State v. Hill

• Decision Date: 03 March 1992
• Docket Number: No. 912SC232,912SC232
• Citation: 414 S.E.2d 73,105 N.C.App. 489
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina, v. Rodney Wendell HILL and Ricky Hill.

Page 73

414 S.E.2d 73

105 N.C.App. 489

STATE of North Carolina, v. Rodney Wendell HILL and Ricky Hill.

No. 912SC232.

Court of Appeals of North Carolina.

March 3, 1992.

Atty. Gen. Lacy H. Thornburg by Sp. Deputy Atty. Gen. W. Dale Talbert, Raleigh, for State.

Appellate Defender Malcolm Ray Hunter, Jr. by Asst. Appellate Defender M. Patricia DeVine, Raleigh, for defendant, appellant Rodney Hill.

J. Melvin Bowen, Williamston, for defendant, appellant Ricky Hill.

HEDRICK, Chief Judge.

Defendants first contend that the trial court committed reversible error by "allowing the issue of race to dominate the defendants' trial" and by questioning various witnesses in a manner which defendants argue violated their right to a fair trial. Both defendants are black males and the victim, Jay Priddyman, was a white male. Throughout the trial, the prosecutor repeatedly referred to Priddyman as "the white man" and the trial judge also referenced the victim by color on two occasions. It is important to note that defendant Ricky Hill's attorney also referred to Mr. Priddyman as "a white dude" and as a "white male" throughout his cross examination of the State's witnesses. No objection was addressed to the trial court by either defendant concerning these references and they now argue that this Court should nevertheless review the alleged improper remarks as plain error.

The plain error rule as adopted by our Supreme Court in State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983), allows an appellate court to notice "plain errors or defects affecting substantial rights ... not brought to the attention of the [trial] court." Id., at 660, 300 S.E.2d at 378, quoting Rule 52(b) of the Federal Rules of Civil Procedure. The rule must be applied cautiously, however, and "only in the exceptional case where, after reviewing the entire record, it can be said that the claimed error is a "fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done...." State v. Odom, 307 N.C. at 660, 300 S.E.2d at 378, quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.1982). Further, the record must indicate that the error "... had a probable impact on the jury's finding that the defendant was guilty." State v. Black, 308 N.C. 736, 741, 303 S.E.2d 804, 807 (1983).

As further discussed below, the evidence in this case supports the jury's conclusion that both defendants are guilty of second degree murder. There is no indication that the particular references to the race of the parties about which defendants now complain "had a probable impact on the jury's finding that the defendant[s] [were] guilty." The record shows that, with regard to each reference set forth by defendants as error, the prosecutor, the court, or the defense attorney was responding to a witness who identified the persons about whom they were testifying by color. Allowing such a method of identification by witnesses did not cause the issue of race to improperly "dominate the defendants' trial."

There is also no indication within the record that the questions tendered by the trial court to several witnesses improperly expressed or implied an opinion by the court as to the defendants' guilt. G.S. 8C-1, Rule 614(b) specifically allows the court to interrogate witnesses, whether called by itself or by a party, and our Supreme Court has held that "[i]t is proper for a trial judge to direct questions to a witness which are designed to clarify or promote a better understanding of the testimony being given." State v. Hunt, 297 N.C. 258, 263, 254 S.E.2d 591, 596 (1979). While we recognize that a trial judge can very easily and unwittingly influence a jury by seemingly impartial remarks and should, therefore, exercise the greatest restraint in his comments, State v. Staley, 292 N.C. 160, 162-163, 232 S.E.2d 680, 682-683 (1977), the five instances referenced by defendants herein were clearly attempts by the court to clarify confusing remarks made by both prosecution and defense witnesses. Even assuming arguendo that the questions of the court cast some negative inference concerning the credibility of a particular witness, defendants make no effort to show any effect such inference had upon the result of the trial. See State v. Perry, 231 N.C. 467, 57 S.E.2d 774 (1950); State v. Cole, 14 N.C.App. 733, 189 S.E.2d 510 (1972).

Defendants next contend that the trial court erred in allowing State's witnesses Rucker and Brown to testify over objection concerning what defendant Ricky Hill meant by references to "taking" the victim. Specifically, on direct examination, Mr. Rucker stated, "[Ricky Hill] ... told me um, there was a white guy, he was out there with a saw off [sic] and then he said let's get him." The prosecutor asked Mr. Rucker, "What did he mean by that?" and Mr. Rucker replied, "Rob him, I guess." Mr. Brown then testified that Ricky Hill stated, "... the white guy over there we can take him, you know," to which the prosecutor responded by asking, "What do you think he meant by that?" Mr. Brown answered, "That they was going to rob him."

