State v. Whitaker

Court of Appeals of North Carolina
State v. Whitaker, 259 S.E.2d 316 (1979)
43 N.C. App. 600; 1979 N.C. App. LEXIS 3129
Clark, Erwin, Wells

State v. Whitaker

Opinion

CLARK, Judge.

There are fifty-seven assignments of error in the record. Defendant Whitaker argues that there are numerous small prejudicial errors that together call for a new trial. These objections include the lack of a proper identification of exhibits, conclusory statements by witnesses and leading questions. We have carefully reviewed each of the contentions of defendant Whitaker and find them to be without prejudicial effect, and we therefore decline to grant a new trial. State v. Stanfield, 292 N.C. 357, 233 S.E. 2d 574 (1977); State v. Cottingham, 30 N.C. App. 67, 226 S.E. 2d 387 (1976). For the same reasons we find no merit in the contentions of defendant Whitaker that the trial judge should have dismissed the case either after the close of the State’s evidence or after the close of all the evidence, and that the trial judge should have set aside the verdict of the jury.

Defendant Williams presents five arguments. First, Williams contends that the trial judge committed reversible error by denying defendant Williams’ motion for a change of venue. Defendant argues that the accounts of the accident and pictures of the accident scene were aired by local radio and television stations and were printed for several days in the local newspaper and that the deaths of the two victims touched off a deep resentment and even outright hatred against the two black defendants. However, no press clippings were presented, there was no showing that the jurors had seen or were affected by the publicity, and there was no showing that defendants’ peremptory challenges were exhausted. The standard for review for a ruling on a motion for a change of venue is whether the trial judge abused his discretion, N.C. Gen. Stat. § 15A-957, 958 (1978); State v. Boykin, 291 N.C. 264, 229 S.E. 2d 914 (1976); State v. Harrill, 289 N.C. 186, 221 S.E. 2d 325, death sentence vacated, 428 U.S. 904, 96 S.Ct. 3212, 49 L.Ed. 2d 1211 (1976), and where defendant presents nothing more *604 than an allegation of general ill will in the community, there is no evidence which would support a reversal for abuse of discretion. State v. Thompson, 287 N.C. 303, 214 S.E. 2d 742 (1975), death sentence vacated, 428 U.S. 908, 96 S.Ct. 3215, 49 L.Ed. 2d 1213 (1976).

Defendant Williams next contends that the trial court committed reversible error by denying Williams’ motion for severance of the trial of Whitaker and Williams. Here Williams argues that his defense was predicated upon the testimony of Otis Whitaker and that because other evidence against Whitaker would be admitted in a joint trial than would be admitted in a solo trial of Williams, Williams was thereby denied any right to use Whitaker as a witness and to have his case heard without the overwhelming prejudicial feeling of hatred aired at Otis Whitaker. We do not agree with this contention. The rule in North Carolina is clear that whether defendants should be tried separately is to be resolved in the sound discretion of the trial court and absent a showing of substantial prejudice to the defendants amounting to the denial of a fair trial, the exercise of discretion by the trial court will not be disturbed upon appeal. State v. Slade, 291 N.C. 275, 229 S.E. 2d 921 (1976); State v. Alford, 289 N.C. 372, 222 S.E. 2d 222, death sentence vacated, 429 U.S. 809, 97 S.Ct. 45, 50 L.Ed. 2d 69 (1976). Defendant presents no explanation as to how a separate trial would have prevented the alleged prejudice, particularly when the State would have had the right on cross examination to draw out the same facts defendant contends would prejudice the jury against his defense. We therefore uphold the ruling of the trial court in denying defendant Williams’ motion for severance.

Defendant Williams next contends that the repeated use of leading questions by the State and the conclusory testimony of the State’s witnesses were prejudicial when viewed as a whole. As with the above contentions of defendant Whitaker, we have carefully reviewed each of these challenges and find no prejudice.

