State v. Abraham (1994)

P. 404(a)(2), State v. Abraham, 338 N.C. 315, 352-53 , 451 S.E.2d 131, 151 (1994), and State v. Oliver, 309 N.C. 326, 360 , 307 S.E.2d 304, 326 (1983))).

Tenn. Sup. Ct. R. 13, § 5(c) (citing Barnett, 909 S.W.2d at 430 ; Caldwell v. Mississippi, 472 U.S. 320 , 323 n.1 (1985); State v. Abraham, 451 S.E.2d 131, 149 (N.C. 1994)).

Felony murder elevates a homicide to first-degree murder if the killing is committed in the perpetration or attempted perpetration of certain felonies or any "other felony committed or attempted with the use of a deadly weapon [.]" N.C.G.S. § 14-17(a) ; see also State v. Abraham, 338 N.C. 315 , 331-32, 451 S.E.2d 131 , 139 (1994) ("[T]he legislature clearly intended ... that felony murder included a killing committed during the commission or attempted commission of a felony …

“It is well settled that ‘a valid bill of indictment is essential to the jurisdiction of the trial court to try an accused for a felony.’ ” State v. Abraham, 338 N.C. 315, 339 , 451 S.E.2d 131, 143-44 (1994) (quoting Sturdivant, 304 N.C. at 308 , 283 S.E.2d at 729 ).

Here, Defendant was tried on a theory of acting in concert. “ ‘Under the doctrine of acting in concert, if two or more persons act together in pursuit of a common plan or purpose, each of them, if actually or constructively present, is guilty of any crime committed by any of the others .in pursuit of the common plan.’” State v. McCullers, 341 N.C. 19, 29-30 , 460 S.E.2d 163, 169 (1995) (quoting State v. Abraham, 338 N.C. 315, 328-29 , 451 S.E.2d 131, 137 (1994)).

The Court found no error in the admission of the evidence, holding that "the evidence concerning the defendant's attempted murder of the taxicab driver three weeks later with the same gun tended to prove the defendant's possession and control of the weapon at a time close in proximity to that of the Harrelson murder." State v. Abraham, 338 N.C. 315, 337 , 451 S.E.2d 131, 142 (1994) (quoting Garner, 331 N.C. at 509 , 417 S.E.2d at 512 ).

State v. Abraham, 338 N.C. 315, 343 , 451 S.E.2d 131, 145 (1994); State v. Quick, 329 N.C. 1, 17 , 405 S.E.2d 179, 189 (1991).

It is well-settled that “[t]he erroneous admission of hearsay, like the erroneous admission of other evidence, is not always so prejudicial as to require a new trial.” State v. Abraham, 338 N.C. 315, 356 , 451 S.E.2d 131, 153 (1994) (internal quotations and citations omitted).

We have observed that, unless admissible under Rule 404(a)(2), N.C.G.S. § 8C-1, Rule 404(a)(2) (2003), character evidence of a victim is usually irrelevant during the guilt-innocence portion of a capital trial, State v. Abraham, 338 N.C. 315, 352-53 , 451 S.E.2d 131, 151 (1994), as is victim-impact evidence, State v. Oliver, 309 N.C. 326, 360 , 307 S.E.2d 304, 326 (1983).

App. 18, 27 , 533 S.E.2d 248, 254 (2000) (quoting State v. Brinson, 337 N.C. 764, 767 , 448 S.E.2d 822, 824 (1994)). *678 We note that there is a line of cases by our Supreme Court which hold that “[a] change in the name of the victim substantially alters the charge in the indictment.” See State v. Abraham, 338 N.C. 315, 340 , 451 S.E.2d 131, 144 (1994) (“Where an indictment charges the defendant with a crime against someone other than the actual victim, such a variance is f…

On a motion to dismiss for insufficient evidence, "`[t]he question for the court is whether substantial evidence—direct, circumstantial, or both—supports each element of the offense charged and defendant's perpetration of that offense.'" State v. McCullers, 341 N.C. 19, 29 , 460 S.E.2d 163, 168 (1995) (quoting State v. Abraham, 338 N.C. 315, 328 , 451 S.E.2d 131, 137 (1994)).

