at the conclusion of the suppression hearing, the trial court entered its order orally from the bench, finding that Detective Nieves went to defendant\u2019s mother\u2019s house around 3:00 p.m. on 27 February 2007, where he was told that defendant was not at home. Detective Nieves left a business card with defendant\u2019s sister and asked her to have defendant contact him. Around 4:15 p.m., defendant called Detective Nieves, who explained to defendant that the police were investigating the shooting at the Red Rooster nightclub and were \u201cinterviewing everybody who had been at the scene.\u201d When defendant told Detective Nieves that he had been at the nightclub on the night of 22-23 February 2007, Detective Nieves \u201casked [defendant] if he would come down to the police station to give a statement. . . .\u201d Defendant told Detective Nieves that there was \u201csomething wrong\u201d with his car and that he was unable to come down to the police station at that time. Detective Nieves offered to send someone to \u201cpick [defendant] up at his house,\u201d and defendant agreed to being picked up.\nDetective Nieves called Detectives Phillip Cox and B.G. Kirk and asked them to pick up defendant and bring him to the police station. When they arrived and knocked on the door, defendant came outside, talked briefly with Detectives Cox and Kirk, who were in plain clothes, and then went back inside unaccompanied to get his wallet and keys. Defendant was neither searched nor patted down before getting into the passenger seat of the detectives\u2019 unmarked Honda Accord. While driving to the police station, defendant was told that \u201che could leave at any time\u201d and that \u201che was not under arrest.\u201d When they arrived at the station, they parked in the public parking lot in front of the station and entered the building through the public entrance rather than through the \u201csecure entrance\u201d in the back. While unlocking the door allowing access' to the offices and interview rooms, Detective Kirk told defendant that \u201cthe door only locks from the outside, and if he wanted to leave he could get out the door, it didn\u2019t require unlocking . . . .\u201d The detectives led defendant to an interview room where they again told him that he was not in custody and that he \u201ccould exit through th[e] door at any time.\u201d\nAfter leaving defendant unattended for roughly five minutes, Detectives Nieves and Sean Flynn entered the interview room at approximately 4:40 p.m. They explained to defendant that they were investigating the shooting death of Sgt. Plouff; that he was \u201cnot under arrest\u201d and that \u201che could leave at any time\u201d; but that they wanted to ask him some questions about what happened on the night of 22-23 February 2007. As the interview began, defendant was offered something to drink, which he declined. Later during the interview, defendant again was offered something to eat or drink and was given two sandwiches, some potato chips, a soda, and a cupcake.\nThe interview, which was \u201cconversational\u201d in tone, lasted several hours. During the interview, defendant signed a form consenting to the search of his residence, but refused to give a DNA sample or submit to a polygraph test. At 7:51 p.m. on 27 February 2007, defendant gave a tape recorded statement to the detectives, in which he indicated that he was at the Red Rooster on 22-23 February 2007; that several fights broke out at the nightclub, during one of which he was knocked to the ground and kicked in the face; and, that after the fight was broken up, he went to his car in the club\u2019s parking lot, got his semi-automatic handgun out from under the driver\u2019s seat, retrieved the magazine from the glove box, loaded the gun, and fired five or six times \u201cstraight up\u201d into the air. After giving this statement, defendant was formally arrested. Based on these findings, the trial court concluded that \u201c[defendant was not in custody\u201d at the time he gave his statement and denied his motion to suppress.\nConsidering the totality of the circumstances, defendant was not in custody at the time of his recorded statement to the police. Defendant rode with the detectives to the police station voluntarily, without being frisked or handcuffed. Defendant was told at least three times \u2014 once in the car, once while entering the police station, and once at the beginning of the interview \u2014 that he was not in custody and that he was free to leave at any time. Defendant was not restrained during the interview and, in fact, was left unattended in the unlocked interview room before the interview began. Nor was defendant coerced or threatened. To the contrary, defendant was repeatedly asked if he wanted anything to eat or drink and was given food and a soda when he asked for it. The trial court properly denied defendant\u2019s motion to suppress his statement. See State v. Deese, 136 N.C. App. 413, 417-18, 524 S.E.2d 381, 384-85 (\u201cIn this case, defendant was permitted to arrange the first interview at a time convenient to him; at his request, the officers provided transportation from his residence to the courthouse and back. Defendant was told on both occasions that he was not under arrest, that he was free to leave at any time, and that he would be driven home upon request. He was not restrained in any manner; in fact, he was left alone in an open room during the first interview. He was neither coerced nor threatened. . . . Considering the totality of the circumstances, we agree with the trial court\u2019s conclusion that defendant was not in custody on either occasion when he made statements to law enforcement officers and we find no error in the denial of his motion to suppress those statements.