{ "id": 12175679, "name": "STATE OF NORTH CAROLINA v. JAMES LEWIS WILSON, JR.", "name_abbreviation": "State v. Wilson", "decision_date": "2014-09-16", "docket_number": "No. COA13-1395", "first_page": "472", "last_page": "478", "citations": [ { "type": "official", "cite": "236 N.C. App. 472" } ], "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": "592 S.E.2d 567", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "572", "parenthetical": "holding that \"[a]ssault by pointing a gun is not a lesser-included offense of assault with a firearm on a law enforcement officer because the latter offense does not include the element of pointing a gun at a person.\" (emphasis added)" } ], "opinion_index": 0 }, { "cite": "162 N.C. App. 632", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8919315 ], "year": 2004, "pin_cites": [ { "page": "638", "parenthetical": "holding that \"[a]ssault by pointing a gun is not a lesser-included offense of assault with a firearm on a law enforcement officer because the latter offense does not include the element of pointing a gun at a person.\" (emphasis added)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/162/0632-01" ] }, { "cite": "350 S.E.2d 334", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "346", "parenthetical": "\"Although counsel stated [at closing that] there was malice, he did not admit guilt.... [Therefore,] this case does not fall with the Harbison line of cases[.]\"" }, { "page": "346", "parenthetical": "finding no Harbison error where the defendant's counsel admitted an element of first-degree murder at trial but still maintained the defendant's innocence" } ], "opinion_index": 0 }, { "cite": "318 N.C. 512", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4740241 ], "year": 1986, "pin_cites": [ { "page": "533", "parenthetical": "\"Although counsel stated [at closing that] there was malice, he did not admit guilt.... [Therefore,] this case does not fall with the Harbison line of cases[.]\"" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0512-01" ] }, { "cite": "573 S.E.2d 132", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "147" } ], "opinion_index": 0 }, { "cite": "356 N.C. 490", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511491 ], "year": 2002, "pin_cites": [ { "page": "512" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0490-01" ] }, { "cite": "90 L.Ed.2d 672", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1986, "opinion_index": 0 }, { "cite": "476 U.S. 1123", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12995, 12899, 12492, 12429, 13010, 12883, 12756, 12661, 13047, 12568, 13049, 12828, 12351 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/us/476/1123-12", "/us/476/1123-01", "/us/476/1123-10", "/us/476/1123-08", "/us/476/1123-13", "/us/476/1123-11", "/us/476/1123-03", "/us/476/1123-07", "/us/476/1123-02", "/us/476/1123-06", "/us/476/1123-05", "/us/476/1123-09", "/us/476/1123-04" ] }, { "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": "306 S.E.2d 851", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "852" } ], "opinion_index": 0 }, { "cite": "64 N.C. App. 180", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526460 ], "year": 1983, "pin_cites": [ { "page": "181" } ], "opinion_index": 0, "case_paths": [ "/nc-app/64/0180-01" ] }, { "cite": "497 S.E.2d 416", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "422" } ], "opinion_index": 0 }, { "cite": "128 N.C. App. 688", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11656579 ], "year": 1998, "pin_cites": [ { "page": "696" } ], "opinion_index": 0, "case_paths": [ "/nc-app/128/0688-01" ] }, { "cite": "309 S.E.2d 188", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "191" } ], "opinion_index": 0 }, { "cite": "309 N.C. 771", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4763094 ], "year": 1983, "pin_cites": [ { "page": "777" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0771-01" ] }, { "cite": "574 S.E.2d 17", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2002, "pin_cites": [ { "page": "23-24", "parenthetical": "citations omitted" }, { "page": "24", "parenthetical": "arresting the judgment in an attempted first-degree murder conviction where the short form indictment failed to allege that the defendant acted with malice aforethought" } ], "opinion_index": 0 }, { "cite": "154 N.C. App. 234", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9249594 ], "year": 2002, "pin_cites": [ { "page": "244-45", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/154/0234-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 15-144", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2013, "opinion_index": 0 }, { "cite": "675 S.E.2d 406", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "409", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "196 N.C. App. 650", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4166258 ], "year": 2009, "pin_cites": [ { "page": "652", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/196/0650-01" ] } ], "analysis": { "cardinality": 614, "char_count": 13415, "ocr_confidence": 0.713, "pagerank": { "raw": 1.3288849645966722e-07, "percentile": 0.6285136701020021 }, "sha256": "fb24352c58dea5ac2dd99474791b794903854b713dfc31668bb4121efda51967", "simhash": "1:a9245e2bb59b357e", "word_count": 2146 }, "last_updated": "2023-07-14T22:41:07.458141+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges BRYANT and STROUD concur." ], "parties": [ "STATE OF NORTH CAROLINA v. JAMES LEWIS WILSON, JR." ], "opinions": [ { "text": "McGEE, Chief Judge.