               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA16-639

                                 Filed: 4 April 2017

Lee County, Nos. 05 CRS 54493, 54506, 08 CRS 261

STATE OF NORTH CAROLINA

              v.

QUINTIS TRAVON SPRUIELL


        Appeal by the State from order entered 2 December 2015 by Judge C. Winston

Gilchrist in Lee County Superior Court. Heard in the Court of Appeals 30 November

2016.


        Attorney General Joshua H. Stein, by Senior Deputy Attorney General Robert
        C. Montgomery, for the State.

        Appellate Defender Glenn Gerding, by Assistant Appellate Defender Amanda S.
        Zimmer, for defendant-appellee.


        DAVIS, Judge.


        Quintis Travon Spruiell (“Defendant”) was convicted of first-degree murder

under the felony murder rule after he fired a single shot into a parked car at close

range, striking and killing the victim.    This case presents the issue of whether

Defendant received ineffective assistance of counsel on direct appeal when his

appellate counsel failed to argue that it was error to instruct the jury on felony

murder based upon the underlying felony of discharging a weapon into occupied

property given that Defendant only fired a single shot at a single victim. The State

appeals from the trial court’s order granting Defendant’s motion for appropriate relief
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(“MAR”) and vacating his convictions for first-degree murder and discharging a

weapon into occupied property.      Because we conclude that Defendant was not

prejudiced by his counsel’s failure to raise this argument, we reverse.

                      Factual and Procedural Background

      On the evening of 1 November 2005, Jose Lopez drove Ricardo Sanchez to a car

wash in Sanford, North Carolina where Sanchez planned to complete a drug

transaction with Defendant. When they arrived and parked Lopez’s Ford Explorer,

Lopez remained in the driver’s seat while Sanchez sat in the rear passenger side seat

with the window rolled down.

      After Sanchez called Defendant over to the vehicle, Defendant and Shawn

Hooker approached the Explorer from the passenger side. Defendant and Sanchez

proceeded to argue about “money and about drugs” for several seconds. Defendant

then aimed a revolver at Sanchez and fired one shot through the open rear passenger

side window, striking him in the stomach. Defendant was so close to Sanchez when

he fired the shot that his gun “was almost touching [Sanchez’s] stomach.”

      Lopez then started to drive away as Sanchez fired several shots at Defendant

from the backseat of the moving vehicle, striking Defendant twice. Lopez drove

Sanchez to a local hospital where he ultimately died from his gunshot wound.

      On 14 November 2005, Defendant was indicted on charges of first-degree

murder, discharging a weapon into occupied property, and possession of a firearm by



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a felon. At trial, defense counsel objected to instructing the jury on the theory of

felony murder based upon the predicate offense of discharging a weapon into occupied

property, but the objection was overruled.

       The jury found Defendant guilty of first-degree murder based upon the felony

murder rule and also convicted him of discharging a weapon into occupied property

and possession of a firearm by a felon.1              Defendant was sentenced to life

imprisonment without parole for the murder conviction and to a consecutive sentence

of 15 to 18 months imprisonment for the possession of a firearm by a felon conviction.

His conviction for discharging a weapon into occupied property was arrested.

       On direct appeal to this Court, Defendant’s appellate counsel asserted several

arguments but did not raise the issue of whether instructing the jury on felony

murder based on these facts had constituted error. On 19 May 2009, this Court issued

an opinion upholding Defendant’s convictions. State v. Spruiell, 197 N.C. App. 232,

676 S.E.2d 669, 2009 WL 1383399 (2009) (unpublished), disc. review denied, 363 N.C.

588, 684 S.E.2d 38 (2009).

       On 12 June 2012, Defendant filed an MAR in which he primarily argued that

his appellate counsel had rendered ineffective assistance of counsel by failing to

challenge on direct appeal the felony murder instruction. Specifically, Defendant

argued in his MAR that — based on the specific facts of the underlying crime — the


       1 Although the jury was also instructed on the offense of first-degree murder based on
premeditation and deliberation, the jury left this portion of the verdict sheet blank.

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offense of discharging a weapon into occupied property could not legally constitute

the predicate felony upon which to base his felony murder conviction. Defendant filed

subsequent amendments to his MAR on 13 September 2013 and 31 October 2014.