\u201d), appeal dismissed and disc. review denied, 351 N.C. 476, 543 S.E.2d 499-500 (2000).\nII. Batson Challenge\nDefendant, an African-American male, contends that the State \u201cwrongfully excluded\u201d prospective African-American jurors from the jury in this case in violation of his constitutional right, under Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69 (1986), to a jury selected without regard to race. Jury selection began on 2 March 2010 with the clerk calling the first panel of 12 prospective jurors, which included Kesha Wisley and Pamela Turner, both African-American women. Although the jury selection regarding the first panel was not recorded, it appears from the record that defense counsel asked to be heard outside the presence of the jury. After the prospective jurors were escorted from the courtroom, defense counsel made a Batson challenge, noting that the State had accepted 11 Caucasian jurors but had used two peremptory challenges to strike Ms. Wisley and Ms. Turner. When the trial judge asked the prosecutor to explain his \u201cdecision\u201d to excuse Ms. Wisley and Ms. Turner, the prosecutor responded that Ms. Wisley indicated that her sister was then-presently incarcerated and that she \u201cd[id] not believe [that] her sister was treated fairly by law enforcement\u201d; that she had \u201cvisited several friends in prison\u201d; that she was \u201ca person without . . . much experience in the community\u201d; and, that her \u201cpoor eye contact\u201d and low voice indicated that she had a \u201cvery low level of enthusiasm\u201d as a potential juror. As for Ms. Turner, the prosecutor stated that he had peremptorily excused her because she \u201ctearfully\u201d explained that her son had been sentenced to 35 years in prison for attempted murder and that she \u201cd[id] not believe he was treated fairly.\u201d In response, defense counsel noted that both women had indicated that \u201cthey could be fair and impartial in this particular case\u201d; that among the Caucasian jurors accepted by the State, there were two who had criminal records, several who had had \u201crun-ins\u201d with the police, and one juror (Mr. Rierson) whose father was incarcerated; and that two Caucasian jurors had indicated that they had been living in the area for a \u201climited\u201d period of time.\nAfter hearing these arguments, the trial judge found that the State had offered race-neutral explanations for excusing Ms. Wisley and Ms. Turner:\nI think in the case of Ms. Wisley the State stated a racially neutral reason, which is the fact that her sister is in prison, she\u2019s visited several friends in prison, and she did not believe her sister was treated fairly.\nAs to Ms. Turner she has a son in prison for 35 years in the State of Maryland, he received a 35 year sentence in the State of Maryland for attempted murder. Ms. Turner was very emotional when she described that, and she did say that her son was not treated fairly....\nThe judge also noted that Mr. Rierson had indicated that he was not \u201cclose\u201d to his father and that he felt that his father had been treated fairly.\nIn Batson, 476 U.S. at 89, 90 L. Ed. 2d at 83, the United States Supreme Court explained that \u201cthe Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State\u2019s case against a black defendant.\u201d Our Supreme Court has construed Batson as \u201cset[ting] out a three-part test for determining whether the state impermissibly excluded a juror on the basis of race\u201d: (1) \u201cthe defendant must make a prima facie showing that the state exercised a race-based peremptory challenge\u201d; (2) \u201c[i]f the defendant makes the requisite showing, the burden shifts to the state to offer a facially valid, race-neutral explanation for the peremptory challenge\u201d; and (3) \u201cthe trial court must decide whether the defendant has proved purposeful discrimination.\u201d State v. Taylor, 362 N.C. 514, 527, 669 S.E.2d 239, 254 (2008), cert. denied, \u2014 U.S. \u2014, 175 L. Ed. 2d 84 (2009).\nTo facilitate appellate review, \u201cthe trial court must make specific findings of fact at each stage of the Batson inquiry that it reaches.\u201d State v. Cofield, 129 N.C. App. 268, 275, 498 S.E.2d 823, 829 (1998). \u201cThe trial court\u2019s findings will be upheld on appeal unless they are clearly erroneous \u2014 that is, unless \u2018on the entire evidence [the reviewing court is] left with the definite and firm conviction that a mistake ha[s] been committed.\u2019 \u201d Taylor, 362 N.C. at 528, 669 S.E.2d at 254 (quoting Hernandez v. New York, 500 U.S. 352, 369, 114 L. Ed. 2d 395, 412 (1991)) (first alteration added). Under this standard, \u201cthe fact finder\u2019s choice between two permissible views of the evidence cannot be considered clearly erroneous.