State v. Melvin

• Decision Date: 01 September 2009
• Docket Number: No. COA09-62.,COA09-62.
• Citation: 682 S.E.2d 238
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Jihad Rashid MELVIN.

682 S.E.2d 238

STATE of North Carolina v. Jihad Rashid MELVIN.

No. COA09-62.

Court of Appeals of North Carolina.

September 1, 2009.

Appeal by defendant from judgment entered 4 August 2008 by Judge Charles H. Henry in Onslow County Superior Court. Heard in the Court of Appeals 10 June 2009.

Attorney General Roy A. Cooper, III, by Special Deputy Attorney General Norma S. Harrell, for the State.

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

HUNTER, ROBERT C., Judge.

On or about 21 March 2007, Almario Millander ("Millander") was fatally shot with a handgun in a trailer belonging to Kenneth Adams ("Adams") in Onslow County, North Carolina. On 10 July 2007 Jihad Rashid Melvin ("defendant") was indicted on charges of first degree murder and accessory after the fact to first degree murder in connection with Millander's murder. Defendant was convicted by a jury of both charges on 4 August 2008. The court arrested judgment of the accessory after the fact conviction, entered judgment of the first degree murder conviction, and sentenced defendant to life imprisonment without parole. Defendant now appeals. After careful review, we vacate the judgment and order a new trial.

Background

The State's evidence at trial tended to show that on 21 March 2007, Robert Ridges ("Ridges") sold cocaine to Millander. Tony Cole ("Cole") and defendant were present during the transaction. Soon after the sale, Ridges, Cole, and defendant were inside a vehicle preparing to drive away when Millander approached the car with a sawed off shotgun claiming that Ridges had sold him counterfeit cocaine. The three men drove away without any violence occurring at that time. According to Cole, Ridges stated that "[h]e was going to get [Millander]." The three men then went to the home of "Dee Dee" where they smoked marijuana for an unspecified amount of time. At some point during their visit at Dee Dee's, Ridges procured a handgun outside of the presence of Cole and defendant.

Ridges, Cole, and defendant then went to "Collins' Estates Mobile Home Park" in search of Millander. Once at the mobile home park, the men encountered Adams who informed them that Millander was in his trailer. Ridges entered Adams's trailer through the back door alone while Cole and defendant waited outside. Ridges then began shooting at Millander. Defendant and Cole ran to the car they had arrived in and waited for Ridges who subsequently emerged from the trailer. Defendant then drove the three men away from the scene. Adams told police that Ridges had been the sole shooter and that he did not see defendant enter the trailer at any time. Millander was shot once in the lower right leg and once in the chest, which was the cause of death.

The evidence also tended to show that after Ridges, Cole, and defendant left Adams's trailer, they went to a gas station. Cole and Ridges went into the gas station to make their purchases while defendant waited in the car. While in the gas station, Ridges spoke with an unidentified person. After leaving the gas station, the men were enroute to a friend's house when a law enforcement officer attempted to pull them over for a routine traffic stop. After pulling the car onto the side of the road, Ridges, Cole, and defendant exited the car and ran into the nearby woods. Once the officer left the area, the men emerged from the woods, wiped down the car to remove fingerprints, and attempted to set it on fire. Ridges, Cole, and defendant were picked up by another person, and as they were driven down the highway, they disposed of the handgun used to kill Millander. Portions of this weapon were recovered during the murder investigation and the gun was identified as the one used to shoot Millander.

At trial, Elijah Ridges ("Elijah"), the brother of Robert Ridges, testified that on 23 March 2007, he drove his brother and another person to Fayetteville, North Carolina. At trial, he claimed that he could not identify defendant as the other person he transported, but said that defendant had the same body type as that individual. However, Elijah previously told law enforcement that defendant was the other person he drove to Fayetteville. Defendant was later apprehended in Onslow County.

Analysis

Defendant first argues that the trial court erred in failing to instruct the jury that it could only convict defendant of first degree murder or accessory after the fact to first degree murder, but not both.

