No. 44A10 18th DISTRICT

NORTH CAROLINA SUPREME COURT**************************************************

STATE OF NORTH CAROLINA,

Plaintiff

vs.

MARCUS LAVERN TURNER,

Defendant

)))))))))))

From Guilford County

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DEFENDANT APPELLANT’S SUPREME COURT BRIEF

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TABLE OF CONTENTS

Table of Contents...................................................iiTable of Cases and Authorities.............................iiiQuestion Presented.................................................1Statement of the Grounds for Appellate Review....2Statement of the Case.............................................2Statement of the Facts............................................3Argument................................................................5

Instructing a jury that it need not be unanimous on which two aggravating factors are present that increase the penalty for speeding to elude arrest from a misdemeanor to a felony violates Apprendi v. New Jersey, 530 U.S. 466 (2000)....5

I. Standard of review....................................5II. Aggravating factors that increase punishment for an offense must be submitted to a jury............................................................5III. The aggravating factors are not alternate ways of establishing a single element.............8

Conclusion..............................................................9Word Count Certification.....................................10Appendix 1: Transcript excerpts..........................11Appendix 2: N.C. Gen. Stat. §20-141.5...............12Certificate of Service............................................13

TABLE OF CASES AND AUTHORITIES

CasesApprendi v. New Jersey, 530 U.S. 466 (2000)5, 6, 8Piedmont Triad Airport Auth. v. Urbine, 354 N.C.

336, 554 S.E.2d 331 (2001)................................4Richardson v. United States, 526 U.S. 813, 817

(1999)..................................................................7State v. Funchess, 141 N.C. App. 302, 540 S.E.2d

435 (2000).......................................................5, 6State v. Thorne, 173 N.C. App. 393, 618 S.E.2d

790 (2005)...........................................................4United States v. Gaudin, 515 U.S. 506, 510 (1995)6StatutesN.C. Gen. Stat. § 20-141.5.................................4, 7

QUESTION PRESENTED

Whether Apprendi v. New Jersey, 530 U.S. 466 (2000) requires jury unanimity on aggravating factors used to increase the penalty for speeding to elude arrest from a misdemeanor to a felony. (R. p. 30, assignments of error 1 and 2)

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STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW

Pursuant to Appellate Rule of Procedure 28(b)(4), jurisdiction for this appeal

is granted from N.C.G.S. §15A-1444. This Court has jurisdiction over this appeal

by virtue of G.S. §§ 7A-27(b) and G.S. §§ 15A-1442. A timely notice of appeal

was made on January 16, 2009. This appeal is from a final order.

On January 5, 2010 the North Carolina Court of Appeals filed an opinion

affirming the conviction. On January 26, 2010 a notice of appeal from the Court of

Appeals decision was filed on the ground that the judgment directly involves a

substantial question arising under the Constitution of the United States.

Jurisdiction for this appeal arises under N.C. Gen. Stat. § 7A-30.

 STATEMENT OF THE CASE

Marcus Lavern Turner stood trial on charges of robbery with a dangerous

weapon, felony fleeing to elude arrest and being a habitual felon during the

January 12, 2009 term of Superior Court in Guilford County. The presiding judge

was The Hon. A. Moses Massey. The jury found Turner not guilty of the robbery

charge, but he was found guilty of the speeding to elude arrest charge. Turner pled

guilty to the habitual felon status. The Court sentenced Turner to 120-153 months

imprisonment. Turner gave notice of appeal in open court. (Tr. p. 367).

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On January 5, 2010 the North Carolina Court of Appeals filed an opinion

affirming the conviction. On January 26, 2010 a notice of appeal from the Court of

Appeals decision was filed.

STATEMENT OF THE FACTS

As Officer M.T. Edwards turned into a Pantry convenience store in Greensboro

on April 30, 2008, Taron Cole ran up to his car and told Edwards that he had been

robbed and “one of the guys” was just then leaving the parking lot. Edwards

turned on his blue lights and immediately began to follow a white Volvo that was

backing out. The Volvo stopped a short distance away, Turner got out and denied

any involvement in the robbery, in which Cole’s car had been taken. Turner then

got in the Volvo and drove away. He headed north in the southbound lane of

Holden Road. Edwards estimated that the pursuit lasted about three miles and that

Turner reached speeds of 75 to 85 miles per hour. The roads they travelled over

had speed limits of 45 and 35 miles per hour, according to Edwards. The car then

entered a parking lot, flattened two tires from striking a curve, and drove into a

housing development where the driver fled on foot. Edwards and Officer C.C.

