              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA15-243

                               Filed: 3 November 2015

Columbus County, No. 12 CRS 675

STATE OF NORTH CAROLINA,

             v.

TARRENCE SHAKIL HAZEL


      Appeal by defendant from judgments entered 1 August 2014 by Judge James

Gregory Bell in Columbus County Superior Court. Heard in the Court of Appeals 8

September 2015.


      Attorney General Roy Cooper, by Special Deputy Attorney General Dahr Joseph
      Tanoury, for the State.

      Paul F. Herzog for defendant-appellant.


      BRYANT, Judge.


      Tarrence Shakil Hazel (“defendant”) appeals from judgments entered upon

jury verdicts finding him guilty of robbery with a firearm and first-degree murder

under the felony murder rule. We uphold the verdict of the jury and find no error in

the judgment of the trial court.

      On 13 April 2012, Marquice Antone shot and killed his uncle by marriage,

Keith Gachette, inside Gachette’s Columbus County home. Defendant and Kenneth

Williams were also present during the shooting. Kenneth Williams testified for the
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                                  Opinion of the Court



State pursuant to a plea bargain, wherein he pled guilty to accessory after the fact to

murder. Williams testified that he, Antone, and defendant had planned to break into

the Gachette home and steal Gachette’s guns and jewelry on 12 April 2013, provided

no one was home. Gachette was a gun collector who owned a number of rifles and

handguns. Defendant, who was eighteen years old and had a car, drove Antone and

Williams, who were each sixteen years old, to the Gachette home, where they were

all admitted by Gachette. After this visit, Williams testified that the group then went

to Williams’s home and talked. According to Williams, Antone asked defendant if

they could “go back over there tomorrow and try again” to break in and steal

Gachette’s guns. Williams and defendant agreed.

      On 13 April 2013, Williams and Antone walked to defendant’s house to get a

ride to the Gachette residence. According to Williams, Antone told them that if

Gachette was at home, Antone would simply ask his uncle for money, even though

the real purpose of the visit was to “get guns.” When the group arrived at the

Gachette residence, all three were admitted by Gachette, and they all took seats at

the dining room table. After about fifteen minutes of conversation, Williams heard

Antone ask Gachette if he had any gun oil, at which point Williams looked up to see

Antone pull out a gun and fire it. The shot hit Gachette’s computer, which was in the

living room. Gachette ordered the group to leave. Antone fired again, shooting

Gachette in the head, then walked over and fired at Gachette a third time. Antone



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ordered Williams and defendant to come to him as he stood over Gachette’s body, then

told them to take the guns. Williams took two rifles from the gun rack and put them

in the trunk of defendant’s car.

      Defendant also took a gun handed to him by Antone while Antone took

additional guns from a gun rack in the house. According to Williams, when defendant

left the house, he was carrying a pink bag, later determined to contain jewelry, in

addition to a handgun. Antone came outside with a rifle and a handgun. The group

left the scene in defendant’s car and drove toward Bolton.

      After arriving in Bolton, they went to a park. According to Williams, Antone

had defendant call an individual named Jamal. Antone wanted to know if Jamal

could hold the stolen property for them. Jamal apparently refused. After this phone

call, Williams testified defendant drove off in his car by himself, leaving Williams and

Antone in the park. Defendant returned about ten minutes later and said that he

could not find anybody “to hold the guns.”

      Defendant testified that during this ten-minute interval he drove to Brianna

Webb’s house. While he was talking to Webb, she saw the pink pouch in the back

seat of defendant’s car.   When she asked to have it, defendant let her take it.

Defendant then returned to the park where Antone and Williams were waiting.

Defendant testified that he told Williams and Antone that “this stuff [the guns] has

to come out of my car.”



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          They all got back into defendant’s car and drove off, ending up on a dirt road

near Lake Waccamaw. They attempted to hide the guns under an abandoned house

but were interrupted by an approaching car. They left that location, heading toward

the town of Hallsboro, still in possession of one rifle and some handguns. Antone

asked Williams if he wanted the handguns, but Williams declined. Antone said he

was going to throw the guns out the window, but Williams did not know if he actually

did so.

          The three went to Williams’s home, where Antone asked Williams for a duffel

bag. Antone hid the remaining rifle inside the duffel bag and left Williams’s home,

having friends pick him up. Defendant then left as well.

          Defendant was indicted on charges of first-degree murder and robbery with a

dangerous weapon on 9 May 2012, and arrested shortly thereafter. Defendant was

tried during a late July 2014 term of court in Columbus County, the Honorable James

Gregory Bell, judge presiding.

          At trial, once the jurors began deliberations, they requested a written copy of

the trial court’s instructions.      The trial court provided the jury with written

instructions on “all the substantive charges.” Later that day, the jury sent a note

containing the following question: “To clarify . . . can this defendant be found guilty

of the robbery charge and then found not guilty of the murder charge?” Defense

counsel indicated that the question should be answered “yes,” and the prosecutor



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thought it should be answered “no.” After the parties were given an opportunity to

research the issue, and after the trial court had conducted independent legal research

as well, the trial court indicated it would tell the jury to read the instructions and

would not answer the question yes or no. Defense counsel responded:

             [Defense counsel]: I’m not denying the Court has the
             discretion to do that, I’m not suggesting that you must
             answer the question, but I think that is a matter the
             Appellate Courts of North Carolina have clearly said is
             within your discretion. But technically the answer is yes.

