State v Morrison, (04-985) 05/03/2005

    Kenneth Byrd (“Byrd”) and defendant were dating in March 2002. At that same time, Byrd was also involved in a relationship with Renee Lancaster (“Lancaster”). On the evening of 31 March 2002, Byrd was with defendant, but was scheduled to meet with Lancaster. As defendant drove her car with Byrd as the passenger, Lancaster passed them in a Ford Ranger pickup truck. Defendant and Byrd tried to “lose” Lancaster, but she found them parked near a gravelcompany. Byrd testified defendant and Lancaster began arguing and he intervened. All three returned to their cars and both vehicles headed toward Interstate 95. Lancaster pulled ahead of defendant's car and forced them onto the shoulder. A fight ensued and Lancaster was shot to death. Byrd testified that defendant shot Lancaster. Defendant asserted that Byrd was the shooter.
    Defendant followed Byrd as he drove Lancaster's truck to some woods where they left Lancaster's body. They drove to another area and hid Lancaster's truck. The following night, defendant and Byrd returned to Lancaster's body with “some utensils, some lime, a shovel” and buried Lancaster. From there, they returned to Lancaster's truck and set it on fire. Defendant and Byrd also burned their clothes from the previous night.
    On 1 April 2002, Lancaster's mother called the Dunn Police Department to report her missing. The Harnett County Sheriff's Department was contacted and Detective Charles Galloway (“Detective Galloway”) began investigating Lancaster's disappearance. After interviewing Lancaster's friends and family, Detective Galloway contacted Byrd to ask questions. Detective Galloway later called Byrd to come to the Sheriff's Department for another interview. Byrd did not show up.
    State Bureau of Investigation Agent Michael East (“Agent East”) became involved in the case. He contacted Byrd to request him to come to the Sheriff's Department and take a polygraph test. Defendant and Byrd left town.    Byrd and defendant fled to Danville, Virginia, then moved to Myrtle Beach, South Carolina. After a brief trip to North Carolina, Byrd and defendant returned to Myrtle Beach, and later moved to Carolina Beach, North Carolina. Both defendant and Byrd assumed fictitious names and found work in Carolina Beach. Agent East found Byrd and defendant in Carolina Beach on 2 May 2002. Byrd was arrested and defendant rode with the police back to Harnett County. During the trip, defendant initially claimed no knowledge of Lancaster's disappearance. Then, she provided Agent East an oral statement later reduced to writing. Defendant claimed Byrd and Lancaster had fought and she heard a single gunshot. She admitted helping Byrd dispose of Lancaster's body and the truck. She gave Agent East the location of Lancaster's body and the truck. Lancaster's body was discovered and an autopsy revealed ten bullet wounds from a small caliber gun. Remnants of Lancaster's vehicle were also found. Officers later learned that a burned Ford Ranger pickup truck had been hauled off from that spot to a salvage yard.
    Agent East visited Byrd in the correctional facility where Byrd gave his statement. He stated that defendant had walked to the passenger side of Lancaster's truck, leaned into the cab, and shot Lancaster multiple times. He admitted helping defendant bury Lancaster's body and burning her truck.
    Byrd was charged with Lancaster's murder. He was tried by jury, convicted of first-degree murder, and sentenced to life imprisonment without parole.    Defendant was initially indicted for: (1) murder; (2) conspiracy to commit murder; (3) conspiracy to commit larceny; (4) felonious burning of personal property; and (5) felonious larceny. After Byrd's conviction, the State also charged defendant with being an accessory after the fact to murder.
    Byrd testified for the State and admitted dating both defendant and Lancaster. He stated that he purchased a .22 caliber rifle a few weeks before the incident. He intended on selling it to a friend and had placed it in defendant's car. He testified that defendant killed Lancaster after they fought on the shoulder of the Interstate 95 on-ramp. Byrd admitted helping defendant after the killing.
    Defendant testified that Byrd shot and killed Lancaster. She claimed Lancaster emerged from her truck with something in her hand after forcing defendant and Byrd off the road. Defendant could not tell what it was, but Byrd later told her it was a gun. She further testified that she followed Byrd's orders from the moment after Lancaster was shot until they were taken into custody at Carolina Beach. Those orders included burying Lancaster, burning Lancaster's truck, burning their clothes, and leaving town.
    At the close of the State's evidence, the trial court granted defendant's motion to dismiss the charges of conspiracy to commit murder and conspiracy to commit larceny. At the close of all the evidence, the trial court granted defendant's motion to dismiss the charge of felonious larceny. Defendant pled guilty to the charges of burning personal property and misdemeanor larceny. The juryfound defendant not guilty of first-degree murder. Defendant was convicted of being an accessory after the fact to murder. Defendant was sentenced to a term of six to eight months for burning personal property and misdemeanor larceny. She was also sentenced to seventy-three months minimum, ninety-seven months maximum for being an accessory after the fact to murder, with the terms to run consecutively. Defendant appeals.

