State v. Pierre, ___ N.C. App. ___, ___ S.E.2d ___ (Dec. 17, 2019)

Two men (“Stroud” and “Bernard”) hosted two young women  (“Jermisha” and “Kendretta”) at Stroud’s home on two occasions. During the second visit, Kendretta experienced a “spell” where she fell down and started kicking, apparently as a result of consuming alcohol and synthetic weed. About an hour after Kendretta recovered and left, the defendant showed up at Stroud’s house in a car, accompanied by at least two other individuals. The defendant identified himself as “KP” and confronted Stroud on the front porch, where he accused him of trying to take sexual advantage of Kendretta. The defendant stated he was here to kill Stroud and pulled out a gun. Stroud initially struggled with the defendant, but once the defendant drew and aimed his gun, Stroud fled inside. The defendant fired multiple shots into Stroud’s home and then drove away. Stroud’s niece was able to identify “KP” as the defendant, and she later spoke to the defendant about what happened and he admitted shooting into the house. The defendant was indicted, tried, and convicted on charges of discharging a firearm into an occupied dwelling and possession of a firearm by a convicted felon.

On appeal, the defendant argued that the trial court erred by instructing the jury on the theory of acting in concert (over the defendant’s objection and a request for a special verdict form) because that theory was not supported by the evidence and including it in the instructions was prejudicial. Pursuant to State v. Malachi, 371 N.C. 719 (2018), even if the jury was instructed on an unsupported legal theory, the appellate court must engage in a two-part inquiry to determine prejudice: “first we ask whether the State presented ‘exceedingly strong evidence of defendant’s guilt on the basis of a theory that has sufficient support’ from the evidence presented; and, second, we must ensure that ‘the State’s evidence is neither in dispute nor subject to serious credibility-related questions[.]’ […] If we are satisfied that those conditions have been met, we must conclude ‘it is unlikely that a reasonable jury would elect to convict the defendant on the basis of an unsupported legal theory.’” Reviewing the evidence in the case, the court found that both parts of the inquiry were satisfied by the state’s evidence. First, the eyewitness testimony, along with physical evidence such as a bullet recovered from inside the home, provided exceedingly strong evidence that the defendant did discharge a firearm into an occupied dwelling. Second, minor discrepancies in the trial testimony such as what type of car the defendant drove to Stroud’s house did not rise to the level of presenting a material dispute in the evidence, nor were there “serious credibility-related questions” with the evidence. The court acknowledged that Stroud’s niece, a key witness for the state, was cross-examined about her potential bias against the defendant, but “she answered the questions about her alleged bias head-on and flatly denied having any bias against Defendant, going as far as to say she cares for him and his family. We find this testimony remediates the seriousness of any credibility-related questions.” Therefore, even assuming arguendo that it was error to instruct the jury on acting in concert in this case, the state presented “exceedingly strong evidence of Defendant’s guilt that was neither in dispute nor subject to serious credibility-related questions,” so the error was not prejudicial.