Norton, who had assisted in the vehicle pursuit, chased Turner and caught him

within 30-35 feet of the car. (Tr. pp. 169-79).

The State offered the driving history showing that Turner’s driver’s license had

been revoked at the time of the chase. The exhibit was admitted over defense

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objection, but the nature of the objection does not appear in the transcript. (Tr. p.

231).

The defense called a witness, Diana Bost, Turner’s girlfriend, who identified

Defense exhibit 1, as Turner’s driver’s license.

After the State rested, the prosecutor stated his intention to argue to the jury that

it did not have to be unanimous on which of the two aggravating factors it found as

long as each juror agreed that at least two of the three alleged factors were present.

Defense counsel acknowledged case law supporting the State’s position, but

objected for the record. (Tr. pp. 249-250). In closing the State told the jury that it

need not agree unanimously on which two aggravating factors existed. (Tr. p. 304).

Defense counsel renewed the objection to the argument and the instruction after the

court instructed the jury. (Tr. pp. 324-325).

The jury found Turner not guilty on the robbery charge and guilty on the fleeing

to elude arrest charge. (Tr. pp. 343). Turner pled guilty to the habitual felon status.

(R. pp. 20-23, Tr. pp. 346-355). Turner’s sentence was 120-153 months

imprisonment.

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ARGUMENT

Instructing a jury that it need not be unanimous on which two aggravating factors are present that increase the penalty for speeding to elude arrest from a misdemeanor to a felony violates Apprendi v. New Jersey, 530 U.S. 466 (2000).

ASSIGNMENTS OF ERROR NO. 1-2.

I. Standard of review

In cases implicating constitutional rights, the standard of review is de novo.

State v. Thorne, 173 N.C. App. 393, 396, 618 S.E.2d 790, 793 (2005); Piedmont

Triad Airport Auth. v. Urbine, 354 N.C. 336, 338, 554 S.E.2d 331, 332 (2001).

II. Aggravating factors that increase punishment for an offense must be submitted to a jury.

Speeding to elude a law enforcement officer is a Class 1 misdemeanor unless

the State proves that at least two of the listed eight aggravating factors existed.

N.C. Gen. Stat. § 20-141.5(b). Proving two or more of the elements increases the

offense to a Class H felony. Id. The Court of Appeals previously held that it is

proper to instruct jurors that they need not unanimously agree on which of the

proffered aggravating factors exist as long as each individual juror is satisfied that

at least two factors exist. State v. Funchess, 141 N.C. App. 302, 540 S.E.2d 435

(2000). That holding conflicts with the U.S. Supreme Court’s decision in Apprendi

v. New Jersey, 530 U.S. 466 (2000), and should be overruled.

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The defendant in Apprendi pled guilty to possession of a firearm for an

unlawful purpose, which was punishable between five and ten years imprisonment.

Id. at 468-69). However, the statute governing that offense provided for a ten- to

twenty-year sentence based on proof by a preponderance of the evidence that the

defendant was motivated by racial bias. Id. The decision on whether the

sentencing enhancement applied rested with the judge rather than the jury. Id.

In deciding Apprendi the court noted that Due Process requires that every fact

(other than a prior conviction) that increases the maximum penalty for a crime

must be charged in the indictment, submitted to a jury and found beyond a

reasonable doubt. Id. at 476. The Court stated that there is a long historical

foundation for the principle that the truth of any accusation, regardless of the form,

must be “confirmed by the unanimous suffrage of twelve of [the defendant’s]

equals and neighbors. Id. at 477 (citing 4 W. Blackstone, Commentaries of the

Laws of England 343 (1769)); see also, United States v. Gaudin, 515 U.S. 506,

510 (1995). Apprendi eliminated the distinction between an element of the offense

and a sentencing factor. Id. at 490.