The jury acquitted defendant of the charge of first-degree murder. We do not address whether it was proper for the State to prosecute defendant for first-degree murder. Any possible prejudice defendant suffered concerning the first-degree murder charge is moot. See In re Peoples, 296 N.C. 109, 147, 250 S.E.2d 890, 912 (1978) (when relief sought is no longer at issue, courts“will not entertain or proceed with a cause merely to determine abstract propositions of law.”), cert. denied, 442 U.S. 929, 61 L. Ed. 2d 297 (1979).
The remaining charge is defendant being an accessory after the fact to murder. An accessory after the fact to a felony is “one who, knowing that a felony has been committed by another, receives, relieves, comforts, or assists such other, the felon, or in any manner aids him to escape arrest or punishment.” State v. Potter, 221 N.C. 153, 156, 19 S.E.2d 257, 259 (1942); N.C. Gen. Stat. § 14- 7 (2003). Defendant freely admitted in pretrial statements and during her testimony that she helped Byrd dispose of Lancaster's body and truck after she was murdered and fled from Harnett County with him. Defendant fails to show and our review of the record does not indicate how any possible error constituted prejudice and warrants a new trial. This assignment of error is overruled.

    Defendant asserts the trial court committed plain error when it failed to find that defendant played a passive role in the commission of the offenses and the presiding judge momentarily left the courtroom during jury selection. We disagree.
    Our Supreme Court discussed the application of plain error review in State v. Anderson, 355 N.C. 136, 558 S.E.2d 87 (2002).
        Generally, a purported error, even one of constitutional magnitude, that is not raised and ruled upon in the trial court is waived and will not be considered on appeal. State v. Smith, 352 N.C. 531, 557-58, 532 S.E.2d 773, 790 (2000), cert. denied, 532 U.S. 949, 149 L. Ed. 2d 360, 121 S. Ct. 1419 (2001); see also State v. Nobles, 350 N.C. 483, 498, 515 S.E.2d 885, 895 (1999) (“the rule is that when defendant fails to object during trial, he has waived his right to complain further on appeal”). Rule 10(c)(4) of our Rules of Appellate Procedure provides that an alleged error not otherwise properly preserved may, nevertheless, be reviewed if the defendant “specifically and distinctly contends” that it amounted to plain error. This Court has recognized that “the plain error rule applies only in truly exceptional cases,” State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986), and that a defendant relying on the rule bears the heavy “burden of showing . . . (I) that a different result probably would have been reached but for the error or (ii) that the error was so fundamental as to result in a miscarriage of justice or denial of a fair trial,” State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997). . . . Moreover, this Court has previously limited application of the plain error doctrine to jury instructions and evidentiary matters. See, e.g., State v. Atkins, 349 N.C. 62, 505 S.E.2d 97 (1998), cert. denied, 526 U.S. 1147, 143 L. Ed. 2d 1036, 119 S. Ct. 2025 (1999).

Id. at 142, 558 S.E.2d at 92.
    Defendant did not object to the presiding judge's momentary absence during jury selection. The record fails to that discloseany objection was made when the trial court considered and found no mitigating and aggravating factors and imposed a sentence within the presumptive range. Defendant's assigned errors are not preserved for our review. See N.C.R. App. P. 10 (2004). Further, defendant's assignments of error do not challenge jury instructions or an evidentiary matter. See Atkins, supra (application of the plain error doctrine limited to jury instructions and evidentiary matters). Defendant's arguments are not reviewable under the limited scope of plain error review. This assignment of error is dismissed.