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NO. COA06-1332TWENTY-EIGHTH JUDICIAL DISTRICT
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NORTH CAROLINA COURT OF APPEALS
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STATE OF NORTH CAROLINA)
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- ) from BUNCOMBE COUNTY
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TRAVIS WADE JONES,)
Defendant)
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DEFENDANT-APPELLANT’S BRIEF
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TABLE OF CONTENTS
Table of Authorities
Questions Presented
Statement of the Case
Statement of Grounds for Appellate Review
Statement of the Facts
Argument
I.The trial court abused its discretion and deprived Mr. Jones of his constitutional right to effective assistance of counsel when it denied Mr. Jones’s Motions for a continuance on medical grounds related to his trial attorney’s health.
II.Mr. Jones received ineffective assistance of counsel when, after presenting evidence, his attorney failed to renew the Motion to Dismiss on the ground that the State had failed to present sufficient evidence to submit the case to the jury when the Motion should have been granted if made. With regard to the Robbery charge, the State failed to present any evidence of (1) intent to permanently deprive Mr. Ted Jones of the truck or (2) taking of any items other than borrowing the truck. Because the State failed to present evidence of the underlying felony or evidence that the killing occurred in the course of a felony, the charge of felony murder should have been dismissed on counsel’s motion. Because the State failed to present evidence of the requisite mens rea, the charge of murder by premeditation and deliberation should have been dismissed on counsel’s motion. Counsel’s failure to move for dismissal fell below the standard of reasonable representation and deprived Mr. Jones of his right to effective assistance of counsel under the sixth and fourteenth amendments to the United States Constitution and the law of the land provisions in Article I, §§ 19 and 23 of the North Carolina Constitution.
Standard of Review
Argument
III.The trial court abused its discretion and committed prejudicial error when, over defendant’s objection, it ruled that the jury could consider Mr. Jones’ statement to police about a prior incident as proof of intent to commit Robbery with a Dangerous Weapon in the present charges. The incident admitted in the statement was not relevant to the matter at issues and were not admissible under N.C. R. Ev. 404(b). The jury’s consideration of the improper evidence rendered it more likely that the jury would convict him of the severest charges.
Standard of Review
Argument
IV.Abandonment of Remaining Assignments of Error
Conclusion
Certificate of Service
Table of Authorities
Cases
Cool v. United States, 409 U.S. 100, 93 S.Ct. 354, 34 L.Ed.2d 335 (1972) 17
In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) 17
Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952) 17
Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977) 17
State v. Al-Bayyinah, 356 N.C. 150, 567 S.E.2d 120 (2002) 21
State v. Anderson, _____ N.C.App. _____, 627 S.E.2d 501 (2006) 19
State v. Barlowe, 157 N.C.App. 249, 578 S.E.2d 660, disc. review denied, 357 N.C. 462, 586 S.E.2d 100 (2003) 14
State v. Branch, 306 N.C. 101, 291 S.E.2d 653 (1982) 14
State v. Braswell, 312 N.C. 553, 324 S.E.2d 241 (1985) 15
State v. Campbell, 359 N.C. 644, 617 S.E.2d 1 (2005) 19
State v. Coffey, 326 N.C. 268, 389 S.E.2d 48 (1990) 21
State v. Denny, ___ N.C. App. ___,635 S.E.2d 438 (2006) 16
State v. Earnhardt, 307 N.C. 62, 296 S.E.2d 649 (1982) 17
State v. Fowler, 230 N.C. 470, 53 S.E.2d 853 (1949) 21
State v. Hunter, 324 N.C. 343, 378 S.E.2d 754 (1989) 19
State v. Jones, 342 N.C. 523, 467 S.E.2d 12 (1996) 17
State v. Lloyd, 354 N.C. 76, 552 S.E.2d 596 (2001) 21
State v. McCree, 160 N.C.App. 19, 584 S.E.2d 348 (2003) 17
State v. Morgan, 359 N.C. 131, 143, 604 S.E.2d 886, 894 (2004), cert. denied,Morgan v. North Carolina, ___ U.S. ___, 126 S. Ct. 47, 163 L.Ed.2d 79 (2005) 14
State v. Sledge, 297 N.C. 227, 254 S.E.2d 579 (1979) 19
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) 15
White v. White, 312 N.C. 770, 324 S.E.2d 829 (1985) 15
Statutes
N.C. Gen. Stat. § 14-87 (2006)...... 17, 21
N.C. Gen. Stat. § 7A-27 (2006)...... 8
Other Authorities
Kenneth S. Broun, Brandis & Broun on North Carolina Evidence (2004) 19
Rules
N.C. R. App. P. 10...... 16
N.C. R. App. P. 2...... 16
N.C. R. App. P. 28...... 23
N.C. R. Ev. 404...... 20
Constitutional Provisions
N.C. Const. Art. I, § 19...... 12
N.C. Const. Art. I, § 23...... 12
U.S. Const. amend. V...... 13
U.S. Const. amend. XIV...... 13
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NO. COA06-1332TWENTY-EIGHTH JUDICIAL DISTRICT
NORTH CAROLINA COURT OF APPEALS
STATE OF NORTH CAROLINA)
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v.)
