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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the
print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. OTIS TREMAINE HIGHTOWER
Filed: 1 March 2005
1. Evidence--prior crimes or bad acts--involvement in gang--robberies--drug dealing--
motive and intent--modus operandi
The trial court did not commit plain error in a first-degree felony murder case by
admitting evidence of defendant's prior illegal activity including involvement in the Jericho
gang, prior robberies, and drug dealing, because: (1) the testimony about the gang provided
evidence of defendant's motive as well as the reason for a coparticipant's involvement in the
crime; (2) the testimony about defendant's pattern of robbing others of illegal drugs and selling
them provided evidence of defendant's motive and intent to commit the crimes at bar as well as
his modus operandi; (3) considering the other overwhelming evidence of defendant's guilt
presented through numerous eyewitnesses, the admission of this evidence was not plain error;
and (4) although defendant contends he received ineffective assistance of counsel based on his
attorney's failure to object to the evidence of defendant's prior bad acts, the admission of the
Rule 404(b) evidence was not error.
2. Jury-_selection--stating murder case tried noncapitally
The trial court did not err in a first-degree felony murder case by informing the jury pool
that the case would be tried noncapitally because defendant failed to show, and the Court of
Appeals did not find, any prejudice to defendant in the trial court's statement.
3. Sentencing_-life without parole--Enmund/Tison issues
The trial court did not err in a first-degree felony murder case by imposing a sentence of
life without parole without a jury finding of the Enmund/Tison issues, because: (1) both Enmund
and Tison involved proportionality review of death sentences, and their application is not
implied in noncapitally tried cases; and (2) defendant failed to show any basis to extend the
application of proportionality to a noncapital verdict and judgment.
Appeal by defendant from judgment entered 31 October 2003 by
Judge Orlando Hudson in Caswell County Superior Court. Heard in
the Court of Appeals 2 December 2004.
Attorney General Roy Cooper, by Assistant Attorney General C.
Norman Young, Jr., for the State.
Bruce T. Cunningham, Jr., for defendant-appellant.
Otis Tremaine Hightower (defendant) appeals from judgment
entered after a jury found him to be guilty of first-degree felony
murder and first-degree burglary. We hold defendant received a
fair trial free from prejudicial error.
A. The Brothers
The State's evidence tended to show that on 4 January 2003,
nineteen-year-old Brian Bigelow (Bigelow), his seventeen-year-old
brother T.W., and others were present at Marcus Sellars'
(Sellars) house playing Playstation 2 and smoking marijuana.
Defendant came in the house smoking, smoking a blunt[,] holding a
beer and with his gun. Defendant told those present, including
the brothers, Bigelow and T.W., that he needed to do a lick
because he had spent all his money on Christmas presents . . . .
Bigelow testified that a lick meant a robbery.
Defendant asked Bigelow and T.W. to participate. Bigelow at
first refused because the intended victim, Edgar Williamson
(Williamson), also known as Eck, was his friend. Sellars and
others harassed Bigelow and T.W. for not wanting to participate and
called them names. Sellars informed Bigelow, If you pull
something like that, y'all be in Jericho. You would be done did
[sic] something that showed you got heart.
Bigelow testified that the Jericho Gang consisted of his
cousins and a few outsiders. To become a member of the gang, one
had either to be beaten in by the members or rob someone. This
gang would hang out at Sellars' house where they would drink,smoke marijuana, and sell drugs. According to Bigelow, defendant
was one of the older members of the gang.
Later, Sellars asked defendant to take Bigelow and T.W. to the
store and purchase some beer and blunts. Sellars handed Bigelow
and T.W. guns. Sellars also gave Bigelow a black toboggan with
holes in it, and T.W. was given a grayish stocking.
Defendant, Bigelow, and T.W. went to the convenience store and
purchased beer and blunts. After leaving the store, defendant
drove past Sellars' house, but did not stop. Defendant told
Bigelow, We're going to pull this lick. . . . you want to get out,
jump out. Bigelow and T.W. remained in the vehicle while
defendant drove to Williamson's house. Williamson was standing
outside in his yard. Defendant drove by the house about five
times before parking the car two houses up the street from
Williamson's house. Defendant told Bigelow and T.W. to get out of
the car and don't get in the house acting like no bitch, or he
would shoot them. Defendant was wearing a red stocking cap,
[with] a camouflaged hat over top of it with a towel around his
neck. T.W. pulled the stocking cap over his head. Bigelow wore
a ski mask over his face.
