State v. Whitaker , 43 N.C. App. 600 ( 1979 )

259 S.E.2d 316 (1979) 43 N.C. App. 600

STATE of North Carolina
v.
Otis Lee WHITAKER and James Alton Williams.

No. 792SC373.

Court of Appeals of North Carolina.

November 6, 1979.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Thomas J. Ziko, Raleigh, for the State.

Carter & Ross by W. B. Carter and L. H. Ross, Washington, for defendant appellant Otis Lee Whitaker.

Franklin B. Johnston, Washington, for defendant appellant James Alton Williams.

CLARK, Judge.

There are fifty-seven assignments of error in the record. Defendant Whitaker argues that there are numerous small prejudicial errors that together call for a new trial. These objections include the lack of a proper identification of exhibits, conclusory statements by witnesses and leading questions. We have carefully reviewed each of the contentions of defendant Whitaker and find them to be without prejudicial effect, and we therefore decline to grant a new trial. State v. Stanfield, 292 N.C. 357, 233 S.E.2d 574 (1977); State v. Cottingham, 30 N.C.App. 67, 226 S.E.2d 387 (1976). For the same reasons we find no merit in the contentions of defendant Whitaker that the trial judge should have dismissed the case either after the close of the State's evidence or after the close of all the evidence, and that the trial judge should have set aside the verdict of the jury.

Defendant Williams presents five arguments. First, Williams contends that the trial judge committed reversible error by denying defendant Williams' motion for a change of venue. Defendant argues that the accounts of the accident and pictures of the accident scene were aired by local radio and television stations and were printed for several days in the local newspaper and that the deaths of the two victims touched off a deep resentment and even outright hatred against the two black defendants. However, no press clippings were presented, there was no showing that the jurors had seen or were affected by the publicity, and there was no showing that defendants' peremptory challenges were exhausted. The standard for review for a ruling on a motion for a change of venue is whether the trial judge abused his discretion, N.C.Gen. Stat. §§ 15A-957, 958 (1978); State v. Boykin, 291 N.C. 264, 229 S.E.2d 914 (1976); State v. Harrill, 289 N.C. 186, 221 S.E.2d 325, death sentence vacated, 428 U.S. 904, 96 S.Ct. 3212, 49 L.Ed.2d 1211 (1976), and where defendant presents nothing more than an allegation of general ill will in the community, there is no evidence which would support a reversal for abuse of discretion. State v. Thompson, 287 N.C. 303, 214 S.E.2d 742 (1975), death sentence vacated, 428 U.S. 908, 96 S.Ct. 3215, 49 L.Ed.2d 1213 (1976).

Defendant Williams next contends that the trial court committed reversible error by denying Williams' motion for severance of the trial of Whitaker and Williams. Here Williams argues that his defense was predicated upon the testimony of Otis Whitaker and that because other evidence against Whitaker would be admitted in a joint trial than would be admitted in a solo trial of Williams, Williams was thereby denied any right to use Whitaker as a witness and to have his case heard without the overwhelming prejudicial feeling of hatred aired at Otis Whitaker. We do not agree with this contention. The rule in North Carolina is clear that whether defendants should be tried separately is to be resolved in the sound discretion of the trial court and absent a showing of substantial prejudice to the defendants amounting to the denial of a fair trial, the exercise of discretion by the trial court will not be disturbed upon appeal. State v. Slade, 291 N.C. 275, 229 S.E.2d 921 (1976); State v. Alford, 289 N.C. 372, 222 S.E.2d 222, death sentence vacated, 429 U.S. 809, 97 S.Ct. 46, 50 L.Ed.2d 69 (1976). Defendant presents no explanation as to how a separate trial would have prevented the alleged prejudice, particularly when the State would have had the right on cross examination to draw out the same facts defendant contends would prejudice the jury against his defense. We therefore uphold the ruling of the trial court in denying defendant Williams' motion for severance.

Defendant Williams next contends that the repeated use of leading questions by the State and the conclusory testimony of the State's witnesses were prejudicial when viewed as a whole. As with the above contentions of defendant Whitaker, we have carefully reviewed each of these challenges and find no prejudice.

Finally, defendant Williams contends that the trial judge committed reversible error by denying the defendant's motion for a directed verdict of not guilty at the end of the State's evidence and upon renewal of the motion at the end of all the evidence. Defendant argues that there was insufficient evidence to support the instructions by the trial judge as to the element of aiding and abetting and, in particular, that there was no evidence to support the charge of the trial judge that Williams must have known that Whitaker was in no condition to drive or that Williams was so intoxicated that he did not use the degree of care necessary to determine Whitaker's condition. We disagree. As a general principle, "[w]hen an owner places his motor vehicle in the hands of an intoxicated driver, sits by his side, and permits him, without protest, to operate the vehicle on a public highway, while in a state of intoxication, he is as guilty as the man at the wheel." State v. Gibbs, 227 N.C. 677, 678, 44 S.E.2d 201, 202 (1947). See also State v. Nall, 239 N.C. 60, 79 S.E.2d 354 (1953), (aiders and abettors guilty as principals). Following these principles, we hold that when a death results from the operation of a motor vehicle by an intoxicated person not the owner of that vehicle, the owner who is present in the vehicle and who with his knowledge and consent permits the intoxicated driver to operate the vehicle, is as guilty as the intoxicated driver. Story v. United States, 57 App.D.C. 3, 16 F.2d 342 (1926), cert. denied, 274 U.S. 739, 47 S.Ct. 576, 71 L.Ed. 1318 (1927), (a motor vehicle manslaughter case cited in Gibbs, supra). See also Annot. 47 A.L.R.2d 568, 586-88 (1956); Annot. 99 A.L.R. 756, 771 (1935).

In the instant case defendant Williams' own testimony revealed that he stopped the car in order to allow the defendant Whitaker to drive. Defendant Williams knew that defendant Whitaker had had at least two drinks of vodka and one beer. While defendant Williams did not perceive Whitaker to be intoxicated, the test administered by the State more than an hour after the accident showed that Whitaker was under the influence of alcohol to an appreciable degree. Consequently, we hold that the trial judge was correct in his instructions on aiding and abetting the involuntary manslaughter and that the court appropriately sent the case to the jury.

Affirmed.

ERWIN and WELLS, JJ., concur.