\u201d State v. Headen, \u2014 N.C. App. \u2014, \u2014, 697 S.E.2d 407, 412 (citation and quotation marks omitted), disc. review denied, \u2014 N.C. \u2014, 704 S.E.2d 275 (2010).\nWhere, as here,\nthe trial court requires the prosecutor to give his [or her] reasons without ruling on the question of a prima facie showing, the question of whether the defendant has made a prima facie showing becomes moot, and it becomes the responsibility of the trial court to make appropriate findings on whether the stated reasons are a credible, nondiscriminatory basis for the challenges or simply pretext.\nState v. Williams, 343 N.C. 345, 359, 471 S.E.2d 379, 386 (1996). In such a case, \u201cthe appellate court considers the prosecutor\u2019s explanations pursuant to step two of Batson, and then proceeds to step three, inquiring whether the trial court was correct in its ultimate determination that the State\u2019s use of peremptory challenges did not constitute intentional discrimination.\u201d State v. Mays, 154 N.C. App. 572, 575, 573 S.E.2d 202, 205 (2002).\nTo rebut a prima facie showing of discrimination, \u201cthe prosecution must \u2018articulate legitimate reasons which are clear and reasonably specific and related to the particular case to be tried which give a neutral explanation for challenging jurors of the cognizable group.\u2019 \u201d State v. Cummings, 346 N.C. 291, 308-09, 488 S.E.2d 550, 560-61 (1997) (quoting State v. Jackson, 322 N.C. 251, 254, 368 S.E.2d 838, 840 (1988), cert. denied, 490 U.S. 1110, 104 L. Ed. 2d 1027 (1989)). The prosecutor\u2019s explanations, however, \u201cneed not \u2018rise to the level justifying a challenge for cause,\u2019 and need not be \u2018persuasive, or even plausible.\u2019 \u201d Cofield, 129 N.C. App. at 277, 498 S.E.2d at 830 (quoting State v. Barnes, 345 N.C. 184, 209, 481 S.E.2d 44, 57 (1997)). Indeed, \u201c[s]o long as the motive does not appear to be racial discrimination, the prosecutor may exercise peremptory challenges on the basis of \u2018legitimate hunches and past experience.\u2019 \u201d State v. Porter, 326 N.C. 489, 498, 391 S.E.2d 144, 151 (1990) (quoting State v. Antwine, 743 S.W.2d 51, 65 (Mo. 1987)). \u201cThe issue at this stage is mere \u2018facial validity,\u2019 and \u2018absent a discriminatory intent, which is inherent in the reason, the explanation given will be deemed race-neutral.\u2019 \u201d Headen, \u2014 N.C. App. at \u2014, 697 S.E.2d at 413 (quoting State v. McClain, 169 N.C. App. 657, 668, 610 S.E.2d 783, 791 (2005)).\nIn this case, the prosecutor\u2019s explanation with respect to Ms. Wisley and Ms. Turner included the fact that both women had a close family member who was then-currently incarcerated and that both women felt that their relative had not been \u201ctreated fairly.\u201d This Court has held that \u201c[t]he criminal conviction of a potential juror\u2019s relative has been recognized as a race-neutral reason for the exclusion of that juror by peremptory challenge.\u201d McClain, 169 N.C. App. at 669, 610 S.E.2d at 791. Consistent with McClain, we conclude that the trial judge\u2019s determination that the prosecutor\u2019s reason was race-neutral is not clearly erroneous.\nTurning to Batson\u2019s third step, we consider whether the trial court\u2019s ultimate finding that \u201c[t]he state did not exercise its peremptory challenges in a discriminatory manner\u201d is clearly erroneous. At this stage, \u201cthe defendant may introduce evidence that the State\u2019s explanation is merely a pretext, and \u2018the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination.\u2019 \u201d Headen, \u2014 N.C. App. at \u2014, 697 S.E.2d at 413 (quoting Gaines, 345 N.C. at 668, 483 S.E.2d at 408). It is at this step \u201cthat the persuasiveness of the justification becomes relevant. . . .\u201d Purkett v. Elem, 514 U.S. 765, 768, 131 L. Ed. 2d 834, 839 (1995).\nIn attempting to show that the prosecutor\u2019s explanation was pretextual, the defendant may offer evidence \u201cthat the reasons presented \u2018pertained just as well to some white jurors who were not challenged and who did serve on the jury.\u2019 \u201d State v. McCord, 158 N.C. App. 693, 696, 582 S.E.2d 33, 35 (2003) (quoting Miller-El v. Cockrell, 537 U.S. 322, 343, 154 L. Ed. 2d 931, 954 (2003)). In addition to disparate treatment, other factors that a defendant may rely upon to demonstrate pretext include:\n(1) the characteristic in question of the defendant, the victim and any key witnesses; (2) questions and comments made by the prosecutor during jury selection which tend to support or contradict an inference of discrimination based upon the characteristic in question; (3) the frequent exercise of peremptory challenges to prospective jurors with the characteristic in question that tends to establish a pattern, or the use of a disproportionate number of peremptory challenges against venire members with the characteristic in question; (4) whether the State exercised all of its peremptory challenges; and, (5) the ultimate makeup of the jury in light of the characteristic in question.\nState v. Wiggins, 159 N.C. App. 252, 263, 584 S.E.2d 303, 312 (2003).