Finally, defendant Williams contends that the trial judge committed reversible error by denying the defendant’s motion for a directed verdict of not guilty at the end of the State’s evidence and upon renewal of the motion at the end of all of the evidence. Defendant argues that there was insufficient evidence to support the instructions by the trial judge as to the element of aiding and *605 abetting and, in particular, that there was no evidence to support the charge of the trial judge that Williams must have known that Whitaker was in no condition to drive or that Williams was so intoxicated that he did not use the degree of care necessary to determine Whitaker’s condition. We disagree. As a general principle, “[w]hen an owner places his motor vehicle in the hands of an intoxicated driver, sits by his side, and permits him, without protest, to operate the vehicle on a public highway, while in a state of intoxication, he is as guilty as the man at the wheel.” State v. Gibbs, 227 N.C. 677, 678, 44 S.E. 2d 201, 202 (1947). See also State v. Nall, 239 N.C. 60, 79 S.E. 2d 354 (1953), (aiders and abettors guilty as principals). Following these principles, we hold that when a death results from the operation of a motor vehicle by an intoxicated person not the owner of that vehicle, the owner who is present in the vehicle and who with his knowledge and consent permits the intoxicated driver to operate the vehicle, is as guilty as the intoxicated driver. Story v. United States, 16 F. 2d 342 (1926), cert. denied, 274 U.S. 739, 47 S.Ct. 576, 71 L.Ed. 1318 (1927), (a motor vehicle manslaughter case cited in Gibbs, supra). See also Annot. 47 A.L.R. 2d 568, 586-88 (1956); Annot. 99 A.L.R. 756, 771 (1935).

In the instant case defendant Williams’ own testimony revealed that he stopped the car in order to allow the defendant Whitaker to drive. Defendant Williams knew that defendant Whitaker had had at least two drinks of vodka and one beer. While defendant Williams did not perceive Whitaker to be intoxicated, the test administered by the State more than an hour after the accident showed that Whitaker was under the influence of alcohol to an appreciable degree. Consequently, we hold that the trial judge was correct in his instructions on aiding and abetting the involuntary manslaughter and that the court appropriately sent the case to the jury.

Affirmed.

Judges ERWIN and WELLS concur.

Reference

Full Case Name
State of North Carolina v. Otis Lee Whitaker and James Alton Williams
Cited By
8 cases
Status
Published
Syllabus
1. Criminal Law 15.1 — motion for change of venue — community ill will The trial court did not err in the denial of defendant's motion for a change of venue of his involuntary manslaughter trial where defendant presented nothing more than an allegation of general ill will in the community against him because of the incident in question.Page 601 2. Criminal Law 92.1 — involuntary manslaughter — refusal to sever trials of automobile driver and owner The trial court in an involuntary manslaughter prosecution did not err in refusing to sever defendant automobile owner's trial from that of the codefendant driver on the ground that he would be prevented from using the driver's testimony at a joint trial because additional evidence admissible against the driver in such a joint trial would cause a feeling of ill will toward the driver, since the State would have the right to draw out the same facts on cross-examination in a separate trial that defendant contends would prejudice him in a joint trial. 3. Automobiles 110 — death by motor vehicle — intoxicated driver — responsibility of owner When a death results from the operation of a motor vehicle by an intoxicated person not the owner of that vehicle, the owner who is present in the vehicle and who knowingly permits the intoxicated driver to operate the vehicle is as guilty as the intoxicated driver. 4. Automobiles 113.1 — involuntary manslaughter — intoxicated driver — owner's guilt as aider and abettor The trial court properly submitted an issue of defendant automobile owner's guilt of involuntary manslaughter as an aider and abettor where the evidence tended to show that defendant's automobile, while driven by the codefendant, struck a patrol car which was sitting on the shoulder of the road and then struck and killed two young men who were standing beside the patrol car; defendant had stopped the automobile in order to allow the codefendant to drive and was riding in the back seat at the time of the accident; defendant knew the codefendant had had at least two drinks of vodka and one beer; and a test administered to the codefendant driver more than an hour after the accident showed him to have a blood alcohol content of .17.