      A hearing on Defendant’s MAR was held before the Honorable C. Winston

Gilchrist on 16 December 2013. On 2 December 2015, Judge Gilchrist issued an order

(the “MAR Order”) granting Defendant’s motion. In the MAR Order, Judge Gilchrist

made the following pertinent findings of fact:

             14. [Defendant’s appellate counsel] did not have any
             strategic reason for not arguing to the Court of Appeals
             that the facts of Defendant’s case did not support
             submission to the jury of first degree murder in
             perpetration of the felony of shooting into an occupied
             vehicle.

             15. Published precedents of the courts of North Carolina
             supporting reversal of Defendant’s conviction for felony
             murder existed at the time Defendant’s case was appealed,
             briefed and decided.

             16. Reasonable counsel would have known of the
             precedents supporting Defendant’s argument that felony
             murder based on discharging a weapon into an occupied
             vehicle was not properly submitted to the jury, or would
             have become aware of these authorities in the course of
             reasonable representation of Defendant on appeal.

             17. Appellate counsel should have been aware of the need
             to challenge the trial court’s submission of felony murder,
             given that the Defendant was not convicted of first degree
             murder on any theory except murder in perpetration of
             discharging a weapon into occupied property.




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       After setting forth a detailed legal analysis articulating his reasoning, Judge

Gilchrist made the following pertinent conclusions of law:

              4. Counsel on direct appeal should have argued that the
              trial court erred in submitting felony murder in
              perpetration of shooting into an occupied vehicle to the
              jury. In not so contending, appellate counsel’s
              representation was not objectively reasonable.

              5. Had Defendant’s appellate counsel raised the issue of
              felony murder, there is a reasonable probability that
              Defendant’s conviction for first degree murder — which
              was based solely on felony murder in perpetration of
              discharging a weapon into occupied property — would have
              been reversed on direct appeal. Counsel’s performance
              undermines confidence in the outcome of this case. The
              performance of appellate counsel in fact prejudiced the
              defendant.

              6. Defendant Spruiell has met his burden of proving the
              ineffective assistance of counsel. . . . 2

       Based upon these findings and conclusions, Judge Gilchrist vacated

Defendant’s convictions for first-degree murder and for discharging a weapon into

occupied property and ordered that Defendant receive a new trial on these charges.

On 12 January 2016, the State filed a petition for writ of certiorari seeking review of

the MAR Order. We granted certiorari on 2 February 2016.

                                          Analysis




       2 Judge Gilchrist concluded that the other grounds for relief asserted in Defendant’s MAR
lacked merit. That portion of his ruling is not presently before us.

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      In this appeal, the State argues that no legal authority exists in North Carolina

that would have prohibited Defendant’s felony murder conviction from being

predicated on the crime of discharging a weapon into occupied property. Therefore,

the State contends, the failure of Defendant’s appellate counsel to raise this argument

did not constitute ineffective assistance of counsel and the trial court’s decision to

grant his MAR was erroneous.

      “Our review of a trial court’s ruling on a defendant’s MAR is whether the

findings of fact are supported by evidence, whether the findings of fact support the

conclusions of law, and whether the conclusions of law support the order entered by

the trial court.” State v. Peterson, 228 N.C. App. 339, 343, 744 S.E.2d 153, 157

(citation and quotation marks omitted), appeal dismissed and disc. review denied, 367

N.C. 284, 752 S.E.2d 479 (2013).

      This Court has held that “[t]o show ineffective assistance of appellate counsel,

Defendant must meet the same standard for proving ineffective assistance of trial

counsel.” State v. Simpson, 176 N.C. App. 719, 722, 627 S.E.2d 271, 275 (citation

omitted), appeal dismissed, 360 N.C. 653, 637 S.E.2d 191 (2006). In order to prevail

on an ineffective assistance of counsel claim, “a defendant must show that (1)

counsel’s performance was deficient and (2) the deficient performance prejudiced the

defense.” State v. Phillips, 365 N.C. 103, 118, 711 S.E.2d 122, 135 (2011) (citation

and quotation marks omitted), cert. denied, 565 U.S. 1204, 182 L. Ed. 2d 176 (2012).



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             Deficient performance may be established by showing that
             counsel’s representation fell below an objective standard of
             reasonableness. Generally, to establish prejudice, a
             defendant must show that there is a reasonable probability
             that, but for counsel’s unprofessional errors, the result of
             the proceeding would have been different. A reasonable
             probability is a probability sufficient to undermine
             confidence in the outcome.