Defendant kicked in the door of the house, threw a big woman
onto the floor, and put a gun to her head. Defendant instructed
Bigelow and T.W. to get the weed. T.W. entered one of the
bedrooms and informed defendant that he could not locate the
marijuana. Defendant walked down the hall, holding his gun to the
big woman's head. He ordered her to give him the weed. Sheretrieved a big bag of marijuana from under a mattress and handed
it to defendant.
Defendant, Bigelow, and T.W. entered the kitchen area. Upon
a knock at the door, Bigelow opened the rear door, and Lenny Benoit
(Benoit) entered the kitchen. Benoit recognized the brothers and
stated, That's Brian and Tom-Tom. Defendant stated, I don't
know no mo_ f_ Brian and Tom-Tom; I should knock your mo_ f_ teeth
out right now. In response, according to Bigelow, Benoit just
laughed and smiled. Defendant pointed his gun toward Benoit and
fired. Bigelow and T.W. immediately left Williamson's house and
ran towards the car, leaving defendant inside the house. About
thirty-seconds later, defendant returned to the car and drove
away from the house. Bigelow and T.W. told defendant, you didn't
have to kill that boy, to which defendant responded, Shut the f_
up before I shoot you.
Defendant, Bigelow, and T.W. returned to Sellars' house and
divided up the marijuana. Sellars received two ounces, and Bigelow
and T.W. each received one ounce. Defendant left Sellers' house.
On 13 January 2003, both Bigelow and T.W. went to the Caswell
County Sheriff's Department and gave a statement. Bigelow's
statement was admitted into evidence. T.W. also testified and
recounted his involvement in the 4 January 2003 shooting, which was
consistent with his brother's statement.
B. Rose Webb
Rose Webb (Webb) testified that she knew Williamson and was
visiting at his home on the evening of 4 January 2003 with her
nine-year-old son and her fourteen-year-old-cousin, J.C. AfterWilliamson and her son went to the store, someone knocked at the
door while Webb was in the kitchen. She looked out and saw a
person standing against the house wearing a red mask, like a
toboggan. Later, this person kicked in the door. The person
pointed a gun to her head, and she went down on her knees onto the
kitchen floor. Webb stated that after someone ran past her, she
was told to get up and go into the back room, where her cousin J.C.
was also located. Webb heard a gunshot and a girl scream. When
she heard the scream, she saw a teenager standing near the door.
Webb entered the living room and saw a body lying on the
kitchen floor and blood splattered by the stove. She also observed
a girl crying and screaming, and asked whether the man on the floor
C. Ashley Coble
Ashley Coble (Coble) testified that she went to high school
with Benoit. On 4 January 2003, Benoit and his girlfriend, J.C.,
picked her up and drove to Williamson's home around 7:30 p.m.
Williamson and Benoit were cousins.
They parked outside near the back door. When J.C. turned the
radio off, Benoit told her something wasn't right because the
back door was open, that it was never opened. As Benoit
approached the door, he saw and read a note on the door. Three men
came and slammed the door in his face. Benoit told the men to
quit playing and knocked on the door again.
The men opened the door and all three huddled around Benoit.
Coble described each of the three men and stated that two were
wearing what appeared to be ski masks. The third had somethingon top of his head. Coble testified all three men had guns. Coble
testified Benoit called for J.C., and Coble and J.C. ran into the
house. Benoit was lying wounded on the floor.
D. Deputy Brandon
Caswell County Deputy Sheriff Gwynn Brandon (Deputy Brandon)
responded to a call at 881 Boy Scout Camp Road on 4 January 2003
around 8:00 p.m. When he arrived, he found Benoit lying halfway
out of the back door of the residence.
Benoit appeared to have been shot in the lower stomach on the
left side. Deputy Brandon stated that he could see several spots
of blood on the floor inside the kitchen that appeared to be
fairly fresh. In addition, he observed that Benoit's condition
was extremely critical. His eyes had rolled back in his head, and
he was gasping for breath. Benoit later died from his wounds.
Inside the front part of the house, Deputy Brandon found Webb and
J.C. The front door had been blocked with a sofa and chairs.
Defendant did not testify or offer any evidence. The jury
found defendant to be guilty of first-degree felony murder and
first-degree burglary. As the burglary conviction was an element
of the crime of felony murder, the trial court sentenced defendant
to life imprisonment without parole for the first-degree murder
conviction. Defendant appeals.
The issues on appeal are whether the trial court erred by: (1)
admitting evidence of defendant's prior illegal activity; (2)
informing the jury pool that the case would be tried non-capitally;and (3) imposing a sentence of life without parole without a jury
finding of the Enmund/Tison issues.