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TRAVIS WADE JONES,)
Defendant)
______
Questions Presented
- Whether the trial court abused its discretion and deprived Mr. Jones of his constitutional right to effective assistance of counsel when it denied Mr. Jones’s Motions for a continuance on medical grounds related to his trial attorney’s health.
- Whether Mr. Jones received ineffective assistance of counsel when, after presenting evidence, his attorney failed to renew the Motion to Dismiss on the ground that the State had failed to present sufficient evidence to submit the case to the jury when the Motion should have been granted if made. With regard to the Robbery charge, the State failed to present any evidence of (1) intent to permanently deprive Mr. Ted Jones of the truck or (2) taking of any items other than borrowing the truck. Because the State failed to present evidence of the underlying felony or evidence that the killing occurred in the course of a felony, the charge of felony murder should have been dismissed on counsel’s motion. Because the State failed to present evidence of the requisite mens rea, the charge of murder by premeditation and deliberation should have been dismissed on counsel’s motion. Counsel’s failure to move for dismissal fell below the standard of reasonable representation and deprived Mr. Jones of his right to effective assistance of counsel under the Sixth and Fourteenth Amendments to the United States Constitution and the law of the land provisions in Article I, §§ 19 and 23 of the North Carolina Constitution.
- Whether the trial court abused its discretion and committed prejudicial error when, over defendant’s objection, it ruled that the jury could consider Mr. Jones’ statement to police about a prior incident as proof of intent to commit Robbery with a Dangerous Weapon in the present charges. The incident admitted in the statement was not relevant to the matter at issues and were not admissible under N.C. R. Ev. 404(b). The jury’s consideration of the improper evidence rendered it more likely that the jury would convict him of the severest charges.
Statement of the Case
Travis Wade Jones was indicted on charges of Robbery with a Dangerous Weapon and First Degree Murder in Buncombe County. The victim in both cases was his father, Ted Herbert Jones. (R. pp. 2-3.) Travis Jones was tried by jury and convicted on both counts during the December 6, 2005 Criminal Session of Buncombe County Superior Court, the Honorable Ronald K. Payne, Judge Presiding. Judge Payne sentenced Mr. Jones to 51-71 months on the Robbery and to Life without Parole on the Murder. Mr. Jones gave oral Notice of Appeal in open court immediately after sentencing.
The Clerk ordered the transcript on December 12, 2005. The trial court extended the time to produce the transcript until March 14, 2005. The Court of Appeals extended the time to produce the transcript until April 28 and then May 30, 2006. The Court Reporter delivered Volume I of the Transcript on June 3, 2006. By Order of the Court of Appeals, the transcript was deemed timely produced on June 3. The Court Reporter delivered Volume II of the Transcript on June 8, 2006.
The trial court and Court of Appeals granted Appellant extensions of time to serve the Proposed Record due to problems with the transcripts. The ultimate due date was August 21, 2006. Appellate counsel for Mr. Jones served the Proposed Record on Appeal by mail on August 21, 2006. The State did not make any objections or propose any amendments to the Record. The Record on Appeal was therefore settled by operation of law on September 25, 2006.
The Record on Appeal was filed in the Court of Appeals on October 5, 2006 and docketed on October 16, 2006. The Clerk mailed the printed Record on October 18, 2006. The Court of Appeals granted Appellant additional time to serve the Brief, with a new due date of December 18, 2006.
Statement of Grounds for Appellate Review
Mr. Jones appeals from his conviction and sentencing following a trial by jury. The appeal arises from the final judgment of the Superior Court in a criminal matter following trial by jury. N.C. Gen. Stat. § 7A-27(b)(2006) confers grounds for appellate review.
Statement of the Facts
This case was called to trial on December 2, 2005 at which time Mr. Jones was arraigned. He entered not guilty pleas on both counts. (T. p. 4, lines 4-13.) Before jury selection, trial counsel Albert Neal asked the court for a continuance based on his own medical condition. In support of the Motion, Mr. Neal submitted a letter from his doctor that he was suffering from acute superficial punctate keratitis with possible symptoms of “blurred vision, pain around the eyes, photophobia, tearing, and headaches.” Dr. Crowder asked that the case be continued until Mr. Neal’s “condition improves significantly enough for him to be able to see his notes in a reasonable and comfortable manner.” (R. p. 6.) Judge Payne reported in open court that he had phoned Mr. Neal’s doctor who said that his vision was currently 20/40. Judge Payne denied the Motion to Continue, but appointed a second attorney to assist Mr. Neal by taking notes. (T. p. 4, line 15-p. 5, line 11.)
