Opinion
No. 07-394.
Filed January 15, 2008.
Caldwell County No. 03 CRS 2327.
Appeal by defendant from judgment entered 21 November 2003 by Judge E. Penn Dameron, Jr., in Caldwell County Superior Court. Heard in the Court of Appeals 17 October 2007.
Attorney General Roy Cooper, by Assistant Attorney General John G. Barnwell, for the State. Office of the Appellate Defender Staples Hughes, by Assistant Appellate Defender Kristen L. Todd, for defendant.
Donnell David Cochrane (defendant) appeals a 21 November 2003 judgment entered consistent with a guilty verdict of accessory after the fact to second degree murder. Defendant was sentenced to a minimum of 103 and a maximum of 133 months imprisonment.
Thomas Delane Moore was shot to death on 14 June 2002 on the front porch of an apartment in Lenoir, North Carolina. Two of the principals, Duvon Olton, who had pled guilty to second degree murder and Stacy Perry, testified at trial.
The State's evidence tended to show that on the evening of the murder, defendant and three other men — Olton, Perry and Benjamin Jones — went to the Lenoir apartment. Defendant and Perry remained in the vehicle while Olton and Jones walked to the porch where the victim, Moore, was standing. Olton pulled out his gun, told Moore "to lay down . . ." and when Moore attempted to move his arm, Jones, who also had a gun, shot Moore in the head. Olton also fired his gun at Moore before he and Jones ran and jumped in the vehicle. Meanwhile, defendant was in the driver's seat and had turned the car around. All four men fled the scene with defendant driving the vehicle back to Charlotte. In response to a question by Olton as to whether Moore was dead, defendant replied he did not know, but that he saw the body move.
Defendant, Olton, Perry, and Jones were identified as murder suspects in the killing of Moore. Defendant and Olton were arrested in Atlanta, Georgia. Defendant appeals.
Defendant argues three issues on appeal, whether the trial court erred by: (I) denying defendant's motion to dismiss; (II) finding the indictment sufficient; and (III) instructing the jury such that he was deprived of a unanimous jury verdict.
I
Defendant argues the trial court erred by denying defendant's motion to dismiss the charge of accessory after the fact to second degree murder. We disagree.
The State had to prove three things in its prosecution of defendant as an accessory after the fact under N.C. Gen. Stat. § 14-7: "(1) the principal . . . committed a felony; (2) the alleged accomplice (defendant) personally aided the principal in his attempts to avoid criminal liability by any means calculated to assist him in doing so; and (3) the accomplice gave such help with knowledge that the principal had committed a felony." State v. Fearing, 304 N.C. 499, 504, 284 S.E.2d 479, 483 (1981). "Upon defendant's motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense. If so, the motion is properly denied." State v. Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002) (quoting State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980)).
It is uncontested that a principal, Duvon Olton, admitted committing second degree murder when he pled guilty to that offense. The evidence shows defendant was in the getaway vehicle parked near the lit porch where the murder occurred. Within minutes of the shooting, defendant told Olton he saw the victim's "body move [but] didn't know if he was dead or not[.]" As defendant drove them away from the scene to Charlotte, he said: "There's nothing you can do about it now. Put it in the past." Clearly defendant aided Olson and Jones, knowing they had shot Moore, by driving them away from the scene of the crime. Viewing the evidence in the light most favorable to the State, there was substantial evidence of the essential elements of accessory after the fact of Moore's murder. See State v. Brewington, ___ N.C. App. ___, 635 S.E.2d 512 (2006) (affirming the defendant's conviction for being an accessory after the fact to second degree murder where the defendant was not present at the scene of the killing, nor was there any evidence that he knew how many shots had been fired at the victim; knowledge of the crime was based merely on a phone call from the defendant's brother in which the defendant learned that the principal had `gotten his stripes' by attacking the victim and, upon driving by the crime scene after the shooting occurred, the defendant saw the victim lying in the middle of the street before the victim was taken to the hospital where he later died); State v. Barnes, 116 N.C. App. 311, 447 S.E.2d 478 (1994) (holding even though the defendant had not seen the actual murder, there was sufficient evidence to survive a motion to dismiss on the charge of accessory after the fact to first-degree murder where: the defendant drove the perpetrator to the house of the victim and waited outside while the perpetrator went into the house; after the defendant heard five or six loud pops, the perpetrator emerged from the home and ordered the defendant to drive him away; when the perpetrator entered the car, the defendant noticed blood on his shoes and a small child coming toward the car from the home). This assignment of error is overruled.
II
Defendant argues the indictment was defective because it failed to allege he assisted the principal with knowledge that the principal had committed murder. We disagree. The standard of review for sufficiency of an indictment is de novo. See State v. Sturdivant, 304 N.C. 293, 283 S.E.2d 719 (1981). Under the de novo standard of review, we consider the issue "anew[.]" State v. Sanders, 171 N.C. App. 46, 55, 613 S.E.2d 708, 714, aff'd, 360 N.C. 170, 622 S.E.2d 492 (2005).
Our Supreme Court has stated that the underlying felony "need not be set out as fully and specifically as would be required in an indictment for the actual commission of that felony. It is enough to state the offense generally and to designate it by name." State v. Norwood, 289 N.C. 424, 429-30, 222 S.E.2d 253, 257 (1976); see also State v. Chase, 117 N.C. App. 686, 690-91, 453 S.E.2d 195, 198 (1995) (rejecting the defendant's claim that defendant's indictment for gambling was insufficient because it failed to allege "as an element that a bet was placed, which is an element of the charge"). Criminal defendants have a right to "`reasonable notice' sufficient to insure that they are afforded an opportunity to defend against the charges." State v. Hunt, 357 N.C. 257, 271, 582 S.E.2d 593, 602, cert. denied, 539 U.S. 985, 156 L. Ed. 2d 702 (2003).