Defendant's remaining assignments of error are explicitly
waived in his brief. He concedes pursuant to the North Carolina
Rules of Appellate Procedure, these assignments of error cannot be
pursued based upon the record currently before the Court. See
N.C.R. App. P. 28(b)(6) (2004) (Assignments of error not set out
in the appellant's brief or in support of which no reason or
argument is stated or authority cited, will be taken as
abandoned.). These remaining assignments of error are deemed
III. Prior Bad Acts
 Defendant contends the trial court committed plain error
by allowing evidence of defendant's involvement in the Jericho
gang, prior robberies, and drug dealing. We disagree.
Defendant failed to object to the admission of this evidence
and argues plain error.
Where evidence is admitted without objection,
the benefit of a prior objection to the same
or similar evidence is lost, and the defendant
is deemed to have waived his right to assign
as error the prior admission of evidence.
Having failed to object, defendant is entitled
to relief based on this assignment of error
only if he can demonstrate plain error. Under
the plain error rule, defendant must convince
this Court not only that there was error, but
that absent the error, the jury probably would
have reached a different result. The
appellate court must study the whole record to
determine if the error has such an impact on
the guilt determination, therefore
constituting plain error.
State v. Berry, 143 N.C. App. 187, 193, 546 S.E.2d 145, 151
(internal quotations and citations omitted), disc. rev. denied, 353
N.C. 729, 551 S.E.2d 439 (2001).
Rule 404(b) of the North Carolina Rules of Evidence states:
Evidence of other crimes, wrongs, or acts, is
not admissible to prove the character of a
person in order to show that he acted in
conformity therewith. It may, however, be
admissible for other purposes, such as proof
of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of
mistake, entrapment or accident.
N.C. Gen. Stat. § 8C-1, Rule 404(b) (2003). Rule 404(b) is:
a clear general rule of inclusion of relevant
evidence of other crimes, wrongs or acts by a
defendant, subject to but one exception
requiring its exclusion if its only probative
value is to show that the defendant has the
propensity or disposition to commit an offense
of the nature of the crime charged.
Berry, 143 N.C. App. at 196, 546 S.E.2d at 153.
A. Gang Activity
At trial, the State presented evidence through Bigelow's
testimony that defendant was a member of the Jericho Gang. This
testimony provides evidence of defendant's motive, as well as the
reason for Bigelow's involvement in the crime. Defendant
approached Bigelow, stated that he needed to do a lick, and told
Bigelow that in order to become a gang member, you had to rob
Presuming error, without finding the trial court erred,
defendant failed to show that the jury would have reached a
different result had the trial court excluded this evidence.
Considering the other overwhelming evidence of defendant's guilt,
presented through numerous eyewitnesses, we hold the admission ofthis testimony is not plain error. This assignment of error is
B. Past Robberies and Drug Dealing
Defendant also argues the trial court committed plain error by
allowing into evidence defendant's past robberies and prior drug
dealing. Both Bigelow and T.W. testified that defendant had a
pattern of robbing others of illegal drugs and selling them. This
testimony provided evidence of defendant's motive, and intent
to commit the crimes at bar, as well as his modus operandi. N.C.
Gen. Stat. § 8C-1, Rule 404(b). Prior to encountering the victim,
defendant, Bigelow, and T.W. planned to rob Williamson of his
marijuana. Defendant executed this plan, stole marijuana from
Williamson's home, and subsequently distributed the stolen drugs.
Benoit was murdered during the commission of this crime.
Admission of this evidence was not error under Rule 404(b).
Further, defendant has failed to show that under plain error
review, the admission of this evidence prejudiced his defense such
that the jury would have reached a different result. This
assignment of error is overruled.
C. Ineffective Assistance of Counsel
Defendant also argues his attorney's failure to object to the
evidence of defendant's prior bad acts constitutes ineffective
assistance of counsel. In reviewing an appeal based on
ineffective assistance of counsel, this Court must first determine
whether there was a reasonable probability that without counsel's
alleged errors, the outcome of the trial would have been
different. State v. Carrillo, 164 N.C. App. 204, 211, 595 S.E.2d219, 224 (2004) (citing State v. Braswell, 312 N.C. 553, 562, 324
S.E.2d 241, 248 (1985)), appeal dismissed, 359 N.C. 283, __ S.E.2d
__ (No. 267P04) (February 3, 2005). We held the admission of this
Rule 404(b) evidence was not error. This assignment of error is
IV. Statements During Jury Selection
 Defendant argues the trial court erred by informing the
jury, prior to trial, that he was not being charged with capital
murder. We disagree.
