Appeal by defendant from judgments entered 8 December 2006 by
Judge Michael E. Beale in Rowan County Superior Court. Heard in
the Court of Appeals 14 May 2008.
Attorney General Roy A. Cooper, III, by Solicitor General
Christopher G. Browning, Jr., for the State.
Parish & Cooke, by James R. Parish, for defendant-appellant.
HUNTER, Judge.
John Fitzgerald Rankin (“defendant”) appeals from judgments
entered on 8 December 2006 pursuant to a jury verdict of guilty on
charges of first degree murder and robbery with a dangerous weapon.
After careful review, we find no error.
I.
The evidence offered at trial tended to show as follows:
Defendant spent the weekend of 13 August 2004 with his cousin James
Rankin (“Junior”) and his son Cedric Hawkins. On Monday, 16 August
2004, defendant and Hawkins left the apartment, telling Junior that
they were going to “make a lick[,]” which Hawkins explained at
trial meant commit a robbery. Defendant borrowed a car from his
girlfriend in the morning; Hawkins returned it at 2:00 p.m. so thatshe could pick her children up from school, then borrowed it again
afterward.
At 3:15 p.m. on 16 August 2004, Kevin Ritchie (“the victim”)
was found stabbed to death in his home. The fatal stab wound was
found to be a particularly deep wound in his chest; other smaller
sharp trauma injuries were found on his back. Approximately twenty
to thirty firearms were later determined to be missing from his
home.
Various witnesses at trial testified that the victim was very
careful about personal security, always keeping the multiple locks
on the doors to his home locked and only allowing in persons he
knew well. The victim and defendant went to school together and,
according to testimony and telephone records, had been in close
communication prior to the victim's death.
Within a week of the victim's death, two of his rifles were
pawned by Junior and his friend Timothy Allison; a third rifle was
later found in the trunk of Allison's car. Upon questioning by the
police, Junior testified that he received the weapons from
defendant shortly after the victim's death; defendant had
transferred the weapons to Allison's trunk in the presence of both
Allison and Junior, removing them from his own car trunk wrapped in
a sheet later determined to have come from the victim's home.
Defendant was charged with first degree murder on 17 September
2004. He was indicted in separate proceedings for first degree
murder and robbery with a dangerous weapon. The charges were
joined, and the jury returned a verdict of guilty of first degreemurder under a theory of felony murder as well as guilty of robbery
with a dangerous weapon. Defendant was sentenced to life
imprisonment without parole for first degree murder. The judgment
as to robbery with a dangerous weapon was arrested. Defendant now
appeals his conviction.
II.
A.
Defendant first argues that the trial court incorrectly denied
his motion to dismiss the charges of robbery with a dangerous
weapon and first degree murder because the State presented
insufficient evidence that defendant committed each charge.
However, he only addresses the robbery charge in his brief,
implying that because insufficient evidence supports that charge,
the felony murder charge that relies on it as the underlying felony
also fails.
[T]he true test of whether to grant a motion
to dismiss is whether the evidence, considered
in the light most favorable to the State, is
“existing and real, not just seeming or
imaginary.” If the evidence will permit a
reasonable inference that the defendant is
guilty of the crime charged, the trial judge
should allow the case to go to the jury.
State v. Faison, 330 N.C. 347, 358, 411 S.E.2d 143, 149 (1991)
(citation omitted).
Defendant likens the facts of this case to those in
State v.
Powell, 299 N.C. 95, 100, 261 S.E.2d 114, 118 (1980), where the
defendant was found in possession of the murder victim's television
and knife. The Supreme Court overturned defendant's conviction for
robbery, stating that the property had been taken “as anafterthought once the victim had died”; there, however, the
victim's body was found in her bed with copious physical evidence
that she had been raped, then murdered.
Id. at 102, 261 S.E.2d at
119.
In the case at hand, the evidence, taken in the light most
favorable to the State, shows that the victim was killed without a
struggle; that defendant and the victim knew each other and were in
close communication; that defendant told his cousin he and his son
were leaving to commit a robbery; that defendant told his cousin he
could obtain firearms; and that, after the murder, defendant was in
possession of certain firearms stolen from the victim's house.
Further, the $1,000.00 in cash left in the gun safe that defendant
makes much of -- arguing that it shows stealing the guns was an
afterthought, since if defendant were there to steal he would have
taken the money -- was hidden in the safe, and hidden well enough
that it was not discovered until the police's second day of
searching the house. Indeed, the officer who finally found the
money said he looked in the safe a half dozen times without seeing
it.
Defendant is correct that “[t]he gist of [robbery with a
dangerous weapon] is not the taking but the taking by force or
putting in fear.”
Powell, 299 N.C. at 102, 261 S.E.2d at 119;
see
N.C. Gen. Stat. § 14-87(a) (2007). However, our Supreme Court has
repeatedly held that “it is immaterial whether the intent was
formed before or after force was used upon the victim, provided
that the theft and force are aspects of a single transaction.”
Faison, 330 N.C. at 359, 411 S.E.2d at 150;
see also State v.