\nDefendant first points to the fact that the State accepted Mr. Rierson, a Caucasian male juror, whose father had been incarcerated. Defendant also notes that \u201cseveral other of the white jurors had connections with the criminal justice system\u201d; that \u201c[a]t least one of the white jurors kept in touch with people in prison\u201d; and that \u201c[t]wo of the white jurors had limited contact with the community,\u201d having lived in the county for a short period of time. Defendant claims that this disparate treatment between African-American and Caucasian jurors \u201c[i]lluminat[es]\u201d the State\u2019s explanation as being a pretext. Our Supreme Court, however, has held that \u201calleged disparate treatment of prospective jurors\u201d does not \u201cnecessarily\u201d demonstrate discriminatory intent:\nChoosing jurors, more art than science, involves a complex weighing of factors. Rarely will a single factor control the decision-making process. Defendant\u2019s approach in this appeal involves finding a single factor among the several articulated by the prosecutor as to each challenged prospective juror and matching it to a passed juror who exhibited that same factor. This approach fails to address the factors as a totality which when considered together provide an image of a juror considered in the case undesirable by the State. . . . Merely because some of the observations regarding each stricken venireperson may have been equally valid as to other members of the venire who were not challenged does not require finding the reasons were pretextual. A characteristic deemed to be unfavorable in one prospective juror, and hence grounds for a peremptory challenge, may, in a second prospective juror, be outweighed by other, favorable characteristics.\nPorter, 326 N.C. at 501, 391 S.E.2d at 152-53 (internal alterations, citations, and quotation marks omitted). With respect to Mr. Rierson in particular, as the trial judge observed, although Mr. Rierson\u2019s father had been incarcerated, he indicated that he was not close to his father and that he felt that his father had been treated fairly.\nDefendant also emphasizes that the effect of the State\u2019s peremptory challenges \u201cle[ft] [defendant] with an all-white jury . . . .\u201d This Court has explained, however, that\nthe requirement under Batson is purposeful discrimination; disparate impact is not sufficient. In other words, a defendant must demonstrate that the State intentionally challenged the prospective juror based on his or her race. It is not enough that the effect of the challenge was to eliminate all or some African-American jurors.\nHeaden, \u2014 N.C. App. at \u2014, 697 S.E.2d at 414 (internal citation omitted).\nAs for the other factors pertinent to establishing pretext, defendant fails to present any argument that this case was susceptible to racial discrimination; that the prosecutor revealed any racial animus through his questions or comments during jury selection; or that the prosecutor used peremptory challenges to excuse African-American jurors in a disproportionate fashion or in a manner suggesting a pattern of discrimination. In sum, we cannot conclude, based on the record and under the applicable standard of review, that the trial judge\u2019s findings as to the prosecutor\u2019s race-neutral explanation and defendant\u2019s failure to show purposeful discrimination are clearly erroneous. The trial judge, consequently, did not err in denying defendant\u2019s Batson motion.\nIII. Motion to Dismiss\nDefendant\u2019s third argument on appeal is that the trial court erred in denying his motion to dismiss the second-degree murder charge for insufficient evidence. A defendant\u2019s motion to dismiss should be denied \u201c[i]f there is substantial evidence \u2014 whether direct, circumstantial, or both \u2014 to support a finding that the offense charged has been committed and that the defendant committed it . . . .\u201d State v. Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 383 (1988). \u201cSubstantial evidence\u201d is that amount of relevant evidence that a \u201creasonable mind might accept as adequate to support a conclusion.\u201d State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). When considering the issue of substantial evidence, the trial court must view all of the evidence presented \u201cin the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor.\u201d State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied, 515 U.S. 1135, 132 L. Ed. 2d 818 (1995). Whether the evidence produced at trial constitutes substantial evidence is a question of law for the trial court, which the appellate court reviews de novo. State v. Bagley, 183 N.C. App. 514, 523, 644 S.E.2d 615, 621 (2007).\nDefendant was convicted of second-degree murder, which is defined as \u201cthe unlawful killing of a human being with malice, but without premeditation and deliberation.\u201d State v. Foust, 258 N.C. 453, 458, 128 S.E.2d 889, 892 (1963); N.C. Gen. Stat. \u00a7 14-17 (2009). Although the intent to kill is not a necessary element of second-degree murder, \u201cthere must be an intentional act sufficient to show malice.