We agree that the question "[w]hat did he mean by that?" addressed to Mr. Rucker was improper in that it did not address the opinion of Mr. Rucker, and Mr. Rucker had no personal knowledge of Ricky Hill's meaning at the time Hill made this statement. G.S. 8C-1, Rule 602. It was proper, however, to ask Mr. Brown "[w]hat do you think he meant by that?" as the question was addressed to the personal perception of the witness and Mr. Brown's response was helpful to a clear understanding of the rest of his testimony. G.S. 8C-1, Rule 701; State v. McElroy, 326 N.C. 752, 392 S.E.2d 67 (1990). Any error in allowing Mr. Rucker to answer the improper question must therefore be harmless error in that there was other proper evidence supporting the conclusion that "let's get him" meant "let's rob him." See State v. Torres, 322 N.C. 440, 368 S.E.2d 609 (1988).

Further, Ricky Hill's statements alone, without any type of clarification by these witnesses, would allow the jury to conclude that Ricky had planned to commit a crime against Mr. Priddyman prior to the time that the codefendants and Rucker walked across the parking lot to where Priddyman was standing prior to the shooting. As discussed below, it is of no consequence whether the intended crime was robbery or assault.

Defendant Ricky Hill next argues that the trial court erred in denying his motion to dismiss the charges against him at the close of the evidence as there was insufficient evidence to convict him of murder. Second degree murder is the unlawful killing of a human being with malice but without premeditation and deliberation. State v. Jones, 287 N.C. 84, 214 S.E.2d 24 (1975). It is well settled in this State that a defendant may be convicted of a crime if he is present at the scene of the crime and evidence is sufficient to show he is acting together with another who does the act necessary to constitute the crime pursuant to a common plan or purpose to commit the crime. State v. Giles, 83 N.C.App. 487, 490, 350 S.E.2d 868, 870 (1986), disc. rev denied, 319 N.C. 460, 356 S.E.2d 8 (1987); State v. Joyner, 297 N.C. 349, 357, 255 S.E.2d 390, 395-396 (1979). Further, "if two [or more] persons join in a purpose to commit a crime, each of them, if actually or constructively present, is not only guilty as a principal if the other commits that particular crime, but he is also guilty of any other crime committed by the other in pursuance of the common purpose." State v. Westbrook, 279 N.C. 18, 41, 181 S.E.2d 572, 586 (1971), death penalty vacated, 408 U.S. 939, 92 S.Ct. 2873, 33 L.Ed.2d 761 (1972). See State v. Oliver, 302 N.C. 28, 55, 274 S.E.2d 183, 200 (1981); State v. Joyner, 297 N.C. at 357-358, 255 S.E.2d at 395-396.

The evidence in this case is sufficient to permit the jury to find that both defendants and George Rucker, pursuant to a plan or scheme to commit a crime against Jay Priddyman, whether it was to rob him or physically assault him, walked across the parking lot from the convenience store to where Priddyman was sitting on his bike. Ricky Hill hit Priddyman, causing him to fall from his bike. Priddyman pulled a gun out of his coat and Rodney Hill took the gun from him and shot and killed Priddyman. We hold that these facts, when found by the jury, are sufficient to support a verdict that defendant Ricky Hill is guilty of second degree murder.

Defendant Ricky Hill next contends that he is entitled to a new trial due to the trial court's error in instructing the jury that flight of the accused is some evidence of guilt when there was no evidence to support such an instruction. Although it is the rule in North Carolina that the flight of a defendant may be considered by the jury as some evidence of guilt, State v. Lampkins, 283 N.C. 520, 523, 196 S.E.2d 697, 698 (1973), no instruction should be given "which [is] not based upon a statement of facts presented by some reasonable view of the evidence." Id., at 523, 196 S.E.2d at 699. Erroneous instructions, when prejudicial, entitle a defendant to a new trial. Id., citing State v. McClain, 282 N.C. 396, 193 S.E.2d 113 (1972); State v. McCoy, 236 N.C. 121, 71 S.E.2d 921 (1952); State v. Wilson, 104 N.C. 868, 10 S.E. 315 (1889).

The evidence shows that defendant Ricky Hill remained at the site of the crime for sometime after the actual shooting...