Green, 321 N.C. 594, 605, 365 S.E.2d 587, 594,
cert. denied, 488
U.S. 900, 102 L. Ed. 2d 235 (1988);
State v. Fields, 315 N.C. 191,
203, 337 S.E.2d 518, 525 (1985).
Taking these facts in the light most favorable to the State,
the jury could well have concluded that defendant entered the house
intending to steal the firearms and, once having obtained them and
killed defendant, left without conducting a more rigorous search of
the house that would have delayed his escape. As such, defendant's
argument is without merit.
B.
Defendant next argues that the trial court erred in calling
defendant's son as a witness because the State knew that he would
invoke his Fifth Amendment privilege against self-incrimination.
Requiring him to take the stand and invoke that privilege,
defendant argues, prejudiced the defendant because it could have
been taken by the jury to imply his own guilt and defendant's guilt
as well. Because defendant did not object at trial, we review this
assignment of error for plain error.
“[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' orwhere it can be fairly said 'the instructional
mistake had a probable impact on the jury's
finding that the defendant was guilty.'”
State v. Lemons, 352 N.C. 87, 96-97, 530 S.E.2d 542, 548 (2000)
(alterations in original; citations omitted),
cert. denied, 531
U.S. 1091, 148 L. Ed. 2d 698 (2001).
The State called Cedric Hawkins, defendant's twenty-two-year-
old son, to the stand during its case in chief on a Friday morning.
The State elicited his name, age, and relationship to defendant
before Hawkins asserted his Fifth Amendment privilege not to
incriminate himself and refused to answer any further questions.
The State then offered Hawkins use immunity per N.C. Gen. Stat. §§
15A-1051 and -1052 (2007). The court allowed Hawkins and his
attorney to confer regarding the offer, but Hawkins still refused
to testify. The court then heard from the State and Hawkins's
attorney as to a material witness order, and finally ordered that
Hawkins appear on Monday at 2:00 p.m., when court would be back in
session.
Defendant argues that the State put Hawkins on the stand
knowing that he would assert his Fifth Amendment privilege not to
testify, and that refusal to testify improperly prejudiced the jury
against his client. This argument is without merit.
Per N.C. Gen. Stat. § 15A-1052(b),
[t]he application [for immunity] may be made
whenever, in the judgment of the district
attorney, the witness has asserted or is
likely to assert his privilege against
self-incrimination and his testimony or other
information is or will be necessary to the
public interest. Before making application to
the judge, the district attorney must informthe Attorney General, or a deputy or assistant
attorney general designated by him, of the
circumstances and his intent to make an
application.
The State here provided notice to the Attorney General the day
before trial and presented proof of that notice to the trial court
the day trial began.
A very similar situation occurred in
State v. Thompson, 332
N.C. 204, 420 S.E.2d 395 (1992). There, Jose Sanchez had admitted
to police that he had killed the victim, but that he had done so at
the behest of the defendant.
Id. at 213, 420 S.E.2d at 400. On
appeal, the Court analyzed Sanchez's being called as a witness as
follows:
At the time of defendant's trial, Sanchez was
awaiting appeal on his first-degree murder
conviction. Through his appellate counsel,
Sanchez informed the trial court and the State
that he would not answer any questions and
would invoke the Fifth Amendment. The trial
court nonetheless allowed the State to call
Sanchez to the witness stand in the presence
of the jury to require him to give his name
and invoke his rights. We believe that this
was permissible because the prosecutor's case
would be “seriously prejudiced” by failure to
offer Sanchez as a witness in light of
Sanchez' role in the murder.
Id. at 223, 420 S.E.2d at 406 (citation omitted). There, as here,
the jury heard evidence that a named second person was involved in
the crime. Failure to call that person as a witness would have
seriously prejudiced the State's case against defendant. Further,
defendant can cite to no law suggesting that there exists an
obligation to provide prior notice to either the court or the
attorney representing a witness that he will be offered useimmunity. Certainly defendant has not shown how the State's action
might amount to plain error. As such, this assignment of error is
overruled.
C.
Defendant next argues that the trial court erred in
instructing the jury on acting in concert because the instruction
was not supported by the evidence presented at trial. This
argument is without merit.
The instruction given by the court was as follows:
For a person to be guilty of a crime, it
is not necessary that he personally do all of
the acts necessary to constitute the crime.
If two or more persons join in a common
purpose to commit a crime, each of them, if
actually or constructively present, is not
only guilty of that crime if the other person
commits the crime, but also guilty of any
other crime committed by the other in the
pursuance of the common purpose to commit the
original crime, or as a natural or probable
consequence thereof.
“The trial court must give a requested instruction that is
supported by both the law and the facts.”
State v. Nicholson, 355
N.C. 1, 67, 558 S.E.2d 109, 152,
cert. denied, 537 U.S. 845, 154 L.
Ed. 2d 71 (2002).