\u201d State v. Brewer, 328 N.C. 515, 522, 402 S.E.2d 380, 385 (1991). Evidence of the intentional use of a deadly weapon \u2014 here, a semiautomatic handgun \u2014 that proximately causes death triggers a presumption that the killing was done with malice. State v. Bullard, 312 N.C. 129, 160, 322 S.E.2d 370, 388 (1984). This presumption is sufficient to withstand a motion to dismiss a second-degree murder charge for insufficient evidence. State v. Taylor, 155 N.C. App. 251, 266, 574 S.E.2d 58, 68 (2002). The issue of whether the evidence is sufficient to rebut the presumption of malice in a homicide with a deadly weapon is then a jury question. Id.\nThe evidence in this case, viewed in the light most favorable to the State, tends to show that defendant, after being kicked in the face in a fight inside the nightclub, went outside and looked at his injury in his car\u2019s rearview mirror. Defendant became angry, retrieved a 9mm semi-automatic pistol from under the driver\u2019s seat of his car, walked around to the passenger side of the car, got out a loaded magazine from the glove box, and loaded the gun. Exclaiming \u201cFuck it. Who wants some?,\u201d defendant began firing his gun \u201ctoward the crowd,\u201d discharging the weapon seven times. A bullet from defendant\u2019s gun hit Sgt. Plouff in the neck, resulting in his death.\nThe evidence of defendant\u2019s use of a firearm, resulting in Sgt. Plouff\u2019s death, is sufficient to support the trial court\u2019s submission of the second-degree murder charge to the jury. See Pressley v. State, 395 So.2d 1175, 1177 (Fla. App. Ct. 1981) (\u201cClearly, a person of ordinary judgment would know that firing a loaded gun toward a group of people is reasonably certain to kill or do serious bodily injury to another. [Defendant\u2019s acts also indicated an indifference to human life and demonstrated ill will. Even though a defendant has no intent to hit or kill anyone, firing a gun into a crowd of people constitutes second degree murder when a person is killed as a result.\u201d); Commonwealth v. Santiago, 425 Mass. 491, 498, 681 N.E.2d 1205, 1211 (1997) (\u201cRepeatedly firing a weapon near a large crowd is wanton and reckless behavior that may supply an element of murder in the second degree ....\u201d). Defendant\u2019s argument is overruled.\nIV. Aggravating Factor\nDefendant\u2019s final argument on appeal challenges the trial judge\u2019s submission of the aggravating factor set out in N.C. Gen. Stat. \u00a7 15A-1340.16(d)(6) (2009) (\u201csubsection (d)(6)\u201d):\nThe offense was committed against or proximately caused serious injury to a present or former law enforcement officer, employee of the Department of Correction, jailer, fireman, emergency medical technician, ambulance attendant, social worker, justice or judge, clerk or assistant or deputy clerk of court, magistrate, prosecutor, juror, or witness against the defendant, while engaged in the performance of that person\u2019s official duties or because of the exercise of that person\u2019s official duties.\n(Emphasis added.)\nThis Court, in construing subsection (d)(6)\u2019s aggravating factor, has found \u201cinstructive\u201d the Supreme Court\u2019s decisions addressing a \u201cnearly identical\u201d factor \u201cfor determining whether a defendant may or may not be tried capitally.\u201d State v. Pope, 122 N.C. App. 89, 92, 468 S.E.2d 552, 555 (1996). That statute provides that a defendant may be tried capitally when\n[t]he capital felony was committed against a law-enforcement officer, employee of the Department of Correction, jailer, fireman, judge or justice, former judge or justice, prosecutor or former prosecutor, juror or former juror, or witness or former witness against the defendant, while engaged in the performance of his official duties or because of the exercise of his official duty.\nN.C. Gen. Stat. \u00a7 15A-2000(e)(8) (2009) (emphasis added) (\u201csubsection (e)(8)\u201d).\nIn State v. Gaines, 332 N.C. 461, 421 S.E.2d 569 (1992), cert. denied, 507 U.S. 1038, 123 L. Ed. 2d 486 (1993), the Supreme Court explained that \u201c[t]he essence of [subsection (e)(8)] requires that the State first produce evidence that the victim was \u2018a law enforcement officer\u2019 and second the State must meet one or the other of a disjunctive, two-pronged test: (1) that the officer was murdered \u2018while engaged in the performance of his official duties\u2019 or (2) \u2018because of the exercise of his official duty.\u2019 \u201d Id. at 470, 421 S.E.2d at 573 (quoting N.C. Gen. Stat. \u00a7 15A-2000(e)(8)) (emphasis omitted). As subsection (d)(6) and subsection (e)(8) share similar phraseology, we believe subsection (d)(6) incorporates the same disjunctive framework, requiring the State to establish that (1) the victim was a \u201claw enforcement officer\u201d and (2) the offense was committed against the officer (a) \u201cwhile engaged in the performance of [his or her] official duties\u201d or (b) \u201cbecause of the exercise of [his or her] official duties.\u201d N.C. Gen. Stat. \u00a7 15A-1340.16(d)(6).\nHere, by superceding indictment, the State alleged that \u201c[t]he defendant committed the offense [of first-degree murder], including all lesser included offenses, against a law enforcement officer while the officer was engaged in the performance of his official duties as an officer with the Winston-Salem Police Department, in violation of NCGS \u00a7 1340.16(d)(6).