At the outset of jury selection, the trial court informed the
The defendant is charged with the offense of
first-degree murder. Members of the jury,
this is a noncapital murder case. If you find
the defendant guilty of the offense [of]
first-degree murder, the highest punishment
would be life imprisonment in the Department
of Correction without the benefit of parole
and not the death penalty. The death penalty
is not a possible punishment in this case. . .
Defendant cites only one case, State v. Hines, 286 N.C. 377, 211
S.E.2d 201 (1975), to support his argument. In Hines, our Supreme
Court granted a new trial because of statements by the prosecutor
during jury selection in a rape trial, where the defendant was
being tried capitally: And to ease your feeling, I might say to
you that no one has been put to death in North Carolina since
1961. Id. at 382, 211 S.E.2d at 204. The Hines Court reasoned
that the defendant was entitled to a new trial because the
prosecutor's statement was intended to, and in all probability
did, lighten the solemn burden of the jurors in returning their
verdict. Id. at 386, 211 S.E.2d at 207. Here, defendant argues the trial court's statement that this
case was to be tried non-capitally was intended to and did
lighten the solemn burden of the jurors . . . . Id. The State
argues the trial court's statement was made for no other purpose
other than to inform the jury regarding the status and posture of
the case before it.
Our Supreme Court has stated, the trial judge should not
inform the jurors as to punishment in non-capital cases. . . .
When, however, such information is inadvertently given, the error
will be evaluated like any other. State v. Rhodes, 275 N.C. 584,
592, 169 S.E.2d 846, 851 (1969) (citation omitted). In Rhodes, the
Court held, it was error for the trial judge to tell the jury the
punishment for assault with intent to commit rape, but we can
perceive no prejudice to defendant from the disclosure. Id.
Similarly, defendant has failed to show and we find no prejudice to
defendant in the trial court's statement. This assignment of error
 Defendant contends the imposition of a sentence of life
imprisonment without parole constitutes a cruel and unusual
punishment under the United States Supreme Court cases of Enmund v.
Florida, 458 U.S. 782, 73 L. Ed. 2d 1140 (1982), and Tison v.
Arizona, 481 U.S. 137, 95 L. Ed. 2d 127, reh'g denied, 482 U.S.
921, 96 L. Ed. 2d 688 (1987).
In Enmund, the Court held that the Eighth
Amendment forbids the imposition of the death
penalty on a defendant who aids and abets in
the commission of a felony in the course of
which a murder is committed by others, when
the defendant does not himself kill, attemptto kill, or intend that a killing take place
or that lethal force will be employed. State
v. McCollum, 334 N.C. 208, 223, 433 S.E.2d
144, 151 (1993), cert. denied,  U.S.
, 129 L. Ed. 2d 895, 114 S. Ct. 2784
(1994). A later case, Tison v. Arizona, 481
U.S. 137, 95 L. Ed. 2d 127, 107 S. Ct. 1676
(1987), limited the holding in Enmund to
exclude defendants who were major participants
in a felony that results in death when their
actions constituted reckless indifference to
State v. Walker, 343 N.C. 216, 224, 469 S.E.2d 919, 923, cert.
denied, 519 U.S. 901, 136 L. Ed. 2d 180 (1996).
Both Enmund and Tison involved proportionality review of death
sentences. Walker, 343 N.C. at 224, 469 S.E.2d at 923. Our review
of North Carolina Supreme Court cases discussing Enmund and Tison
fails to disclose any application in non-capitally tried cases.
See, e.g., State v. Watts, 357 N.C. 366, 584 S.E.2d 740 (2003),
cert. denied, __ U.S. __, 158 L. Ed. 2d 370 (2004); State v.
Golphin, 352 N.C. 364, 533 S.E.2d 168 (2000), cert. denied, 532
U.S. 931, 149 L. Ed. 2d 305 (2001); State v. McCollum, 334 N.C.
208, 433 S.E.2d 144 (1993), cert. denied and reh'g denied, 512 U.S.
1254, 129 L. Ed. 2d 895 (1994).
On the facts at bar, defendant has failed to show any basis to
extend the application of proportionality factors to a non-capital
verdict and judgment. This assignment of error is overruled.
The trial court did not err by admitting evidence of
defendant's gang membership and prior bad acts under Rule 404(b).
Both provided evidence of defendant's motive and intent in
committing the crime at bar. The trial court's statement to the
jury regarding the non-capital nature of the trial was not error. Defendant has failed to show Enmunds/Tison
review applies to this
non-capital verdict judgment. Defendant received a fair trial free
from prejudicial error.
No Prejudicial Error.
Judges TIMMONS-GOODSON and GEER concur.
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