An instruction on the doctrine of acting
in concert is proper when the State presents
evidence tending to show the defendant was
present at the scene of the crime and “acted
together with another who did acts necessary
to constitute the crime pursuant to a common
plan or purpose to commit the crime.”
State v. Cody, 135 N.C. App. 722, 728, 522 S.E.2d 777, 781 (1999)
(citation omitted). Among the evidence presented by the State at
trial is the following: Defendant told his cousin he and his sonwere leaving the house that morning to commit a robbery; defendant
borrowed a car from his girlfriend the morning of the murder, but
Hawkins returned it; and the wounds on the victim's front and back
suggested that he might have been attacked by two different weapons
simultaneously. Further, although Hawkins refused to testify at
trial, shortly after the murder he made a statement to police in
which he stated that he drove with defendant to the victim's house.
As the State notes, without presenting the jury with instructions
on acting in concert, the jury might have decided it could not
decide whether Hawkins or defendant struck the blow that killed the
victim, and as such acquitted defendant. Defendant has not shown
that presenting this instruction to the jury was error.
D.
Finally, defendant argues that the trial court erred by
allowing the State to present evidence identifying defendant and a
witness as Muslim. This argument is without merit.
The State presented recordings of certain phone calls made by
defendant to Chantay Brown, a woman with whom he had been involved
in the past. Brown's initial testimony provided defendant with an
alibi for the time of the murder; however, she later retracted that
statement and testified that defendant asked her via calls and
letters to provide him with an alibi for the time of the crime.
Defendant argues that this unfairly prejudiced the jury against
him, as the jury could well have anti-Muslim beliefs, and that any
probative value of the evidence was outweighed by its prejudicial
effect. This argument is based on Rule 403 of the North Carolina Rules
of Evidence. Rule 403 states that “[a]lthough relevant, evidence
may be excluded if its probative value is substantially outweighed
by the danger of unfair prejudice[.]” N.C. Gen. Stat. § 8C-1, Rule
403 (2007).
Whether to exclude evidence pursuant to Rule
403 is a matter left to the sound discretion
of the trial court. A ruling by the trial
court will be reversed for an abuse of
discretion only upon a showing that the ruling
was so arbitrary that it could not have been
the result of a reasoned decision.
State v. Jones, 347 N.C. 193, 213, 491 S.E.2d 641, 653 (1997)
(internal citation omitted). “However, defendant has the burden to
show not only that it was error to admit this evidence, but also
that the error was prejudicial: A defendant must show that, but
for the error, a different result would likely have been reached.”
State v. Gayton, ___ N.C. App. ___, ___, 648 S.E.2d 275, 278 (2007)
(citation omitted).
Per North Carolina Rule of Civil Procedure 401, relevant
evidence is “evidence having any tendency to make the existence of
any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the
evidence.” N.C. Gen. Stat. § 8C-1, Rule 401 (2007). Evidence that
a defendant attempted to procure a false alibi from a witness is
certainly relevant.
See, e.g., State v. Whiteside, 325 N.C. 389,
397, 383 S.E.2d 911, 915 (1989) (holding as admissible under Rule
401 “relevant circumstantial evidence tending to connect an accused
with the crime”).
See also People v. Hansen, 765 N.E.2d 1033, 1039(Ill. App. 2002) (holding that “evidence that a defendant attempted
to influence the testimony of a witness or to establish a false
alibi is admissible to show consciousness of guilt” per state rule
of evidence substantially identical to Rule 401);
State v. Allen,
682 P.2d 417, 419 (Ariz. 1984) (holding as admissible “the attempt
to procure a witness with the express purpose of testifying falsely
is relevant” per state rule of evidence substantially identical to
Rule 401). The question, then, is whether the prejudicial effect
of this information outweighed its relevance.
Defendant simply states that the jury probably had an anti-
Islamic bias. Aside from the fact that a Bible was in the jury
room, however, defendant presents no evidence to support this
statement. Further, Brown testified that, per her religious
beliefs, when defendant asked her to provide an alibi for him, she
felt obligated to do so, which is why she initially testified that
he had been with her at the time of the murder. When the State
asked her during
voir dire whether her religious beliefs and the
fact that defendant was of the same faith affected the way she
reacted to defendant's request, she testified: “You're supposed to
help them, assist them, if you can. You're supposed to help him.
That's why I did agree to help him.” After listening to Brown's
testimony and recordings of the phone calls between her and
defendant out of the jury's presence, the trial court concluded
that “defendant was using his religion as a mechanism to try to get
this witness to testify in his behalf, and actually commit perjury;
that it is relevant for that purpose, and it is not being offeredas a means to showing credibility[.]” The court then went through
the calls again and told the State which portions of each call
could be played for the jury, a process which eliminated
significant portions of each call that the court considered “just
discussions of faith and nothing to do with the trying to influence
her.”
Given the care with which the trial court handled this
evidence, and given the fact that defendant cannot show that,
without this evidence, a different result would likely have been
reached, this assignment of error is overruled.
III.
Because defendant has not shown any error in his trial, we
find no error.
No error.
Judges STEELMAN and STEPHENS concur.
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