\u201d After the jury found defendant guilty of second-degree murder, the trial judge held a charge conference at which the prosecutor requested that the judge instruct the jury \u201calternatively]\u201d on both prongs of subsection (d)(6). Defense counsel objected, arguing that there was insufficient evidence of either aggravating circumstance. The trial court overruled defense counsel\u2019s objection, and instructed the jury on both prongs:\nHaving found the defendant guilty of second-degree murder, you must find \u2014 you must consider the following question: Do you find from the evidence beyond a reasonable doubt the existence of the following aggravating factor: \u201cThat the offense was committed against or approximately [sic] caused serious injury to a present or former law-enforcement officer while engaged in the performance of that person\u2019s official duties, or because of the exercise of that person\u2019s official duties.\u201d\nAs indicated by the verdict sheet, the jury found that defendant committed the offense \u201cagainst or proximately caused serious injury to a present or former law enforcement officer, while engaged in the performance of that person\u2019s official duties or because of the exercise of that person\u2019s official duties.\u201d\nDefendant first argues that the trial court erred in submitting to the jury subsection (d)(6)\u2019s \u201cbecause of\u2019 prong since the superceding indictment alleged only the \u201cengaged in\u201d prong. This argument was raised for the first time during oral argument before this Court. Despite not being raised at trial, defendant contends that the issue is properly before this Court for review because the absence of the aggravating factor being alleged in the indictment implicates the trial court\u2019s subject-matter jurisdiction to submit the factor to the jury for consideration.Nee generally State v. Webber, 190 N.C. App. 649, 650, 660 S.E.2d 621, 622 (2008) (\u201cIt is well-established that the issue of a court\u2019s jurisdiction over a matter may be raised at any time, even for the first time on appeal or by a court sua sponte.\u201d').\nWith respect to N.C. Gen. Stat. \u00a7 15A-2000(e)\u2019s aggravating circumstances, in State v. Allen, 360 N.C. 297, 317, 626 S.E.2d 271, 286 (2006), the Supreme Court \u201crejected\u201d the capital defendant\u2019s argument that \u201cthe trial court lacked jurisdiction to enter a death sentence because the indictment did not list the aggravating circumstances to be proven by the State during the penalty phase.\u201d Accord State v. Roache, 358 N.C. 243, 267-68, 595 S.E.2d 381, 398 (2004) (\u201coverul[ing]\u201d capital defendant\u2019s argument that indictment not alleging aggravating circumstances for which death penalty was imposed \u201cdeprived the trial court of jurisdiction\u201d). This Court has similarly concluded that \u201csentencing factors that might lead to a sentencing enhancement do not have to be alleged in the indictment.\u201d State v. Dierdorf, 173 N.C. App. 753, 754, 620 S.E.2d 305, 306 (2005); accord State v. Boyce, 175 N.C. App. 663, 668-69, 625 S.E.2d 553, 557 (2006) (\u201c[Aggravating circumstances need not be specifically alleged in an indictment.\u201d). Thus, the absence of any allegation in the indictment that defendant committed the offense \u201cbecause of\u201d Sgt. Plouff\u2019s exercise of his official duties did not deprive the trial court of jurisdiction to submit this prong of the aggravating factor to the jury.\nAlternatively, defendant contends that even if the trial court had \u201cjurisdiction\u201d to submit both prongs of subsection (d)(6), the evidence was insufficient to support their submission. In determining whether an aggravating factor should be submitted to the jury, \u201cthe trial court must use the same standard applied in determining the appropriateness of a motion to dismiss at the end of the evidence.\u201d Gaines, 332 N.C. at 469, 421 S.E.2d at 573. Succinctly stated, \u201c[i]n determining the sufficiency of the evidence to submit an aggravating circumstance to the jury, the trial court must consider the evidence in the light most favorable to the State, with the State entitled to every reasonable inference to be drawn therefrom, and discrepancies and contradictions resolved in favor of the State.\u201d State v. Syriani, 333 N.C. 350, 392, 428 S.E.2d 118, 141 (1993).\nDefendant first argues that the trial court erred in submitting the \u201cengaged in\u201d prong of subsection (d)(6) because the evidence was insufficient to show that defendant knew that Sgt. Plouff was a law enforcement officer engaged in the performance of his official duties at the time of the killing. Although subsection (d)(6) does not explicitly require a defendant\u2019s knowledge of the victim\u2019s protected status, defendant claims that because the purpose of \u201caggravating factor[s] is to punish more severely those defendants who have acted with culpability beyond that necessary to commit the crimes of which they stand convicted,\u201d the State was required to prove that defendant \u201cfired at Sgt. Plouff knowing that he was a law enforcement officer . . . .