\nJames Lewis Wilson (\u201cDefendant\u201d) appeals his conviction of attempted first-degree murder. Defendant contends that (1) the corresponding short form indictment against him for attempted first-degree murder was defective and (2) he received ineffective assistance of counsel at trial. We agree that the indictment against Defendant was defective, but we do not agree that Defendant received ineffective assistance of counsel.\nI. Background\nAround five or six in the evening of 19 July 2011, Timothy Lynch (\u201cMr. Lynch\u201d) was walking on a street in the Five Points area in High Point. Mr. Lynch was accompanied by a small group of people.\nA blue Cavalier (\u201cthe Cavalier\u201d) approached and stopped near where Mr. Lynch and his companions were standing. Four men inside the Cavalier, including Defendant, exited the vehicle. Defendant had been riding in the front passenger seat of the Cavalier and was carrying a gun. Defendant testified at trial that the four men were there to confront Mr. Lynch, whom they believed had recently beaten up Defendant\u2019s cousin. Defendant further testified that, upon exiting the Cavalier, he pointed his gun at the group with Mr. Lynch in order to get them to disperse. Mr. Lynch\u2019s companions fled the scene immediately, but Mr. Lynch remained.\nThere was conflicting testimony as to what happened next. Multiple witnesses testified that Defendant pulled on the slide of his gun to cock it and then pointed the gun at Mr. Lynch. One witness testified that Defendant next tried to pull the trigger three or four times, but the gun jammed and did not fire. Defendant testified that he tried to cock the gun after Mr. Lynch\u2019s companions began running, but the slide itself was jammed and did not move in spite of his multiple efforts. Defendant also testified that he never pointed the gun at Mr. Lynch or tried to pull the trigger after the crowd dispersed.\nDefendant then left in the Cavalier, along with the three men who were accompanying him. However, the police soon pulled over the vehicle and took Defendant into custody. Upon performing a protective sweep of the Cavalier, one officer found Defendant\u2019s gun with its safety still on.\nDefendant was indicted on 7 November 2011 for attempted first-degree murder. A jury found Defendant guilty of that charge on 20 March 2013. The following day, Defendant gave oral notice of appeal in open court.\nII. Defective Indictment\nA. Standard of Review\nOn appeal, this Court reviews the sufficiency of an indictment de novo. State v. McKoy, 196 N.C. App. 650, 652, 675 S.E.2d 406, 409 (2009) (citation omitted).\nB. Analysis\nDefendant contends that the indictment against him for attempted first-degree murder was defective because it omitted an essential element of the offense: malice aforethought. The short form indictment against Defendant, in relevant part, states as follows: \u201cThe jurors for the State upon their oath present that on or about the date of offense shown and in the county named above the defendant named above unlawfully, willfully and feloniously did attempt to murder Timothy Lynch.\u201d By contrast, N.C. Gen. Stat. \u00a7 15-144 (2013), entitled \u201cEssentials of bill for homicide,\u201d states that in the body of the indictment, \u201cit is sufficient in describing murder to allege that the accused person feloniously, willfully, and of his malice aforethought, did kill and murder (naming the person killed), and concluding as is now required by law.\u201d\nThe purpose of an indictment is to inform the defendant of the charge against him with sufficient certainty to enable him to prepare a defense. An indictment is insufficient if it fails to allege the essential elements of the crime charged as required by Article I, Section 22 of the North Carolina Constitution and our legislature in N.C.G.S. \u00a7 15-144. When an indictment has failed to allege the essential elements of the crime charged, it has failed to give the trial court subject matter jurisdiction over the matter, and the reviewing court must arrest judgment.\nState v. Bullock, 154 N.C. App. 234, 244-45, 574 S.E.2d 17, 23-24 (2002) (citations omitted).