State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271, 286 (internal citations and

quotation marks omitted), cert. denied, 549 U.S. 867, 166 L. Ed. 2d 116 (2006). “To

show prejudice in the context of appellate representation, a petitioner must establish

a reasonable probability he would have prevailed on his appeal but for his counsel’s

unreasonable failure to raise an issue.” United States v. Rangel, 781 F.3d 736, 745

(4th Cir. 2015) (citation, quotation marks, and ellipsis omitted).

      In the present case, we need not decide the first prong of the ineffective

assistance of counsel test because our analysis of the second prong is determinative

of Defendant’s ineffective assistance of counsel claim. See State v. Rogers, 355 N.C.

420, 450, 562 S.E.2d 859, 878 (2002) (“[I]f we can determine at the outset that there

is no reasonable probability that in the absence of counsel’s alleged errors the result

of the proceeding would have been different, then the court need not determine

whether counsel’s performance was actually deficient.” (citation and quotation marks

omitted)).   As explained in detail below, Defendant has failed to demonstrate a

reasonable probability that he would have prevailed in his direct appeal had his




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appellate counsel argued that the offense of discharging a weapon into occupied

property could not support Defendant’s felony murder conviction.

      Ordinarily, first-degree murder requires a showing that the killing was done

with premeditation and deliberation. See N.C. Gen. Stat. § 4-17(a) (2015). However,

             [p]remeditation and deliberation are not elements of the
             crime of felony murder. The prosecution need only prove
             that the killing took place while the accused was
             perpetrating or attempting to perpetrate one of the
             enumerated felonies. By not requiring the State to prove
             the elements of murder, the legislature has, in essence,
             established a per se rule of accountability for deaths
             occurring during the commission of felonies.

State v. Bell, 338 N.C. 363, 386, 450 S.E.2d 710, 723 (1994), cert. denied, 515 U.S.

1163, 132 L. Ed. 2d 861 (1995). Thus, pursuant to the felony murder rule set forth in

N.C. Gen. Stat. § 14-17, first-degree murder includes any killing “committed in the

perpetration or attempted perpetration of any arson, rape or a sex offense, robbery,

kidnapping, burglary, or other felony committed or attempted with the use of a deadly

weapon . . . .” N.C. Gen. Stat. § 14-17(a).

      The General Assembly has made it a felony to discharge a weapon into

occupied property.    N.C. Gen. Stat. § 14-34.1(a) (2015).     A person is guilty of

discharging a weapon into occupied property if “he intentionally, without legal

justification or excuse, discharges a firearm into occupied property with knowledge

that the property is then occupied by one or more persons or when he has reasonable

grounds to believe that it is occupied.” State v. Jackson, 189 N.C. App. 747, 752, 659


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S.E.2d 73, 77 (citation, quotation marks, and brackets omitted), appeal dismissed and

disc. review denied, 362 N.C. 512, 668 S.E.2d 564 (2008), cert. denied, 555 U.S. 1215,

173 L. Ed. 2d 662 (2009). By its express terms, the statute encompasses shots being

fired into an occupied vehicle and contains no requirement that such a vehicle be in

operation at the time of the offense. See N.C. Gen. Stat. § 14-34.1(a).3

        In the MAR Order, the trial court concluded that, under the factual

circumstances of Defendant’s case, it was improper for the trial court to instruct the

jury on felony murder. This ruling was based upon the proposition that for purposes

of the felony murder rule the very same “assaultive act” — here, Defendant’s act of

firing his gun through an open car window into Sanchez’s stomach — cannot

constitute both the cause of the victim’s death and the basis for the predicate felony.

        In order to fully assess the validity of the MAR Order, it is necessary to

examine in some detail several pertinent cases from our Supreme Court and this

Court. In State v. Wall, 304 N.C. 609, 286 S.E.2d 68 (1982), the Supreme Court

considered whether the offense of discharging a weapon into occupied property could

provide the basis for a felony murder conviction. In that case, the defendant was a

convenience store clerk who followed a woman out of his store after she had refused

to pay for a six-pack of beer. The woman climbed into a car, and as she and the driver

were pulling away, the defendant fired three shots at the car with his pistol. The first


        3If the vehicle is in operation at the time of the offense, however, the offense is raised from a
Class E felony to a Class D felony. See N.C. Gen. Stat. § 14-34.1(b).