While defendant requested that the offenses be severed at a pretrial conference in July 2008, defendant did not request a jury instruction at that time regarding the jury's ability to convict defendant of both charges, nor did he request such an instruction at trial. At trial, defendant made no objections to the jury instructions. Accordingly, defendant has not preserved this assignment of error. N.C. R.App. P. However, defendant has requested plain error review.

[T]he plain error rule . . . is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a "fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done," or "where [the error] is grave error which amounts to a denial of a fundamental right of the accused," or the error has "`resulted in a miscarriage of justice or in the denial to appellant of a fair trial'" or where the error is such as to "seriously affect the fairness, integrity or public reputation of judicial proceedings" or where it can be fairly said "the instructional mistake had a probable impact on the jury's finding that the defendant was guilty."

State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.1982)).

Defendant was charged with first degree murder based on the theories of acting in concert and aiding and abetting, and being an accessory after the fact to first degree murder. "The elements required for conviction of first-degree murder are (1) the unlawful killing of another human being, (2) with malice, and (3) with premeditation and deliberation." State v. Lawson, ___ N.C.App. ___, ___, 669 S.E.2d 768, 776 (2008), disc. review denied, 363 N.C. 378, 679 S.E.2d 837 (2009). "The acting in concert doctrine 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). "`The distinction between [a defendant being found guilty of] aiding and abetting and acting in concert . . . is of little significance. Both are equally guilty.'" State v. Bonnett, 348 N.C. 417, 440, 502 S.E.2d 563, 578 (1998) (quoting State v. Williams, 299 N.C. 652, 656, 263 S.E.2d 774, 777 (1980)), cert. denied, 525 U.S. 1124, 119 S.Ct. 909, 142 L.Ed.2d 907 (1999). "An 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).

Though defendant does not argue that the jury should not have been presented both charges, we will nonetheless discuss this matter as it directly relates to the instruction issue. In the case of State v. Jewell, 104 N.C.App. 350, 409 S.E.2d 757 (1991), aff'd per curium, 331 N.C. 379, 416 S.E.2d 3 (1992), the defendant pled guilty to being an accessory after the fact to murder and the trial court found as an aggravating factor that the defendant aided and abetted the murder, a charge which was dismissed pursuant to his plea arrangement. Id. at 351, 409 S.E.2d at 758. The defendant claimed on appeal "that accessory after the fact and aiding and abetting are joinable offenses and therefore the latter cannot be used to aggravate a sentence for the former." Id. at 352, 409 S.E.2d at 759. The State argued "that accessory after the fact and aiding and abetting [murder] are not joinable [offenses for trial] because they are two separate and distinct offenses and are mutually exclusive." Id. at 353, 409 S.E.2d at 759. The Court in Jewell stated:

We agree that the two offenses are mutually exclusive but find that this is not determinative. We note first that an aider and abettor is treated as a principal. Thus, in the context of mutually exclusive offenses, being an aider and abettor to a crime is equivalent to being the principal to a crime. Being the principal to a crime and being an accessory after the fact to that crime are two separate and distinct offenses. However, where the offenses for which defendant is indicted and tried arise out of the same transactions, it is not a bar to joinder that they are mutually exclusive. The fact that aiding and abetting and accessory after the fact are mutually exclusive offenses means only that defendant cannot be convicted of both.

We thus conclude that the offenses of accessory after the fact of a felony and being an aider and abettor to that felony are joinable offenses for purposes of indictment and trial, even though a defendant cannot be convicted of both.

Id. at 353-54, 409 S.E.2d at 759-60 (citations omitted).

The Court further stated that "[t]he acts of defendant which gave rise to the indictments on charges of first degree murder and accessory after the fact of murder arose from a `series of acts or transactions connected together or constituting parts of a single scheme or plan.'" Id. at 353, 409 S.E.2d at 759 (quotation omitted).

The Court in Jewell held that the trial court could aggravate the defendant's sentence if it found "by a preponderance of the evidence that the defendant aided and abetted in the commission of that crime . . . ." Id. at 359, 409 S.E.2d at 763. Neverthel...