“If there is substantial evidence of each element of the offense charged, or any lesser included offenses, the trial court must deny the motion to dismiss and submit the charges to the jury for its consideration.” State v. Abraham, 338 N.C. 315, 328 , 451 S.E.2d 131, 137 (1994).

Our Supreme Court, however, on occasion has held that AWDWIK may serve as a predicate felony where someone other than the defendant’s intended target is killed.” State v. Abraham, 338 N.C. 315, 332 (1994) (holding felony assault with a deadly weapon which results in the death of a bystanding supports conviction of first- degree felony murder).

See, e.g., Barnett, 909 S.W.2d at 430 ; Caldwell v. Mississippi, 472 U.S. 320 , 323 n.1 (1985); State v. Abraham, 451 S.E.2d 131, 149 (N.C. 1994). (d)(1) The director and/or the chief justice shall maintain uniformity as to the rates paid individuals or entities for services provided to indigent parties.

Based on our precedents which establish that whether a verdict is unambiguous depends on all of the circumstances present in a case, including the indictment, the evidence, and the instructions of the trial court, see State v. Abraham, 338 N.C. 315, 356 (1994), we hold that under the circumstances of this particular case, the jury’s completed verdict -2- STATE V.

“This is true even where ‘the other person does all the acts necessary to commit the crime.’ ” State v. Abraham, 338 N.C. 315, 329 , 451 S.E.2d 131, 137 (1994) (quoting State v. Jefferies, 333 N.C. 501, 512 , 428 S.E.2d 150, 156 (1993)).

State v. Abraham, 338 N.C. 315, 339 , 451 S.E.2d 131, 143 (1994). ¶ 35 Read in context, the prosecutor’s statements disclose they were made for the permissible purpose of calling the jury’s attention to its role as representatives of the community and out of specific deterrence concerns.

State v. Abraham, 338 N.C. 315, 339 , 451 S.E.2d 131, 143 (1994). ¶ 35 Read in context, the prosecutor’s statements disclose they were made for the permissible purpose of calling the jury’s attention to its role as representatives of the community and out of specific deterrence concerns.

BARBER 2021-NCCOA-695 Opinion of the Court Supreme Court has “interpreted prohibited amendments to mean any change in the indictment which would substantially alter the charge set forth in the indictment.” State v. Abraham, 338 N.C. 315, 340 , 451 S.E.2d 131, 144 (1994) (internal marks omitted).

BARBER 2021-NCCOA-695 Opinion of the Court Supreme Court has “interpreted prohibited amendments to mean any change in the indictment which would substantially alter the charge set forth in the indictment.” State v. Abraham, 338 N.C. 315, 340 , 451 S.E.2d 131, 144 (1994) (internal marks omitted).

A. Indictment ¶ 10 “It is well settled that a valid bill of indictment is essential to the jurisdiction of the trial court to try an accused for a felony.” State v. Abraham, 338 N.C. 315, 339 , 451 S.E.2d 131, 143 (1994) (internals marks and citation omitted).

A. Indictment ¶ 10 “It is well settled that a valid bill of indictment is essential to the jurisdiction of the trial court to try an accused for a felony.” State v. Abraham, 338 N.C. 315, 339 , 451 S.E.2d 131, 143 (1994) (internals marks and citation omitted).

It is axiomatic that in order to constitute plain error justifying a new trial, the error must “be so fundamental that [the] defendant, in light of the evidence, the issues and the instructional error, could not have received a fair trial.” State v. Abraham, 338 N.C. 315, 345 , 451 S.E.2d 131, 147 (1994). “[A] defendant must establish prejudice—that, after examination of the entire record, the error had a probable impact on the jury’s finding that the defendant was guilty.” …

A change in the name of the victim substantially alters the charge in the indictment." Abraham , 338 N.C. at 340 , 451 S.E.2d at 144 (internal citations and quotation marks omitted).