             ...

             THE COURT: All right. . . . I’m not going to answer yes or
             no, I am going to give you the written copies of the
             instructions, they can go back and read the instructions.
             Anybody want to say anything about that?

The following day, the jurors, using separate verdict sheets, convicted defendant of

robbery with a firearm and first-degree murder based on the felony murder rule.

Defendant appeals.

             ______________________________________________________

      On appeal, defendant raises only one issue: whether the trial court committed

prejudicial error in failing to answer “yes” or “no” to the following question from the

jury: “Can this defendant be found guilty of the robbery charge and then found not

guilty of the murder charge?” We conclude the trial court acted within its discretion.

      This Court recognizes that “the trial court is in the best position to determine

whether further additional instruction will aid or confuse the jury in its deliberations,


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or if further instruction will prevent or cause in itself an undue emphasis being placed

on a particular portion of the court’s instructions.” State v. Prevette, 317 N.C. 148,

164, 345 S.E.2d 159, 169 (1986). Thus, whether to give additional instructions to the

jury is within the trial court’s discretion:

              (a) After the jury retires for deliberation, the judge may
                  give appropriate additional instructions to:
                         (1) Respond to an inquiry of the jury made in
                         open court; or
                         (2) Correct or withdraw an error;
                         (3) Clarify an ambiguous instruction; or
                         (4) Instruct the jury on a point of law which
                         should have been covered in the original
                         instructions.
              (b) At any time the judge gives additional instructions, he
                  may also give or repeat other instructions to avoid
                  giving undue prominence to the additional instructions.
              (c) Before the judge gives additional instructions, he must
                  inform the parties generally of the instructions he
                  intends to give and afford them an opportunity to be
                  heard.

N.C. Gen. Stat. § 15A-1234 (2013) (emphasis added). “[T]he trial court is not required

to repeat instructions which have been previously given absent an error in the

charge.” State v. Moore, 339 N.C. 456, 464, 451 S.E.2d 232, 236 (1994).

       Defendant argues that the trial court’s response to the jury’s question should

either have been (1) a “yes” response, as requested by defendant, or (2) at least a

response instructing the jury to consider each charge against defendant separately.

Either of these responses, defendant argues, would have properly conveyed to the

jury that its finding on the robbery charge did not automatically dictate the verdict


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                                    Opinion of the Court



on the murder charge. Defendant nonetheless conceded at trial that the trial court’s

choice of response was “a matter that the Appellate Courts of North Carolina have

clearly said is within [the trial court’s] discretion.” Thus, the trial court’s response

instructing the jury to reread the instructions, without answering the specific

question, was well within its discretion.

       Defendant cites State v. Bromfield, 332 N.C. 24, 418 S.E.2d 491 (1992), in

support of his contention that the trial court erred. In Bromfield, the jury asked the

trial court a question almost identical to the one asked in defendant’s trial: “ ‘If

[defendant is] found guilty of robbery with a dangerous weapon, must [the jury]

automatically find him guilty of felony murder?’ ” Id. at 332 N.C. at 45, 418 S.E.2d

at 503. After soliciting comment from both defense counsel and the prosecutor, the

trial court clarified the instruction, stating that the jury was “to consider each case

separately on its own merits . . . . You’re to consider each count in each case

separately, independently.”     Id. at 46, 418 S.E.2d at 503.        The North Carolina

Supreme Court held that the trial court’s choice to repeat the instructions

substantially in accordance with defense counsel’s suggestion “was carefully designed

to prevent confusion by the jury.” Id.

       Here, it is undisputed that the trial court correctly instructed the jury on the

separate offenses of robbery with a firearm and first-degree murder in perpetration

of a felony. Additionally, like the trial court in Bromfield, the trial court in the instant



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case solicited comment and advice from defense counsel and the prosecutor with

regard to an appropriate response to the jury’s question. In its discretion, the trial

court then decided that it would instruct the jurors to reread their written copies of

the instructions previously given and that the court would not answer “yes” or “no”

to the jury’s question.

      While the trial court here did not clarify the instructions by telling the jury to

“treat each count separately,” as the trial judge did in Bromfield, failure to do so in

the instant case could not be error where the trial court has discretion in its response

to the jury’s request. See Prevette, 317 N.C. at 164, 345 S.E.2d at 169. Further, the

jury was handed separate and distinct verdict sheets with which they were to enter

individual verdicts of either guilty or not guilty as to each charge. Therefore, the trial

court’s action in response to the jury’s question was well within its discretion and

proper as a matter of law. See id.

      Defendant’s argument is overruled where: (1) it is undisputed that the trial

court correctly instructed the jury on the separate offenses of robbery with a firearm

and first-degree murder in perpetration of a felony; (2) the court properly responded

to the jury’s question by instructing the jury to reread the written instructions

previously given to them; and (3) the jury was given separate verdict sheets for each

count that allowed them to select “not guilty” for each offense.            Accordingly,

defendant’s trial was free from error.



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NO ERROR.

Judges TYSON and INMAN concur.




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