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shot missed the vehicle while the “latter two shots appeared to strike the

automobile[,]” with one of the bullets striking and killing the driver. Id. at 611, 286

S.E.2d at 70. The defendant was convicted of first-degree murder based upon the

felony murder rule — the underlying felony being the offense of discharging a weapon

into occupied property. Id. at 612, 286 S.E.2d at 71.

       On appeal, the defendant argued that the Supreme Court should adopt the

“merger doctrine” articulated in People v. Ireland, 70 Cal. 2d 522, 450 P.2d 580 (1969).

Wall, 304 N.C. at 612, 286 S.E.2d at 71. In Ireland, the California Supreme Court

held that a “felony-murder instruction may not properly be given when it is based

upon a felony which is an integral part of the homicide and which the evidence

produced by the prosecution shows to be an offense included in fact within the offense

charged.”4 Ireland, 70 Cal. 2d at 539, 450 P.2d at 590.

       Our Supreme Court acknowledged that “[t]he felony of discharging a firearm

into occupied property appears to be such an integral part of the homicide in the

instant case as to bar a felony-murder conviction under the California merger

doctrine.”    Wall, 304 N.C. at 612, 286 S.E.2d at 71 (internal citation omitted).




       4  It is important to distinguish the “merger doctrine” discussed in Ireland and throughout this
opinion from the entirely separate merger rule that requires a defendant’s conviction for the predicate
felony to be arrested after he is convicted of felony murder. See State v. Moore, 339 N.C. 456, 468, 451
S.E.2d 232, 238 (1994) (“When a defendant is convicted of first degree murder pursuant to the felony
murder rule, and a verdict of guilty is also returned on the underlying felony, this latter conviction
provides no basis for an additional sentence. It merges into the murder conviction, and any judgment
imposed on the underlying felony must be arrested.” (citation and alteration omitted)).

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However, the Supreme Court expressly declined to adopt that doctrine, explaining

that on prior occasions it had “expressly upheld convictions for first-degree felony

murder based on the underlying felony of discharging a firearm into occupied

property. We elect to follow our own valid precedents.” Id. at 612-13, 286 S.E.2d at

71 (internal citations omitted).

      The Court further observed that the defendant’s disagreement with the felony

murder rule was more appropriately addressed to the General Assembly than the

Judicial Branch:

             Our General Assembly remains free to abolish felony
             murder or, as the Courts did in California, to limit its effect
             to those other felonies not “included in fact within” or
             “forming an integral part of” the underlying felony. . . . We
             do not believe it is the proper role of this Court to abolish
             or judicially limit a constitutionally valid statutory offense
             clearly defined by the legislature.

Id. at 615, 286 S.E.2d at 72. Accordingly, the defendant’s felony murder conviction

in Wall was upheld. Id. at 622, 286 S.E.2d at 76.

      The Supreme Court reaffirmed its rejection of the California “merger doctrine”

in several subsequent cases where the offense of discharging a weapon into occupied

property supplied the basis for a felony murder conviction. See State v. King, 316

N.C. 78, 81-82, 340 S.E.2d 71, 74 (1986) (“Defendant argues that the ‘merger doctrine’

prohibits the application of the felony-murder rule whenever the predicate felony

directly results in or is an integral element of the homicide. . . . In State v. Wall, we



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were asked to adopt the ‘merger doctrine’ but declined to do so . . . . The defendant

has presented no argument to warrant a change in our position.” (internal citation

omitted)); State v. Mash, 305 N.C. 285, 288, 287 S.E.2d 824, 826 (1982) (“[D]efendant

argues that this Court should adopt the ‘merger doctrine’ to bar application of the

felony-murder rule to homicides committed during the perpetration of the felony of

discharging a firearm into occupied property. For the reasons stated in State v. Wall,

we decline to change the existing law.” (internal citation omitted)).

      In the MAR Order, the trial court recognized that Wall had, in fact, rejected

the “merger doctrine” articulated in Ireland. However, the trial court placed great

reliance upon a footnote — footnote three — in the Supreme Court’s later decision in

State v. Jones, 353 N.C. 159, 538 S.E.2d 917 (2000), construing the footnote as

providing an exception to the general rule articulated in Wall.