Mr. Neal then moved to continue because he had lost a crown on a lower molar and had an exposed nerve in his mouth. His dentist did not have an available appointment to fix the broken tooth. Mr. Neal asserted that his tooth and eye problem combined to render him ineffective counsel. Judge Payne accepted the information as a Motion to Continue and again denied the Motion. (T. p. 8, lines 2-16.)
The deceased, Ted Jones, was the father of Defendant Travis Jones. Travis Jones’s parents were divorced. (T. p. 289, lines 13-19.) Travis lived in his own mobile home on his father’s propertyin Candler, just above his father’s mobile home. (T. p. 309, line 25-p. 310, line 1 and p. 159, lines 23-24.) In 2004 and 2005, Travis was working at TA Travel Center, a convenience store and restaurant off I-40 at the East Canton exit. (T. p. 295, lines 4-17; p. 312, lines 10-13.) Teresa Rigsby and her husband, Stephen Rigsby, were hired at the Travel Center in early 2004. (T. p. 312, lines 11-16.) Mrs. Rigsby, who was using crack cocaine, was fired at one point for repeatedly failing to show up. A short time later, she came back, telling Mr. Jones that she had gone to Florida and gotten clean. He rehired her at the Travel Center. Later that summer, Mr. and Mrs. Rigsby separated. Mrs. Rigsby’s friendship with Travis Jones became sexual and she moved into his home with him. (T. p. 313, line 25-p. 317, line 20.) Mr. Rigsby had moved in with his grandmother when he and Teresa separated, but moved in with Teresa and Travis a short time later. He was also using crack and did not feel right being in his grandmother’s home. (T. p. 194, line 6-p. 195, line 13.)
Teresa Rigsby and Ted Jones did not get along. Mr. Jones knew Teresa had introduced his son Travis to crack. (T. p. 161, lines 9-13 and p. 336, lines 18-23.) By October 2004, Travis Jones had quit his job at TA. He was using crack cocaine and owed money to several different individuals for crack. (T. p. 326, lines 3-4 and p. 330, lines 2-12.) His father gave Travis money to pay off some of the debts and a gun to protect himself. (T. p. 329, line 7- p. 330, line 19.) Teresa Rigsby testified that he also took things from his father, including money, marijuana, and a gun, in order to buy their drugs. (T. p. 161, line 24-p. 162, line 8.)
The day of Ted Jones’s shooting, Travis, Teresa, and Stephen were all living in Travis’s trailer. Teresa and Travis had been arguing. (T. p. 169, lines 3-22.) Travis had taken a gun from the shed and sat on the couch with it. (T. p. 201, line 9-p. 203, line 16.)After toying with the gun, he took it back to the shed. (T. p. 203, lines 4-7.) He then took a table leg that an acquaintance had left in the truck and walked down the hill to his father’s trailer. Travis testified that he was going to borrow his father’s truck, as he had many times in the past. He also planned to ask his father for money to get food and cigarettes for Teresa. He testified that he took the table leg because he knew that his father was upset about seeing Teresa at Travis’s home earlier in the day. (T. p. 362, line 361, line 3-p. 363, line 24.)
Only Travis and Ted Jones were present for what happened at Ted’s house. Travis testified that as soon as he walked in, his father expressed anger about Teresa being at Travis’s, grabbed the table leg, and struggled with Travis over it. Travis pushed back against Ted, who fell against the kitchen wall. They continued to struggle with the stick and Travis got it away from his father. He got the truck keys from the kitchen table and left. As Travis began to start the truck, he felt something hit him in the shoulder and the side of his head. Ted Jones had shot his son. Travis was stunned because his father had never been violent to him before. Travis started to drive away, but the truck died. A second blast hit the passenger door window and struck Travis. He drove a short distance before losing control and getting the truck stuck. Travis jumped from the truck and ran up the road to his home. There, he saw Stephen and Teresa. He yelled at them to leave because his father was coming. Teresa refused. Stephen went to call 911 after hearing Ted Jones call out for a 911 call. Travis got the rifle out of the shed. He saw his father coming around a car to the path that led to Travis’s house. Afraid for their lives, Travis fired the shotgun down the hill. (T. p. 366, line 18-p. 368, line 15; 370, line 4-p. 375, line 16.)