\u201d\nNeither the Supreme Court nor this Court has specifically addressed whether subsection (d)(6)\u2019s \u201cengaged in\u201d prong requires proof that the defendant knew, or reasonably should have known, that the victim was a member of the protected class engaged in the performance of his or her official duties at the time of the offense. Nor has the Supreme Court concluded whether subsection (e)(8)\u2019s \u201cengaged in\u201d prong includes a knowledge component. See State v. Nicholson, 355 N.C. 1, 47, 558 S.E.2d 109, 140 (2002) (\u201cThis Court has never addressed whether the trial court may submit the (e)(8) aggravating circumstance under the \u2018engaged in\u2019 prong in the absence of evidence tending to show the defendant knew or had reasonable grounds to know that the victim was a law enforcement officer.\u201d).\nThe Supreme Court has, however, explained that subsection (e)(8)\u2019s two prongs focus on different aspects of the offense: \u201cone prong is concerned with the victim\u2019s conduct at the time of the murder (\u2018engaged in\u2019), while the other prong is concerned with the defendant\u2019s motive (\u2018because of\u2019).\u201d State v. Long, 354 N.C. 534, 541, 557 S.E.2d 89, 94 (2001) (emphasis added). Because the \u201cengaged in\u201d prong focuses on the victim\u2019s conduct, the Supreme Court has described it as \u201caddress[ing] the objective fact that the victim was a law enforcement officer performing his official duties.\u201d State v. Maness, 363 N.C. 261, 290, 677 S.E.2d 796, 814 (2009) (emphasis added), cert. denied, \u2014 U.S. \u2014, 176 L. Ed. 2d 568 (2010). In contradistinction, the \u201cbecause of\u2019 prong has been construed as relating to the defendant\u2019s subjective intent, \u201cpurpose,\u201d or \u201cmotivation\u201d for murdering the officer. Gaines, 332 N.C. at 476, 421 S.E.2d at 577; accord Long, 354 N.C. at 542, 557 S.E.2d at 94 (\u201cTo submit the \u2018because of\u2019 prong, the State must. . . show that defendant\u2019s motivation in killing the victim was that she was a [member of the class protected by subsection (e)(8)].\u201d).\nConsistent with this objective-subjective distinction between subsection (e)(8)\u2019s \u201cengaged in\u201d and \u201cbecause of\u2019 prongs, as developed by the Supreme Court, we hold that subsection (d)(6)\u2019s \u201cengaged in\u201d prong does not require the State to prove that the defendant knew or reasonably should have known that the victim was a member of the protected class engaged in the exercise of his or her official duties. Submission of the aggravating factor simply requires evidence sufficient to establish the \u201cobjective fact\u201d that the victim was a member of the protected class \u2014 here, a law enforcement officer \u2014 engaged in the performance of his or her official duties at the time of the offense. Maness, 363 N.C. at 290, 677 S.E.2d at 814.\nThis conclusion is further supported by considering subsection (d)(6)\u2019s \u201cengaged in\u201d prong in context with the statute\u2019s other aggravating factors. N.C. Gen. Stat. \u00a7 15A-1340.16(d)(8), for example, provides that a sentence may be aggravated if, during the commission of the offense, \u201c[t]he defendant knowingly created a great risk of death to more than one person by means of a weapon or device which would normally be hazardous to the lives of more than one person.\u201d (Emphasis added.) The General Assembly\u2019s inclusion of a knowledge requirement in N.C. Gen. Stat. \u00a7 15A-1340.16(d)(8) indicates that it purposefully omitted such a requirement from subsection (d)(6)\u2019s \u201cengaged in\u201d prong. See N.C. Dep\u2019t of Revenue v. Hudson, 196 N.C. App. 765, 768, 675 S.E.2d 709, 711 (2009) (\u201cWhen a legislative body \u2018includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that [the legislative body] acts intentionally and purposely in the disparate inclusion or exclusion.\u2019 \u201d (quoting Rodriguez v. United States, 480 U.S. 522, 525, 94 L. Ed. 2d 533, 537 (1987))); compare Alaska Stat. \u00a7 12.55.155(e)(13) (2009) (establishing as aggravating circumstance fact that \u201cthe defendant knowingly directed the conduct constituting the offense at a[] .. .law enforcement officer .. . during or because of the exercise of official duties\u201d (emphasis added)).\nOther jurisdictions with aggravating factors similar to subsection (d)(6) have likewise concluded that such a factor does not contain a knowledge element. In Unites States v. Wilson, the federal district court held:\nThe statutory aggravating factors enumerated by Congress include that \u201c[t]he defendant committed the offense against... a Federal public servant who is ... a law enforcement officer . .. while he or she is engaged in the performance of his or her official duties,\u201d regardless of whether the defendant knew or believed his victim[] was a law enforcement officer.\n493 F. Supp.2d 491, 498 (E.D.N.Y. 2007) (quoting 18 U.S.C. \u00a7 3592(c)(14)(D)). Similarly, the Supreme Court of Georgia has construed Ga. Code Ann. \u00a7 17-10-30(b)(8), which provides that a defendant may be tried capitally if \u201c[t]he offense of murder was committed against any peace officer, corrections employee, or firefighter while engaged in the performance of his official duties,\u201d as \u201cnot requiring knowledge on the part of the defendant that the victim was a peace officer or other designated official engaged in the performance of his duties.