      In Jones, the defendant crashed his vehicle into another vehicle occupied by

six persons, two of whom died as a result. Id. at 161, 538 S.E.2d at 921. Pursuant to

the felony murder rule, the defendant was convicted of the murders of the two

deceased victims based upon the predicate felony of assault with a deadly weapon

inflicting serious injury that he perpetrated against the other occupants of the

vehicle. Id. at 165, 538 S.E.2d at 923.

      On appeal to the Supreme Court from a divided panel of this Court upholding

his convictions, the defendant argued that the trial court had improperly permitted



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his first-degree murder conviction to be predicated upon an underlying felony that

could be established through a showing of criminal negligence rather than actual

intent.5    The Supreme Court agreed with this argument and overturned the

defendant’s felony murder convictions. Id. at 163, 538 S.E.2d at 922.

       While the holding in Jones is not directly relevant to the present case, the

Court stated the following in a footnote:

               Although this Court has expressly disavowed the so-called
               “merger doctrine” in felony murder cases involving a
               felonious assault on one victim that results in the death of
               another victim, cases involving a single assault victim who
               dies of his injuries have never been similarly constrained.
               In such cases, the assault on the victim cannot be used as
               an underlying felony for purposes of the felony murder rule.
               Otherwise, virtually all felonious assaults on a single
               victim that result in his or her death would be first-degree
               murders via felony murder, thereby negating lesser
               homicide charges such as second-degree murder and
               manslaughter.

Id. at 170 n.3, 538 S.E.2d at 926 n.3 (internal citation omitted and emphasis added).

       The MAR Order also discussed State v. Carroll, 356 N.C. 526, 573 S.E.2d 899

(2002), which referenced the above-quoted footnote from Jones.                     In Carroll, the




       5  Assault with a deadly weapon inflicting serious injury may be established through a showing
of criminal negligence rather than actual intent. See id. at 164-65, 538 S.E.2d at 922-23 (“[A] driver
who operates a motor vehicle in a manner such that it constitutes a deadly weapon, thereby
proximately causing serious injury to another, may be convicted of [assault with a deadly weapon
inflicting serious injury] provided there is either an actual intent to inflict injury or culpable or
criminal negligence from which such intent may be implied.” (emphasis added)).




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defendant struck the victim in the head with a machete and then proceeded to

strangle her to death. The jury found the defendant guilty of felony murder based

upon the underlying felony of assault with a deadly weapon inflicting serious bodily

injury, which occurred when the defendant struck the victim with the machete. Id.

at 534, 573 S.E.2d at 905.

      On appeal to the Supreme Court, the defendant argued that the trial court had

erred by instructing the jury on felony murder based upon the predicate felony of

assault with a deadly weapon inflicting serious bodily injury, contending that footnote

three in Jones stood for the proposition that “where a felonious assault culminates in

or is an integral part of the homicide, the assault necessarily merges with the

homicide and cannot constitute the underlying felony for a felony murder conviction.”

Id. at 535, 573 S.E.2d at 906. The defendant then asserted that “he engaged in one

continuous assault on the victim that culminated in her death because [his] initial

act of striking the victim with a machete cannot exist separately and independently

from the acts causing [the victim’s] death.” Id. The Supreme Court rejected this

reasoning, stating as follows:

             Defendant has misconstrued the language of State v. Jones.
             Jones precluded the use of assault as the underlying felony
             for a felony murder conviction only when there is a single
             assault victim who dies as a result of the injuries incurred
             during the assault. The victim in defendant’s case,
             however, did not die as a result of the assault with the
             machete. The blow to her head was not fatal. Rather, the
             cause of death was strangulation. As such, the assault was


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                a separate offense from the murder. Accordingly, the trial
                court did not err in submitting a felony murder instruction
                to the jury because the felonious assault did not merge into
                the homicide.

Id. (internal citation omitted).

      Accordingly, Jones and Carroll stand for the limited proposition that a single

assault on one victim that leads to that person’s death cannot serve as the underlying

felony for purposes of the felony murder rule.6 In the MAR Order, however, the trial

court construed Jones and Carroll as standing for the far broader proposition that no

offense — regardless of whether the offense is classified as an assault or as some

other crime — can serve as the basis for a felony murder conviction where the crime

results from a “single assaultive act” against one victim. In other words, the trial

court reasoned that the term “‘assault’ seems to mean any single act of assaultive

conduct, regardless of the felonious label attached to it.” (Emphasis added.) The trial

court then explained that this logic fully applied to the act of discharging a weapon

into occupied property because “the offense of discharging a weapon into occupied

property, like assault, is an offense against the person, and not against property.”

