State Carolina v. Melvin

• Decision Date: 20 December 2010
• Docket Number: No. 382PA09.,382PA09.
• Parties: STATE of North Carolinav.Jihad Rashid MELVIN.
• Court: North Carolina Supreme Court

364 N.C. 589

707 S.E.2d 629

STATE of North Carolina

v.Jihad Rashid MELVIN.

No. 382PA09.

Supreme Court of North Carolina.

Dec. 20, 2010.

OPINION TEXT STARTS HERE

On discretionary review pursuant to N.C.G.S. § 7A–31 of a unanimous decision of the Court of Appeals, 199 N.C.App. 469, 682 S.E.2d 238 (2009), vacating a judgment entered on 4 August 2008 by Judge Charles H. Henry in Superior Court, Onslow County, and remanding the case for a new trial. Heard in the Supreme Court 11 May 2010.

Roy Cooper, Attorney General, by Norma S. Harrell, Special Deputy Attorney General, for the State-appellant.

Staples S. Hughes, Appellate Defender, by Daniel R. Pollitt, Assistant Appellate Defender, for defendant-appellee.

EDMUNDS, Justice.

In this case we consider whether the trial court erred by failing to instruct the jury that it could not convict defendant of both first-degree murder and accessory after the fact to murder. Although we conclude that the trial court should have given the instruction, defendant failed timely to object to its omission. Because we find no plain error, we reverse the decision of the Court of Appeals.

On 10 July 2007, defendant was indicted for one count of first-degree murder and one count of accessory after the fact to murder. Because no evidence suggested that defendant had fired the shots that killed the victim, the first-degree murder charge against him was based on the theories of acting in concert and aiding and abetting. At a pretrial hearing held on 22 July 2008 to consider motions filed in the case, defendant argued that the two offenses in the indictment were inconsistent and moved to have the district attorney elect the State's theory of proof or, in the alternative, for the court to sever the offenses. During the discussion of these motions, the trial court asked counsel: “[I]s the jury instructed they can only—if they were to find the defendant guilty of first-degree murder, they would not consider accessory after the fact, or do you allow them both to go and then the court arrests one judgment, as opposed to the other?” The State cited State v. Jewell, 104 N.C.App. 350, 409 S.E.2d 757 (1991), aff'd per curiam, 331 N.C. 379, 416 S.E.2d 3 (1992), to support its position that the latter course was proper, and defense counsel, “as an officer of the court,” conceded that he believed the State had correctly cited the controlling case. The trial court then denied defendant's motion to sever the two offenses and determined that the State had made an election to proceed on the theory of acting in concert.

At trial, the State presented evidence that, at approximately 11:00 a.m. on 21 March 2007, defendant drove Robert Ridges (Ridges) and Tony Cole (Cole) to the home of Ridges's brother, Elijah. As Ridges, Cole, and defendant were driving away after the visit, they spotted the victim, Almario Millander. They waved the victim over to their car, and Ridges sold him a quantity of what was purported to be crack cocaine. As they attempted to leave, however, the car stalled. The victim walked over to the immobilized car, claimed Ridges had sold him counterfeit crack, and demanded his money back. When Ridges denied the accusation, the victim pulled out a sawed-off shotgun and pointed it at Ridges, who was unarmed. Defendant was able to restart the car and drive away with Ridges and Cole without shots being fired.

In the aftermath of the encounter, an angry Ridges “swore on his son” that he was going to “get” the victim. Ridges left Cole and defendant for a time, then returned. As the three later “chilled” and smoked “weed” at a friend's house, Cole realized that Ridges had obtained a gun when he saw Ridges “pull[ ] it out” in defendant's presence. That same evening, defendant drove as he, Ridges, and Cole looked for the victim. They came across an individual named Ken Adams, who told them the victim was at Adams's residence. Cole exhorted Ridges: “[G]o in his house, you going to kill this man, you got to kill the other guy too. Can't be no eyewitnesses.” ¹ Defendant agreed with Cole but Ridges responded that the victim was the only one he wanted. During this discussion, defendant briefly took possession of Ridges's pistol, but Ridges retrieved it. Ridges, Cole, and defendant exited the car and walked toward Adams's residence. Defendant climbed the steps to the rear of the residence, while Ridges entered through the back door. Adams, who was inside, saw Ridges open fire on the victim. As the victim tried to escape through a window, Ridges shot him twice, hitting the victim behind one knee and inflicting a fatal wound to the victim's chest.