\u201d Fair v. State, 284 Ga. 165, 170, 664 S.E.2d 227, 233 (2008). Although not controlling, Morton Bldgs., Inc. v. Tolson, 172 N.C. App. 119, 127, 615 S.E.2d 906, 912 (2005), we find these authorities persuasive and consistent with our construction of subsection (d)(6).\nWe note, moreover, that importing a knowledge requirement into subsection (d)(6)\u2019s \u201cengaged in\u201d prong would have the untoward consequence of potentially precluding the submission of this aggravating factor when the offense was committed against a plainclothes or \u201cundercover\u201d officer. See Fair, 284 Ga. at 169, 664 S.E.2d at 232 (observing that imposing knowledge requirement \u201cwould wholly preclude . . . punishment for the murder of an \u2018agent acting under cover\u2019 \u201d (quoting United States v. Feola, 420 U.S. 671, 684, 43 L. Ed. 2d 541, 553 (1975))). We do not believe that the Legislature intended such an unreasonable result. See Comr. of Insurance v. Automobile Rate Office, 294 N.C. 60, 68, 241 S.E.2d 324, 329 (1978) (\u201cIn construing statutes courts normally adopt an interpretation which will avoid absurd or bizarre consequences, the presumption being that the legislature acted in accordance with reason and common sense and did not intend untoward results.\u201d).\nHere, the State presented uncontroverted evidence that Sgt. Plouff was a police officer with the Winston-Salem Police Department engaged in the performance of his official duties when he was shot and killed by defendant. This evidence is sufficient to enable a reasonable jury to conclude that defendant murdered Sgt. Plouff while \u201cengaged in\u201d the performance of his official duties. The trial court, therefore, properly submitted subsection (d)(6)\u2019s \u201cengaged in\u201d prong to the jury to consider as an aggravating circumstance.\nDefendant also argues that the evidence is insufficient to support submission of subsection (d)(6)\u2019s second prong because there is no evidence that defendant shot and killed Sgt. Plouff \u201cbecause of the exercise of [his] official duties.\u201d N.C. Gen. Stat. \u00a7 15A-1340.16(d)(6). We have already held, however, that the evidence with respect to subsection (d)(6)\u2019s \u201cengaged in\u201d prong was sufficient to support submission of the aggravating factor to the jury. As subsection (d)(6)\u2019s \u201cengaged in\u201d and \u201cbecause of\u2019 prongs are \u201cdisjunctive,\u201d Gaines, 332 N.C. at 470, 421 S.E.2d at 573, we need not address whether the trial court erred in submitting the \u201cbecause of\u2019 prong given the fact that defendant did not raise any issue with respect to jury unanimity at trial or on appeal. Consequently, we find no error.\nNo Error.\nJudges STEPHENS and ERVIN\u2019 concur.\n. Neither the indictments nor the verdict sheets regarding these charges are included in the record on appeal.", "type": "majority", "author": "HUNTER, Robert C., Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Charles E. Reece, for the State.", "Appellate Defender Staples Hughes, by Assistant Appellate Defender Daniel R. Pollitt, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. KEITH ANTIONE CARTER, Defendant\nNo. COA10-974\n(Filed 21 June 2011)\n1. Confessions and Incriminating Statements\u2014 denial of pretrial motion to suppress \u2014 not in custody\nThe trial court did not err in a second-degree murder case by denying defendant\u2019s pretrial motion to suppress the statement he made to detectives at the police station. Considering the totality of circumstances, defendant was not in custody at the time of his recorded statement to police.\n2. Jury\u2014 Batson challenge \u2014 race-neutral reasons \u2014 failure to show purposeful discrimination\nThe trial court did not err in a second-degree murder case by excluding prospective African-American jurors from the jury. The trial court found the prosecutor made race-neutral explanations and defendant failed to show purposeful discrimination.\n3. Homicide\u2014 second-degree murder \u2014 motion to dismiss\u2014 sufficiency of evidence \u2014 intentional use of deadly weapon\nThe trial court did not err by denying defendant\u2019s motion to dismiss the charge of second-degree murder. Evidence of defendant\u2019s intentional use of a deadly weapon, a semi-automatic handgun, that proximately caused death triggered a presumption that the killing was done with malice.\n4. Sentencing\u2014 aggravating factors \u2014 committed against police officer\nThe trial court did not err in a second-degree murder case by submitting to the jury the aggravating factor under N.C.G.S. \u00a7 15A-1340.16(d)(6) that the offense was committed against a police officer engaged in the performance of his official duties. Sentencing factors that might lead to sentencing enhancement do not have to be alleged in the indictment.\nAppeal by defendant from judgment entered 12 March 2010 by Judge William Z. Wood, Jr. in Forsyth County Superior Court. Heard in the Court of Appeals 22 March 2011.\nAttorney General Roy Cooper, by Assistant Attorney General Charles E. Reece, for the State.\nAppellate Defender Staples Hughes, by Assistant Appellate Defender Daniel R. Pollitt, for defendant-appellant." }, "file_name": "0516-01", "first_page_order": 526, "last_page_order": 545 }