State v. Earnhardt

MORRIS, Chief Judge.

North Carolina Appellate Rule 9(b)(3) stipulates that “the record on appeal in criminal actions shall contain: . . . (vii) copies of the verdict and of the judgment, order, or other determination from which appeal is taken, (viii) a copy of the notice of appeal, or of the appeal entry showing appeal taken orally ...” Defendant has failed to include copies of either the verdict, judgment, notice of appeal, or appeal entry, although the information contained in those documents does appear in the Record in various places. We call appellant’s attention to the requirements of the rule. The rule is a practical one. In addition to insuring that the procedures at trial are presented to the court accurately, it also results in presenting the record to the Court chronologically, without the necessity of the Court’s having to search the Record for necessary components. The case is technically subject to dismissal. Because of the severity of the charges against defendant, we have elected to consider the appeal on its merits.

Defendant brings forth three assignments of error. He first contends that the trial court erred in denying his motions to dismiss at the end of the State’s evidence and at the end of all the evidence, because, he says, the evidence fails to show that defendant knew Lagree had committed voluntary manslaughter.

In order to prove a person to be an accessory after the fact, it must be shown (1) that the felony was committed, (2) that the accused knew the felony had been committed by the person assisted, and (3) that the accessory personally rendered assistance to the felon. State v. Potter, 221 N.C. 153, 19 S.E. 2d 257 (1942). State v. Martin, 30 N.C. App. 166, 226 S.E. 2d 682 (1976). Defendant contends that the evidence fails to show that he knew the offense had been committed, or that he even knew the victim was in the road. On the contrary, the evidence, according to defendant, shows that he thought Basinger was in the ditch on the far side of the road. We hold that there was sufficient evidence to survive defendant’s motions. As the state’s brief points out, it makes no difference that defendant may not have actually seen the victim in the road before the automobile struck him. Testimony indicated that defendant knew, before proposing the false story to be told the authorities, that Basinger, Horne, and Lagree were fighting, that Basinger was left very near to or on the road, and that he had been struck and killed by an automobile. The evidence is, therefore, sufficient, when considered in the light most favorable to the state, to satisfy each element of the offense of accessory after the fact. Indeed, it shows that defendant knew a felony had been committed by Horne or Lagree before he concocted the tale, engineered cooperation among those present, and related the story to Deputy Douglas.

Defendant asserts that the trial court erred in allowing the district attorney to state in his closing argument, with reference to those present at defendant’s house, that “they were acting like a pack of wolves.” We hold, however, that this characterization did not torture the sense of the record so as to mislead the jury or deprive defendant of a fair trial. The evidence presented showed that defendant and four other persons were drinking at defendant’s house; that Clarence Basinger cut his wife; that Lagree and Horne, armed with a belt and knife, viciously beat and kicked Basinger in the presence of the others; that the fighting spilled from the front porch to the yard and into the road; and that the victim was left in the road to be struck by an automobile. This evidence supports the argument of the district attorney.

[W]hen the prosecuting attorney does not go outside of the record and his characterizations of the defendant are supported by the evidence, the defendant is not entitled to a new trial by reason of being characterized in uncomplimentary terms in the argument.

State v. Westbrook, 279 N.C. 18, 39, 181 S.E. 2d 572, 584 (1971); sentence vacated, 408 U.S. 939, 92 S.Ct. 2873, 33 L.Ed. 2d 761 (1972). Moreover, we are unable to determine from the record whether the trial judge abused his discretion in controlling the jury argument as the only portion of the district attorney’s remarks set forth in the record on appeal is the sentence which is the subject of Exception No. 3A. When a portion of the argument is omitted from the record, the argument is presumed proper. State v. Hunt, 37 N.C. App. 315, 246 S.E. 2d 159 (1978).

Defendant argues by his final assignment of error that the trial court erred in several instances in its charge to the jury. Defendant first asserts that the instruction regarding state’s witness Lagree’s plea bargain for a reduction of charges in exchange for his testimony improperly allowed the jury to decide why the witness testified. There is no merit in this contention. The instruction explicitly reminds the jurors that Lagree was an interested witness testifying in accordance with a plea bargain agreement, and warns them to “examine the testimony with great care and caution in deciding whether to believe him.”

Defendant excepts to the court’s instruction that a conviction of witness Lagree for voluntary manslaughter could be utilized by the jury to decide whether to believe “other testimony at this trial.” Defendant contends that this instruction could have caused the jury to use the fact of conviction to decide whether to believe other witnesses. We hold that this instruction, when read with the instruction on the plea bargain, concerned only Lagree and clearly instructed that his guilty plea could only be considered as it bore on the truthfulness of his testimony.

Defendant also excepts to the court’s instruction that “for a person to be guilty of a crime in this case, accessory after the fact to voluntary manslaughter, it is not necessary that he or she do all of the acts necessary to constitute the crime, but he or she must be present.” Defendant believes that the state must prove that he did all the acts necessary to constitute the crime. We hold that although the state must prove all the elements of the crime, there is no such requirement regarding “acts” committed by the defendant. The trial judge accurately stated the law of concerted action and properly instructed that each element must be proven. It is clear, when this instruction is read as a whole, that the court explained that it is not necessary that defendant do all the acts himself, but that he can be guilty of the crime by acting in concert with others.

Defendant further excepts to the court’s use of the pronoun “they” in part of the charge to the jury. Vickie Earnhardt was also on trial in this matter, and it is clear that the trial court was referring to the codefendants. Defendant argues that the instruction was improper because it allowed the jury to consider Vickie Earnhardt’s actions against him and did not specify that defendant must have done the acts constituting the crime. The trial court in its charge stated several times that the jury must treat each case and each defendant separately, however. This exception is, therefore, without merit.

Defendant’s sixth contention with regard to the jury instructions is that defendant must have known that Horne and Lagree had committed a felony, but that the court charged that if defendant, “knowing Horne and Lagree or Horne or Lagree could have committed the crime of voluntary manslaughter, assisted Horne or Lagree in escaping or attempting to escape detection, arrest or punishment . . .then he should be found guilty. Defendant argues that it must have been shown that he knew a felony had been committed. We agree with this contention but hold, because the court had otherwise consistently stated that defendant must have known that homicide had been committed, that the instructions were proper when read as a whole.

Defendant’s final contention concerns the court’s instructions on acting in concert. The jury was charged and retired but returned with a request for further instruction on the law of concerted action. Defendant reiterates the argument that to be convicted of a crime a defendant must do all of the acts necessary to constitute the crime, but complains that the instruction again indicated that the defendant was not required to do all the acts necessary to constitute the crime, only that he must be present. However,

[i]t is not . . . necessary for a defendant to do any particular act constituting at least part of a crime in order to be convicted of that crime under the concerted action principle so long as he is present at the scene of the crime and the evidence is sufficient to show he is acting together with another who does the acts necessary to constitute the crime pursuant to a common plan or purpose to commit the crime.

State v. Joyner, 297 N.C. 349, 357, 255 S.E. 2d 390, 395 (1979). The instruction was, therefore, correct.

In defendant’s trial and the judgment rendered, we find

No error.

Judge MARTIN (Robert M.) concurs. Judge Hedrick dissents.