(Citation and quotation marks omitted.) For this reason, the trial court concluded,

“discharging a weapon into occupied property by firing a single shot directly at the

decedent cannot support a conviction for felony murder.”




      6   In its briefs to this Court, the State does not dispute this interpretation of Jones and Carroll.

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      The trial court provided additional support for its ruling by citing to a footnote

from this Court’s decision in Jackson. The defendant in Jackson was inside a vehicle

at an intersection when he fired his weapon multiple times into a nearby vehicle

containing two passengers, striking both of them and killing one. Jackson, 189 N.C.

App. at 749, 659 S.E.2d at 75.      The defendant was convicted of felony murder,

attempted first-degree murder, and discharging a weapon into occupied property.

The felony murder conviction was predicated upon the offense of discharging a

weapon into occupied property. Id.

      On appeal, we upheld the defendant’s convictions and declined to apply the

“merger doctrine.”

             Under the merger doctrine, not adopted in North Carolina
             but adopted by some states, “‘a . . . felony-murder
             instruction may not properly be given when it is based
             upon a felony which is an integral part of the homicide and
             which the evidence produced by the prosecution shows to
             be an offense included in fact within the offense charged.’”
             State v. Wall, 304 N.C. 609, 612, 286 S.E.2d 68, 71 (1982)
             (quoting People v. Ireland, 70 Cal. 2d 522, 539, 450 P.2d
             580 (1969)). “[Our Supreme] Court, however, has expressly
             upheld convictions for first-degree felony murder based on
             the underlying felony of discharging a firearm into
             occupied property.” Id. As we are bound by our Supreme
             Court’s decision in Wall, defendant’s arguments regarding
             the merger doctrine are rejected.

Id. at 752, 659 S.E.2d at 77 (footnote omitted).

      In a footnote, however, we stated the following:

             Defendant cites our Supreme Court’s opinion in State v.


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               Jones, 353 N.C. 159, 170, n. 3, 538 S.E.2d 917, 926, n. 3
               (2000), which stated that although the merger doctrine has
               been disavowed, “cases involving a single assault victim
               who dies of his injuries have never been similarly
               constrained[,]” as authority to overturn defendant’s
               conviction in this case. The rule announced in Jones,
               however, only applies where there is a single assault
               victim. State v. Carroll, 356 N.C. 526, 535, 573 S.E.2d 899,
               906 (2002). There being multiple assault victims in this
               case, defendant’s argument on this point is without merit.

Id. at 752 n.3, 659 S.E.2d at 77 n.3.

       While this footnote in Jackson appears to embrace the reasoning of footnote

three in Jones, Defendant reads it far too broadly. The Jackson footnote cannot be

construed as a definitive ruling by this Court that the felony murder rule does not

apply to instances in which a defendant discharges a weapon into occupied property

containing only one person. To the contrary, the footnote was simply a summary

rejection of a particular argument offered by the defendant on the facts of that case.

This Court was not squarely faced in Jackson with the question currently before us

— that is, whether the felony murder rule may be applied based upon the predicate

felony of discharging a weapon into occupied property where there was a single shot

fired at a single victim.7

       We find more instructive our recent decision in State v. Juarez, __ N.C. App.

__, 777 S.E.2d 325, (2015), rev’d on other grounds, __ N.C. __, 794 S.E.2d 293 (2016).


       7 Indeed, the footnote in Jackson contains no analysis at all as to why footnote three in Jones
(which dealt solely with the predicate felony of assault) should be extended to the legally distinct
predicate felony of discharging a weapon into occupied property.

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In Juarez, the defendant fired one bullet into a car occupied by only the victim,

shattering a window and striking and killing the victim. The defendant was convicted

of felony murder based upon the underlying felony of discharging a weapon into an

occupied vehicle in operation pursuant to N.C. Gen. Stat. § 14-34.1(b). Id. at __, 777

S.E.2d at 328.