The sentencing enhancements in Turner’s case are not significantly different

from those at issue in Apprendi. Turner faced, at most, 120 days imprisonment

unless the State could prove that at least two of the three aggravating factors

alleged in the indictment existed. Proof of those factors had a dramatic impact in

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Turner’s case. The sentencing enhancements increased the penalty from a

misdemeanor to a Class H felony, which was further enhanced by the habitual

felon status. The prosecutor’s argument and the instruction, both given over

defense objection that they violated the jury unanimity requirement, deprived

Turner of the right to have a jury unanimously decide which aggravating factors

had been proved.

While Funchess was decided after Apprendi, there was no discussion of

whether Apprendi applied. The Funchess holding based the interpretation of §20-

141.5 on a finding that the enumerated aggravating factors are “merely alternate

ways of enhancing the punishment for speeding to elude arrest from a

misdemeanor to a Class H felony.” Funchess, 141 N.C. App. 302, ___, 540 S.E.2d

435, ___ (2000) (emphasis added). However it is impossible to reconcile the

holding of Funchess that the jury need not be unanimous on the aggravating factors

with Apprendi’s command that any fact that increases (or enhances) a sentence

must be found by the jury. Because the jury argument and instruction violated the

rule of Apprendi, the judgment must be reversed.

In its opinion the Court of Appeals did not reach the issue of whether there was

a conflict between the holding in Apprendi and the instruction approved in

Funchess because it concluded it was bound by the prior Funchess holding.

Because Funchess is irreconcilable with the rule from Apprendi that any facts that

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increase a sentence must be found unanimously by a jury, this Court should hold

that Funchess is no longer controlling.

III. The aggravating factors are not alternate ways of establishing a single element

The §20-141.5 enhancements applied in Turner’s case are not comparable to

alternative methods of proving a single element. Each of the eight aggravating

factors is a discrete fact and a combination of any two increases the offense from a

misdemeanor to a felony. The U.S. Supreme Court sanctioned the practice of not

requiring a jury to be unanimous as to which of several underlying “brute facts”

make up a particular element. Richardson v. United States, 526 U.S. 813, 817

(1999). Richardson used the example of a robbery charge that included the

element of the use or threatened use of force. It held that as long as the jurors

unanimously agreed that force was used there was no requirement that each juror

agree whether the force involved a knife or a gun. Id.

In contrast there is no element that comprises all of the eight different

aggravating factors listed in §20-141.5. It is likely that a generic enhancement

element that was broad enough to cover all of the §20-141.5(b) would be

Constitutionally unsound. Richardson, 526 U.S. at 820 (“this Court has indicated

that the Constitution itself limits a State’s power to define crimes in ways that

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would permit juries to convict while disagreeing about the means, at least where

the definition risks serious unfairness and lacks support in history or tradition.”)

The fallacy of the State’s argument that the eight aggravating factors are merely

alternative ways of proving a single element is illustrated by the State’s failure to

identify which single element comprises all of the activity set out in N.C. Gen.

Stat. §20-141.5(b).

Because it is impossible to know if the jurors unanimously agreed on which

aggravating factors existed and Apprendi assigns juries the role of determining the

existence of aggravating factors, Turner’s conviction must be reversed.

CONCLUSION

The Court should reverse the judgment of the trial court.

Respectfully submitted, February 25, 2010.

Bryan GatesAttorney at LawState Bar #21000102 W. 3rd St. Suite 475Winston-Salem, NC 27101(336) 724-0082

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WORD COUNT CERTIFICATION

This brief contains 1751 words, was produced with 14-point Times New Roman

type and otherwise complies with Appellate Rule 28.

Bryan GatesAttorney at LawState Bar #21000102 W. 3rd St. Suite 475Winston-Salem, NC 27101(336) 724-0082

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APPENDIX 1: TRANSCRIPT EXCERPTS

Transcript pages 249-250 (Charge conference)Transcript page 304 (State’s closing argument)Transcript pates 324-325 (Defense objection following charge)

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APPENDIX 2: N.C. GEN. STAT . §20-141.5

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CERTIFICATE OF SERVICE

I certify that on the February 25, 2010 a copy of the attached document was served on The State of North Carolina by first-class mail postage paid,

to: Donald W. LatonAssistant Attorney GeneralPO Box 629Raleigh, NC 27602

Bryan GatesAttorney at LawState Bar #21000102 W. 3rd St. Suite 475Winston-Salem, NC 27101(336) 724-0082