Tenn. Sup. Ct. R. 13, § 5(c)(4) (citing State v. Barnett, 909 S.W.2d 423, 430 (Tenn. 1995); Caldwell v. Mississippi, 472 U.S. 320 , 323 n.1 (1985); State v. Abraham, 451 S.E.2d 131, 149 (N.C. 1994)).

Tenn. Sup. Ct. R. 13, § 5(c) (citing Barnett, 909 S.W.2d at 430 ; Caldwell v. Mississippi, 472 U.S. 320 , 323 n.1 (1985); State v. Abraham, 451 S.E.2d 131, 149 (N.C. 1994)).

“Where an indictment charges the defendant with a crime against someone other than the actual victim, the variance is fatal.” State v. Abraham, 338 N.C. 315, 340 , 451 S.E.2d 131, 144 (1994) (citation omitted). -5- STATE V.

“It is well settled that a valid bill of indictment is essential to the jurisdiction of the trial court to try an accused for a felony.” State v. Abraham, 338 N.C. 315, 339 , 451 S.E.2d 131, 143 (1994) (citation and quotation marks omitted).

See, e.g., Cherry v. State, 496 S.E.2d 764, 767 (Ga. App. 1998) (noting that defendant failed to object to witness wearing prison attire “on the grounds that the dress of the witnesses placed his character in evidence”); State v. Abraham, 451 S.E.2d 131, 141 (N.C. 1994) (noting that defendant failed to object to witnesses wearing prison attire and shackles); see also Hightower v. State, 154 P.3d 639, 642 (Nev. 2007) (“The burden is on the defendant to timely request that the…

“It is well settled that ‘a valid bill of indictment is essential to the jurisdiction of the trial court to try an accused for a felony.’ ” State v. Abraham, 338 N.C. 315, 339 , 451 S.E.2d 131, 143 (1994) (citation omitted).

“It is well settled that ‘a valid bill of indictment is essential to the jurisdiction of the trial court to try an accused for a felony.’ ” State v. Abraham, 338 N.C. 315, 339 , 451 S.E.2d 131, 143 (1994) (citation omitted).

See also State v. Celaya, 135 Ariz. 248 , 660 P.2d 849, 858 (1983) (reaffirming that jury instruction on flight does not constitute unconstitutional comment on evidence); State v. Abraham, 338 N.C. 315 , 451 S.E.2d 131, 157 (1994) (holding flight instruction did not express opinion of trial court where instruction told jurors they were judges of weight of evidence). 8 .

Ed. 2d 305 (2001); State v. Abraham, 338 N.C. 315, 339 , 451 S.E.2d 131, 143 (1994) (stating that, “[w]hile the prosecution may not argue the effect of defendant’s conviction on others, i.e., general deterrence, the prosecution may argue specific deterrence, that is, the effect of conviction on defendant himself’), any impropriety in the challenged portions of the prosecutor’s closing argument did not render Smith’s trial fundamentally unfair.

“It is well settled that ‘a valid bill of indictment is essential to the jurisdiction of the trial court to try an accused for a felony.’ ” State v. Abraham, 338 N.C. 315, 339 , 451 S.E.2d 131, 143 (1994) (citation omitted).

State v. Abraham, 338 N.C. 315, 330 , 451 S.E.2d 131, 138 (1994).

Ed. 2d 71 (2002); State v. Abraham, 338 N.C. 315, 347 , 451 S.E.2d 131, 148 (1994) (concluding trial court did not commit plain error when erroneous jury instruction “had no effect on the outcome of the trial”).

During closing remarks, the prosecution may not argue that convicting the defendant will have a general deterrent effect; however, “the prosecution may argue specific deterrence, that is, the effect of conviction on the defendant himself.” State v. Abraham, 338 N.C. 315, 339 , 451 S.E.2d 131, 143 (1994).