      On appeal, the defendant contended that — based on footnote three in Jones

— a single assaultive act could not support a felony murder conviction even where

the underlying felony was discharging a weapon into occupied property rather than

assault. Citing Wall, we rejected this argument, holding that “[o]ur precedent clearly

states that discharging a firearm into occupied property is a felony involving a deadly

weapon, and as such supports a charge of first-degree murder based upon the felony

murder theory.” Id. at __, 777 S.E.2d at 330. Moreover, we explained that the offense

of discharging a weapon into occupied property contained elements not present in

assault crimes and thus did not fall within the “merger doctrine” for assault crimes

as discussed in footnote three in Jones.

      Thus, unlike in Jackson, this Court in Juarez expressly considered — and

rejected — a defendant’s argument that the “merger doctrine” precluded a felony

murder conviction based upon the underlying felony of discharging a weapon into

occupied property even where there was only one act and one victim. Defendant seeks

to distinguish Juarez on the ground that it involved a vehicle in operation rather than



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one that was stationary (as in the present case). However, as the State notes, there

was no indication in Juarez that anyone other than the actual victim was in any

danger as a result of the defendant’s actions, and our analysis did not focus on the

potential for harm to third parties arising from the defendant’s conduct.

       Our recent decision in State v. Frazier, __ N.C. App. __, 790 S.E.2d 312, disc.

review denied, __ N.C. __, 794 S.E.2d 330 (2016), is also instructive. In Frazier, the

defendant used his hand to repeatedly strike an infant, resulting in the baby’s death.

An expert witness testified that the infant died from blunt force trauma from three

separate applications of force. Defendant was convicted of felony murder based upon

felony child abuse. Id. at __, 790 S.E.2d at 316.

       On appeal, the defendant argued that the offense of felony child abuse could

not support a felony murder conviction because “the felony murder merger doctrine

prevents conviction of first-degree murder when there is only one victim and one

assault.” Id. at __, 790 S.E.2d at 320. We refused to adopt this argument, holding

that

             [f]elonious child abuse does not merge with first-degree
             murder because the crime of felonious child abuse requires
             proof of specific elements which are not required to prove
             first-degree murder[.] . . . The crime of felonious child abuse
             is among those offenses that address specific types of
             assaultive behavior that have special attributes
             distinguishing the offense from other assaults that result
             in death. Therefore, our courts have declined to apply the
             “merger doctrine” in cases where the underlying felony
             (here, child abuse) was not an offense included within the


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                                   STATE V. SPRUIELL

                                   Opinion of the Court



             murder.

Id. (internal citation omitted).

      In the present case, the offense underlying Defendant’s felony murder

conviction likewise included attributes distinguishing it from other acts that result

in death in that the State was required to prove that Defendant fired his gun into an

occupied vehicle. Defendant seeks to distinguish Frazier based upon the fact that the

defendant in that case struck the victim multiple times whereas there was only one

“assaultive” act in the present case. That reasoning is unavailing, however, given

that our holding in Frazier was not premised on the number of blows inflicted by the

defendant.

                                          ***

      Taking into account all of the relevant statutory authority and caselaw

discussed above, it is clear that neither the Supreme Court nor this Court has ever

expressly recognized an exception to the felony murder rule for the offense of

discharging a weapon into occupied property. At most, North Carolina courts have

recognized a very limited “merger doctrine” that precludes use of the felony murder

rule in situations where the defendant has committed one assault crime against one

victim and the State seeks to use that assault as the predicate felony for a felony

murder conviction.




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                                STATE V. SPRUIELL

                                  Opinion of the Court



      In his brief, Defendant acknowledges the absence of North Carolina caselaw

clearly supporting his position, noting that “[w]hile no case has yet held that

discharging a weapon into occupied property merges with felony murder, neither this

Court nor our Supreme Court have foreclosed the possibility.” (Emphasis added.)

However, this latter observation — even if true — cannot be bootstrapped into a

conclusion that a reasonable probability exists Defendant would have prevailed on

direct appeal had his counsel made this argument. To the contrary, a ruling in

Defendant’s favor on this issue in his direct appeal would have constituted a

departure from North Carolina’s existing jurisprudence.

      Accordingly, Defendant has failed to satisfy the prejudice element of his

ineffective assistance of counsel claim. We therefore reverse the trial court’s MAR

Order.

                                    Conclusion

      For the reasons stated above, we reverse the trial court’s 2 December 2015

order granting Defendant’s MAR.

      REVERSED.

      Judges STROUD and HUNTER, JR. concur.




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