\nIn this case, the indictment on its face failed to include the essential element of \u201cmalice aforethought\u201d as required by Article I, Section 22 of the North Carolina Constitution, N.C.G.S. \u00a7 15-144, and Bullock. As a result, just as in Bullock, we arrest the judgment in Defendant\u2019s attempted first-degree murder conviction. See id. at 245, 574 S.E.2d at 24 (arresting the judgment in an attempted first-degree murder conviction where the short form indictment failed to allege that the defendant acted with malice aforethought).\nHowever, again, as in Bullock, \u201cwhere the indictment does sufficiently allege a lesser-included offense, we may remand for sentencing and entry of judgment thereupon.\u201d Id. Voluntary manslaughter consists of an unlawful killing without malice, premeditation, or deliberation. See id. (citing State v. Robbins, 309 N.C. 771, 777, 309 S.E.2d 188, 191 (1983)). Because the jury\u2019s guilty verdict of attempted first-degree murder necessarily means that they found all of the elements of the lesser-included offense of attempted voluntary manslaughter, we remand this matter to the trial court for sentencing and entry of judgment for attempted voluntary manslaughter. See id. (citing State v. Wilson, 128 N.C. App. 688, 696, 497 S.E.2d 416, 422 (1998)).\nIII. Ineffective Assistance of Counsel\nA. Standard of Review\nOn appeal, this Court reviews whether a defendant was denied effective assistance of counsel de novo. See State v. Martin, 64 N.C. App. 180, 181, 306 S.E.2d 851, 852 (1983).\nB. Analysis\nIn his next assignment of error, Defendant contends that he received ineffective assistance of counsel at trial, purportedly because his counsel made concessions of Defendant\u2019s guilt during closing arguments without Defendant\u2019s express consent. Specifically, during closing arguments, Defendant\u2019s counsel told the jury:\nYou have heard my client basically admit that while pointing the gun at someone, he basically committed a crime: Assault by pointing a gun. Pointing the gun with what was some sort of guilt in mind, some intent to use the gun, that can be a crime: Assault with a deadly weapon, intent to kill.\nSo if this guilty mind points a weapon at someone, assault with a deadly weapon, intent to kill. But, again, what are we here for? Attempted first-degree murder of Timothy Lynch. And you\u2019re thinking to yourself, those of you who have worked with attorneys, those lawyers need to split hairs. Mr. Green was talking about my client splitting hairs; maybe I am.\nBut, ladies and gentlemen, this is a case about details. Hopefully, you saw that with the questions that I was asking witnesses. Attempted first-degree murder, intent to kill, pointing the weapon at Timothy Lynch. This is mere preparation; moving the slide. Moving the slide is mere preparation.\nThe Judge will instruct you on that; mere preparation is not enough. Intent to kill. [T]here has to - what is that? Mr. Green argued to you in his opening statement and so did I is the pulling of the trigger. That is what this case is about.\nGuilty mind, intent to kill Timothy Lynch by my client pointing the weapon at Timothy Lynch. Not moving the slide; pointing, clicking the trigger. That is what this case is about, amd [sic] that is also what you\u2019ll need to decide if that has been proven beyond a reasonable doubt.\n\u201cIn State v. Harbison, 315 N.C. 175, 180, 337 S.E.2d 504, 507-08 (1985), cert. denied, 476 U.S. 1123, 90 L.Ed.2d 672 (1986), [the North Carolina Supreme Court] held that a defendant receives ineffective assistance of counsel per se when counsel concedes the defendant\u2019s guilt to the offense or a lesser-included offense without the defendant\u2019s consent.\u201d State v. Berry, 356 N.C. 490, 512, 573 S.E.2d 132, 147 (2002). Admission by defense counsel of an element of a crime charged, while still maintaining the defendant\u2019s innocence, does not necessarily amount to a Harbison error. See State v. Fisher, 318 N.C. 512, 533, 350 S.E.2d 334, 346 (1986) (\u201cAlthough counsel stated [at closing that] there was malice, he did not admit guilt.... [Therefore,] this case does not fall with the Harbison line of cases[.]\u201d).\nIn the- case before us, Defendant\u2019s trial counsel did state that \u201cmy client basically admitted] that while pointing the gun at someone, he basically committed a crime: Assault by pointing a gun.\u201d Notably, at trial, Defendant testified and openly admitted to pointing a gun at the crowd with Mr. Lynch in order to get them to disperse. Although Defendant\u2019s counsel used the singular \u201csomeone\u201d to describe those at whom Defendant pointed a gun, dispersing the crowd was the only time Defendant admitted to pointing the gun at anyone. Indeed, throughout direct and cross-examination, Defendant consistently denied that he pointed the gun at Mr. Lynch after the crowd dispersed, despite the State\u2019s repeated attempts to elicit such an admission.