Ted Jones was struck with two bullets and died of internal bleeding. (T. pp. 141-143.) Travis Jones was treated for his wounds and released from the hospital. He was arrested for his father’s murder.
Argument
I.The trial court abused its discretion and deprived Mr. Jones of his constitutional right to effective assistance of counsel when it denied Mr. Jones’s Motions for a continuance on medical grounds related to his trial attorney’s health.
Assignment of Error No. 1
R. p. 33
(T. p. 4, line 17-p. 5, line 11.)
and
II.Mr. Jones received ineffective assistance of counsel when, after presenting evidence, his attorney failed to renew the Motion to Dismiss on the ground that the State had failed to present sufficient evidence to submit the case to the jury when the Motion should have been granted if made. With regard to the Robbery charge, the State failed to present any evidence of (1) intent to permanently deprive Mr. Ted Jones of the truck or (2) taking of any items other than borrowing the truck. Because the State failed to present evidence of the underlying felony or evidence that the killing occurred in the course of a felony, the charge of felony murder should have been dismissed on counsel’s motion. Because the State failed to present evidence of the requisite mens rea, the charge of murder by premeditation and deliberation should have been dismissed on counsel’s motion. Counsel’s failure to move for dismissal fell below the standard of reasonable representation and deprived Mr. Jones of his right to effective assistance of counsel under the sixth and fourteenth amendments to the United States Constitution and the law of the land provisions in Article I, §§ 19 and 23 of the North Carolina Constitution.
Assignment of Error No. 4
R. pp. 33-34
(T. p. 441, lines 4-16.)
Standard of Review
The standard of review when a trial court denies the defendant's motion to continue is abuse of discretion. State v. Morgan, 359 N.C. 131, 143, 604 S.E.2d 886, 894 (2004), cert. denied,Morgan v. North Carolina,___ U.S. ___, 126 S. Ct. 47, 163 L.Ed.2d 79 (2005). When the motion involves a constitutional right, however, the trial court's denial of the motion “is fully reviewable.”State v. Branch, 306 N.C. 101, 104, 291 S.E.2d 653, 656 (1982). If the error violates the defendant's constitutional rights, it is prejudicial unless the State shows the error was harmless beyond a reasonable doubt. State v. Barlowe, 157 N.C.App. 249, 253, 578 S.E.2d 660, 662-63, disc. review denied, 357 N.C. 462, 586 S.E.2d 100 (2003).
Argument
Trial counsel’s attorney represented that he was unable to proceed competently due to a problem with his eyes and pain from a broken crown on a molar. Judge Payne appointed another attorney to be Mr. Neal’s note taker. (R. p. 6; T. p. 4, line 15-p. 5, line 11; and T. p. 8, lines 2-16.) This solution, however, did not address any trial counsel’s need to be focused and alert during a trial and to visually inspect exhibits specifically in connection with witness examination. The State presented multiple visual exhibits in this case. (R. pp. 8-10.) Mr. Neal represented that he was unable to see or to deal with his tooth pain adequately to try this case. The trial court did adjourn court early one afternoon so that Mr. Neal could see his doctor. (T. p. 331, line 3-p. 332, line 5.) When the matter in question is a First-degree murder case, as here, a defendant faces life without parole and counsel must be able to offer effective assistance. In this case, the trial court’s denial of a Motion to Continue “are manifestly unsupported by reason” and therefore, an abuse of discretion. White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 832 (1985).
Both the North Carolina and the United States Constitutions guarantee representation to a criminal defendant, and the right includes the right to effective assistance of counsel. State v. Braswell, 312 N.C. 553, 324 S.E.2d 241 (1985). The United States Supreme Court has established a two prong test for ineffective assistance of counsel: (1) did counsel’s performance fall below an objective standard of reasonableness and (2) did counsel’s errors deprive the defendant of a fair trial.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984).
On the record of the present case, it is admittedly difficult to point to specific instances where trial counsel’s physical infirmities conflicted with his ability to represent Mr. Jones. A significant exception is his failure to renew defendant’s Motion to Dismiss at the close of all the evidence when the State failed to meet its burden with respect to the Robbery charge. Counsel’s failure to renew the Motion to Dismiss was more than a trial tactic, but a significant lapse in judgment that falls below the reasonable standard of what a criminal defendant may expect of trial counsel. With regard to the Robbery charge, the State failed to present any evidence of (1) intent to permanently deprive Mr. Ted Jones of the truck or (2) taking of any items other than borrowing the truck. Because the State failed to present evidence of the underlying felony or evidence that the killing occurred in the course of a felony, the charge of felony murder should have been dismissed on counsel’s motion. Because there was no evidence of mens rea, the charge of murder by premeditation and deliberation should have been dismissed on counsel’s motion.