The theory of “acting in concert” is a means of imputing to a defendant the acts of another perpetrator: “ ‘Under the doctrine of acting in concert, if two or more persons act together in pursuit of a common plan or purpose, each of them, if actually or constructively present, is guilty of any crime committed by any of the others in pursuit of the common plan.’ ” State v. McCullers, 341 N.C. 19, 29-30 , 460 S.E.2d 163, 169 (1995) (quoting State v. Abraham, 338 N.C. 315, 328-…

State v. Abraham, 338 N.C. 315, 339 , 451 S.E.2d 131, 143 (1994); Syriani, 333 N.C. at 397 , 428 S.E.2d at 144 .

State v. Abraham, 338 N.C. 315, 346 , 451 S.E.2d 131, 147 (1994) .

Generally, “character evidence of a victim is usually irrelevant during the guilt-innocence portion of a capital trial, as is victim-impact evidence.” State v. Maske, 358 N.C. 40, 50 , 591 S.E.2d 521, 528 (2004) (citing State v. Abraham, 338 N.C. 315, 352-53 , 451 S.E.2d 131, 151 (1994) and State v. Oliver, 309 N.C. 326, 360 , 307 S.E.2d 304, 326 (1983)).

State v. Abraham, 338 N.C. 315, 328 , 451 S.E.2d 131, 137 (1994) (citing State v. McAvoy, 331 N.C. 583, 589 , 417 S.E.2d 489, 493 (1992)).

Here, the State relied upon the theory that defendant acted in concert with Brooks with respect to the larceny charge. “ ‘Under the doctrine of acting in concert, if two or more persons act together in pursuit of a common plan or purpose, each of them, if actually or constructively present, is guilty of any crime committed by any of the others in pursuit of the common plan.’ ” State v. McCullers, 341 N.C. 19, 29-30 , 460 S.E.2d 163, 169 (1995) (quoting State v. Abraham, 338 …

"The question for the court is whether substantial evidence—direct, circumstantial, or both—supports each element of the offense charged and defendant's perpetration of that offense." "`Substantial evidence' is that amount of relevant evidence that a reasonable mind might accept as adequate to support a conclusion." "If there is substantial evidence of each element of the offense charged, or any lesser included offenses, the trial court must deny the motion to dismiss . . . …

State v. Abraham, 338 N.C. 315, 343 , 451 S.E.2d 131, 145 (1994); State v. Quick, 329 N.C. 1, 17 , 405 S.E.2d 179, 189 (1991).

State v. Abraham, 338 N.C. 315, 328 , 451 S.E.2d 131, 137 (1994).

“Where the indictment and the proof are at variance, as is the case here, the trial court should dismiss the charge stemming from the flawed indictment and grant the State leave to secure a proper bill of indictment.” State v. Abraham, 338 N.C. 315, 341 , 451 S.E.2d 131, 144 (1994).

State v. Abraham, 338 N.C. 315, 328 , 451 S.E.2d 131, 137 (1994). “ ‘Substantial evidence’ is that amount of relevant evidence that a reasonable mind might accept as adequate to support a conclusion.” Id.

“Counsel may argue the facts in evidence together with all reasonable inferences that may be drawn therefrom in presenting counsel’s side of the case.” State v. Abraham, 338 N.C. 315, 338 , 451 S.E.2d 131, 143 (1994).

State v. Fletcher, 301 N.C. 709, 712 , 272 S.E.2d 859, 860 (1981). “ ‘The question for the court is whether substantial evidence — direct, circumstantial, or both — supports each element of the offense charged and defendant’s perpetration of that offense.’ ” State v. McCullers, 341 N.C. 19, 29 , 460 S.E.2d 163, 168 (1995) (quoting State v. Abraham, 338 N.C. 315, 328 , 451 S.E.2d 131, 137 (1994) (quoting State v. Rannels, 333 N.C. 644, 659 , 430 S.E.2d 254, 262 (1993))).