\nDefendant was not charged with the offense of assault by pointing a gun at the crowd; he was charged with attempted first-degree murder of Mr. Lynch after the crowd dispersed. Even if we were to assume arguendo that Mr. Lynch was in fact the \u201csomeone\u201d referred to by Defendant\u2019s trial counsel, assault by pointing a gun is not a lesser-included offense of attempted first-degree murder. Cf. State v. Dickens, 162 N.C. App. 632, 638, 592 S.E.2d 567, 572 (2004) (holding that \u201c[a]ssault by pointing a gun is not a lesser-included offense of assault with a firearm on a law enforcement officer because the latter offense does not include the element of pointing a gun at a person.\u201d (emphasis added)). Because this purported admission by Defendant\u2019s counsel did not refer to either the crime charged or to a lesser-included offense, counsel\u2019s statements in this case fall outside of Harbison. At best, an admission by Defendant\u2019s trial counsel that Defendant pointed a gun at Mr. Lynch, while still maintaining Defendant\u2019s innocence of attempted first-degree murder, would appear to place counsel\u2019s statements within the rule in Fisher, and thus still outside of Harbison. See Fisher at 533, 350 S.E.2d at 346 (finding no Harbison error where the defendant\u2019s counsel admitted an element of first-degree murder at trial but still maintained the defendant\u2019s innocence).\nAlso, the declaration by Defendant\u2019s trial counsel that \u201c [pointing the gun with what was some sort of guilt in mind, some intent to use the gun, that can be a crime: Assault with a deadly weapon, intent to k\u00fcl\u201d was merely a hypothetical statement, not an admission, (emphasis added). Next, counsel described the crime with which Defendant had been charged: \u201cAttempted first-degree murder, intent to kill, pointing the weapon at Timothy Lynch\u201d and then contrasted this to Defendant\u2019s theory of the case that Defendant\u2019s acts during the incident with Mr. Lynch amounted to \u201cm\u00e9re preparation; moving the slide. Moving the slide is mere preparation.\u201d Here, too, Defendant himself testified that he tried to move the slide on the gun after pointing it at the crowd.\nDefendant\u2019s counsel concluded by highlighting the key point: \u201cGuilty mind, intent to kill Timothy Lynch by my client pointing the weapon at Timothy Lynch. Not moving the slide; [but] pointing, clicking the trigger.. .. [Y]ou\u2019ll need to decide if that has been proven beyond a reasonable doubt.\u201d\nIn total, and despite Defendant\u2019s contention that his trial counsel admitted Defendant \u201cpointed a gun at Timothy Lynch with the intent to kill him,\u201d we find no such admission in the record before us. Although Defendant\u2019s counsel\u2019s statements were less than clear at closing, none of his statements amount to Harbison error.\nWe find no other basis for supporting Defendant\u2019s claim of ineffective assistance of counsel.\nJudgment arrested on attempted first-degree murder; remanded for sentencing and entry of judgment on attempted voluntary manslaughter.\nJudges BRYANT and STROUD concur.", "type": "majority", "author": "McGEE, Chief Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Special Deputy Attorney General David R Brenskelle, for the State.", "Kimberly P. Hoppinfor Defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JAMES LEWIS WILSON, JR.\nNo. COA13-1395\nFiled 16 September 2014\n1. Indictment and Information\u2014defective short form indictment\u2014attempted first-degree murder\u2014lesser-included offense\u2014attempted voluntary manslaughter\nAlthough the short form indictment used to charge defendant with attempted first-degree murder failed to include the essential element of malice aforethought, the jury\u2019s guilty verdict of attempted first-degree murder necessarily meant that they found all of the elements of the lesser-included offense of attempted voluntary man- . slaughter. The case was remanded to the trial court for sentencing and entry of judgment for attempted voluntary manslaughter.\n2. Constitutional Law\u2014effective assistance of counsel\u2014alleged concessions of guilt\u2014closing arguments\u2014no Harbison error\nDefendant did not receive ineffective assistance of counsel at trial based on his counsel\u2019s alleged concessions of defendant\u2019s guilt during closing arguments without defendant\u2019s express consent. Although defense counsel\u2019s statements were less than clear at closing, none of his statements amounted to a Harbison error.\nAppeal by Defendant from judgment entered 22 March 2013 by Judge David L. Hall in Superior Court, Guilford County. Heard in the Court of Appeals 12 August 2014.\nAttorney General Roy Cooper, by Special Deputy Attorney General David R Brenskelle, for the State.\nKimberly P. Hoppinfor Defendant." }, "file_name": "0472-01", "first_page_order": 480, "last_page_order": 486 }