The indictment in this case cited N.C.G.S. § 14-7 and alleged that defendant in Caldwell County, on 14 June 2002
willfully and feloniously did become an accessory after the fact to murder as defined at the Common Law with statutory punishment provided in North Carolina General Statutes section 14-17 whereby Duvon Maurice Olton and Benjamin Maurice Jones did kill and murder Thomas Delane Moore . . . Defendant acted by providing transportation from the scene of the murder to Duvon Maurice Olton and by giving assistance so that . . . Duvon Maurice Olton could flee detection.
Defendant and his counsel were informed by the indictment that defendant was charged as an accessory after the fact "as defined at the common law." Our common law defines an accessory after the fact as one who knows a felony has been committed by the person he is aiding. The indictment conformed to the pleading requirements set out in N.C.G.S. § 15A-924 and to the constitutional requirement of "`reasonable notice' sufficient to insure that . . . [defendant was] afforded an opportunity to defend against the charges." Hunt, 357 N.C. at 271, 582 S.E.2d at 602; See State v. Martin, 30 N.C. App. 166, 169, 226 S.E.2d 682, 684 (1976) ("At common law, an accessory after the fact is one who, knowing that a felony has been committed by another, receives, relieves, comforts, or assists the felon, or in any manner aids him to escape arrest or punishment. This same definition is applicable to our statute . . . [G.S. 14-7].") (internal quotation marks and citation omitted). We hold the indictment is sufficient because it plainly describes what conduct defendant committed and when, as well as which law was violated. See Sturdivant, 304 N.C. at 311, 283 S.E.2d at 731. This assignment of error is overruled.
III
Defendant argues the trial court erred in its instructions to the jury in two instances: first, by failing to instruct the jury that its verdict must be unanimous as to the underlying felony; and, second, by instructing the jury that it did not need to unanimously agree on which crime the principal had committed to determine the defendant's verdict. We disagree.
Accessory after the fact "is a substantive crime — not a lesser degree of the principal crime." State v. McIntosh, 260 N.C. 749, 753, 133 S.E.2d 652, 655 (1963), cert. denied, 377 U.S. 939, 12 L. Ed. 2d 302 (1964). Accessory after the fact to a felony consists of aiding a felon with knowledge of the essential facts of the felony he committed. See, e.g., State v. Potter, 221 N.C. 153, 156, 19 S.E.2d 257, 259 (1942) ("By the common law an accessory after the fact is one who, knowing that a felony has been committed by another, receives, relieves, comforts, or assists such other, the felon[.]"). North Carolina General Statutes, Section 14-7 establishes the offender's punishment, and the level of the offense committed by the principal. It provides that the crime of accessory after the fact to a Class A felony (of which there is only one, namely, first degree murder) is punishable as a Class C felony, and accessory after the fact to a Class B2 felony (for example, second degree murder) is a Class D felony.
Duvon Olton and Benjamin Jones were named as principals and defendant was charged with providing transportation to Olton from the scene of the murder and by giving assistance to Olton so that he could "flee detection." The trial court instructed the jury, inter alia, that it could find defendant guilty as charged if it found that Olton, acting alone or in concert with Jones, committed first degree murder by killing Moore with malice, premeditation and deliberation, or if it found that Olton, acting alone or in concert with Jones, committed second degree murder by killing Moore with malice but without premeditation and deliberation. The verdict form, as noted, did not distinguish between first and second degree murder. During their deliberations, the jurors sent the following note to the trial court: "Do we have to agree on whether Olton was guilty of first or second degree murder?" The trial court answered that question "No." Following the jury's verdict finding defendant guilty as an accessory after the fact to murder (not specified as first or second degree), the trial court entered judgment against defendant for "accessory after the fact to second degree mur[der]," sentencing defendant to a Class D felony. N.C.G.S. § 14-7 (2005).
Defendant argues that "accessory after the fact to first and second degree murder are separate and distinct offenses" and that the trial court should have instructed the jury that it must be unanimous as to which degree of murder was committed. This argument is without merit. As we have stated, accessory after the fact is a substantive crime. See McIntosh, 260 N.C. at 753, 133 S.E.2d at 655. The crime of accessory after the fact has been committed once a person assists another whom he knows has committed a felony; in the instant case, a murder. The degree of murder is immaterial. Murder, whether first or second degree, is a felony. Here, "the trial judge explained the elements of both [first and second degree murder] as he should have done because if defendant was an accessory after the fact to either one, he would be guilty of a substantive felony under G.S. 14-7." State v. Martin, 30 N.C. App. 166, 171, 226 S.E.2d 682, 685 (1976) (denying the defendant's motion in arrest of judgment where defendant was convicted of felony accessory after the fact to voluntary manslaughter because regardless of whether the defendant was accessory to voluntary or involuntary manslaughter, he was nevertheless guilty of a substantive felony). The jurors unanimously concluded that defendant had committed the crime of accessory after the fact to murder. The trial court properly entered judgment against defendant based on the jury verdict and properly sentenced defendant for a Class D felony pursuant to N.C.G.S. § 14-7. This assignment of error is overruled.
No error.
Judges McGEE and HUNTER concur.
Report per Rule 30(e).