Defendant then drove Ridges and Cole from the scene. They stopped at a gas station, where Cole and Ridges made purchases while defendant waited in the car. After they left, a law enforcement officer attempted to stop defendant's car using his blue lights and siren. Defendant turned onto a dirt road and accelerated, raising a cloud of dust that caused the pursuing officer to drop back. The car stalled again, so defendant pulled to the side of the road, and he, Ridges, and Cole fled into nearby woods. The officer, who was acting on information indicating only that the vehicle's registration was faulty, stopped at the abandoned car, but, unable to find the occupants and seeing no evidence of a crime, left after a short wait.

Once the officer departed, defendant, Ridges, and Cole returned to the car, wiped it down to remove fingerprints, and attempted to set it on fire. They then dismantled the murder weapon and wiped all fingerprints off the pieces. They caught a ride, and, as they were driven to the home of the mother of defendant's child, each of the three threw components of the dismantled pistol from the car. Parts of the weapon were recovered during the investigation and identified by State Bureau of Investigation agent Jessica Rosenberry as belonging to the gun used to shoot the victim.

Defendant was convicted by a jury of both first-degree murder and accessory after the fact to murder. The trial court arrested judgment on the conviction of accessory after the fact but sentenced defendant to life imprisonment without parole for the first-degree murder conviction. On appeal, the Court of Appeals concluded that the trial court committed plain error by failing to instruct the jury that it could convict defendant of either charge, but not both. 199 N.C.App. at 479, 682 S.E.2d at 246. Accordingly, the Court of Appeals vacated the judgment and ordered a new trial. This Court allowed the State's petition for discretionary review.

We begin by defining the pertinent doctrines. “First-degree murder is the intentional and unlawful killing of a human being with malice and with premeditation and deliberation.” State v. Thomas, 350 N.C. 315, 346, 514 S.E.2d 486, 505 (citation omitted), cert. denied, 528 U.S. 1006, 120 S.Ct. 503, 145 L.Ed.2d 388 (1999); see also N.C.G.S. § 14–17 (2009). The doctrine of acting in concert provides that “ when two or more persons act together in pursuance of a common plan or purpose, each is guilty of any crime committed by any other in pursuance of the common plan or purpose.” State v. Thomas, 325 N.C. 583, 595, 386 S.E.2d 555, 561 (1989). Specifically, acting in concert “allows a defendant acting with another person for a common purpose of committing some crime to be held guilty of a murder committed in the pursuit of that common plan even though the defendant did not personally commit the murder.” State v. Roache, 358 N.C. 243, 306, 595 S.E.2d 381, 421 (2004) (citation omitted). A defendant is guilty of aiding and abetting another in the commission of an offense if:

(i) the crime was committed by some other person; (ii) the defendant knowingly advised, instigated, encouraged, procured, or aided the other person to commit that crime; and (iii) the defendant's actions or statements caused or contributed to the commission of the crime by that other person.

State v. Goode, 350 N.C. 247, 260, 512 S.E.2d 414, 422 (1999) (citation omitted). We have observed that “[t]he distinction between aiding and abetting and acting in concert, however, is of little significance. [Defendants convicted under either doctrine] are equally guilty and are equally punishable.” State v. Williams, 299 N.C. 652, 656, 263 S.E.2d 774, 777 (1980) (internal citations omitted). On the other hand, “[a]n accessory after the fact is one who, knowing that a felony has been committed by another, receives, relieves, comforts or assists such felon, or who in any manner aids him to escape arrest or punishment.” State v. Oliver, 302 N.C. 28, 55, 274 S.E.2d 183, 200 (1981) (citations omitted).

Murder and accessory after the fact to that murder are mutually exclusive offenses. See State v. McIntosh, 260 N.C. 749, 753, 133 S.E.2d 652, 655 (1963) (“A participant in a felony may no more be an accessory after the fact than one who commits larceny may be guilty of receiving the goods which he himself had stolen.”), cert. denied, 377 U.S. 939, 84 S.Ct. 1345, 12 L.Ed.2d 302 (1964); see also State v. Jewell, 104 N.C.App. at 353, 409 S.E.2d at 759 (finding that murder and accessory after the fact to murder are mutually exclusive offenses). In addition, verdicts of guilty of both offenses would be both legally inconsistent and contradictory. See State v. Mumford, 364 N.C. 394, 398–402, 699 S.E.2d 911, 914–16 (2010) (reviewing the distinction between verdicts that are “merely inconsistent” and those that are “legally inconsistent and contradictory”). Accordingly, a defendant cannot be convicted of both offenses arising from a single killing.

Nevertheless, the State may join for trial two offenses when they “are based on the same act or transaction or on a series of acts or transactions connected together or constituting parts of a single scheme or plan,” N.C.G.S. § 15A–926(a) (2009), even if the defendant cannot be convicted of both offenses “due to the mutually exclusive nature of those...